Dr. Ravi Mohan Mahawar Versus State of Rajasthan & Anr


judfile

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH JAIPUR
S.B. Criminal Misc. Petition No.1828/2013
Dr. Ravi Mohan Mahawar
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1126/2012
Dr. Neena
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2686/2012
Dr. Rajnish Sharma
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3352/2012
Dr. Ruchi Goyal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3539/2012
Dr. Pradeep Kumar Sharma
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3761/2012
Dr. Manju Rathi
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3998/2012
Dr. Manju Gochar
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.224/2013
Dr. Rakhi Jain
Versus
Dy. Director (RCH) and Authorized Officer State Appropriate Authority
AND
S.B. Criminal Misc. Petition No.2512/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
2
S.B. Criminal Misc. Petition No. 2513/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2530/2013
Dr. Prakash Mundra
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2531/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2532/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2533/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2568/2013
Dr. Ram Prakash Saini & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2641/2013
Dr. Sangeeta Agarwal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No. 2657/2013
Dr. Pradeep Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3003/2013
Dr. Chandra Bala Parnami
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3004/2013
Prem Niketan Hospital & Anr.
Versus
State of Rajasthan & Ors.
3
AND
S.B. Criminal Misc. Petition No.3080/2013
Umesh Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3081/2013
Umesh Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3082/2013
Umesh Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3553/2013
Dr. Gaytri Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3554/2013
Dr. Gaytri Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.4293/2013
Dr. J.K. Singhvi
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.361/2014
Vikram Singh Shekhawat & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.439/2014
Dr. Hemant Mishra
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2626/2013
Subhash Sharma
Versus
State of Rajasthan & Anr.
AND
4
S.B. Criminal Misc. Petition No.2017/2014
Kamla Memorial Diagnostic and Research Centre
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1114/2013
Carewell Diagnostic and Research Centre
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1207/2013
Hanuman Choudhary
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1226/2013
Dr. Deen Dayal Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1316/2013
Dr. Ajay Agarwal & Anr.
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.1764/2013
Smt. Bidami Devi & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1813/2013
Dr. Moniya Goyal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1873/2013
Dr. Sanjeev Bhargava
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2037/2013
Dr. Shardha Agarwal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2081/2013
Dr. Arun Sharma
Versus
State of Rajasthan
5
AND
S.B. Criminal Misc. Petition No.2160/2013
Mahesh Chand Sethi
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2178/2013
Dr. Laxmichand
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2196/2013
Dr. Harshvardhan
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2263/2013
Dr. Prithviraj Kucheria
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2405/2013
Beeju Samual & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2406/2013
Dr. Sunil Dutta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2407/2013
Dr. Kaushalya Meena
Versus
State of Rajasthan & Ors.
AND
S.B. Criminal Misc. Petition No.2429/2013
Dr. Shardha Agarwal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2454/2013
Dr. Sunil Saxena
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2455/2013
Dr. Nitin Kumar Gupta
6
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2456/2013
D.C. Hospital & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2511/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
DATE OF ORDER : 7th
July, 2015
HON’BLE MR. JUSTICE M.N. BHANDARI
Mr. A.K. Gupta with Mr. Harihar Nath Mishra, Mr. Prem Kumar
Sharma, Mr. Gaurav Gupta, Mr.Rahul Kamwar, Mr. Kapil Gupta,
Mr.Anurag Kulshreshtha, Mr. Jitendra Mitrucka, Mr. Sudhir Jain, Mr.
Dinesh Hissaria, Mr. Pankaj Gupta, Mr.Anurag Shukla, Mr. Vineet Mehta,
Mr. Sunil Kumar Singh, Mr. P.S. Sharma, Mr. Santosh Kumar Jain, &
Mr.Surendra Sharma, for PETITIONERS
Mr. G.S. Gill, Additional Advocate General with Mr. H.C. Kandpal –
for the State.
Ms. Vandana Sharma, Dy. Govt. Counsel
***
By these criminal misc. petitions, a challenge is made to the
complaint and subsequent orders of cognizance of the offence under
Pre Conception and Pre Natal Diagonistic Techniques (Prohibition of
Sex Selection) Act, 1994 (in short “the Act of 1994”).
