# Dr. Anju Goswami v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2020) 12 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-09-20
- **Case number:** Application U/S 482 No. 16027 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anju-goswami-v-state-of-u-p-anr-opp-parties-45459
- **Pages:** 6

## Headnote

Criminal Law - Pre-Conception & Pre-Natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994- This Act was passed
under National Policy for maintaining sex
ratio and prohibiting misuse of diagnostic
techniques for pre-natal sex determination,
resulting female foeticide.

The purpose and object of the Act was to
prohibit the misuse of pre-natal diagnostic
techniques resulting in female foeticide and to
make the same a punishable offence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- This Court
in exercise of inherent jurisdiction under
Section 482 Cr.P.C. is not to embark upon
factual matrix. Rather the same is to be
seen by the trial court.

Under the exercise of its inherent powers u/s
482 of the Cr.Pc the Court cannot enter into the
factual aspects of the case as the same are to
be appreciated only during the course of the
trial while leading evidence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 190- Anyone can
set the criminal law in motion by filing a
12 All. Dr. Anju Goswami Vs. State of U.P. & Anr.
227
complaint before a Magistrate entitled to
take cognizance under section 190 and
unless any statutory provision prescribes
any special qualification or eligibility
criteria for putting the criminal law in
motion, no Court can decline to take
cognizance on the sole ground that the
complainant was not competent to file the
complaint. But where any special statute
prescribes offences and makes any special
provision for taking cognizance of such
offence
under
the
Statute,
the
complainant requesting the Magistrate to
take cognizance of the offence must
satisfy the eligibility criterion prescribed
by the statute i.e. the complainant has to
satisfy the Magistrate that he is with
ability to file the complaint and in case in
hand this ability has been given in the first
paragraph of the complaint itself. The
complainant is Additional Chief Medical
Officer/
Nodal
Officer,
P.C.P.N.D.T.,
Mathura, duly authorised to file the
complaint.

It is settled law that although there are no
restrictions in the Cr.Pc on any person to set the
wheels of criminal prosecution in motion, but
where a special statute prescribes certain
provisions regarding the eligibility of the
complainant to file a complaint, then the
complainant has to satisfy the Magistrate about
his eligibility to file such complaint.

Criminal Application rejected. (E-3)

Case law/ judgements relied upon:-

## Text

226 INDIAN LAW REPORTS ALLAHABAD SERIES
this stage, that the prosecution cannot prove
the quilt or there may not be any
conviction.

50. Further, this Court finds that
the application under Section 482
No.32985 of 2018 (Veerpal and 3 others
Vs. State of U.P. and another), for
quashing of the entire proceedings of
the same Criminal Complaint Case
No.105 of 2017 (Shobha Devi Vs.
Veerpal and others), was dismissed on
merits by this Court, vide judgment
dated 20.09.2018, and it was thereafter
that the compromise has been entered
into. As such, the submission that the
compromise has taken place at the
initial stage cannot be accepted.

51. Any compromise or settlement
with respect to the offence of rape, against
the honour of a woman, which shakes the
very core of her life and tantamounts to a
serious blow to her supreme honour,
offending both, her esteem and dignity, is
not acceptable to this Court.

52. This application/petition under
Section
482,
for
quashment
of
the
proceedings of the complaint case in view
of the compromise, deserves to be rejected.
It is accordingly, rejected.

53. Learned court below is directed to
proceed
expeditiously
with
the
said
complaint case, in accordance with law, if
there is no other legal impediment.

54. No orders as to costs.

55. Let a copy of this judgment be
sent to the learned District & Session
Judge, Kannauj as well as the court
concerned, forthwith.
----------
(2020)12ILR A226
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 16027 of 2020

Dr. Anju Goswami ....Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ashutosh Sharma, Sri Rajiv Lochan
Shukla

Counsel for the Opp. Parties:
A.G.A.

Criminal Law - Pre-Conception & Pre-Natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994- This Act was passed
under National Policy for maintaining sex
ratio and prohibiting misuse of diagnostic
techniques for pre-natal sex determination,
resulting female foeticide.

