Dr. Chandra Shekhar Gupta vs State Of U.P. Thru Secy. And Another


CRLP(A)_10449_2015

Court No. – 38
Case :- CRIMINAL MISC. WRIT PETITION No. – 10449 of 2015
Petitioner :- Dr. Chandra Shekhar Gupta
Respondent :- State Of U.P. Thru Secy. And Another
Counsel for Petitioner :- Dileep Kumar,Rajrshi Gupta
Counsel for Respondent :- Govt.Advocate
Hon’ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned A.G.A.
By means of this petition under Article 226 of the Constitution of India the
petitioner has prayed for quashing the order dated 10/4/2015 and 18/7/2014 in
terms of which the application for discharge moved by the petitioner has come to
be rejected. The proceedings in question which stand registered as Case
No.20873/2013, Sub Divisional Magistrate, Pharenda Vs. Dr. Chandra Shekhar
Gupta, alleged commission of offence under Section 3/23 of The Pre-Conception
and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection),Act, 1994
Police Station Brijmanganj, District Maharajganj.
Learned counsel for the applicant has taken the Court through the various
statements recorded before the Court below to contend that there was no material
that the machine was requisitioned by the petitioner or that any ultra sound
examination was undertaken. It is contended that the machine in question had been
requisitioned only for the purposes of demonstration by another Doctor and there
was no evidence that the clinic of the petitioner was being run or the machine
being utilized for the purposes of carrying out pre-natal examination or indulging in
the offence of aiding people in sex selection.
Learned counsel for the petitioner has referred to the statements of the members of
the raiding party who according to him failed to establish the case that the clinic
was owned by the petitioner or that the ultra sound machine in question belonged
to him.
Having heard counsel for the parties, this Court finds that the raiding party
recorded that the machine in question was found at the premises of Satyam Clinic
in Brijmanganj, Maharajganj upon a surprise inspection carried out by them. The
statement further records that the petitioner was found present there and that the
machine in question was found present in one of the rooms attached with the clinic.
There is no material on record to establish that the petitioner was registered under
the provisions of the Act aforementioned or that the clinic had obtained registration
for having in its possession the ultra sound machine.
Insofar as the issue of discharge is concerned, this Court bears in mind the dictum
laid down by the Apex Court in the matter of Rajiv Thapar & Ors Vs.Madan
Lal Kapoor, (2013) 3 SCC 330 and State of Tamil Nadu by Inspector of Police
Vigilance and Anti Corruption Vs. N. Suresh Rajan & Ors, 2014 (11) SCC
709, wherein the Apex Court has clearly held that the stage of discharge is not a
stage for a mini trial and that the scope of inquiry at this stage is only as to whether
there is any ground for presuming that the offence had been committed and not
whether the accused could be acquitted on the material relied upon by him.
In light of the above facts, this Court finds no ground to interfere with the orders of
the Court below.
The petition is accordingly dismissed.
Order Date :- 30.4.2015
SB

Brahamadev Singh vs State Of U.P. And Another


A482(A)_9279_2015

Court No. – 47
Case :- APPLICATION U/S 482 No. – 9279 of 2015
Applicant :- Brahamadev Singh
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Ganesh Shankar Srivastava,Anil Singh
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Bachchoo Lal,J.
Heard learned counsel for the applicant and learned A.G.A.
The present application under Section 482 Cr.P.C. has been
filed for quashing the entire proceeding of case no. 2846 of
2014 ( Babu Lal Vs. Brahmdev ) under Section 18 (1),
Section 3(1), Section 3(2), Section 3-B and Rules-3 A (1) of
the Pre-Conception & Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 read with the Rules,
Police Station Mehnagar, District Azamgarh and NBW order
dated 2.3.2015 passed by C.J.M. Azamgarh.
The contention of the counsel for the applicant is that no
offence against the applicant is disclosed and the present
prosecution has been instituted with a malafide intention for
the purposes of harassment. He pointed out certain
documents and statements in support of his contention.
From the perusal of the material on record and looking into
the facts of the case at this stage it cannot be said that no
offence is made out against the applicant. All the
submissions made at the bar relate to the disputed
questions of fact, which cannot be adjudicated upon by this
Court under Section 482 Cr.P.C. At this stage only prima
facie case is to be seen in the light of the law laid down by
Supreme Court in cases of R.P. Kapur Vs. State of Punjab,
A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal,
1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992
SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of the accused cannot
be considered at this stage.
The prayer for quashing the entire proceeding and NBW of
the aforementioned case is refused.
However, it is directed that if the applicant appears and
surrenders before the court below within 30 days from today
and applies for bail, his prayer for bail shall be considered
and decided in view of the settled law laid by this Court in
the case of Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290 as well as judgement passed
by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC)
Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days from today or till the applicant
surrenders and applies for bail whichever is earlier, no
coercive action shall be taken against the applicant.
However, in case, the applicants does not appear before
the Court below within the aforesaid period, coercive action
shall be taken against him.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 15.4.2015
Gss

