Urvashi Fakay & Dr. Sunil Fakay vs State & Beti Bachao Samiti




1. CR No. 4/2014 Urvashi Fakay W/o Dr. Sunil Fakay R/o Lower Parganu P. O. Bhunter, Distt.: Kullu, H. P.

2. CR No. 5/2014 Dr. Sunil Fakay S/o Dr. Y. C. Fakay R/o Lower Parganu P. O. Bhunter, Distt.: Kullu, H. P.                                …… Revisionists


1. State 2. Beti Bachao Samiti 123, Kharkhari Nahar, Najafgarh, New Delhi (through its Secretary Sh. Subhash Kumar Sharma)  …….. Respondents 02.07.2014

O R D E R: Present:

Sh. Satya Prakash and Sh. Amit Rathore, Advocates for the revisionists.

Addl. PP for the State with Sh. Mohit Aggarwal, Advocate, proxy for Sh. Pradeep Rana, Advocate for the Respondent.

  1. Vide this combined order, I propose to dispose off both the above revisions petitions filed against the impugned (combined) order of Ld. CMM dated   25.11.2013   disposing   off   the   applications   filed   by   the   revisionists Urvashi Fakay and Dr. Sunil Fakay under Section 210 Cr.PC and 239 Cr.PC.
  2. Brief facts necessary for disposal of the revision petitions are that a Non­Government Origination namely Beti Bachao Samiti (herein after ‘Samiti’) filed complaint dated 07.07.2010 before the Deputy Commissioner North West   District   being   appropriate   authority   under   the   provisions   of Prenatal Diagnostic Techniques (regulations and prevention of misuse) Act (in short PNDT Act) and Medical Termination of Pregnancy Act against the accused. The said complaint culminated into registration of FIR No. 228/10 dated 17.08.2010 at Police Station Ashok Vihar. Simultaneously, the above said Samiti filed a separate complaint vide CC No. 725/1/10 before the CMM on the same set of facts on 30.07.2010.
  3. In the above mentioned State case, a chargesheet under Section 23 of PNDT Act  [should be The Pre­conception and Pre natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994, in short ‘The PC & PNDT Act’] was filed on 26.10.2012 and ultimately cognizance was taken by the   Ld.  Magistrate vide order  dated  11.01.2013  and   the  accused persons namely Dr. Sunil Fakey and Dr. Urvashi Fakey were summoned.  While on the other hand, the complaint case vide CC No. 725/1/10 was taken up for consideration on 02.08.2010 and vide order dated 17.08.2010, the same was .fixed for pre-summoning evidence of the complainant.
  4. Initially both the complaints were going on separately but later on pointing out by the court both the complainants were connected and from the subsequent   dates   both   were   taken   up   simultaneously.   Thereafter,  an application for discharge was filed on behalf of the accused in the State case on   various   grounds   both   legal   and   technical. It was alleged that the prosecution has not been initiated as per provisions of the PC & PNDT Act as described in Section 28 of the said Act and the cognizance could only be taken for the said offence under Section 23 of the PC & PNDT Act on a complaint filed by the appropriate authority or any other person mentioned in Section 28 of PNDT Act but since there was no such complaint at the time of cognizance, the cognizance taken was bad in law.
  5. Reference was also made to the provisions of Section 28 of PC & PNDT Act and Section 210 of Cr.PC and in the light of the authorities relied upon by the Ld. Counsels, Ld. CMM disposed off the said applications while observing that the case bearing FIR No. 228/10 stands merged / clubbed with the complaint case No. 725/1/1­ and cognizance was stated to be taken on 17.8.2010 and the revisionists before this court shall be treated to have been summoned   vide   order   dated   11.01.2013   and   the   case   would   henceforth proceed as warrant trial case like complaint case under Section 23 of the PC & PNDT Act.   It was also observed that since the complainant was not a public   servant,   the   matter   shall   be   proceeded   after   recording   pre­charge evidence and hence the question of discharging the accused at this stage does not arise.
  6. Now the aforesaid impugned order has been challenged by the revisionists   before   this   court   on   various   grounds   which   are   not   being repeated here for the sake of brevity.   It is alleged that the judgments so relied upon by the Ld. CMM in the case of C. Muniappan & Ors. Vs. State of Tamil Nadu reported in 2010 (9) SCC 567, Purshottam Jethanand Vs. State of Kutch reported in AIR 1954 SC 700 and Court of its Own Motion Vs. State & Others, reported in 2012 (3) JCC 1743, are bad in law as the said law would not apply to the facts of the present case when the procedures are specially provided under the special law.  It is also argued that the reliance of the Ld. CMM on the judgment of Sellamuthu and Senthil Kumar Vs. State by   the   Inspector   of   Police,   reported   in  2012   (1)   RCR   (Cril.)   185,   is unfounded.  It is argued that the the trial which is being conducted before the Ld. CMM is without jurisdiction ab­nitio as the complaint is itself by a person not duly authorized.
  7. No reply to the revision petitions are filed by the respondents before this court and they have preferred to argue on the grounds raised.
  8. I have considered the rival contentions and the submissions made before me.   I have also gone through the Trial Court record and also the relevant provisions of the PNDT Act and Cr.PC.  At the very outset, I may observe that in so far as the provisions of  Section 28 of PNDT Act  is concerned, it provides for the modes in which the complaint has to be filed pursuant to which the cognizance can be taken by a court, which provisions are as under :

