Court No. - 44
Case :- APPLICATION U/S 482 No. - 26786 of 2018 Applicant :- Dr. Savita Singhal Opposite Party :- State Of U.P. Through Dr. P.K. Sharma Additional Chief Medical Officer Counsel for Applicant :- Dharmendra Singhal,Shivendra Raj Singhal Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Dharmendra Singhal, learned counsel for the applicants and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed challenging the order dated 10th July, 2018 passed by the Chief Judicial Magistrate, Aligarh in Case No. 14940 of 2017 (State Versus Dr. Savita Singhal & Others), under Sections 3 (A), 6, 29, 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, whereby the application dated 19th May, 2018 filed by the present applicant for opening of the seal of the seized machines has been rejected.
3. From the record, it appears that Complaint Case No. 14840 of 2017 was filed against the applicant, in which the applicant was summoned vide summoning order dated 17th November, 2017. Upon failure of the applicant to appear before the court below in terms of the aforesaid summoning order dated 17th November, 2017, Non- Bailable Warrant was issued against the applicant vide order dated 14th March, 2018.
4. Feeling aggrieved by the summoning order dated 17th November, 2017, the order dated 14th march, 2018, whereby Non- Bailable Warrant was issued against the applicant as well as the entire proceedings of the above mentioned complaint case, the present applicant filed Application U/S 482 No. 10474 of 2018 (Dr. Savita Singhal vs. State of U.P.). This application came up for admission on 30th March, 2018 and this Court passed the following interim order:
“This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned summoning order dated 17.11.2017 and NBW order dated 14.3.2018 as well as the entire proceedings of complaint dated 17.11.2017 registered as Case No.14840 of 2017 under Sections 3 (A), 6, 29, 23 and 25 of the Pre Conception and Pre Natal Diagnostice Techniques (Prohibition of Sex Selection) Act, 1994, Police Station-Quarsi, District-Aligarh pending in the Court of Chief Judicial Magistrate, Aligarh.
Heard Sri Shivendra Raj Singhal assisted by Sri Dharmendra Singhal, applicants' counsel and learned A.G.A.
Entire record has been perused.
Submission of the counsel is that the applicant never determined any sex nor communicated the same. Further submission is that there is violation of Section 17-A (c) of the Pre Conception and Pre Natal Diagnostic Techniquest Act (hereinafter to be referred as 'the Act'). Reliance in this regard was placed on the decision dated 6.6.2011 passed by Bombay High Court in Writ Petition no.7896 of 2010 alongwith Civil Application No.512 of 2011 [Dr. (Mrs.) Suhasini Umesh Karanjkar Vs Kolhapur Municipal Coropration & another]. Further submission is that the complaint was filed by an unauthorized person who was not authorized under Section 28 of the Act in question. In the present case the complaint has been filed by the Additional Chief Medical Officer while the authorized person in this regard is the District Magistrate. Reliance in this regard was placed on the decision dated 27.9.2016 passed by Bombay High Court in Crl. Writ Petition No.1381 of 2015 (Dr. Sai w/o Santosh Shiradkar vs. The State of Maharashtra & Anr). It was also pointed out that Section 30 of the Act has also not been complied with which required that the appropriate authority ought to have been apprised in this respect and then the seizure ought to have been made.
Contentions raised at the bar require detailed hearing on law and facts both.
Notice on behalf of opposite party No.1 has been accepted by learned AGA.
Learned AGA may file counter affidavit within the period of three weeks from today.
Rejoinder affidavit may be filed within two weeks thereafter.
List this matter immediately after expiry of the aforesaid period before the appropriate bench.
Till the next date of listing further proceedings of Case No.14840 of 2017 u/s 3 (A), 6, 29, 23 and 25 of the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) (P.C.P.N.D.T.) Act 1994, P.S.-Quarsi, District-Aligarh pending before the Court of Chief Judicial Magistrate, Aligarh with regard to applicant namely Dr. Savita Singhal, shall remain stayed.”
5. Subsequently, during the pendency of the aforesaid application U/S 482 Cr.P.C., the applicant filed an application dated 19th May, 2018 in Case No. 14940 of 2017 (State through Dr. P.K. Sharma vs. Additional Chief Medical Officer, N.R.H.M., Aligarh vs. Dr. Savita Singhal) under Sections 3 (A), 6, 29, 23 and 25 P.C.P.N.D.T., Act 1994, P.S.-Quarsi, District-Aligarh, praying therein that the ultrasound machine and Colour Doppler, which have been seized, may be released. This application was registered, as Paper No. 15-B. The Chief Judicial Magistrate, Aligarh, by means of the impugned order dated 10th July, 2018, rejected the aforesaid application on the ground that since the further proceedings of the Complaint Case have been stayed by the High Court, no order can be passed on the said application. Therefore, the matter was fixed for 10th August, 2018. Feeling aggrieved by the order dated 10th July, 2018 referred to above, the applicant has now approached this Court by means of the present application under Section 482 Cr.P.C.
6. Learned counsel for the applicant submits that machines, which have been seized, if not maintained properly and used, will deteriorate. He further submits that in view of the law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in 2003 (46) ACC, 223, the seized machines are liable to be released. Reliance is placed upon Paragraph Nos. 6, 7 and 14 of the aforesaid judgment, which are reproduced herein-under:
"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
Valuable Articles and Currency Notes 14.In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles."
7. When the matter was taken up on 21st August, 2018, this Court passed the following order:
“Heard Mr. Dharmendra Singhal, the learned counsel for the applicant and the learned A.G.A. for the State.
Looking into the nature of the controversy involved in the present application, it is desirable that the learned A.G.A. may obtain instructions in the matter. Let necessary instructions be obtained on or before 04.09.2018.
Put up this case as a fresh case on 05.09.2018.”
8. Learned A.G.A. for the State, upon instructions received by him, submits that the seized machines were not released on account of the interim order dated 30th March, 2018 passed by this Court, as referred to above. As such, no illegality can be said to have been committed by the Chief Judicial Magistrate, Aligarh in not directing the release of the seized machines. He, however, fairly, submits that the State has no objection, in case the seized machines are directed to be released in favour of the applicant provided some protection is attached to the interest of the complainant by providing that the same shall not be disposed of till the pendency of the criminal proceedings.
9. Having considered the submissions made by the learned counsel for the applicant and the learned A.G.A. for the State, the Court finds that the case in hand is squarely covered by the observation made by the Apex Court in the case of Sunderbhai Ambalal Desai (Supra).
10. Consequently, the order dated 10th July, 2018 passed by the Chief Judicial Magistrate, Aligarh is hereby quashed. The matter is remanded to the Chief Judicial Magistrate, Aligarh with a direction to release the seized machines in favour of the applicant after taking an undertaking from the applicant that the said machines shall not be disposed of till the pendency of the criminal proceedings. The Chief Judicial Magistrate shall also record the distinctive features, if any, of the machines so as to have the identity of the machines to be so released on the record.
11. With the aforesaid directions, the present application is allowed.
(Rajeev Misra, J.) Order Date :- 6.9.2018 Sushil/-