Criminal Writ Petition No.4164 of 2013

19th June, 2014.

Petitioner Counsel: Mr. UDAY P. WARUNJIKAR
Respondent Counsel: Mr. M.P.S. RAO, Sr. Counsel a/w Ms. SEENA RANADE, Mr. SUBODH DESAI, Mr. PRANAV BADHEKA a/w Mr. ZEESHAN SYED, i/b Mr. DHIRAJKUMAR TOTALA i/b AZB AND PARTNERS, Ms. U.V. KEJARIWAL

Cases Cited:
State of U.P. Vs. Jogendra Singh, AIR 1963 SC 1618 [Para 9]
Ramji Missar and Another Vs. State of Bihar, AIR 1963 SC 1088 [Para 9]
A.C.Aggarwal, Sub-Divisional Magistrate, Delhi and Another Vs. Mst. Ram Kali, etc., AIR 1968 SC 1 [Para 9]
L.Hirday Narain Vs. Income-Tax Officer, Bareilly, AIR 1971 SC 33 [Para 9]
People’s Union for Civil Liberties (PUCL) Vs. Union of India and Anr., (1997) 1 SCC 301 [Para 12]
Sharda Vs. Dharmpal, 2003(3) ALL MR 331 (S.C.)=(2003) 4 SCC 493 [Para 12]
District Registrar and Collector, Hyderabad and Anr. Vs. Canara Bank and Ors., (2005) 1 SCC 496 [Para 12]
Kolhapur Municipal Corporation Vs. Dr.Tukaram Govind Mane and Others, Cri. Appl. No.106/2012 [Para 13]
Frederic Guilder Julius Vs. Right Rev. the Lord Bishop of Oxford; the Rev. Thomas Thellusson Carter , [Para 15]

JUDGMENT

JUDGMENT :- Rule. Rule is made returnable forthwith with the consent of the parties and is taken up for final disposal at the stage of admission. Counsel for the respondents waive service of notice.

2. By this petition, the Petitioner who is an Advocate, has impugned the order dated 23rd October, 2013 passed by the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, whereby the Petitioner's application, preferred under Section 28(3) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the 'PC-PNDT Act' for the sake of brevity) came to be rejected.

3. A few facts as are necessary to decide the present petition are as under:-

According to the Petitioner, a local newspaper viz 'Mid-day' dated 14th June, 2013, had published a Promotional Feature Supplement by name 'HITLIST 70 MM', in which, on page 8 of the said supplement, an article was published under the title 'Third Bundle of joy" alongwith a photograph of Respondent Nos.6 and 7. According to the Petitioner, it was was stated in the said article, that B-Town's best kept secret was out and that a B-Town insider had revealed that the third child of Respondent Nos.6 and 7 through surrogacy was a boy and that it was Respondent No.7's decision to go in for surrogacy. It is stated by the Petitioner that in addition to that, the said newspaper, having an e-paper Edition, had also published the same news. The said news was downloaded by the Petitioner on her Laptop from a link with reference to the said news item. The Petitioner states that in view of the contents of the article, Respondent Nos.6 and 7 had committed gross violation of the PC-PNDT Act, as they had sought to select / detect the sex of the child by using Pre-natal Diagnostic Techniques. It is alleged that Respondent Nos.6 and 7 by declaring the sex of the child in the surrogate mother's womb, had violated the provisions of the PC-PNDT Act and had therefore committed an offence under the said Act. According to the Petitioner, it was evident from the article, that the sex of the foetus was revealed as a baby boy, prior to the birth of the child, thereby violating the provisions of the PC-PNDT Act, which prohibits sex selection, either during pre-conception or during the pre-natal stage.

