cognizance on mere perusal of complaint and statements
of two witnesses. It has applied mind on relevant record
also. Hence, the judgment of Pepso Foods Ltd. (supra) is of no
assistance to the petitioner in the present case.
In Sharad Kumar Sanghi (supra), the Apex Court
considered the words "sufficient ground for proceeding".
It means that grounds should be made out in the
complaint for proceeding against the respondent. In my
view, neither the allegations in the complaint are vague
nor it can be said that it does not constitute an offence
under the Act. There were sufficient grounds for
proceeding against the petitioner and, therefore, this
judgment has no application. Same is the view about the
judgment of Monju Roy (supra). The said matter also deals
with omnibus statement. In the present case, there are
specific allegations against the petitioner in the
complaint. Hence, this judgment is of no help to the
petitioner. In D.P. Gulati (supra), the Apex Court was dealing
with vexatious complaint. At this stage, it cannot be said
that the complaint is vexatious. In Rishipal Singh (supra), the
Supreme Court dealt with the scope of Section 482 CrPC.
No doubt, powers under Section 482 CrPC are wide and
proceedings can be quashed if certain parameters are
satisfied. However, it is noteworthy that the Apex Court
in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another),
laid down broad principles for exercise the jurisdiction
under Section 397/482 CrPC. It is held that the principles
to be considered for proper exercise of jurisdiction,
particularly with regard to quashing of a charge either in
exercise of jurisdiction under Section 397 or Section 482
CrPC or together, as the case may be, can be
summarised. Though there are no limits of the powers of
the Court under Section 482 CrPC but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 CrPC should be exercised very sparingly and
with circumspection and that too in the rarest of rare
cases. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, as it an abuse of
the process of court leading to injustice. It is neither
necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case
of acquittal or conviction. In exercise of its jurisdiction
under Section 228 and/or under Section 482, the court
cannot take into consideration external materials given
by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his
acquittal. The court has to consider the record and
documents annexed with by the prosecution. Quashing of
a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied,
the court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial
stage. The court is not expected to marshal the records
with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima
facie.
27. If the litmus test of the judgment in Amit Kapoor
(supra) is applied in the factual matrix of the present
matter, it cannot be said that the court below has
committed any legal error in taking cognizance of the
matter. Thus, no interference is required by this Court at
this stage.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Criminal Case No. 5967/09
Dr.(Smt) Pooja Agrawal
Vs.
Shivbhan Singh Rathore & Anr.
O R D E R
(14/ 10 /2015)
The petitioner has invoked the jurisdiction of this
Court under Section 482 Cr.P.C. to challenge the
proceedings of Criminal Case No. 1248/2009 pending
before Chief Judicial Magistrate, Bhind. The petitioner
has also challenged the order of Revisional Court dated
7.8.2009.
2. Shri Raju Sharma, learned counsel for the petitioner
submits that the petitioner is running an ultra sound
clinic in the name and style of Divyam Ultrasound Centre
at Bhind. The petitioner is a qualified Radiologist and
Sonologist. The petitioner's clinic is duly registered
under the provisions of Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 (for brevity, the "Act of 1994"). Shri Sharma
submits that respondent No.1 is a habitual complainant.
He preferred series of vague complaints against various
doctors of Bhind. None of these complaints could fetch
any result and allegations mentioned therein could not
be proved. Attention of this Court is drawn on a
compilation prepared and filed on 28.9.2015. By taking
this Court to page 55, 68, 99, 107 and 108 of this
compilation, it is argued that the respondent No.1
preferred various complaints before various authorities.
No allegation of complainants could be established,
which shows that he is habitual complainant and makes
such complaint to harass the doctors/clinic operators.
Shri Sharma further submits that a plain reading of
complaint (page 68 of compilation) shows that the
allegations mentioned against the petitioner are
vague/ambiguous. As per the face value of the
allegations itself, it can be safely said that no offence is
made out against the petitioner. Putting it differently, by
applying the acid test laid down by the Supreme Court in
AIR 1992 SC 604 (State of Haryana vs. Bhajanlal), Shri Sharma
submits that if allegations of the complainant are
accepted on its face value, no offence of any nature is
established against the petitioner. Thus, the Court below
has committed an error in taking cognizance of such an
unworthy complaint.
