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2018 DIGILAW 780 (ORI)

Prasanta Kumar Samal v. State of Odisha

2018-09-03

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This is an application under Section 482, Cr.P.C. assailing the order dated 31.08.2016 passed by the learned S.D.J.M., Dhenkanal in 2(C) C.C. No. 44 of 2014 partially rejecting the application of the present petitioner to discharge him from the alleged 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’) 2. The Tahasildar, Dhenkanal lodged the complaint before the learned S.D.J.M. Dhenkanal against the present petitioner that being authorized by the District Magistrate-cum-District Appropriate Authority under the Act, he along with the ADMO Dhenkanal made a joint inspection of the ultra sound clininc of the present petitioner on 30.05.2014. It was allegedly found out that there were two ultra sound in the clinic and the petitioner was using one Philips ultra sound machine unauthorisedly without intimating regarding installation of the said machine to the District Appropriate Authority, Dhenkanal. It was also alleged that the records required to be maintained as per the MTP Act, were not available in the clinic and that the clinic was also not registered as required under the Act. It was further alleged in the complaint petition that several allegations were received in the office of the CDMO, Dhenkanal over telephone that the petitioner was conducting sex determination test of the foetus in the said clinic by misusing the technology thereby violating the provisions of the Act. It was further mentioned that two photos, one of Lord Shiva and one Goddess Saraswati were found inside the room which suggested that the sex of the foetus was being informed to the patient by indicating to those photographs. On these submissions it was alleged that the petitioner as accused had violated the provisions of Sections 5/6 of the Act and Rule 9 (6) and 13 of the PC & PNDT Rules, punishable under Sections 23/25 of the Act. 3. The complainant Tahasildar and ADMO Dhenkanal were examined as P.Ws. 1 and 2 on behalf of the complainant prior to framing of charge and after their examination the petitioner filed an application before the learned trial Court to discharge him from the offences with the submissions that on the admitted facts and the specific depositions of the two witnesses, no offence was absolutely made out against the petitioner as accused. 1 and 2 on behalf of the complainant prior to framing of charge and after their examination the petitioner filed an application before the learned trial Court to discharge him from the offences with the submissions that on the admitted facts and the specific depositions of the two witnesses, no offence was absolutely made out against the petitioner as accused. It was also submitted that non-compliance of Rule 13 of the PC & PNDT Rules alleging that the installation of machine was not intimated to the appropriate authority was earlier challenged before this Court in a writ application vide W.P.(C) No. 15781 of 2014 alleging the suspension of registration of the clinic by the District Appropriate Authority, and observing that the appropriate authority was duly communicated by the petitioner about installation of the new machine, the said order of suspension was quashed with a further observation that the impugned suspension order passed by the District Appropriate Authority was a colourable exercise of power which did not satisfy the requirements of Section 20 (3) of the Act. After calling for the relevant documents and files this Court observed that the petitioner had duly intimated the District Appropriate Authority regarding installation of the new machine and his clinic was registered since 2003 and has been renewed with such registration till 2018. It was also observed in the said judgment that apparently there was no allegation or report that the petitioner had undertaken sex determination test in his clinic which is punishable under Section 23 of the Act. The learned S.D.J.M., Dhenkanal in his impugned order observed that there could not be a roving enquiry at the time of framing of charge and at that stage the defence plea raised by the accused cannot be taken into consideration. It was further observed by the learned trial Court relying upon certain decisions that if on the basis of the materials on record, a Court could come to the conclusion that commission of the offence is a probable consequences, a case for framing of charge exists. It further observed that if the Court thinks that the accused might have committed the offence, charges can be framed, though in order to reach a conviction, there must be a conclusion that the accused has committed the offence. It further observed that if the Court thinks that the accused might have committed the offence, charges can be framed, though in order to reach a conviction, there must be a conclusion that the accused has committed the offence. With such observations the learned S.D.J.M. discharging the accused petitioner from the offence punishable under Section 25 of the Act, decided to frame charge under Section 23 of the Act against the petitioner and proceeded accordingly. 4. It was submitted by learned counsel for the petitioner that the positions of law as have been observed by the learned S.D.J.M. is not disputed that there cannot be a roving enquiry into the allegations at the time of framing of charge and that the plea of defence could not have been considered. But when the materials placed on behalf of the prosecution or complainant do not make out any offence against the petitioner, a charge cannot be framed merely on presumption that the accused might have committed the offence. There must be some material to show or to create a presumption that the accused might have committed the offence. It was further submitted that the specific allegations as made against the accused petitioner were that the clinic was not registered, the installation of new machine was not intimated to the appropriate authority, the required registers and documents were not maintained in the clinic as per the PC & PNDT Rules and most importantly unauthorized and