Magistrate Can't Take Cognizance Of Prenatal Sex Determination Complaint Unless Filed By Appropriate Authority Notified By Govt: Karnataka HC Dhondiba Anna Jadhav Vs The State Of Karnataka

JUDGEMENT SUMMARY:
Dhondiba Anna Jadhav v. The State Of Karnataka

DATE OF JUDGEMENT:
21st February 2022

JUDGES:
M. Nagaprasanna, J.

PARTIES:
Dhondiba Anna Jadhav And Anr. (Petitioners)
The State Of Karnataka(Respondent)

SUBJECT

The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (Act of 1994) was brought into force to check female foeticide. One of the powers conferred to the Appropriate Authority appointed under the Actis to issue search warrants for places which are suspected of indulging in sex-selection techniques or pre-natal sex determination or any such matter which will result in Female Foeticide. The Dharwad Bench of the High Court of Karnataka holds that in cases relating to prenatal sex determination, the Magistrate cannot take cognizance of the offence unless it was filed by the Appropriate Authority who is notified by the Government.

AN OVERVIEW

1. The Petitioners were medical practitioners who owned and ran a hospital.
2. The Respondent was a Taluka Health Officer who had visited the Petitioners’Hospital to conduct an inspection.
3. After the inspection, the Respondent had alleged that the Hospital of the petitioners had not maintained the records in accordance with the Act of 1994 and had installed equipment which was used for the purpose of prenatal sex determination.
4. The Respondent had registered a complaint relating to the allegations against the Petitioners and had seized the documents from the Hospital.
5. The jurisdictional Magistrate had taken the cognizance of the offence under the Act of 1994 and the petitioners were driven to Court.
6. The Petitioner had filed a petitioner before the High Court to quash the proceedings against them before the Principal Civil Judge.

IMPORTANT PROVISIONS

Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994:

• Section 17- Outlines the Appropriate Authority and Advisory Committee under the Act
• Section 28- Outlines the cognizance of the offense under the Act

Code of Criminal Procedure 1973:

• Section 482- Provides High Court with inherent power

ISSUES

1. Whether the proceedings instituted by the respondent suffered from the want of jurisdiction?

ANALYSIS OF THE JUDGMENT

1. Section 17 (1) of the Act of 1994 had empowered the Central Government to appoint one or more Appropriate Authorities of every State and Union Territory to keep a check on female foeticide by issuing notification in the Official Gazette. Section 17(2) of the Act had conferred the power of appointment of Appropriate Authorities for every part of the State to the State Government through a notification issued in the Official Gazette. Thus, for the appointment of the Appropriate Authority, it was imperative that a notification regarding the same would be issued either by the Central or State Government in the Official Gazette.
2. The learned High Court pleader who had appeared for the Respondent had put forth that a notification dated 2011 was issued by the Government that had empowered the Respondent to inspect and register Complaint. However, such notification had not appointed the Respondent as the Appropriate Authority.
3. On the other hand, the State Government of Karnataka had issued a notification that had appointed the Assistant Commissioner as the Appropriate Authority in various districts in accordance with Section 17(2) of the Act of 1994. From the conjoint reading of the said provision and the notification, it was inferred that the Assistant Commissioner was the appointed Appropriate Authority under the Act.
4. Section 28 of the Act had provided that for the cognizance of offence under the Act, the complaint had to be made by the ‘Appropriate Authority’ appointed by either the Central Government or the State Government. The registration was required to be done by the Appropriate Authority and there was no exception for the same

CONCLUSION

It was concluded that the Taluka Health Officer was not the Appropriate Authority and was not authorized to register the complaint about the offence under the Act of 1994. It was observed that the Magistrate had erred in taking the cognizance of the complaint made by the Taluka Health Officer and the same was subsequently rendered unsustainable. The High Court of Karnataka allowed the petition and quashed the proceedings pending before the Principal Civil Judge.

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