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2019 DIGILAW 488 (ORI)

Satyabrata Patel v. State Of Orissa

2019-07-29

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo J. The petitioner Satyabrata Patel has filed this application under section 482 of Cr.P.C. challenging the impugned order dated 05.08.2017 passed by the learned S.D.J.M., Jharsuguda in 2(C) CC No. 1630 of 2012 in taking cognizance of the offences under sections 23 and 25 of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,1994 (in short, "PCPNDT Act") and issuance of process against him. 2. The complaint petition was filed by the DTO-cum-Authorised Officer of the District Appropriate Authority, Jharsuguda under the PCPNDT Act against the petitioner and others wherein it is stated that the State PC & PNDT monitoring team visited Jharsuguda on 22.08.2012 for a surprise inspection and met the Collector-cum- District Appropriate Authority, Jharsuguda and appraised the latter regarding one unregistered ultrasound clinic run by the petitioner. The Collector-cum-District Appropriate Authority authorized Dr.Hrushikesh Naik, the DTO vide order No.324 dated 22.08.2012 to inspect the ultrasound clinic along with the State team. The State team proceeded to the Doctors Chamber, Jyoti Medical Store near Hotel Gourav, Main Road, Behermal, Jharsuguda at about 1.30 p.m. During such inspection, the team found 2-3 patients were present in the ultrasound clinic and waiting for the ultrasound test and the petitioner was conducting ultrasound test of one patient namely, Debanda Patel, S/o. Late Laxman Patel, At/P.O.Jhirpali, P.S.Likera, District- Jharsuguda. It is stated in the complaint petition that the ultrasound clinic was run by the petitioner without registration and he unauthorisedly purchased the portable ultrasound machine bearing model No.DP-6600, Serial No.BE-75-5898 from Greaves Systems, P-597, Hemanta Mukhopadhaya Sarani (Keyatola Road),3rd floor, Kolkata-700 029. During course of inspection, the petitioner himself admitted that the ultrasound clinic in the name and style of "Doctors Chamber" is not registered under the PCPNDT Act and he is not a trained person as per PCPNDT Rules,1996 and that the clinic was not maintaining the mandatory records as per the said Act and that he had purchased the said un-registered ultrasound machine since 28.05.2007. During inspection, the statement of the petitioner was recorded in presence of the inspection team, the C.D.M.O. and other witnesses. During inspection, the statement of the petitioner was recorded in presence of the inspection team, the C.D.M.O. and other witnesses. It is also stated in the complaint petition that the petitioner is a Government doctor being posted as Medical Officer, O.S.A.P. Hospital, Jharsuguda and unauthorisedly he was conducting ultrasound test of the pregnant women involving sex selection practices in the said chamber by using the unregistered portable ultrasound machine and also doing infertility cases in the said clinic. It is also stated that the petitioner was not a qualified person to perform the ultrasound test as per Rule 3(3)(1)(b) of the PCPNDT Rules,1996. It is also stated that the manufacturer of the said ultrasound machine MINDRAY knowing the provisions of the said Act, unauthorisedly sold the ultrasound machine to the petitioner through the dealer, Greaves Systems P-597, Hemanta Mukhopadhaya Sarani (Keyatola Road),3rd Floor, Kolkata-700 029 violating the prevision of section 3-B of the PCPNDT Act and Rule 3-A of the PCPNDT Rules. The authorized signatory, namely, Debasish Chothria for Greaves Systems is also responsible along with MINDRAY ultrasound manufacturer for violation of the provisions of the PCPNDT Act and PCPNDT Rules. During course of inspection, the following articles of the said clinic were seized: (i) One portable ultrasound machine bearing model DP6600, Serial No.BE-75-5898. (ii) Report on abdomen and pelvic sonography of the clinic 54 nos. (iii) Ultrasound scan report- two numbers. (iv) Xerox scan report- 3 nos. (v) Prescription pad of Dr.Satyabrata Patel (vi) Invoice of portable ultrasound machine bearing model DP-6600, Serial No.BE-75-5898 in favour of Dr.Satyabrata Patel. (vii) Xerox copy of certificates and other seized papers. While filing the complaint petition, the complainant has filed the following documents: (a) Notification of the Government as District Appropriate Authority. (b) Seizure list dated 22.08.2012 (c) Report on abdomen and pelvic sonography of the clinic 54 nos. (d) Ultrasound scan report- two numbers. (e) Xerox scan report- 3 nos. (f) Prescription pad of Dr.Satyabrata Patel (g) Invoice of portable ultrasound machine bearing model DP-6600, Serial No.BE-75-5898 in favour of Dr.Satyabrata Patel. (h) Xerox copy of certificates and other seized papers. (i) Statements of witnesses. 