Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 4349 of 2019
Petitioner :- Poonam
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Santosh Tripathi,Mandvi Tripathi
Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
Heard Sri Santosh Tripathi, learned counsel for the petitioner and the learned A.G.A.
This writ petition has been filed for quashing the FIR dated 28.1.2019, registered as Case Crime No.88/2019, under Sections 4, 5(1(A), 6(A), 23 of the Pre-conception and Pre-natal Diagnostic Techniques Act, 1994 and Section 120-B IPC, P.S. Murad Nagar, Ghaziabad.
The FIR lodged by the District Tuberculosis Officer, after authorization from the District Magistrate, raided "Tyagi Diagnostic Centre" on 26.1.2019 at around 4 PM, wherein two ultrasounds machines were sealed along with Rs.7500/- when a decoy went for sex determination of her unknown child. The FIR encloses a sealed envelope containing Rs.7500/-, 3 page spot memo, an ultrasound report of a decoy, Aadhar card of co-accused Sachin Tyagi and two ultrasonic machines duly sealed. The FIR nominates Sachin Tyagi and Poonam (petitioner) as accused.
Learned counsel for the petitioner vehemently submitted that no role has been assigned to the petitioner, an FIR cannot be lodged under the provisions of the Act in view of the embargo of Section 28 of the Act. It is finally submitted that the petitioner is an "ASHA" worker who has no nexus with the ultrasound clinic in question or with the co-accused.
Sections 27 & 28 of the Act are extracted hereunder:
27. Offence to be cognizable, non-bailable and non-compoundable.- Every offence under this Act shall be cognizable, non-bailable and non-compoundable.
28. Cognizance of offences. (1) No court shall take cognizance of an offence under this Act except on a complaint made by-
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than thirty days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
Explanation.- For the purpose of this clause, "person" includes a social organisation.
(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(3) Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
A perusal of aforesaid manifests that the offence under the Act is cognizable apart from being non-bailable / non-compoundable. Cognizance of an offence under this Act can only be made by way of a complaint by a designated authority / person in the manner indicated in Section 28. The Apex Court in the case of Voluntarily Health Association of Punjab vs. Union of India and others, (2013) 4 SCC 1, has already highlighted the rigid compliance of the Act to which there could be no exception.
We do not find any bar for lodging an FIR by an authorized person. The offence alleged is heinous, cognizable / non-bailable. The FIR has been lodged after a preliminary inquiry and due authorization from the District Magistrate. The alternate contention of the petitioner cannot be examined at this stage as the Court has to go only by the allegations made in the FIR which is disclosing cognizable offences.
The writ petition is dismissed.
However, the above observations have been made only with a view to ascertain as to whether on the allegations made in the FIR, a cognizable offence is made out or not, same shall not prejudice the petitioner at a subsequent.
Order Date :- 26.2.2019 Chandra