Section 3A of the PC- PNDT Act prohibits sex selection, which has been given a wide meaning and that restriction is on every person including a specialist on conducting or even causing to be conducted or aiding in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, fluid or gametes derived from either or both of them. The conducting of sex selection oneself or by aiding another person to engage in sex selection has been brought within the purview of Section 3-A of the Act. Sex determination includes not only determination of the sex, but also includes anything done from fertilization until birth, which increases the probability that the embryo will be of a particular sex. The sex selection, therefore, cannot only be confined to the determination of the sex of the foetus. The Court did not agree that attempt to commit an offense of sex selection would become non-cognizable in view of the last clause of Schedule-1 of the Code of Criminal Procedure. The special provision in the Act would prevail over the general provision in view of Section 5 of the Code of Criminal Procedure.
Dr. Anil Kumar Mishra Vs. State of U.P. & Ors
Dated 1 /4 2011
Allahabad high court
1. We have heard Shri Shahroze Khan for the petitioner.Learned Standing Counsel appears for the respondents.
2. Dr. Anil Kumar Mishra, the petitioner in Writ Petition No.57791 of 2008; Dr. Dinesh Chand Pandey, the petitioner in Writ Petition No.57795 of 2008 are Bachelors of Homeopathic, Medicine and Surgery and are registered with the Homeopathic Medicine Board, U.P. Lucknow vide Registration No.25477 dated 26th April, 2002 and Registration No.24249 dated 28th May, 1997 respectively. They are practicing homeopathy in Distt. Siddharth Nagar. Dr. Faizan Ahmad, the petitioner in Writ Petition No.57794 of 2008, is Bachelor of Unani Medicine and Surgery from Jamia Hamdard University, New Delhi and is registered with Indian Medicine Board, U.P. vide Registration No.9016 dated 14.6.2001. He is practicing Unani Medicine at Siddharth Nagar.
3. All the petitioners had applied for and were registered by Chief Medical Officer/ Competent Authority for running ultrasound clinic under Rule 6 (2), 6 (5) and 8 (2), on Form-’B’ of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Rules, 1996 (in short PNDT Rules, 1996), made by Central Government under Section 32 of the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short PC & PNDT Act, 1994). The registration certificates issued by the Chief Medical Officer, Siddharth Nagar to Dr. Anil Kumar Misra on 13.5.2002 was valid up to 12.5.2007 and was renewed for a period upto 13.5.2012. The registration certificate issued to Dr. Dinesh Chand Pandey on 12.12.2001, was valid up to 11.12.2006 and was renewed up-to 12.12.2001 and the registration certificate in favor of Dr. Faizan Ahmad was issued on 15.6.2005, and was valid up to 14.6.2010. All these three registration certificates were valid for prenatal diagnostic procedures approved for non-invasive tests by using ultrasound machines.
4. On 21st August, 2008 the Chief Medical Officer, Siddharth Nagar in pursuance to the letters of the Principal Secretary, Medical & Health, Government of U.P., Lucknow dated 11.7.2008; the Chairman, State Competent Authority/ Director General, U.P. Lucknow dated 5.8.2008 and of the District Magistrate dated 11.8.2008, issued notices to the petitioners, that since they are not qualified person, who can perform ultra sound tests under PC & PNDT Act, in which it is provided that only those doctors can perform ultra sound test, who are registered as medical practitioners under Section 2 (h) of the Indian Medical Council Act, 1956 (102/1956), and whose name has been entered in State Medical Register, and possess post graduate degree in Sonography/ Image Scanning or a diploma or six month’s training or one year’s experience; they may show cause within a week, whether they are qualified to be registered, failing which their registration will be canceled.
