Dr.R.D.Negi & Anr. v. The State of Haryana

HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.R.S.Rai, Sr., Advocate, with Ms.Meenakshi Dogra, Advocate, for the petitionerss. M.M.S. BEDI, J. *** Vide order dated 25.05.2009, Annexure P-2, the petitioners have been discharged in a complaint under Section 28 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short 'the PNDT Act'). The said order of discharge was challenged by the State authorities before the Sessions Court. The said order was . . . 1 Crl. Misc. No.26337 of 2010 (O&M) upheld with liberty to the State to file fresh complaint in accordance with law vide order dated 16.09.2009. The order dated 16.09.2009, has been challenged to the extent of giving liberty to the State authorities to file a fresh complaint in accordance with law. The matter is pending in the High Court in Crl. Misc. No.M-30024 of

2009. During the pendency of the said proceedings, the Judicial Magistrate First Class, vide order dated 24.08.2009, on an application of the petitioners ordered the release of the ultrasound machine taken in possession during the course of proceeding under the Act by passing the following order: - “For the reasons recorded above, I am of the opinion that the applicant is the person best entitled to the possession of the Ultrasound machine in question and therefore, the Ultrasound Machine along with its necessary parts be de-sealed and released in favour of the applicant. However, the applicant is not to use the machine in violation of any provision of law and same is to be used in accordance with the law in force.” The said authority not happy with the order, filed a revision petition before the Additional Sessions Judge, Faridabad. The Additional Sessions Judge Faridabad, has passed the following order on 02.07.2010: - “In the present matter, the order of discharge dated 25.05.2009, has been upheld by this Court with liberty to State to file a fresh complaint in . . . 2 Crl. Misc. No.26337 of 2010 (O&M) accordance with law and the same has been filed by the State. The proceeding before the trial Court in the said complaint have been stayed by the Hon'ble High Court. In view of these circumstances, I do not find any justification to interfere with the order dated 24.08.2009, at this stage. However, keeping in view the fact that matter regarding competence of appellant to file fresh complaint is pending before the Hon'ble High Court, it is made clear that in case the complaint is revised against the respondent, the respondent shall surrender the machine within fifteen days and seek fresh orders from the learned trial Court. As noted in the order of learned Magistrate, it is again made clear that the ultrasound machine shall be used only in accordance with the PNDT Act and rules. The appeal is, therefore, disposed off in the above stated terms. File be consigned to the records.” Counsel for the petitioners has contended that the above said order passed by the Additional Sessions Judge, to some extent give an indication that in case a fresh complaint is filed by the competent authority on the same allegations, the petitioners will be required to surrender machine and that the ultrasound machine was to be used in accordance with the PNDT Act and rules. The order has been challenged on the ground that it farfetched order based upon a presumption that the machine released to the petitioners would be used in violation of any provision . . . 3 Crl. Misc. No.26337 of 2010 (O&M) of law. It is contended that the orders passed by the Magistrate, were sufficient enough to caution the petitioners to use the machine. I have heard the counsel for the petitioners and carefully gone through the facts and circumstances of this case. In compliance with the orders of the Additional Sessions Judge, the District appropriate authority under the PNDT Act, issued a notice to the petitionerss, Annexure P-7, dated

12.07.2010 which reads as follow: - “Sub: Compliance of order dated 2.7.2010. In compliance of the order dated

2.7.2010, passed by the Court of Shri Parmod Goyal, Additional District Judge, Faridabad, we are de-sealing the machine in question and as per the observations of the Hon'ble Additional District Judge, Shri Parmod Goyal, Faridabad, you are directed to comply with the PNDT Act and rules qua this machine as your licence/registration which entitle you to use the machine has been suspended by our office vide order No.PNDT/FBD/2008/1443 dated 24.09.2008, and the said order was confirmed by the State Appropriate Authority-cum-Director General Health Services under the PNDT Act. Thus, you are hereby informed that the machine in question shall remain in your possession in a de-sealed condition till further order and you shall not use the machine in violations of the PC & PNDT Act. It is also stated . . . 4 Crl. Misc. No.26337 of 2010 (O&M) that in the event of revival of the complaint filed by us against you, you shall surrender the same with immediate effect to our office.” It is further contended that the order, Annexure P-7, is also based upon a presumption by the District appropriate authority under the PNDT Act, that the petitioners had been using the machine in violation of the PNDT Act or that they would use the same in violation of the provisions of the PNDT Act. The said presumption is prejudicial to the petitioners and is unwarranted by any other circumstances especially when the petitioners stand discharged in the complaint filed. I have heard the counsel for the petitioners and gone through the facts and circumstances of the case. The order passed by the Judicial Magistrate First Class, dated 24.08.2009, ordering the de-sealing of the ultrasound machine and handing over of the same is good enough to caution the petitioners not to use the machine in violation of any provisions of law and to use the same in accordance with the law in force. Any further directions passed in appeal under Section 454 Cr.P.C., by the Additional Sessions Judge, was uncalled for. This petition is disposed of with an observation that the direction issued by the Judicial Magistrate First Class, vide order dated 24.08.2009, will be binding on the petitioners and the possession of the machine with the petitioners will be subject to the final decision of the High Court in pending revision petition and any . . . 5 Crl. Misc. No.26337 of 2010 (O&M) directions issued by the High Court in Crl. Misc. No.M-30024 of 2009, if any. Disposed of with above said clarification. September 08, 2010. (M.M.S.BEDI) JUDGE . . . 6