illegal sex determination test was conducted in the clinic. It was submitted that in the earlier writ application filed by the present petitioner, this Court has categorically observed that the clinic was duly registered and the installation of the new machine in the clinic of the petitioner was duly intimated to the appropriate authority. Further the complainant Tahasildar himself in paragraph-12 of his cross-examination has stated that at the time of inspection the accused had a valid renewals certificate of his clinic. He also admitted in paragraph-13 that one Xerox certificate of registration for the period from 2013 to 2018 was available on record which he had filed at the time of filing the complaint. He also admitted that one of the machines was defective and was not running at the time of inspection. He also admitted in paragraph-13 that one Xerox certificate of registration for the period from 2013 to 2018 was available on record which he had filed at the time of filing the complaint. He also admitted that one of the machines was defective and was not running at the time of inspection. So far as the installation of the new machine is concerned, it has already been decided by this Court in the writ application as stated herein before. As regards the maintenance of the registers, the complainant Tahasildar has also admitted in paragraph-14 of his cross examination that the accused was maintaining the registers under the Act. So far as the allegation of illegal sex determination test, no acceptable material was brought on record by the two witnesses examined before the charge. In this regard the complainant Tahasildar stated in paragraph-5 of his examination before the Court that prior to their inspection a number of allegations were received orally by the CDMO regarding sex determination by the accused, and being asked in that regard he stated in paragraph-15 of his cross examination that he had not verified the phone calls which were received by the CDMO and also did not know as to whether such phone calls were received personally by the CDMO or somebody else. But peculiarly the concerned CDMO as PW 2 before charge stated in paragraph-6 of his cross examination that he had never told the Tahasildar regarding receipt of several allegations over phone regarding sex determination in the clinic of the accused. The Tahasildar stated that they seized two photographs one of Lord Shiva and one of Goddess Saraswati from inside the clinic and suspected that those photographs were used to intimate the patient as to the sex determination of the foetus. Being specifically asked, he stated that he presumed that those photographs might have been used by the accused petitioner. Stressing on this, it was submitted on behalf of the petitioner that an accused cannot be proceeded against merely on presumption there being no material to make out the alleged offence prima facie. Thus it was submitted that mere reading of all the depositions of the two witnesses before charge taken together with the earlier judgment of this Court, it was sufficient to hold that there was no offence made out against the petitioner as alleged in the complaint petition. Thus it was submitted that mere reading of all the depositions of the two witnesses before charge taken together with the earlier judgment of this Court, it was sufficient to hold that there was no offence made out against the petitioner as alleged in the complaint petition. It was further submitted that no defence plea was raised so as to justify the observation of the learned trial Court that it could not have been considered at the stage of framing of charge. 5. In a private complaint, before framing of charge against the accused persons, evidence is taken before charge to find out as to whether there are sufficient materials to frame the charge against the accused. As detailed herein before in the submissions made on behalf of the petitioner which are based on record, it was the specific case of the petitioner that one of the allegations has earlier been quashed by this Court and there is absolutely no material on record even for presumption that the accused petitioner was conducting sex determination test thereby violating Sections 5/6 of the Act punishable under Section 23 of the Act. Initially when the registration of the clinic of the petitioner was suspended, the petitioner assailed the same before this Court and it was quashed. Thereafter the complaint petition was filed basing on the findings during such inspection with the allegation that sex determination test was conducted in the clinic of the petitioner. But as stated, it was observed by this Court earlier that apparently there was no allegation of sex determination test in the clinic. Both P.Ws. 1 and 2 examined before charge have not whispered a word as to what was the basis of such presumption except mentioning that two photographs were found which might have been used to indicate the sex of the foetus to the patient. No person with a reason can accept such a contention. No private individual was examined in support of such allegations and as seen from the evidence of the two witnesses, the P.W. 1 stated that there were some patients at the time of inspection, whereas the P.W. 2 stated that there was no patient at the time of their inspection P.W. 1 also admitted that the statements of such patients were not recorded. 6. 6. It is right that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. But if the materials placed on behalf of the complainant do not make out a prima facie case, there can be no alternative then to discharge the accused. as discussed here in before the materials as placed before the learned trial Court taken together with the earlier order of this Court make out absolutely no offence against the petitioner and hence, the impugned order passed by the learned S.D.J.M., Dhenkanal is not sustainable in law. 7. Accordingly, the impugned order dated 31.08.2016 passed by the learned S.D.J.M., Dhenkanal in 2(C) C.C. No. 44 of 2014 is hereby quashed and the petitioner stands discharged of the offence punishable under Section 23 of the Act. The CRLMC is accordingly disposed of. CRLMC disposed of.