Section 28 of PNDT act:­Cognizance of offences:­

  1. No court shall take cognizance of an offence under this Act except on a complaint made by ­:

i.    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

ii.    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 this court.

  1. No   court   other   than   that   of   a   Metropolitan Magistrate or a judicial Magistrate of the first class shall try and offence punishable under this Act.
  2. 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.
  1. Now coming to the provisions of  Section 210 of Cr.P.C, which provides as under:

i.    When in a case instituted otherwise than on a police   report   (hereinafter   referred   to   as   a complaint   case),   it   is   made   to   appear   to   the Magistrate, during the course of the inquiry or trial held by him that an investigation by the police is in progress   in   relation   to   the   offence   which   is   the subject­ matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

ii.    If a report is made by the investigation police officer   under   section   173   and   on   such   report cognizance   of   any   offence   is   taken   by   the Magistrate against any person who is an accused in the   complaint   case,   the   Magistrate   shall   inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

iii.    If   the   police   report   does   not   relate   to   any accused in the complaint case or if the Magistrate does   not   take   cognizance   of   any   offence   on   the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

  1. Ld. CMM while disposing off the various objections raised on behalf of the revisionists vide order dated 25.11.2013 has elaborately dealt with the issues raised before him which issues have also now been agitated before me and I reproduce the relevant portion of the order of the Ld. CMM as under:

“……….   It   is   basic   argument   of   the   counsel   for accused that since cognizance in case FIR No. 228/10 has been taken only on a police report, no charges can be framed. On the other hand, it is argued on behalf   of   complainant   and   the   State   that   objection taken   by   accused   is   technical   in   nature   and   since complaint   case   filed   by   competent   person   as   per section 28 of the PC & PNDT Act was already there before the date of cognizance in State case, both the cases may be clubbed and charges may be framed accordingly. During course of arguments, a reference  has been   made   to   five   judgments   of   different   superior courts, which are being discussed herein for better appreciation of the issue before us.

  1. The first judgment of Hon’ble Supreme Court in C. Munniappan Case (supra) deals  with a situation  in which cognizance was taken and charge was framed by the magistrate u/s 188 IPC in absence of a complaint made by a public   servant   as   per   requirement   of   section   195 Cr.P.C.   It   has   been   observed   by   Hon’ble   Supreme Court that it was not permissible for the trial court to frame a charge.   However, it was also observed that the court was not agreed with the submissions that absence of a complaint u/s 195 Cr.P.C falsified the genesis of the prosecution case or that it was fatal for the entire prosecution case.
  2. In its second judgment in State of Bihar vs. Murad Ali referred above, while discussing the scope of section 210 Cr.P.C, it has been observed by Hon’ble Supreme Court that where cognizance can be taken only   in   one   way   and   that   on   the   complaint   of   a particular statutory functionary, there was no scope or occasion for taking cognizance more than once and accordingly section 210 Cr.P.C had no role to play.
  3. The third judgment referred before me is judgment of Hon’ble Punjab and Haryana High Court in   Preetinder   Kaur’s   case   (supra).   In   the   said judgment Hon’ble High Court has discussed the issue as to who can file a complaint in terms of section 28 of the PNDT act. The fourth judgment is judgment of Hon’ble Delhi High Court in 2012 (6) LRC 312 (Delhi). In the said case cognizance was taken by the magistrate in respect of offence u/s 186 IPC on a police report and not on the   complaint which was  already  there on record. The trial court was directed to reconsider the order   of   cognizance   for   offence   u/s   186   IPC   and rectify the same.
  4. The last judgment is the judgment of Hon’ble High Court of Madras in 2012 (1) RCR (CRL) 185.  In the said judgment while dealing with legality of the order   regarding   taking   of   cognizance,   it   has   been observed   in  reference   to  the   different   judgments   of Hon’ble Supreme Court that if the law is, pure and simple,   one   dealing   with   procedure   regulating   the trial of the case, unless it is shown to the court that by the violation of the said procedure, prejudice has been caused or prejudice is imminent, it can not be held that there is violation of article 21 of the Constitution. With   a   reference   to   judgment   of   Hon’ble   Supreme Court in AIR 1954 SC 700, it was observed by the Hon’ble High Court that though as on the date when cognizance   was   taken   on   the   police   report,   the magistrate was not empowered to take cognizance on such police reports, such irregularity shall not vitiate the entire proceedings.

