In a major relief to actor Shahrukh Khan, a bench comprising of Revati Mohite Dhere, J. dismissed a petition filed by a social activist against a lower court order which had restricted her from accessing the records and other documents of the baby born through surrogacy. In the present case, the activist had sought prosecution of the actor, his wife and their doctors on the basis of a news report in a city newspaper in June 2013 which claimed that the star couple were having a baby boy through surrogacy. She alleged the doctors had allegedly violated the provisions of PC-PNDT Act, 1994 that prohibits sex determination of a fetus. The Trial Court had rejected her application under Section 28(3) of the PC-PNDT Act seeking directions to the local Municipal Corporation to produce all records of the surrogate mother and test conducted on her in order to support her case.
The Court discussed Section 28(3) in light of the objective of the legislation, right to privacy of the stakeholders in cases of surrogacy and the scope of the word 'may' used in Section 28(3) indicating discretion given to the Court to direct the Appropriate Authority to handover the documents or not. Mr. Uday Warunjikar, the counsel for the Petitioner contended that the word ‘may’ as it appears in Section 28(3) of the PCPNDTAct should be read as 'shall'.Mr Pranav Badheka appearing for respondents Shahrukh Khan and Gauri Khan, submitted that if the word ‘may’ is read as ‘shall’, it would be a mechanical order, leaving no discretion whatsoever, in the Magistrate and would thereby violate the right to privacy of the parties involved in the surrogacy. The Court after listening to all arguments including Senior Counsel MPS Rao, held that it was for the Magistrate to consider whether the demand of documents/records from the Appropriate Authority is genuine, bonafide etc and declined to interfere with the magistrate's order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4164 OF 2013
Varsha Laxman Deshpande,
Age 44 years, Occ.Advocate,
(Social Worker),
V/s.
The Municipal Commissioner,
6. Mr.Shahruk Khan,
R/o.Mannat,
7. Mrs.Gauri Khan,
R/o.Mannat,
REVATI MOHITE DERE, J.
Pronounced on : 19th June, 2014
Citation: 2016 ALLMR(CRI)1059
Counsel for the respondents waive service of notice.
parties and is taken up for final disposal at the stage of admission.
By this petition, the Petitioner who is an Advocate, has impugned
the order dated 23rd October, 2013 passed by the Additional Chief
Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, whereby the
Petitioner's application, preferred under Section 28(3) of the Pre
conception and Prenatal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (hereinafter referred to as the 'PCPNDT Act' for the
sake of brevity) came to be rejected.
A few facts as are necessary to decide the present petition are as
3.
under:
According to the Petitioner, a local newspaper viz 'Midday' dated
14th June, 2013, had published a Promotional Feature Supplement by
name 'HITLIST 70 MM', in which, on page 8 of the said supplement, an
article was published under the title 'Third Bundle of joy” alongwith a
photograph of Respondent Nos.6 and 7. According to the Petitioner, it was
was stated in the said article, that BTown's best kept secret was out and
that a B Town insider had revealed that the third child of Respondent
Nos.6 and 7 through surrogacy was a boy and that it was Respondent
No.7's decision to go in for surrogacy. It is stated by the Petitioner that in
addition to that, the said newspaper, having an epaper Edition, had also
published the same news. The said news was downloaded by the
Petitioner on her Laptop from a link with reference to the said news item.
The Petitioner states that in view of the contents of the article,
Respondent Nos.6 and 7 had committed gross violation of the PCPNDT
Act, as they had sought to select / detect the sex of the child by using Pre
natal Diagnostic Techniques. It is alleged that Respondent Nos.6 and 7 by
declaring the sex of the child in the surrogate mother's womb, had
violated the provisions of the PCPNDT Act and had therefore committed
an offence under the said Act. According to the Petitioner, it was evident
from the article, that the sex of the foetus was revealed as a baby boy,
prior to the birth of the child, thereby violating the provisions of the PC
PNDT Act, which prohibits sex selection, either during preconception or
during the prenatal stage.
