Herewith please find enclosed a model Form fully
filled as per the Pre Conception and Pre Natal Diagnostic
Techniques (Prohibition of Sex Selection Act) 1994 for
information and guidance of all appropriate Authorities.
The same may please be circulated amongst the
concerned owners/radiologists/Medical geneticists etc
working under your jurisdiction.”
A copy of above instructions is placed on record
which is marked ‘A’ and is also quoted above for ready
reference. It is thus clear that the Additional Director
Health Service and State Appropriate Authority of the
State Government has already noticed that in some cases
even if flimsy mistakes were committed by doctors,
owners of clinics, the local appropriate authorities are
sealing machines and prosecuting them. It is also
recognized that this kind of action amounts to
harassment of medical practitioners. In my earlier
orders I have very specifically opined that since the
provisions of this Act are very strict, the appropriate
authority before taking action against the medical
practitioner must act meticulously.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3500 OF 2011
Dr. Alka w/o Anant Gite,
V
State of Maharashtra
CORAM : A.V.NIRGUDE, J.
DATE : 11th May 2012
2. Rule. Rule made returnable forthwith. By consent of
parties, the application is taken up for final hearing
and heard finally.
3. This Criminal Application is filed for seeking
quashment of criminal case R.C.C. No. 198 of 2011, which
is pending in the Court of Judicial Magistrate, First
Class, ParliVaijinath, District Beed, for offences
punishable under Sections 23(1), 25 and 29 of Pre
conception and PreNatal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (for short,
‘the Act’).
4. The applicants are accused. It is common ground
that applicant No.1 is a medical practitioner and owner
of UltraSound Clinic by name ‘Tirupati Diagnostic
Centre’, Anjali Clinic at Parli Vaijinath. Applicant No.
2 is her husband and is a Radiologist. The UltraSound
Clinic is registered in the name of applicant No.1 and
applicant No.2 is consulting Radiologist alongwith one
more Radiologist Dr. Kurme.
5. On 16
th
June, 2011, at about 04.00 p.m., the
appropriate authority of ParliVaijinath appointed under
the provisions of the Act visited the Clinic of the
applicants, inspected the record and found that the
applicants had not filled up FormF of the patients. The
appropriate authority then recorded panchnama, took in
charge the "incomplete" forms ‘F' alongwith other related
documents, sealed two sonography machines installed at
the Clinic. He, thereafter, sent a notice to the
applicants to show cause why action should not be taken
against them. To this, applicant No.1 sent a reply that
the forms ‘F’ of the patients which were seized by the
appropriate authority are completely filled up and she
had not committed any contravention of any provision of
the Act or Rules. Despite of this reply, the complaint
was ultimately lodged on 20
th
July, 2011 and at present
the same is pending before the learned Judicial
Magistrate, First Class, who is, I am told, recording
evidencebeforecharge.
6. The applicants challenged the legality of action
mainly on the ground that the allegation made against
them is completely false. As said above, the only
allegation made against the applicants is that they did
not fillup forms ‘F’ completely of certain patients who
were subjected to ultrasound sonography. In order to
verify the correctness of this allegation, I perused the
forms and found that the forms are completely filled up.
Only items which are left untouched by the applicants are
item Nos.9 and 13 of FormF. They read as under :
9. History of genetic/medical disease in the
family (specify)
Basis of diagnosis:
(a) Clinical
(b) Bio-chemical
(c) Cytogenetic
(d) Other (e.g., radiological, ultrasonography
etc., specify)
13. Laboratory tests recommended
(i) Chromosomal studies
(ii) Biochemical studies
(iii) Molecular studies
(iv) Preimplantation genetic diagnosis
7. Item No. 9 requires information regarding history of
genetic or medical disease in the family of the patient.
In no forms in question this information is filled up.
The question is what is the importance of this
information? This information would reveal history of
genetic or medical disease in the family of the patient
if it existed. It would help the doctor in diagnosis. It
would also prompt the doctor to examine the patient
radiologically. All the patients in question were
referred for sonography test for examining as to whether
the child is healthy. In this back ground if the
information regarding patients genetic disease in the
family is not mentioned in item No.9, it clearly
indicates that there was no genetic medical disease in
the family of the patient. If the form is otherwise
completely filled up, the applicants would not have left
this item incomplete. The nonfilling of this item thus
is not contravention. It is not even lapse or
inadvertence.