If facts of present case are analyzed in light of the ratio of the above referred judgments, few things shall emerge.  The complainant Beti Bachao Samiti filed different complaints with different authorities including the complaint dt. 07.07.2010 addressed to Deputy Commissioner North­West   District being appropriate authority. In the said complaint, request was made to file a complaint before the magistrate in terms of section 28 of the PNDT Act. In the said complaint, the complainant made it clear that the same be treated as their intention to take appropriate action   against   the   above   named   culprits   in accordance with provisions of law.   It is also clear from the endorsement on the said complaint that the said   complaint   was   received   in   the   office   of appropriate authority on 07.07.2010 itself. The present FIR has been registered on 17.08.2010.   Clearly, no FIR was registered within 15 days of the filing of said complaint by the complainant  with  the  appropriate authority.

In terms of section 28 (1) clause (b), the complainant   had   become   competent   to   file   a complaint after expiry of 15 days after 07.07.2010. The   complainant   filed   a   complaint   vide   CC   No. 725/1/10 before CMM on 30.07.2010 on the same set of   facts   as   described   in   complaint   dt.   07.07.2010. Copies   of   all   the   relevant   complainants   including complaint dt. 07.07.2010 is also available on record of said complaint case. It is clear that said complaint has   been   filed   by   a   competent   person   in   terms   of section 28 of PNDT Act.  The   present   dispute   regarding   illegality   or irregularity of the cognizance has arisen due to the reason   that   both   the   State   case   as   well   as   the complaint   case   were   going   on   two   separate   tracks though before the same court. The FIR was registered on 17.08.2010 and charge­sheet was filed by the police on   26.10.2012.   By   that   time,   the   complaint   case remained   fixed   for   pre­summoning   evidence   from 17.08.2010 to 30.03.2013 when CE was closed.  It was only on 20.05.2013 when both the matters were taken up   simultaneously   by   this   court.   Clearly,   the complaint case was not before the Ld. Predecessor on 11.01.2013 when cognizance in the State case was taken but a complaint filed by the competent person was very much pending before this court.  It has been observed   by   Hon’ble   Supreme   Court   as   discussed above   that  taking   of   cognizance   in   absence   of   a complaint can be taken only as  irregularity and the whole   prosecution   does   not   vitiate.  If   the   ratio   of judgment of Hon’ble Delhi High Court in 2012 (6) LRC   312   (DL)   is   applied   to   the   facts   and circumstances of case, it can be said that cognizance should have been taken on the complaint case and not on   the   State   case   in   isolation   but   this   could   not happen as both the cases were not put before the MM on 11.01.2013.  So far as complaint case is concerned, the same was fixed for pre­summoning evidence vide order dt. 17.08.2010  and impliedly cognizance was taken by the court in the complaint case  also on 17.08.2010.  Now, since, cognizance had already been taken in the complaint case vide order dt. 17.08.2010, the summoning order dt.11.01.2013  can be read in reference to the said order dt. 17.08.2010 for the sake of meeting the ends of justice. It is well settled law that technicalities of law must not come in the way of substantive justice as laid down by different superior courts from time to time. It is not the case that there was  no complaint before  the  court    at the  time  of taking cognizance in State case, rather there was a duly filed complaint case pending before the court on same set of facts and if the said complaint case was brought to the notice of court at that time, appropriate order   could   have   been   passed   after   taking   into consideration both the matters. The irregularity in the order dt. 11.01.2013 due to   absence   of   complaint   before   the   court   for   the purpose   of   taking  cognizance   is   a   curable   defect. While referring to judgment of Hon’ble Delhi High Court in 2012 (6) LRC 312 (DL), the ld.  