The High Court · 2025

Order

Thrs I--riminal Petition is fi1ed seeking the Cortrt to quash the p-o:eedings against the petitioners in C C Nc 643

of 2023 ,rr th t llle of the learned Judicial Magistrar e ol First Class, Nzrlpyr-r J a. registered for the offences punisha blt' -rnder Sections 1 2Crlr 312 and 42O of the Indian Penal Crrclt:, 1860 (for shor-. 'rl)rl'' and Section 23 of the Pre-Conceptior an I Pre- Natal Diag'rr;stic Techniques Act, 1994 (for short 'the Act ).

2. The brir: facts of the case are that on April l0' 2023, at 6:00 PM tl-rt a dministrator of Manda Sakhi Center n N elgali, lodged a crn'r:laint at Nalgonda I Town Police Station stating that Kati ',/i;z','endar Reddy Hospital in Sriramrlag.:r Cllony, Nalgoncla, rvrs involved in illegal sex selection aclivities for over a \'(rar r,lrarging exorbitant fees. The hospital repc'rtedly referred pr i'[]r1lnt women to other locations for sex selt ction. Given lrtrzrlqcrrda's skewed sex ratio since 201O the complairra n 1- requested the Police to take action ailainst the hospital. 2 sKs,J Crl.P.l,[o.15a2() of 2024

3. Heard Sri Srinivas Podicheti, learned counsel appearing on behalf of the petitioners as well as learned Assistant public Prosecutor appearing on behalf of the respondents.

4. Learned counsel for the petitioners sr,rbmitted that the petitioners have been falsely implicated in a case registered under Sections 372,42O, 12O(B) of the IpC and Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. He contended that the Police lack the authorit5z to register the crime and investigate the aileged offences under the Act, as only the ',Appropriate Authority" or authorized oflicers can file complaints under the Act. .Furthermore, it is argued that Section 42O of the IpC is not applicable, as there is no allegation of cheating or rnducement, and the foundational facts for the offence are absent. He relies on precedent judgments oI this Court and the High Court of Rajasthan, which have quashed similar cases on the grounds that the complaints were not filed by the appropriate authority and were not in accordance with the law. Therefore, it is prayed that this Court to quash the proceedings against the petitioners by allowing this criminal petition. \ / 3 SKS,J crl.P.No.1582o cf2024

5. On t-re :ther hand, learned Assistant Public Frost cutor opposed t[-'e stLbmissions made by the learned crltrn:lel flrr the petitione :s s t a ting that the allegations leveleci againsrt the petitione :s ,t :: serious in nature, which ' requrres trial' Further, at t tis stage, quashing of proceedings a5iair-r';t the petitioners ,1ce s not arise. Therefore, he prayecl tht Court to dismiss 'h ' t riminal Petition.

6. In liglh - of the submissions made by both [e arned counsel arrrl rtpon perusal of the material available'tn r':cord, the allegatiorls leveled against the petitionet's z re under Sections 1 2Cr1r 3 12 and 42O of IPC and Section i]3 oJ the Act'

7. At tlrrs; stage, it is significant to note Sections 27 tnd 28 of the POPNI)I' Act, which read as follows: !17. Offence to be cognizable, non-bailable and rrorr compoundable.-Every offence under thrs A( t r.l:.J be cognizable, non-bailable and nor r c,n r ru ndable. il8, lognizance of offences t. No court shalt take cognizance of an offence rrn,l rr this Act excePt on a comPlaint made by- lal lre Appropriate Authority concerned, or ary oliic:- authorized in this behalf by the Centrirl (i,),1) nment or State Government, as the case maJ' lx , (,r the Appropriate Authority; or I 4 SRS,J Crl.P.No.15a2O of 2024 a, ,a (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. Explanation.-For t}re purpose of "person- includes a social organization. this clause,

2. No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the hrst class shall try any offence punishable under this Act.

3. where a complaint has been made under clause (b) of subsection (i), 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."