On the basis of the news report, the Petitioner filed a complaint
with the appropriate authority, bringing to their notice, the breach or
violation of the provisions of the PCPNDT Act. The Petitioner has alleged
that the Respondent Nos.1 to 3 failed in its duty to take cognizance of
the complaint under Section 27 and 28(1)(a) and had failed to exercise
its powers under Section 17 (4a,b,c,d,e) and Section 17A of the PCPNDT
Act. As the Respondent Nos.1 to 3 had allegedly failed to take cognizance
of the said information, the Petitioner submitted an online complaint on
16th June, 2013 with the Appropriate Authority i.e. Respondent Nos.1 and
2 and also forwarded a copy of the said letter to various Authorities. On
4th July, 2013, the Petitioner received a reply from the office of the
Additional Director, Health Services, Family Welfare, Pune. A copy of the
said reply is at Exhibit – D on page 45 of the petition. According to the
Petitioner, as no action was taken as against the Respondent Nos.6 and 7
by the appropriate authority for violation of the provisions of the PC
PNDT Act and as Respondent Nos.1 to 4 had not investigated the
complaint, with regard to the violation of the provisions of the said Act,
the petitioner was constrained to file a complaint under Section 28(1)
(b) of the PCPNDT Act in the Court of the learned Additional Chief
Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The said
complaint was registered as C.C.No.70/MISC/13. It is alleged by the
complainant that Respondent Nos.1 to 7 have committed several offences
under the PCPNDT Act and in particular, there was violation of the
provisions of Section 3A,5,6,17(4a,b,c,d,e), 18, 19, 20(3), 23(1)
(2),22,25,29 of the PCPNDT Act and violation of Rules 4(1,2,3),5,6,9,
(1,2,3,4,5,6,7,8),10(1A),11 and 12 of the PCPNDT Rules. In the said
complaint, the Petitioner had interalia prayed, that the Court be pleased to
take cognizance of the complaint under Section 28(1)(b) of the PCPNDT
Act ; to direct the Appropriate Authority namely Respondent Nos.1 to 7 to
produce the available record and make available copies of the relevant
record in their possession to the complainant and to try and convict the
Respondents for the offences as stated aforesaid.
On 8th August, 2013, the learned Magistrate was pleased to pass the
following order on the complaint filed by the Petitioner:
“Presented by the complainant. Registered as a Misc. case.
Put up for verification”.
The Petitioner had also preferred an application, wherein the
Petitioner had interalia sought the following documents, as set out in para
11 of the said Application :
3.
4.
5.
2.
The registration certificates of genetic counciling
centers, clinics, laboratories where the concerned
accused undergone the treatment or sought to undergo
treatment of a surrogate mother ;
D,E,F,G forms of all the genetic procedures conducted
in concerned case at all the centers of all stages from
preconception to prenatal delivery ;
Reports available at Appropriate Authority’s office
reported to them by every month of last two years of all
the centers concerned ;
“H’ form of all concerned centers in the case ;
Inspection reports of Appropriate Authorities of
concerned centers in the case ;
Details of investigation procedure conducted from date
of complaint till today ;
Case papers, admission papers as well as genetic
procedures treatment papers, contact papers if any
related to the concerned surrogacy, preconception, pre
natal and Delivery procedures.”
“1.
6.
7.
It was contended that the aforesaid documents were essential
and important for the just decision of the case.
The Trial Court adjourned the complaint, being
C.C.No.70/MISC/13 for recording of the verification of the Petitioner
and as far as the Application preferred under Section 28(3) of the PC
PNDT Act was concerned, the Trial Court issued notices to the
Respondents. The Petitioner preferred a Writ Petition in this Court, being
Criminal Writ Petition No.2987 of 2013, against the order dated 8 th
August, 2013, issuing notices to the Respondents, in the Application.
