IN THE HIGH COURT OF PUNJAB AND HARYANA AT
Date of decision: 23.10.2013
State of Haryana and another
CORAM: HON’BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.Heman Aggarwal, Advocate for the petitioner
Mr.RN Bhardwaj, AAG, Haryana
Jitendra Chauhan, J. (Oral)
The present petition under Section 482 of the Code of
Criminal Procedure has been filed for setting aside the impugned order
dated 16.9.2009, passed by learned Additional Sessions Judge, Faridabad,
passed in Criminal Revision No.27 of 2009, arising out of criminal
complaint No.54 dated 17.4.2009.
The brief facts of the case are that on 15.10.2008, Dr.Shashi
Bala, District Family Welfare Officer, Faridabad alongwith other officials
inspected the ultrasound centre running at Ahuja Nursing Home, 526,
Sector 17, Faridabad, on the complainant’s (Civil Surgeon, Faridabad)
direction vide office order No.PNDT/Faridabad/2008/Spl.1-6 dated
26.8.2008. During inspection, they found various discrepancies and
therefore, they seized and sealed the ultrasonography machine alongwith
other record under Section 30 of PC and PNDT Act. The complainant i.e.
Civil Surgeon, Faridabad suspended the registration granted to M/s
Ahuja Nursing Home, 526, Sector 17, Faridabad. The Civil Surgeon
being the competent authority filed a complaint under Section 28 of PreConception
and Pre-Natal Diagnostic Technique (Prohibition of Sex
Selection) Act, against Dr.Maninder Ahuja, the proprietor and
Ultrasonogist of M/s Ahuja Nursing Home, 526, Sector 17, Faridabad in
the Court of Judicial Magistrate, 1st Class, Faridabad, which was
dismissed vide order dated 25.5.2009. Against the said order, the State
through Civil Surgeon, Faridabad, filed a revision, which was disposed of
with liberty to the State to file fresh complaint through competent
authority in accordance with law, by the learned Additional Sessions
Learned counsel for the petitioner contends that the Civil
Surgeon was not the competent authority to file the complaint. He further
submits that the second complaint is not maintainable. The petitioner
was discharged by learned JMIC, Fariadabad vide order dated 25.5.2009.
He cites CRM-M-44171 -2005, decided on 21.7.2009 titled as Sudhir
Bansal and another vs. Varsha Rani.
On the other hand, the learned State counsel submits that as
per Section 28(a) of the Act, the complaint was filed by an authorised
Heard and perused.
The learned Additional Sessions Judge vide impugned order
dated 16.9.2009, allowed the State to file fresh complaint through
competent authority. The learned ASJ has observed as under:-
“The contention of learned counsel for the petitioner is
without any merit. The condition laid in Section 28(a)
is that complaint can only be filed by either
Appropriate Authority or by person authorised by State
Government or Central Government or appropriate
authority in this regard. Appropriate Authority is
appointed under the provisions of Section 17 of the
Act and for the said appointment specific procedure
has been laid down and appointment is required to be
notified in an official gazette. As regards to
authorisation as Appropriate Authority, there is no
dispute that on the date of filing of complaint as well
as on the date of taking cognizance the complainant
Civil Surgeon, Faridabad was not an appropriate
Authority. The argument that since the complaint is
filed through Civil Surgeon, Faridabad, therefore, it
should be deemed to have been filed by an officer
authorised in this behalf, as Civil Surgeon is one of the
highest ranking officer of the State Government in the
District, is without merit. Section 28 mandates that an
officer authorised in this behalf by the Central
Government or State Government or appropriate
authority, which means that authorisation must be
specific and it cannot be held to be general in nature,
merely because complaint was filed by Civil Surgeon
it cannot be deemed that Civil Surgeon was authorised
to file complaint. Neither General nor specific
authorisation has been pleaded nor any material to
show general/ specific authorisation has been placed
by revisionist/ complainant. Therefore, no fault with
the conclusion of learned lower court could be found.
Merely because offence alleged is serious nature the
mandatory provisions of section 28 cannot be ignored.
When legislature has prescribed a particular method
the same must be followed strictly.
11. However, I find merit in the submission of
learned counsel for the petitioner that the petitioner
should be allowed to file fresh complaint. Since, the
present compliant is being dismissed at initial stage
without any decision on merits, as it was not in
accordance with Section 28 of 1994 Act, petitioner/
State would be at liberty to file fresh complaint
through competent authority in accordance with law.
Learned counsel for the respondent has prayed that he
be also allowed to raise legal objection against the
filing of fresh/ second complaint by the petitioner.
No doubt the complaint was filed by an incompetent
authority, but during inspection the authority has found some
discrepancies in the record. The learned ASJ has also observed that
because the offence alleged is serious in nature, the mandatory provisions
of Section 28 of the Act cannot be ignored. No prejudice would be
caused to the petitioner in filing the fresh complaint by the competent
authority in accordance with law. Even otherwise, the second complaint is
also not a bar in view of the decisions of the Apex Court in Mahesh
Chand vs. B.Janardhan Reddy and another AIR 2003 Supreme Court
702 and Poonam Chand Jain vs. Fazru AIR 2010 Supreme Court 659.
Moreover, the first complaint was not dismissed on merit after full trial.
In view of the above, this Court finds no illegality or
perversity in the impugned order dated 16.9.2009, passed by the learned
ASJ, Faridabad. As such, the present petition fails and is hereby
dismissed being devoid of any merit.
23.10.2013 (JITENDRA CHAUHAN)