On the basis of the news report, the Petitioner filed a complaint with the appropriate authority, bringing to their notice, the breach or violation of the provisions of the PC-PNDT Act. The Petitioner has alleged that the Respondent Nos.1 to 3 failed in its duty to take cognizance of the complaint under Section 27 and 28(1)(a) and had failed to exercise its powers under Section 17 (4-a,b,c,d,e) and Section 17A of the PC-PNDT Act. As the Respondent Nos.1 to 3 had allegedly failed to take cognizance of the said information, the Petitioner submitted an on-line complaint on 16th June, 2013 with the Appropriate Authority i.e. Respondent Nos.1 and 2 and also forwarded a copy of the said letter to various Authorities. On 4th July, 2013, the Petitioner received a reply from the office of the Additional Director, Health Services, Family Welfare, Pune. A copy of the said reply is at Exhibit - D on page 45 of the petition. According to the Petitioner, as no action was taken as against the Respondent Nos.6 and 7 by the appropriate authority for violation of the provisions of the PC-PNDT Act and as Respondent Nos.1 to 4 had not investigated the complaint, with regard to the violation of the provisions of the said Act, the petitioner was constrained to file a complaint under Section 28(1) (b) of the PC-PNDT Act in the Court of the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The said complaint was registered as C.C.No.70/MISC/13. It is alleged by the complainant that Respondent Nos.1 to 7 have committed several offences under the PC-PNDT Act and in particular, there was violation of the provisions of Section 3A,5,6,17(4-a,b,c,d,e), 18, 19, 20(3), 23(1) (2),22,25,29 of the PC-PNDT Act and violation of Rules 4(1,2,3),5,6,9, (1,2,3,4,5,6,7,8),10(1-A), 11 and 12 of the PC-PNDT Rules. In the said complaint, the Petitioner had interalia prayed, that the Court be pleased to take cognizance of the complaint under Section 28(1)(b) of the PC-PNDT Act ; to direct the Appropriate Authority namely Respondent Nos.1 to 7 to produce the available record and make available copies of the relevant record in their possession to the complainant and to try and convict the Respondents for the offences as stated aforesaid.

On 8th August, 2013, the learned Magistrate was pleased to pass the following order on the complaint filed by the Petitioner:-

"Presented by the complainant. Registered as a Misc. case. Put up for verification".

The Petitioner had also preferred an application, wherein the Petitioner had interalia sought the following documents, as set out in para 11 of the said Application :-

"1. The registration certificates of genetic counciling centers, clinics, laboratories where the concerned accused undergone the treatment or sought to undergo treatment of a surrogate mother ;

2. D,E,F,G forms of all the genetic procedures conducted in concerned case at all the centers of all stages from pre-conception to pre-natal delivery ;

3. Reports available at Appropriate Authority's office reported to them by every month of last two years of all the centers concerned ;

4. "H' form of all concerned centers in the case ;

5. Inspection reports of Appropriate Authorities of concerned centers in the case ;

6. Details of investigation procedure conducted from date of complaint till today ;

7. Case papers, admission papers as well as genetic procedures treatment papers, contact papers if any related to the concerned surrogacy, pre-conception, pre-natal and Delivery procedures."

It was contended that the aforesaid documents were essential and important for the just decision of the case.

The Trial Court adjourned the complaint, being C.C.No.70/MISC/13 for recording of the verification of the Petitioner and as far as the Application preferred under Section 28(3) of the PC-PNDT Act was concerned, the Trial Court issued notices to the Respondents. The Petitioner preferred a Writ Petition in this Court, being Criminal Writ Petition No.2987 of 2013, against the order dated 8th August, 2013, issuing notices to the Respondents, in the Application. This Court vide order dated 30th September, 2013 observed in paras 4, 5 and 7 as under :-

"4. The Counsel representing the B.M.C. shall file a detailed report to the concerned Magistrate (along with the documents with permission that under the PC-PNDT Act, the Appropriate Authority to hold the identity of the surrogate mother or any other privilege contemplated under the Act as well as to honour the dignity of the surrogate mother and the child) in order to enable the Magistrate to decide the application and pass appropriate orders on 7.10.2013. The concerned Magistrate shall take into consideration the contentions raised by the respondents vide their affidavits/reports so filed.

5. The concerned Magistrate shall pass appropriate orders on merits on 7.10.2013.

6. ......

7. It is made clear that this Court has not observed anything on the merits of the application filed by the applicant under Section 28 sub-clause (3) of the PC-PNDT Act."

