M.S. Talekar and others …Petitioners Versus State of Haryana …Respondent

CRM-M-3809-2012 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CRM-M-3809-2012 (O&M)
Date of decision: October 01, 2015
CRM-M_3809_2012_01_10_2015_FINAL_ORDER

CORAM: HON’BLE MR. JUSTICE RAJAN GUPTA

 

Present: Mr. J.S. Bedi, Senior Advocate with
Mr. Harpreet Multani, Advocate for the petitioners.
Mr. Gaurav Dhir, DAG, Haryana.
Rajan Gupta, J.
In this petition under section 482 Cr.P.C., petitioners have
impugned order dated 1.2.2012, passed by Sessions Judge, Gurgaon
whereby application under Section 391 Cr.P.C. filed by the petitioners
has been dismissed.
Learned counsel for the petitioners has vehemently argued
that the court below has erred in rejecting the application preferred by the
petitioners under section 391 Cr.P.C. None of the petitioners was
incharge of the hospital at the relevant time. Thus, they were wrongly
convicted by the trial court. Even the complaint does not contain any
allegations against the petitioners. Instant application was moved by the
petitioners during the pendency of appeal to show that they were
gainfully employed elsewhere. Appellate court erred in rejecting the
same. He has relied upon judgments reported as State of Gujarat vs.
Mohanlal Jitamalji Porwal and another, 1987 AIR (SC) 1321 and
Rambhau vs. State of Maharashtra, 2001 (2) R.C.R. (Criminal) 721.
Prayer has been opposed by State counsel. According to
him, prosecution produced evidence to show that petitioners were
Directors of the Hospital in question. None of them denied this fact. At
the time they sought pre-arrest bail, they themselves claimed to be
Directors of the Hospital in question. According to him, trial continued
for considerable period. Petitioners never produced any such evidence,
now sought to be produced before the appellate court.
I have heard learned counsel for the parties and given careful
thought to the facts of the case.
It appears, a complaint under the Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994 (hereinafter
referred to as “the Act”) was filed by the appropriate authority against
seven accused. It was alleged that a secret information was received that
Dr. J.L. Mahajan is conducting pre-natal diagnostic technique/procedures
i.e. Ultrasonography on pregnant females. A raid was conducted at
Albega Hospital, Udyog Vihar Phase III, Gurgaon by a team of doctors
and decoy customer was sent for ultrasonography. It was found that one
of the accused namely, Dr. J.L. Mahajan conducted the test on payment of
Rs.500/-. Two doctors namely, Dr. K.K. Saraswat and Dr. D.B. Lal left
the place of occurrence and did not cooperate with the inspection team.
Dr. M.S. Talekar and Dr. P.B. Lal were also shown as Directors of
hospital in complaint Ex.P7/A. The trial court came to the conclusion
that accused were guilty of offences under the Act and sentenced them
accordingly. Petitioners preferred appeal before the court of Sessions at
Gurgaon. During pendency of appeal, instant application under section
391 Cr.P.C. was moved. The appellate court found that the application
was not bonafide as no such defence had been taken by the accused since
the complaint was instituted in the year 2002. Besides, additional
evidence sought to be led, would not be relevant for the purpose of
decision of the appeal. Petitioners merely wanted to prolong the decision
thereof.
I find no infirmity with the order passed. It is evident that
the trial continued from the year 2002 to 2011. After statement of the
accused under section 313 Cr.P.C. was recorded, 21 opportunities were
granted to the accused to lead defence evidence. Ultimately, judgment
was pronounced on 25.01.2011. During pendency of appeal, instant
application was moved to show that petitioners were gainfully employed
elsewhere. In my considered view, the case can be decided on the basis
of evidence already on record. The application appears to be totally
misconceived and filed with a view to delay the proceedings. There can
be no dispute with the proposition of law laid down in Mohanlal
Jitamalji’s case and Rambhau’s case (supra). However, they are not
relevant in the facts and circumstances of the present case. All the pleas
sought to be raised by the accused can easily be considered by the
appellate court on the basis of material available on record. Proceedings
before the appellate court have remained stayed for almost three years
during the pendency of the present revision petition. Incident pertains to
the year 2002. In my considered view, no case for interference in
inherent jurisdiction is made out. The petition is without any merit and is
hereby dismissed.

(RAJAN GUPTA)
JUDGE
October 01, 2015
‘Rajpal’
Whether to be referred to reporter? Yes / No
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