This Court vide order dated 30th September, 2013 observed in paras 4, 5
and 7 as under :
The Counsel representing the B.M.C. shall file a detailed
report to the concerned Magistrate (along with the
documents with permission that under the PCPNDT Act,
the Appropriate Authority to hold the identity of the
surrogate mother or any other privilege contemplated
under the Act as well as to honour the dignity of the
surrogate mother and the child) in order to enable the
Magistrate to decide the application and pass
appropriate orders on 7.10.2013. The concerned
Magistrate shall take into consideration the contentions
raised by the respondents vide their affidavits/reports so
filed.
“4.
The concerned Magistrate shall pass appropriate orders
on merits on 7.10.2013.
6. 5. ......
7. It is made clear that this Court has not observed
anything on the merits of the application filed by the
applicant under Section 28 subclause (3) of the PC
PNDT Act.”
On 24th October, 2013, the Counsel for the Petitioner withdrew the
said Writ Petition, being Criminal Writ Petition No.2987 of 2013 in view of
the statement made by the Counsel for the Petitioner, that the Petition had
become infructuous, as the Petitioner’s application filed under Section
28(3) of the PCPNDT Act was rejected and as the matter was posted on
13.11.2013 for recording the verification statement of the Petitioner i.e.
complainant. Accordingly, the Petition was disposed of as withdrawn.
The learned Additional Chief Metropolitan Magistrate, 37 th Court,
Esplanade, Mumbai vide order dated 23 rd October, 2013 rejected the
application preferred by the Petitioner under Section 28(3) of the PC
PNDT Act. Being aggrieved by the aforesaid order dated 23 rd October,
2013 passed by the Trial Court, the Petitioner herein, has assailed the said
ig
order by way of the present Petition, both under Article 227 of the
Constitution of India and under Section 482 of the Code of Criminal
4.
Procedure.
Heard Mr.Uday P Warunjikar, learned counsel for the Petitioner,
.
Mr.M.P Rao, Senior Counsel, for Respondent Nos.1 and 2 – B.M.C,
.S.
Mr.Pranav Badheka, for Respondent Nos.6 and 7. Perused the petition
alongwith its annexures, the relevant provisions of the PCPNDT Act and
the Rules framed thereunder and the Judgments relied upon by the
parties.
5.
Before adverting to the submissions canvassed by the learned
counsel for the Petitioner, it would be necessary to reproduce the relevant
provision of the PCPNDT Act, having a bearing in the said case ;
“28. Cognizance of offences. – (1) No Court shall take
cognizance of an offence under this Act except on a complaint
made by –
the Appropriate Authority concerned, or any officer
authorized 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.
(a)
ig
Explanation. – For the purpose of this clause “person” includes a
social organization.
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.”
6.
Mr. Warunjikar, learned counsel for the Petitioner contended that
apart from Section 28, Sections 20, 29 and Section 17 (4c,e and g) would
also have to be considered while deciding whether the word ‘may’ as it
appears in Section 28(3) of the PCPNDT Act should be read as ‘shall’. He
contended that in addition to the aforesaid provisions and the PCPNDT
Rules, in particular, Rule 9 and 11 would have to be read in conjunction
with Section 29 and that the other Rules which are material are Rules 12
and 13. He submitted that the object of the PCPNDT Act, would also
have to be considered while interpreting the provisions of Section 28(3)
of the said Act, as to whether the term ‘may' ought to be read as ‘shall’.
He submitted that the object of the Act as set out is for i) prohibition of
the misuse of prenatal diagnostic techniques for determination of sex of
foetus, leading to female foeticide ; ii) prohibition of advertisement of pre
natal diagnostic techniques for detection or determination of sex ; and iii)
permission and regulation of the use of prenatal diagnostic techniques for
the purpose of detection of specific genetic abnormalities or disorders.