3. Shri Sharma also relied on Section 28 of the Act of
1994 to submit that it is condition precedent to submit a
notice before the appropriate authority. Only after
completion of 15 days time from the date of giving
notice, the complaint could have been preferred. Shri
Sharma submits that the notice dated 28.3.2008 makes
it clear that it does not fulfill the requirement of Section
28(1)(b) of the said Act. Complainant has not disclosed
the “alleged offence” in the said notice qua petitioner
and, therefore, the complaint itself was not tenable. Shri
Sharma read out the statement of complainant and his
witness (page 93 and 94 of the compilation). On the
strength of this, it is urged that the Court below has erred
in taking cognizance of the complaint.
4. The next attack is on the revisional order. Shri
Sharma has taken pains to submit that the revisional
court has exceeded its jurisdiction. There was no
occasion for the revisional court to act as a court of first
instance. The revisional court was only required to
examine the decision making process of the trial court.
Putting it differently, Shri Raju Sharma submits that the
revisional court has acted as a court of first instance and
examined the entire material before it which is legally
impermissible. Shri Sharma relied on various provisions
of the Act of 1994 to submit that petitioner has not
committed any offence whatsoever and courts below
have mechanically taken cognizance against the
petitioner. He relied on following judgments of Supreme
Court in support of his contention:-
(i) AIR 1992 SC 604 (State of Haryana and others
Vs. Ch. Bhajan Lal and others).
(ii) AIR 1992 Sc 637 ( Daman Municipal Council
and another etc. Vs. M/s Paramount Traders
and others).
(iii) (1998) 5 SCC 749 (Pepsi Foods Vs. Special
Judicial Magistrate).
(iv) 2015(1) Crimes (SC) 271 (Sharad Kumar
Sanghi Vs. Sangita Rane).
(v) 2015 (2) Crimes (SC) 340 (Monju Roy & Ors.
Vs. State of West Bengal).
(vi) 2015 (2) RCR (Criminal) (SC) 515 (D.P. Gulati,
Manager Accounts M/s. Jetking Infotrain Ltd.
Vs. State of Uttar Pradesh & Anr.).
(vii) (2014) 7 SCC 215 (Rishipal Singh Vs. State of
U.P. & Anr.).
(viii) 2015(1) Crimes (SC) 211 ( K.K.Kuda Vs. Chief
Enforcement Officer, Enforcement Directorate
& Anr.).
It is submitted that taking cognizance on a criminal
complaint is a serious matter. On the basis of a vague
complaint supported by two statements of witnesses
alone, cognizance could not have been taken. Heavy
reliance is placed on the judgment of Supreme Court in
Pepsi Food (supra). It is submitted that the courts below
have acted beyond jurisdiction and complaint
proceedings are liable to be set aside at this stage itself.
5. Shri H.K.Shukla, learned counsel appearing for the
complainant supported the order of the trial court andM.Cr.C.5967/2009 4
the revisional court dated 7.8.2009. Shri Shukla submits
that the allegations mentioned in the complaint are
sufficient to take cognizance. He relied on the order
dated 1.7.2008 passed by the trial court. The said order
shows that the complainant preferred application for
summoning the relevant record from the office of Chief
Medical and Health Officer, Bhind. Said application of the
complainant was accepted by the court below and
relevant record was summoned. Shri Shukla submits
that court below examined the averments of the
complaint and the material available before it and then
only has taken cognizance. Learned counsel for the
complainant submits that the sex ratio at Bhind is
alarmingly low. This situation has arisen because of
inaction of the Government authorities. The clinics are in
hands and gloves with the Government authorities. Shri
Shukla submits that once the entire official record was
summoned and produced before the trial court, it was
open for the trial court to examine that material and
take cognizance based on it. The court below has not
committed any legal or jurisdictional error in considering
the said material and taking cognizance. In support of his
submissions, he relied on certain judgments of the
Supreme Court. He submits that whether or not
complaint has sufficient material/evidence, it cannot be
the subject matter of adjudication/judicial review at this
stage. It is for the trial court to proceed with the factual
matrix of the matter and give a conclusion after
appreciation of the evidence. At this stage, normally and
ordinarily no interference should be made.
