# Rishi Kumar Sharma v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** Application U/S 482 No. 34825 of 2012
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishi-kumar-sharma-v-state-of-u-p-anr-45534
- **Pages:** 4

## Headnote

Act, 1994- Object and Scope- Parliament of
Republic of India has legislated this Act with a
view of above prohibition of misuse of those
techniques, which were being misused for
determination of sex of the foetus, leading to
female foeticide and other related medical
problems.

The object of the Act is to prohibit prenatal sex
determination and prevent the misuse of
prenatal diagnostic technique for sex selective
abortions.

B. Pre-conceptional Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994-Sections 6, 23 and 25 -
Unauthorized sex determination-This Section
does not provide for presence of the owner of
the Clinic, alongwith the person, and do
determination is liable for punishment, under
this Act, rather, if he caused or allows to do
this determination, then, also he is liable for
punishment under sub-sections (1), (2), (3) of
Section 23 and Section 25 of the Act - If there
is implied authority or situation for misuse of
Sonogrophy Machine, to be used by any of the
employees of the Clinic of which applicant is
the owner, against terms of license of
registration of such Clinic, it will amount
offence, punishable, under Sections 6, 23 and
25 of the Act.

The presence of the applicant is not required at
the place and time of sex determination by
misuse of Sonography technique. Any misuse
of Sonogrophy Machine by any employees of
the Clinic of which applicant is the owner,
against terms of license of registration of such
Clinic, will amount to an offence punishable
under Sections 6, 23 and 25 of the Act.
( Para 7,8,9,10)

Criminal Application rejected.

## Text

2 All. Rishi Kumar Sharma Vs. State of U.P. & Anr.
1525
Magistrate, concerned. A legal aspect is
there and the legal position is very well
clear that if informant himself had
complained that his statement was not
recorded as per his own contention, in
statement under Section 161 of Cr.P.C.,
his witnesses were, too, not examined and
recorded under Section 161 of Cr.P.C., the
evidence in case diary was not in support
of submission of charge-sheet and final
report was submitted. Hence, on the basis
of final report and investigation annexed
therewith, there was no ground for taking
any
cognizance
or
summoning
of
applicants
for
those
offences
nor
Magistrate has written so, i.e., impugned
summoning has been passed, on the basis
of material annexed with protest petition
and it is settled law that at the time of
summoning and taking cognizance, under
Section 190 of Cr.P.C., material placed on
case diary, is to be taken in consideration
and once the same is insufficient and
further evidence is being taken, then,
procedure under Chapter XV of Cr.P.C.
was required and Magistrate was to make
inquiry under Section 200 and 202 of
Cr.P.C. Then after, those documents,
which were filed with protest petition, may
be taken into consideration. Accordingly,
as per law, the Magistrate can ignore the
conclusion arrived at by Investigating
Officer and independently apply his
judicial mind to the facts emerging from
the investigation and take cognizance of
the case, if he thinks fit and exercise his
power under Section 190 (1)(b). The
Magistrate is not bound in such situation
to follow the procedure laid down in
Section 200 and 202 of Cr.P.C. for taking
cognizance of the case under Section 190
(1)(a), though, it is open to him to act
under Section 200 and 202 of Cr.P.C. also,
as Apex Court held in Minu Kumari And
Anr vs The State Of Bihar, (2006) 4
SCC
359.
Meaning
thereby,
the
material to be taken into consideration,
at the time of taking cognizance under
Section 190 (1)(a) or (b) of Cr.P.C.,
must be the material emerging from the
investigation i.e. within the case diary
and not out of the case diary, filed by
way of protest petition and affidavit.
Hence, this application deserves merit.

6. Accordingly, it is being
allowed.

7. Impugned cognizance taking
order as well as summoning order with
entire proceeding of Complaint Case
No. 5/11/2005 (State Vs. Ram Babu
and others), under Sections 419, 420,
467, 468, 471 I.P.C., P.S. Chibramau,
District Kannauj, is being set aside.

8. File is remanded back to
Magistrate
concerned,
for
having
recourse under Chapter XV of Cr.P.C.
and proceed in accordance with law.

