Dr. Kiran Garg vs State Of Punjab on 9 March, 2010

Criminal Misc. No. 26849-M of 2007

And

1 Criminal Misc. No. 30442-M of 2007

In the High Court of Punjab and Haryana, at Chandigarh.

1. Criminal Misc. No. 26849-M of 2007

Dr. Kiran Garg Petitioner Versus State of Punjab Respondent AND

 2. Criminal Misc. No. 30442-M of 2007 Dr. Kiran Garg Petitioner Versus State of Punjab Respondent

Date of Decision: 9.3.2010

CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.

Present: Mr. N.K. Joshi, Advocate for the petitioner. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) By this common order, Criminal Misc. No. 26849-M of 2007 and Criminal Misc. No. 30442-M of 2007 shall be decided together. In both the petitions, a prayer has been made for quashing of the complaint (Annexure P10) filed under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as “1994 Act”) for Criminal Misc. No. 26849-M of 2007 And 2 Criminal Misc. No. 30442-M of 2007 alleged violation of the provisions of Sections 3, 4, 5, 6 & 29 and Rule 9, 10 (1A), 17 and 18 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (Amended to- date) (hereinafter referred to as “1996 Rules”), pending in the Court of Judicial Magistrate Ist Class, Talwandi Sabo, District Bathinda. The petitioner is a qualified doctor possessing a Degree of M.B.B.S. And is running a Clinic called Garg Ultrasound Scan Center, Maur Mandi. On 6.5.2006, Dr. Sham Lal Thukral, Senior Medical Officer-cum-Sub District Appropriate Authority under the 1994 Act, inspected the premises of the petitioner and came to conclusion that the petitioner had not complied with the various provisions of the

1994 Act. On the inspection reports submitted by Dr. Sham Lal Thukral, the District Appropriate Authority had directed the Sub District Appropriate Authority under the 1994 Act, to launch prosecution against the petitioner by instituting a complaint (Annexure P10). A grievance of the petitioner is that she had filed an appeal against the decision of the District Appropriate Authority before the State Appellate Authority, Punjab under the 1994 Act, upon which a detailed order has been passed and the order of the District Appropriate Authority has been set aside. The order has been annexed as Annexure P8 with Criminal Misc. No. 26849-M of 2007. The State Appellate Authority further came to a conclusion that the complaint was instituted against the petitioner due to malafide conduct on the part of Dr. Sham Lal Thukral, the then Sub Divisional Appropriate Authority. In both the petitions, a two fold prayer has been made. The Criminal Misc. No.26849-M of 2007 And 3 Criminal Misc. No. 30442-M of 2007 first prayer is that the complaint filed against the petitioner should be quashed as the State Appellate Authority, on the same set of allegations, has come to a conclusion that the petitioner has not committed any breach of the provisions of the 1994 Act. Furthermore, it has been submitted that the Hon’ble Apex Court, had passed the following order dated 7.3.2007 and in compliance of the said order, petitioner had furnished an undertaking and therefore, she was allowed to use the ultrasound machine for conducting tests other than pre-natal sex determination tests:-“Heard the learned counsel for the parties. It appears that there is typographical error in our order dated 31st

January, 2007, which is substituted as follows:

Heard learned counsel for the parties.

In the facts and circumstances of the case we direct that the petitioner shall be permitted to use the ultra sound

machine for conducting tests other than pre-natal sex determination test and the machine shall be unsealed for

this purpose. The petitioner shall file an undertaking to this effect within four weeks from today.

With the aforesaid direction, the special leave petition is, accordingly, disposed of”. It is submitted that Sub

Divisional Appropriate Authority was creating obstructions in the operation of the machines. Criminal Misc.

No. 26849-M of 2007 And 4 Criminal Misc. No. 30442-M of 2007

After hearing learned counsel for the parties, this Court is of the view that the petitioner, at first instance,

should approach the trial Court by filing an application under Section 245 Cr.P.C. for her discharge on the

ground that on the same set of allegations, petitioner has been absolved by the State Appellate Authority. This

Court has formulated the above said view as the entire proceedings and the documents attached with the

complaint are not before the Court. Therefore, the trial Court will be in a better position to come to a

conclusion as to whether the allegations levelled in the complaint and the allegations for which the licence and

registration was cancelled are akin or not. Furthermore, the trial Court, in case, comes to a conclusion that the

allegations are similar, shall also pronounce its decision as to whether the petitioner can be absolved of penal

consequences in view of the opinion formulated by the regulatory body. Needless to say that the parties will

be at liberty to assail the decision of the trial Court in the higher Court. However, till the trial concludes, the

petitioner may operate the ultrasound machine strictly in consonance with the undertaking furnished in

pursuance of the order dated 7.3.2007 passed by the Hon’ble Apex Court. With the observations made above,

both the petitions are disposed of.

(Kanwaljit Singh Ahluwalia)

Judge

March 9, 2010

“DK”

 

 

Dr. Kiran Garg vs State Of Punjab on 9 March, 2010

Indian Kanoon – http://indiankanoon.org/doc/1315081/

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