3. It appears that after filing of the complaint petition on 05.11.2012, the learned S.D.J.M., Jharsuguda took cognizance of the offence under section 28(2) of the PCPNDT Act and directed for issuance of process against the petitioner. (h) Xerox copy of certificates and other seized papers. (i) Statements of witnesses. 3. It appears that after filing of the complaint petition on 05.11.2012, the learned S.D.J.M., Jharsuguda took cognizance of the offence under section 28(2) of the PCPNDT Act and directed for issuance of process against the petitioner. The petitioner challenged the said order by filing an application under section 482 of Cr.P.C. before this Court vide CRLMC No. 215 of 2017 and this Court by order dated 14.07.2017 quashed the impugned order as cognizance was not taken under any penal provision and section 28(2) of the PCPNDT Act only specifies the jurisdiction of the Court, who can try the offences under the said Act. This Court held that penal provision is necessary to be mentioned so that the accused can know what charge is levelled against him and what punishment is prescribed for the offence. The matter was remitted back to the learned S.D.J.M., Jharsuguda for reconsideration on the question of taking cognizance of offences. After receipt of the order of this Court, the learned S.D.J.M., Jharsuguda perused the complaint petition, the notification of the Government as District Appropriate Authority, seizure list, statements of witnesses, invoice and chalan of the ultrasound machine and other equipments in favour of the petitioner, sanction order and other connected papers and being satisfied about the existence of prima facie case for commission of the offences under sections 23 and 25 of the PCPNDT Act, took cognizance of such offences and issued process against the petitioner. 4. 4. Mr.B.K. Ragada, learned counsel appearing for the petitioner challenged the impugned order mainly on two grounds; i.e. (i) since the punishment prescribed for the offence under section 23 of the PCPNDT Act is up to three years and the punishment prescribed for the offence under section 25 of the said Act is up to three months, the offence having been taken place as per the complaint petition on 22.08.2012, the order taking cognizance on 05.08.2017 is beyond the prescribed period of limitation in view of section 468 of Cr.P.C. and (ii) when the surprise inspection was made on 22.08.2012 in the clinic in the name and style of "Doctors Chamber", Jyoti Medical Store near Hotel Gourav Main Road, Behermal, Jharsuguda, no female person was present in the clinic and one Dr.Debasis Behera had applied for registration of the clinic and therefore, filing of the complaint petition against the petitioner and that too for commission of the offences under the PCPNDT Act is illegal. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate, on the other hand, supported the impugned order and contended that when the matter was remanded back by this Court in CRLMC No.215 of 2017 after perusing the complaint petition and all other relevant documents, which were filed along with such complaint petition, the impugned order has been passed and the relevant date for considering the period of limitation is the date of filing of the complaint petition and not the date of taking cognizance. It is further submitted that since during inspection, it was found that the petitioner was performing the test and the ultrasound machine and the reports seized also substantiated that tests were being conducted in an unregistered clinic in violation of the provisions of the PCPNDT Act and therefore, there is no illegality or infirmity in the said order. 5. Adverting to the contentions raised by the learned counsel for the respective parties, let me first consider the point relating to the cognizance being taken beyond the prescribed period of limitation. 5. Adverting to the contentions raised by the learned counsel for the respective parties, let me first consider the point relating to the cognizance being taken beyond the prescribed period of limitation. There is no dispute that section 23 of the PCPNDT Act prescribes a punishment for a term which may extend to three years and with fine, which may extend to rupees ten thousand rupees for any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise if he contravenes any of the provisions of the PCPNDT Act or the Rules made thereunder and on subsequent conviction, the imprisonment may extend to five years and with fine, which may extend to fifty thousand rupees. Similarly, section 25 of the PCPNDT Act prescribes punishment up to three months or with fine, which may extend to one thousand rupees or with both in case of contravention of the provisions of the Act and rules for which no specific punishment is prescribed and in the case of continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. 