The purpose and object of the Act was to
prohibit the misuse of pre-natal diagnostic
techniques resulting in female foeticide and to
make the same a punishable offence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- This Court
in exercise of inherent jurisdiction under
Section 482 Cr.P.C. is not to embark upon
factual matrix. Rather the same is to be
seen by the trial court.

Under the exercise of its inherent powers u/s
482 of the Cr.Pc the Court cannot enter into the
factual aspects of the case as the same are to
be appreciated only during the course of the
trial while leading evidence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 190- Anyone can
set the criminal law in motion by filing a
12 All. Dr. Anju Goswami Vs. State of U.P. & Anr.
227
complaint before a Magistrate entitled to
take cognizance under section 190 and
unless any statutory provision prescribes
any special qualification or eligibility
criteria for putting the criminal law in
motion, no Court can decline to take
cognizance on the sole ground that the
complainant was not competent to file the
complaint. But where any special statute
prescribes offences and makes any special
provision for taking cognizance of such
offence
under
the
Statute,
the
complainant requesting the Magistrate to
take cognizance of the offence must
satisfy the eligibility criterion prescribed
by the statute i.e. the complainant has to
satisfy the Magistrate that he is with
ability to file the complaint and in case in
hand this ability has been given in the first
paragraph of the complaint itself. The
complainant is Additional Chief Medical
Officer/
Nodal
Officer,
P.C.P.N.D.T.,
Mathura, duly authorised to file the
complaint.

It is settled law that although there are no
restrictions in the Cr.Pc on any person to set the
wheels of criminal prosecution in motion, but
where a special statute prescribes certain
provisions regarding the eligibility of the
complainant to file a complaint, then the
complainant has to satisfy the Magistrate about
his eligibility to file such complaint.

Criminal Application rejected. (E-3)

Case law/ judgements relied upon:-

1. St. of A.P Vs Gaurishetty Mahesh, JT 2010 (6)
SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844

2. Hamida Vs Rashid, (2008) 1 SCC 474

3. Monica Kumar Vs St. of U.P, (2008) 8 SCC 781

4. Popular Muthiah Vs St., Rep.by Inspr. of
Police, (2006) 7 SCC 296

5. Dhanlakshmi Vs R. Prasana Kumar, (1990) Cr
LJ 320 (DB): AIR 1990 SC 494

6. St. of Bih. Vs Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1
7. Vishwa Mitter Vs O.P. Poddar & ors.,
1983(20) ACC 367 (SC)

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This application under section 482
Cr.P.C. has been filed by Dr. Anju
Goswami against State of U.P. and Dr.
Devendra
Agarwal,
Additional
Chief
Medical
Officer/
Nodal
Officer,
P.C.P.N.D.T., Mathura, with a prayer for
quashing
impugned
summoning order
dated
15.2.2020
as
well
as
entire
proceedings of Complaint Case No. 294 of
2020, titled as Dr. Devendra Agarwal Vs.
Dr. Upendra Goswami and others, P.S.
Kosikalan, District Mathura, pending in the
court of C.J.M., Mathura.

