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.
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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.
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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