On 24th October, 2013, the Counsel for the Petitioner withdrew the said Writ Petition, being Criminal Writ Petition No.2987 of 2013 in view of the statement made by the Counsel for the Petitioner, that the Petition had become infructuous, as the Petitioner's application filed under Section 28(3) of the PC-PNDT Act was rejected and as the matter was posted on 13.11.2013 for recording the verification statement of the Petitioner i.e. complainant. Accordingly, the Petition was disposed of as withdrawn.

The learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai vide order dated 23rd October, 2013 rejected the application preferred by the Petitioner under Section 28(3) of the PC-PNDT Act. Being aggrieved by the aforesaid order dated 23rd October, 2013 passed by the Trial Court, the Petitioner herein, has assailed the said order by way of the present Petition, both under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure.

4. Heard Mr.Uday P. Warunjikar, learned counsel for the Petitioner, Mr.M.P.S. Rao, Senior Counsel, for Respondent Nos.1 and 2 - B.M.C, Mr.Pranav Badheka, for Respondent Nos.6 and 7. Perused the petition alongwith its annexures, the relevant provisions of the PC-PNDT Act and the Rules framed thereunder and the Judgments relied upon by the parties.

5. Before adverting to the submissions canvassed by the learned counsel for the Petitioner, it would be necessary to reproduce the relevant provision of the PC-PNDT Act, having a bearing in the said case;

"28. Cognizance of offences. - (1) No Court shall take cognizance of an offence under this Act except on a complaint made by -

(a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority ; or

(b) a person who has given notice of not less than [fifteen days' in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court.

Explanation. - For the purpose of this clause "person" includes a social organization.

2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

3) Where a complaint has been made under clause (b) of sub-section (1), the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person."

6. Mr. Warunjikar, learned counsel for the Petitioner contended that apart from Section 28, Sections 20, 29 and Section 17 (4-c,e and g) would also have to be considered while deciding whether the word 'may' as it appears in Section 28(3) of the PC-PNDT Act should be read as 'shall'. He contended that in addition to the aforesaid provisions and the PC-PNDT Rules, in particular, Rule 9 and 11 would have to be read in conjunction with Section 29 and that the other Rules which are material are Rules 12 and 13. He submitted that the object of the PC-PNDT Act, would also have to be considered while interpreting the provisions of Section 28(3) of the said Act, as to whether the term 'may' ought to be read as 'shall'. He submitted that the object of the Act as set out is for i) prohibition of the misuse of pre-natal diagnostic techniques for determination of sex of foetus, leading to female foeticide ; ii) prohibition of advertisement of pre-natal diagnostic techniques for detection or determination of sex ; and iii) permission and regulation of the use of pre-natal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders.

7. He submits that under Section 28(1), no Court shall take cognizance of an offence under this Act except on a complaint made by either - (a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority ; or (b) by a person who has given notice of not less than [fifteen days' in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court. He submitted that the Petitioner has complied with Section 28(1)(b) inasmuch as, the Petitioner had given notice to the Appropriate Authority of the alleged offence or his intention to make a complaint to the Court. He submits that as the Appropriate Authority had failed to file a complaint, the Petitioner was constrained to lodge a complaint as against the Respondents. He submitted that under sub-section (3) of Section 28 of the PC-PNDT Act, where the complaint has been made by a person under Clause (b) of sub-section (1) of Section 28, the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person. He submitted that keeping in mind the object and the legislative intent in enacting the said Act and the fact that Section 28(1) authorizes even a private person to lodge a complaint, where the Appropriate Authority fails in its duty to lodge a complaint, the word 'may' as it appears in Section 28(3) of the PC-PNDT Act will have to be read as 'shall' and the trial Court accordingly ought to have directed the Appropriate Authority to make available the copies of the relevant records in its possession to the Petitioner.

8. Mr.Warunjikar, learned counsel for the Petitioner has made an alternative submission, that in the event the word 'may' is read as 'may' thereby giving discretion to the Magistrate to consider the request/ demand made by the person seeking such documents in the possession of the Respondent/Authority, the said discretion ought to be exercised judiciously. He submitted that in the present case, the Magistrate has not exercised his discretion judiciously, keeping in mind the object of the PC-PNDT Act. He also submitted that a detailed report was not filed by the Respondents despite a direction to do so and as such prayed for quashing and setting aside of the said impugned order.

