Hon. Orissa High Court in a huge relief to Doctors held that the authority to file the complaint cannot be shifted by the AA - Adv. ROHiT ERANDE -©
Hon. Orissa High Court in a huge relief to Doctors held that the authority to file the complaint cannot be shifted by the AA.
The Court rejected the contention of the Govt. that the instead of technicalities, intent of legislation should be seen.
The Court further said when a statute provides for a thing to be done in a particular manner, it has to be accomplished in that manner only.
IN THE HIGH COURT OF ORISSA AT CUTTACK C. RLMC No.4249 of 2009
Dr. Sudhir Kumar Brahma & ors V/s. State of Odhisa.
CORAM:
JUSTICE R.K. PATTANAIK. DATE OF JUDGMENT : 19.09.2022
Judgment Link :
https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=%2FbY2dBB1fxliePvWrCseoztFZJqL9Fbc%2BZtXY9z%2By%2BI40sC1zqfbhbN2Q7cq523D&caseno=CRLMC/4249/2009&cCode=1&appFlag=
In the total more than 10 Write petitions filed by Doctors, a common question was before the consideration i.e. :
i.
Whether the criminal prosecutions vis-à-vis the petitioners under Sections 23 and 25 of the
Pre-Conception & Pre-Natal Diagnostic
Techniques Act, 1994 (hereinafter referred to as ‘the PC&PNDT Act’) are legally
tenable?
ii.
Whether such individual prosecution is by the designated authority and if consistent with Sections 17 and 28 of the PC&PNDT Act?
Facts in
short :
1.
The batch of Writ Petitions were filed 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’) dated 27th
July, 2007 and not by other
officials like the Chief District Medical Officer (CDMO)/Additional District Medical Officer (ADMO)/Executive
Magistrate (EM).
2.
It is contended on behalf of the petitioners that the
actions taken under the PC&PNDT Act is not by the AA but instead by the CDMO/ADMO/EM are not as per and in
accordance with Section 28 which
mandates that a criminal prosecution shall have to be through a complaint filed by the AA. In some cases,
it is made to suggest that CDMOs have
filed the complaints being authorized by the respective DMs, who have been appointed as the AAs for each district within
the State by the OM superseding
earlier notification No.3058 dated 24th January,
2002 of the Health and Family Welfare Department of the Government of Orissa, whereby, CDMO of a district was the AA
under the PC&PNDT Act. For better appreciation, the aforesaid OM is reproduced herein below.
“Government of Orissa
Health and Family Welfare Department No.19077/H. Dt.27/7/07
OFFICE MEMORANDUM
1. District Appropriate Authority
2. Sub-District Appropriate Authority
Principal Secretary to Government”
Held :
1. It was observed as per PC&PNDT Act and its provisions, Section 28 begins with a non-obstante clause and goes on to say that cognizance of the offences has to be based on a complaint by the AA or authorized officer. On a conjoint reading of Section 17(3)(a)(b) and Section 28(1)(a) of the PC&PNDT Act makes it is profoundly clear that a complaint is to be filed by the AA or any such officer, who has been so authorized. It is submitted at the Bar that in view of the above provisions, it has to be the AA to file the complaint in view of the OM dated 27th July, 2007 which allows him to do so besides to nominate an EM for monitoring the implementation of the provisions of the PC&PNDT Act. It is contended on behalf of the petitioners that a procedure is prescribed under the PC&PNDT Act which is to be scrupulously followed without any departure. In this regard, a judgment of the Supreme Court in the case of Dipak Babaria and another Vrs. State of Gujarat and another reported in (2014) 3 SCC 502 is relied upon to contend that when a statute provides for a thing to be done in a particular manner, it has to be accomplished in that manner only.
2. The contention is that if a statute confers a power and lays down a procedure for exercise of such power, it has to be exercised in the manner so prescribed and in the present case, since the complaints have been filed not by the AAs but by other officials, the learned courts below should not have entertained it.
3. In support of such contention, a judgment of the Bombay High Court in the case of Dr. Paayal V/s. State of Maharashtra and others (Criminal Writ Petition No.250 of 2015) disposed of on 16th October, 2015 is cited, wherein, it is held that when the complaint has not been filed by the AA as per the PC&PNDT Act, the court cannot take cognizance of the offence in view of Section 28 of the Act and in such eventuality, the proceeding shall have to be terminated while making a reference to Article 21 of the Constitution of India which mandates that a person shall not be deprived of his life or liberty except according to the procedure established by law.
4. A decision of the M.P. High Court in the case of Mukesh Rathore V/s. State of M.P. and another decided in MCC No.3154 of 2020 and disposed of on 26th June, 2020 is also placed reliance, wherein, it is held that AA as defined under the PC&PNDT Act shall have to initiate the action and no one else or by any such officer duly authorized by the Government or the AA.
5. As to the exercise of authority by the AA and maintainability of the prosecution under the PC&PNDT Act, a decision of the Supreme Court in the case of M.P. Vrs. Manvinder Singh Gill decided in SLP (Criminal No.2226 of 2014) dated 3rd August, 2015 is also referred to while contending that the Court shall have to take cognizance according to the provisions of the PC&PNDT Act and in the manner prescribed and not otherwise. In the said case, the challenge was to the notification of the State Government to delegate powers to initiate prosecution for offences under the Prevention of Food Adulteration Act, 1954. Herein essentially the contention is that the prosecutions have not been set in motion through complaints filed by the AAs and therefore, they are to be terminated since it touches upon and hits the jurisdiction to entertain the same. The argument is that only if the complaint is a valid one and as per the PC&PNDT Act, only then, it can be maintained by a court and not otherwise.
Don’t to go to technicalities : Defence of the State
6. On the other hand, the learned AGA strenuously urged that the complaints have been filed at the behest of the AAs and therefore, instead of adhering to the technicality rather considering the spirit of the law and its legislative intent, the proceedings should not be quashed. In that regard, a decision of the Supreme Court in the case of Federation of Obstetrics and Gynaecological Societies of India (FOGSI) Vrs. Union of India reported in (2019) 6 SCC 283 is relied upon. In the aforesaid case, the Apex Court was seized of a matter where some of the provisions of the PC&PNDT Act were challenged as ultra vires which was repelled and rejected with a conclusion that they have been incorporated to give effect to the aim and objective of the statute. One more judgment in the matter of State of Orissa Vrs. Mamata Sahoo and others reported in (2019) 7 SCC 486 is cited by the learned AGA, wherein, the Apex Court declined to interfere with a proceeding which was challenged on the ground that the inspection under the PC&PNDT Act was conducted by an EM and not the AA. The sum and substance of the argument by the learned AGA is that even though, in the cases at hand, the complaints have not been filed by the AAs but having regard to the intent and purport of the PC&PNDT Act and its legislative design, the proceedings vis-à-vis the petitioners should not be terminated on such ground rather the effort must be to ensure to penalize the perpetrators of the crime.
7. According to the Apex Court in the FOGSI case, the PC&PNDT Act is a comprehensive social legislation having been conceived to avoid the consequences of skewed sex ratio in India which could propel to serious incidents of violence against women. The Court is well aware of the significance of such a statute which is enacted to obviate illegal acts of pre- natal diagnostic procedures being adopted for the purpose of ascertaining the sex of an unborn child. Against the above backdrop, the Court is to appreciate whether the plea of the petitioners challenging the prosecutions on the ground of invalid complaints should be accepted. At the same time, the ratio of the judgment in Dipak Babaria(supra) is to be borne in mind since if a statute has conferred a procedure to do an act, it necessarily bars the doing of such act in any other manner than the one specified. Thus, the pertinent question is, whether, the CDMO/ADMO/EM could have filed the complaints and the courts concerned should have entertained the same for having not been filed by the DMs?
8. As per Section 17(4)(e) of the PC&PNDT Act, the AA shall have the authority to take appropriate legal action against the use of any sex selection technique by any person at any place either suo motu or being brought to notice and also to initiate independent investigation in such matters. Section 28 (1) of the PC&PNDT Act clearly mandates that a court shall not take cognizance of any offence except on a complaint being filed by the AA or by any officer authorized by him or the appropriate Government. Whether the AA can delegate the power to any other officer for filing of a complaint? The reply to the above question is not in the affirmative. The PC&PNDT Act does not provide any such authority for the AA to delegate the responsibility. However, the AA can authorize an officer for the aforesaid purpose which is evident from Section 28(1)(a) of the Act. In so far as the OM of the State Government dated 27th July, 2007 is concerned, the AA may nominate an EM of the district as his nominee to assist him in monitoring implementation of the PC&PNDT Act. The petitioners contend that for a limited purpose, an EM is nominated so as to render assistance to the AA, who is primarily responsible for the execution and overall implementation of the provisions of the PC&PNDT Act. In other words, according to the petitioners, an EM if nominated by the AA shall be responsible for offering his assistance and therefore, cannot and shall not be eligible to register a complaint which has to be done by the AA only. In the decision of Mamata Sahoo (supra), the Apex Court held that when an EM inspected a clinic, the proceeding has not been vitiated as he was authorized for the said purpose. The above decision has been relied upon by the learned AGA while contending that the filing of the complaints by the CDMO/ADMO/EM since a part of the implementation process notwithstanding the fact that the DMs have not filed such complaints, in view of the said authority of the Apex Court, the proceedings cannot be held as bad in law. But the PC&PNDT Act is very clear which speaks of the manner in which the complaints are to be filed and it must have to be by the AA which is conspicuously evident from Section 28(1) of the said Act. If the CDMO of a district files a complaint, he cannot file it not being the authority under the PC&PNDT Act.
9. The court also observed that in some of the cases, it has been found that instead of a complaint being filed, FIR has been registered. For taking of cognizance of offences punishable under the PC&PNDT Act, no doubt an investigation may be undertaken by the police but for initiating a criminal prosecution, it shall have to be through a complaint filed by the AA. From the aforesaid discussion, the conclusion which is drawn by the Court stands summarized herein below:
(i) AA is the authority who is to file the complaint as per Section 17(4)(e) read with Section 28 of the PC&PNDT Act read with the OM of the State Government dated 27th July, 2007 and no other official;
(ii) In view of the OM, DM is the AA in respect of a district and SDM (Sub-Collector) shall be the authority vis-à-vis Sub- District (Sub-Division) who shall file the complaint under the PC&PNDT Act;
(iii) For the purpose of rendering assistance, an EM may be nominated by the DM for monitoring the implementation of the PC&PNDT Act which is by virtue of the OM of 2007;
(iv)The authority to file the complaint cannot be shifted by the AA, inasmuch as, there is no such provision in the PC&PNDT Act for delegation of power for the said purpose;
(v) A complaint cannot be filed by any other official as a substitute of the AA or in the guise of or on behalf of the AA in derogation to the OM;
(vi) For the purpose of inspection, investigation etc. any other officer may be engaged by the orders of the DM in accordance with the OM which is for assisting the authority in due implementation of the PC&PNDT Act and not beyond;
(vii)Any such complaint filed other than by the AA cannot be held as a valid prosecution in accordance with law;
(viii) The OM is issued by the State Government whereby the DM/SDM is to file the complaint and not the CDMO anymore after supersession of the notification of 2002 and if at all, he is treated as an EM, he can only be said to render help and assistance to the DM and not to usurp the jurisdiction of the AA.
10. The court held therefore, in both the cases since the cognizance of the offences taken on the basis of chargesheets and not on the strength of complaints as envisaged in Section 28 of the PC&PNDT Act, the Court has therefore held that the impugned proceedings cannot stand and shall have to be terminated.
11. The Court observed though the OM authorizes the EM to have the role of assisting the DM, however, by no stretch of imagination, he can be permitted to file the complaint which shall have to be by the DM at the district level and SDM/Sub-Collector at the level of Sub-Division. So, at the cost of repetition, it has to be held that in all the above cases, the procedure which has been laid down and the mechanism in place as stipulated in the PC&PNDT Act read with the OM was not followed, rather, the officials who did not have the authority to file complaints for the offences punishable under Sections 23 and 25 of the said Act initiated the prosecutions which cannot be sustained in law. To reiterate and while referring to the decision of the Apex Court in the case of Dipak Babaria (supra) and applying its ratio, the Court reaches at a logical conclusion that a complaint shall have to be filed by the DM and the procedure so prescribed in the PC&PNDT Act must be followed in view of the rule of interpretation ‘expressio unius est exclusio alterius’ which stipulates that when something is mentioned expressly in a statute, it leads to the presumption that the things not mentioned are excluded. Thus, the Court is of the final opinion that even assuming that the CDMOs/ADMOs have been nominated as the EMs, they could not have filed the complaints. Any such authorization in favour of the CDMOs/ADMOs by the DMs shall have to be read in terms of the OM which only nominates them as the EMs to assist the respective DMs in the monitoring and implementation of the PC&PNDT Act and not to cross the line especially when the OM replaced the earlier notification of 2002 which had appointed the CDMOs as the AA.
This is indeed very important judgment. The hon. Court has nailed it the issue that any such complaint filed other than by the AA cannot be held as a valid prosecution in accordance with law. No one denies the object and aims of social legislation like PC&PNDT Act. But that does not mean that Doctors are to be made scapegoats every time as the easy targets. Those who are if involved in the heinous crime of Sex Determination should be dealt with heavy hands. The moot question is whether that is happening ?
With kind regards
(Adv. ROHiT ERANDE) Pune.©
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