Besides, there is one more reason why item No.9 and
it’s incomplete status cannot be given any importance.
All the patients in question were referred by
Gynaecologists who are practicing elsewhere. They
referred their patients to applicant No.1 for sonography
test. Applicant No.1 then sent such patients to
sonography clinic and arranged their sonography test
through the Radiologist who is employee of the clinic.
In all these cases, radiological or sonography test was
conducted by Dr.Kurme, who is authorized radiologist of
this clinic. If one goes through the referral letters
annexed to FormF of the patient, one would find
provisional diagnosis of the patient made by the
Gynaecologist. If the Gynaecologist who referred the
patient to the applicants for examination did not mention
history of genetic or medical disease in the family of
the patient, then there is no reason why the Radiologist
would fill this item No.9.
8. Item No.13 is in respect of laboratory test
recommended. This item is clearly made applicable
wherever laboratory test is recommended. The asteric
mark on the word ‘recommended’ clearly suggests that this
item is required to be filled up by a Laboratory and not
by ultrasound Clinic.
9. Thus, the allegation that these two items were left
incomplete by the applicants, would not attract
contravention of Sections 5 or 6 of the Act.
10. The learned counsel appearing for the applicants
placed before this Court a copy of general instructions
issued by the State Family Welfare Bureau Maharashtra to
all Civil Surgeon General Hospital, Medical Officer of
Health, Municipal Corporation etc in respect of FormF
and instructions for inspection etc. The contents of
these instructions would confirm my view, which I
expressed above on this subject, which reads as under :
“It has come to the notice of this office the during the
crash inspection programme, some of the Appropriate
Authorities are sealing the machines or harassing the
owner of the centre on flimsy grounds like not writing the
full name of radiologists, writing only initials of the doctors
or writing the short forms in various columns of F-Forms. It
has also come to the notice of this office that owners of
Sonography Centres/Genetic Counsidering Centres/Genetic
Clinics/Genetic Labs etc are being harassed for simple
spelling or grammatical mistakes in the records/F.Forms.
While inspecting the Sonography centres Genetic
Counseling Centres/Genetic Clinics Genetic Lab etc all
Appropriate Authorities are directed to follow the
instructions prescribed under Pre Conception and Pre Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act
1994 and they should act only against the defaulters of the
provisions of the PCPNDT Act. They should ensure that
there is no discrimination while conducting the inspection
of the Sonography Centres. Genetic Counseling
Centres/Genetic Clinics/Genetic Lab etc and also that there
is no harassment of the owners of these facilities and at
the same time action should be taken against the
concerned owner radiologist of Geneologist committing the
breach of the provision of the Act.
Herewith please find enclosed a model Form fully
filled as per the Pre Conception and Pre Natal Diagnostic
Techniques (Prohibition of Sex Selection Act) 1994 for
information and guidance of all appropriate Authorities.
The same may please be circulated amongst the
concerned owners/radiologists/Medical geneticists etc
working under your jurisdiction.”
A copy of above instructions is placed on record
which is marked ‘A’ and is also quoted above for ready
reference. It is thus clear that the Additional Director
Health Service and State Appropriate Authority of the
State Government has already noticed that in some cases
even if flimsy mistakes were committed by doctors,
owners of clinics, the local appropriate authorities are
sealing machines and prosecuting them. It is also
recognized that this kind of action amounts to
harassment of medical practitioners. In my earlier
orders I have very specifically opined that since the
provisions of this Act are very strict, the appropriate
authority before taking action against the medical
practitioner must act meticulously.
In view of this, the application is allowed.
Regular Criminal Case No. 198 of 2011 quashed. Rule is
made absolute.
At the request of learned A.P.P., the effect of this
order is kept in abeyance for eight weeks.
