In CRL.M.C.4556/2015-DEL HC- Under PC&PNDT Act, Single member Appropriate Authority can competently be appointed for part of Union Territory or State and valid cognizance can be taken on complaint of such Authority: Delhi HC Justice Mukta Gupta [22-04-2022]

Read Order: MANISH GUPTA & ANR Vs.  THE STATE OF NCT OF DELHI & ANR 

Mansimran Kaur 

New Delhi, April 25, 2022: While dismissing certain petitions seeking quashing of complaint filed under the Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 solely on the ground that the complaint was filed by a single-member Authority, the Delhi High Court has observed that by reading the requirement of Section 17(3)(a) into Section 17(3)(b) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, it cannot be said that a single member Appropriate Authority would be contrary to the said Statute and thus incompetent to file the complaint.

Referring to the amendment carried out in section 17, the Bench of Justice Mukta Gupta said, “Though amendment was carried out in Section 17(3)(a) by the Act 14 of 2003, however no corresponding amendment was carried out in Section 17(3)(b). Reading Section 17(3) as it stood prior to the amendment, there was no stipulation on the number of members and only stipulation was on the rank whether it be an Appropriate Authority for the whole of State or Union Territory under section 17(3)(a) or for any part of the State or Union Territory under section 17(3)(b).”

The petitioners in the instant case instituted the petitions to quash the complaints filed by the Appropriate Authority for violation of Rule 4 and Rule 9 of the Pre-Natal Diagnostic Techniques Rules, 1996 punishable under Section 23 of the of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the proceedings pursuant thereto including framing of charges against the petitioners.

One of the prime contentions of the petitioners was that the complaint was filed by a single-member  Authority and the same was against the requirement of law and against the expression  “Appropriate Authority” as defined under Section 17 of the PC and PNDT Act, as according to section 17, a three member committee is required to file the complaint. 

Contentions raised by the petitioners were that after the amendment of Section 17 of the PC&PNDT Act, which came into force on February 14, 2003, the “Appropriate Authority” was to be constituted of a three-member committee and since the said requirement of law was found missing in the instant case ,therefore the cognizance taken on the complaint was illegal and therefore, there can be no prosecution against the petitioners. 

Another contention raised by the second petitioner, one Manish Gupta, was that he was not running the clinic and thus, he had no liability to maintain the records. It was further submitted that the reference of the petitioner was only made in one of the paragraphs in the complaint wherein it was mentioned that the first petitioner, Dr. Sehdev, did not apprise of the fact that Dr. Manish Gupta was working in the same clinic. The Counsel for the petitioner contended that the co-accused was discharged and on the same fact, other accused Dr. Sandeep Jain was also discharged. However the petitioner did not get an opportunity to defend himself. 

The State on the other hand, contended that though there was an amendment in Section 17(3)(a) of the PC&PNDT Act, however, there was no corresponding amendment in Section 17(3)(b) of the PC&PNDT Act. The contention of the petitioners was countered by submitting that if the contention of the petitioners was to be taken into consideration then the same shall imply that the words inserted by amendment under Sub-Section (a) into Sub-Section (b) shall also be read which would consequently result in legislation by the Court. It was further submitted that it is the golden rule of interpretation that if words of a Statue are not vivid then the interpretations shall be drawn in accordance with the literal meaning of the expressions. 

Pursuant to the same, the Counsel stated that that simple reading of Sections 17(3)(a) and 17(3)(b) of the PC& PNDT Act depict that if the authority is for the entire State, then the committee shall constitute multiple members , however if the authority is  for a part of  State or Union Territory , then it can be of any officer duly authorized.

It was further submitted that the complaint was initially filed against Dr. V.K.  Sehdev , the  name of Dr. Manish Gupta was also mentioned in the complaint and the documents collected and filed along with the complaint showed that certain forms “F” were duly signed, counter signed by Dr. Manish Gupta and on the basis of documentary evidence, Dr. Manish Gupta was summoned. 