Counsel for accused has himself submitted that such a defect is curable defect and the same can be rectified by calling a complaint from the competent person, however he further submitted that this defect can not be cured in the present case due to bar of limitation as a period of more than three years has already lapsed and if a fresh complaint is called in terms of section 28 of PNDT  act  the  same  would  be  time  barred.  In   this regard, it is to be observed, as discussed earlier also, that a complaint filed by a competent person as per provisions   of   section   28   of   PNDT   Act   is   already pending before this court.   Not only a complaint is there since the year 2010, cognizance has also been taken   in   the   said   complaint   case   in   the   year   2010 itself.  If the complaint case is merged with the state case, there would be no question of bar of limitation. Such merger/clubbing shall not be u/s 210 Cr.P.C as it is not a case where the investigation was pending at the time when the matter was brought to the notice of court   as   contemplated   in   section   210   Cr.P.C. Moreover,   the   Hon’ble   Supreme   Court   has   also categorically observed in State of Bihar vs. Murad Ali (supra) that where cognizance can be taken only in one way i.e on the complaint of a particular statutory functionary then section 210 Cr.P.C has no role to play.   Such   merger/clubbing   will   be   covered   by   the provisions   of   section   202   Cr.P.C   which   deals   with inquiry / investigation by police before issuance of process / summons in a complaint case.   The final report filed by IO in FIR No. 228/10 shall become part of the complaint case as an inquiry report within the ambit of section 202 Cr.P.C as pre­summoning evidence was already complete on the date of filing of the said final report and no other witness has been examined   by   the   complainant   thereafter   till 30.03.2013   when   the   pre­summoning   evidence   was formally closed.   The cognizance on the allegation leveled by the complainant, both in the complaint dt. 07.07.2010 sent to the appropriate authority and the complaint filed before the CMM shall relate back to 17.08.2010 when the complaint case was fixed for pre­summoning evidence. Similarly, the summoning order dt. 11.01.2013 which has been infact passed in state case  would also  be  treated  as  a  summoning order in the complaint case and no separate or fresh summoning order is required. The present act i.e PC & PNDT Act has been enacted   with   an   object   to   prohibit   the   pre­natal diagnostic techniques for sex determination of foetus so that the menace of female foeticide can be curbed. To meet the objective behind the enactment of said law, the technicalities must not come in the way of its implementation   and   the   objectives   must   not   be defeated on technical grounds. In my opinion, if both the   matters   are   proceeded   further   as   per   above mentioned arrangement then there is no likelyhood of causing any prejudice to any of the parties or failure of justice in any sense. In view of above discussion, it is ordered that the state case vide FIR No. 228/10 P.S. Ashok Vihar stands   merged/clubbed   with   complaint   case   no. 725/1/10.   The   cognizance   shall   be   treated   to   have been taken on 17.08.2010 and accused persons shall be   treated   to   have   been   summoned   vide   order   dt. 11.01.2013. Since, only the offences under The PC & PNDT Act are involved, the above mentioned matters shall now be proceeded further as a warrant trial case instituted otherwise than on a police report i.e like a complaint case u/s 23 of the PC & PNDT Act. Since, the complainant is not a public servant the matter shall be proceeded   after   recording   pre­charge evidence.   Since,   pre­charge   evidence   is   yet   to   be recorded,   there   does   not   arise   any   question   of discharging the accused at this stage.”