8. At this stage, it is pertinent to note the judgment of the Karnataka High Court in Dr. Mallanagouda vs. The State of Karnataka and anotherl, wherein in paragraph Nos. 10 to 16, it is held as follows: '1O. ln these cases the complaints are frled by the District Health Ofhcer i.e., respondent No.2. In the complaints it is stated that the Vigilance Squad, raided on authorization of Appropriate Authority under Government notification mentioned therein and orders of Planning Dfector of Health and Social Famiiy Welfare and the Deputy Director of PC&PNDT etc., The notihcation, orders or authorization are not produced along with the complaints. I C/W.W.P.No.200186 OF 2018 /i 5 SI(S,J Crl.P.No. tti820 r,f 2024 Il Respondent No.2 in the complaints does n(,t r ren state that he was authorized by ',{u:ro,rriate Authority' to hle aforesaid complaints Lo l)r( secute the petitioners. Having regard to that, 11 e.', \\'i1s no compliance of Section 28(1)(tt) o1 P(ll)\[ T Act, 1994. There is force in the coritention tLat. n the absence of production of such n,)1ill,)rltion, the complaints are incompetent. l:.. The complaints were filed through private arlre,c:te without any authorization of appropriate arL'l-Lt ritl'representing the complaint or Government A r horization. Since, the representation ol thr corrplirint before the Court at inception was nol ur,1e ' authorization of Appropriate Authorit.v or Coi-'' nent, even that objections of the petitioners .r 'r r r ltainable. 1 : . tn the similar matter before the Higl Co rr of Judicature at Bombay Bencll a Au:.rr rgabad in Dr.Sai w/o Santhosh Shiradktrr vs T 1 ti.ate of Maharashtra and another in Crimina $'rrr I'etitron No.1381 of 2015, similar actior. wa:i c r r I : rged on the ground of violation of principles o' na ri iLl justice. It was contended that before ltlinl; o- r r plaint, the Appropriate Authority should hav{ g\er opportunity to the alleged defaulters anci tirL:t:r L their explanation, sought the compliance. In that case court held that having regarrl t,) sc.reme of the Act, Sections 17 (a), (a), 28 and 2(t 9, whenever any omissions o lr I Rule crrrLrrissions in compliance of Act ald Rules ar,' frlrn,l the appropriate authority has to seelr explenation of the defaulters to hnd out, whethe: is any criminal intention in such violation. It tr1/)r'€ *>,-. I 6 SKS,J Crl,P.I{o.1582O of 2024 6} was further held that, if there is scope for correction, no criminal intention is found, compliance can be permitted. Over all it is stated that an opportunity shall be gi.7.r, to defaulters, before taking recourse to prosecution of the defaulters.

15. The learned counsel for the petitioners submits that judgment in Dr.Sai's case relerred to supra, was conhrmed by the Hon'ble Supreme Court (Crl) Crl.M.P.No.5636 12017 on 17.O4.2O17. He produces the copy of thi said order. Special Leave to Appeat

16. For the reasons stated supra the trial Court has committed error in taking cognizance of the matter thereby causing gross injustice to the petitioners. Therefore, petitions are allowed."