2. Learned counsel for applicant argued
that a complaint under section 28 of the
P.C.P.N.D.T. Act was filed in the Court of
C.J.M., Mathura, by Dr. Devendra Agarwal,
Additional Chief Medical Officer/ Nodal
Officer, P.C.P.N.D.T., Mathura, against Dr.
Upendra Goswami, Dr. Anju Goswami and
Karmveer @ Rajveer, for offences punishable
u/s 3A, 4, 5, 6, 23 and 29 of the P.C.P.N.D.T.
Act, P.S. Kosikalan, District Mathura, whereas
entire accusation was said to be a raid
conducted by Civil Surgeon, Palwal, Haryana,
and his team, which was with no jurisdiction to
make any such raid of Ultrasound Centre in
Mathura, i.e. within the territory of State of U.P.
Learned Presiding Judge failed to appreciate
this fact that the contention made in the
complaint was not of any constitution of
offence, as above. The document filed with
complaint
was
Ultrasonography of
one
Sushma, whereas it was said to be of one
Kamla and the same was of one Sushma,
whereas no P.C.P.N.D.T. was made by the
applicant. Offence against the applicant was not
made out. In the like circumstance, in a
proceeding u/s 482 Cr.P.C. No. 13522 of 2020
228 INDIAN LAW REPORTS ALLAHABAD SERIES
filed by Dr. Upendra Goswami, a coordinate
Bench of this court has stayed the further
proceedings of the case against Dr. Upendra
Goswami till disposal of the application. The
matter with regard to present criminal case
regarding Dr. Upendra Goswami is pending
before this court in above previously instituted
proceeding u/s 482 Cr.P.C. and order of the Court
has been annexed with the paper book. The
notification issued by the State of Haryana
constituting a committee of appropriate authority
was with a specific mention that the jurisdiction
is for the territory of State of Haryana and not for
the State of U.P., whereas this complaint was
filed by the Additional Chief Medical Officer/
Nodal Officer, P.C.P.N.D.T., Mathura, but no
such raid was conducted by any appropriate
authority authorised by the State of U.P. for
conducting this raid at Mathura. The factual
contention was not making out any offence
against the applicant. The witnesses are pet
witnesses, who have previously taken part in
another proceeding of raid under P.C.P.N.D.T.
Act. The Apex Court in PUCL Vs. Union of
India, (1997) 1 SCC 301 as well as in K.S.
Puttaswamy Vs. Union of India, (2017) 10 SCC
1 has propounded that if any procedure is
prescribed and given then that is to be
determined and allowing defiance of the same
will dehorse the fundamental rights, in the
administration of criminal law, the ends would
justify the means would amount to declaring the
Government authorities may violate any
directions of the Supreme Court or mandatory
statutory rules in order to secure evidence against
the citizens. It would lead to manifest
arbitrariness and would promote the scant regard
to the procedure and fundamental rights of the
citizens, and law laid down by the Apex Court.
Accordingly, this case be heard on merits after
obtaining reply from the State of U.P. along with
previously instituted application u/s 482 Cr.P.C.
by Dr. Upendra Goswami. Meanwhile protection
may be given to the applicant, as has been given
in the case of Dr. Upendra Goswami.

3. Learned AGA vehemently opposed.

4. Having heard learned counsel for
both sides and gone through the material
placed on record, it is apparent that this
complaint was filed by Dr. Devendra
Agarwal, Additional Chief Medical Officer/
Nodal
Officer,
P.C.P.N.D.T.,
Mathura,
against Dr. Upendra Goswami, Dr. Anju
Goswami and Karmveer @ Rajveer, with
specific contention that the complainant is
an
authorised
authority
under
the
P.C.P.N.D.T. Act for filing complaint, as
above, and the complaint has been filed in
exercise
of
above
authority.
It
has
specifically been stated in paragraph no. 6
of the complaint that while preparation of
this raid was made by appropriate authority
of Palwal, Haryana, an adjacent district to
present place of occurrence, the Sub
Divisional
Magistrate,
Mathura,
Sri
Krishnanand Tiwari was present as duty
Magistrate before this raid and it has
further been written in paragraph no. 16 of
the complaint that this complainant had
rushed at the above place of occurrence,
after
having
information
of
such
commission
of
offence
under
the
P.C.P.N.D.T. Act, instantly and property
along with Ultrasonography Machine, etc.
were taken in custody. Meaning thereby the
Magistrate of Mathura and this complainant
were present at the time of occurrence at
the spot. Hence territorial jurisdiction,
being vehemently argued, is of no effect on
above facts.

5. Moreso, this Court in exercise of
inherent jurisdiction under Section 482
Cr.P.C. is not to embark upon factual
matrix. Rather the same is to be seen by the
trial court.