9. To buttress his submission, Mr.Warunjikar, learned counsel for the Petitioner relied on the Judgments of the Apex Court in the case of State of U.P. v/s. Jogendra Singh, AIR 1963, Supreme Court 1618 ; Ramji Missar and Another v/s State of Bihar, AIR 1963 Supreme Court 1088 ; A.C.Aggarwal, Sub-Divisional Magistrate, Delhi and Another v/s Mst. Ram Kali, etc., AIR 1968 Supreme Court 1 and L.Hirday Narain v/s Income-Tax Officer, Bareilly, AIR 1971 Supreme Court 33.

10. Per contra, Mr.M.P.S. Rao, Senior Counsel, for Respondent Nos.1 and 2 contended that this is not a case of sex selection or Pre-natal Diagnosis. He submitted that the child was born to Respondent Nos.6 and 7 through surrogacy on 27th May, 2013 and the report relied upon by the Petitioner appeared in Mid-day on 14th June, 2013. He submitted that the object of the Act is very clear, inasmuch as, it prohibits and prevents any kind of sex selection. He submitted that a perusal of the complaint shows that admittedly the said article had come in the newspaper on 14th June, 2013 and that a representation / E-mail was made/sent by the Petitioner on 16th June, 2013 to the Appropriate Authority. He submitted that the said representation / E-mail was forwarded by the B.M.C. to the the Executive Health Officer, Brihan Mumbai Mahanagar Palika, Public Health Department on 19th June, 2013. He submitted that the birth certificate which was issued by the Public Health Department, Municipal Corporation of Greater Mumbai shows that the child was born on 27th May, 2013, much before the Mid-day news article, which appeared on 14th June, 2013. According to Mr.Rao, apart from the newspaper report dated 14th June, 2013, there was no material or basis for the allegations made by the Petitioner. He submitted that in response to the E-mail received from the Petitioner on 17th June, 2013, the Executive Health Officer, Brihan Mumbai Mahanagar Palika, Public Health Department vide his letter dated 19th June, 2013, had taken prompt steps to find out if there was violation of the provisions of the PC-PNDT Act. Mr.Rao submitted that for investigating the matter, one team was sent to Jaslok Hospital and the second team was sent to the house of Respondent Nos.6 and 7. He further submitted that on investigation it was found that Dr.Farija Parikh (Respondent No.5) had categorically informed by a letter that no treatment of surrogacy or any diagnostic test for sex determination was carried out in the I.V.F. Department in the Jaslok Hospital and Research Centre. He submitted that a copy of the E-mail was also received from Respondent No.6's Personal Secretary addressed to the Medical Officer of Health (H/West Ward) and the Appropriate Authority, PC-PNDT Act, Brihanmumbai Mahanagarpalika, Mumbai, stating that Respondent Nos.6 and 7 had made no statement, in any manner, about surrogacy or sex determination in any form to the media and that Respondent Nos.6 and 7 were not aware of the article that appeared on the Internet and in the Newspaper. He further submitted that the Executive Health Officer, Brihan Mumbai Mahanagar Palika, Public Health Department vide letter dated 27th August, 2013, had informed the Petitioner and the Director of Population First, that after investigation it was found that there was no prima facie evidence to confirm that pre-natal sex determination was undertaken. In view of the action taken, the Appropriate Authority sought closure of the said complaint of the Petitioner. A copy of the said letter was also sent to the Additional Director of Health Services Family Welfare, MCHG and SH, Pune. Mr.M.P.S. Rao, further submitted that the Executive Health Officer of Brihan Mumbai Mahanagar Palika, vide his letter dated 20th June, 2013, addressed a letter to the Editor, Mid-Day (English), Mid-Day Infomedia Limited, that the State Government had asked MCGM to investigate, as his office required to know whether the information published was true or otherwise and the source of information. The Editor was also called upon to furnish all information regarding the article published in the 'Mid-day' regarding the sex determination of the unborn and surrogate child of Respondent Nos.6 and 7. He submitted that after conducting a detailed investigation, a report was prepared by the B.M.C., which showed that no prima facie case was made out by the Petitioner and that the information was based on a newspaper report. He therefore submitted that the Petition being devoid of merit, ought to be dismissed as it was based on fallacious and baseless allegations.