The Court considered the decision of the Full Bench of the Gujarat High Court in Suo Moto Vs. State of Gujarat,2009 CrlLJ 721, relied upon by the Counsel for state and in pursuance of the same observed that the same did not deal with the interpretation of Section 17(3)(a) of the PC& PNDT Act, however, it made a stark distinction between Clause (a) and Clause (b) of Section 17 (3) and observed that the use of  the word ‘Appropriate Authority’ twice, at the beginning and end of Clause (a) of sub-Section (1) of Section 28 vividly conveyed that the complaint could be made by an officer who is authorized in that behalf by the Central Government, the State Government or the Appropriate Authority, besides the Appropriate Authority itself.

Further Section 28 of PC & PNDT also prescribes that the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the said Act after pursuing the complaint on behalf of the Appropriate Authority or any  officer authorised by the Central Government and the State Government or the Appropriate Authority under sub-Section (1) of Section 28, added the Bench.

Further reliance was placed on the case of Nayak Vs. A.R. Antulay wherein it was held that if the words of the Statue are unclear or ambiguous, it is the obligation of the Court to give effect to the natural meaning of the word used in the provision. Another judgment in State of Mysore Vs. R.V. Bidap, was referred to wherein the Constitution Bench held that where it is plain, the language prevails, however where there is obscurity, it deems fit to take the aid of external factors such as object of the provisions, remedy made available by the virtue of the provision , the social context etc. 

Thus, it was construed by this Court that by reading the requirement of Section 17(3)(a) into Section 17(3)(b), it cannot be outrightly said that a single member Appropriate Authority would run against the Statue. It was further observed that when a raid is conducted in different areas of the State, it cannot be reasonably expected that the officer of the Department of  Law will be be available every time and it is for this reason that no corresponding amendment was brought in Section 17 Sub-Section 3 Clause (b) of the Act.

In addition to the above, it was also observed that the complaint in the present case was filed on July 31,2006, thus it was not a disputed fact that a retrospective operation of the judgment in PIL passed by the Division Bench of the Punjab and Haryana Court and further upheld by the full Bench in Dr. Zoni Jain’s case can be availed to quash the complaint in the instant case. The same finding was observed by the Division Bench of Punjab and Haryana High Court that by giving a purposive construction, it would be desirable to have a multi- member committee even at the District or State level and direction were issued to State Government. However, the retrospective operation was not executed. 

With respect to Dr. Manish, the Court was of the view that his case couldnot be put on the same pedestal as that of Dr. Sandeep Jain, as the evidence on record stated that he performed ultrasonography at the hospital without following the rules.

Also, the notification dated July 4, 2003 was considered wherein the Ministry of Health and Family Welfare, Union of India appointed a three member Appropriate Authority for the Union Territory of Delhi in exercise of its power conferred under clause (a) of sub-Section 3 of Section 17 PC&PNDT Act and not in respect of clause (b) of sub-Section 3 of Section 17 of the PC& PNDT Act. 

Thus the notification appoints a multi-member Appropriate Authority under Section 17(3)(a) for the whole of Delhi. The footnote of the said notification also statesthat the notification is in lieu of earlier notification dated October 12, 2001 pertaining to entry No.1, and thus the earlier notification in respect of entry 2 which pertains to Appropriate Authority at District Level remains unchanged in the subsequent notification for the reason there was no corresponding amendment to Section 17(3)(b), added the Court.

The Bench affirmed, “Legislature in its wisdom amended only clause (a) of sub-section 17(3) and not clause (b) to sub-Section 17(3) which was retained as it existed prior to the amendment. Thus, only if the Appropriate Authority is appointed for the whole of the State or Union Territory it would be required to be a multi-member authority. However when Appropriate Authority is appointed for part of the Union Territory or part of the State, a single member Appropriate Authority can competently be appointed and a valid cognizance taken on the complaint of such a single member Authority. If the Legislature had so desired it could have amended clause (b) of sub-section 17(3) as well.”

Thus, the Court was of the view that the complaint against the petitioner cannot be quashed, considering the above observations.