Dr. Vijay Gupta Vs. The State of Rajasthan & Ors


S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta Vs. The State of Rajasthan & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.10086/2011
(Dr. Satish Jain Vs. The State of Rajasthan & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.16035/2011
(Dr. Sharda Mahala & Anr. Vs. The State of Rajasthan & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.16086/2011
(Dr. Rajeev Sharma Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.13192/2012
(M/s. A.K. Diagnostic Centre Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.13428/2012
M/s. Shree Bai Hi-Tech Imaging Centre, Jaipur
Vs.
The State of Rajasthan & Anr.
AND
S.B. CIVIL WRIT PETITION NO.8351/2012
(Indian Red Cross Society, Jaipur Vs. The State of Raj. & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.15728/2012
Dr. B.Lal Clinical Laboratory Pvt. Ltd., Jaipur
Vs.
The State of Rajasthan & Anr.
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
2
AND
S.B. CIVIL WRIT PETITION NO.12690/2012
Health Line Diagnostic Centre, Jaipur Vs. The State of Raj. & Anr.
AND
S.B. CIVIL WRIT PETITION NO.12151/2012
(M/s. Rajat Diagnostic Centre, Jaipur Vs. The State of Raj. & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.15727/2012
(Dr.B. Lal Clinical Laboratory, Jaipur Vs. The State of Raj & Anr.
AND
S.B. CIVIL WRIT PETITION NO.2095/2012
(Dr.Virendra Kumar Mahala Vs. The State of Rajasthan & Anr. )
AND
S.B. CIVIL WRIT PETITION NO.17983/2011
(Dr. Rajesh Arora Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.10449/2011
(Dr. Smt. Anjana Rathi & Anr. Vs. The State of Rajasthan & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.10139/2012
(Dr. Chanchal Sharma Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.18533/2012
(Smt. Bidami Devi & Anr. Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
3
S.B. CIVIL WRIT PETITION NO.9357/2012
(Dr. Prabodh Kumar Gupta Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.6434/2012
(Dr. Pramila Awtani Chowksey Vs. The State of Rajasthan & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.12395/2012
(M/s. Anil Hospital Vs. The State of Rajasthan & Anr.)
AND
S.B. CIVIL WRIT PETITION NO.5630/2011
(Sanjeevani Hospital Vs. The State of Rajasthan & Ors.)
AND
S.B. CIVIL WRIT PETITION NO.4752/2011
(Pardaya Memorial Hospital, Jaipur Vs. The State of Raj. & Anr.)
Date of Order 22nd May, 2014
HON’BLE MR. JUSTICE M.N.BHANDARI
Mr.Prahlad Singh ]
Mr.A.K.Sharma, Sr. Adv. with Mr.V.K.Sharma ]
Mr.R.K.Mathur, Sr. Adv. with Mr.Aditya Mathur ]
Mr.R.D.Rastogi ]
Mr.Rinesh Gupta for Mr.A.K.Gupta ]
Mr.S.S.Hora ]
Mr.Rajeev Surana ]
Mrs.Parinitoo Jain ]
Mr.A.C.Goyal ]
Mr.Anurag Shukla ], for the petitioner/s.
Mr.G.S.Gill, Additional Advocate General with
Mr.Akshat Choudhary, for the respondent/s.
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
4
By the Court:
This bunch of writ petitions challenges the order
dated 13th June, 2012, by which, the sonography machines were
seized apart from cancellation of registration. The
sinologists/doctors were also debarred to operate the sonography
machines. The challenge to the impugned order has been made on
many grounds. The respondents raised preliminary objections
regarding maintainability of writ petitions as the petitioners are
having efficacious remedy of appeal under Section 21 of The Preconception
and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 (for short “Act of 1994”). Few
petitioners preferred appeal/s prior to filing of writ petition/s,
thus two remedies have been taken simultaneously. In few other
cases, the appeals so preferred were dismissed and in other cases,
no appeal was preferred.
It would be necessary to first deal with the
preliminary objections to which reply has been given by the
petitioners stating that impugned order has been passed by the
incompetent authority, thus preliminary objections regarding
maintainability of writ petition/s should not come in their way. If
the impugned order has been passed by an incompetent authority
then one should not be relegated to the alternative remedy. It is
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
5
also stated that remedy of appeal is not available in view of the
fact that Section 21 of the Act of 1994 provides for appeal “in the
prescribed manner”. The provision of Pre-conception & Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Rules,
1996 (for short “Rules of 1996”) does not prescribe the manner
of appeal. Rule 19 of the Rules of 1996 does not provide an appeal
to the State Government from the order of State Appropriate
Authority, though Section 21 of the Act of 1994 provides for it.
In absence of the prescribed manner, petitioners were unable to
file an appeal.
In view of the arguments raised above, it is to be
determined as to whether remedy of appeal lies to the petitioners
even if manner is not prescribed and further, the petitioners can
be non-suited despite of the allegation that the impugned
impugned order has been passed by an incompetent authority.
I would first deal with the issue as to whether the
