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2015 DIGILAW 596 (BOM)

Sandhya Arun Kulkarni v. State of Maharashtra

2015-02-26

S.B.SHUKRE

body2015
Judgment :- 1. Heard finally with the consent of Shri S.V. Sirpurkar, the learned Advocate for the applicant, Shri J.B. Kasat, the learned Advocate for the respondent no.2 and Shri M.M. Ekre, the learned Assistant Public Prosecutor for the respondent no.1. 2. The applicant is challenging the order of issuance of process passed by the Juridical Magistrate First Class, Chandrapur on 27-11-2012 under Sections 19(4) r/w Rule 6(2), Section 4(3), Section 3(2) r/w Rule 8(ii), Rule 9(8) and Rule 18(ix) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Rules made thereunder [hereinafter referred to as ‘the Act, 1994 and Rules, 1996’ respectively] and also the order passed by the Additional Sessions Judge-1, Chandrapur on 01-08-2013, dismissing the revision application filed against the said order by the applicant. 3. The learned Counsel for the applicant submits that in view of Section 28, the complaint under the Act, 1994 is mandatorily required to be filed by the appropriate Authority appointed under the provisions of Section 17 of the Act, 1994 or by an officer authorized to file a complaint under Section 28 by the appropriate Authority. He submits that the complaint in this case has been filed by one Dr. Ramteke who is neither the appropriate Authority nor the authorized officer and therefore, in view of Section 28, no cognizance of the complaint as filed in this case could have been taken by the learned Magistrate. 4. Shri M.M. Ekre, the learned Assistant Public Prosecutor for the State, submits that the complaint has been filed by an authorized officer and in support of the arguments, he invites my attention to the averments made in para no.1 of the complaint. He also submits that basically the complaint has been filed by the Commissioner who is the appropriate Authority appointed under Section 17 of the Act, 1994 and therefore, this application, deserves to be rejected. He submits that even if there is any irregularity in filing of the complaint, the same is curable. 5. He also submits that basically the complaint has been filed by the Commissioner who is the appropriate Authority appointed under Section 17 of the Act, 1994 and therefore, this application, deserves to be rejected. He submits that even if there is any irregularity in filing of the complaint, the same is curable. 5. Shri J.B. Kasat, the learned Counsel for the respondent no.2 submits that this complaint has been filed by the Commissioner of Municipal Corporation who is without any dispute an appropriate Authority appointed under Section 17 of the Act, 1994 and therefore, if the complaint does not bear verification or signature of the Commissioner, the same can be cured by giving an opportunity to the Commissioner to appear before the trial Court and do the needful in the matter. In support, he places reliance upon the cases of M.M.T.C. Ltd. and another vs MEDCHL Chemicals and Pharma (P) Ltd. and another, reported at (2002) 1 SCC 234 and Haryana State Cooperative Supply and Marketing Federation Limited vs Jayam Textiles and another, reported at (2014) 4 SCC 704 . 6. To appreciate the rival arguments, it would be necessary to refer to Sections 17 and 28 of Act, 1994, which are reproduced below as under: “17. Appropriate Authority and Advisory Committee. – (1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act. (2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of prenatal sex determination leading to female foeticide. (2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of prenatal sex determination leading to female foeticide. (3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be,— [(a) when appointed for the whole of the State or the Union territory, consisting of the following three members – (i) an officer of or above the rank of the Joint Director of Health and Family WelfareChairperson; (ii) an eminent woman representing women’s organization; and (iii) an officer of Law Department of the State or the Union territory concerned: Provided that it shall be the duty of the State or the Union territory concerned to constitute multimember State or Union territory level Appropriate Authority within three months of the coming into force of the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002: Provided further that any vacancy occurring therein shall be filled within three months of that occurrence;] (b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit. (4) the Appropriate Authority shall have the following functions, namely:— (a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic; (b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic; (c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action; (d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for suspension or cancellation of registration; [(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter; (f) to create public awareness against the practice of sex selection or prenatal determination of sex; (g) to supervise the implementation of the provisions