Court No. - 79
Case :- APPLICATION U/S 482 No. - 18893 of 2020 Applicant :- Dr Rakesh Mandhorya Opposite Party :- State of U.P.
Counsel for Applicant :- Raghuraj Kishore Counsel for Opposite Party :- G.A.
Hon'ble Vivek Varma,J.
Heard learned counsel for the applicant, Ms Seema Shukla, learned Additional Government Advocate for the State/opposite party no.1 and perused the record.
This application under Section 482 Cr.P.C. has been filed by the applicant to quash the order dated 21.02.2019 passed by Civil Judge (S.D.)/ F.T.C., Saharanpur in complaint case no.4704 of 2018, under Section 3/23 Pre Natal Diagnostic Technique Act, 1994, P.S. Gangoh Saharanpur & order dated 02.12.2019 passed by Additional Sessions Judge, Court No.1, Saharanpur in Criminal Revision No.106 of 2019 as well as the entire proceedings of the above case.
The facts as emerged from the record are that on 28.04.2002 the opposite party filed a complaint alleging that on 25.03.2002 the premises of the applicant was inspected and it was found that the applicant, who is a doctor had been using Ultrasound Machine without its registration. On the basis of the said complaint, the applicant was summoned, thereafter on 01.12.2003 the applicant filed a discharge application. On 24.10.2013, the trial Court rejected the discharge application. Against the order of rejection of discharge application the applicant filed criminal revision no.595 of 2013. The revisional Court came to the conclusion that in the complaint there is no allegation that Ultrasound Machine was being used for genetic counselling, laboratory or clinic and on the basis of this finding allowed the revision vide order dated 25.03.2015 and set aside the order date 24.10.2013 and remanded the matter back to the learned Magistrate to pass a fresh order in the light of the observations in accordance with law. On 21.02.2019 the learned Magistrate rejected the discharge application without adverting to the observations of the revisional Court and passed the impugned order by coming to the conclusion that the applicant has not obtained bail in the said case. Against the said order the applicant filed revision no.106 of 2019. The said revision was also dismissed vide order dated 02.12.2019, hence, the present application.
Perusal of the impugned order dated 21.02.2019 passed by the Civil Judge (Senior Division)/ F.T.C. shows that the learned Magistrate has not adverted to the observations made by the revisional Court and rejected the discharge application.
Learned Counsel for the applicant, Sri Raghuraj Kishore submits at the bar that the applicant has already obtained bail in the Court below during the pendency of this application before this Court. He submits that the learned Magistrate was legally bound to have taken into consideration the observations made by the revisional Court in its order dated 25.03.2015 while passing the order on the discharge application.
Learned A.G.A., who has accepted notice on behalf of the State opposed the aforesaid submissions as advanced by the learned Counsel for the applicant, but does not dispute the fact that the observations of the revisional Court has not been taken into consideration by the learned Magistrate and he submits that the matter may be remanded back to the Court concerned to pass a fresh order.
Considering the submissions as raised by the learned Counsel for the parties, I am of the view that the learned Magistrate has committed error in passing the impugned order as the observations made by the revisional Court ought to have been taken into consideration by the learned Magistrate while deciding the discharge application, hence, the orders dated 21.02.2019 passed by Civil Judge (S.D.)/ F.T.C., Saharanpur and 02.12.2019 passed by the revisional Court in Criminal Revision No.106 of 2019 are set aside. This applications is allowed. The matter is remitted back to the trial Court with direction to decide the discharge application afresh in accordance with law.
Order Date :- 6.1.2021 S.P.