Dr.R.D.Negi and another Vs The State of Haryana

Crl. Misc. No.26337 of 2010 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Decided on:   September 08, 2010.
Crl. Misc. No.26337 of 2010 (O&M).
Dr.R.D.Negi and another.
.. petitionerss
VERSUS
The State of Haryana.
. Respondent
***
CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI
PRESENT Mr.R.S.Rai, Sr., Advocate, with
Ms.Meenakshi Dogra, Advocate,
for the petitionerss.
    ***
M.M.S. BEDI, J.
Vide order dated 25.05.2009, Annexure P-2, the
petitioners have been discharged in a complaint under Section 28 of
the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (for short 'the PNDT Act').
The said order of discharge was challenged by the
State authorities before the Sessions Court. The said order was
. . . 1Crl. Misc. No.26337 of 2010 (O&M)
upheld with liberty to the State to file fresh complaint in accordance
with law vide order dated 16.09.2009. The order dated 16.09.2009,
has been challenged to the extent of giving liberty to the State
authorities to file a fresh complaint in accordance with law. The
matter is pending in the High Court in Crl. Misc. No.M-30024 of
2009. During the pendency of the said proceedings, the Judicial
Magistrate First Class, vide order dated 24.08.2009, on an
application of the petitioners ordered the release of the ultrasound
machine taken in possession during the course of proceeding under
the Act by passing the following order: -
“For the reasons recorded above, I am of the
opinion that the applicant is the person best entitled
to the possession of the Ultrasound machine in
question and therefore, the Ultrasound Machine
along with its necessary parts be de-sealed and
released in favour of the applicant. However, the
applicant is not to use the machine in violation of
any provision of law and same is to be used in
accordance with the law in force.”
The said authority not happy with the order, filed a
revision petition before the Additional Sessions Judge, Faridabad.
The Additional Sessions Judge Faridabad, has passed the following
order on 02.07.2010: -
“In the present matter, the order of discharge
dated 25.05.2009, has been upheld by this Court
with liberty to State to file a fresh complaint in
. . . 2Crl. Misc. No.26337 of 2010 (O&M)
accordance with law and the same has been filed
by the State. The proceeding before the trial Court
in the said complaint have been stayed by the
Hon'ble High Court. In view of these circumstances,
I do not find any justification to interfere with the
order dated 24.08.2009, at this stage. However,
keeping in view the fact that matter regarding
competence of appellant to file fresh complaint is
pending before the Hon'ble High Court, it is made
clear that in case the complaint is revised against
the respondent, the respondent shall surrender the
machine within fifteen days and seek fresh orders
from the learned trial Court. As noted in the order of
learned Magistrate, it is again made clear that the
ultrasound machine shall be used only in
accordance with the PNDT Act and rules.
The appeal is, therefore, disposed off in the
above stated terms. File be consigned to the
records.”
Counsel for the petitioners has contended that the
above said order passed by the Additional Sessions Judge, to some
extent give an indication that in case a fresh complaint is filed by the
competent authority on the same allegations, the petitioners will be
required to surrender machine and that the ultrasound machine was
to be used in accordance with the PNDT Act and rules.
The order has been challenged on the ground that
it farfetched order based upon a presumption that the machine
released to the petitioners would be used in violation of any provision
. . . 3Crl. Misc. No.26337 of 2010 (O&M)
of law. It is contended that the orders passed by the Magistrate,
were sufficient enough to caution the petitioners to use the machine.
I have heard the counsel for the petitioners and
carefully gone through the facts and circumstances of this case.
In compliance with the orders of the Additional
Sessions Judge, the District appropriate authority under the PNDT
Act, issued a notice to the petitionerss, Annexure P-7, dated
12.07.2010 which reads as follow: -
“Sub: Compliance of order dated 2.7.2010.
In compliance of the order dated
2.7.2010, passed by the Court of Shri Parmod
Goyal, Additional District Judge, Faridabad, we are
de-sealing the machine in question and as per the
observations of the Hon'ble Additional District
Judge, Shri Parmod Goyal, Faridabad, you are
directed to comply with the PNDT Act and rules
qua this machine as your licence/registration which
entitle you to use the machine has been
suspended by our office vide order
No.PNDT/FBD/2008/1443 dated 24.09.2008, and
the said order was confirmed by the State
Appropriate Authority-cum-Director General Health
Services under the PNDT Act.
Thus, you are hereby informed that the
machine in question shall remain in your
possession in a de-sealed condition till further
order and you shall not use the machine in
violations of the PC & PNDT Act. It is also stated
. . . 4Crl. Misc. No.26337 of 2010 (O&M)
that in the event of revival of the complaint filed by
us against you, you shall surrender the same with
immediate effect to our office.”
It is further contended that the order, Annexure P-7,
is also based upon a presumption by the District appropriate
authority under the PNDT Act, that the petitioners had been using
the machine in violation of the PNDT Act or that they would use the
same in violation of the provisions of the PNDT Act. The said
presumption is prejudicial to the petitioners and is unwarranted by
any other circumstances especially when the petitioners stand
discharged in the complaint filed.
I have heard the counsel for the petitioners and
gone through the facts and circumstances of the case.
The order passed by the Judicial Magistrate First
Class, dated 24.08.2009, ordering the de-sealing of the ultrasound
machine and handing over of the same is good enough to caution
the petitioners not to use the machine in violation of any provisions
of law and to use the same in accordance with the law in force. Any
further directions passed in appeal under Section 454 Cr.P.C., by the
Additional Sessions Judge, was uncalled for.
This petition is disposed of with an observation that
the direction issued by the Judicial Magistrate First Class, vide order
dated 24.08.2009, will be binding on the petitioners and the
possession of the machine with the petitioners will be subject to the
final decision of the High Court in pending revision petition and any
. . . 5Crl. Misc. No.26337 of 2010 (O&M)
directions issued by the High Court in Crl. Misc. No.M-30024 of
2009, if any.
Disposed of with above said clarification.
(M.M.S.BEDI)
JUDGE
September 08, 2010.
rka
. . . 6
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