Dr Ramesh Chand Gupta & anr versus State of Rajasthan

judfile

1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER
SB Cr Misc Petition No.970/2015
Dr Ramesh Chand Gupta & anr versus State of Rajasthan
26.3.2015
HON’BLE MR. JUSTICE MN BHANDARI
Mr Peush Nag – for petitioners
Mr SK Gupta – Amicus Curiae
Mr GS Gill, Additional Advocate General with Mr Harish C
Kandpal – for the State
BY THE COURT:
REPORTABLE
By this criminal misc. petition, a challenge is made to
the order dated 12.12.2014, whereby, charge for the offence under
section 23 of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 (for short ‘the
PCPNDT Act’) has been framed against the petitioners. The
revision petition challenging the said order has also been
dismissed. A further challenge is made to the Notification dated
10.8.2009 at annexure-2.
Learned counsel submits that the Notification for
2
appointment of Appropriate Authority is contrary to section 17 of
the PCPNDT Act, as amended. As per section 17 of the PCPNDT
Act, the Appropriate Authority should consist of three members,
however, impugned Notification provides for an officer of the
level of Sub Divisional Officer as appropriate authority at the
district level. In view of above, impugned Notification deserves to
be quashed along with subsequent proceedings. A reference of the
judgment of the Madras High Court in the case of Dr Manimegalai
versus State”, [2014(4) Crimes 483 (Mad.)] has been given.
A further challenge is made to the order at annexure-
3, issued by the Collector & District Magistrate, Ajmer, wherein,
he has further authorised an officer for filing the complaint under
section 28 of the PCPNDT Act. Further delegation is not
permissible under the law.
Mr GS Gill, Additional Advocate General, appearing
for the State and Mr SK Gupta, Amicus Curiae, appointed by the
court, submit that proper interpretation to section 17 of the
PCPNDT Act has not been taken while challenging the
Notification at annexure-2. Section 17 is divided in two parts for
appointment of Appropriate Authority. The petitioners have
considered only one part which refers to the appointment of the
3
Appropriate Authority at the State level. Same composition is not
provided for the Appropriate Authority at different level which
would be for the part of the State. As per section 17 of the
PCPNDT Act, whenever Appropriate Authority is to be appointed
at the State level, it should be with the composition of 3 members
as given under sub-section (3) of section 17. In case it is for the
part of the State, the appointment of the Appropriate Authority
would be as provided under sub-section (3) (b) of section 17. The
aforesaid provision does not provide for composition of 3
members, rather, it refers about the rank of the officer.
The State Government had issued notification in
consonance to it while nominating desired rank officer as
Appointing Authority for the part of the State. The District
Collector has been nominated as Appropriate Authority at the
District level whereas, at the Sub Division level, other officers
have been appointed. The Notification is thus not in violation of
section 17 but is in consonance thereto.
They further submit that as per sections 28 and 30 of
the PCPNDT Act, authorisation can be given by the Appropriate
Authority, State Government or the Central Government for filing
of the complaint and for search and seizure. The order at
4
annexure-3 has been issued in consonance to the aforesaid
provision read with rule 12 of the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.
The prayer is made to dismiss the petition.
I have considered rival submissions of the parties and
perused the record.
A challenge to the Notification at annexure-2 has been
made in reference to section 17 of the PCPNDT Act thus it would
be relevant to quote the said provision thus –
“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 sub-section (1) or subsection
(2) shall be,—
(a) when appointed for the whole of
the State or the Union territory,
consisting of the following three
5
membersi)
an officer of or above the
rank of the Joint Director of
Health and Family WelfareChairperson;

ii) an eminent woman
representing women’s
organization; and
iii) an officer of Law
Department of the State or the
Union territory concerned:
Provided that it shall be the
duty of the State or the Union
territory concerned to
constitute multi-member State
or Union territory level
Appropriate Authority within
three months of the coming
into force of the Pre-natal
Diagnostic Techniques
(Regulation and Prevention of
Misuse) Amendment Act,
2002:
Provided further that any
vacancy occurring therein
shall be filled within three
months of that occurrence;]
(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;
6
(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;
(d) to seek and consider the advice of
the Advisory Committee, constituted
under sub-section (5), on application
for registration and on complaints for
suspension or cancellation of
registration;
(e) to take appropriate legal action
against the use of any sex selection
technique by any person at any place,
suo motu or brought to its notice and
also to initiate independent
investigations in such matter;
(f) to create public awareness against
the practice of sex selection or prenatal
determination of sex;
(g) to supervise the implementation
of the provisions of the Act and rules;
(h) to recommend to the CSB and
State Boards modifications required
in the rules in accordance with
changes in technology or social
conditions;
(i) to take action on the
recommendations of the Advisory
Committee made after investigation
of complaint for suspension or
cancellation of registration.
5. The Central Government or the State
Government, as the case may be, shall
7
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.
7. No person who has been associated with
the use or promotion of pre-natal
diagnostic technique for determination of
sex or sex selection 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
8
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.”
The perusal of sub-section (1) of section 17 of the
PCPNDT Act reveals that the Central Government can appoint one
or more Appropriate Authorities for the Union Territories. The
case in hand is not of Union Territories, thus aforesaid sub-section
is not relevant for this case.
Sub-section (2) of section 17 provides about the
appointment of one or more Appropriate Authority by the State
Government for whole or part of the State. In the instant case,
Appropriate Authority has been appointed for part of the State.
Sub-section (3) of section 17 refers as to how the
Appropriate Authority would be appointed under sub-section (1)
and sub-section (2). Clause (a) to sub-section (3) of section 17
provides for appointment for whole of the State or Union Territory.
It should consist of three members referred therein.
Clause (b) of sub-section (3) of section 17 is relevant
and provides about appointment of appropriate authority for any
9
part of the State or the UT. It is such rank as the State Government
or the Central Government deem fit. The present case is covered
by clause (b) of sub-section (3) of section 17 of PCPNDT Act.
According to the petitioner, it has to be read along with subsection
(3) (a), which provides about appointment under subsection
(1) and (2). Under clause (a) of the said sub-section,
nomination should be of three members and, according to him,
same composition should exist for the part of the State.
The argument aforesaid cannot be accepted for the
reason that if same composition would have been required i.e. an
Appropriate Authority for the part of the State with three
members, it would have been specified under clause (b) of subsection
(3) of section 17. The Legislature, under their wisdom,
only referred such rank as the State Government or the Central
Government deem fit. It clearly shows composition to be different
than of the State level. If the composition of three members would
have been required, necessary provision could have been inserted
as to who would be other two members. It is more so when at the
State level, composition has been specifically given and,
according to it, one eminent woman representing women’s
organisation is to be part of the Appropriate Authority. If it is to be
repeated for every Appropriate Authority and even for the part of
10
the State, indication aforesaid would have been specific, which
does not exist herein. Thus, I am unable to take the interpretation
as has been given by learned counsel for the petitioners.
A provision, which has not been provided by the
Legislature, cannot be inserted by the court. In view of above, first
argument of the learned counsel for petitioners cannot be
accepted.
A further challenge to the order at annexure-3 has also
been made. It is submitted that further delegation has been made
by the Appropriate Authority for filing of the complaint and even
for search and seizure. The order shows not to be further
delegation but authorisation under sections 28 and 30 of PCPNDT
Act. Section 28 provides for filing of complaint, whereas, section
30 provides about search and seizure. Both the provisions are
quoted hereunder for ready reference –
“28. Cognizance of offences. (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 fifteen days in the
manner prescribed, to the Appropriate
11
Authority, of the alleged offence and of his
intention to make a complaint to the court.
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.
“30. Power to search and seize records, etc.
– (1) If the Appropriate Authority has
reason to believe that an offence under this
Act has been or is being committed at any
Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic or any other
place, such Authority or any officer
authorised thereof in this behalf may,
subject to such rules as may be prescribed,
enter and search at all reasonable times
with such assistance, if any, as such
authority or officer considers necessary,
such Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic or any other
place and examine any record, register,
document, book, pamphlet, advertisement
or any other material object found therein
and seize and seal the same if such
Authority or officer has reason to believe
that it may furnish evidence of the
commission of an office punishable under
this Act. (2) The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974)
relating to searches and seizures shall, so
far as may be, apply to every search or
seizure made under this Act.”
The perusal of section 28 of the Act shows as to who
12
is competent to file complaint. It is the State Government, Central
Government, Appropriate Authority or any person authorised by
them. Same is the provision under section 30 of the Act. The order
at annexure-3 is nothing but authorisation by none else but by the
Appropriate Authority. It is as per the provisions of sections 28
and 30 of the Act read with rule 12 of the Rules of 1996. I do not
find any illegality in issuance of order at annexure-3.
In view of the discussion made above, I do not find
any merit in this criminal misc. petition. Hence, it is dismissed.
(MN BHANDARI), J.
bnsharma
All corrections made in the judgment/ order have been
incorporated in the judgment/ order being emailed.
(BN Sharma)
PS-cum-JW

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