Prenatal Sex Determination | Magistrate Can't Take Cognizance Of Complaint Unless Filed By 'Appropriate Authority' Notified By Govt: Karnataka HC

A single judge bench of Justice M Nagaprasanna recently quashed the criminal proceedings initiated against Dhondiba Anna Jadhav and others who run Sri Dhondida Anna Jadhav Memorial Hospital at Gokak, based on a complaint filed by the Taluka Health Officer.

The magistrate court had taken cognizance under section 28, on the allegation that the hospital has not maintained records as required under the Act and have also installed equipments for the purpose of detecting sex of fetus.

The petitioners contended that the respondent (Taluka Health Officer) is not the authority empowered under the Act either to inspect or register a complaint against the petitioners. Therefore, any act of the respondent in registration of the complaint is one without jurisdiction and a nullity in law.

On the other hand, the government pleader contended that by way of a notification issued by the Government on 15.10.2011, the respondent is empowered to inspect and register the complaint.

Court findings:

Referring to section 17(2) of the Act and the notification issued by the state government appointing the appropriate authority under the Act, the court noted that the "Assistant Commissioners" of certain districts are the Appropriate Authority appointed under the Act.

Then it referred to section 28 of the Act and observed,

"Section 28 mandates that no Court shall take cognizance of an offence under the Act except on a complaint made by the Appropriate Authority concerned or any officer authorized in this behalf by the Central Government or the State Government as the case would be. Therefore, registration of a complaint is required to be done only from the hands of an Appropriate Authority. Thus, the complaint registered by the respondent –Taluka Health Officer is without doubt without jurisdiction."

Junking the contention of the government pleader that the Taluka Health Officer is delegated with the responsibility by the Assistant Commissioner, the court said,

"Appointing an Authority under the Act would be the Appropriate Authority or any officer authorized either by the Central Government or by the State Government. This is to be done in terms of the notification and the notification is issued appointing the Assistant Commissioner."

It added, "Therefore, the order of the learned Magistrate taking cognizance of a complaint registered under Section 28 of the Act is erroneous, as cognizance under Section 28 of the Act cannot be taken except on a complaint being registered by an Appropriate Authority."

Noting that the Taluka Health Officer is not the Appropriate Authority or the authorized officer under the Act, the bench held, "Therefore, the very complaint registered by the respondent is without authority of law. The action of the learned Magistrate in taking cognizance under Section 28 of the Act is sequentially rendered unsustainable."

Case Title: Dhondiba Anna Jadhav v. The State Of Karnataka

Case No: Criminal Petition No.101392/2019

Citation: 2022 LiveLaw (Kar) 55

Date of Order: 21st Day Of February 2022

Appearance: Advocate Shivaprasad Shantanagoudar for petitioner; Advocate Ramesh Chigari for respondent