SWAROOP CHARAN SAHU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This batch of the petitions are filed under Section 482 of Code of Criminal Procedure, 1973 (in short referred to as "Cr.P.C.") for setting aside the orders taking cognizance under Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the PC and PNDT Act) passed by the trial Court against respective applicants and to seek quashment of the private complaints filed by the Chief Medical and Health Officers, (in short, it be referred CMHO) Bhopal and Hoshangabad in the respective cases.

(2.) Learned counsels Shri Som Mishra, Shri Hemant Namdeo and Shri Anurag Gohil for the petitioners placed reliance on the judgment of this Court in the case of Manvinder Singh Gill (Dr.) vs. State of M.P. reported in ILR (2014) MP 1176 to contend that in case the complaint has not been filed by the appropriate authority defined under Section 17(2)(3) , the congnizance under Section 28(1)(a) of the PC and PNDT Act cannot be taken by the Court and the said complaint may be quashed. It is urged that the order passed by this Court has been confirmed dismissing the Special Leave to Appeal (Crl.) No.2226/2014 vide order dated 3.8.2015 by Hon'ble the Supreme Court with certain observations but the said observations also do not apply in the fact and situation of the present case. Reliance has also been placed on an other order dated 21.1.2016 passed in M.Cr.C. Nos.6408/2013 and 6407/2013 and Cr.R. No.1175/2012 (Dr. Girish Mehta vs. The State of Madhya Pradesh) wherein also the complaint filed by the concerned C.M.H.O. has been dismissed on the same ground. Learned counsel has also placed reliance on the order dated 30.1.2017 passed in M.Cr.C. No.10264/2016 (Dr. Das Motwani vs. State of M.P.) wherein this Court has again considered the order of Dr. Manvinder Singh Gill (supra) and the observation of the Supreme Court and reiterated the same principles. It is contended that the observation made by the Supreme Court in SLP (Criminal) is contrary to the provisions of the PC and PNDT Act, and is obiter, it cannot be treated as precedent. It is also urged that the observation of the Apex Court in reference to Section 28(1)(a) that complaint can be fied by any officer authorized by the "Appropriate Authority", must be notified in Official Gazette otherwise the requirement of Sections 17(2) and 17(3) of the Act shall not be fulfilled. The Central General Clauses Act, 1897 does not define "notification", whereas section 3(39) defines "official Gazette" or "Gazette" as the Gazette of India or the Official Gazette of the State. In The Madhya Pradesh General Clauses Act, 1957 word "notification" has been defined in Section 2(25) and "Official Gazette" or "Gazette" in Section 2(28) of the said Act. To buttress the said contention, reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of Union of India and others vs. M/s Ganesh Das Bhojraj reported in AIR 2000 SC 1102. The reliance has also been placed on the case of Collector (District Magistrate) Allahabad and another vs. Raja Ram Jaiswal AIR 1985 SC 1622. In view of the said, it is submitted that if the Appropriate Authority has authorized any person, it ought to be notified as per Section 17(2) of the PC and PNDT Act, but no such notification has been produced before this Court, therefore, also the complaint filed by CMHO is liable to be quashed.

(3.) In addition to the aforesaid, it is also urged that section 28(1) start with a non-obstante clause in the matter of taking of cognizance for an offence except on a complaint made. The "complaint" has been defined under Section 2(d) of the Cr.P.C. and the word "made" has been defined by which it would not include personal presentation and presentation can be by use of any mode. In support of the said contention, reliance has been placed on the judgment of Allahabad High Court in the case of Kanchan Singh vs. S.T.A.T. Lucknow AIR 1980 All 23. He has also placed reliance on a judgment of Bombay High Court (Aurangabad Bench) in the case of Mr. Roy Joseph, Mr. Anil Parshuram Sawant and Mr. Yogesh Jayantilal Mehata vs. SK. Tamisuddin, A Special Power of Attorney of Deceased Smt. Sairabee, Mr. K.N. Tungar, IVth Additional Sessions Judge and State of Maharashtra (2008) CriLJ 1509. In view of the above, it is urged that the order taking cognizance of the trial Court, on a complaint filed by the CMHO under the provisions of PC and PNDT Act is in excess to the jurisdiction. However, in exercise of powers under Section 482 of the Cr.P.C. the order taking cognizance may be set aside and the complaint itself may be quashed.