of the Act and rules; (h) to recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions; (i) to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of registration.] (5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman. (6) The Advisory Committee shall consist of— (a) three medical experts from amongst gynaecologists, obstericians, paediatricians and medical geneticists; (b) one legal expert; (c) one officer to represent the department dealing with information and publicity of the State Government or the Union territory, as the case may be; (d) three eminent social workers of whom not less than one shall be from amongst representatives of women’s organisations. [(7) No person who has been associated with the use or promotion of prenatal diagnostic technique for determination of sex or sex selection shall be appointed as a member of the Advisory Committee.] (8) The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for registration or any complaint for suspension or cancellation of registration and to give advice thereon: Provided that the period intervening between any two meetings shall not exceed the prescribed period. (9) The terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee in the discharge of its functions shall be such as may be prescribed. 28. Cognizance of offences. – (1) No court shall take cognizance of an offence under this Act except on a complaint made by— (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than [fifteen days] in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. Explanation.— For the purpose of this clause, “person” includes a social organisation. (2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person. ” It is clear from the above that Section 28 requires that the complaint must be filed by the appropriate Authority or an officer authorized by the appropriate Authority and Section 17 confers power upon the Central Government, State Government and the Government/Administration of the Union Territory as the case may be, to appoint the appropriate Authorities by notification in the official Gazette for the whole or part of the State. 7. Section 2(a) defines the expression “Appropriate Authority” as the one which is appointed under Section 17. 7. Section 2(a) defines the expression “Appropriate Authority” as the one which is appointed under Section 17. The combined reading of Sections 17 and 28 together with definition of the expression “Appropriate Authority” would make it clear that the complaint must be filed by the Appropriate Authority or the officer authorized by the Appropriate Authority in terms of the powers given under Section 28 of the Act, 1994. If the complaint has not been filed by such an authority or the officer, the Court would be precluded from taking cognizance of the complaint. 8. Appropriate authority contemplated under Section 17 read with Section 28 is some officer or person occupying a certain post in the government or certain status in society and not an office or chair created by or within the government which can be gathered from requirement of the government appointing the officers as appropriate authorities by issuing notification in official Gazette under Section 17(1)(2) and (3) of Act, 1994. If any office of the government was to be made appropriate authority, there would have been no need to invest the government with power to “appoint” “officers” as appropriate authorities and a declaration in the statute conferring of ex-officio status of appointing authority on an officer occupying a certain post or office would have served the purpose. This indicates that the appropriate authority is a living person as opposed to legal person like a partnership firm, a company and so on. The Act, 1994 is a penal statute containing special provisions and therefore, provisions relating to the pre-conception and prenatal diagnostic techniques offences prescribed thereunder have to be construed strictly. When such an Act lays down a special procedure for taking cognizance of the offences under the Act, 1994, cognizance of the offences must be taken in accordance with those provisions only. Therefore, it would have to be seen in the instant case as to whether or not the complaint as filed against the complainant is in consonance with the procedure laid down in the statute. 9. A bare perusal of the complaint would disclose that it has been filed by Dr. B.W. Ramteke who has not only signed the complaint but also verified it. The complaint has been ostensibly filed in the name of the State of Maharashtra through the Commissioner of Municipal Corporation, City of Chandrapur. 