6. In the case at hand, the offence was detected on 22.08.2012 in Doctors Chamber, Jyoti Medical Store near Hotel Gourav Main Road, Behermal, Jharsuguda when the authorized officer with the monitoring team visited the clinic and the complaint petition was filed on 05.11.2012, which was within three months of such detection. Section 468 of Cr.P.C. creates a bar to take cognizance after lapse of the period of limitation and in subsection (2)(c), the period of limitation prescribed is three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years. In the case of Japani Sahoo Vrs. Section 468 of Cr.P.C. creates a bar to take cognizance after lapse of the period of limitation and in subsection (2)(c), the period of limitation prescribed is three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years. In the case of Japani Sahoo Vrs. Chandra Sekhar Mohanty, (2007) 38 OCR 309 (SC), the Hon'ble Supreme Court has held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating the criminal proceeding and not the date of taking cognizance by a Magistrate or issuance of process by a Court and accordingly, all the decisions in which it was held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/ Court and not of filing of complaint or initiation of criminal proceedings, were over-ruled. In view of the settled position of law as decided in the case of Japani Sahoo (supra), I am not inclined to accept the contention raised by the learned counsel for the petitioner that the impugned order dated 05.08.2017 is beyond the period of limitation since the complaint petition has been filed within three months of detection of offence which is within the prescribed period of limitation. 7. Coming to the next contention, it appears that from the materials available on record that the petitioner is not a trained person as per the PCPNDT Rules and the Doctors Chamber where the ultrasound test was conducted, is not a registered one as per PCPNDT Act. The ultrasound machine and the reports, which were seized along with the statements of witnesses prima facie reveal that tests were being conducted without following the provisions of the said Act and Rules. Section 3-A of the PCPNDT Act creates a prohibition of sex selection and it states that no person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them. Similarly, section 3-B creates a prohibition on sale of ultrasound machine etc, to persons, laboratories, clinics etc. not registered under the Act. Similarly, section 3-B creates a prohibition on sale of ultrasound machine etc, to persons, laboratories, clinics etc. not registered under the Act. Needless to say that under Chapter-VI of the said Act, procedure has been prescribed regarding application to be made for registration of genetic counseling centres, genetic laboratories and genetic clinics and after application is made with prescribed fees, the appropriate authority is to hold an inquiry and after being satisfied that the applicant has complied with all the requirements of the Act and the Rules framed thereunder and having regard to the advice of the Advisory Committee in that behalf can grant certificate of registration in the prescribed form and after obtaining such registration certificate, a person can purchase ultrasound machine or imaging machine or scanner or any other equipments for establishing a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinics. In this case since no registration certificate has been obtained by the Doctors Chamber and the petitioner is not a trained person to conduct such test, I am of the humble view that prima facie case under sections 23 and 25 of the PCPNDT Act is made out. 8. The scope of interference of this Court with an order of taking cognizance by invoking the power under section 482 of Cr.P.C. is very limited and it is to be sparingly used only when the ingredients of the offences are not made out or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. After perusing the materials available on record, I find no illegality or infirmity in the impugned order. Therefore, I am not inclined to interfere with the same. 9. The learned S.D.J.M., Jharsuguda shall proceed with the case and since it is a case of the year 2012, all endeavours should be made to conclude the trial within a period of six months from the date of receipt of a copy of this judgment. It is made clear that I have not expressed any opinion on the merits of the case and while adjudicating the guilt or otherwise of the petitioner, the learned trial Court shall strictly take into the evidence adduced by both the sides during trial. A copy of this judgment be sent to the learned S.D.J.M., Jharsuguda forthwith. With the aforesaid observation, the CRLMC stands disposed of.