9. Further, the Judgment of the High Court of Punjab and Haryana at Chandigarh in Hardeep Singh v. State of Haryana and Others2, wherein in pa.ragraph Nos.45, 50, 70 and 71, it is held as under: "45. Therefore, where a person is alleged to have commitied offences under Sections 24, 24 A and 26 of the CA Act as also under the IPC but in the absence of complaint under Section 28 of the CA Act before the Magistrate's Court, no cognizance of offences punishable under the CA Act could be taken but nevertheless prosecution under IPC could still be commenced against the accused. The prosec-ution under IPC could not be disallowed on 'z2014 SCC Online P&H 25360 ) t I a 7 SXS,J Crl.P.No.1582O tf 2024 tlre 3 ()un(l the CA Act was a special statute vis-a vii rlLr IPC What had been prohibited was that c[ ta kr n r cognizance except on a complaint but irL cas'-' a r ollr:ncc tlnder the tPC is made out the taking cf c,)!ruz1l1ce rs not prohibited. i,(. In the circumstances, it may be n,rtice(l tluit ,r1 lact the taking of cognizance of the olfencr unrlcr tlre Act can be said to be barred except on r c)rrfllint made by the Appropriate Authorit" . )n,r(rlled, or arty ofltcer authorized in this behalf b" llr( C(ntral Government or State Government, as th: c1.je nav be or the Appropriate Authority; or r pr-scrr rvho has given not less than ltfteen davrr' ro.ic: in the manner prescribed, to the Appropriate A u trh r ritv, ol the alleged offence and of his intentio 1 r,r r'.] r <e a complaint to the Court as provided for i'l t,,rn; of Section 28 of the Act. Howevel-, the olf.:n::s under the Act being cognizable, ronb€Lilable ar.rl r on-compoundable in terms of Section 27, the ir l es tigation of the same by the Police would not pt'r se lrr :tarred. ''1) The said observations would apply to the cai,'ri Lrnder the Act in respect of doctors as well rvho ai., ;rrir1 to have been negligent and commirted a cc! .r , al)le offence under the Act. '7 t, In the circumstances, the questions ale f ,rnrlated in the reference are answered in the f rllor u ll-rg manner, that: FI R for the offence committed under the Act can be registered on the complaint oI the Appropriate Authority and can l)e investigated by the Police; however, I I l l 8 SKS,J Crl.P.No.15820 of 2024 6 cotnizance of the same can be taken by the Court on the basis of a complaint made by one of the persons mentioned in Section 28 of the Act.

2. A report under Section 173 CrpC along with the complaint of an appropriate aulhority can be filed in the Court. However, cognizance would be taken only the complaint that has been hled in accordance with Section 28 of the Act. 3. FIR can be lodged and offences can be investigated by the Police but cognizance only of the complaint is to be taken by the Court.'

10. In those cases, complaints were Iiled by the District Health Officer. It was stated that the Vigilance Squad conducted a raid based on authorization from the Appropriate Authority under a government notiflcation. However, no such notification or authorization was produced along with the complaints. District Health Oflicer did not state that he was authorized by the Appropriate Authority to fiie the compiaints and prosecute the petitioners. Therefore, there was no compliance with Section 28(1)(a) of the Act. In the absence of such authorization, the complaints wele incompetent. The complaints were hied through a private advocate without proper autho rizattolf by the Appropriate Authority or the 9 sKs,J Crl.P.No.1582O of 2024 Governmetrr . Flence, the representation before the (lorlr I u'as unauthori::e rl :u-rd the obiections of the petitioners rvere "alid'

11. In a si:rr:lar matter, the High Court of Bombaf in ttr. Sai w/ o Salt :r i; s i r Shiradkar vs. State of Maharashtl-a and Another (Olitrinal Writ Petition No.1381 of 2015) obs,etwed that belor e iling a complaint, the Appropriate Arrt hority should gir,,: a'r opportunity to the alleged defaulters to pr-ovide an explan,r,ic tr and seek compliance. The Court hel(l that under S,:clir:t Lr; 17(4)(a), 28, and 29 artd Rule 9 of tht, \ct, if any violat io r s are noticed, the Authority should ser :k an explanation to determine whether the violatitlns were intentiorLa, If not, and if compliance can be er-rr';ured, prosecution sfrould not be pursued. An opportrrnit'/ mrlst be given befcr,' i'ritiating prosecution. For the reasc n-s stated above, the tri rl court erred in taking cognizance of t.1e nlatter, causing qravc injustice. Therefore, the petitions rvere allcwed.