6. Shri A.S.Rathore, learned Panel Lawyer borrowed
the arguments advanced by Shri H.K.Shukla, learned
counsel for the complainant.
7. No other point is raised by learned counsel for the
parties.M.Cr.C.5967/2009 5
8. I have heard the learned counsel for the parties and
perused the record.
9. The Act of 1994 is an outcome of concern shown by
both the Houses of Parliament. A Joint Committee of both
the Houses prepared and presented a report in
December, 1992. On the basis of report/
recommendations aforesaid, a Bill was introduced in the
Parliament. The basic reason of the worry/concern was
that in the recent past Pre-natal Diagnostic Centres
sprang up in the urban areas of the country using prenatal
diagnostic techniques for determination of sex of
the foetus. Such centres became very popular and their
growth was tremendous as the female child is not
welcomed with open arms in most of the Indian families.
The result was that such centres became centres of
female foeticide. Such abuse of the technique is against
the female sex and affects the dignity and status of
women. Various Organisations working for the welfare
and uplift of the women raised their heads against such
an abuse. Justice Leila Seth in her book “Talking of
Justice” has quoted Rabindranath Tagore. Tagore said
“every time a child is born, it brings with it the hope that
God is not yet disappointed with man.” After quoting
Tagore, learned author expressed her pain by saying that
“it appears to me that when a girl child is born in India,
more often than not, man is disappointed with God. The
birth of first daughter is often considered bad luck, the
second a disaster and third a catastrophe”. Rabindra
Nath Tagore long back said:-
“O' Lord, why you have not given
woman the right to conquer her destiny?
Why does she have to wait
head bowed by the road side
Waiting with tired patience
hoping for a miracle on the morrow”
Needless to mention that said morrow has not yetM.Cr.C.5967/2009 6
come. Unless the society is enlightened and law is
enforced strictly, such goal cannot be achieved.
Despite showing concern and formulation of law on
the subject, it is a matter of common knowledge that
such incidents of female foeticide are going on and that
is the reason sex ratio is falling down in various cities.
This is happening mainly in Northern part of India. The
Act of 1994 and Rules made there under needs to be
strictly implemented.
As per 2011 Census, the sex ratio at Bhind District
is as under:-
Population State District Percen-
(Bhind) tage
Rural Total Persons 52557404 1270083
Males 27149388 694756 54.7
Female 25408016 575327 45.3
Urban Persons 20069405 432922
Males 10462918 232087 53.6
Females 9606487 200835 46.4
10. The Supreme Court also expressed its concern over
the incidents of female foeticide in (2013) 4 SCC 1 & 401
( Voluntary Health Association of Punjab Vs. Union of India and Ors.).
The Apex Court opined that Indian society's
discrimination towards the female child still exists due to
various reasons which has its roots in the social behavior
and prejudices against the female child and due to the
evils of dowry system still prevailing in the society in
spite of its prohibition under the Dowry Prohibition Act.
The decline in the female child ratio all over the country
leads to an irresistible conclusion that the practice of
eliminating female foetus by the use of pre-natal
diagnostic techniques is widely prevalent in the country.
Parliament wanted to prevent the same and enacted theM.Cr.C.5967/2009 7
Act of 1994. But the provisions of the Act of 1994 are not
properly and effectively being implemented.
Mushrooming of various pre-natal diagnostic centres in
almost all parts of the country calls for more vigilance
and attention by the authorities under the Act of 1994.
But unfortunately their functioning is not being properly
monitored or supervised by the authorities under the
1994 Act to find out whether they are misusing the said
techniques. Seldom the machines used in said illegal
purpose are seized and even if seized, they are released
to the violators of the law only to repeat the crime.
Hardly any cases under the 1994 Act end in conviction
and such cases are pending disposal for several years.
Many of the ultrasonography clinics seldom maintain any
record as per the rules. Many of the clinics are totally
unaware of the Government notifications and
amendment of the rules concerned.
