Uttaranchal High Court: Ravindra Maithani, J., while discussing the scope of Section 482 of the Code of Criminal Procedure, 1973 and the object of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, held that,
“Violation under Rule 13 of the PCPNDT Rules will attract Section 23 of the PCPNDT Act.”
Petition in the instant matter was filed under Section 482 of the Code of Criminal Procedure, 1973 against the decision of Chief Judicial Magistrate, Haridwar.
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
Complaint under Section 23 of the PCPNDT Act was filed against the petitioner for violating Rule 13 of PCPNDT Rules, 1996. Hence in view of the said position, cognizance under Section 23 of the said Act was taken.
Issues that arose for consideration on 30-06-2020:
Whether violation of Rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or Section 23 of the PCPNDT Act? This question is not directly involved. But, then it also requires deliberation as to whether in this petition this aspect can be examined.
If cognizance is taken under Section 23 of the PCPNDT Act and subsequently charged under Section 25 of the PCPNDT Act is farmed, what should be the limitation for cognizance?
Petitioner’s counsel, V.B.S Negi, Senior Advocate assisted by Ayush Negi, Advocate contended that the charge was framed under Section 25 of the PCPNDT Act for which limitation period is 1 year, but cognizance was taken long thereafter.
For the offence under Section 25 of the PCPNDT Act, the limitation period is 1 year, but in the instant petition, cognizance was taken under Section 23 of the PCPNDT Act for which the limitation period is of 3 years.
Object of Limitation
The opening sentence of Section 468 of the Code in itself makes it abundantly clear that the limitation is applicable at the time of taking cognizance, not consequent thereupon.
There may be a situation where cognizance is taken of an offence and charge is framed of different offence and again conviction is held under a different section.
So can it be said that the subsequent offence(s) would be determining factors for counting the period of limitation? The answer is in NEGATIVE.
Supreme Court decision in Sara Mathew, v. Institute of Cardiovascular Diseases,(2014) 2 SCC 62, observed that,
“…the object of Chapter XXXVI inserted in the CrPC was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences.”
Position as laid down by the Supreme Court in the decision of State of Himachal Pradesh v. Tara Dutt, (2000) 1 SCC 230, it was held that,
“…it is the offence of which the cognizance has been taken, which determines the period of limitation and not the offence under which the person is convicted and its natural corollary is that for the purpose of determining the period of limitation, the offence charged is also not relevant. What is relevant is the offence(s) under which cognizance has been taken.”
Bench in view of the above-stated position held that the lower Court had rightly dismissed the applications filed by the petitioner since cognizance was not time-barred.
Another question that was posed by the Court was:
“Whether a violation of Rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or Section 23 of the PCPNDT Act?”
Jurisdiction under Section 482 CrPC
Jurisdiction under Section 482 of the Code is of much larger magnitude. The basic purpose of Section 482 of the Code is to do real and substantive justice for the administration of which, it exists.
In the present matter, the lower court’s order which has been challenged did not mention as to why the violation of Rule 13 does not attract the provision of Section 23 of the PCPNDT Act.
The Court had observed that the question as to under which Section of the PCPNDT Act, the case falls, would be examined at the stage of framing of charge. But, it was not examined when the charge was framed.
High Court noted that the above decision of the lower court was not passed in accordance with the principles of Judicial Decision Making.
Objective of PCPNDT Act
In view of the decreasing sex ratio, the PCPNDT Act was framed. To get an offender is not an easy task because the offences are done in secrecy and in collusion.
Allegations against the petitioner
Allegations against the petitioner are that he did not inform the appropriate authorities about the change of sinologist and also he did not seek re-issuance of the certificate of registration as required under Rule 13 of the PCPNDT Rules.
Rule 13: Intimation of changes in employees, place or equipment
Rule 9 deals with the maintenance and preservation of records.
Sinologist
Position of sinologist is very important because it is he who conducts pre-natal diagnostic techniques. It is he who has to fill the form of the women on which this technique is conducted and this is form ‘F’, which is most important.
It was also observed that in the absence of form ‘F’, appropriate authorities will have no tool to supervise the uses of the ultrasound machine.
Re-issuance of the certificate of registration
Rule 13 does not only require that the information about the change of employees is to be given thirty days prior to the said change but, it also requires that a request shall also be made seeking re-issuance of the certificate of registration. It was also not done by the petitioner.
Section 25 of the PCPNDT Act: Residual Section
If punishment is provided elsewhere in the Act, the provision of Section 25 will not come into play.
Section 23 of the PCPNDT Act provides punishment for contravention of any of the provision of the Act or rules made thereunder.
Therefore, in the present matter, a violation under Rule 13 of PCNPDT Rules will attract Section 23 and not Section 25 of the PCNPDT Act. [Nitin Batra v. State of Uttarakhand, 2020 SCC OnLine Utt 352, decided on 20-07-2020]