Dr. Sanjay Sharma And Another vs State Of U.P. & Another


A482(A)_7924_2015

Court No. – 48
Case :- APPLICATION U/S 482 No. – 7924 of 2015
Applicant :- Dr. Sanjay Sharma And Another
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Sanjay Kumar Yadav,Rajiv Lochan Shukla
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Vipin Sinha,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C., has been filed for
quashing the entire proceeding of complaint case no. 2847 of 2014, U/s 18(1),
3(1), 3-B and 3(3) of the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 and Rule 3-A(1) of the
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996
pending in the court of CJM, Azamgarh.
The contention of the counsel for the applicants is that applicant no.1 is a
doctor. It is further contended that as far as question of registration is
concerned, the applicant had applied for registration with regard to the use of
machinery and the same was pending. The second allegation being that the
register shows that ultrasonography was done is denied because the ultrasonic
plates have not been placed on record.
However, there being disputed questions of facts, this Court does not deem it
fit to interfere with the same.
However, in view of the facts and circumstances of the case, it is provided
that in case, the applicants move an appropriate application for discharge
through counsel before the concerned Court below within a period of one
month from today, the same shall be considered and disposed off as
expeditiously as possible in accordance with law, by the concerned Court
below preferably within a period of four months, thereafter. For a period of
five months from today or till the disposal of the discharge application,
whichever is earlier, no coercive action shall be taken against the applicants in
the aforesaid case.
In case no such application is filed within a period of one month from today,
as prescribed above, the present order shall stand automatically vacated.
With the aforesaid directions, this application is finally disposed off.
Let a certified copy of this order be given today itself to the learned counsel
for the applicants on payment of usual charges.
Order Date :- 13.4.2015/Kuldeep

Ravindra Kumar vs State Of U.P. And 3 Ors


CRLP(A)_10285_2015

Court No. – 42
Case :- CRIMINAL MISC. WRIT PETITION No. – 10285 of 2015
Petitioner :- Ravindra Kumar
Respondent :- State Of U.P. And 3 Ors
Counsel for Petitioner :- Naveen Kumar Rai,Adarsh Kumar
Counsel for Respondent :- Govt.Advocate
Hon’ble Amreshwar Pratap Sahi,J.
Hon’ble Mrs. Vijay Lakshmi,J.
Heard learned counsel for the petitioner as well as learned A.G.A. and
perused the records.
The petitioner has come up praying that a certiorari be issued to quash the
F.I.R. dated 27.2.2015 at Case Crime No. 75 of 2015, under Sections 420
I.P.C. and 3/22, 3/23 of Pre-Conception & Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994, Police Station Gangoh, District
Saharanpur.
We had asked the learned A.G.A. to obtain instructions by the order dated
30.4.2015. An affidavit of Sri Arvind Kumar, Sub Inspector, Police Station
Gangoh, Saharanpur has been filed today by the learned A.G.A. In paragraph
5 of the said affidavit, certain allegations have been made and also a report
has been annexed which is annexure – 1 to the said affidavit filed on behalf of
the respondents. The affidavit resides the name of the petitioner and his wife
Smt. Geeta Singh indicating that they were also dealing in the said hospital.
Learned counsel for the petitioner submits that the petitioner, on mere such
dealing as owner of hospital, cannot be prosecuted for any such alleged
offence. He has relied upon Section 23 of Pre-Conception & Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Section
23(1) is extracted hereunder :
“23(1) Any medical geneticist, gynecologist,
registered medical practitioner or any person who
owns a Genetic Counseling Centre, a Genetic
Laboratory or a Genetic Clinic or is employed in
such a Centre, Laboratory or Clinic and renders his
professional or technical services to or at such a
Centre, Laboratory or Clinic, whether on an honorary
basis of otherwise, and who contravenes any of the
provisions of this Act or rules made thereunder
shall be punishable with imprisonment for a term
which may extend to three years and with fine which
may extend to ten thousand rupees and on any
subsequent conviction, with imprisonment which may
extend to five years and with fine which may extend
to fifty thousand rupees.”
A perusal thereof leaves no room for doubt that any person who owns Genetic
Counselling Centre is also liable for the offences under the said Act.
Learned counsel for the petitioner submits that hospital of the petitioner is not
a Genetic Counselling Centre indulging into any such activity as alleged in
the F.I.R. nor the petitioner was indulging in any such activity as indicated in
the F.I.R. Mere dealing with business does not amount indulgence in such
activity so as to make the petitioner an accused.
Whether the petitioner is indulging into such activity or not is subject matter
of collection of evidence but the allegations are categorically to the effect that
the petitioner is owner of the hospital. Perusal of Section 23 (1) clearly
indicates that the owner is also liable for the offences indicated therein.
Consequently no case for quashing of the F.I.R. is made out.
It is open for the petitioner to seek his remedy by way of bail before the court
below in accordance with law.
The petition is dismissed with the aforesaid observations.
Order Date :- 13.5.2015
S.B.

