Who can call themselves Appropriate Authority under the Act?
Through a High Court judgement Doctors’ License to run Sonography Clinic restored as the action of suspension of license was held to be illegal. The Criminal Action initiated under PCPNDT Act was also quashed and set aside by Hon. Bombay High Court.
Facts in short :
1. The Doctor couple, a Gynecologist and her Chest Specialist husband from Dist. Nanded, Maharashtra, approached Hon. High Court thereby challenging the criminal action initiated against them under PCPNDT Act as well as praying for restoring their License to run the genetic clinic.
2. The Lady Doctor runs a clinic by name Matoshri Hospital. It was the case of the Complainant-Respondent No.2, the Medical Officer of Nanded Municipal Corporation, that on the basis of alleged tip of sex determination being carried out at said Hospital, the decoy customer was sent to the Hospital. It was alleged that the husband-Doctor conducted the sonography on the decoy customer in presence of the his Gynac-Wife and nurse. IT was told to the decoy customer that fetus was a girl child. In between the Agent kind of a person who took the decoy patient to the hospital, informed the Accused that he knew another doctor who takes less charges for abortion.
3. After some time vigilance team conducted the raid and recovered Rs.1500/- from the decoy customer as well as it was found that F Forms were not properly filled. Some other irregularities in other registers were also found. Thus the complainant lodged the private complaint with Chief Judicial Magistrate (C.J.M.) and C.J.M. issued the process against the Petitioners Doctor Couple. Simultaneously thier license issued under PCPNDT Act were also cancelled and for both these reasons, they approached Hon. Bombay High Court, Aurangabad Bench.
Contentions of the Petitioners/Applicants :
1. The Petitioners refuted all the allegations of alleged Sex Determination being carried at thier hospital.
2. They contended that the complainant can not be said to be a “Competent Authority” under the PCPNDT Act to initiate the criminal prosecution. They relied upon the corrigendum dated 3.2.2016 to the Govt. Resolution dated 9.12.1997 which clearly mentioned that at the district place the Civil Surgeon shall be the “Appropriate Authority”. Where at a district place there is no Civil Surgeon then the Dean of the Medical College shall be the “Appropriate Authority” and where there is no Medical college, Medical Officer of the Municipal Corporation shall be the “Appropriate Authority”.
3. It is therefore contended that as the Civil Surgeon is available at Nanded , original complainant can not be said to be an “Appropriate Authority”.
4. Per Contra, the Complainant submitted that by virtue of the Govt. Resolutions dated 11/09/1997 and 09/12/1997, she is the Appropriate Authority under the Act. The complainant also relied upon the Govt. Resolution dated 16/3/2016 wherein it is stated that for Municipal Corporation area the Medical Health Officer would be the Appropriate Authority
1. Her Ladyship Hon. V. V. Kankanwadi allowed the Petition in favour of Doctor Couple, after going through the documents and evidence adduced.
2. The Court agreed to the submission on behalf of the Doctors that since the Civil Surgeon is available at Nanded , original complainant can not be said to be an “Appropriate Authority”.
3. Further it was observed that the said 2 Resolutions tried to be relied upon by the complainant, had been interpreted in Criminal Writ Petition No. 250/2015 by the Division Bench of this Hon. Court. In that case the also the Medical Officer of Aurangabad Municipal Corporation claimed herself to be the “Appropriate Authority”. However thier lordships observed that when superior posts like District Civil Surgeon or Medical Superintendent affiliated to the Medical College are available at Aurangabad, the said residuary clause in the notification will not come into play and will not give any authority to the Medical Officer and it was held that the Medical Health Officer of the Municipal Corporation can not be said to be an “Appropriate Authority.
4. The Court did not accept the reliance of the Complainant on the Resolutions dated 15/05/2015 and 16/03/2016 as offence is stated to have taken place on 2013 and also the complaint was filed in 2013. Therefore, the Govt. Resolution which was then prevalent would give the authority to the complainant to file complaint. So the retrospective effect to the said Resolutions was not given.
5. Thus it was held that it would be an abuse of process of law, if the complaint is allowed and it was held that the respondent No. 2-complinanant was not an Appropriate Authority under PCPNDT Act and therefore, had no authority to cancel the licence of sonography centre run by the applicant.
This is a great relief under PCPNDT Act. The moot question is always asked as to whether the main object of the PCPNDT Act to curb the evil of female foeticide has been really achieved ? The wrongdoers Doctors have been punished by the Courts in appropriate cases.
In this era also in many educated families they want their daughter-in-laws to give them “vansh-ka-diya” and not the daughters.
I always quote the well known legal maxim, which says that
“IF MEN ARE PURE, LAWS ARE USELESS &
IF MEN ARE CORRUPT, LAWS ARE BROKEN”.
Thus we society as a whole have to change our mindset
Thanks and regards,
Adv. Rohit Erande
Judgement can be accessed at link: https://indiankanoon.org/doc/29733914/