Dr.R.L. Monga & another vs State of Haryana & Ors

CRM-M_33556_2012_06_09_2014_FINAL_ORDER

IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CRM-M-33556-2012 (O&M)
Date of decision : 06.09.2014
Dr.R.L. Monga & another
……Petitioner (s)
Versus
State of Haryana & Ors.
….Respondent (s)
CORAM: HON’BLE MS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of the local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ? Yes
Argued by: Mr. R.S. Rai, Senior Advocate with
Mr.Dilprreet Singh, Advocate for petitioners.
Mr.G.S. Sandhu, AAG, Haryana.
****
ANITA CHAUDHRY, J.
This is a petition under Section 482 Cr.P.C. seeking
quashing of the complaint and the summoning order passed by the Chief
Judicial Magistrate, Faridabad in a complaint filed under Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 (here-in-after referred as PNDT Act).
2- Few facts which have been given rise to the complaint may
CRM-M-33556-2012 (O&M) -2-
now be noticed:-
3- A complaint under the PNDT Act was filed by the State
through the Civil Surgeon, Faridabad containing allegations that M/s
Moga Nursing Home in Faridabad was registered ultrasound centre and
they had got themselves registered upto 17.9.2006. The registration was
subsequently renewed upto 17.9.2011. This Nursing Home was inspected
by a team headed by the Civil Surgeon and others on 12.5.2012 and
certain contraventions were noticed, the registration of the ultrasound
centre had expired, no records were being maintained with respect to the
Nursing Home or the ultrasound centre which was required under the Act
and the Rules and lastly that no correspondence or reporting was being
done by the Nursing Home to the District appropriate authority. After the
inspection, the ultrasound machine was sealed. Subsequently a show
cause notice under Section 20(1) of the PNDT Act was given to the
petitioners to explain as to why the registration of the ultrasound clinic
should not be cancelled. Reply to the show cause notice was sent by the
petitioner. Thereafter, a personal hearing was accorded. Subsequently, a
complaint was filed where reference to the inspection, findings, notice
and the reply was made. It referred to the over all decrease of females in
Haryana and that the sex ratio in Haryana had declined from 820 females
per 1000 males in the year 2001 as compared to the census of 1991 where
the ratio was 879 as to 1000. Allegations were levelled that the accused
had contravened the following provisions of the PNDT Act.
1) Section 6 (a), 6 (b) and 6 (c) of the Act, punishable under
Section 23 read with Section 22 and 25 of the Act,
CRM-M-33556-2012 (O&M) -3-
2) Section 5(1) and 5(2) of the Act read with Rule 10 under PNDT
Rules 1996 punishable under Section 23 read read with Section
22 and 25 of the Act,
3) Section 4(1), 4(2), 4(3) of the Act punishable under Section 23
read with Section 22 and 25 of the Act,
4) Section 29 read with Rule 9 and 10 under PNDT Rules and is
punishable under Section 23 read with Section 22 and 25 of the
Act.
4- In the end, it was stated that the complainant was
competent to lodge a complaint under Section 28(1)(a) of the PNDT Act
and prayed for summoning of the accused.
5- The trial Court passed the following summoning order:
“Complaint presented today. It be checked and
registered. Since the complainant is a public servant and has
filed the present complaint in discharge of his official duty,
recording the statement of accused dispensed with. From the
perusal of documents on record and after hearing the counsel
for complainant, a prima facie case under Section 28 of PNDT
Act is made out against the accused. Therefore, accused be
summoned for 26.10.2012.
At this stage, an application seeking exemption from
personal appearance on behalf of complainant also moved.
Heard. Since the complainant is a public servant and has to
discharge multifarious duties, therefore, personal appearance
of complainant is dispenses with and his counsel shall appear
in the Court on each and every date of hearing.”
6- While issuing notice in this petition, the trial Court was
directed to adjourn the case beyond the date fixed and the case is being
adjourned and the trial could not commence.
7- Reply was filed by the State wherein they pleaded that
CRM-M-33556-2012 (O&M) -4-
petition was an abuse of process of law and the petitioner had been
summoned under various sections referred in their petition and the
petition had been filed to delay the appearance in the Court. It is pleaded
that the case was being adjourned by the C.J.M. for awaiting orders of the
Court and the proceedings had been stayed. It was pleaded that the
petitioner had not got the licence renewed after 17.09.2011 and the
Nursing Home was being run without renewal. Respondents had referred
to the findings recorded during inspection and sealing of the ultrasound
machine. It was pleaded that show cause notice was given and reply was
considered and, thereafter, a complaint was filed. It was pleaded that from
the facts and circumstances, it was evident that the accused were
indulging in performing ultrasonography on pregnant mothers and
purposely they were not maintaining the record and the complaint could
not be quashed at the threshold and as it was a case of violation of the
Act, the issues were to be examined by the trial Court after a trial.
8- I have heard both the sides.
9- It was contended on behalf of the petitioners that the
allegations made by the complainant were that the licence had not been
renewed but they had sent their response vide Annexure P-5 and had
requested for renewal of the registration and had also given the reason
why they could not apply in time and it was on account of marriage of
their daughter and no complaint could have been filed and the
complainant has levelled allegations which did not find mention in the
inspection note. It was submitted that there was no material to support
CRM-M-33556-2012 (O&M) -5-
the allegations made in the complaint. It was urged that no decoy
customer was sent, therefore, provisions of Section 28 of PNDT Act was
not attracted and it was a case of non-application of mind. It was urged
that when a licence has been applied for and it is not rejected then it is a
case of deemed renewal and no presumption can be raised against the
petitioners that they were carrying sex determination test in the clinic.
10- On the other hand it was contended that the petition for
quashing was not maintainable as there are allegations and the
requirement of law and rules is that they must apply for renewal before
expiry and they were required to maintain record at the ultrasound centre
and Nursing Home was not reporting the cases to the District appropriate
authority and it was a case of violation and the question whether there
can be any presumption against the accused is for the Court to decide
after the evidence is led. It was urged that by inadvertence, the C.J.M.
had referred to Section 28 of the PNDT Act and that is the Section under
which a complaint can be filed but the body of the complaint refers to the
various sections which had been violated but that would not be a ground
to set aside the order.
11- The petitioner is seeking quashing of the complaint on
the plea that the complaint did not disclose any offence. The main plank
of the argument is that the complainant did not refer to any material to
show that pre-natal tests were being conducted and the ultrasound
machines were being used for the illegal act.
12- The petitioners could not have been mislead as the
CRM-M-33556-2012 (O&M) -6-
section mentioned in the summoning order had been wrongly mentioned.
The body of the complaint refers to the sections under which the accused
were being summoned. The petitioners have the copy of the complaint
with them and they are aware of the provisions which they are said to
have violated.
13- It has not been disputed that the petitioner did not have
any licence when the premises were inspected. The old licence had
expired on 17.9.2011.
14- In State of Haryana Vs. Bhajan Lal AIR 1992 (SC) 604,
the Hon’ble Apex Court had examined the powers of the Court for
quashing the complaints and the FIRs and had held that the purpose for
exercising the power under Section 482 Cr.P.C. to quash the FIR or a
complaint, the High Court had to proceed on the basis of the allegations
made in the complaint and that it had no jurisdiction to examine the
correctness and otherwise of the allegations. After going through the
relevant provisions of the Code of Criminal Procedure as well as a series
of decision relating to the exercise of the extra ordinary power under
Section 226 and the inherent powers under Section 482 Cr.P.C., it laid the
following principles:
1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
CRM-M-33556-2012 (O&M) -7-
cognizable offence, justifying an investigation by police officers
under Section 156 (1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
3) Where the uncontroverted allegations made in the F.I.R. or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
4) Where the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a Police Officer
without an order of a Magistrate as contemplated under S. 155
(2) of the Code.
5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.”
15- In Lakhwant Singh Vs. Jasbir Singh & Ors. Criminal
Appeal No. 281 of 2003 decided on 16.09.2008, Hon’ble Apex Court had
held that exercise of power under Section 482 Cr.P.C. was an exception
and not the rule. It was held that it saves the inherent power which the
CRM-M-33556-2012 (O&M) -8-
Court possessed before the enactment of the Code.
16- The three circumstances under which the inherent
jurisdiction can be exercised, under Section 482 Cr.P.C. are (i) to give
effect to an order under the Code, (ii) to prevent abuse of the process of
court, and (iii) to otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. While exercising powers
under the Section, the Court does not function as a court of appeal or
revision. Inherent jurisdiction under the Section though wide has to be
exercised sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the Section
itself. It is to be exercised ex debito justitiae to do real and substantial
justice for the administration of which alone the courts exist. In exercise
of the powers the Court would be justified to quash any proceeding
if it finds that initiation/ continuance of it amounts to abuse of the
process of court or quashing of these proceedings would otherwise serve
the ends of justice. When no offence is disclosed by the complaint, the
court may examine the question of fact. When a complaint is sought to be
quashed, it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out even if the
allegations are accepted in toto. In R.P. Kapur v. State of Punjab AIR
1960 SC 866, Hon’ble Apex Court summarized some categories of cases
where inherent power can and should be exercised to quash the
proceedings.
CRM-M-33556-2012 (O&M) -9-
i. where it manifestly appears that there is a legal bar against
the institution or continuance e.g. want of sanction;
ii. where the allegations in the first information report or
complaint taken at its face value and accepted in their
entirety do not constitute the offence alleged;
iii. where the allegations constitute an offence, but there is no
legal evidence adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
17- The powers under Section 482 Cr.P.C. are wide but have
to be exercised sparingly and with great caution. It is not proper for the
High Court to analyse the case in the light of probabilities. The
complaint cannot be said to be frivolous or vexatious. It discloses the
ingredients of an offence, therefore, there is no justification for
interference. It is the material which would come before the Court which
will decide the fate of the petitioners. The Court cannot quash a
complaint at the threshold when it discloses an offence. The powers
under Section 482 Cr.P.C. cannot be exercised in this case and the
inevitable conclusion is that there is no merit in the petition.
18- The petition is dismissed.
September 06, 2014. (ANITA CHAUDHRY)
sunil yadav JUDGE

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s