He submits that under Section 28(1), no Court shall take
7.
cognizance of an offence under this Act except on a complaint made by
either – (a) the Appropriate Authority concerned, or any officer authorized
in this behalf by the Central Government or State Government, as the case
may be, or the Appropriate Authority ; or (b) by 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. He submitted that the Petitioner has complied
with Section 28(1)(b) inasmuch as, the Petitioner had given notice to the
Appropriate Authority of the alleged offence or his intention to make a
complaint to the Court. He submits that as the Appropriate Authority had
failed to file a complaint, the Petitioner was constrained to lodge a
complaint as against the Respondents. He submitted that under sub
section (3) of Section 28 of the PCPNDT Act, where the complaint has
been made by a person under Clause (b) of subsection (1) of Section 28,
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. He submitted that keeping in mind the object and the
legislative intent in enacting the said Act and the fact that Section 28(1)
authorizes even a private person to lodge a complaint, where the
Appropriate Authority fails in its duty to lodge a complaint, the word
‘may’ as it appears in Section 28(3) of the PCPNDT Act will have to be
read as ‘shall’ and the trial Court accordingly ought to have directed the
Appropriate Authority to make available the copies of the relevant records
in its possession to the Petitioner.
8.
Mr.Warunjikar, learned counsel for the Petitioner has made an
alternative submission, that in the event the word ‘may’ is read as ‘may’
thereby giving discretion to the Magistrate to consider the request/
demand made by the person seeking such documents in the possession of
the Respondent/Authority, the said discretion ought to be exercised
judiciously. He submitted that in the present case, the Magistrate has not
exercised his discretion judiciously, keeping in mind the object of the PC
PNDT Act. He also submitted that a detailed report was not filed by the
Respondents despite a direction to do so and as such prayed for quashing
To buttress his submission, Mr.Warunjikar, learned counsel for the
9.
and setting aside of the said impugned order.
Petitioner relied on the Judgments of the Apex Court in the case of State
of U.P
. v/s. Jogendra Singh,1 ; Ramji Missar and Another v/s State of
Bihar2 ;
A.C.Aggarwal, Sub-Divisional Magistrate, Delhi and An-
other v/s Mst. Ram Kali, etc.3 and L.Hirday Narain v/s Income-Tax
Officer, Bareilly,4
10.
Per contra, Mr.M.P Rao, Senior Counsel, for Respondent Nos.1
.S.
and 2 contended that this is not a case of sex selection or Prenatal
Diagnosis. He submitted that the child was born to Respondent Nos.6
1AIR 1963, Supreme Court 1618
2 AIR 1963 Supreme Court 1088
3 AIR 1968 Supreme Court 1
4 AIR 1971 Supreme Court 33
and 7 through surrogacy on 27th May, 2013 and the report relied upon by
the Petitioner appeared in Midday on 14th June, 2013. He submitted that
the object of the Act is very clear, inasmuch as, it prohibits and prevents
any kind of sex selection. He submitted that a perusal of the complaint
shows that admittedly the said article had come in the newspaper on 14 th
June, 2013 and that a representation / Email was made/sent by the
Petitioner on 16th June, 2013 to the Appropriate Authority. He submitted
that the said representation / Email was forwarded by the B.M.C. to the
the Executive Health Officer, Brihan Mumbai Mahanagar Palika, Public
Health Department on 19th June, 2013. He submitted that the birth
certificate which was issued by the Public Health Department, Municipal
Corporation of Greater Mumbai shows that the child was born on 27th
May, 2013, much before the Midday news article, which appeared on 14 th
June, 2013. According to Mr.Rao, apart from the newspaper report dated
14th June, 2013, there was no material or basis for the allegations made by
the Petitioner. He submitted that in response to the Email received from
the Petitioner on 17th June, 2013, the Executive Health Officer, Brihan
Mumbai Mahanagar Palika, Public Health Department vide his letter
dated 19th June, 2013, had taken prompt steps to find out if there was
violation of the provisions of the PCPNDT Act. Mr.Rao submitted that for
