Gujarat High Court
Devayatbhai Masribhai Chopda vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/21712/2019 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21712 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 481 of 2020
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DEVAYATBHAI MASRIBHAI CHOPDA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ADITYA A CHOKSI(7835) for the Applicant(s) No. 1,2,3,4,5,6
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APPfor the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/07/2025
ORAL ORDER
1. Since the issues involved in both petitions are similar in
nature and arise out of one and same complaint having connected
facts, with the consent of learned advocate for both the sides, they
are heard together and are being disposed of by this common
order.
2 By way of the present petition filed under Section 482 of the
Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”), the
petitioners seek to quash the Criminal Case No.433 of 2019 initiated
before learned Additional Chief Judicial Magistrate at Talaja, District
Bhavnagar and order below Exh. 1 dated 25.6.2019.
3. Learned advocate Mr. Aditya A. Choksi, appearing for the
petitioners, seeks quashment of the process issued in Criminal Case
No. 433 of 2019 instituted under Section 23 of the Pre-conception
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and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 (for short, “the Act of 1994”), alleging commission of
offences under Sections 3 and 26 of the said Act read with Rule 3(3)
(1) of the Rules framed thereunder.
3.1 He has primarily contended that the Panch Rojkam drawn by
the complainant during the inspection of Samarpan General
Hospital and Maternity Home (hereinafter referred to as
“Samarpan”) does not disclose that any pre-natal diagnostic
procedures or techniques were conducted or that any test,
diagnostic or otherwise, was being carried out at the time of
inspection.
3.2. Referring to Panch Rojkam (Page 35) in Criminal
Miscellaneous Application No. 481 of 2020, it is submitted that one
Dr. Bhupat D. Chopda, a certified BHMS practitioner, was merely
examining a female patient. Although a sonography machine was
found switched on in an adjacent room, there is no reference or
indication of any diagnostic procedure or pre-natal test being
conducted. Hence, even on a prima facie assessment, the essential
ingredients of the alleged offences are not attracted.
3.3. It is further submitted that the Samarpan Seva Trust itself has
not been arraigned as an accused. Instead, the trustees of the
Samarpan Seva Trust, who can at best be vicariously liable, have
been impleaded without the Trust–which runs the said hospital–
being made a party. In the absence of arraigning the principal
entity, i.e., the Samarpan Seva Trust, which falls within the
definition of a ‘company’ under the Act, the prosecution against its
trustees in their personal and individual capacity is not legally
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tenable. Therefore, the continuation of criminal proceedings against
the petitioners suffers from manifest legal infirmity and deserves to
be quashed.
3.4. Learned advocate Mr. Aditya A. Chokshi further submitted
that, as per the Panch Rojkam, one Nitaben Gopalbhai Samnka was
under medical examination; however, the Appropriate Authority
failed to record her statement during the course of inquiry. This
omission, it is submitted, vitiates the entire proceeding and renders
the filing of the complaint against the petitioners nothing short of an
abuse of the process of law.
3.5. He further contended that a Coordinate Bench of this Court,
while adjudicating Special Criminal Application No. 9304 of 2022
concerning the release of the sonography machine seized by the
Appropriate Authority in very same inspection, has made a specific
observation to the effect that the petitioner, Dr. Bhupat D. Chopda,
was examining a pregnant woman in the clinical room, whereas the
sonography machine was located in an adjacent room. The Bench
further noted that the petitioner was not performing any
sonographic examination or pre-natal diagnostic test at the relevant
time.
3.6. Such observations, according to learned advocate Mr. Choksi,
carry substantial weight and go to the root of the matter, indicating
that the petitioner was not involved in any activity prohibited under
the provisions of the Act of 1994. Therefore, the continuation of the
impugned criminal proceedings would result in grave miscarriage of
justice.
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3.7. In support of his contentions, learned advocate Mr. Choksi
placed on record a compilation of brief notes of arguments along
with reliance on authoritative pronouncements of the Hon’ble
Supreme Court, including:- Pepsi Foods Ltd. v. Special Judicial
Magistrate, (1998) 5 SCC 749; Mehmood Ul Rehman v. Khazir
Mohammad Tunda, (2015) 12 SCC 420; Sunil Bharti Mittal v. CBI,
(2015) 4 SCC 609; Aneeta Hada v. Godfather Travels & Tours Pvt.
Ltd., (2012) 5 SCC 661; and Bijaya Manjari Satpathy v. State of
Odisha, 2022 SCC OnLine Ori 4092.
3.8. Relying on the ratio laid down in the aforesaid decisions,
learned advocate Mr. Choksi submitted that the present proceedings
deserve to be quashed in exercise of the inherent jurisdiction of this
Court under Section 482 of the CrPC, and accordingly prayed for the
same.
4. Today at the time of hearing, learned advocate Mr. N.J. Shah
is absent. On the previous occasion, when the matter was taken up
for hearing, in view of the absence of learned advocate Mr. N.J.