11. On the interpretation of sub-section 3 of Section 28 of the PC-PNDT Act, Mr. Rao submitted that the word 'may' as it appears in Section 28(3) of the said Act vests in the Magistrate a discretion and cannot be read as 'shall'. He submitted that the discretion so vested has to be exercised judiciously and the Magistrate has to, after considering the merits of the complaint, decide whether the records/documents as sought for ought to be given to the complainant. He submitted that there are several stakeholders involved in surrogacy matters and that it is essential to maintain the privacy of the parties in cases of surrogacy. He submitted that the Petitioner had not laid any foundation for getting access to the documents/records and therefore the learned Magistrate had rightly rejected his application seeking copies of the records from the Appropriate Authority. He submitted that there is an inbuilt safeguard in Section 28(3) of the PC-PNDT Act which vests in the Magistrate a discretion and if the word 'may' is read as 'shall', a busy body or a speculative informant without any foundation whatsoever, would on filing of a complaint, be entitled to receive the records as a matter of right. He submitted that the complainant has to lay down some foundation and that speculative information or roving enquiry, cannot be the basis for getting access to the records, at the asking. He submitted that it was for the Magistrate in his discretion to consider, whether the complaint is bonafide and genuine, whether the complaint has any merit or substance and whether the Appropriate Authority is acting in collusion with the party. He submitted that the inbuilt safeguards would go, if the word 'may' as it appears in Section 28(3) of the PC-PNDT Act is to be read as 'shall'. He therefore submitted that the word 'may' will have to be read as 'may' and not as 'shall'.

12. In support of his submissions, Mr.M.P.S. Rao, relied on the Judgment of the Apex Court in the case of People's Union for Civil Liberties (PUCL) v/s Union of India and Another, (1997) 1 Supreme Court Cases 301, Sharda v/s Dharmpal, (2003) 4 Supreme Court Cases 493 : [2003(3) ALL MR 331 (S.C.)] and District Registrar and Collector, Hyderabad and Another v/s Canara Bank and Others, (2005) 1 Supreme Court Cases 496.

13. Mr.Pranav Badheka, for Respondent Nos.6 and 7 contended that Section 28(3) is an enabling Section and that the Magistrate should be satisfied that the documents/records that are sought or demanded by the complainant, ought to be given or not. He submitted that if the word 'may' is read as 'shall', it would be a mechanical order, leaving no discretion whatsoever, in the Magistrate and would thereby violate the fundamental rights of the parties/stakeholders involved in surrogacy, thereby infringing their right to privacy. He submitted that the Petitioner is a busy body and that this Court had in Criminal Application No.106 of 2012 in the case of Kolhapur Municipal Corporation v/s Dr.Tukaram Govind Mane and Others observed therein, that the petitioner i.e. Varsha Deshpande, who had organized the decoy operation in that case was found to be untrustworthy. He submitted that if the word 'may' is read as 'shall' in Section 28(3), it would be contrary to the decision of the Apex Court and the Guidelines pronounced by the Indian Council of Medical Research, 2005 in relation to the Assisted Reproductive Techniques ("Guidelines"), surrogacy as recognized in India. He submitted that the biological parents, surrogate mother as well as the child are entitled to utmost confidentiality/secrecy, which includes personal details. He submitted that any disclosure of the confidential information will be breach of the said 'Guidelines'. He submitted that the entire complaint is misconceived, based on fallacious, baseless and unsubstantiated premise and that the action sought to be initiated by the Petitioner is in the form of a roving enquiry without any basis, done with an ulterior motive and deserves to be dismissed with exemplary costs. He submitted that the child was born prior to the article which appeared in Mid-day. He submitted that the article appeared on 14th June, 2013 in Mid-day and the child was born on 27th May, 2013 and that there was no question of any sex determination of the child on the date on which the said article appeared in the newspaper. He submitted that the Respondent Nos.6 and 7 have never made any attempt to determine the sex of the child even before the birth of the child and as such there was no question of violation of the provisions of the PC-PNDT Act or the Rules framed. He submitted that the discretion which is vested under Section 28(3) of the PC-PNDT Act has been rightly exercised by the learned Magistrate and as such this Court ought not to interfere in the said order in its writ jurisdiction.