( A.V.NIRGUDE, J. )
SRM/11/5/12 ****
Print Page
filled as per the Pre Conception and Pre Natal Diagnostic
Techniques (Prohibition of Sex Selection Act) 1994 for
information and guidance of all appropriate Authorities.
The same may please be circulated amongst the
concerned owners/radiologists/Medical geneticists etc
working under your jurisdiction.”
A copy of above instructions is placed on record
which is marked ‘A’ and is also quoted above for ready
reference. It is thus clear that the Additional Director
Health Service and State Appropriate Authority of the
State Government has already noticed that in some cases
even if flimsy mistakes were committed by doctors,
owners of clinics, the local appropriate authorities are
sealing machines and prosecuting them. It is also
recognized that this kind of action amounts to
harassment of medical practitioners. In my earlier
orders I have very specifically opined that since the
provisions of this Act are very strict, the appropriate
authority before taking action against the medical
practitioner must act meticulously.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3500 OF 2011
Dr. Alka w/o Anant Gite,
V
State of Maharashtra
CORAM : A.V.NIRGUDE, J.
DATE : 11th May 2012
2. Rule. Rule made returnable forthwith. By consent of
parties, the application is taken up for final hearing
and heard finally.
3. This Criminal Application is filed for seeking
quashment of criminal case R.C.C. No. 198 of 2011, which
is pending in the Court of Judicial Magistrate, First
Class, ParliVaijinath, District Beed, for offences
punishable under Sections 23(1), 25 and 29 of Pre
conception and PreNatal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (for short,
‘the Act’).
4. The applicants are accused. It is common ground
that applicant No.1 is a medical practitioner and owner
of UltraSound Clinic by name ‘Tirupati Diagnostic
Centre’, Anjali Clinic at Parli Vaijinath. Applicant No.
2 is her husband and is a Radiologist. The UltraSound
Clinic is registered in the name of applicant No.1 and
applicant No.2 is consulting Radiologist alongwith one
more Radiologist Dr. Kurme.
5. On 16
th
June, 2011, at about 04.00 p.m., the
appropriate authority of ParliVaijinath appointed under
the provisions of the Act visited the Clinic of the
applicants, inspected the record and found that the
applicants had not filled up FormF of the patients. The
appropriate authority then recorded panchnama, took in
charge the "incomplete" forms ‘F' alongwith other related
documents, sealed two sonography machines installed at
the Clinic. He, thereafter, sent a notice to the
applicants to show cause why action should not be taken
against them. To this, applicant No.1 sent a reply that
the forms ‘F’ of the patients which were seized by the
appropriate authority are completely filled up and she
had not committed any contravention of any provision of
the Act or Rules. Despite of this reply, the complaint
was ultimately lodged on 20
th
July, 2011 and at present
the same is pending before the learned Judicial
Magistrate, First Class, who is, I am told, recording
evidencebeforecharge.
6. The applicants challenged the legality of action
mainly on the ground that the allegation made against
them is completely false. As said above, the only
allegation made against the applicants is that they did
not fillup forms ‘F’ completely of certain patients who
were subjected to ultrasound sonography. In order to
verify the correctness of this allegation, I perused the
forms and found that the forms are completely filled up.
Only items which are left untouched by the applicants are
item Nos.9 and 13 of FormF. They read as under :
9. History of genetic/medical disease in the
family (specify)
Basis of diagnosis:
(a) Clinical
(b) Bio-chemical
(c) Cytogenetic
(d) Other (e.g., radiological, ultrasonography
etc., specify)
13. Laboratory tests recommended
(i) Chromosomal studies
(ii) Biochemical studies
(iii) Molecular studies
(iv) Preimplantation genetic diagnosis
7. Item No. 9 requires information regarding history of
genetic or medical disease in the family of the patient.
In no forms in question this information is filled up.
The question is what is the importance of this
information? This information would reveal history of
genetic or medical disease in the family of the patient
if it existed. It would help the doctor in diagnosis. It
would also prompt the doctor to examine the patient
radiologically. All the patients in question were
referred for sonography test for examining as to whether
the child is healthy. In this back ground if the
information regarding patients genetic disease in the
family is not mentioned in item No.9, it clearly
indicates that there was no genetic medical disease in
the family of the patient. If the form is otherwise
completely filled up, the applicants would not have left
this item incomplete. The nonfilling of this item thus
is not contravention. It is not even lapse or
inadvertence.