  1. The expression ‘Cognizance’ merely means ‘become aware of’ and when used with reference to a Court or a Judge, it connotes ‘to take notice of judicially’.   It indicates the point when a Court or a Magistrate takes judicial notice of an  offence with a view to initiate proceedings  in respect of such offences said to have been committed by someone [S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. reported in 2008 Crl.L.J. 1636 (1639) SC].
  2. Before it can be said that any Magistrate has taken cognizance of an offence under Section 190 (1) (a) Cr.P.C. he must not only have applied his mind to the contents of the petition, but he must have done so for the purposes of proceeding in a particular way as indicated in the subsequent provisions of Chapter proceeding under Section 202 Cr.P.C. and thereafter sending it for inquiry and report under Section 202.  [R.R. Chari Vs. State of UP reported in  AIE 1951  SC 207;  Jamuna Singh  Vs.  Bhadai  Sah reported in AIR 1964 SC 1541 and Devarapalli Lakshminarayana Reddy Vs. Narayana Reddy reported in AIR 1976 SC 1672].
  3. I may further observe that initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the Section 190 (1) Cr.P.C. as under:
    1. in respect of non­cognizable offences on the complaint of an aggrieved person;
    2. on the police report in the case of a cognizable offence when the Police have completed their investigation and come to the Magistrate for the issue of a process;
    3. when the Magistrate himself takes notice of an offence and issues the process.
  4. Hence, it is writ large that the moment the Court of Ld. MM receives a complaint and applies his mind to the same and decide to proceed in   a   particular   manner   as   provided   under   Section   200   Cr.P.C.   or   under Section 202 Cr.P.C. he is deemed to have taken the cognizance, for the ball is in the Court of Law and then it is solely for the Court of Law to proceed in the manner prescribed under law.  I may observe that cognizance is always taken of the offence and not of the complaint or the offender as is being argued, Even if there are multiple complaints or reports before the Court as regards   the   same   offence,   the   date   on   which   the   Competent   Court   first applies its mind to proceed in a particular way as indicated in the subsequent provisions of Chapters XIV and XV of Cr.P.C. he is deemed to have taken cognizance.
  5. A   court   on   perusal   of   complaint   if   satisfied   that   complaint discloses commission of offence and proceeds further is deemed to have taken cognizance and the words ‘ cognizance taken, need not be mentioned in the order.  In this regard the Hon’ble Supreme Court in the case of CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd.  reported in  AIR 2005 Supreme Court 4284 observed as under: “………. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence.  That words ‘cognizance taken’ are not found in the order would not make any difference. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the  Magistrate  peruses  the  complaint  with  a  view  to ascertain   whether   the   commission   of   any   offence   is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out   for   issuance   of   process   and   it   may   reject   the complaint. It any also be that having considered the complaint,   the   Court   may   consider   it   appropriate   to send the complaint to police for investigation under S. 156(3) of the Code. There may be situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance   of   the   offence   alleged   to   have   been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry……”
  6. It is writ large from the aforesaid that the Ld. CMM has based his observations on the basis of sound judicial reasoning. The provisions of Section   28   of   PNDT   Act   provide   for   two   modes   of   complaint  first  by appropriate authority concerned or any other officer authorized on behalf of the Government  and  second  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 complain to the court.
  7. In the present case the complainant in terms of the provisions of Section   28  of   PNDT   Act   had   written   to   the   appropriate   authority   (i.e. Deputy Commissioner ­NW) under the PNDT Act on  7.7.2010  specifically stating and making clear his intentions of taking action against the culprits. After this complaint was received by the appropriate authority an FIR was registered against the revisionist on 17.8.2010 which was much after 15 days of the complaint being written to the appropriate authority and hence in terms of the provisions of Section 28 (1) (b) and the complainant filed the complaint in the Court on 30.7.2010  which he was competent to do under law [Section 28 (1) (b)] after 15 days of  7.7.2010.   While this case was already pending for pre­summoning evidence which means that cognizance on complaint had been taken, the charge sheet in the FIR registered on 17.8.2010 was filed and the Ld. MM being unaware that the charge sheet related   to   the   same   complaint   which   was   pending   before   him   for   pre­ summoning evidence, took cognizance of the offences invoked in the same.