14. Perused all the relevant provisions of the PC-PNDT Act and relevant rules, more particularly, Section 28 of the said Act and the statement of object and reasons for enacting the PC-PNDT Act. A perusal of Section 28 of the PC-PNDT Act clearly shows that no court can take cognizance of an offence under this Act except on a complaint made by (a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority ; or (b) a person after giving notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged commission of an offence and of his intention to make a complaint to the Court. The explanation to the said section shows that for the purpose of Section 28 clause (b), "person" includes a social organization. Under clause 3 of Section 28 where a complaint has been made under clause (b) of sub-section (1) of Section 28, the Court may on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person. The said section will have to be considered in the background of the statement of objects and reasons for which the PC-PNDT Act has been enacted. It is evident from the statement of objects and reasons, that the said Act was enacted to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide, as such abuse of techniques, discriminates against the female sex, thereby affecting the dignity and status of women and for other reasons as set out in para 6 of the judgment. It is thus evident, that if an Appropriate Authority or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority fails in its duty to lodge a complaint for violation of the provisions of the said Act/Rules, a 'person' has been given locus under the said Act to lodge a complaint in the appropriate Court for violation of the provisions of the said Act/Rules framed thereunder,, by giving notice in the manner prescribed, to the Appropriate Authority of the alleged violation of the Act. Thus, the legislation gives locus to a 'person' to make a complaint to the Court of the alleged commission of offences under the PC-PNDT Act, where the Appropriate Authority fails in its duty. Under sub-section (3) of Section 28, where a complaint has been made by a person as stated under clause (b) of sub-section (1) of Section 28, the Court may, on demand by such person, direct the Appropriate Authority to give relevant records in its possession to such person. The question that arises for consideration in the present case is whether the word 'may' as it appears in sub-section3 of Section 28 of the said Act can be read as 'shall' or whether there is a discretion vested in the Court to make available the copies of the relevant records in the possession of the appropriate authority, to such a person. If the word 'may' as submitted by Mr.Warunjikar is read as 'shall' leaving no discretion in the Magistrate to make available the copies of all the records in the possession of the appropriate authority, then the question will arise whether by handing over of such records, the right of privacy of persons involved is affected, more particularly, when no foundation whatsoever is laid for handing over the said records. There may be a case where the complainant may be a busy body or a person whose bonafides are questionable or a complaint which is baseless, then under these circumstances, would such a person be entitled to the records as a matter of right under Section 28(3) of the said Act. There may also be a case, where despite the fact, that there is no violation of the provisions of the said Act, if the records are given as a matter of right, the stakeholders in the given case, more particularly in cases of surrogacy may be exposed, thereby infringing the right of privacy of the persons involved.

15. No doubt, it is well settled that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context but that would depend upon the legislation, its object and several other factors. Normally, the word 'may' is used to grant a discretion and not to indicate a mandatory direction. It is also true that the word 'may' in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power unless there are special reasons. The word 'may' is often read as 'shall' or 'must' when there is something in the nature of the thing to be done which makes it the duty of the person on whom the power is conferred to exercise the power. Infact, in Frederic Guilder Julius v/s Right Rev. the Lord Bishop of Oxford; the Rev. Thomas Thellusson Carter. Lord Blackburn said :

"....The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right."

It is therefore in the context in which the word 'may' that has been used which is decisive.

16. Section 28(3) would have to be considered not only keeping in mind the statement of objects and reasons for enacting the PC-PNDT Act, but also keeping in mind the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, in particular, the right to privacy of the stakeholders, more particularly in cases of surrogacy. The right to privacy of an individual is a part of right to 'life' and 'personal liberty' which is enshrined under Article 21 of the Constitution. Once Article 21 is attracted, the said right cannot be curtailed 'except according to the procedure established by law'. Whether the right to privacy can be claimed or has been infringed in a given case would certainly depend on the facts of each case. Whether the documents sought for under sub-section 3 of Section 28 ought to be given or not, is a matter which is for the Magistrate to decide, after balancing the purpose and object of the legislation, the right of the person to receive the documents, and violation, if any, of the provisions of the said Act and Rules. Certainly, the right of privacy cannot supercede the violation of the provisions of the PC-PNDT Act and Rules framed thereunder. However, it is for the Magistrate to consider all the factors, including the right of privacy of the stakeholders. If the word 'may' is read as 'shall' the Magistrate will have no discretion whatsoever, which certainly cannot be said to be legislative intent. Thus, the word 'may' as it appears in sub-section (3) of Section 28 of the PC-PNDT Act will have to be read as 'may' and not 'shall', or 'must' ; thereby giving discretion to the Magistrate to decide whether the complainant is entitled to the records as sought for. Thus, there is no vested right in the complainant to get the records as a matter of right. It may be noted here, that none of the parties have raised the issue, as to whether the Magistrate was competent to consider the application preferred under Section 28(3) of the PC-PNDT Act prior to taking cognizance of the alleged offences under the PC-PNDT Act, and hence the said issue has not been considered and left open.

17. In the present case, the complaint is based on a newspaper report dated 14th June, 2013, whereas the date of birth of the child is 27th May, 2013. Admittedly, the foundation of lodging the complaint is only the newspaper report. The petitioner had given notice to the Appropriate Authority as contemplated under sub-section 1(b) of Section 28. The Appropriate Authority has also as it appears promptly taken cognizance of the said letter sent by the Petitioner and has conducted a detailed enquiry in the said matter and after conducting the same has come to the conclusion that there was no violation of the aforesaid provisions. The learned Magistrate after considering all the material placed before it, has rejected the application preferred by the petitioner, seeking all the relevant records under sub-section 3 of Section 28. The learned Magistrate in para 8 and 9 has observed as under:-

"8. Here it is to be noted that except the complainant's words there is absolutely no material to substantiate her claim that the relevant record is available with the respondent/opponent nos.1 to 3. Barring the news item dated 14/06/2013 the complainant could produce no material in support. Said news item is cited as the base for the conviction of the complainant that the tests were carried out or the sex of the child was declared in violation of the provisions of the PC-PNDT Act. Source of such news article is neither revealed nor is ascertainable. Therefore, such a base, it goes without saying, is absolutely fragile. Complainant's conviction alone can never be made the basis to even reasonably believe that the respondents/opponents might be having the alleged record or they have other record than what they produced on 4.10.2013. It cannot be lost sight of that the child was born on 27.05.2013 while the complainant does not allege that its sex was declared anytime prior to that. Her claim appears purely to be the guesswork.

9. "Adequate foundation to raise a belief that the respondent/opponent nos.1 to 3 have the alleged record concerning the present complaint is badly wanting. Therefore, sans the same the direction as sought for cannot be issued. It is also highly doubtful if a person who is arraigned as an accused could be directed to produce certain material which may later be used against him only, as evidence. The complainant in these circumstances, appears to have made either blind guess or is groping in the dark......."

18. It is for the Magistrate to consider whether the demand of documents/records from the Appropriate Authority is genuine, bonafide etc. It is a discretion which is vested in the Magistrate which he has to exercise judiciously, keeping in mind all the factors. There is no infirmity in the impugned order and the learned Magistrate has rightly rejected the application preferred by the Petitioner under Section 28(3) of the PC-PNDT Act. No interference is warranted. The petition being sans merit, is dismissed. Rule is discharged.

19. Needless to state, that the observations made in the said order are confined to the issue raised in the said petition, preferred under Section 28(3) of the PC-PNDT Act. The trial court to proceed with the complaint, on its own merits, in accordance with law.

After pronouncement of the order, the learned counsel for the Petitioner, seeks stay of order passed today. Prayer rejected.

Petition dismissed.