A criminal complaint was filed against the petitioners apart
from others for violation of various provisions of the Act of 1994 and
the rules made thereunder. The complaint aforesaid was filed under
Section 28 of the Act of 1994. In pursuace to the complaint,
cognizance of offence was taken in majority of the cases. A challenge
to the complaint as well as order for cognizance of offence has been
7
made on various grounds.
Learned counsel for petitioners submitted that an inspection
was made by the person not authorized under the Act of 1994. A
reference of Section 17 & 17A of the Act of 1994 was given to show
as to who is authorized to inspect diagnostic lab or clinic, etc. As per
Sections 17 and 17A of the Act of 1994, authority of inspection lies
with the Appropriate Authority and the Advisory Committee. The
inspection can be made by the person having qualification as is
required for the Appropriate Authority or Advisory Committee under
Sections 17 & 17A of the Act of 1994. In the instant cases, inspection
was not caused by the authorised person, thus not only inspection
vitiates but subsequent complaint and the order of cognizance of
offence also.
Further, reference of Section 28 of the Act of 1994 is given to
show as to who is authorized to file complaint. As per Section 28,
complaint can be filed only by the appropriate authority or a person
authorised by the Central or the State Government. In the instant
cases, complaint was filed without authorization in favour of the
person and is not by the appropriate authority, hence, on that count
also, impugned complaint and the order of cognizance of offence
deserve to be quashed.
In few cases, complaint has been filed by the private person
without following provisions of Section 28(1)(b). No document was
8
produced to show that private person had given notice as is required
under Section 28(1)(b) of the Act of 1994.
A further reference of Section 17(4) of the Act of 1994 has
been given to show that competence for investigation of the
complaint for breach of provisions of the Act or the Rules made
thereunder lies only with the appropriate authority.
In the case of Dr. Rajnish Sharma (S.B. Criminal Misc. Petition
No.2686/2012), the FIR was registered prior to filing of the complaint.
It resulted in negative final report. A protest petition was filed but
negative final report was accepted and, thereupon, a private complaint
was filed by none else but an Advocate having personal bias against
the petitioner. After acceptance of negative final report, the complaint
was not maintainable. The revision petition was filed by the
petitioners but it was then dismissed hence additional ground has
been taken in one case regarding maintainability of the complaint
after acceptance of negative final report.
Learned counsel made reference of judgments of Apex Court in
the case of Babubhai Vs. State of Gujarat & Ors., reported in
(2010) 12 SCC 254, Poonam Chand Jain & Anr. Vs. Fazru,
reported in (2010) 2 SCC 631, Pramatha Nath Taluqdar Vs. Saroj
Ranjan Sarkar, reported in AIR 1962 SC 876 and in the case of
Mahesh Chand Vs. B. Janardhan Reddy & Anr., reported in 2003
(1) SCC 734 to support their arguments.
9
The other argument of the learned counsel for petitioners was
in reference to Form ‘F’ provided under the Act of 1994 and the Rules
made thereunder. The minor discrepancy or delay of few days in
filling Form ‘F’ is not an offence. The Form ‘F’ can be filled before 5
th
day of the month as it is to be submitted on the aforesaid date, thus it
can be filled any time before it. The respondents ignored the aforesaid
and majority of the cases are in reference to minor discrepancy in
Form ‘F’ or delay therein. A reference of the judgment of Bombay
High Court in the case of Dr. Alka & Anr. Vs. The State of
Maharashtra & Anr., Criminal Application No.3500/2011,
decided on 11th May, 2012 has been given. Therein, Form ‘F’ was not
found complete, thus notice was given followed by seizure of the
machine. It was held that non-filling of Form ‘F’ completely cannot be
said to be illegal. In view of judgment aforesaid, delay in filling of
Form ‘F’ cannot be taken to be in violation of the provisions of the
Act of 1994 and Rules made thereunder.
Learned counsel for petitioners further made reference of
Sections 12 and 30 of the Act of 1994. Section 30 refers about power
to search and seize the record etc. The provision aforesaid gives
powers to the appropriate authority to search and seize the record but,
in the instant cases, search was not made by the appropriate authority.
It is lastly contended that before issuance of process, learned
Magistrate failed to record his satisfaction for taking cognizance of
10
the offence and the order was passed in a cyclostyle manner. Some
petitioners challenged the order of cognizance of offence by
maintaining revisions but they were dismissed. A reference of
judgment of Apex Court in the case of Krishnan & Anr Vs.