5. The petitioners in Writ Petition No.57791 of 2008 and 57795 of 2008 submitted a reply to the effect that they hold BHMS degrees and are registered with Homeopathic Medicine Board. Dr. Anil Kumar Misra replied stating that he holds a Diploma for running ultra sound from Lumbini Diagnostic Research Center Pvt. Ltd. Siddharth Nagar. He was given permission to operate ultra sound center by issuing registration certificate under PC & PNDT Act, 1994 valid up to 12.5.2007, and renewed up to 12.5.2012. He is qualified and eligible to run the ultra sound centers. Dr. Dinesh Chand Pandey in Writ Petition No.57795 of 2008 stated in his reply that he holds BHMS degree with registration with Homeopathic Medicine Board. He has taken training of running ultra sound in Shubham Scanning Center, Gorakhpur. He was issued certificate of registration on 12.12.2001, which was valid up to 12.12.2006, and was renewed up to 12.12.2011. He claimed to be qualified to run the ultra sound center. In respect of Faizan Ahmad no reply was given. All the three petitioners in the three writ petitions allege that since they have qualifications to practice as medical doctors under the U.P. Homeopathic Medical Council Act and Indian Medicine Central Council Act, 1971 and that since all the three are registered with the U.P. Homeopathic Medical Council in
respect of Dr. Anil Kumar Mishra and Dr. Dinesh Chand Pandey and under the Indian Medical Board U.P. in respect of Dr. Faizan Ahmad, they are qualified and eligible under the PC & PNDT Act, 1994, and PNDT Act, 1996 to run their clinics and perform ultrasound tests.
6. Pre-natal diagnostic techniques include pre-natal diagnostic tests and pre-natal diagnostic procedures. Procedures are defined as all gynecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo blood or any other tissue or fluid of a man, or of a woman, before or after conception, 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. Tests are defined as 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 disease. “sex section” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex. After the enforcement of PC & PNDT Act, 1994 no Genetic Counseling Center, Genetic Laboratory or Genetic Center can conduct or associate with, or hold and conduct activities relating to pre-natal diagnostic techniques, which is not registered. A person, who does not possess the qualification prescribed under Rule 3 of the PNDT Rules, 1996 can not be employed or be taken in services, whether on an honorary basis or on payment. Section 3 of the PC & PNDT Act, 1994 prescribes that no qualified person shall conduct or cause any pre-natal diagnostic technique, to be conducted in any place other than a place registered under this Act. Section 2 (c) to (p) define genetic counselling center; genetic clinic; genetic laboratory; gynecologist, pediatrician; pre-natal diagnostic procedures; pre-natal diagnostic techniques; pre-natal diagnostic test; registered medical practitioner; sex selection and sonologist or imaging specialist. Section 2 (c), (d), (e), (f), (h), (j), (k), (m), (o) and (p) are quoted as below:-
“(c) “Genetic Counseling Center” means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counseling to patients;
(d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is sued for conducting pre-natal diagnostic procedures;
(e) “Genetic Laboratory” means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test;
(f) “gynecologist” means a person who possesses a postgraduate qualification in gynecology and obstetrics;
(h) “paediatrician” means a person who possesses a post-graduate qualification in paediatrics;
(j) “pre-natal diagnostic techniques” includes all prenatal diagnostic procedures and pre-natal diagnostic tests;
(k) “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;
(m) “registered medical practitioners” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register;
(o) “sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex;
(p) “sonologist or imaging specialist” means a person who possesses any one of the medical qualification recognized under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology.”
7. Section 3, in Chapter-II of the PC & PNDT Act, 1994 provides for regulation of genetic counseling centers and genetic laboratories and genetic clinics. Section 3A and 3B of the Act provide as follows:-
“3A. Prohibition of sex selection- No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.
3B. Prohibition on sale of ultrasound machine, etc., to persons, laboratories, clinics, etc., not registered under the Act-
No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of the foetus to any Genetic Counseling Center, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act.”
8. The PNDT Rules, 1996 prescribe the qualifications of the employees, requirement of the equipment etc. for Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Center as follows:-
“3. The qualifications of the employees, the requirement of equipment etc. for a Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Center shall be as under:
(1) Any person being or employing
(i) a gynecologist or a pediatrician having six months experience or four weeks training in genetic counseling or
(ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counseling may set up a genetic counseling center and get it registered as a genetic counseling center.
(2) (a) Any person having adequate space and being or employing
(i) a Medical Geneticist and
(ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in conducting appropriate prenatal diagnostic techniques, tests or procedures may set up a genetic laboratory.
(3) (1) Any person having adequate space and being or employing
(a) Gynecologist having experience of performing at least 20 procedures in chorionic vili aspirations per vagina or per abdomen, chorionic villi biopsy, amniocentesis, cordocentesis foetoscopy, foetal skin or organ biopsy or foetal blood sampling etc. under supervision of an experienced gynecologist in these fields, or
(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six months training or one year experience in sonography or image scanning or.
