(Dr.) Pooja Agrawal v. Shivbhan Singh Rathore And Another

M.Cr.C.5967/2009 1

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

JUSTICE SUJOY PAUL.

Misc. Criminal Case No. 5967/09

Dr.(Smt) Pooja Agrawal

Vs.

Shivbhan Singh Rathore & Anr.

--------------------------------------------------------------------------------

Shri Raju Sharma, Advocate for the petitioner.

Shri H.K.Shukla, Advocate for respondent No.1.

Shri A.S.Rathore, PL for respondent No.2/State.

--------------------------------------------------------------------------------

O R D E R

(14/ 10 /2015)

The petitioner has invoked the jurisdiction of this

Court under Section 482 Cr.P.C. to challenge the

proceedings of Criminal Case No. 1248/2009 pending

before Chief Judicial Magistrate, Bhind. The petitioner

has also challenged the order of Revisional Court dated

7.8.2009.

2. Shri Raju Sharma, learned counsel for the petitioner

submits that the petitioner is running an ultra sound

clinic in the name and style of Divyam Ultrasound Centre

at Bhind. The petitioner is a qualified Radiologist and

Sonologist. The petitioner's clinic is duly registered

under the provisions of Pre-Conception and Pre-Natal

Diagnostic Techniques (Prohibition of Sex Selection) Act,

1994 (for brevity, the "Act of 1994"). Shri Sharma

submits that respondent No.1 is a habitual complainant.

He preferred series of vague complaints against various

doctors of Bhind. None of these complaints could fetch

any result and allegations mentioned therein could not

be proved. Attention of this Court is drawn on a

compilation prepared and filed on 28.9.2015. By taking

this Court to page 55, 68, 99, 107 and 108 of this

M.Cr.C.5967/2009 2

compilation, it is argued that the respondent No.1

preferred various complaints before various authorities.

No allegation of complainants could be established,

which shows that he is habitual complainant and makes

such complaint to harass the doctors/clinic operators.

Shri Sharma further submits that a plain reading of

complaint (page 68 of compilation) shows that the

allegations mentioned against the petitioner are

vague/ambiguous. As per the face value of the

allegations itself, it can be safely said that no offence is

made out against the petitioner. Putting it differently, by

applying the acid test laid down by the Supreme Court in

AIR 1992 SC 604 (State of Haryana vs. Bhajanlal), Shri Sharma

submits that if allegations of the complainant are

accepted on its face value, no offence of any nature is

established against the petitioner. Thus, the Court below

has committed an error in taking cognizance of such an

unworthy complaint.

3. Shri Sharma also relied on Section 28 of the Act of

1994 to submit that it is condition precedent to submit a

notice before the appropriate authority. Only after

completion of 15 days time from the date of giving

notice, the complaint could have been preferred. Shri

Sharma submits that the notice dated 28.3.2008 makes

it clear that it does not fulfill the requirement of Section

28(1)(b) of the said Act. Complainant has not disclosed

the “alleged offence” in the said notice qua petitioner

and, therefore, the complaint itself was not tenable. Shri

Sharma read out the statement of complainant and his

witness (page 93 and 94 of the compilation). On the

strength of this, it is urged that the Court below has erred

in taking cognizance of the complaint.

4. The next attack is on the revisional order. Shri

Sharma has taken pains to submit that the revisional

court has exceeded its jurisdiction. There was no

M.Cr.C.5967/2009 3

occasion for the revisional court to act as a court of first

instance. The revisional court was only required to

examine the decision making process of the trial court.

Putting it differently, Shri Raju Sharma submits that the

revisional court has acted as a court of first instance and

examined the entire material before it which is legally

impermissible. Shri Sharma relied on various provisions

of the Act of 1994 to submit that petitioner has not

committed any offence whatsoever and courts below

have mechanically taken cognizance against the

petitioner. He relied on following judgments of Supreme

Court in support of his contention:-

(i) AIR 1992 SC 604 (State of Haryana and others

Vs. Ch. Bhajan Lal and others).

(ii) AIR 1992 Sc 637 ( Daman Municipal Council

and another etc. Vs. M/s Paramount Traders

and others).

(iii) (1998) 5 SCC 749 (Pepsi Foods Vs. Special

Judicial Magistrate).

