High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD1 CRIMINAL APPLICATION NO.703 OF 2024Satish Balasaheb Gaware,Age 37 yrs., Occ. Medical Practitioner,R/o Teachers Colony, Dhavleshwar,Jalna, Tq. & Dist. Jalna. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Georai,Tq. Georai, Dist. Beed. 2Mohammad Mufti Taher Nomani,Age 41 yrs., Occ. Medical Superintendent,Sub District Hospital, Georai,Tq. Georai, Dist. Beed. … Respondents...Mr. R.G. Hange, Advocate h/f Mr. A.R. Hange, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1...WITHCRIMINAL APPLICATION NO.3352 OF 2024Chandrakant Pandurang Chandanshiv,Age 45 yrs., Occ. Vendor,R/o Santosh Nagar, Georai,Tq. Georai, Dist. Beed. … Applicant
Legal Reasoning
21_Cri.Appln_703_2024+1… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Georai,Tq. Georai, Dist. Beed. 2Mohammad Mufti Taher Nomani,Age 41 yrs., Occ. Medical Superintendent,Sub District Hospital, Georai,Tq. Georai, Dist. Beed. … Respondents...Mr. R.G. Hange, Advocate h/f Mr. A.R. Hange, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1…CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE :24th APRIL, 2025ORDER : ( PER : SMT. VIBHA KANKANWADI, J. )1Both the applicants are accused in Crime No.9/2024 dated04.01.2024 registered with Police Station, Georai, Tq. Georai, Dist. Beed andafter the investigation is over in the proceedings in Regular Criminal CaseNo.69/2024 pending before learned Judicial Magistrate First Class, Georai,Dist. Beed, for the offence punishable under Sections 312, 120-B read with 31_Cri.Appln_703_2024+1Section 34 of the Indian Penal Code, 1860, Sections 3, 4 of the MedicalTermination of Pregnancy Act, 1971 (for short, “M.T.P. Act”), Sections 3(1),3(3), 6(a), 6(b), 6(c), 18, 23(1), 23(2) of the Pre-conception and Pre-natalDiagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short,“P.C.P.N.D.T. Act”) and Section 18(c) punishable under Section 27(B)(ii) ofthe Drugs and Cosmetics Act, 1940. 2Heard learned Advocate Mr. R.G. Hange holding for learnedAdvocate Mr. A.R. Hange for applicant and learned APP Mr. G.A. Kulkarni forrespondent No.1, in both matters. 3Learned Advocate appearing for applicants have taken usthrough contents of charge sheet including First Information Report and hesubmits that informant, who is the Medical Superintendent, Sub DistrictHospital, Georai, authorized by Civil Surgeon, Beed, has lodged the report. Itis stated that one agent by name Manisha Shivaji Sanap through herassociates is involved in the business of sex determination of fetus illegally bykeeping a machine and thereby earning huge amount. It is alleged thatapplicant – original accused No.4 Dr. Satish Gaware was found to be doingthe act of sex determination and keeping with him the articles required formedical termination of pregnancy. Accused No.2 was conspiring with himand he had made his house available for the illegal activities. The entire 41_Cri.Appln_703_2024+1charge sheet is based on statements of witnesses, especially the dummywitness, but these two applicants were not involved in the same. The saidconversation appears to be between original accused No.1 and dummywitness. Though house of applicant Chandanshiv has been raided andcertain articles were found, applicant Satish Gaware was not present there.Therefore, it cannot be said that there is any activity which is prohibitedunder P.C.P.N.D.T. Act was going on in the house of applicant Chandanshiv. 4Learned Advocate appearing for applicants submits that offencehas been registered and even charge sheet has been filed for the offencepunishable under Section 312 of the Indian Penal Code, which prescribes,causing of miscarriage, but in the entire charge sheet there is no allegationsor evidence to show that any miscarriage of a woman was caused. There isalso no evidence to attract provisions of Section 120-B or Section 34 of theIndian Penal Code. Charge sheet is also under Section 3 and 4 of the MedicalTermination of Pregnancy Act. Entire papers would show that actualtermination of pregnancy has not been done. There are statements of twowitnesses under Section 164 of the Code of Criminal Procedure viz. Pooja andSwati, who are the co-sisters and out of those Pooja was pregnant and wasdesirous of having son after two daughters and they decided to get Poojachecked. They got the number of accused No.1 Manisha. But taking into 51_Cri.Appln_703_2024+1consideration the fees that was quoted they had not given their accent, butthen Manisha reduced the amount of fees. Accordingly, that amount wasgiven on 02.01.2024. But when this fact was made known to relatives, therelatives stopped them and, therefore, they told accused Manisha that Poojahas no intention to get herself to check and they demanded their money. Butit was told that the money would be given by applicant Satish Gaware. Theywere taken to the house of applicant Chandanshiv. But it was then realizedthat one of the ladies, who had come in the car, was a police person. TheDoctor fled away and Chandanshiv and Manisha were caught on the spot.The articles which were owned by Doctor were stated to be the Sonographymachine and some medicines. Thus, from these statements also it cannot besaid that the termination of pregnancy was done. As regards the offencesunder P.C.P.N.D.T. Act and Drugs and Cosmetics Act an First InformationReport has not been maintainable and, therefore, it would be unjust to askthe applicants to face the trial. 