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Rajasthan High Court · body

2022 DIGILAW 2266 (RAJ)

Renu Bhatia v. State

2022-08-18

PUSHPENDRA SINGH BHATI

body2022
Order : 1. These criminal misc. petitions under Section 482 Cr.P.C. have been preferred claiming the following reliefs: - “It is, therefore, most respectfully and humbly prayed that this Misc. Petition may kindly be allowed order dated 23.06.2016 passed by Additional Session Judge No.5 in Criminal Revision No. 30/2015 (NCB-251/2015) as well as order dated 10.07.2012 passed by Special Additional Chief Judicial Magistrate (PCPNDT Act Cases) Jodhpur Metropolitan in Crl. Case No. 4/2012 (State Vs. Dr Runu Bhatia & Anr.) may kindly be quashed and set aside”. 2. Brief facts of the case, as placed before this Court by the learned counsel for the petitioners, are that on 17.12.2010, one Mohd. Rijwan Parvez, Project Manager of Centre for Advocacy and Research (an Organization working at the State and District Level in association with the PCPNDT Cell) submitted a report before the Sub-Director (RHC) wherein he was working at the district level in P.C.P.N.D.T Act for the previous 2 years and stated that he received an information about a clinic in Jodhpur conducting sex determination tests. And that, it was stated therein that in pursuance of the said information, the complainant, along with another member of the Organization, and two Advocates, went to one Adarsh Diagnostic Centre (owned by the present petitioners), and conducted a Sting Operation. In the said Sting Operation, they searched, and seized the articles from the clinic of the present-petitioner. And that, on the basis of the said report, the P.C.P.N.D.T Team on 24.01.2011 proceeded to inspect the premises of the clinic and found certain irregularities. On the basis of this inspection report, Complaint No. 748/2011 was registered in the Special Court of Additional Chief Judicial Magistrate, PCPNDT Cases, Jodhpur, under the PCPNDT Act. 3. Learned counsel for the petitioners submits that pre-charge evidence was recorded and the learned Special Court of Additional Chief Judicial Magistrate, after the hearing the arguments of both sides, framed the charges against the present petitioners vide the impugned order dated 10.07.2012 for the offences under Sections 4(3) and 6 read with Sections 23 and Rule 3, 9, (1) (4) (8), 17 (1) (2), 18 (II) read with Section 23 of P.C.P.N.D.T Act. 4. Learned counsel for the petitioners further submits that the sting operation has been conducted by a private Organization, and that no private organization is authorized to conduct such a sting operation. 5. 4. Learned counsel for the petitioners further submits that the sting operation has been conducted by a private Organization, and that no private organization is authorized to conduct such a sting operation. 5. Learned Counsel for the petitioners also submits that the private organization has not taken any prior permission from the Authorized Officer under the P.C.P.N.D.T Act, and that private organizations have no power to search or seize any property without the presence of an Authorized Officer, duly appointed under the PCPNDT Act. 6. Learned counsel for the petitioners drew the attention of this Court towards Section 17 of P.C.P.N.D.T. Act, 1994 and the corresponding Rule 12 of P.C.P.N.D.T Rules, 1996. Relevant portions of the same are reproduced hereunder:- 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 pre-natal sex determination leading to female foeticide. (3) The officers appointed as Appropriate Authorities under subsection (1) or sub-section (2) shall be, - (a) when appointed for the whole of the State or the Union territory, of or above the rank of the Joint Director of Health and Family Welfare; and (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 Counseling Centre, Genetic Laboratory or Genetic Clinic; (b) to enforce standards prescribed for the Genetic Counseling 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; and (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. (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 gynecologists, obstetricians, pediatricians 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 organizations. (7) No person who, in the opinion of the Central Government or the State Government, as the case may be, has been associated with the use or promotion of pre-natal diagnostic technique for determination of sex 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. 