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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Application (APL) No.520 of 2013.
Dr. Sandhya Arun Kulkarni,
Versus
The State of Maharashtra
Coram : S.B. Shukre, J.
Dated : 26th February, 2015.
Citation; 2016 ALLMR(CRI)963
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
27112012 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 PreConception
and PreNatal 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 Judge1, Chandrapur on 01082013,
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] 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.
(3) The officers appointed as Appropriate Authorities
under subsection (1) or subsection (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 Welfare Chairperson;
(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 subsection (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. 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
exofficio 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 preconception 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. 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 12072012
(DocumentI) 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 Cooperative 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 nonsigning
of the complaint by its authorized officer at a later stage,
unlike former section.
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.
JUDGE
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