Dr. Ashish Singhal Vs. State of Rajasthan & Anr

judfile

S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
Date of Order : 04th December, 2014
HON’BLE MR. JUSTICE M.N.BHANDARI
Mr.Vijay Choudhary, for the petitioner/s.
Mr.G.S.Gill, Additional Advocate General with Mr.H.C.Kandpal.
Mr.Sudesh Saini, Public Prosecutor.
REPORTABLE :
By the Court:
By this criminal misc. petition, a challenge is made to
the order dated 19th January, 2013 framing charges so as the
order dated 28th June, 2013, dismissing the revision petition filed
by the petitioner.
Learned counsel submits that inspection so as the
filing of complaint is not by the appropriate authority, thus was not
maintainable. As per Section 17 (4)(c) of Pre-conceptional & Prenatal
Diagnostic Techniques Act, 1994 (for short “Act of
1994”), an inspection and complaint can be filed only by the
appropriate authority. In the instant case, the inspection was
caused by an officer/committee and even complaint was filed
thereupon by the officer, who was not having required qualification
as provided under Section 17 of the Act of 1994. In view of above,
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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framing of charges against the petitioner for offence under
Section 17 of the Act of 1994 is illegal. The petitioner deserves to
be discharged.
Learned counsel further submits that allegation
against the petitioner was for not filling form “F”, however, it is in
ignorance of the fact that form “F” is not required to be filled
immediately on the day of diagnose but can be filled on or before
05th of the month, when it is to be submitted.
A reference of judgment of Bombay High Court in the
case of Dr.Tushar Rangrao Patil Vs. Appropriate Authority,
Nanded & Additional Collector, Nanded in Criminal Writ Petition
No.406/2011 decided on 02nd May, 2012 has been given wherein
the same issue was considered and decided. In the light of the
judgment aforesaid also, lapse in filing form “F” cannot make out a
case for framing of charges for the offence under the Act of
1994. Thus, the impugned order deserves to be set aside.
Lastly, learned counsel for the petitioner submitted
that when the provision mandates for the procedure to be taken in
a particular manner, it cannot be ignored and if procedure is
violated, the Court should interfere.
A reference of judgment in the case of State of
U.P. Vs. Singhara Singh & Ors. reported in AIR 1964 SC 358
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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has also been given.
I have considered the submissions made by learned
counsel and scanned the matter carefully.
The first argument of learned counsel is in reference
to Section 17 of the Act of 1994, thus it would be gainful to quote
the aforesaid provision :
“17.Appropriate Authority and
Advisory Committee.- (1) The Central
Government shall appoint, by
notification in the Official Gazette,
one or more Appropriate Authorities
for each of the Union territories for
the purposes of this Act.
(2) The State Government shall
appoint, by notification in the Official
Gazette, one or more Appropriate
Authorities for the whole or part of
the State for the purposes of this
Act having regard to the intensity of
the problem of pre-natal sex
determination leading to female
foeticide. (3) The officers appointed
as Appropriate Authorities under subsection
(1) or sub-section (2) shall
be,–
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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(a) when appointed for the whole of
the State or the Union territory, of
or above the rank of the Joint
Director of Health and Family
Welfare; and
(b) when appointed for any part of
the State or the Union territory, of
such other rank as the State
Government or the Central
Government, as the case may be, may
deem fit.
(4) The Appropriate Authority shall
have the following functions,
namely:–
(a) to grant, suspend or cancel
registration of a Genetic Counselling
Centre, Genetic Laboratory or
Genetic Clinic;
(b) to enforce standards prescribed
for the Genetic Counselling Centre,
Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of
breach of the provisions of this Act
or the rules made thereunder and
take immediate action; and
(d) to seek and consider the advice of
the Advisory Committee, constituted
under sub-section (5), on application
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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for registration and on complaints for
suspension or cancellation of
registration.
(5) The Central Government or the
State Government, as the case may
be, shall constitute an Advisory
Committee for each Appropriate
Authority to aid and advise the
Appropriate Authority in the
discharge of its functions, and shall
appoint one of the members of the
Advisory Committee to be its
Chairman.
(6) The Advisory Committee shall
consist of—
(a) three medical experts from
amongst gynaecologists, obstericians,
paediatricians and medical geneticists;
(b) one legal expert;
(c) one officer to represent the
department dealing with information
and publicity of the State
Government or the Union territory, as
the case may be;
(d) three eminent social workers of
whom not less than one shall be from
amongst representatives of women’s
organisations.
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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(7) No person who, in the opinion of
the Central Government or the State
Government, as the case may be, has
been associated with the use or
promotion of pre-natal diagnostic
technique for determination of sex
shall be appointed as a member of the
Advisory Committee.
(8) The Advisory Committee may meet
as and when it thinks fit or on the
request of the Appropriate Authority
for consideration of any application
for registration or any complaint for
suspension or cancellation of
registration and to give advice
thereon:
Provided that the period intervening
between any two meetings shall not
exceed the prescribed period.
(9) The terms and conditions subject
to which a person may be appointed to
the Advisory Committee and the
procedure to be followed by such
Committee in the discharge of its
functions shall be such as may be
prescribed.
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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The provision quoted above refers about appropriate
authority and Advisory Committee but does not provide that
complaint can be filed by it only or that inspection cannot be
caused by authorized officer. Learned counsel for the petitioner
has referred Clause (c) of Sub-section (4) of Section 17 of the
Act of 1994. It talks about investigation on complaint and not the
inspection. The petitioner has further failed to refer Section 28
of the Act, which provides for filing of complaint. The provision
aforesaid is quoted hereunder for ready reference :
“28. Cognizance of Offence.- (1) No
court shall take cognizance of an
offence under this Act 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 thirty days in the
manner prescribed, to the
Appropriate Authority, of the alleged
offence and of his intention to make a
complaint to the court.
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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Explanation.–For the purpose of this
clause, “person” includes a social
organisation.
(2) No court other than that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try
any offence punishable under this
Act.
(3) 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.”
The perusal of the provision shows as to who can file a
complaint and therein, it can be filed by the Appropriate Authority
or authorized officer, etc. and it does not mandate that authorized
officer should be in possession of the qualification provided for
the Appropriate Authority.
Para No.8 of the judgment in the case of State of
U.P. (supra) is also quoted hereunder for ready reference :
“8.The rule adopted in Taylor v. Taylor
(3) is well recognised and is founded
on sound principle. Its result is that if
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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a statute has conferred a power to do
an act and has laid down the method in
which that power has to be exercised,
it necessarily prohibits the doing of
th act in any other manner than that
which has been prescribed. The
principle behind the rule is that if this
were not so, the statutory provision
might as well not have been enacted.
A magistrate, therefore, cannot in
the course of investigation record a
confession except in the manner laid
down in s. 164. The power to record
the confession had obviously been
given so that the confession might be
proved by the record of it made in
the manner laid down. If proof of the
confession by other means was
permissible, the whole provision of s.
164 including the safeguards
contained in it for the protection of
accused persons would be rendered
nugatory. The section, therefore, by
conferring on magistrates the power
to record statements or confessions,
by necessary implication, prohibited a
magistrate from giving oral evidence
of the statements or confessions
made to him.”
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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The perusal of the aforesaid para reveals that if a
status has conferred a power to do an act and has laid down the
method then it should be exercised in the manner provided.
In the instant case, Section 28 of the Act of 1994
provides as to who can file complaint. The arguments of learned
counsel are contrary to the provision aforesaid, thus judgment
referred to above supports the reasoning given by the court/s
below. The provision of Act and rules made thereunder provides
for authorization to inspect and file complaint. There is no
provision that even inspection would be caused only by the
appropriate authority. In view of above, the argument that
inspection and complaint can be filed only by the appropriate
authority, cannot be accepted.
Learned counsel for the petitioner even raised an
argument regarding lapse in filing form “F”. A reference of
judgment of Bombay High Court in the case of Dr. Tushar Rangrao
Patil (supra) has been given. Relevant part of the said judgment is
quoted hereunder for ready reference :
“All that is required to be done
before the examination is obtaining
consent of the patient concerned.
Such consent can be taken on
consent-cum-declaration part of the
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
11
Form “F”. A Doctor should first
explain to the patient as to the need
of obtaining her or his consent. After
that he or she would examine the
patient. But the filling up the form “F”
can be postponed by a day or two
after writing down the relevant
information on a piece of paper
elsewhere. Some doctors might follow
the practice of getting forms filled
up through their clerks or they
themselves would fill up the form at
the end of the day. Filling up of the
form thus is for completing the
record of patient who is subjected to
test etc. The information that is
filled in such form can be written
down elsewhere and it can be filled up
properly without committing any error
in the form finally. This facility to the
doctor is available in view of the
provisions of sub-rule 8. Doctor would
be able to send monthly report only
after he completes filling up of the
forms of the patient which he
examined throughout the month. It is
only after completing that chore, he
would prepare a report and sent it by
5th day of next month. The
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
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expectation of learned A.P.P. that the
doctor must fill up the form
immediately after examination etc. is
rather far fetched and overzealous.”
According to the judgment of Bombay High Court,
filling of form “F” can be postponed by a day or two after writing
down the relevant information on a piece of paper or elsewhere.
With the due respect to the judgment aforesaid, in absence of any
provision, the Courts is not having competence to provide a
procedure, that too, when it goes against the object of Act. The
purpose to maintain form “F” is to see that everyone is diagnosed
after getting information and recorded in form “F” where patient
has to put her signature. It can be done in the presence to the
patient and not after a day or two because signature cannot be
obtained on blank form “F”. The legislation was brought keeping in
mind that based on diagnose, the abortions are taking place, if
child girl is diagnosed.
In view of the above, I find that if form “F” is not
filled, is to considered a commission of offence under the Act of
1994 and the Rules made thereunder. The requirement to sent
form “F” by 5th day of every month does not absolve requirement
to fill it on the same day. Two things should not be mixed up. One
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
13
is to fill the form and other requirement to send it on or before
the appointed date. Unfortunately, the arguments raised by the
learned counsel for the petitioner is nothing but with mixing up two
different things, thus cannot be accepted.
After considering all the arguments raised by learned
counsel for the petitioner, I do not find any merit for challenge to
the order passed by the court framing charges and to the order
passed by the Revisional Court, refusing to cause interference in
the order.
It would, further, be necessary to observe that after
exhausting the remedy of revision, a petition under Section 482 of
Cr.P.C. would not be maintainable except in exceptional cases. It is
otherwise considered to be nothing but a second revision petition
barred by the provisions of Cr.P.C., I do not find that a case of
exceptional nature is made out for causing interference in the
order of Revisional Court to entertain this petition under Section
482 of Cr.P.C., thus for all these reasons and finding no merit in
this criminal misc. petition, it is dismissed.
This disposes of the stay application also.
(M.N. BHANDARI), J.
S/No.52
Preeti, P.A.
S.B. CRIMINAL MISC. PETITION NO.2462/2013
(Dr. Ashish Singhal Vs. State of Rajasthan & Anr.)
14
All corrections made in the judgment/order have been incorporated in the
judgment/order being emailed.
Preeti Asopa
P.A.

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