12. ln t -r l)rcsent case, the complaint indic:ate:, th rt the hospital t ele rred pregnant women to another Cent,)r for scanning, z: llr:,1edly for sex determination. Hotvsvgl', tl ere is no direc I rr]1e ration of sex determination itself. Als l, tl'.ere is I 10 sxs,J Crl.P.No.l5E2O of 2O2+ 6$ no specific aliegation attracting Sections 42O or 312 of ttre IPC

13. At this stage, it is pertinent to note Section 312 of IpC, which reads as under: "Causing mis6arriage:-Whoever voluntarily causes a woman with child to miscarr5r, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three yeaJs, or w.ith fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation--A woman who causes herself to miscarqr, is within the meaning of this section."

14. The charge sheet reveals that L.W. 1, who already had a female child, conceived again and sought treatment at Leelavathi Hospital, Nalgonda. Due to unavailability of doctors, she was advised by L.W.3 to go to Sri Vijayender Reddy Hospitai. There, accused No.3 took her to accused No.2, who referred her for scanning at Ashish Scanning Center. The report was shared via WhatsApp, and accused No.2 allegedly told her the fetus was female and unhealthy, i 1_L SKS,J Crl.P.No. 15a2,) of 2024 and advisec termination, demanding Rs.70,000 /- lcr the procedltrc.

15. S ul>sc,1ur:ntlv, based on directions from acc lsec Nos' 1 and 2, rtc:,rst d No.3 contacted L.W.3 to bring the patierrt back to the hr,spi tal. Believing the accused, the patie 1t a nd her family <:o-rser ted to [he termination. However, Section 312 of IPC appl €..; ()nly when miscarriage is caused wit-hout good faith to save the mother's life. In this case, thLe charg': sheet states thr: l'-r --ts \\,as unhealthy, indicating medtcal relrs.ons for the terrn in:: t i,tn.

1.6. NIor,:r rer, documents submitted by the petitionel s show that accuse([ No.2 is the director of a licensed multisJ,eciality hospital s,tt {fed by qualihed doctors. Thus, t'rere is no substantra,l :asis for the prosecution's claim that the zrccused were ulcl alit-red. 17 . T'h jr'eli,re, continuation of proceedings b:rs,ed on unsubs;trir ,ia ted and improperly filed complain:s, '.vithout complirlrct r,'ith Sections 27 and 28 of the Act, lmounts to abuse ol p,r c cess of 1aw. Further, as obsen,ed n Hardeep Singh (s;rr;r - r) ,. although the police may file an F [R and investigatt'. the Court may only take cognizance basr d on a { ( { { I 12 sKs,J Crl.P.IIo.15820 of2O24 o' complaint filed in accordance with Section 28 of the Act. In this case, since the complaint was not properly hled by the Appropriate Authority, the legal proceedings are not sustainable.

18. In view of the above, this Court is of the considered opinion that the continuation of proceedings against the petitioners is not in accordance with law and amounts to an abuse of process. Therefore, the proceedings against the petitioners are liable to be quashed.

19. Accordingly, this Criminal Petition is allowed and the proceedings against the petitioners in C.C.No.643 of 2023 on the hle of the learned Judicial Magistrate of First Class, Nalgonda, are hereby quashed. Miscellaneous applications, if any pending, shall also stand closed. //TRUE COPY// SD/- MOHD. ISMAIL EPUTY REGISTRAR SECTION OFFICER To, '1- The Judicial First Class [Magistrate at Nalagonda District 2. The Station House Officer, Nalgonda I Town; police Station Nalgonda Diskict 3. One CC to SRI SRINIVAS PODICHETt Advocate tOpUCl 4. Two CCs to Public Prosecutor, High Court for the State oi Telangana at Hyderabad [OUT]

5. Two CD Copies A/' HIGH COURT DArED:1510412025 \ ORDER CRLP.No.15820 of 2C24 ,{6- S i ,\ () ,. 1g Jr,iN M 1!) (1( 2 o ALLOWING THE THE CRIMINAL PETITION b / I {