  8. In the present case, the initial cognizance taken by the Ld. CMM was on a complaint under Section 28 (1) (b) and later the police complaint was also filed.   Where then is the illegality? Technically and legally any illegality committed stands cured by the subsequent police complaint which is on the basis of the complaint by the competent authority and I find no illegality in the findings of the Ld. CMM vide order dated 11.01.2013.  The Ld. CMM has observed that the irregularity in the order dated  11.01.2013 due  to absence  of complaint before  the  court  for the  purpose  of  taking cognizance is a curable defect and can be rectified by calling a complaint from   the   competent   person.   The  cognizance  i.e.   notice   of   the   offence allegedly committed by the revisionists was taken judicially by the Ld. MM in the year 2010 on the said complaint filed by the complainant before the Ld. MM when the Ld. Magistrate decided to proceed further and listed the case for pre­summoning evidence and hence in this background the question of limitation does not arise. It is settled law that the merger/ clubbing of a complaint filed in the Court and the final Report by the police would be covered   by   the   provisions   of  Section   202   Cr.PC  which   deals   with   the inquiry by the police before issuance of summons in the complaint case and hence   under   the   given   circumstances   the   final   report   filed   by   the Investigating Officer becomes a part of the complaint case as an Inquiry Report as contemplated under the provisions of Section 202 Cr.PC. I find no illegality   in   the   order   of   the   Ld.   Trial   Court   holding   that   since   pre­ summoning   evidence   has   been   completed   and   no   other   evidence   being summoned   by   the   complainant   till  30.3.2013  when   the   pre­summoning evidence was formally closed, the case in hand was to be treated as Warrant Trial case wherein the pre­charge evidence is yet to be recorded.
  9. I may observe that as a part of the National Policy, this court is required to come down heavily on those involved into illegal acts relating to female feticide.  These acts relating to female feticide are committed in strict secrecy wherein both the wrong doers i.e. family including the women who indulge into female fetus and the doctors have joint interests in maintaining secrecy.  Where then can be a question of direct evidence?  In the present case Respondent No. 2 i.e. the NGO Beti Bachao Samiti had carried out sting operation CD of which is already on record.   Whether the contents of the complaint and of the CD are correct or not and what is the evidentiary value which may be attached to the same and its authenticity, are issues which are yet to be adjudicated upon by the Ld. Trial Court.  This court cannot and will not take a hyper­technical view so as to come in the way of bringing the wrong doers to book.  Merely because the competent authorities choose to look the other way or are not diligent in doing what they ought to be doing in the matter, it does not mean that the benefit of the same should go to the accused.
  10. If we look at the figures of sex ratio in India, according to the 2011 Census, the number of girls stands at 940 which is a marginal increase from 933 in 2001. Haryana has the lowest sex ratio among the states while Kerala remains at the top with the highest sex ratio. In the national capital Delhi, the statistics stand at 821 girls against 1000 boys in 2001 compared to 866  in  2011. According to the statistics, nearly  10 million  female foetuses have been aborted in the country over the past two decades. Of the  12 million girls born in India, one million do not see their first birthdays. As a result of this human trafficking has become common in various states of India where teenage girls are being sold for cheap money by poor families, being treated as sex objects with more than half of such cases go unreported.
  11. The United Nations’ World Population Fund indicated that India   has   one   of the highest sex imbalances in the world and the demographers warn that there will be a shortage of brides in the next 20 years because of the adverse juvenile sex ratio, combined with an overall decline in fertility.  With the advent of technology, ultrasound techniques gained widespread use in India during the 1990s which resulted in the fetal sex determination and sex selective abortion by medical professionals. Is it not that when a female child is aborted after sex determination, it is the Doctor whose aim is to save the lives of people, who connives in this illegal act only for earning a few extra bucks? There are thousands of such clinics where such illegal activities of Sex Determination and Abortions are carried out on a daily basis and in some cases, in connivance with politicians, police and other local authorities and it is because of this connivance that the role of Non Government Organizations working in the area becomes significant.
  12. In the present case, it is the Respondent No.2 NGO by the name of Beti Bachao Samiti who had gone to public to expose the illegalities allegedly committed by the Revisionists, there is no reason to prima facie suspect their intent, particularly those of the NGOs who are involved in the national campaign against female feticide and fall in the category of Whistle Blowers who have to be suitably protected.  Clinics providing for pre­natal diagnosis   and sex determination flourish in connivance of local administration,police and other concerned authority only because those who are entrusted with the duty of taking action, chose to look the other way. This is a harsh Social and National reality and the Court of Law cannot shut its eyes to the same. This Court will not adopt an interpretation of law which defeats the object which this Special Act (PNDT Act) seeks to attain.  Courts have to exercise a Zero tolerance for those primafacie involved in the crime of   female feticide. The complaint filed by S.K. Sharma is the initial complaint and the complaint filed by the revisionists against him is much subsequent and possibility of this being a counter blast and pre­emptive move cannot be ruled out and at present it will not be proper to draw any inferences on the same.
  13. Hence, under the given circumstances and keeping in view the totality of the circumstances, I find no ground to intervene.The revision petitions filed by the revisionists namely Urvashi Fakay and Dr. Sunil Fakay are hereby dismissed. Trial Court Record be sent back along with copy of this order.
  14. Revision files be consigned to Record Room. Announced in the open Court

(Dr. KAMINI LAU)                 Dated: 02.07.2014



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