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2015 DIGILAW 1157 (MP)

SHANTANU MAITRA v. K. K. VIJAYWARGIYA

2015-11-05

ALOK VERMA

body2015
ORDER : Alok Verma, J. This application filed under section 482, Criminal Procedure Code read with section 29 of Pre-conceptional and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "PC and PNDT Act"). 2. The brief facts giving rise to this application are that the applicant is a qualified registered medical practitioner and has been rendering services as a competent consultant for Sonography at the Centre known as "Arogya Diagnostic Centre" run by respondent No. 2 Vikas Joshi, who is Director of said Arogya Diagnostic Centre on part time and contractual basis. On 16-6-2006, complainant and respondent No. 2 Dr. K. K. Vijaywargiya a competent authority under the PC and PNDT Act, along with his team members conducted an inspection in the said Arogya Diagnostic Centre. They sealed the Sonography machine, which was not being used for any test and was lying idle, and thereafter, a Panchnama was drawn. The machine was later on handed over to respondent No. 2 on the order passed by learned Chief Judicial Magistrate. 3. In the Panchnama drawn by the complainant and his team members, following allegations were made :- (i) That the board stating that "sex determination is a punishable offence" and that "sex determination has not been conducted in the Centre" were not displayed at a conspicuous place in the Centre. (ii) No report on Form-`F' was produced by the Centre at the time of inspection. The educational qualification of doctor conducting the test was also not displayed. Form-`F' is prepared in three copies and one copy sent to the office of Chief Medical Officer which was not done. The Declaration in the form-`F' was not signed by the doctor. 4. So far as the present applicant is concerned, he was implicated on the basis that he was not signed the declaration as required by the provisions of the Act and Rules made thereunder in form-`F and also not maintained the record properly. It is also alleged that copy of the form-`F' was not sent timely to the office of Chief Medical Officer. 5. In the charges made by the learned Judicial Magistrate First Class, Indore, facts mentioned therein are that the present applicant did not maintain the record, chart, forms etc. and the same were not made available to the authority conducting the inspection. 6. 5. In the charges made by the learned Judicial Magistrate First Class, Indore, facts mentioned therein are that the present applicant did not maintain the record, chart, forms etc. and the same were not made available to the authority conducting the inspection. 6. The learned Additional Sessions Judge in the impugned order placed reliance on judgment of Hon'ble Apex Court in case of State of Orissa v. Devendra Nath Padhi, 2003(2) MPWN 40 in which it was held that at the stage of framing of charges only such material should be taken into consideration, which was produced by the Investigating Officer. The defence or the accused was not entitled to produce any evidence at this stage. The learned Additional Sessions Judge also placed reliance on judgment of Hon'ble Apex Court in case of State of M. P. v. S.B. Johri, 2000(2) M.P.L.J. (S.C.) 322 in which it was held that if there is a prima facie case then charges are to be framed. The evidences are not to be evaluated or appreciated at this stage. 7. In this case, however, as mentioned by learned Additional Sessions Judge in Para-12 of the impugned judgment that evidence before charge was recorded by the learned Magistrate as it was a warrant trial based on a complaint and not on a police report. When evidence before charge was produced and accused was given an opportunity to cross-examine, all the materials brought on record during evidence before charge should be taken into consideration. In this regard, the provisions of sections 244 and 245 are to be taken into consideration Though, the evidences are to be considered only for a purpose of framing of charges, still, the document if produced by the defence during cross-examination of prosecution witnesses must be taken into consideration. The principles laid down in aforementioned cases are not fully applicable when charges are framed on the basis of evidence before charge in a complainant case when the Magistrate is trying a base as a warrant trial. 8. At the time of framing of charges in accordance with the provisions of section 245, Criminal Procedure Code, the Magistrate is required to consider the evidence adduced on behalf of the complainant and its quality that if tile same is un-rebutted it would be sufficient for warranting conviction of the accused. 8. At the time of framing of charges in accordance with the provisions of section 245, Criminal Procedure Code, the Magistrate is required to consider the evidence adduced on behalf of the complainant and its quality that if tile same is un-rebutted it would be sufficient for warranting conviction of the accused. If the order passed by trial Court reveals that it has not considered the evidence of the witnesses then it may be said that the Magistrate in light of the aforesaid touch stone of law and committed illegality on framing of charge for offence under section 494, Criminal Procedure Code, and therefore, such order is illegal Kishore Kumar Sarva v. Smt. Vineshwari Sahu and another, 2000(3) Crimes 474 (CHHT). This implies that if any document has been produced during cross-examination of prosecution witnesses, the same has to be considered. 9. In this case immediately after the inspection made by the competent authority, some correspondences were made between the complainant and the in-charge of the Centre. The photographs were sent to the competent authority to show that all the requirements of the Act was duly complied with and the declaration on form-`F' was also signed by the present applicant if such documents are produced during cross-examination of the prosecution witnesses they are to be taken into consideration because they go to the root of the matter and falsify the case of the complainant. In this view of the matter in my considered opinion, the learned Additional Sessions Judge failed to appreciate the facts and law in the criminal revision filed by the present applicant, in light of the above established principles of law. Accordingly this application deserves to be allowed and hereby allowed. 10. The order passed by learned Additional Sessions Judge is set aside. The matter is remanded back to the learned Additional Sessions Judge with direction to reconsider the material available on record and all the documents produced by the defence during cross-examination of the prosecution witnesses and the reply given by the prosecution witnesses thereunder. After due consideration, the learned Additional Sessions Judge is directed to again pass an order giving full reasons for the conclusion drawn by him. 11. With aforesaid directions and observations, this application stands disposed of. 12. Certified copy as per rules.