Besides, there is one more reason why item No.9 and
it’s incomplete status cannot be given any importance.
All the patients in question were referred by
Gynaecologists who are practicing elsewhere. They
referred their patients to applicant No.1 for sonography
test. Applicant No.1 then sent such patients to
sonography clinic and arranged their sonography test
through the Radiologist who is employee of the clinic.
In all these cases, radiological or sonography test was
conducted by Dr.Kurme, who is authorized radiologist of
this clinic. If one goes through the referral letters
annexed to FormF of the patient, one would find
provisional diagnosis of the patient made by the
Gynaecologist. If the Gynaecologist who referred the
patient to the applicants for examination did not mention
history of genetic or medical disease in the family of
the patient, then there is no reason why the Radiologist
would fill this item No.9.
8. Item No.13 is in respect of laboratory test
recommended. This item is clearly made applicable
wherever laboratory test is recommended. The asteric
mark on the word ‘recommended’ clearly suggests that this
item is required to be filled up by a Laboratory and not
by ultrasound Clinic.
9. Thus, the allegation that these two items were left
incomplete by the applicants, would not attract
contravention of Sections 5 or 6 of the Act.
10. The learned counsel appearing for the applicants
placed before this Court a copy of general instructions
issued by the State Family Welfare Bureau Maharashtra to
all Civil Surgeon General Hospital, Medical Officer of
Health, Municipal Corporation etc in respect of FormF
and instructions for inspection etc. The contents of
these instructions would confirm my view, which I
expressed above on this subject, which reads as under :
“It has come to the notice of this office the during the
crash inspection programme, some of the Appropriate
Authorities are sealing the machines or harassing the
owner of the centre on flimsy grounds like not writing the
full name of radiologists, writing only initials of the doctors
or writing the short forms in various columns of F-Forms. It
has also come to the notice of this office that owners of
Sonography Centres/Genetic Counsidering Centres/Genetic
Clinics/Genetic Labs etc are being harassed for simple
spelling or grammatical mistakes in the records/F.Forms.
While inspecting the Sonography centres Genetic
Counseling Centres/Genetic Clinics Genetic Lab etc all
Appropriate Authorities are directed to follow the
instructions prescribed under Pre Conception and Pre Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act
1994 and they should act only against the defaulters of the
provisions of the PCPNDT Act. They should ensure that
there is no discrimination while conducting the inspection
of the Sonography Centres. Genetic Counseling
Centres/Genetic Clinics/Genetic Lab etc and also that there
is no harassment of the owners of these facilities and at
the same time action should be taken against the
concerned owner radiologist of Geneologist committing the
breach of the provision of the Act.
Herewith please find enclosed a model Form fully
filled as per the Pre Conception and Pre Natal Diagnostic
Techniques (Prohibition of Sex Selection Act) 1994 for
information and guidance of all appropriate Authorities.
The same may please be circulated amongst the
concerned owners/radiologists/Medical geneticists etc
working under your jurisdiction.”
A copy of above instructions is placed on record
which is marked ‘A’ and is also quoted above for ready
reference. It is thus clear that the Additional Director
Health Service and State Appropriate Authority of the
State Government has already noticed that in some cases
even if flimsy mistakes were committed by doctors,
owners of clinics, the local appropriate authorities are
sealing machines and prosecuting them. It is also
recognized that this kind of action amounts to
harassment of medical practitioners. In my earlier
orders I have very specifically opined that since the
provisions of this Act are very strict, the appropriate
authority before taking action against the medical
practitioner must act meticulously.
In view of this, the application is allowed.
Regular Criminal Case No. 198 of 2011 quashed. Rule is
made absolute.
At the request of learned A.P.P., the effect of this
order is kept in abeyance for eight weeks.
( A.V.NIRGUDE, J. )
SRM/11/5/12 ****
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