6. Saving of inherent power of High
Court, as given under Section 482 Cr.P.C,
12 All. Dr. Anju Goswami Vs. State of U.P. & Anr.
229
provides that nothing in this Code shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice.
Meaning thereby this inherent power is
with High Court (I) to make such order as
may be necessary to give effect to any other
order under this Code (II) to prevent abuse
of the process of any Court (III) or
otherwise to secure the ends of justice. But
Apex Court in State of Andhra Pradesh v.
Gaurishetty Mahesh, JT 2010 (6) SC 588:
(2010) 6 SCALE 767: 2010 Cr. LJ 3844
has propounded that "While exercising
jurisdiction under section 482 of the Code,
the High Court would not ordinarily
embark upon an enquiry whether the
evidence in question is reliable or not or
whether on a reasonable apprehension of it
accusation would not be sustained. That is
the function of the trial Judge/Court". In
another subsequent Hamida v. Rashid,
(2008) 1 SCC 474, hon'ble Apex Court
propounded that "Ends of justice would be
better served if valuable time of the Court
is spent in hearing those appeals rather
than entertaining petitions under Section
482 at an interlocutory stage which after
filed with some oblique motive in order to
circumvent the prescribed procedure, or to
delay the trial which enable to win over the
witness or may disinterested in giving
evidence,
ultimately
resulting
in
miscarriage of Justice". In again another
subsequent Monica Kumar v. State of
Uttar Pradesh, (2008) 8 SCC 781, the Apex
Court
has
propounded
"Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid down
in the section itself." While interpreting this
jurisdiction of High Court Apex Court in
Popular Muthiah v. State, Represented by
Inspector of Police, (2006) 7 SCC 296 has
propounded "High Court can exercise
jurisdiction suo motu in the interest of
justice. It can do so while exercising other
jurisdictions such as appellate or revisional
jurisdiction. No formal application for
invoking inherent jurisdiction is necessary.
Inherent jurisdiction can be exercised in
respect of substantive as well as procedural
matters. It can as well be exercised in
respect of incidental or supplemental power
irrespective of nature of proceedings".

7. Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
Dhanlakshmi v. R. Prasana Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC 494
has propounded "To prevent abuse of the
process of the Court, High Court in
exercise of its inherent powers under
section 482 could quash the proceedings
but there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in State
of Bihar v. Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1, Apex Court
propounded "In exercising jurisdiction
under Section 482 High Court would not
embark upon an enquiry whether the
allegations in the complaint are likely to be
established by evidence or not".

8. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above.

9. From the contention written in the
complaint as well as in the summoning
order, it is apparent that the above Hospital
was registered in the names of Dr. Upendra
Goswami and Dr. Anju Goswami, but the
230 INDIAN LAW REPORTS ALLAHABAD SERIES
alleged offence was committed by Dr. Anju
Goswami. Now the accusation is against
the applicant Dr. Anju Goswami for making
pre-natal determination of sex. Hence the
interim relief granted in above mentioned
Application u/s 482 Cr.P.C. in favour of Dr.
Upendra Goswami is on different fact than
the present applicant Dr. Anju Goswami.

10. The purpose for enactment of this
Central Act of the Pre-Conception & PreNatal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994 was that, in the
recent past pre-natal diagnostic centers
sprang up in the urban areas of the country
using pre-natal diagnostic techniques for
determination of sex of the foetus. Such
centres became very popular and their
growth was tremendous as the female child
is not welcomed with open arms in most of
the Indian families. The result was that
such centres become centres of female
focticide. Such abuse of the technique was
against the female sex and affects the
dignity and status of women. Various
organizations working for the welfare and
uplift to the women raised their heads
against such an abuse. It was considered
necessary to bring out a legislation to
regulate the use of, and to provide deterrent
punishment to stop the misuse of, such
techniques. The matter was discussed in
Parliament and the Pre-natal Diagnostic
Techniques (Regulation and Prevention of
Misuse) Bill, 1991 was introduced in the
Lok
Sabha.
The
Lok
Sabha
after
discussions adopted a motion for reference
of the said Bill to a Joint Committee of
both the Houses of Parliament and
ultimately this enactment was passed as Act
No. 57 of 1994 with an object The
Preamble of the Act provides that "it is an
Act to provide for the prohibition of sex
selection, before or after conception and
regulation of the use of pre-natal diagnostic
techniques for the purpose of detecting
genetic
abnormalities
or
metabolic
disorders or chromosomal abnormalities or
certain congenital malformations or sex
linked disorders and for the prevention of
their misuse for sex determination leading
to female foeticide and for matters
connected therewith or incidental thereto."
This Act was passed with above motion
under National Policy for maintaining sex
ratio and prohibiting misuse of diagnostic
techniques for pre-natal sex determination,
resulting female foeticide.