5Learned APP strongly opposed the applications and submittedthat since the offences under P.C.P.N.D.T. Act and the Drugs and CosmeticsAct are along with offence under the M.T.P. Act and the Indian Penal Code,the First Information Report is maintainable. He relies on the decision ofHon’ble Single Bench of High Court of Punjab and Haryana at Chandigarh in 61_Cri.Appln_703_2024+1Dr. Anant Ram vs. State of Haryana [CRM-M-36146-2021 (O & M)] decidedon 02.04.2022, wherein after interpreting Rule 18A(3)(iv) of the P.C.P.N.D.T.Act it is held that there is no absolute bar against involvement of police. Hesubmits that the entire investigation is over. First Information Report and thecharge sheet is against four accused persons. Applicant Dr. Satish Gawarewas absconding. After his arrest, supplementary charge sheet has been filed.On the secret information received that accused No.4 is carrying out suchinvestigations and terminating the pregnancy after determination of sex ofthe fetus, the trap was laid by authorized person and police, at that time, Dr.Gaware managed to escape, however, however, applicant Chandanshiv andaccused No.1 Manisha were caught. Portable Sonography machine alongwith other appliances, injection, MTP kit and other machinery fortermination of pregnancy were seized from the spot. In respect of the Drugsand Cosmetics Act, it was found that the medicines, those were found at theplace, were without prescription or procured authorizedly. Strong evidencehas been collected and statements of witnesses under Section 164 of theCode of Criminal Procedure has also been recorded through learned JudicialMagistrate First Class. Under such circumstance, when offences under fourActs are involved, First Information Report is maintainable. 6The first and the foremost fact to be noted is that from the entire 71_Cri.Appln_703_2024+1charge sheet it can be seen that the informant, who is the MedicalSuperintendent, Sub District Hospital, Georai, has conducted raid. In fact,the secret information was received by Civil Surgeon, Beed. Even CivilSurgeon, Beed was accompanying the police party. After arranging twopanchas the entire staff went to the place. A Lady Police Constable, who waspregnant of three months, was made as dummy candidate and it is allegedthat when it was found that one person has fled away, the police managed toarrest accused Manisha and applicant Chandanshiv. After the raid wasconducted, First Information Report has been lodged under Section 154 ofthe Code of Criminal Procedure by respondent No.2 i.e. MedicalSuperintendent, Sub District Hospital, Georai. Statements of witnesses aswell as panchnama show that there was no miscarriage of a woman caused atthat place. Therefore, there was absolutely no question of attractingingredients of Section 312 of the Indian Penal Code. There is no evidence forattracting Section 120-B of the Indian Penal Code also nor because three ofthem were there, Section 34 of the Indian Penal Code can be invoked.Further, Section 34 of the Indian Penal Code cannot be so invoked withoutthere being any offence under Indian Penal Code section. 7Secondly, even as regards Sections 3 and 4 of the M.T.P. Act,actual medical termination of pregnancy was not at all carried out and, 81_Cri.Appln_703_2024+1therefore, those Sections also not attracted. Now, what remains is, Sectionsunder the P.C.P.N.D.T. Act and the Drugs and Cosmetics Act. Section 28 ofP.C.P.N.D.T. Act prescribes thus - “28.Cognizance of offences. - (1) No Court shall take cognizance ofan offence under this Act except on a complaint made by - (a)the Appropriate Authority concerned, or any officerauthorized in this behalf by the Central Government or StateGovernment, as the case may be, or the Appropriate Authority; or (b)a person who has given notice of not less than fifteen daysin the manner prescribed, to the Appropriate Authority, of thealleged offence and of his intention to make a complaint to theCourt. Explanation. - For the purpose of this clause, “person” includes asocial organization. (2)No Court other than that of a Metropolitan Magistrate or aJudicial Magistrate of the first class shall try any offence punishableunder this Act.