impugned order has been passed by the competent authority. The
aforesaid is otherwise a legal issue, thus can be raised directly by
maintaining a writ petition.
It is stated that Section 17 of the Act of 1994
provides for appropriate authority, which can be at different
levels. The appropriate authority shall be appointed by the State
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
6
Government by a Notification in the official gazette. The
allegations of the petitioners is that appropriate authority was no
appointed by a Notification in the official gazette, thus the
impugned order passed by the State Appropriate Authority cannot
be said to be competent. It is further stated that one of the
member of appropriate authority should be an eminent woman
representing the women’s organization. As against the aforesaid
provisions, Dr. Param Navdeep Singh, MLA was appointed as a
member of appropriate authority, though she is not representing
any women’s organization. The allegations have also been made
against appointment of Special Secretary of Health and Family
Welfare Department to be Chairperson of the appropriate
authority. It is in the light of Section 17(3)(a) of the Act of 1994.
It provides for an officer of or above the rank of Joint Director
of Health and Family Welfare Department to be Chairperson. The
Special Secretary of Health and Family Welfare Department is not
a member of Health and Family Welfare Department being an IAS
Officer, thus challenge to the constitution of appropriate
authority has been also made on the aforesaid ground.
Learned counsel for the petitioners made a reference
of inspection caused on 07.12.2009 on the instructions of
appropriate authority whereas gazette notification for
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
7
appointment of Special Secretary, Health and Family Welfare
Department was issued on 27th January, 2010 and no gazette
notification was issued for members of the appropriate authority.
The inspection at the instance of appropriate authority was itself
illegal, as gazette notification for Chairperson of the appropriate
authority was issued subsequent to it.
Learned counsel appearing for the respondents
submitted that constitution of appropriate authority was in
accordance to the provisions of law. A gazette notification was
issued on 04.07.2003 to notify as to who would be the appropriate
authority. Initially, the Director (Family Welfare), Medical and
Health Department was nominated as Chairperson but it was
substituted by the subsequent notification dated 11th September,
2008 followed by gazette notification dated 27th January, 2010.
The Notifications were also issued for appointment of Dr. Param
Navdeep Singh so as for Mr.Brij Kishore Gupta, DLR of Law
Department, State of Rajasthan. In view of above, not only that
inspection was made on the instructions of the appropriate
authority but even impugned order has been passed in lawful
manner. Dr. Param Navdeep Singh is an eminent woman
representing the legislative constituency, thus was rightly
appointed as a member of appropriate authority.
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
8
To appreciate the arguments, it would be relevant to
refer Section 17 of the Act of 1994, thus it is quoted for ready
reference :
“17. Appropriate Authority and
Advisory Committee.- 1. The Central
Government shall appoint, by
notification in the Official Gazette,
one or more Appropriate Authorities
for each of the Union territories for
the purposes of this Act.
2. The State Government shall
appoint, by notification in the Official
Gazette, one or more Appropriate
Authorities for the whole or part of
the State for the purposes of this
Act having regard to the intensity of
the problem of pre-natal sex
determination leading to female
foeticide.
3. The officers appointed as
Appropriate Authorities under sub –
section (1) or sub-section (2) shall
be,-
(a) when appointed for the whole of
the State or the Union territory,
consisting of the following three
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
9
members :-
(i) an officer of or above the rank of
the Joint Director of Health and
Family Welfare-Chairperson;
ii) an eminent woman representing
women’s organization; and
iii) an officer of Law Department of
the State or the Union territory
concerned:
Provided that it shall be the duty of
the State or the Union territory
concerned to constitute multimember
State or Union territory level
Appropriate Authority within three
months of the coming into force of
the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse)
Amendment Act, 2002:
Provided further that any vacancy
occurring therein shall be filled within
three months of the occurrence.
(b) when appointed for any part of the
State or the Union territory, of such
other rank as the State Government
or the Central Government, as the
case may be, may deem fit.
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
10
4. The Appropriate Authority shall
have the following functions, namely :