11. The complaint has been filed by
the Additional Chief Medical Officer/
Nodal Officer, P.C.P.N.D.T., Mathura. The
offence is committed inside chamber of a
medical
practitioner
by
misuse
of
diagnostic techniques and this raid was
conducted by an appropriate authority
authorised for the State of Haryana, but the
authorised officers of Mathura took part in
this
raid. A
Magistrate
along
with
complainant
had
participated
in
this
proceedings.

12. Apex Court in Vishwa Mitter Vs.
O.P. Poddar and others, 1983(20) ACC
367 (SC) has propounded that it is crystal
clear that any one can set the criminal law
in motion by filing a complaint before a
Magistrate entitled to take cognizance
under section 190 and unless any statutory
provision
prescribes
any
special
qualification or eligibility criteria for
putting the criminal law in motion, no
Court can decline to take cognizance on the
sole ground that the complainant was not
competent to file the complaint. Section
190 of the Code of Criminal Procedure
clearly indicates that the qualification of
the complainant to file a complaint is not
relevant. But where any special statute
prescribes offences and makes any special
12 All. Atul Kumar Singh Tomar & Ors. Vs. State of U.P. & Anr.
231
provision for taking cognizance of such
offence under the Statute, the complainant
requesting the Magistrate to take cognizance
of the offence must satisfy the eligibility
criterion prescribed by the statute i.e. the
complainant has to satisfy the Magistrate that
he is with ability to file the complaint and in
case in hand this ability has been given in the
first paragraph of the complaint itself. The
complainant is Additional Chief Medical
Officer/ Nodal Officer, P.C.P.N.D.T., Mathura,
duly authorised to file the complaint.

13. Hence, under all above facts and
circumstances, there is no misuse or abuse
of process of law. Accordingly, this
application merits its dismissal.

14. Dismissed as such.
----------
(2020)12ILR A231
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 37166 of 2010

Atul Kumar Singh Tomar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri S.K. Rao, Sri O.P. Singh, Sri Indrajeet Singh

Counsel for the Opp. Parties:
A.G.A., Sri K.M. Tripathi, Sri Sunil Kumar
Sharma

A. Code of Criminal Procedure, 1973Section 482 & Indian Penal Code, 1860Section-420,
467,
468,
471,
448application-
quashing
of
entire
proceeding-the purchase of the property
by the third applicant in government
auction, transferring it to the Degree
college, do not constitute the offence of
forgery-the nature of cheating or forgery
is not spelled out by the witnesses nor
there is evidence to that effect-it is only
after
mutation,
complaint
was
filed
seeking injunction against the applicantsthe nature of the plot alleged to have been
trespassed is a house-offence u/s 420,
467, 468, 471 and the trial shall proceed
for offence u/s 448. (Para 4 to 30)

The application is partly allowed. (E-6)

List of Cases cited: -

1. St. of Haryana & Ors. Vs Bhajan Lal & Ors,
(1992) Supp (1) SCC 335

2. St. of Karnataka Vs L. Muniswamy & Ors,
(1977) 2 SCC 699

3. St. of Karnataka Vs M. Devenderappa & Anr.,
(2002) 3 SCC 89

4. Vineet Kumar & Ors. Vs St. of U.P. & Anr.,
(2017) 13 SCC 369

5. Ahmad Ali Quraishi & Ors. Vs St. of U.P. &
Ors., (2020) AIR SC 788

6. Anil Mahajan Vs Bhor Industries Ltd. & Ors.,
(2005) 10 SCC 228

7. Md. Ibrahim & Ors. Vs St. of Bih. & Ors.,
(2009) 8 SCC 751

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri O.P. Singh, learned Senior
Advocate, assisted by Sri Indrajeet Singh, learned
counsels for applicants, and learned A.G.A.
appearing for the State. The learned counsel for
the opposite party no. 2 has not put in appearance
in the revised call.

2. Applicants, four in number, by means
of the instant petition under Section 482 of
Code of Criminal Procedure, 1973 (for short
"Cr.P.C."), seek the following reliefs: