Medical Officer of Municipal Corporation is not the Competent Authority under PCPNDT Act. Hon. Supreme Court dismissed Petition filed by the Authority. -Adv. ROHiT ERANDE. ©

Medical Officer of Municipal Corporation is not the Competent Authority under PCPNDT Act.  Hon. Supreme Court dismissed the Petition filed by the Authority. It thereby confirms the decision of Hon'ble Bombay High Court.

Adv. ROHiT ERANDE.
©

Facts in short :
1.The case takes us to Aurangabad, Maharashtra. The Petitioner Doctor Duo-  runs a Hospital in the name of Matoshri Hospital. The Petitioner No.1, Dr. Tanuja Barde being the  Gynecologist and her chest specialist - husband, viz. Dr. Shriniwas Barde, the Petitioner No.2 is a Government servant. Both of them challenged  the action of suspension of thier license of Sonography Center by the then Acting Competent  Authority (AA) Respondent no.2 i.e. the Medical Officer of Nanded Municipal Corporation, Nanded. It is interesting to note that the Respondent No. 2 filed a private complaint bearing R. C. C. No. 392 of 2013 alleging that a tip of sex determination in was received   Therefore, the vigilance cell decided to introduce a decoy customer. 

2. It was alleged that  the sonography on the decoy customer  was conducted by Petitioner No.2 and both the Doctors informed the decoy customer that it was a girl child. Thereafter the decoy customer contacted the Police and AA lodged a private  complaint  before Chief judicial Magistrate, against the Petitioners for sex determination and also for F form irregularities, with the . 

3. Taking into consideration the record, the Ld. Court issued  process against the accused doctors for the offences punishable under Sections 4, 5, 6 and 29, rule 4 and 9 read with Section 23 of Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 and Section 120B of the Indian Penal Code by order dated 5.7.2013 and thus the Doctor Duo approached hon. Bombay high Court, Aurangabad Bench vide Criminal Appl. no. 520/2018.

4. The Petitioners doctors  have contended before High Court that  the complainant can not be said to be a "Competent Authority" under the PCPNDT Act to initiate the criminal prosecution. They relied on  the copy of corrigendum dated 3.2.2016 to the Govt. Resolution dated 9.12.1997 which clearly mentioned that at the district place the Civil Surgeon shall be the "Appropriate Authority". Where  at a district place there is no Civil Surgeon then the Dean of the Medical College shall be the "Appropriate Authority" and where there is no Medical college, Medical Officer of the Municipal Corporation shall be the "Appropriate Authority". It is stated that as the Civil Surgeon is available at Nanded, said M.O. cannot be said to be the Competent  /Appropriate Authority  and therefore, original complainant should fail. It was further contended that the Doctors denied all the allegations and the reply given by them was never considered by the said AA.

5. On the other hand, the Govt. denied the allegations made in the petition and they backed the action of AA as being legal. The Govt. argued that the applicants relied on a case bearing Criminal Writ Petition No. 88/2017, wherein a one Doctor from Nanded had challenged the similar  proceedings against her under PCPNDT Act, initiated by present AA and said case was dismissed and hence this case is of no use to the petitioners. 

Held :
1. The matter was heard at length before Her Ladyship V. V. Kankanwadi J. It was observed that the perusal of the said resolution itself would make it clear that the Civil Surgeons or Dean of Medical Colleges (where Civil Surgeons are not available) at every district level were appointed as an "Appropriate Authority" under the PCPNDT Act. This resolution was produced by the respondent No. 2  also. 

2. It is worth noting that  in respect of appointing a Dean of B. J. Medical College and the respective Medical Superintendent in the remaining Municipal Corporation Areas, the respective Health Officer is being appointed as the State Appropriate Authority. However, these 2 resolutions have been interpreted in Criminal Writ Petition No. 250/2015 by the Division Bench of Hon. Bombay High Court. In the said case, which was in respect of Aurangabad district, also, the complainant was Medical Officer, Health, Municipal Corporation and it was held that she can not be said to be the "Appropriate Authority". It was also observed that in order to demonstrate that she had authority to file the complaint, it was necessary on the part of the complainant therein that there is neither the post of District Civil Surgeon nor that of the Medical  Superintendent affiliated to the Medical College at Aurangabad.  By virtue of residuary clause of the said Notification dated 9.12.1997, the Health Officer of the Municipal Corporation is required to act as an Appropriate Authority. However, when superior posts are available at Aurangabad, the said residuary clause in the notification will not come into play and will not give any authority to the Medical Officer, Health.

3. The Court observed that, it will not be out of place to mention here that the Division Bench of this Court in Criminal Writ Petition No. 250/2015 had taken a note of all the Govt. Resolutions right from Govt. Resolution dated 9.12.1997. Hence, interpretation of those Resolutions have been made and therefore, it is beyond the scope of this Court to interpret that  again. It was further held that a note has been taken in respect of the said Govt. Notification dated 6.11.2001 and it has been observed that by that notification, Govt. has been pleased to appoint the Medical Superintendent of Rural Hospital at every Taluka level is the Appropriate Authority. Under such circumstance, if by that Resolution Medical Superintendent of the Rural Hospital of the Taluka was made an Appropriate Authority, it was for the complainant to show that she was the Medical Superintendent at that time. Further, the area in which the incident is stated to have taken place is the Municipal Corporation area. It is not within Rural area at Taluka level. It was observed that their lordships of Division Bench in their order dated 16/10/2015   held that  the Medical Health Officer of the Municipal Corporation can not be said to be an "Appropriate Authority" and this decision is binding. 

 4. The Court further held that the Respondent in this case is relying upon the subsequent Resolution dated 16.3.2016 wherein it is stated that for Municipal Corporation area the Medical Health Officer would be the Appropriate Authority and   that in old cases, if any pending on the date of publication of the said notification shall be dealt with by the concerned authorities. The  Court said that the interpretation of this can be said that the Appropriate Authorities which were earlier granted the authority under different Govt. Resolution would continue the prosecution of old cases. If there was no authority to the person who had filed the complaint prior to Govt. Resolution dated 15.5.2015, it can not be stated that those other Appropriate Authorities were allowed to continue the prosecution of the old cases. Govt. can not legalize any illegal act retrospectively to cure inherent defect. Therefore, the Govt. Resolution dated 15.5.2015 and 16.3.2016 can not be interpreted to mean that they are giving and protecting the alleged powers given to the complainant.(The present case was filed in the year 2013)

 5. Regarding the contention of the Respondent about dismissal of WP No. 88/2017, the Court observed the said dismissal is of no use to the Respondent because in the said Petition, the "authority" of the respondent in the said case was not challenged. 

 6. Lastly, it was observed, that it can be said that the applicants-Doctors are successful in showing that the respondent No. 2 was not the Appropriate Authority to lodge the complaint under PCPNDT Act against them. It would be an abuse of process of law, if the complaint is allowed to proceed further and thus the compliant was quashed.
The Judgment is available on following link.
https://indiankanoon.org/doc/29733914/

 7. This Judgment was challenged by the Respondent -AA before Honorable Supreme Court, vide SLP (criminal) diary No. 43263/2018. On 18/12/2019, the 3 judges bench of Hon. Supreme Court, consisting of Hon'ble the Chief Justice, Hon'ble B.R. Gawai and Hon'ble Surya Kant JJ, dismissed the said petition and held
"We see no reason to entertain this petition. Accordingly, the special leave petition is dismissed. Pending applications stand disposed of ".
The Order of Hon'ble Apex Court is available on following link :


Thus as a result the order passed by Hon'ble Bombay High Court is upheld. This judgment is of great relief to Doctors against highhanded action of the authorities. 
The Law is settled which says that "if any thing is required to be done in a particular way, then it should be done in that way or it should not be done at all". 
One important aspect which is to be taken in to consideration is this judgment is based on the provisions made by Govt. of Maharashtra. As far as other States are concerned, this judgment may be applicable if there exist similar facts. 

 Thanks and Regards,

 Adv. Rohit Erande
Pune. ©

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