12. Procedure for search and seizure. — (1) The Appropriate authority or any officer authorised in this behalf may enter and search at all reasonable times any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Imaging Centre or Ultrasound Clinic in the presence of two or more independent witnesses for the purposes of search and examination of any record, register, document, book, pamphlet, advertisement, or any other material object found therein and seal and seize the same if there is reason to believe that it may furnish evidence of commission of an offence punishable under the Act. Explanation. Explanation. —In these Rules— (1) ‘Genetic Laboratory/Genetic Clinic/Genetic Counselling Centre’ would include an ultrasound centre/imaging centre/ nursing home/hospital/institute or any other place, by whatever name called, where any of the machines or equipments capable of selection of sex before or after conception or performing any procedure technique or test for pre-natal detection of sex of foetus, is used; (2) ‘material object’ would include records, machines and equipments; and (3) ’seize’ and ‘seizure’ would include ‘seal’ and ‘sealing’ respectively. (2) A list of any document, record, register, book, pamphlet, advertisement or any other material object found in the 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre] and seized shall be prepared in duplicate at the place of effecting the seizure. Both copies of such list shall be signed on every page by the Appropriate Authority or the officer authorised in this behalf and by the witnesses to the seizure: Provided that the list may be prepared, in the presence of the witnesses, at a place other than the place of seizure if, for reasons to be recorded in writing, it is not practicable to make the list at the place of effecting the seizure. (3) One copy of the list referred to in sub-rule (2) shall be handed over, under acknowledgement, to the person from whose custody the document, record, register, book, pamphlet advertisement or any other material object have been seized: Provided that a copy of the list of such document, record, register, book, pamphlet, advertisement or other material object seized may be delivered under acknowledgement, or sent by registered post to the owner or manager of the [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre], if no person acknowledging custody of the document, record, register, book, pamphlet, advertisement or other material object seized is available at the place of effecting the seizure. (4) If any material object seized is perishable in nature, the Appropriate Authority, or the officer authorised in this behalf shall make arrangements promptly for sealing, identification and preservation of the material object and also convey it to a facility for analysis or test, if analysis or test be required: Provided that the refrigerator or other equipment used by the [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre] for preserving such perishable material object may be sealed until such time as arrangements can be made for safe removal of such perishable material object and in such eventuality, mention of keeping the material object seized, on the premises of the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall be made in the list of seizure. (5) In the case of non-completion of search and seizure operation, the Appropriate Authority or the officer authorized in this behalf may make arrangements, by way of mounting a guard or sealing of the premises of the [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre], for safe keeping, listing and removal of documents, records, book or any other material object to be seized, and to prevent any tampering with such documents, records, books or any other material object. 7. On the other hand, learned Public Prosecutor opposes the submission made on behalf of the petitioners and submits that the learned courts below have rightly passed the impugned orders after taking into due consideration the overall facts and circumstances of the case and the evidences placed on record before it, to the extent necessary at the stage of framing of charges. 8. Heard learned counsel for the parties as well as perused the record of the case. 9. This Court observes that on a bare perusal of the provisions of law contained in Section 17 of the Act of 1994 and Rule 12 of the Rules of 1996, as quoted hereinabove, private organizations have no power to search or seize articles/property. And that, only the competent authority as provided under the said Act has such powers. 10. 9. This Court observes that on a bare perusal of the provisions of law contained in Section 17 of the Act of 1994 and Rule 12 of the Rules of 1996, as quoted hereinabove, private organizations have no power to search or seize articles/property. And that, only the competent authority as provided under the said Act has such powers. 10. This Court, therefore, observes that the search and seizure so made by the organization in question, without having due powers conferred upon them under the law, clearly vitiates the whole proceedings against the petitioners in the present case, more particularly, in light of the fact that if the private organizations, without due authority of law, conducts or are permitted to conduct the alike operations, the same would result into an uncalled for situation, to be faced not only by the investigating agencies, but also by the courts of law. 11. Thus, in view of the above, the present petitions are allowed, and accordingly, while quashing and setting aside the impugned order dated 23.06.2016 passed by the learned A.S.J. No. 5, Jodhpur as well as the impugned order dated 10.07.2012 passed by Special A.J.M. (P.C.P.N.D.T. Act) of framing of charges, along with entire proceedings pursuant thereto qua the petitioners, they are discharged of the charges levelled against them in the present case. All pending applications stand disposed of accordingly.