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2017 DIGILAW 509 (ORI)

Rajesh Kumar Agrawal v. State of Odisha

2017-05-02

J.P.DAS

body2017
JUDGMENT J.P. DAS, J. - Heard learned Counsel for the petitioner and learned Counsel for the State. 2. This is an application under Section 482, Cr.P.C. to quash the order of taking cognizance dated 16.01.2016 and the proceeding in 2 (C) C.C. Case No.01 of 2016 on the file of learned S.D.J.M., Bhadrak alleging the offences punishable under Sections 23 and 25 of the Pre-Conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ( in short “the Act, 1994”) for violating the provisions of Section 5 and 29 (2) of the Act, 1994 and Rules 9,11 and 18 of the P.C.& P.N.D.T. Rule. 3. The proceeding was initiated and cognizance was taken on Prosecution Report filed by the Assistant District Medical Officer, (F.W. & Imm) office of the C.D.M.O., Bhadrak alleging that on 23.11.2015 the Additional Tahasildar, Bhadrak being authorized by the Sub-Collector-cum Sub District Appropriate Authority, Bhadrak by Order No.1492 dated 23.11.2015 inspected the clinic of the present petitioner and found out certain anomalies and discrepancies in relation to the affairs of the Ultrasound Unit run by the present petitioner besides not being registered under the Odisha Clinical Establishment (Control and Regulation) Act, 1990. The Unit of the present petitioner was sealed and after completion of enquiry the Prosecution Report was filed before the learned S.D.J.M., Bhadrak who by the impugned order dated 16.01.2016 took cognizance of the offence punishable under Sections 23 and 25 of the Act, 1994 directing to issue summons against the present accused-petitioner. 4. It was submitted by the learned Counsel for the petitioner that the petitioner being a registered practitioner of the Odisha Medical Council of Registration started his own Diagnostic Centre and Ultra Sound Clinic at Bhadrak in the year 2012 in the name and style of New Omm Shanti Diagnostic Centre which was duly registered with the Collector and the Chairman of the P.C. and P.N.D.T., Bhadrak and validity of such registration was till 30.05.2017. It was further submitted that the petitioner received a communication from the C.D.M.O.-cum-Member Secretary, P.C. and P.N.D.T. Act, Bhadrak dated 7th November, 2011 that he must make an application for registration of his Unit under the Odisha Clinical Establishment (Control and Regulation) Act, 1990) and it was directed to make an application in the enclosed proforma by 31st December, 2015. It was further submitted that the petitioner received a communication from the C.D.M.O.-cum-Member Secretary, P.C. and P.N.D.T. Act, Bhadrak dated 7th November, 2011 that he must make an application for registration of his Unit under the Odisha Clinical Establishment (Control and Regulation) Act, 1990) and it was directed to make an application in the enclosed proforma by 31st December, 2015. It was submitted that all of a sudden on 23.11.2015 around 2 P.M. the Additional Tahasildar, Bhadrak being accompanied by other officials conducted a rain on the clinic of the petitioner and seized some document and also sealed the Unit. The sealing of the Unit was challenged by the petitioner before this Court in W.P. (C) No.22434 of 2016 and by order dated 17.02.2016 concerned authorities were directed to hand over the clinic to the petitioner. It was submitted that due to some ulterior motive the Prosecution Report was filed against the petitioner on 16.01.2016 and on the same day the learned S.D.J.M., took cognizance as aforesaid. It was submitted by the learned Counsel for the petitioner that the entire proceeding was vitiated for having not been conducted according to the statutory provision. 5. The only contention that has been raised is that as per the office memorandum dated 27.07.2007 of the Government of Odisha in Health and Family Welfare Department, the District Magistrate of each district has been appointed as the District Appropriate Authority for the district under the Act, 1994 and he may nominate an Executive Magistrate of the district as nominee to assist him in monitoring the implementation of the said Act as deemed necessary. In the said notification, the Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division has been appointed as the appropriate authority for the Sub-district (Subdivision) for smooth implementation of the provision under the Act, 1994. The Sub-Divisional Magistrate has not been authorized to nominate any other persons as has been permitted to the District Magistrate. Placing the said notification, it was submitted on behalf of the petitioner that in the instant case, the Sub-Collector and S.D.M., Bhadrak who had no authority to nominate any other person authorized the Additional, Bhadrak by Order No.1492 dated 23.11.2015 to inspect the clinic of the present petitioner and to take action as per the Act, 1994. Placing the said notification, it was submitted on behalf of the petitioner that in the instant case, the Sub-Collector and S.D.M., Bhadrak who had no authority to nominate any other person authorized the Additional, Bhadrak by Order No.1492 dated 23.11.2015 to inspect the clinic of the present petitioner and to take action as per the Act, 1994. Thus, it was contended that as per the settled position of law, the actions of the authority having not been taken in accordance with the provisions of the notification were illegal and hence, the present proceeding against the petitioner is not sustainable in law. 6. Relying on a decision of the Hon’ble Apex Court in the case of Assistant Municipal Commissioner, Nanded Waghala City v. Kalpana and others in Special Leave Appeal (Civil) No.18033 of 2013 it was submitted that when a statute lays down a particular thing to be done in a particular manner, it has to be done in that particular manner only. Thus, it was submitted that in the instant case the concerned Sub-Divisional Magistrate being the Appropriate Authority under the notification of the State Government could not have authorized Additional Tahasildar to exercise the jurisdiction under the Act, 1994.” It was also submitted that in some earlier cases before this Court it has also been held that such actions of the Authority are illegal and not sustainable in law. 7. It was submitted by the learned Counsel for the State relying on a decision reported in (2015) 60 OCR (SC) 301 ( Union of India etc. Rep. Through Superintendent of Police v.T. Nathamuni) that unless any prejudice is caused to the accused, mere irregularity in conducting the investigation, would not vitiate the entire proceeding. But, with due respect to the said observation of the Hon’ble Apex Court, it may be noted that the facts and circumstances in the cited case were absolutely different since in the said case the Investigating Officer was changed after obtaining due permission from the trial Court, and validity of the proceeding was assailed only after its termination. Hence, the Hon’ble Apex Court observed that since the Investigating Officer was changed after obtaining due permission of the learned Trial Court, there was no illegality committed nor any prejudice was caused to the accused so as to quash the entire proceeding. Hence, the Hon’ble Apex Court observed that since the Investigating Officer was changed after obtaining due permission of the learned Trial Court, there was no illegality committed nor any prejudice was caused to the accused so as to quash the entire proceeding. It has also been observed in the aforesaid decision that – “The question raised by the respondent is well answered by this Court in a number of decision rendered in a different perspective. Matter of investigation by an officer not authorized by law has been held to be irregular.” But in the instant case, the Sub Divisional Magistrate having no authority to delegate his power, has authorized one Additional Tahasildar-cum-Executive Magistrate to conduct the raid and inspection, as remained admitted in the Prosecution Report itself, a copy of which has been filed in the case. 8. It was further submitted that in the instant case not only the investigation was conducted by an officer not authorized by law but the said officer was authorized by the Sub-Collector who had no authority to delegate his power or nominate any other officer as per said statutory provision. 9. It was also submitted on behalf of the petitioner that the petitioner was asked to submit an application by 31st December, 2015, but prior to that the raid was conducted and allegations have been made regarding non-registration in the month of November, 2015 and since it was challenged before this Court and an order was obtained the prosecution report was filed with an ulterior motive. 10. In view of the aforesaid position, the order issued by the Sub-Divisional Magistrate, Bhadrak on 23.11.2015 authorizing the Additional Tahasildar to exercise the power under the Act, 1994 was illegal and without jurisdiction. Thus, the inspection and the proceeding following thereto having not been conducted according to the provisions of the statute are unsustainable in law. 11. Accordingly, the criminal proceeding initiated against the present petitioner vide 2 (C) C.C. Case No.1 of 2016 on the file of learned S.D.J.M., Bhadrak and the cognizance taken therein for the offences by order dated 16.01.2016 are hereby quashed. The CRLMC is accordingly disposed of. CRLMC disposed of.