It is further held that the object of the 1994 Act was
to provide for prohibition of sex selection before or after
conception and for regulation of pre-natal diagnostic
techniques for the purposes of detecting genetic
abnormalities or metabolic disorders or chromosomal
abnormalities or certain congenital malformations or sexlinked
disorders and for the prevention of their misuse for
sex determination leading to female foeticide. The
purpose of the enactment can only be actualized and its
object fruitfully realized when the authorities under the
1994 Act carry out their functions with devotion,
dedication and commitment and further there is
awakened awareness with regard to the role of women in
a society. It would not be an exaggeration to say that a
society that does not respect its women cannot be
treated to be civilized. When a female foeticide takes
place, every woman who mothers the child must
remember that she is killing her own child despite beingM.Cr.C.5967/2009 8
a mother. That is what abortion would mean in social
terms. Abortion of a female child in its conceptual
eventuality leading to killing of a woman. Law prohibits
it; scriptures forbid it; philosophy condemns it, ethics
deprecate it, morality decries it and social science abhors
it. The innocence of a child and the creative intelligence
of a woman can never ever be brushed aside or
marginalized. Civilization of a country is known by how it
respects its women. It is the requisite of the present day
that people are made aware that it is obligatory to treat
the woman with respect and dignity so that humanism in
its conceptual essentiality remains alive. Each member of
the society is required to develop a scientific temper in
the modern context because that is the social need of the
present.
In para 9 of the aforesaid judgment certain
directions were given to the Supervisory Board, Advisory
Committee and authorities. These directions are required
to be implemented strictly. The female foeticide has
become a concern for the nation.
11. It is profitable to refer to certain provisions of the
Act of 1994 and Rules made thereunder. Section 4 of the
Act of 1994 deals with regulation of pre-natal diagnostic
techniques. This provides that on and from the
commencement of this Act, ... (3) no pre-natal diagnostic
techniques shall be used or conducted unless the person
qualified to do so is satisfied for reasons to be recorded
in writing that any of the following conditions are fulfilled,
namely:-
(i) age of the pregnant woman is above thirty-five
years;
(ii) the pregnant woman has undergone two or
more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as drugs,
radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a familyM.Cr.C.5967/2009 9
history of mental retardation or physical
deformities such as, spasticity or any other
genetic disease;
(v) any other condition as may be specified by the
Board."
Section 5 is couched in a mandatory language. It
prescribes that no pre-natal diagnostic procedure can be
applied unless the procedure prescribed in this section is
fulfilled. The same reads as under:-
(a) he has explained all known side and after
effects of such procedures to the pregnant
woman concerned;
(b) he has obtained in the prescribed form her
written consent to undergo such procedures in
the language which she understands; and
(c) a copy of her written consent obtained under
clause (b) is given to the pregnant woman.
(2) No person conducting pre-natal diagnostic
procedures shall communicate to the pregnant woman
concerned or her relatives the sex of the fetus by words,
signs or in any other manner.
Section 23 deals with "offences and penalties",
which reads as under:-
"23. Offences and penalties.--(1) Any medical geneticist,
gynecologist, registered medical practitioner or any
person who owns a Genetic Counseling 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, and who contravenes any of the provisions of
this Act or rules made thereunder shall be punishable
with imprisonment for a term which may extend to three
years and with fine which may extend to ten thousand
rupees and on any subsequent conviction, with
imprisonment which may extend to five years and with
fine which may extend to fifty thousand rupees.
(2) The name of the registered medical practitioner who
has been convicted by the court under sub-section (1),
shall be reported by the Appropriate Authority to the
respective State Medical Council for taking necessary
action including the removal of his name from the
register or the Council for a period of two years for the
first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of a Genetic
Counseling Centre, Genetic Laboratory or GeneticM.Cr.C.5967/2009 10
Clinic or of a medical geneticist, gynecologist or
registered medical practitioner for conducting pre-natal
diagnostic techniques on any pregnant woman
(including such woman unless she was compelled to
undergo such diagnostic techniques) for purposes other
than those specified in clause (2) of section 4, shall, be
punishable with imprisonment for a term which may
extend to three years and with fine which may extend to
ten thousand rupees and on any subsequent conviction
with imprisonment which may extend to five years and
with fine which may extend to fifty thousand rupees.