Krishnaveni & Anr., reported in 1997 (4) SCC 241 has been given
to show maintainability of the petition under Section 482 Cr.P.C.
even after dismissal of the revision petitions. The prayer is
accordingly made to quash the complaint so as order of cognizance of
offence and order passed on the revision petitions.
Per contra, learned Additional Advocate General Shri G.S. Gill,
referring to the arguments of learned counsel for petitioners,
submitted that inspection of the diagnostic lab, clinic/hospital was
caused by the authorised person. Referring to Sections 17, 17A, 28
and 30 of the Act of 1994, it is submitted that inspection/search can
be made by the appropriate authority or a person authorised by it, thus
it is not necessary that in all the cases, search/inspection should be
caused only by the appropriate authority. The State of Rajasthan
issued Notification on 05.01.2012 by invoking Section 17(2) of the
Act of 1994. The notification was issued to authorise an officer at the
District level. The authority under Section 28(1) of the Act of 1994
for filing complaint was also given. The search/inspection was
conducted by the person authorized and, finding violation of the
provisions of the Act of 1994 & Rules made thereunder, the
11
complaint was filed. The issue aforesaid was dealt with by the learned
Magistrate while passing order of cognizance. In few cases, even
revision petition was filed but finding no substance therein, it was
dismissed after dealing with all the issues raised herein. There is no
violation of Sections 17, 17A, 28 and 30 of the Act of 1994 and the
Rules made thereunder.
The petitioners have failed to take proper interpretation of the
provisions of the Act of 1994 while referring definition of
“Appropriate Authority” given under Section 2(a) of the Act of 1994.
The appropriate authority has been given various powers, which
includes investigation of the complaint for breach of the provisions of
the Act and the Rules made thereunder. Section 17(4) of the Act of
1994 does not provide about filing of the complaint on search.
Section 30 makes reference of search and seizure by the appropriate
authority or authorised person. The inspection was caused by the
authorised person as per Section 30. It is not necessary that
authorised person should possess the same qualification as is
provided for appropriate authority under Section 17 of the Act of
1994. In view of above, neither inspection/search is defective nor
filing of the complaint thereupon. The complaint can be filed by the
appropriate authority or a person authorised on behalf of the State
Governmen. In the instant cases, complaint was filed by the
authorised person, hence it was rightly entertained, followed by order
12
of cognizance.
In few cases, complaint has been filed by private persons but it
is after observing Section 28 of the Act of 1994. A prior notice was
given followed by a complaint. The private complainant had given
notice to the department on 12.11.2007 through registered post with
its acknowledgement. After notice, complaint was filed, thus it was in
compliance to Section 28(1)(b) of the Act of 1994.
In the case of Dr. Rajnish Sharma, FIR was registered followed
by negative final report. It was accepted on the ground that complaint
alone is maintainable, thus subsequent complaint is not barred. The
issue aforesaid was dealt with by the revisional court elaborately. So
far as judgments referred by learned counsel for petitioners on the
aforesaid issues are concerned, none applies to the facts of this case.
In view of above, even after dismissal of the protest petition,
complaint was rightly filed and maintained. The revision petition was
dismissed considering the aforesaid issues and now these petitions
under Section 482 Cr.P.C. are nothing but second revision petition
and not maintainable in absence of gross abuse of process.
In view of violation of the provisions of the Act of 1994 and
Rules made thereunder, cognizance of offence has been taken. It is
largely in reference to discrepancy in the Form ‘F’, which is to be
filled before diagnosis. There was lapse on the part of the petitioners
to do so. Forms ‘F’ and ‘G’ have to be filled prior to diagnosis with
13
thumb impression of the patient. In case of lapse, it amounts to
violation of the provisions of the Act of 1994 and Rules made
thereunder. Learned Additional Advocate General has given reference
of one of the case of Dr. Ravi Mohan Mahawar (S.B. Criminal Misc.
Petition No.1828/2013). In the search operation, it was found that one
lady patient Seema was diagnosed and informed about sex of the
child and in the same way Smt. Babudi was also informed about it.