Shah appearing on behalf of respondent No.2, this Court was
constrained to pass the following order:-
“Report tendered by learned APP is taken on record. When
the matter is taken up for hearing, learned advocate
Mr.N.J.Shah for respondent no.2 is absent, yet as a last chance,
the matter is adjourned to 03.07.2025. To be listed in separate
board. It is clarified that on the next date the matter proceed
further even in absence of learned advocate for respondent
no.2. It will be open for respondent no.2 to make necessary
arrangement for representation, if it so wishes. It is clarified
that no chit for adjournment either in form of leave note or
sick note of learned advocate shall be accepted.”
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4.1. In view of the above, there is no argument of the learned
advocate for the respondent No.2.
5. Learned APP Mr. Chintan Dave submitted to pass the
necessary order in the above facts and circumstances of the case.
6. I have heard learned advocates for both the sides. I may refer
the relevant part of the Panch Rojkam carried by the appropriate
authority as under:-
“Today on 21/06/2019, Friday at about 10.50 o’clock in the
morning, I – Sub District Appropriate Authority and Taluka
Health Officer, Bhavnagar came to this clinic/hospital –
Samarpan General Hospital and Maternity Home, Talaja, for
inspection of the hospital as per order No.
DP/PH/PNDT/343/19, dated 17/6/2019 of the District
Appropriate Authority and Chief District Health Officer. After
coming into the clinic, I entered into the chamber of Dr.
Bhupat D. Chopda (BHMS) on the left side and Dr. Bhupat D.
Chopda (BHMS) was examining a pregnant lady named
Nitaben Gopalbhai Samnaka, village Rathli and the USG
machine – SAMSUNG- Sonoacex7, USS-SAX7E3U/IN, S. NO.
SOY1M3-HK 300023V placed in the sonography room
adjacent to the clinic room was on/in working condition.
Therefore, the above mentioned sonography machine is sealed
in the presence of the following panchas for violation of PC &
PNDT Act, 1994.”
6.1. What emerges from the Panch Rojkam is that accused No.1,
Dr. Bhupat D. Chopda, who holds a BHMS qualification, was
examining a pregnant woman, namely Nitaben Gopalbhai Samnka,
in an adjacent clinical chamber. While the sonography machine was
found to be switched on in the adjoining room, it is not the case of
the prosecution that said sonography machine was being utilized
for conducting any pre-natal diagnostic procedure or test at the
relevant time.
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6.2. It is pertinent to note that Section 2(j) of the Act of 1994,
defines ‘pre-natal diagnostic procedures’ in the following terms:-
“Pre-natal diagnostic techniques includes all pre-natal
diagnostic procedures and pre-natal diagnostic tests;”
6.3. Section 2(I) defines pre-natal diagnostic procedures which is
as under:-
“pre-natal diagnostic procedures” means all gynaecological or
obstetrical or medical procedures such as ultrasonography,
foetoscopy, taking or removing samples of amniotic fluid, chorionic
villi, blood or any other tissue or fluid of a man, or of a woman for
being sent to a Genetic Laboratory or Genetic Clinic for conducting
any type of analysis or pre-natal diagnostic tests for selection of sex
before or after conception;”
6.4. Section 2(k) defines pre-natal diagnostic test which is as
under:-
“pre-natal diagnostic test” means ultrasonography or any test or
analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid
of a pregnant woman or conceptus conducted to detect genetic or
metabolic disorders or chromosomal abnormalities or congenital
anomalies or haemoglobinopathies or sex-linked diseases;”
6.5. In order to bring the accused within the four corners of
Section 3 of the Act of 1994, it is incumbent upon the Appropriate
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Authority or the complainant to prima facie establish that the
diagnostic procedures, tests, or techniques enumerated under the
Act were actually conducted or attempted at the time of inspection
of the hospital premises.
6.6. It is not in dispute that Samarpan hospital is managed by Dr.
Bhupat D. Chopda, who holds a BHMS qualification and is not a
certified gynecologist, thereby lacking authority to independently
perform any of the diagnostic procedures envisaged under the Act
of 1994. Nevertheless, he is duly registered as the proprietor and is
authorized to run Samarpan hospital. Learned advocate Mr. Choksi
has placed on record the hospital’s registration certificate issued
under the relevant provisions of the Act, wherein Dr. Bhupat D.
Chopda is reflected as the registered owner, and Dr. Manishbhai
Valaniya is designated as the authorized person to operate the
sonography machine.
6.7. Crucially, it is not the allegation of the Appropriate Authority
that Dr. Bhupat D. Chopda had unauthorizedly operated the
sonography machine or that he conducted any pre-natal diagnostic
procedure, test, or technique as defined under Section 2(J), 2(I),
2(k) of the Act. On a holistic appraisal of the record, there is a
conspicuous absence of any material or cogent evidence indicating
that Dr. Bhupat D. Chopda, while examining the pregnant woman
Nitaben Gopalbhai Samnka, carried out or attempted to carry out
any diagnostic technique or procedure falling within the scope of
the Act.
6.8. It further emerges from the recorded statement of Dr. Bhupat
D. Chopda–obtained by the Appropriate Authority in exercise of
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powers conferred under the Act of 1994–that he had merely
utilized a Doppler device to monitor the fetal heartbeat, a practice
which per se does not fall within the ambit of “pre-natal diagnostic
procedures” as statutorily defined.
6.9. Accordingly, the initiation and continuation of prosecution
against Dr. Bhupat D. Chopda is not legally sustainable and is liable
to be quashed.
6.10. With regard to the remaining accused–trustees of Shri
Samarpan Charitable Trust–it is an admitted position that the trust
itself has not been arrayed as an accused. The trustees have been
impleaded solely on the basis of their fiduciary roles, purportedly
making them vicariously liable. However, the law is well-settled that
in order to hold trustees vicariously liable for acts attributed to the
trust, the trust entity–analogous to a company–must be arraigned
as an accused. Absent such impleadment, the prosecution of the
trustees in their individual capacity is legally impermissible.
6.11. This principle has been unequivocally laid down by the
Hon’ble Apex Court in Mehmood Ul Rehman (supra), wherein, after
surveying the earlier precedents, the Court held as under:
“20. The extensive reference to the case law would clearly
show that cognizance of an offence on complaint is taken for
the purpose of issuing process to the accused. Since it is a
process of taking judicial notice of certain facts which
constitute an offence, there has to be application of mind as to
whether the allegations in the complaint, when considered
along with the statements recorded or the inquiry conducted
thereon, would constitute violation of law so as to call a
person to appear before the criminal court. It is not a
mechanical process or matter of course. As held by this Court
in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate,Page 8 of 11
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(1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the
process of criminal law against a person is a serious matter.
21. Under Section 190(1)(b) CrPC, the Magistrate has the
advantage of a police report and under Section 190(1)(c) CrPC,
he has the information or knowledge of commission of an
offence. But under Section 190(1)(a) CrPC, he has only a
complaint before him. The Code hence specifies that “a
complaint of facts which constitute such offence”. Therefore, if
the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) CrPC. The complaint is
simply to be rejected.
22. The steps taken by the Magistrate under Section 190(1)(a)
CrPC followed by Section 204 CrPC should reflect that the
Magistrate has applied his mind to the facts and the statements
and he is satisfied that there is ground for proceeding further in
the matter by asking the person against whom the violation of
law is alleged, to appear before the court.The satisfaction on
the ground for proceeding would mean that the facts alleged in
the complaint would constitute an offence, and when
considered along with the statements recorded, would, prima
facie, make the accused answerable before the court. No
doubt, no formal order or a speaking order is required to be
passed at that stage. The Code of Criminal Procedure requires
speaking order to be passed under Section 203 CrPC when the
complaint is dismissed and that too the reasons need to be
stated only briefly. In other words, the Magistrate is not to act
as a post office in taking cognizance of each and every
complaint filed before him and issue process as a matter of
course. There must be sufficient indication in the order passed
by the Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered along
with the statements recorded and the result of inquiry or report
of investigation under Section 202 CrPC, if any, the accused is
answerable before the criminal court, there is ground for
proceeding against the accused under Section 204 CrPC, by
issuing process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If there
is no such indication in a case where the Magistrate proceeds
under Sections 190/204 CrPC, the High Court under Section
482 CrPC is bound to invoke its inherent power in order to
prevent abuse of the power of the criminal court. To be called
to appear before the criminal court as an accused is serious
matter affecting one’s dignity, self-respect and image in society.
Hence, the process of criminal court shall not be made a
weapon of harassment.
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23. Having gone through the order passed by the Magistrate,
we are. satisfied that there is no indication on the application
of mind by the learned Magistrate in taking cognizance and
issuing process to the appellants. The contention that the
application of mind has to be inferred cannot be appreciated.
The further contention that without application of mind, the
process will not be issued cannot also be appreciated.Though
no formal or speaking or reasoned orders are required at the
stage of Sections 190/204 CrPC, there must be sufficient
indication on the application of mind by the Magistrate to the
facts constituting commission of an offence and the statements
recorded under Section 200 CrPC so as to proceed against the
offender. No doubt, the High Court is right in holding that the
veracity of the allegations is a question of evidence. The
question is not about veracity of the allegations, but whether
the respondents are answerable at all before the criminal court.
There is no indication in that regard in the order passed by the
learned Magistrate.”
6.12. It would be apposite to refer the judgment rendered by the
Hon’ble Apex Court in the case of State of Haryana v. Bhajan Lal,
reported in 1992 Supp (1) SCC 335, wherein, in Paragraph 102, it is
held as under:
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Ch. XIV
and of the principles of law enunciated by this court
in a series of decisions relating to the exercise of the
extraordinary power under Art. 226 or the inherent
powers under sec. 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case againstPage 10 of 11
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the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under sec. 156(1) of
the Code except under an order of a Magistrate within
the purview of sec. 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a
noncognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under sec. 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”
7. In view of the above, both aforesaid petitions deserves to be
allowed, and they are accordingly ALLOWED. The Criminal Case
No.433 of 2019 along with all subsequent proceedings arising from
it, is hereby quashed and set aside. Rule is made Absolute. Direct
service is permitted.
(J. C. DOSHI,J)
MANISH MISHRA
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