9. A bare perusal of the complaint would disclose that it has been filed by Dr. B.W. Ramteke who has not only signed the complaint but also verified it. The complaint has been ostensibly filed in the name of the State of Maharashtra through the Commissioner of Municipal Corporation, City of Chandrapur. But, the appropriate Authority contemplated under the Act, 1994 as said earlier, is not a juristic person but a living person occupying a certain post or status and who has been appointed under Section 17 to be the appropriate Authority for taking action under the Act, 1994. Such a person cannot be equated with a juristic person like a body corporate or Company or association of individuals which subsequent to filing of complaint can authorize any of its officers to appear before the Court and make a necessary correction in the complaint already filed. When Section 28 lays down that the Court cannot take cognizance of the complaint which has not been filed by the appropriate Authority or authorized officer and the appropriate Authority or authorized officer being not a juristic person but a living person the complaint must be filed and signed by such authority or the officer alone and no one else. Therefore, the lacuna left in the complaint as a result of its not being filed by the appropriate authority can not be cured subsequently. In this case the complaint has been signed and verified not by the Commissioner but by Dr. Ramteke who, it appears, has not been duly authorized either by the Commissioner or by the Collector or by the Civil Surgeon, all admittedly the appropriate Authorities under the Act, 1994, to file the complaint in terms of the power given under Section 28 of the Act, 1994. The documents placed on record which, in the opinion of the learned Assistant Public Prosecutor together constitute authority conferred upon Dr. Ramteke, do not anywhere show that Dr. Ramteke has been authorized to file the complaint or take action under the Act, 1994 in relation to or for the offences committed by the applicant. These documents only show that the authority is confined to particular clinics as specified in Column No. 4 of the order of Collector, Chandrapur dated 12-07-2012 (Document-I) filed along with reply of the respondent and name of the clinic run by the applicant is conspicuously absent from said column no.4. These documents only show that the authority is confined to particular clinics as specified in Column No. 4 of the order of Collector, Chandrapur dated 12-07-2012 (Document-I) filed along with reply of the respondent and name of the clinic run by the applicant is conspicuously absent from said column no.4. Therefore, I am of the view, that the learned Magistrate ought not to have taken cognizance of the complaint and should have dismissed it. 10. In the case of M.M.T.C. Ltd. and another (supra), Hon’ble Apex Court has held that the requirement of Section 142 of the Negotiable Instruments Act [‘N.I. Act’ for short] is that the complaint should be filed by the payee and in that case the payee was the Company which had filed the complaint and it was held that the complaint was appropriately filed. I have already found that, in the instant case, the appropriate Authority is a living person and not a juristic person like a Company and therefore, the law laid down by the Hon’ble Apex Court in the context of a legal person cannot be applied to a case wherein a living person is required to file a complaint. 11. In the case of Haryana State Co-operative Supply and Marketing Federation Limited (supra), the law laid down by the Hon’ble Apex Court in the context of Section 142 of the N.I. Act is that the defect relating to non signing of the complaint by the authorized officer of the Company who has filed the complaint under Section 138 of the Negotiable Instruments Act on behalf of a Company is curable. In my humble opinion, this principle of law cannot be applied by drawing analogy between Section 142 of the N.I. Act and Section 28 of Act, 1994 which are entirely different sections. Under Section 28 of Act, 1994 Court cannot take cognizance of a complaint which is not filed by an appropriate authority or authorized officer, either of whom is a living person and Section 142 of N.I. Act enables a complaint to be filed by a juristic person in its own name and, therefore, latter section leaves room for curing the defect of non-signing of the complaint by its authorized officer at a later stage, unlike former section. 12. 12. In the result, I find that the complaint, having not been filed either by the appropriate Authority or an officer authorized by the appropriate Authority, ought to have been dismissed by the learned Magistrate. Both the Courts below have not considered these essential requirements of the Act, 1994 and passed the orders which are not sustainable in law. 13. In the circumstances, I am of the view, that the application deserves to be allowed. Accordingly, the complaint filed by Dr. Ramteke against the present applicant stands rejected. 14. At this stage, learned Counsel for the respondent no.2 makes a prayer for grant of liberty to respondent no.2 to file a fresh complaint in the matter. The prayer is strongly opposed by the learned Counsel for the applicant. Considering the fact that this application has been decided without going into the merits of the case no prejudice would be caused to either of the sides, if the prayer is granted. The liberty as prayed for is, therefore, granted. All contention and objections as regards the maintainability of the complaint if filed, are kept open and if raised shall be decided by the trial Court on their own merits.