investigating the matter, one team was sent to Jaslok Hospital and the
second team was sent to the house of Respondent Nos.6 and 7. He further
submitted that on investigation it was found that Dr.Farija Parikh
(Respondent No.5) had categorically informed by a letter that no
treatment of surrogacy or any diagnostic test for sex determination was
carried out in the I.V
.F. Department in the Jaslok Hospital and Research
Centre. He submitted that a copy of the Email was also received from
Respondent No.6’s Personal Secretary addressed to the Medical Officer of
Health (H/West Ward) and the Appropriate Authority, PCPNDT Act,
Brihanmumbai Mahanagarpalika, Mumbai, stating that Respondent Nos.6
and 7 had made no statement, in any manner, about surrogacy or sex
determination in any form to the media and that Respondent
Nos.6 and 7 were not aware of the article that appeared on
the Internet and in the Newspaper. He further submitted that the
Executive Health Officer, Brihan Mumbai Mahanagar Palika, Public Health
Department vide letter dated 27th August, 2013, had informed the
Petitioner and the Director of Population First, that after investigation it
was found that there was no prima facie evidence to confirm that pre
natal sex determination was undertaken. In view of the action taken, the
Appropriate Authority sought closure of the said complaint of the
Petitioner. A copy of the said letter was also sent to the Additional Director
of Health Services Family Welfare, MCHG and SH, Pune. Mr.M.P
.S. Rao,
further submitted that the Executive Health Officer of Brihan Mumbai
Mahanagar Palika, vide his letter dated 20 th June, 2013, addressed a
letter to the Editor, MidDay (English), MidDay Infomedia Limited, that
the State Government had asked MCGM to investigate, as his office
required to know whether the information published was true or
otherwise and the source of information. The Editor was also called upon
to furnish all information regarding the article published in the 'Midday'
regarding the sex determination of the unborn and surrogate child of
Respondent Nos.6 and 7. He submitted that after conducting a detailed
investigation, a report was prepared by the B.M.C., which showed that no
prima facie case was made out by the Petitioner and that the information
was based on a newspaper report. He therefore submitted that the
Petition being devoid of merit, ought to be dismissed as it was based on
fallacious and baseless allegations.
11.
On the interpretation of subsection 3 of Section 28 of the PCPNDT
Act, Mr. Rao submitted that the word ‘may’ as it appears in Section 28(3)
of the said Act vests in the Magistrate a discretion and cannot be read as
‘shall’. He submitted that the discretion so vested has to be exercised
judiciously and the Magistrate has to, after considering the merits of the
complaint, decide whether the records/documents as sought for ought to
be given to the complainant. He submitted that there are several
stakeholders involved in surrogacy matters and that it is essential to
maintain the privacy of the parties in cases of surrogacy. He submitted
that the Petitioner had not laid any foundation for getting access to the
documents/records and therefore the learned Magistrate had rightly
rejected his application seeking copies of the records from the Appropriate
Authority. He submitted that there is an inbuilt safeguard in Section 28(3)
of the PCPNDT Act which vests in the Magistrate a discretion and if the
word ‘may’ is read as ‘shall’, a busy body or a speculative informant
without any foundation whatsoever, would on filing of a complaint, be
entitled to receive the records as a matter of right. He submitted that the
complainant has to lay down some foundation and that speculative
information or roving enquiry, cannot be the basis for getting access to the
records, at the asking. He submitted that it was for the Magistrate in his
discretion to consider, whether the complaint is bonafide and genuine,
whether the complaint has any merit or substance and whether the
Appropriate Authority is acting in collusion with the party. He submitted
that the inbuilt safeguards would go, if the word ‘may’ as it appears in
Section 28(3) of the PCPNDT Act is to be read as ‘shall’. He therefore
submitted that the word ‘may’ will have to be read as ‘may’ and not as
‘shall’.
In support of his submissions, Mr.M.P Rao, relied on the
.S.
12.
ig
Judgment of the Apex Court in the case of People’s Union for Civil Liber
ties (PUCL) v/s Union of India and Another, 5 l Sharda v/s Dharmpal,6
and District Registrar and Collector, Hyderabad and Another v/s
Canara Bank and Others,7
13.
Mr.Pranav Badheka, for Respondent Nos.6 and 7 contended that
Section 28(3) is an enabling Section and that the Magistrate should be
satisfied that the documents/records that are sought or demanded by the
complainant, ought to be given or not. He submitted that if the word
‘may’ is read as ‘shall’, it would be a mechanical order, leaving no
discretion whatsoever, in the Magistrate and would thereby violate the
fundamental rights of the parties/stakeholders involved in surrogacy,
5AIR 1997, 1 Supreme Court Cases 301
6 (2003) 4 Supreme Court Cases 493
7 (2005) 1 Supreme Court Cases 496
thereby infringing their right to privacy. He submitted that the Petitioner
is a busy body and that this Court had in Criminal Application No.106 of
2012 in the case of Kolhapur Municipal Corporation v/s Dr.Tukaram
Govind Mane and Others observed therein, that the petitioner i.e.
Varsha Deshpande, who had organized the decoy operation in that case
was found to be untrustworthy. He submitted that if the word ‘may’ is
read as ‘shall’ in Section 28(3), it would be contrary to the decision of the
Apex Court and the Guidelines pronounced by the Indian Council of
Medical Research, 2005 in relation to the Assisted Reproductive
Techniques (“Guidelines”), surrogacy as recognized in India. He
submitted that the biological parents, surrogate mother as well as the
child are entitled to utmost confidentiality/secrecy, which includes
personal details. He submitted that any disclosure of the confidential
information will be breach of the said 'Guidelines'. He submitted that the
entire complaint is misconceived, based on fallacious, baseless and
unsubstantiated premise and that the action sought to be initiated by the
Petitioner is in the form of a roving enquiry without any basis, done with
an ulterior motive and deserves to be dismissed with exemplary costs. He
submitted that the child was born prior to the article which appeared in
Midday. He submitted that the article appeared on 14 th June, 2013 in
Midday and the child was born on 27 th May, 2013 and that there was no
question of any sex determination of the child on the date on which the
said article appeared in the newspaper. He submitted that the Respondent
Nos.6 and 7 have never made any attempt to determine the sex of the
child even before the birth of the child and as such there was no question
of violation of the provisions of the PCPNDT Act or the Rules framed. He
submitted that the discretion which is vested under Section 28(3) of the
PCPNDT Act has been rightly exercised by the learned Magistrate and as
jurisdiction.
Perused all the relevant provisions of the PCPNDT Act and relevant
14.
such this Court ought not to interfere in the said order in its writ
rules, more particularly, Section 28 of the said Act and the statement of
object and reasons for enacting the PCPNDT Act. A perusal of Section
28 of the PCPNDT Act clearly shows that no court can take cognizance of
an offence under this Act except on a complaint made by (a) the
Appropriate Authority concerned, or any officer authorized in this behalf
by the Central Government or State Government, as the case may be, or
the Appropriate Authority ; or (b) a person after giving notice of not less
than fifteen days in the manner prescribed, to the Appropriate Authority,
of the alleged commission of an offence and of his intention to make a
complaint to the Court. The explanation to the said section shows that for
the purpose of Section 28 clause (b), “person” includes a social
organization. Under clause 3 of Section 28 where a complaint has been
made under clause (b) of subsection (1) of Section 28, 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.