She felt happy when informed about birth of a male child. The search
was made after payment of Rs.6,000/- and therein it was found that
Form ‘F’ was not filled apart from violation of other provisions
detailed out in the complaint itself. The significance of Form ‘F’
comes out from the aforesaid itself. The submission of Form ‘F’ to the
department on the appointed date does not mean that it can be filled
as and when it is found convenient by the Diagnostic Centre. Looking
to all these facts and serious allegations against the petitioners,
process was issued by the court below after taking cognizance of the
offence and there is no illegality in it. A prayer is made for dismissal
of all the petitions.
I have considered rival submission made by the parties and
scanned the record carefully.
The complaint was filed for violation of provisions of the Act
of 1994 and Rules made thereunder. After filing of the complaint,
order for cognizance of offence was passed. A challenge to the order
14
of cognizance of offence has been made. In few petitions, it was
challenged by maintaining revision petitions. The revision petitions
were dismissed, thus order of cognizance so as the order passed on
the revision petitions, have been challenged.
The grounds for challenge are in reference to various
provisions of the Act of 1994, thus Sections 2(a), 17, 17A, 28 & 30
are quoted hereunder for ready reference:
“2(a) “Appropriate Authority” means the Appropriate Authority
appointed under section 17.”
“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 subsection
(1) or subsection (2) Shall be,-
(a) When appointed for the whole of the State or the Union
territory, consisting of the following three 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 multi-member 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 that occurrence.
15
(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.
(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;
(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 CSB 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.
(6) The Advisory Committee shall consist of—
(a) Three medical experts from amongst gynaecologists,
obstetricians, 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
16
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 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.
“17A. Powers of Appropriate Authorities.- The Appropriate
Authority shall have the powers in respect of the following
matters, namely:-
a) Summoning of any person who is in possession of any
information relating to violation of the provisions of this Act or the
rules made thereunder;
b) Production of any document or material object relating to clause
(a);
c) Issuing search warrant for any place suspected to be indulging in
sex selection techniques or prenatal sex determination; and
d) Any other matter which may be prescribed.”
“28. Cognizance of offences. (1) No court shall take cognizance
of an offence under this Act except on a complaint made by–
(a) the Appropriate Authority concerned, or any officer authorised
in this behalf by the Central Government or State Government, as
the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than fifteen days in
the manner prescribed, to the Appropriate Authority, of the
alleged offence and of his intention to make a complaint to the
court.
Explanation.–For the purpose of this clause, “person” includes a
social organisation.
17
(2) No court other than that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence
punishable under this Act.
(3) Where a complaint has been made under clause (b) of
subsection (1), the court may, on demand by such person, direct
the Appropriate Authority to make available copies of the relevant
records in its possession to such person.”
“30. Power to search and seize records, etc. – (1) If the
Appropriate Authority has reason to believe that an offence under
this Act has been or is being committed at any Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic or any
other place, such Authority or any officer authorised thereof in
this behalf may, subject to such rules as may be prescribed, enter
and search at all reasonable times with such assistance, if any, as
such authority or officer considers necessary, such Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic or any
other place and examine any record, register, document, book,
pamphlet, advertisement or any other material object found
therein and seize and seal the same if such Authority or officer
has reason to believe that it may furnish evidence of the
commission of an office punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of
1974) relating to searches and seizures shall, so far as may be,
apply to every search or seizure made under this Act.”

Section 2(a) provides definition of “Appropriate Authority”,
whereas, Section 17 talks about appointment of appropriate authority
and advisory committee. The first argument of the learned counsel for
petitioners is in reference to Sections 17 & 17A of the Act of 1994. A
challenge is made to the inspection and complaint by an officer other
than appropriate authority. The perusal of Sections 17, 17A & 28
18
apart from Section 30 shows as to who can make search and seizure
and file complaint thereupon. Section 17 talks about appointment of
appropriate authority, however, search and even filing of the
complaint can be either by the appropriate authority or the State
Government and the officer authorized for it. In view of above, it
cannot be said that search can be conducted only by the appropriate
authority.
In the same manner, it is not necessary that the complaint has to
be filed by the appropriate authority but it can be filed by an officer
authorised by the appropriate authority or Central and the State
Government. In the instant cases, inspection followed by filing of the
complaint is by the authorised officer, thus cannot be said to be in
violation of the Act of 1994. The petitioners have failed to take notice
of the Notification issued for authorization. It was referred by the
learned Additional Advocate General Shri G.S. Gill.
A reference of Section 17(4) of the Act of 1994 has been given
to indicate duties of the appropriate authority. The appropriate
authority has been assigned with certain powers but it does not make
a reference of filing of the complaint by it under the said provision.
The authority for search and seizure apart from filing of the complaint
is separately provided under Section 28 & 30 of the Act of 1994. The
search and seizure can be made by the appropriate authority or by an
authorized officer. Section 17 or 17A does not exclude
19
inspection/search and filing of the complaint by the authorised
officer. Section 17 speaks about appointment and powers of
appropriate authority and advisory committee, whereas, Sections 28
& 30 of the Act of 1994 are for filing of complaint and search &
seizure. In view of above, argument of the learned counsel for
petitioners that inspection was not conducted by the appropriate
authority or complaint should have been filed by the appropriate
authority, cannot be accepted. The reference of authorization in
favour of an officer has been given in the complaint itself.
In the case of Dr. Rajnish Sharma, no doubt, it is true that FIR
was earlier lodged followed by negative final report but it was given
on the ground of maintainability of the FIR as only complaint is
maintainable. The issue regarding maintainability of complaint was
considered by the revisional court in detail. The subsequent complaint
was maintainable as FIR was not sustainable in view of Section 28 of
the Act of 1994 where cognizance of offence is provided only on a
complaint. The negative final report was accepted as FIR was not
maintainable, thus complaint was rightly maintained followed by
order of cognizance of offence. I do not find that revisional court has
committed any error in recording its finding on the aforesaid issue.
The other argument in the case of Dr. Rajnish Sharma is
regarding filing of complaint by a private person. Section 28(1)(b) of
the Act provides for filing of complaint even by a private person. The
20
complaint therein was filed after notice to the department through
registered post as per Section 28(1)(b) of the Act, thus it cannot be
said that complaint would not be maintainable. It is not necessary that
all the complaints have to be filed by the appropriate authority but it
can be filed by the authorised officer and even by a private person,
provided procedure is followed for that. In the instant cases, the order
passed by the revisional court reveals that complaint was maintained
after following the procedure. I do not find any error in the order
passed by the revisional court.
The judgments cited by learned counsel for petitioners need no
elaboration as facts of those cases are distinguishable so as the ratio
propounded therein.
The other common argument raised by the learned counsel for
petitioners was in reference to Form ‘F’. It was submitted that
incomplete or non-filling of Form ‘F’ does not amount to offence. It is
looking to the fact that Form ‘F’ can be submitted in the department
on or before appointed date, thus can be filled at any time. I do not
find substance in this argument. When Form ‘F’ is to be filled before
diagnosis, then requirement aforesaid cannot be ignored. It cannot be
that details of the patient may be noted on the loose paper and then
filled in Form ‘F’ after lapse of few days. In that eventuality, how
signature/thumb impression of the patient would be obtained on the
Form. It cannot be on a blank Form. Form ‘F’ is to be filled so that all
21
the details of each patient are maintained and are duly verified by her
by putting thumb impression or signature on the Form. In view of
above, I am unable to accept judgment of Bombay High Court in the
case of Dr. Alka (supra) wherein filling of Form ‘F’, after few days, is
held to be permissible. The violation of various provisions of the Act
and Rules made thereunder in reference to Form ‘F’ and other
illegalities cannot be ignored. The complaint so as the order of
cognizance and even order of revisional court cannot be quashed on
the aforesaid ground.
In view of discussion made above, I do not find any substance
in any of the petitions, hence all the criminal misc. petitions are
dismissed. The stay earlier granted stands vacated with the aforesaid.
Before parting with the judgment, it would be necessary to
refer order of the Division Bench of this court in the case of Dr. S.K.
Gupta Vs. Union of India & Ors., D.B. Public Interest Litigation
No.3270/2012, dated 25.11.2014 where direction has been given for
expeditious disposal of the cases, thus the court below will take up
the cases at the earliest for its early disposal.
[M.N.BHANDARI], J.
FRBOHRA/1828CMP2013.doc
Certificate:
“All corrections made in the judgment/order have been incorporated in the judgment/order
being emailed.”
FATEH RAJ BOHRA, Sr. P.A.