T.P.S.MANN, J. - (1.) THE present petition has been filed by the petitioner seeking quashing of criminal complaint dated 11.3.2003 (Annexure P-1) and order dated 17.5.2003 (Annexure P-7) passed by Additional Sessions Judge, Moga, whereby the order of discharge passed by Judicial Magistrate Ist Class, Moga dated 9.7.2003 was set aside.
(2.) IT is submitted that the petitioner is MD, MBBS and running hospital at Moga under the name and style of Goel Hospital and Scan Centre. For that place, he got himself registered under Pre-Natal Diagnostic Techniques Act (hereinafter referred to as 'PNDT Act') by depositing a sum of Rs. 30,000/- and then installed an ultra sound machine and other equipments. In June 2002, petitioner took on rent one shop at Baghapurana to carry on part time medical practice there as well. However, he did not get sufficient business at Baghapurana and finally closed that shop in November 2002 by locking the same. In his absence, it is claimed that Dr. R.P. Mittal, the then Acting Civil Surgeon, Moga conducted a raid on 22.2.2003 on the aforesaid clinic of the petitioner at Baghapurana. On finding the said clinic/shop to be locked, he sealed the same. Later on, Dr. R.P. Mittal, while in the presence of the petitioner and others opened the shop and found, one display board, whereon it was mentioned "Pre Natal sex determination tests are not done here", lying there. However, no ultra sound machine or Imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection was found. Finally, a complaint under Section 18(1) punishable under Section 23(1) and Section 25 of the PNDT Act was filed against the petitioner by the State of Punjab through Dr. R.P. Mittal, District Appropriate Authority-cum-Civil Surgeon, Moga on 11.3.2003. The complaint having been filed by a public servant in discharge of his official duty, the recording of preliminary evidence was dispensed with and an order was passed by the Judicial Magistrate Ist Class, Moga on 11.3.2003, whereby the petitioner was summoned under Sections 23(1) and 25 of the PNDT Act. The petitioner challenged the summoning order by filing an application under Section 245 Cr.P.C. The application of the petitioner was accepted and vide order dated 9.7.2003, the Magistrate discharged the petitioner. While passing the order, the Magistrate relied upon the fact that no ultra sound machine was recovered from the accused. Further that in the absence of any ultra sound machine, it would be mis-conceived to hold that the accused was running the Ultra Sound Centre without the permission of the appropriate authority. The relevant concluding portion of the aforementioned order is quoted hereinbelow :- "From the bare perusal of the Section 18 of the amended PNDT Act, it is clear that the necessary ingredient of the section is that there must be Ultra Sound Machine or Imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection. But as per the own case of the complainant it has been stated in annexure F at the time of the opening of the seal of the hospital on 6.3.2003 ultra sound machine was not recovered from the sealed premises. It is also not the case of the complainant that there was some other technology vide which they can undertake the determination of the sex of foetus. The learned AAP for the State contended that it is pre-mature to release the accused as no evidence has been recorded in the case. This argument of the learned AAP for the State has not impressed me in view of the fact that as per the own case of the complainant no ultra sound machine was recovered from the accused. Once the necessary ingredients in order to constitute the offence is missing no useful purpose would be served by examining the witnesses. Moreover, the complainant has not denied the annexure F. Therefore, in the absence of any ultra sound machine it would be mis-conceived to hold that the accused was running the Ultra Sound Centre without the permission of the appropriate authority. Therefore, in view of the discussion made above, the application moved by accused is accepted and the accused is ordered to be discharged and complaint of complainant is ordered to be dismissed. File be consigned." The order passed by the Magistrate discharging the petitioner was challenged by way of revision. In fact two separate revisions were filed, one by Punjab State through Dr. R.P. Mittal while the other by the Punjab State itself, which were submitted through Public Prosecutor. Both the revisions was heard by Additional Sessions Judge, Moga. Criminal Revision No. 37, filed by the Punjab State through Public Prosecutor was allowed. Order of the trial Court dated 9.7.2003 was set aside. The trial Court was directed to proceed with the trial of the accused. The other revision i.e. Criminal Revision No. 27 filed by the Punjab State through Dr. R.P. Mittal, was also disposed of, accordingly. The aforementioned order passed by Additional Sessions Judge, Moga on 17.5.2005 is tagged as Annexure P-7. The petitioner is seeking quashing of the complaint Annexure P-1 and also of the order Annexure P-7.
(3.) IT is clear from the averments made in the complaint P-1 that when the shop, belonging to the petitioner, situated at Baghapurana was opened on 6.3.2003, one board displaying "Pre-natal tests are not done here" was found there. Besides, there was one room in front of which "Ultra Sound Scan" was written in Punjabi. There was also a stand for Ultra Sound Machine. A number of photographs, taken at the time of the opening of the shop and the search of the same were also placed on the record. Finding that the petitioner was operating Ultra Sound Centre without obtaining any permission from the competent authority, the petitioner was sought to be summoned to face the trial.;