Rakesh Kumar Pathak vs State Of U.P. And Another


A482(A)_10725_2015

Court No. – 53
Case :- APPLICATION U/S 482 No. – 10725 of 2015
Applicant :- Rakesh Kumar Pathak
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Brij Raj
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Bharat Bhushan,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This Crl. Misc. application under Section 482 Cr.P.C. has been filed for quashing of the
summoning order dated 19.2.2015 as well as the entire proceeding of Complaint Case No. 1874
of 2015 under Sections 18/23/25 of the Pre Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (in short PNDT Act).
It appears that a raid was conducted in the premises of Pathak Diagnostic Centre by SDM and it
was found that the applicant was operating the Ultrasound Machine without license and
registration required under Section 18 of the PNDT Act. The applicant also could not show the
papers related to purchase of Ultrasound Machine. Admittedly, applicant himself is neither a
radiologist nor a doctor of any kind.
The contention of the learned counsel for the applicant is that no offence against the applicants is
disclosed and the present prosecution has been instituted with malafide intentions for the
purposes of harassment. It is admitted by the learned counsel for the applicant that the applicant
has not obtained the registration for operating the ultrasound machine as required under Section
18 of the PNDT Act.
On the other hand learned AGA has contended that from the perusal of material on record and
looking into the facts of the case at this stage it cannot be said that no offence is made out against
the applicant. All the submissions made at the bar relates to the disputed question of fact, which
cannot be adjudicated upon by this Court under Section 482 Cr.P.C.
At this stage only prima facie case is to be seen in the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs.
Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and
lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10)
2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.
Moreover, the applicant has got a right of discharge under Section 245 Cr.P.C. through a proper
application for the said purpose and he is free to take all the submissions in the said discharge
application before the Trial Court including those which have been canvassed by them before this
Court in this application.
In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others (2008) 13
SCC 678, the Hon’ble Apex Court has made following observations explaining the parameters of
jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of
Criminal Procedure: –
“17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section
482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a
great deal of caution is also required in its exercise. What is required is application of the wellknown
legal principles involved in the matter.
X x x x x x x x
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into
consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would
not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of
unimpeachable character should not be taken into consideration at any cost for the purpose of
finding out as to whether continuance of the criminal proceedings would amount to an abuse of
process of court or that the complaint petition is filed for causing mere harassment to the accused.
While we are not oblivious of the fact that although a large number of disputes should ordinarily
be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate
goal, namely, to force the accused to pay the amount due to the complainant immediately. The
courts on the one hand should not encourage such a practice; but, on the other, cannot also travel
beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts
cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal
proceedings would be maintainable.’
In Rallis India Limited v. Poduru Vidya Bhushan and others (2011) 13 SCC 88, the Hon’ble
Apex Court expressed its views on this point as under:-
“12. At the threshold, the High Court should not have interfered with the cognizance of the
complaints having been taken by the trial court. The High Court could not have discharged the
respondents of the said liability at the threshold. Unless the parties are given opportunity to lead
evidence, it is not possible to come to a definite conclusion as to what was the date when the
earlier partnership was dissolved and since what date the respondents ceased to be the partners of
the firm.”
Recently, the Apex Court in Sonu Gupta Vs Deepak Gupta and others ILC 2015 SC CRLFeb7,
has held that at the stage of summoning, the Magistrate is not required to conduct a roving
and meticulous inquiry and in paragraph 7, it has been held as under:
” At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind
only with a view to take cognizance of the offence, or, in other words, to find out whether prima
facie case has been made out for summoning the accused persons. At this stage, the learned
Magistrate is not required to consider the defence version or materials or arguments nor he is
required to evaluate the merits of the materials or evidence of the complainant, because the
Magistrate must not undertake the exercise to find out at this stage whether the materials will lead
to conviction or not.”
Accordingly the prayer for quashing the proceedings of the aforementioned case is refused.
However, it is provided that if the applicants appear and surrender before the court below within
30 days from today and apply for bail, their prayer for bail shall be considered and decided in
view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court
reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
With the aforesaid directions, this application is finally disposed off.
Order Date :- 4.5.2015/RavindraKSingh