9. With above directions, the
application is finally disposed of.
----------
(2020)02ILR A1525

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 34825 of 2012

Rishi Kumar Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Krishan
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

A. Pre-conceptional Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994- Object and Scope- Parliament of
Republic of India has legislated this Act with a
view of above prohibition of misuse of those
techniques, which were being misused for
determination of sex of the foetus, leading to
female foeticide and other related medical
problems.

The object of the Act is to prohibit prenatal sex
determination and prevent the misuse of
prenatal diagnostic technique for sex selective
abortions.

B. Pre-conceptional Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994-Sections 6, 23 and 25 -
Unauthorized sex determination-This Section
does not provide for presence of the owner of
the Clinic, alongwith the person, and do
determination is liable for punishment, under
this Act, rather, if he caused or allows to do
this determination, then, also he is liable for
punishment under sub-sections (1), (2), (3) of
Section 23 and Section 25 of the Act - If there
is implied authority or situation for misuse of
Sonogrophy Machine, to be used by any of the
employees of the Clinic of which applicant is
the owner, against terms of license of
registration of such Clinic, it will amount
offence, punishable, under Sections 6, 23 and
25 of the Act.

The presence of the applicant is not required at
the place and time of sex determination by
misuse of Sonography technique. Any misuse
of Sonogrophy Machine by any employees of
the Clinic of which applicant is the owner,
against terms of license of registration of such
Clinic, will amount to an offence punishable
under Sections 6, 23 and 25 of the Act.
( Para 7,8,9,10)

Criminal Application rejected.

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

1. This Application, under Section
482 of Code of Criminal Procedure, 1973
(Hereinafter, in short, referred to as
'Cr.P.C.'), has been filed by the applicant,
Rishi Kumar Sharma, with a prayer for
setting aside cognizance taking order,
alongwith entire proceeding, of Criminal
Complaint Case No.8801/9 of 2012, State
vs. Rishi Kumar Sharma and others, under
Sections- 6, 23, 25 and 28 of the Preconceptional
Pre-natal
Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994 (Hereinafter, in short, referred to
as PCPNDT Act), Police Station-Mawana,
District Meerut.

2. Learned counsel for the applicant
argued that the applicant is the owner of
Mawana Diagnostic Centre, Mawana,
District Meerut. As per the inspection
report, he was not present on the spot at
the time of alleged sex determination made
by Jitendra, under assistance of Anuj. Both
of
those
employees
were
neither
authorised nor entitled for making any
Ultrasonogrohy or sex determination.
They
were
said
to
have
received
Rs.3,000/-, as fee, for making above
diagnostic test, which was not under
authority of the applicant and applicant
was of no concern with above occurrence.
In first information report as well as in
complaint,
it
has
been
specifically
mentioned that Dr. Mahesh Kumar Sharma
and the applicant, Rishi Kumar Sharma,
were not present on the spot. Mere
allegation of gross negligence for keeping
open
the
Ultrasonography
Portable
Machine is against the applicant for which
no criminal liability can be fastened. There
may be gross negligence, but, that too,
may not be with any criminal intention or
offence. Hence, this complaint, alongwith
cognizance taking order, passed over it, is
2 All. Rishi Kumar Sharma Vs. State of U.P. & Anr.
1527
under abuse of process of law. Thus, this
Application, with above prayer.

3. Learned AGA, representing State of
U.P., has vehemently opposed this Application,
moved, under Section 482 of Cr.P.C., with this
contention that admittedly applicant is the
owner of above Diagnostic Centre, from
where, information of sex determination test,
being conducted, has been received and a raid
by an authorised team was made, wherein,
Jitendra and Anuj were apprehended, while
making sex determination test of a foetus for
which money was paid and the same was also
recovered instantly. This Clinic was of the
applicant
and
applicant,
alongwith
his
employees, were beneficiary of this illegal act.
Hence, this complaint was filed, under correct
perspective of law and this Court, in exercise
of inherent jurisdiction, under Section 482 of
Cr.P.C., is not to embark upon factual matrix.
Prima facie there was sufficient evidence for
passing of impugned summoning order.
Hence, this Application be rejected.

4. From very perusal of the object of this
Act, Pre-conceptional Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act,
1994, it is apparent that it was an Act, passed
by the Legislature, to provide for prohibition of
sex selection, before or after conception, and
for
regulation
of
pre-natal
diagnostic
techniques for the purposes of detecting
genetic abnormalities or metabolic disorder or
chromosomal
abnormalities
or
certain
congenital
malformation
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.

