Rakesh Kumar Pathak vs State Of U.P. And Another

A482(A)_10725_2015

Court No. – 53
Case :- APPLICATION U/S 482 No. – 10725 of 2015
Applicant :- Rakesh Kumar Pathak
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Brij Raj
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Bharat Bhushan,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This Crl. Misc. application under Section 482 Cr.P.C. has been filed for quashing of the
summoning order dated 19.2.2015 as well as the entire proceeding of Complaint Case No. 1874
of 2015 under Sections 18/23/25 of the Pre Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (in short PNDT Act).
It appears that a raid was conducted in the premises of Pathak Diagnostic Centre by SDM and it
was found that the applicant was operating the Ultrasound Machine without license and
registration required under Section 18 of the PNDT Act. The applicant also could not show the
papers related to purchase of Ultrasound Machine. Admittedly, applicant himself is neither a
radiologist nor a doctor of any kind.
The contention of the learned counsel for the applicant is that no offence against the applicants is
disclosed and the present prosecution has been instituted with malafide intentions for the
purposes of harassment. It is admitted by the learned counsel for the applicant that the applicant
has not obtained the registration for operating the ultrasound machine as required under Section
18 of the PNDT Act.
On the other hand learned AGA has contended that from the perusal of material on record and
looking into the facts of the case at this stage it cannot be said that no offence is made out against
the applicant. All the submissions made at the bar relates to the disputed question of fact, which
cannot be adjudicated upon by this Court under Section 482 Cr.P.C.
At this stage only prima facie case is to be seen in the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs.
Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and
lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10)
2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.
Moreover, the applicant has got a right of discharge under Section 245 Cr.P.C. through a proper
application for the said purpose and he is free to take all the submissions in the said discharge
application before the Trial Court including those which have been canvassed by them before this
Court in this application.
In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others (2008) 13
SCC 678, the Hon’ble Apex Court has made following observations explaining the parameters of
jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of
Criminal Procedure: –
“17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section
482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a
great deal of caution is also required in its exercise. What is required is application of the wellknown
legal principles involved in the matter.
X x x x x x x x
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into
consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would
not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of
unimpeachable character should not be taken into consideration at any cost for the purpose of
finding out as to whether continuance of the criminal proceedings would amount to an abuse of
process of court or that the complaint petition is filed for causing mere harassment to the accused.
While we are not oblivious of the fact that although a large number of disputes should ordinarily
be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate
goal, namely, to force the accused to pay the amount due to the complainant immediately. The
courts on the one hand should not encourage such a practice; but, on the other, cannot also travel
beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts
cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal
proceedings would be maintainable.’
In Rallis India Limited v. Poduru Vidya Bhushan and others (2011) 13 SCC 88, the Hon’ble
Apex Court expressed its views on this point as under:-
“12. At the threshold, the High Court should not have interfered with the cognizance of the
complaints having been taken by the trial court. The High Court could not have discharged the
respondents of the said liability at the threshold. Unless the parties are given opportunity to lead
evidence, it is not possible to come to a definite conclusion as to what was the date when the
earlier partnership was dissolved and since what date the respondents ceased to be the partners of
the firm.”
Recently, the Apex Court in Sonu Gupta Vs Deepak Gupta and others ILC 2015 SC CRLFeb7,
has held that at the stage of summoning, the Magistrate is not required to conduct a roving
and meticulous inquiry and in paragraph 7, it has been held as under:
” At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind
only with a view to take cognizance of the offence, or, in other words, to find out whether prima
facie case has been made out for summoning the accused persons. At this stage, the learned
Magistrate is not required to consider the defence version or materials or arguments nor he is
required to evaluate the merits of the materials or evidence of the complainant, because the
Magistrate must not undertake the exercise to find out at this stage whether the materials will lead
to conviction or not.”
Accordingly the prayer for quashing the proceedings of the aforementioned case is refused.
However, it is provided that if the applicants appear and surrender before the court below within
30 days from today and apply for bail, their prayer for bail shall be considered and decided in
view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court
reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
With the aforesaid directions, this application is finally disposed off.
Order Date :- 4.5.2015/RavindraKSingh

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Author: savedaughters19

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