(a) to grant, suspend or cancel
registration of a Genetic Counselling
Centre, Genetic Laboratory or Genetic
Clinic;
(b) to enforce standards prescribed
for the Genetic Counselling Centre,
Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of
breach of the provisions of this Act
or the rules made thereunder and
take immediate action;
(d) to seek and consider the advice of
the Advisory Committee, constituted
under sub-section (5), on application
for registration and on complaints for
suspension or cancellation of
registration;
(e) to take appropriate legal action
against the use of any sex selection
technique by any person at any place,
suo motu or brought to its notice and
also to initiate independent
investigations in such matter;
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
11
(f) to create public awareness against
the practice of sex selection or prenatal
determination of sex;
(g) to supervise the implementation of
the provisions of the Act and rules;
(h) to recommend to the Board and
State Boards modifications required
in the rules in accordance with
changes in technology or social
conditions;
(i) to take action on the
recommendations of the Advisory
Committee made after investigation
of complaint for suspension or
cancellation of registration.
5. The Central Government or the
State Government, as the case may
be, shall constitute an Advisory
Committee for each Appropriate
Authority to aid and advise the
Appropriate Authority in the
discharge of its functions, and shall
appoint one of the members of the
Advisory Committee to be its
Chairman.
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
12
6 The Advisory Committee shall
consist of—
(a) three medical experts from
amongst gynaecologists, obstericians,
paediatricians and medical geneticists;
(b) one legal expert;
(c) one officer to represent the
department dealing with information
and publicity of the State Government
or the Union territory, as the case
may be;
(d) three eminent social workers of
whom not less than one shall be from
amongst representatives of women’s
organisations.
7. No person who has been associated
with the use or promotion of pre-natal
diagnostic technique for
determination of sex or sex selection
shall be appointed as a member of the
Advisory Committee.
8. The Advisory Committee may meet
as and when it thinks fit or on the
request of the Appropriate Authority
for consideration of any application
for registration or any complaint for
suspension or cancellation of
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
13
registration and to give advice
thereon:
Provided that the period intervening
between any two meetings shall not
exceed the prescribed period.
9. The terms and conditions subject
to which a person may be appointed to
the Advisory Committee and the
procedure to be followed by such
Committee in the discharge of its
functions shall be such as may be
prescribed.”
Sub-section 2 of Section 17 of Act of 1994 requires
appointment by notification in the official gazette. Sub-section 3
of Section 17 of the Act of 1994 refers about composition of
appropriate authority. If the reply submitted by the respondents
along with documents are looked into, gazette notification for
appointment of Chairperson was issued on 27th January, 2010 but
no gazette notification has been filed for appointment of the
members of State Appropriate Authority, though the
notifications have been enclosed along with reply to show their
appointment but there is nothing on record to show its publication
in the gazette, if it was made.
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
14
In view of the above, it cannot be said to be
appointment of appropriate authority in accordance to the
provisions of law. Sub-section 2 of Section 17 of the Act of 1994
does not make a reference of appointment of Chairperson of
appropriate authority by a notification in official gazette, rather it
talks about appointment of appropriate authorities by notification
in official gazette, thus not only the Chairperson but the members
can be appointed by notification in the official gazette. The
reasoning aforesaid is supported by Sub-section 3 of Section 17 of
the Act of 1994, which gives composition of officers, who can be
appointed as appropriate authorities. In view of the above,
appropriate authority has to be appointed by notification in official
gazette. It can be by separate gazette notification for each or by
composite gazette notification. In view of the above, appointment
of appropriate authority and action as a consequence thereupon
cannot be said to be proper and legal other than for the
Chairperson for whom gazette notification was issued and has been
submitted along with reply whereas for others, it is only the
notification which has been placed along with reply and not the
notification in Gazette.
In view of finding recorded above, I am not required
to deal with the issue as to whether the Special Secretary of
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
15
Health and Family Welfare Department could be appointed as
