SUDHIR KUMAR BRAHMA Vs. STATE OF ODISHA

JUDGEMENT

(1.) In the present batch of cases, a common question of law is involved which is as to the following:

(2.) The impugned proceedings are challenged on the grounds inter alia that the prosecutions ought to have been launched by the respective District Magistrate (DM) as per and in accordance with the Government's Office Memorandum (in short 'OM') dtd. 27/7/2007 and not by other officials like the Chief District Medical Officer (CDMO)/Additional District Medical Officer (ADMO)/Executive Magistrate (EM). It is pleaded that the learned courts below should not have entertained the complaints which were filed not by the 'Appropriate Authority' (AA) in accordance with the provisions of the PC&PNDT Act and the OM and therefore, the proceedings should be quashed in exercise of the Court's inherent jurisdiction.

(3.) It would be appropriate to reflect upon and discuss the relevant provisions of the PC&PNDT Act before adverting to the rival claims of the parties. In fact, the term AA is defined in Sec. 2(a) of the said Act which means an authority appointed under Sec. 17 thereof. The pre-natal diagnostic procedures have been prescribed in Sec. 4 with certain restrictions imposed. Sec. 5 specifies that no person referred to in Sec. 3(2) of the PC&PNDT Act shall conduct the pre-natal diagnostic procedure without the consent of the pregnant woman. The determination of sex is fully prohibited in view of Sec. 6. An elaborate procedure has been specified in the PC&PNDT Act for regulation on pre-natal diagnostic techniques and the manner in which, they shall have to be conducted, the intent and purpose being to prevent its misuse in the sex determination. Sec. 17 deals with the AA and functions an AA is required to discharge stands clearly mentioned in sub-sec. (4) thereof. The powers of the AA in certain matters have been indicated in Sec. 17(A) which is with regard to summoning of persons in possession of any information relating to violation of the provisions of the PC&PNDT Act; production of documents or material objects; issuance of search warrant for any place suspected to be indulged in sex selection techniques or pre-natal sex determination etc. Chapter VII of the PC&PNDT Act deals with the offences and penalties. A reverse presumption is attached in view of Sec. 24 of the PC&PNDT Act as to absence of consent of the pregnant woman unless contrary is proved while following the pre-natal diagnostic techniques for the purposes of the said Act. The offences under the PC&PNDT Act are cognizable in nature as per Sec. 27. In fact, sec. 28 specifies that no court shall take cognizance of any offence except on a complaint filed by the AA or such other officer duly authorized by the AA or the appropriate Government. As already indicated herein before, the ground of challenge is that the prosecutions have been initiated at the instance of the CDMO/ADMO/EM other than the AA which needs a threadbare discussion with reference to the provisions of the PC&PNDT Act.