Section 25 makes it clear that whoever contravenes
any of the provisions of this Act or any rules made
thereunder, for which no penalty has been elsewhere
provided in the Act, shall be punishable with
imprisonment for a term which may extend to three
months or with fine, which may extend to one thousand
rupees or with both. However, in case of continuing
contravention, an additional fine may be imposed.
Section 28 makes it clear that no court shall take
cognizance of an offence under the Act of 1994 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.
12. It is seen that under Section 32 of the Act of 1994,
the rules are made, which are known as "The PreConception
and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 (for brevity, the
"Rules of 1996"). Rule 9 prescribes the procedure of
maintenance and preservation of records. Relevant subrules
of Rule 9 reads as under:-
(4) The record to be maintained by every Genetic
Clinic including a mobile Genetic Clinic, in respect of
each man or woman subjected to any pre-natalM.Cr.C.5967/2009 11
diagnostic procedure/technique/test, shall be as
specified in Form F.
(8) Every Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and
Imaging Centre shall send a complete report in respect
of all pre-conception or pregnancy related procedure/
techniques/tests conducted by them in respect of each
month by 5th day of the following month to the
concerned Appropriate Authority."
Rule 10 (1A) reads as under:-
1A. Any person conducting ultrasonography/image
scanning on a pregnant woman shall give a declaration
on each report on ultrasonography/image scanning that
he/she has neither detected nor disclosed the sex of
foetus of the pregnant woman to any body. The
pregnant woman shall before undergoing
ultrasonography/image scanning declare that she does
not want to know the sex of her foetus.
(Emphasis Supplied)
13. Under the Rules of 1996, certain statutory Forms
are prescribed in order to give effect to the provisions of
the Act and Rules. Statutory Form 'F' is prescribed for
maintenance of record in respect of pregnant woman by
Genetic Clinic/Ultrasound Clinic/Imaging Centre. A plain
reading of this Form makes it clear that various entries
are required to be made in this Form. It is followed by a
declaration of pregnant woman and declaration of doctor/
person conducting the tests. Form 'G' relates to consent
for invasive techniques. Form 'H' deals with maintenance
of permanent record of applications for grant/rejection of
registration under the Act of 1994.
14. If the scheme of the Act is examined, it will be clear
that the Act is introduced with a view to check the
misuse of scientific techniques for the purpose of sex
determination which leads to female foticide. In order to
stop the abuse of techniques against female sex and with
a view to uplift the dignity and status of woman, the Act
is introduced. Various Sections are included in the Act so
that the accountability of Centres can be fixed and prenatal
diagnostic techniques can be regulated as per theM.Cr.C.5967/2009 12
Act of 1994.
15. Shri Raju Sharma, learned counsel for the
petitioner, contended that the Court below has
committed an error in taking cognizance of the offence
because the notice given by the complainant was not in
accordance with the requirement of Section 28(b) of the
Act of 1994. The notice dated 28.3.2008 shows that the
complainant has sent legal notice before the
"Appropriate Authority" mentioning that there is flagrant
violation of the Act of 1994 and Rules of 1996 in district
Bhind. It is true that the said notice does not specify that
it is filed only against the petitioner. In other words, it is a
general notice sent by the complainant, complaining
about violation of Act and Rules and misuse of
Ultrasonography machines etc.
16. In my view, the purpose of insertion of Section 28
(1) (b) is to give a chance to the Appropriate Authority to
examine and take action against alleged violation. The
notice appears is given to enable the Appropriate
Authority to take action against the erring clinics/centres.