(3)Where a complaint has been made under clause (b) sub-section(1), the Court may, on demand by such person, direct the AppropriateAuthority to make available copies of the relevant records in itspossession to such person.”That means, only the appropriate authority can file a complaintof which the cognizance can be taken by a Metropolitan Magistrate orJudicial Magistrate First Class. The complaint here in this Section 28 of the 91_Cri.Appln_703_2024+1P.C.P.N.D.T. Act is a complaint defined under Section 2(d) of the Code ofCriminal Procedure. Same is the case with the Drugs and Cosmetics Act.Section 32 of the Drugs and Cosmetics Act prescribes thus - “32.Cognizance of offences. - (1) No prosecution under thisChapter shall be instituted except by - (a)an Inspector; or (b)any Gazetted Officer of the Central Government or a StateGovernment authorized in writing in this behalf by the CentralGovernment or a State Government by a general or special ordermade in this behalf by that Government; or (c)the person aggrieved; or (d)a recognized consumer association whether such person is amember of that association or not. (2)Save as otherwise provided in this Act, no Court inferior to thatof a Court of Session shall try an offence punishable under thisChapter.(3)Nothing contained in this Chapter shall be deemed to preventany person from being prosecuted under any other law for any act oromission which constitutes an offence against this Chapter.”Therefore, First Information Report under Section 154 of theCode of Criminal Procedure is not maintainable. We may take help of thedecision of Hon’ble Single Bench of Allahabad High Court in Dr. Brij PalSingh vs. State of U.P. and another [2024 AHC 159207], wherein also it was 101_Cri.Appln_703_2024+1an application under Section 482 of the Code of Criminal Procedure forquashing the order and the entire proceedings, wherein apart from IndianPenal Code Sections, there were Sections under the P.C.P.N.D.T. Act. Theentire scheme under P.C.P.N.D.T. Act has been considered, so also variousdecisions of various High Courts have been considered and provisions inrespect of the Drugs and Cosmetics Act in the light of decision in Union ofIndia vs. Ashok Kumar Sharma [(2021) 12 SCC 674] has been considered. Ithas been held in Ashok Kumar Sharma (supra) that in view of bar providedunder Section 32 of the said Act no proceedings can be initiated except on acomplaint of the Drug Inspector for the offences under the Drugs Act. ThisCourt in Dr. Sai vs. State of Maharashtra [(2016) SCC OnLine Bom 8812] hasobserved that no Court shall take cognizance of an offence under thePCPNDT Act except on a complaint made by an Appropriate Authority i.e. theAuthority notified under Section 17 of PCPNDT Act. This Court has evenconsidered the provisions of Sections 17, 17A and 28 of the PCPNDT Acttogether and observed that Appropriate Authority has to act as aninvestigator to inquire into the allegations of violation of PCPNDT Act andRules thereunder either on the basis of complaint received as well as to actsuo motu. …………………… If the complaint is inquired and investigatedresults into collection of evidence sufficient to prosecute the person forviolation of the provisions of PNPNDT Act, then only criminal proceedings is 111_Cri.Appln_703_2024+1expected to be filed under Section 28 of the PCPNDT Act. 8In Dr. Anant Ram (supra) relied by learned APP, it can be seenthat case was made out in respect of the offence under Indian Penal Codealso and, therefore, the view was taken that First Information Report underSection 154 of the Code of Criminal Procedure is maintainable, however, inthis case, at the cost of repetition, we would like to say that the facts of thecase are not attracting the offence under the Indian Penal Code or M.T.P. Actand, therefore, we are constrained to look into only the PCPNDT Act and theDrugs and Cosmetics Act. This leads us to conclude that since the FirstInformation Report was not maintainable in view of the bar under Section 28of the PCPNDT Act and under Section 32 of the Drugs and Cosmetics Act, itwould be an abuse of process of law if the applicants are asked to face thetrial. Here, we are also making it clear that we have not gone into the aspectof, whether the informant can be considered as an appropriate authority ascontemplated under PCPNDT Act and its rules. Case is made out for exerciseof powers under Section 482 of the Code of Criminal Procedure. Hence,following order. ORDERi)Both Criminal Applications stand allowed. 121_Cri.Appln_703_2024+1ii)The proceedings in Regular Criminal Case No.69/2024 pendingbefore learned Judicial Magistrate First Class, Georai, Tq. Georai, Dist. Beed,arising out of First Information Report vide Crime No.9/2024 dated04.01.2024 registered with Police Station, Georai, for the offence punishableunder Sections 312, 120-B read with Section 34 of the Indian Penal Code,1860, Sections 3, 4 of the Medical Termination of Pregnancy Act, 1971,Sections 3(1), 3(3), 6(a), 6(b), 6(c), 18, 23(1), 23(2) of the Pre-conceptionand Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994and Section 18(c) punishable under Section 27(B)(ii) of the Drugs andCosmetics Act, 1940, stands quashed and set aside as against applicant SatishBalasaheb Gaware in Criminal Application No.703 of 2024 and applicantChandrakant Pandurang Chandanshiv in Criminal Application No.3352 of2024. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd