Monday, 16 March 2015

When prosecution under PCPNDT Act can be quashed?


 From the cross examination, it was pointed out 
on behalf of the petitioner that the Appropriate Authority in 
clear terms has admitted that the person, who performed the 
sonography i.e. Radiologist and the owner of the hospital can 

be   the   different   persons.       The   Appropriate   Authority   Dr. 
Sakhahari   Mahadu   Sonawane   has   further   admitted   in   his 
cross   examination   that   it   is   incumbent   on   the   part   of   the 
Radiologist   to   give   the   declaration.     Similarly,   it   is   also 
necessary on the part of the owner of the sonography centre 
to give the declaration.  
The charge against the present petitioner is that 

though Dr. Wable has performed the sonography, Form ' F ' is 
not signed by him.   It is not the case of the prosecution nor 
there   are  tinch  of  any  allegation  in  the   complaint that   the 
present petitioner has not signed Form ' F '.  
Dr. Sonawane, who is  Appropriate Authority has 
specifically admitted in his cross examination that though it 
was   incumbent   for   Dr.   Wable   to   sign   Form   '   F   ',   the 
Appropriate Authority has failed to issue any notice and/or 
failed to call  any explanation  from  him  nor  Dr. Wable has 
joined as an accused in the present proceeding or no further 
proceedings are initiated against Dr. Wable.  
It   is   thus   clear   that   when   it   is   the   case   of   the 
prosecution that Dr. Wable has performed sonography and it 

was incumbent on him to sign Form ' F ' and when it is not 
the case of the prosecution or nothing is spelt out from the 
Complaint  that  the  present  petitioner  has not signed Form 
'   F   ',  hence   continuance   of   the   criminal   proceeding,   in   my 
opinion, will be an abuse of process of law.   In that view of 
the   matter,   the   order   passed   by   the   learned   2 nd  J.M.F.C., 
Rahata   dated   04/03/2014   in   Regular   Criminal   Case   No. 

151/2007   can   not   stand   to   the   scrutiny   of   law. 
Consequently, the said order together with the Judgment and 
order   passed   by   the   learned   revisional   Court   dated 
03/09/2014   in   Criminal   Revision   Application   No.   11/2014 
are   hereby   quashed   and   set   aside.                               
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD
      
CRIMINAL WRIT PETITION NO. 1072 OF 2014
Dr. Prabodh S/o Uddhav Joshi
 Occ. : Medical Practitioner,

V E R S U S

Superintendent of Medical

Rural Hospital, Rahata
Tq. Rahata, Dist. : 
Ahmednagar.

        
CORAM : V.M.DESHPANDE, J.
DATE OF JUDGMENT : 7th JANUARY, 2015    

Citation; 2015ALLMR(cri)727


By   the   present   Writ   Petition,   the   petitioner   is 
2.

questioning the  correctness of the order dated 04/03/2014 
passed   by   the   learned   2nd  J.M.F.C.,   Rahata   in   R.C.C.   No. 
151/2007, by which a charge is framed against the petitioner 
under   the   relevant   provisions   of   the   Pre­Natal   Diagnostic 
Techniques (Regulation and Prevention of Misuse) Act, 1994 
(for short, ' PCPNDT Act ') together with the Judgment and 
order dated   03/09/2014 passed by the learned Additional 
Sessions Judge, Kopargaon in Criminal Revision Application 
No.   11/2014,   by   which   the   learned   revisional   Court 
dismissed   the   Revision   filed   on   behalf   of   the   petitioner   to 
question the correctness of framing of the charge against him. 
3.
Heard  Mr. V.J.Dixit, the learned Senior Counsel 
instructed   by   Mr.   L.V.Sangeet,   the   learned   counsel   for   the 
petitioner     and  Mr.   D.R.Kale,     the   learned   A.P.P.     for 

respondent ­ State.
The   learned   Senior   Counsel   took   me   through 
4.
copy   of   the   Complaint   filed   on   behalf   of   the   Appropriate 
Authority against the present petitioner, which is registered 
as Regular Criminal Case No. 151/2007, more precisely, he 
has pointed out the nature of allegations made against the 

present petitioner in the said Complaint.  He has also pointed 
out to  this Court the  cross examination  of  the  Appropriate 
Authority,   when the Appropriate Authority   was in witness 
box in respect of the evidence before framing of Charge.  He 
has also pointed out to me the Circular issued by the State 
Appropriate   Authority   and   Additional   Director   of   Health 
Civil   Surgeons,   all   Medical   Officers   of   Health,   Municipal 
Corporation   and   the   Assistant   Director   of   Health   Services 
(Medical), Pune Circle, Pune.  
Services, Family Welfare, MCH & SH, Pune­1 addressed to all 
5.
From the cross examination, it was pointed out 
on behalf of the petitioner that the Appropriate Authority in 
clear terms has admitted that the person, who performed the 
sonography i.e. Radiologist and the owner of the hospital can 

be   the   different   persons.       The   Appropriate   Authority   Dr. 
Sakhahari   Mahadu   Sonawane   has   further   admitted   in   his 
cross   examination   that   it   is   incumbent   on   the   part   of   the 
Radiologist   to   give   the   declaration.     Similarly,   it   is   also 
necessary on the part of the owner of the sonography centre 
to give the declaration.  
The charge against the present petitioner is that 

though Dr. Wable has performed the sonography, Form ' F ' is 
not signed by him.   It is not the case of the prosecution nor 
there   are  tinch  of  any  allegation  in  the   complaint that   the 
present petitioner has not signed Form ' F '.  
6.
Dr. Sonawane, who is  Appropriate Authority has 
specifically admitted in his cross examination that though it 
was   incumbent   for   Dr.   Wable   to   sign   Form   '   F   ',   the 
Appropriate Authority has failed to issue any notice and/or 
failed to call  any explanation  from  him  nor  Dr. Wable has 
joined as an accused in the present proceeding or no further 
proceedings are initiated against Dr. Wable.  
7.
It   is   thus   clear   that   when   it   is   the   case   of   the 
prosecution that Dr. Wable has performed sonography and it 

was incumbent on him to sign Form ' F ' and when it is not 
the case of the prosecution or nothing is spelt out from the 
Complaint  that  the  present  petitioner  has not signed Form 
'   F   ',  hence   continuance   of   the   criminal   proceeding,   in   my 
opinion, will be an abuse of process of law.   In that view of 
the   matter,   the   order   passed   by   the   learned   2 nd  J.M.F.C., 
Rahata   dated   04/03/2014   in   Regular   Criminal   Case   No. 

151/2007   can   not   stand   to   the   scrutiny   of   law. 
Consequently, the said order together with the Judgment and 
order   passed   by   the   learned   revisional   Court   dated 
03/09/2014   in   Criminal   Revision   Application   No.   11/2014 
are   hereby   quashed   and   set   aside.       The   Regular   Criminal 
Case   No.   151/2007   pending   on   the   file   of   the   J.M.F.C., 
Rahata against the present petitioner is hereby quashed.  
8.
Rule is made absolute.  
 [V.M.DESHPANDE, J.]

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