The said section will have to be considered in the background of the
statement of objects and reasons for which the PCPNDT Act has been
enacted. It is evident from the statement of objects and reasons, that the
said Act was enacted to prohibit prenatal diagnostic techniques for
determination of sex of the foetus leading to female foeticide, as such
abuse of techniques, discriminates against the female sex, thereby
affecting the dignity and status of women and for other reasons as set
out in para 6 of the judgment. It is thus evident, that if an Appropriate
Authority or any officer authorized in this behalf by the Central
Government or State Government, as the case may be, or the Appropriate
Authority fails in its duty to lodge a complaint for violation of the
provisions of the said Act/Rules, a 'person' has been given locus under the
said Act to lodge a complaint in the appropriate Court for violation of the
provisions of the said Act/Rules framed thereunder,, by giving notice in
the manner prescribed, to the Appropriate Authority of the alleged
violation of the Act. Thus, the legislation gives locus to a 'person' to make
a complaint to the Court of the alleged commission of offences under the
PCPNDT Act, where the Appropriate Authority fails in its duty. Under
subsection (3) of Section 28, where a complaint has been made by a
person as stated under clause (b) of subsection (1) of Section 28, the
Court may, on demand by such person, direct the Appropriate Authority to
give relevant records in its possession to such person. The question that
arises for consideration in the present case is whether the word 'may' as it
appears in subsection 3 of Section 28 of the said Act can be read as
'shall' or whether there is a discretion vested in the Court to make
available the copies of the relevant records in the possession of the
appropriate authority, to such a person. If the word 'may' as submitted by
Mr.Warunjikar is read as 'shall' leaving no discretion in the Magistrate to
make available the copies of all the records in the possession of the
appropriate authority, then the question will arise whether by handing
over of such records, the right of privacy of persons involved is affected,
more particularly, when no foundation whatsoever is laid for handing over
the said records. There may be a case where the complainant may be a
busy body or a person whose bonafides are questionable or a complaint
which is baseless, then under these circumstances, would such a person be
entitled to the records as a matter of right under Section 28(3) of the
said Act. There may also be a case, where despite the fact, that there is
no violation of the provisions of the said Act, if the records are given as a
matter of right, the stakeholders in the given case, more particularly in
15.
of the persons involved.
cases of surrogacy may be exposed, thereby infringing the right of privacy
No doubt, it is well settled that the word 'may' is capable of
meaning 'must' or 'shall' in the light of the context but that would depend
upon the legislation, its object and several other factors. Normally, the
word 'may' is used to grant a discretion and not to indicate a mandatory
direction. It is also true that the word 'may' in some context, has been
interpreted as containing a mandatory direction and the authority given
the power has to exercise that power unless there are special reasons. The
word 'may' is often read as 'shall' or 'must' when there is something in the
nature of the thing to be done which makes it the duty of the person on
whom the power is conferred to exercise the power. Infact, in Frederic
Guilder Julius v/s Right Rev. the Lord Bishop of Oxford; the Rev.
Thomas Thellusson Carter. Lord Blackburn said :
“....The enabling words are construed as
effectuate a legal right.”
compulsory whenever the object of the power is to
It is therefore in the context in which the word 'may' that has
Section 28(3) would have to be considered not only keeping in
16.
been used which is decisive.
mind the statement of objects and reasons for enacting the PCPNDT Act,
but also keeping in mind the International Covenant on Civil and Political
Rights and the Universal Declaration of Human Rights, in particular, the
right to privacy of the stakeholders, more particularly in cases of
surrogacy. The right to privacy of an individual is a part of right to 'life'
and 'personal liberty' which is enshrined under Article 21 of the
Constitution. Once Article 21 is attracted, the said right cannot be
curtailed 'except according to the procedure established by law'. Whether
the right to privacy can be claimed or has been infringed in a given case
would certainly depend on the facts of each case. Whether the documents
sought for under subsection 3 of Section 28 ought to be given or not, is a
matter which is for the Magistrate to decide, after balancing the purpose
and object of the legislation, the right of the person to receive the
documents, and violation, if any, of the provisions of the said Act and
Rules. Certainly, the right of privacy cannot supercede the violation of the
provisions of the PCPNDT Act and Rules framed thereunder. However, it
is for the Magistrate to consider all the factors, including the right of
privacy of the stakeholders. If the word 'may' is read as 'shall' the
Magistrate will have no discretion whatsoever, which certainly cannot be
said to be legislative intent. Thus, the word 'may' as it appears in sub
section (3) of Section 28 of the PCPNDT Act will have to be read as `may'
and not `shall', or 'must' ; thereby giving discretion to the Magistrate to
decide whether the complainant is entitled to the records as sought for.
Thus, there is no vested right in the complainant to get the records as a
matter of right. It may be noted here, that none of the parties have raised
the issue, as to whether the Magistrate was competent to consider the
application preferred under Section 28(3) of the PCPNDT Act prior to
taking cognizance of the alleged offences under the PCPNDT Act, and
hence the said issue has not been considered and left open.
17.
In the present case, the complaint is based on a newspaper report
dated 14th June, 2013, whereas the date of birth of the child is 27th May,
2013. Admittedly, the foundation of lodging the complaint is only the
newspaper report. The petitioner had given notice to the Appropriate
Authority as contemplated under subsection 1(b) of Section 28. The
Appropriate Authority has also as it appears promptly taken cognizance of
the said letter sent by the Petitioner and has conducted a detailed enquiry
in the said matter and after conducting the same has come to the
conclusion that there was no violation of the aforesaid provisions. The
learned Magistrate after considering all the material placed before it, has
rejected the application preferred by the petitioner, seeking all the relevant
records under subsection 3 of Section 28. The learned Magistrate in para
8 and 9 has observed as under :
“8.
Here it is to be noted that except the
complainant's words there is absolutely no material to
substantiate her claim that the relevant record is
available with the respondent/opponent nos.1 to 3.
Barring the news item dated 14/06/2013 the
complainant could produce no material in support.
Said news item is cited as the base for the conviction of
the complainant that the tests were carried out or the
sex of the child was declared in violation of the
provisions of the PCPNDT Act. Source of such news
article is neither revealed nor is ascertainable.
Therefore, such a base, it goes without saying, is
absolutely fragile. Complainant's conviction alone can
never be made the basis to even reasonably believe that
the respondents/opponents might be having the alleged
record or they have other record than what they
produced on 4.10.2013. It cannot be lost sight of that
the child was born on 27.05.2013 while the
complainant does not allege that its sex was declared
the guesswork.
anytime prior to that. Her claim appears purely to be
9.
“Adequate foundation to raise a belief that the
respondent/opponent nos.1 to 3 have the alleged record
concerning the present complaint is badly wanting.
Therefore, sans the same the direction as sought for
cannot be issued. It is also highly doubtful if a person
who is arraigned as an accused could be directed to
produce certain material which may later be used
against him only, as evidence. The complainant in these
circumstances, appears to have made either blind guess
or is groping in the dark.......”
18.
It is for the Magistrate to consider whether the demand of
documents/records from the Appropriate Authority is genuine, bonafide
etc. It is a discretion which is vested in the Magistrate which he has to
exercise judiciously, keeping in mind all the factors. There is no infirmity
in the impugned order and the learned Magistrate has rightly rejected the
application preferred by the Petitioner under Section 28(3) of the PC
PNDT Act. No interference is warranted. The petition being sans merit, is
dismissed. Rule is discharged.
19.
Needless to state, that the observations made in the said order are
confined to the issue raised in the said petition, preferred under Section
ig
28(3) of the PCPNDT Act. The trial court to proceed with the complaint,
(REVATI MOHITE DERE, J.)
on its own merits, in accordance with law.
After pronouncement of the order, the learned counsel for the
(REVATI MOHITE DERE, J.)
Petitioner, seeks stay of the order passed today. Prayer rejected.
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