The person sending notice needs to wait for 15 days so
that during this time. appropriate action may be taken by
authorities. This time limit is prescribed so that if
grievance of complainant is redressed at the level of
Appropriate Authority, the Courts will not be burdened to
take cognizance of an offence and it can be taken care of
at the level of "Appropriate Authority". The notice in the
present case dated 28.3.2008 makes it clear that
violation of provisions of the Act and Rules was
specifically pleaded in the notice. Thus, it cannot be said
that the notice does not fulfill the requirement of the Act
and Rules. Apart from this, the explanation of section 28
makes it clear that the word "person" includes a social
organisation. The complainant is a social organisation
and, therefore, falls within the ambit of "person".M.Cr.C.5967/2009 13
17. In the complaint, the complainant has alleged that
the petitioner has filled up Form 'F' and deposited the
same. These documents are fabricated documents. This
Form 'F' deposited by the petitioner does not tally with
prescribed statutory Form 'F'. The preparation of
fabricated documents and depositing them in the Office
of Prescribed Authority is violation of Act and is an
offence under Indian Penal Code. It is also alleged in the
complaint that the pregnant women, who were subjected
to ultrasound test were not required to give their consent
in statutory Form 'G'. This is an offence under Section
23(1) of the Act of 1994. It is further alleged in the
complaint that the present petitioner has submitted an
application in the office of CMHO, Bhind informing that he
has installed an additional ultrasound machine at his
clinic. This intimation is given on 22.5.2009. The said
machine is not registered under the provisions of the Act.
The petitioner is continuously using the said machine
without there being any registration and, therefore, it is
an offence under Section 23(1) of the Act of 1994. The
complainant alleged that in the meeting of the
department, it was decided to seize the said ultrasound
machine on 4.5.2012 but the said machine was not
seized which shows that it is violation of the decision
taken on 4.5.2012. It is also an offence under Section
188 of IPC. In addition, it is alleged in the complaint that
Form 'F', which was produced by the petitioner, is not in
consonance with Section 4(3) of the Act. The petitioner
has not filed the affidavit in consonance with Rule 4(1) of
the Rules of 1996.
18. Shri Raju Sharma on more than one occasion drew
attention of this Court on the complaint (page 68 of the
compilation) and urged that the allegations of complaint
do not constitute offence. On the basis of said
allegations, no case is made out for taking cognizance. M.Cr.C.5967/2009 14
19. In the considered opinion of this Court, the act of
sex determination or test takes place inside the
clinic/diagnostic centre. Nobody except the person, who
is being tested, and the person who conducts the test,
know about the details of such tests. In order to ensure
transparency and accountability, various Forms are
prescribed so that the technique is not misused. During
the course of argument, Shri Raju Sharma emphasized
that the allegations mentioned in the complaint are
vague. No details are mentioned about conducting of test
of sex determination etc. on any person. It is important to
note that the law-makers were conscious of this fact that
it is difficult to get clear evidence of act of sex
determination by the centres. Thus, in various provisions
of the Act and Rules, it was made obligatory for the
centres to fill up the forms, file declaration, obtain
affidavit/consent etc. These informations were required
to be given in prescribed forms. The same were required
to be preserved for stipulated period. In addition, same
were required to be filed before the Prescribed Authority.
The purpose was to ensure transparency and eradicate
the possibility of sex determination and female foeticide.
As per Section 23 of the Act of 1994, any contravention
of provisions of Act or Rules is an offence and is
punishable. Thus, if forms are tempered/fabricated,
consent is not obtained, statutory informations are not
given in prescribed forms, it amounts to contravention of
provisions of the Act and Rules. Thus, Section 23 is wide
enough to cover any violation of Act or Rules and bring it
within the purview of "offence". In the present case, the
complainant, in no uncertain terms, alleged that the
prescribed Forms are either fabricated or do not tally
with the requirement of statutory Forms. Other
allegations of complaint are also related to violation of
Act/Rules.M.Cr.C.5967/2009 15
20. In the further opinion of this Court, if the allegations
mentioned in the complaint are accepted on their face
value, definitely Sections 23 and 25 of the Act of 1994
are attracted. Putting it differently, if the allegations
mentioned in the complaint are treated to be correct,
offence under the Act of 1994 are made out. Thus, as per
the test laid down in Bhajanlal (supra), no interference can
be made on this ground.
21. Shri Raju Sharma further contended that the trial
court has mechanically taken cognizance on the basis of
fake complaint and statements of two witnesses.
However, a minute scrutiny of record shows that the said
contention is contrary to record. It is seen that the
complaint was preferred on 5.5.2008. Thereafter, on
1.7.2008, an application was filed to summon the record
from the Office of Prescribed Authority. The trial Court by
order dated 1.7.2008 summoned the said record. The
record was ultimately produced before the court below.
The statements of complainant's witnesses were
recorded under Section 200 of the Code of Criminal
Procedure. Thereafter on 2.3.2009, the Court below
opined that after considering the averments of
complainant, statements of witnesses and documents
produced in the case, it prima facie appears that
petitioner has committed an offence. The Court below
opined that sufficient material is available to take
cognizance under Sections 23 and 25 of the Act of 1994.
Hence, cognizance was taken and complaint was
registered.
22. Section 29 of the Act makes it clear that relevant
record, forms, charts, reports are required to be
preserved for a period of two years. However, if any
criminal proceedings are instituted, it needs to be
preserved till the final disposal of the proceedings. Rule
9(8) of the Rules of 1996, quoted above, also makes itM.Cr.C.5967/2009 16
clear that the clinic/centre is required to send a complete
report in respect of all pre-conception or pregnancy
related procedures/techniques/tests conducted by them
in respect of each month by 5th day of the following
month to the concerned Appropriate Authority.
23. Thus, it is seen that the trial Court has not
mechanically taken cognizance of the matter. The
original record was summoned and on perusal of the
same, the court below prima facie found that there are
sufficient reasons to proceed against the petitioner. I am
unable to hold that the order dated 2.3.2009 is passed
without proper application of mind. The Revisional Court
has also taken the same view and I do not find any legal
infirmity in the same.
24. Shri Raju Sharma, learned counsel for the
petitioner, relied on various judgments of Supreme Court.
As discussed, the judgment of Bhajanlal (supra) does not
help the petitioner in any manner. At the cost of
repetition, it is noted that if the allegations in the
complaint are accepted on their face value, certainly the
offences under sections 23/25 of the Act of 1994 are
made out.
25. As analyzed, the trial Court has not taken
cognizance on mere perusal of complaint and statements
of two witnesses. It has applied mind on relevant record
also. Hence, the judgment of Pepso Foods Ltd. (supra) is of no
assistance to the petitioner in the present case.
26. In Sharad Kumar Sanghi (supra), the Apex Court
considered the words "sufficient ground for proceeding".
It means that grounds should be made out in the
complaint for proceeding against the respondent. In my
view, neither the allegations in the complaint are vague
nor it can be said that it does not constitute an offence
under the Act. There were sufficient grounds for
proceeding against the petitioner and, therefore, this
judgment has no application. Same is the view about the
judgment of Monju Roy (supra). The said matter also deals
with omnibus statement. In the present case, there are
specific allegations against the petitioner in the
complaint. Hence, this judgment is of no help to the
petitioner. In D.P. Gulati (supra), the Apex Court was dealing
with vexatious complaint. At this stage, it cannot be said
that the complaint is vexatious. In Rishipal Singh (supra), the
Supreme Court dealt with the scope of Section 482 CrPC.
No doubt, powers under Section 482 CrPC are wide and
proceedings can be quashed if certain parameters are
satisfied. However, it is noteworthy that the Apex Court
in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another),
laid down broad principles for exercise the jurisdiction
under Section 397/482 CrPC. It is held that the principles
to be considered for proper exercise of jurisdiction,
particularly with regard to quashing of a charge either in
exercise of jurisdiction under Section 397 or Section 482
CrPC or together, as the case may be, can be
summarised. Though there are no limits of the powers of
the Court under Section 482 CrPC but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 CrPC should be exercised very sparingly and
with circumspection and that too in the rarest of rare
cases. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, as it an abuse of
the process of court leading to injustice. It is neither
necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case
of acquittal or conviction. In exercise of its jurisdiction
under Section 228 and/or under Section 482, the court
cannot take into consideration external materials given
by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his
acquittal. The court has to consider the record and
documents annexed with by the prosecution. Quashing of
a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied,
the court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial
stage. The court is not expected to marshal the records
with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima
facie.
27. If the litmus test of the judgment in Amit Kapoor
(supra) is applied in the factual matrix of the present
matter, it cannot be said that the court below has
committed any legal error in taking cognizance of the
matter. Thus, no interference is required by this Court at
this stage.
28. In view of foregoing analysis, I find no reason to
interfere in this petition. Petition fails and is hereby
dismissed. Registry is directed to carefully keep the
compilation dated 28.9.2015 on record.
(Sujoy Paul)
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