(iv) 2015(1) Crimes (SC) 271 (Sharad Kumar

Sanghi Vs. Sangita Rane).

(v) 2015 (2) Crimes (SC) 340 (Monju Roy & Ors.

Vs. State of West Bengal).

(vi) 2015 (2) RCR (Criminal) (SC) 515 (D.P. Gulati,

Manager Accounts M/s. Jetking Infotrain Ltd.

Vs. State of Uttar Pradesh & Anr.).

(vii) (2014) 7 SCC 215 (Rishipal Singh Vs. State of

U.P. & Anr.).

(viii) 2015(1) Crimes (SC) 211 ( K.K.Kuda Vs. Chief

Enforcement Officer, Enforcement Directorate

& Anr.).

It is submitted that taking cognizance on a criminal

complaint is a serious matter. On the basis of a vague

complaint supported by two statements of witnesses

alone, cognizance could not have been taken. Heavy

reliance is placed on the judgment of Supreme Court in

Pepsi Food (supra). It is submitted that the courts below

have acted beyond jurisdiction and complaint

proceedings are liable to be set aside at this stage itself.

5. Shri H.K.Shukla, learned counsel appearing for the

complainant supported the order of the trial court and

M.Cr.C.5967/2009 4

the revisional court dated 7.8.2009. Shri Shukla submits

that the allegations mentioned in the complaint are

sufficient to take cognizance. He relied on the order

dated 1.7.2008 passed by the trial court. The said order

shows that the complainant preferred application for

summoning the relevant record from the office of Chief

Medical and Health Officer, Bhind. Said application of the

complainant was accepted by the court below and

relevant record was summoned. Shri Shukla submits

that court below examined the averments of the

complaint and the material available before it and then

only has taken cognizance. Learned counsel for the

complainant submits that the sex ratio at Bhind is

alarmingly low. This situation has arisen because of

inaction of the Government authorities. The clinics are in

hands and gloves with the Government authorities. Shri

Shukla submits that once the entire official record was

summoned and produced before the trial court, it was

open for the trial court to examine that material and

take cognizance based on it. The court below has not

committed any legal or jurisdictional error in considering

the said material and taking cognizance. In support of his

submissions, he relied on certain judgments of the

Supreme Court. He submits that whether or not

complaint has sufficient material/evidence, it cannot be

the subject matter of adjudication/judicial review at this

stage. It is for the trial court to proceed with the factual

matrix of the matter and give a conclusion after

appreciation of the evidence. At this stage, normally and

ordinarily no interference should be made.

6. Shri A.S.Rathore, learned Panel Lawyer borrowed

the arguments advanced by Shri H.K.Shukla, learned

counsel for the complainant.

7. No other point is raised by learned counsel for the

parties.

M.Cr.C.5967/2009 5

8. I have heard the learned counsel for the parties and

perused the record.

9. The Act of 1994 is an outcome of concern shown by

both the Houses of Parliament. A Joint Committee of both

the Houses prepared and presented a report in

December, 1992. On the basis of report/

recommendations aforesaid, a Bill was introduced in the

Parliament. The basic reason of the worry/concern was

that in the recent past Pre-natal Diagnostic Centres

sprang up in the urban areas of the country using pre-

natal diagnostic techniques for determination of sex of

the foetus. Such centres became very popular and their

growth was tremendous as the female child is not

welcomed with open arms in most of the Indian families.

The result was that such centres became centres of

female foeticide. Such abuse of the technique is against

the female sex and affects the dignity and status of

women. Various Organisations working for the welfare

and uplift of the women raised their heads against such

an abuse. Justice Leila Seth in her book “Talking of

Justice” has quoted Rabindranath Tagore. Tagore said

“every time a child is born, it brings with it the hope that

God is not yet disappointed with man.” After quoting

Tagore, learned author expressed her pain by saying that

“it appears to me that when a girl child is born in India,

more often than not, man is disappointed with God. The

birth of first daughter is often considered bad luck, the

second a disaster and third a catastrophe”. Rabindra

Nath Tagore long back said:-

“O' Lord, why you have not given

woman the right to conquer her destiny?

Why does she have to wait

head bowed by the road side

Waiting with tired patience

hoping for a miracle on the morrow”

Needless to mention that said morrow has not yet