5. Meaning thereby, Parliament of
Republic of India has legislated this Act with a
view of above prohibition of misuse of those
techniques, which were being misused for
determination of sex of the foetus, leading to
female foeticide and other related medical
problems. This Act is with Rules and there is
also a Rule for grant of license for registration
of a Clinic under this Act.

6. Admittedly, applicant is the owner
of Mawana Diagnostic Centre, Mawana,
District Meerut, and is registered, under
this Act, with Chief Medical Officer,
Meerut. Hence, he was bound to obey by
the terms of license, which were there at
the time of registration of above Clinic and
getting license for use of Ultrasound
Machine for medical tests, in accordance
with provisions of law, on the advice of
the Doctors.

7. Further, admittedly, it was
Jitendra
and
Anuj,
who
were
employees of the Clinic, were present
on the spot, at the time of occurrence,
and they did sex determination and
upon raid by an authorised Team,
thereat, receipt of Rs.3,000/- was
recovered and the money was also
recovered. They were not authorised to
use that Ultrasound Machine, which
was a portable machine, used by those
employees, without any authority or
specification for use of it, as authorised
under the Rules, but, the applicant,
being the owner and licensee of above
Clinic, was having utmost duty to take
care of that Machine, installed in his
Clinic, and to esnure that the Machine
may not be misused by any other
employee or persons causing sex
determination. But, those employees
did
so.
Hence,
this
occurrence,
immediately, was reported in the first
information report. Subsequently, for
breach
of
terms
of
license
and
negligence, allowing those employees
for using above Sonogrophy Machine,
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
this
complaint
against
present
applicant was filed.

8. Section 6 of the Act No.57 of 1994
(As
above),
for
prohibition
of
determination of sex, provides that on and
from commencement of this Act, i.e., from
the
date
of
its
enforcement,
20th
September, 1994, if anyone conducts or
cause to be conducted any pre-natal
diagnostic
technique,
including
ultrasonography, for the purposes of
determining the sex of a foetus, then, he is
to be punished, under this Section, read
with Section 23 of the Act, and for
contraventions of the provisions of the Act
or rules for which no specific punishment
is provided, the punishment shall be
awarded under Section 25 of the Act.

9. In present case, owing to
negligence of the applicant, Jitendra and
Anuj caused to make sex determination of
the foetus. This Section does not provide
for presence of the owner of the Clinic,
alongwith
the
person,
and
do
determination is liable for punishment,
under this Act, rather, if he caused or
allows to do this determination, then, also
he is liable for punishment under subsections (1), (2), (3) of Section 23 and
Section 25 of the Act.

10. Hence, very argument of learned
counsel for applicant that at the time of
occurrence, applicant was not present on
the spot, is not tenable. There is no need of
presence of applicant on the spot of
occurrence, where, sex determination of
foetus is made, at the time of occurrence.
If there is implied authority or situation for
misuse of Sonogrophy Machine, to be
used by any of the employees of the Clinic
of which applicant is the owner, against
terms of license of registration of such
Clinic, it will amount offence, punishable,
under Sections 6, 23 and 25 of the Act.

11. Hence, in view of what has been
discussed above, the complaint was, in
accordance with the provisions of law and
cognizance taking order was also in
accordance with the provisions of law.

12. Accordingly, this Application,
being devoid of merits, deserves dismissal
and it stands dismissed accordingly.
----------
(2020)02ILR A1528

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE
THE HON'BLE MRS. MANJU RANI CHAUHAN, J.

Application U/S 482 No. 39535 of 2019

Mohammad Azam Khan & Ors.
 ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri G.S. Chaturvedi, Sri Saiful Islam
Siddiqui, Tahira Kazmi, Sri S. Safdar Ali
Kazmi

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

A.
Registration
of
Birth
and
Death
Act,1969 -Section 13 - Only the official
issuing authority may legally make changes to
a birth certificate once it's issued - Further, any
alterations, more likely than not, render the
certificate invalid.

Only the Authority who has issued the Birth
Certificate can do any alterations in the same ,
once issued, and the said requirement cannot
be bypassed by obtaining different birth
certificates from different local Authorities.