Chairperson of the appropriate authority or not but it is a fact
that Dr.Param Navdeep Singh cannot be considered to be eminent
woman representing women’s organization merely being MLA. The
issue aforesaid could have been dealt with elaborately but in
absence of gazette notification for her appointment as a member
of appropriate authority, I am not touching the issue further.
The petitioners have even raised the issue about
delegation of powers by the appropriate authority. The issue
aforesaid is not required to be dealt with at this stage when
appointment of appropriate authority itself is not as per Section
17 of the Act of 1994.
In view of the finding recorded above, preliminary
objections regarding maintainability of writ petitions in view of
availability of remedy of appeal cannot be accepted. An
incompetent order has been challenged by invoking the jurisdiction
under Article 226 of Constitution of India. It would further be
necessary to refer Section 21 of the Act of 1994. It provides
about remedy of appeal, thus is quoted :
“21. Appeal. The Genetic Counselling
Centre, Genetic Laboratory or Genetic
Clinic may, within thirty days from the
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
16
date of receipt of the order of
suspension or cancellation of
registration passed by the
Appropriate Authority under section
20, prefer an appeal against such
order to—
(i) The Central Government, where the
appeal is against the order of the
Central Appropriate Authority; and
(ii) the State Government, where the
appeal is against the order of the
State Appropriate Authority, in the
prescribed manner.”
The perusal of the provisions quoted above reveals
that an appeal would lie to the State Government from the order
of State Appropriate Authority but it would be in the prescribed
manner. The Act and Rules do not prescribe the manner in view of
the fact that Rule 19 of the Rules of 1996 only deals with the
hierarchy of appeal and not the manner. Therein, even the
provision for appeal to the State Government from the order of
State Appropriate Authority is not provided. Rule 19 of the Rules
of 1996 is also quoted thus for ready reference :
“19. Appeals.- (1) Anybody aggrieved
by the decision of the Appropriate
Authority at subdistrict level may
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
17
appeal to the Appropriate Authority
at district level within 30 days of the
order of the sub-district level
Appropriate Authority.
(2) Anybody aggrieved by the decision
of the Appropriate Authority at
district level may appeal to the
Appropriate Authority at State/UT
level within 30 days of the order of
the District level Appropriate
Authority.
(3) Each appeal shall be disposed of
by the District Appropriate Authority
or by the State/Union Territory
Appropriate Authority, as the case
may be, within 60 days of its receipt
(4) If an appeal is not made with the
time as prescribed under sub-rule (1),
(2) or (3), the Appropriate Authority
under that sub-rule may condone the
delay in case he/she is satisfied that
appellant was prevented for sufficient
cause from making such appeal.”
The Rules quoted above does not reveal an appeal to
the State Government from the order of State Appropriate
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
18
Authority, though the rule cannot dilute or nullify the provisions
of Act. The Rule 19 of the Rule of 1996 has been referred to show
that no manner has been prescribed for appeal. The forms
attached to the Rules of 1996 are also not for appeal under
Section 21 or Rule 19. In view of the above, non-filing of appeal
cannot be fatal. The aforesaid issue is relevant and Central
Government should take cognizance of it and prescribe the manner
of appeal. In view of the finding recorded above, the other issues,
which are more less on fact, are not required to be dealt with by
this Court.
In view of the discussion made above, I am of the
opinion that impugned order cannot be allowed to sustain in the eye
of law, thus it is set aside so as the orders passed on appeal in
those cases where few petitioners preferred appeal against the
order.
Before parting with the judgment, it would be relevant
to direct the respondent – State Government to see compliance of
Section 17 of the Act of 1994 while making appointment of
appropriate authority so that any action at the instance of
appropriate authority may not result with the same treatment as
exists herein. The State Government would be expected to make
appointment of appropriate authority in strict compliance to
S.B. CIVIL WRIT PETITION NO.10286/2012
(Dr. Vijay Gupta VS. The State of Rajasthan & Ors.)
19
Section 17 of the Act of 1994. The Central Government would also
be expected to prescribe the manner for appeal as required under
Section 21 of the Act of 1994.
With the aforesaid, all the writ petitions are disposed
of so as the stay applications.
(M.N.BHANDARI), J.
Preety, P.A.
All corrections made in the judgment/order have been incorporated in the
judgment/order being emailed.
Preety Asopa
P.A.judfile

Dr. Ankita Dayal vs The State Of U.P


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 21

Case :- U/S 482/378/407 No. – 697 of 2015

Applicant :- Dr. Ankita Dayal
Opposite Party :- The State Of U.P
Counsel for Applicant :- H.B Singh
Counsel for Opposite Party :- Govt. Advocate

Hon’ble Vishnu Chandra Gupta,J.
Heard learned counsel for the petitioner and the learned A.G.A. for the State.
By means of this petition under Section 482 Cr.P.C., the petitioner has prayed for quashing the criminal proceedings of Complaint Case No. 4707 of 2013 and summoning order dated 16.02.2015, under Sections 23, 25 of P.C.P.N.D.T. Act, Police Station Kotwali Sadar, District- Bahraich pending in the Court of learned C.J.M., Bahraich filed under Section 28 of P.C.P.N.D.T. Act.
From the perusal of material on record, it could not be said that no case is made out against the petitioner. Therefore, at this stage no interference is called for by this Court. The petition lacks merit.
However, if the petitioner surrenders before the court below within three weeks from today and moves bail application, the same shall be considered and disposed of expeditiously in accordance with law and also keeping in view the directions contained in the judgment delivered by the Apex Court reported in 2009 (3) ADJ 322 (SC) (Lal Kamlendra Pratap Singh Vs. State of U.P.), in case the accused petitioner has not yet been surrendered and applied for bail.
For three weeks or till the date of surrender, whichever is earlier, no coercive steps shall be taken against the petitioner.
With this observation, the petition is finally disposed of.
Order Date :- 17.3.2015
R.K.P.

Dr. L.J Keshri vs The D.M., Lucknow Appropriate Authority Under P.C.P.N.D.T.C


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 29

Case :- U/S 482/378/407 No. – 1429 of 2014

Applicant :- Dr. L.J Keshri (Dr. Laxmanji Keshri)
Opposite Party :- The D.M., Lucknow Appropriate Authority Under P.C.P.N.D.T.C
Counsel for Applicant :- Yogesh Kesarwani
Counsel for Opposite Party :- Govt. Advocate

Hon’ble Ashwani Kumar Singh,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate.
By means of this petition, the petitioner has prayed for setting aside the impugned summoning order dated 2/9/2011 passed by the learned Chief Judicial Magistrate “P.C.P.C.D.T.(Pre-Conception and Pre-Natal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 V/S Amar Singh, Sanchalak and X-ray Technician Sukh Diagnostic Centre and others.
Learned counsel submits that the allegations levelled against the petitioners are false and no case is made out against him.
Per contra, learned State counsel submits that the summoning order is in accordance with law and the same has been passed after application of mind. Prima facie case is made out against the petitioners.
Having considered the matter, I am of the view that the summoning order dated 2/9/2011 does not suffer from any illegality and the same has been passed with due application of mind, as such, no interference is warranted in the matter. The petition is accordingly dismissed.
However, it is provided that if the petitioner appears before the court concerned within 20 days from today and moves application for bail, his bail application shall be considered and disposed of on its own merit, expeditiously, in accordance with the law laid down by the Apex Court in Lal Kamlendra Pratap Singh Vs State of U.P., reported in 2009(1) JIC 677:2009(2) Crimes 4(SC).
Order Date :- 31.3.2014
kan