Case Note & Summary
The applicant, Dr. Sandhya Arun Kulkarni, challenged the order of issuance of process passed by the Judicial Magistrate First Class, Chandrapur on 27-11-2012 under various provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Rules, 1996, and the order of the Additional Sessions Judge-1, Chandrapur on 01-08-2013 dismissing her revision application. The applicant argued that under Section 28 of the Act, a complaint must be filed by the appropriate authority appointed under Section 17 or by an officer authorized by such authority. The complaint in this case was filed by Dr. B.W. Ramteke, who was neither the appropriate authority nor an authorized officer. The State and respondent no.2 contended that the complaint was effectively filed by the Commissioner of Municipal Corporation, who is the appropriate authority, and any irregularity was curable. The court examined the complaint and found that it was signed and verified by Dr. Ramteke, who described himself as the authorized officer of the Commissioner. However, there was no document on record showing that Dr. Ramteke was authorized by the Commissioner to file the complaint. The court held that the complaint was not filed by the appropriate authority or a duly authorized officer, and therefore, the Magistrate could not take cognizance. The defect was not curable as it went to the root of the jurisdiction. The court quashed the orders of the Magistrate and the Sessions Judge.
Headnote
A) Criminal Procedure - Cognizance of Complaint - Section 28 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Complaint must be filed by appropriate authority or officer authorized by such authority - In the present case, complaint was filed by Dr. B.W. Ramteke who was neither the appropriate authority nor an authorized officer - Held that the Magistrate could not take cognizance of such a complaint as it was not filed by a competent person (Paras 2-6).
Issue of Consideration
Whether the complaint under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 was filed by a person authorized to do so under Section 28 of the Act, and whether the Magistrate could take cognizance of such a complaint.
Final Decision
The court allowed the application, quashing the order of issuance of process dated 27-11-2012 passed by the Judicial Magistrate First Class, Chandrapur and the order dated 01-08-2013 passed by the Additional Sessions Judge-1, Chandrapur.
Law Points
- Complaint under PCPNDT Act must be filed by appropriate authority or authorized officer
- Cognizance cannot be taken on complaint by unauthorized person
- Defect in filing is not curable if complaint not filed by proper person
Case Details
2015 LawText (BOM) (02) 149
Criminal Application (APL) No.520 of 2013
Shri S.V. Sirpurkar for applicant, Shri J.B. Kasat for respondent no.2, Shri M.M. Ekre APP for respondent no.1
Dr. Sandhya Arun Kulkarni
The State of Maharashtra through its authorized officer Dr. B.W. Ramteke, Commissioner of Municipal Corporation, Chandrapur
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Nature of Litigation
Criminal application challenging order of issuance of process under PCPNDT Act and dismissal of revision.
Remedy Sought
Applicant sought quashing of the order of issuance of process and the order dismissing revision.
Filing Reason
Applicant contended that the complaint was not filed by the appropriate authority or an authorized officer as required under Section 28 of the PCPNDT Act.
Previous Decisions
Judicial Magistrate First Class, Chandrapur issued process on 27-11-2012; Additional Sessions Judge-1, Chandrapur dismissed revision on 01-08-2013.
Issues
Whether the complaint under the PCPNDT Act was filed by a person competent to do so under Section 28?
Whether the defect in filing the complaint is curable?
Submissions/Arguments
Applicant: Complaint filed by Dr. Ramteke who is neither appropriate authority nor authorized officer; no cognizance could be taken.
Respondent no.1: Complaint filed by authorized officer; basically filed by Commissioner who is appropriate authority; irregularity curable.
Respondent no.2: Complaint filed by Commissioner; defect curable by giving opportunity.
Ratio Decidendi
Under Section 28 of the PCPNDT Act, a complaint must be filed by the appropriate authority or an officer authorized by such authority. The complaint in this case was filed by Dr. Ramteke who was not shown to be authorized. The defect is not curable as it goes to the root of the jurisdiction of the Magistrate to take cognizance.
Judgment Excerpts
The complaint in this case has been filed by one Dr. Ramteke who is neither the appropriate Authority nor the authorized officer and therefore, in view of Section 28, no cognizance of the complaint as filed in this case could have been taken by the learned Magistrate.
There is nothing on record to show that Dr. Ramteke was authorized by the Commissioner to file the complaint. Therefore, the complaint was not filed by the appropriate authority or a duly authorized officer.
Procedural History
The Judicial Magistrate First Class, Chandrapur issued process on 27-11-2012. The applicant filed a revision before the Additional Sessions Judge-1, Chandrapur, which was dismissed on 01-08-2013. The applicant then filed the present criminal application before the High Court.
Acts & Sections
- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994: Section 28, Section 17, Section 19(4), Section 4(3), Section 3(2)
- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996: Rule 6(2), Rule 8(ii), Rule 9(8), Rule 18(ix)