(c) A medical geneticist, may set up a genetic clinic/ ultrasound clinic/ imaging center.”
9. Rule 3A prohibits sale of ultrasound machine/ imaging machine by any organization including commercial organization or a person, including manufacturer, importer, dealer or supplier of ultrasound machine/ imaging machine to sell, distribute, supply, rent, allow or authorize use of such machine to a genetic counseling center, genetic laboratory, genetic clinic, ultrasound clinic, imaging center or any other body or person, unless such center, laboratory, clinic body or person is registered under the Act. The provider of such machine/ equipment under sub-rule (2) is required to send a list every three months to the concerned State, UT, appropriate authority and the Central Government and under sub-rule (3), he shall take an affidavit from such centers that the person purchasing or getting authorization for use of such machine/ equipment shall not use it for detection of sex, foetus or selection and sex after conception. The registration of the Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and imaging centers, application fees, the certificate of registration, validity, renewal, maintenance and preservation of records is provided from Rule 4 to 9. The conditions for conducting PNDT and procedures is provided in Rule 10, powers of inspection, search and seizure are provided under Rules 11 and 12 of the Rules. Intimation is also to be given of such centers and clinics of change of employees under Rule13 and the conditions for analysis or test and pre-natal diagnostic procedures is provided under Rule 14.
10. By impugned order dated 22.9.2008 the Chief Medical Officer, Siddharth Nagar has reminded the petitioners that they have not appointed qualified and eligible doctors in-spite of notice and that if they do not submit their clarifications regarding appointment of qualified and eligible doctors by 30.8.2008, their registration shall be treated to be canceled. On 18.12.2008 we passed the following order in Writ Petition No.57791 of 2008:- “Learned standing counsel has accepted notice on behalf of all the respondents. He is allowed four week’s time to file counter affidavit. The petitioner will have one week’s time thereafter to file rejoinder affidavit. List on 23.1.2009.
The petitioner was registered under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short the Act) for running a ultrasonography clinic. The Chief Medical Officer, Siddarth Nagar gave a show cause notice to the petitioner as to why the registration may not be canceled on the ground that the persons engaged for conducting ultrasonography test are not qualified under the Act. It is alleged that the petitioner submitted his reply stating that he is a qualified doctor in Homeopathy with BHMS degree and registration under the Homeopathic Medicine Board, U.P. Lucknow. He also relied upon the diploma given by Lumbini Diagnosis & Research Center Pvt. Ltd., certifying that the petitioner had conducted 500 ultrasonography tests. The Chief Medical Officer, Siddarth Nagar has, by the impugned order dated 22.9.2008, found that the petitioner has not engaged a qualified medical practitioner at the ultra-sound center and unless he engages a qualified medical practitioner, the registration shall be canceled w.e.f. 30.9.2008.
Prima facie, we find that the petitioner does not possess the qualifications mentioned in Section 2 (g) & (p) of the Act. The petitioner does not hold the medical qualifications recognized under the Indian Medical Council Act, 1956, or post-graduation degree in biological science and also does not possess the requisite experience in Ultrasonography and Imaging Techniques or Radiology. The certificates produced by the petitioners are not from any recognized institution and do not certify that the petitioner has qualifications in ultrasonography and imaging techniques or radiology. We are not inclined to pass any interim order in the writ petition at this stage.”
11. Similar order was passed in the connected writ petition.
12. A counter affidavit has been filed by Dr. G.R. Gupta, Deputy Chief Medical Officer, Siddharth Nagar. In paras 4, 5, 6, 7 and 8 the relevant provisions of PC and PNDT Act, 1994 and PNDT Rules, 1996 has been quoted. Thereafter it is stated in para 9 and 18 as follows:-
“9. That thus from the aforesaid provisions, it is clear that Section 3 (2) prohibits any genetic laboratory or genetic clinic to employ any person, which does not possess qualifications as may be prescribed. The qualifications have been prescribed by Rule 3 (3) (1), which clearly provides that Gynaecologist, Sonologist, Imaging Specialist, Radiologist or Registered medical practitioner having post graduate degree or six months training and a medical geneticist can conduct the ultrasound. Admittedly the petitioner is not a person qualified according to the aforesaid provisions nor has he engaged any person so qualified. It is further stated that the petitioner does not have certificate of training from any recognized institution and thus in any view of the matter, the petitioner does not satisfy that he has qualification in ultra sonography.
18. That the contents of paras 15 to 20 of the writ petition are not admitted. It is submitted that the petitioner does not fulfill the requisite qualification as prescribed by 1994 Act and 1996 Rules framed thereunder. He is not eligible to conduct ultrasound. The petitioner has not engaged any qualified person to do the same. In the facts and circumstances of the case, the petitioner is not entitled for any relief. Further the alleged certificate of training of the petitioner is of no use as the same has not been issued by recognized institution for the purpose.”
13. Learned counsel for the petitioners submit that all the petitioners were given registration certificates after verifying their qualifications. The Act and the Rules have not undergone any change to cancel the registration certificate. He submits that even otherwise the petitioners are fully qualified and eligible as they hold medical qualification in Homeopathic and Unani Medicine valid under relevant Central Acts and are registered with the statutory councils namely the Homeopathic Medical Council established under the Homeopathic Medical Council Act and the Indian Medicine Board under the Indian Medicine Central Council Act, 1971, and the U.P. Indian Medicine Act, 1949. The Chief Medical Officer has not considered the petitioner’s explanation.
14. In these three writ petitions we are called upon to answer the question about the qualifications and eligibility of the person entitled to be registered under Section 3 of the PC & PNDT Act, 1994 for carrying out the ultrasound tests.
15. Section 3 under Chapter II of the PC & PNDT Act, 1994 provides for regulation of Genetic Counseling Centers, Genetic Laboratories and Genetic clinics. Sub-section (1) of Section 3 provides that no Genetic Counseling Center, Genetic Laboratory or Genetic Clinic, unless registered under this Act shall conduct or associate with or hold in conducting activities relating to prenatal diagnostic techniques. Subsection (2) prohibits the employment whether on honorary basis or on payment of any person in such centers and clinics, who do not possess the qualifications as may be prescribed; and sub-section (3), prohibits the medical geneticist, gynecologist pediatrician, registered medical practitioner or any other person to conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at place other than a place registered under the Act.
16. Rule 3 of the PNDT Rules, 1996 prescribes the qualifications of the employees, the requirement of equipment etc. for a Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Center. The qualifications prescribed in sub-rule (1) provides that qualification both of the person and the employee under
(i) to be a gynecologist or a pediatrician having six months experience or four weeks training in genetic counseling; or
(ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counseling in a center, which may be registered as genetic center. The relevant sub-rule (2) provides that any person having adequate space and being or employing (i) a Medical Geneticist and (ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in conducting appropriate prenatal diagnostic techniques, tests or procedures, may set up a genetic laboratory.
17. The petitioners are not gynecologist or pediatrician and they do not have any qualification in genetic counseling; they are not medical geneticist having any qualification as medical geneticist. They would thus, at best, fall under Rule 3 (3).
18. A Sonologist, imaging specialist, or Radiologist or Registered Medical Practitioner who has Post Graduate degree or diploma or six months training for one year’s experience in sonography or imaging scanning can only perform the ultrasound tests, in genetic clinic, ultrasound clinic and imaging center, registered under Rule 3 (2). The registered medical practitioner is defined under Section 2 (m) of the PC & PNDT Act, 1994. The definition provides that such a registered medical practitioner means medical practitioner, who possesses any recognized medical qualifications as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956, and whose name has been entered in State Medical Register.
19. The petitioners are not medical practitioners having recognized medical qualifications under clause (h) of Section 2 of the Indian Medical Council Act, 1956; and they are not entered in the State Medical Register. They are qualified differently under the Homeopathic Medicine Central Council Act and the Indian Medicine Central Council Act, 1971. The petitioners are thus not qualified and eligible to run an ultrasound center/ clinic, and they could not be registered by the Chief Medical Officer, for carrying out ultrasound tests/ sonography. They were not entitled and were wrongly allowed registration by Chief Medical Officer under the PC & PNDT Act, 1994.
20. The registration of a person under the PC PNDT Act, 1994, if he is not qualified and eligible under the Act for such registration, will not give him any right to continue and to seek renewal in contravention of the provisions of the Act. The plea of estoppel is not applicable against a clear statutory prohibition. The public purpose for enacting PC PNDT Act, 1994 also does not give any right to the petitioners to claim to continue to run the ultrasound center/ clinic on the basis of registration, which could not be given under the Act. All the petitioners were given show cause notices on the directions of the Chairman, State Competent Authority, Director General U.P. dated 5.8.2008 and the District Magistrate dated 11.8.2008, and that their registrations were canceled by the Chief Medical Officer, Siddharth nagar by a reasoned order.
21. The ultrasound tests are conducted by the ultrasound machine, imaging machine or scanner as non-invasive tests for diagnosis. The technology is useful in the modern medicine for diagnosis and for treatment of the deceases. The technology has advanced gradually and can also be used for determining sex of the child in foetus. The social conditions prevailing in India, in which a girl child is seen as a burden on the family has led to abortion of female foetus in millions of cases. The use of modern technology in determining sex and the sex selection by the families in India, in last decade alone has led to reducing the ratio from 976 female born to every 1000 males in 1961; 964 in 1971; 962 in 1981, 945 in 1991 and 927 in 2001. The decline may look to be a small in a country with 1.2 billion people; the difference, however, translates into millions of fewer females in the population.
22. The statistics collected from Census 2001 of the ratio of female/ male population in four states; and a study carried out in Delhi hospitals, of sex selection is quoted below to prove the point:-
Child Sex Ratio (0-6 years) Female/ Male
State 1991 2001
Punjab 875/1000 793/1000
Haryana 879/1000 820/1000
Gujarat 928/1000 878/1000
Maharashtra 946/1000 917/1000
Source Census 2001 (45 Districts out of 600 have sex ratio below 845).
Sex Ratio/ Birth in a study carried out by Joe Verghese in Delhi Hospitals F/M
925/1000 First Born 959/1000
731/1000 Second Born 542/1000
407/1000 Third Born 219/1000
In the Census 2011 the ratio of female/ male population in the country has improved from 933/1000 to 940/1000 but alarmingly the Child Sex Ratio (0-6 years) has come down from 927/1000 to 914/1000. The difference in the sex ratio and the child sex ratio works out to millions of fewer female children in the population.
23. The horrible acts of crime committed by unethical persons in readily aborting female fetuses, of which sex is determined by the modern techniques, gave rise to the need of statutory regulations of prohibition on sex determination and sex selection by pre-conception and prenatal diagnostic techniques. The regulation provided by the PC & PNDT Act, 1994 for carrying out these tests only by qualified medical personnel and for registration of the genetic counseling center, genetic clinic, genetic laboratory and ultrasound centers, was found necessary in public interest. The abortions are not entirely illegal in our country, and are regulated by the Medical Termination of Pregnancy Act, 1971. The loose terms such as contraceptive failure, have led to frequent medical termination of pregnancy by qualified doctors. The PNDT Act, 1994 was amended by including pre-conception techniques including sex selection also within its ambit. In Center for Equiry Into Health and Allied Themes (Cehat) & Ors. Vs. Union of India (UOI) & Ors., (2003) 8 SCC 398 the Supreme Court emphasized the need for effective implementation of the Act and gave directions, which are being monitored, for publication by way of advertisement as well as by electronic media, submission of quarterly reports, maintenance of records by appropriate authorities and the meetings of Advisory Committees. The Supreme Court activated the National Monitoring and Inspection Committee for conducting periodic inspections and for constitution of State Supervisory Boards to implement PC & PNDT Act, 1994.
24. In M/s Malpani Infertility Clinic Pvt. Ltd. & Ors. Vs. Appropriate Authority PNDT Act ; Ors., Writ Petition No.5295 of 2003 the Bombay High Court by judgment dated 17th September, 2004 repelled the challenge to the PC &PNDT Act, 1994, in an action initiating prosecution and the order of suspension of the registration under the Act of persons carrying out the tests illegally.
25. In Dr. Varsha Gautam Vs. State of U.P. & Ors., Criminal Misc. Writ Petition No.5086 of 2006 decided on 26.5.2006 this Court dismissed a writ petition challenging the first information report and for stay of arrest in a matter in which defense was taken that Section 28 of the Act provides cognizance of any offense except on a complaint made by concerned appropriate authority. It was held that prohibition does not apply at the stage of investigation. It relates to the stage when cognizance is sought to be taken and further that there is difference between an attempt to commit an offense, and the preparation to do so. It was held that the attempt once began and criminal act done in pursuance to it, towards commission of the act attempted, does not cease to be a criminal attempt because the person committing the offense does or may repent before the attempt is completed.
Section 3A of the PC- PNDT Act prohibits sex selection, which has been given a wide meaning and that restriction is on every person including a specialist on conducting or even causing to be conducted or aiding in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, fluid or gametes derived from either or both of them. The conducting of sex selection oneself or by aiding another person to engage in sex selection has been brought within the purview of Section 3-A of the Act. Sex determination includes not only determination of the sex, but also includes anything done from fertilization until birth, which increases the probability that the embryo will be of a particular sex. The sex selection, therefore, cannot only be confined to the determination of the sex of the foetus. The Court did not agree that attempt to commit an offense of sex selection would become non-cognizable in view of the last clause of Schedule-1 of the Code of Criminal Procedure. The special provision in the Act would prevail over the general provision in view of Section 5 of the Code of Criminal Procedure.
3. All the petitioners had applied for and were registered by Chief Medical Officer/ Competent Authority for running ultrasound clinic under Rule 6 (2), 6 (5) and 8 (2), on Form-’B’ of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Rules, 1996 (in short PNDT Rules, 1996), made by Central Government under Section 32 of the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short PC & PNDT Act, 1994). The registration certificates issued by the Chief Medical Officer, Siddharth Nagar to Dr. Anil Kumar Misra on 13.5.2002 was valid up to 12.5.2007 and was renewed for a period upto 13.5.2012. The registration certificate issued to Dr. Dinesh Chand Pandey on 12.12.2001, was valid up to 11.12.2006 and was renewed up-to 12.12.2001 and the registration certificate in favor of Dr. Faizan Ahmad was issued on 15.6.2005, and was valid up to 14.6.2010. All these three registration certificates were valid for prenatal diagnostic procedures approved for non-invasive tests by using ultrasound machines.
4. On 21st August, 2008 the Chief Medical Officer, Siddharth Nagar in pursuance to the letters of the Principal Secretary, Medical & Health, Government of U.P., Lucknow dated 11.7.2008; the Chairman, State Competent Authority/ Director General, U.P. Lucknow dated 5.8.2008 and of the District Magistrate dated 11.8.2008, issued notices to the petitioners, that since they are not qualified person, who can perform ultra sound tests under PC & PNDT Act, in which it is provided that only those doctors can perform ultra sound test, who are registered as medical practitioners under Section 2 (h) of the Indian Medical Council Act, 1956 (102/1956), and whose name has been entered in State Medical Register, and possess post graduate degree in Sonography/ Image Scanning or a diploma or six month’s training or one year’s experience; they may show cause within a week, whether they are qualified to be registered, failing which their registration will be canceled.
5. The petitioners in Writ Petition No.57791 of 2008 and 57795 of 2008 submitted a reply to the effect that they hold BHMS degrees and are registered with Homeopathic Medicine Board. Dr. Anil Kumar Misra replied stating that he holds a Diploma for running ultra sound from Lumbini Diagnostic Research Center Pvt. Ltd. Siddharth Nagar. He was given permission to operate ultra sound center by issuing registration certificate under PC & PNDT Act, 1994 valid up to 12.5.2007, and renewed up to 12.5.2012. He is qualified and eligible to run the ultra sound centers. Dr. Dinesh Chand Pandey in Writ Petition No.57795 of 2008 stated in his reply that he holds BHMS degree with registration with Homeopathic Medicine Board. He has taken training of running ultra sound in Shubham Scanning Center, Gorakhpur. He was issued certificate of registration on 12.12.2001, which was valid up to 12.12.2006, and was renewed up to 12.12.2011. He claimed to be qualified to run the ultra sound center. In respect of Faizan Ahmad no reply was given. All the three petitioners in the three writ petitions allege that since they have qualifications to practice as medical doctors under the U.P. Homeopathic Medical Council Act and Indian Medicine Central Council Act, 1971 and that since all the three are registered with the U.P. Homeopathic Medical Council in
respect of Dr. Anil Kumar Mishra and Dr. Dinesh Chand Pandey and under the Indian Medical Board U.P. in respect of Dr. Faizan Ahmad, they are qualified and eligible under the PC & PNDT Act, 1994, and PNDT Act, 1996 to run their clinics and perform ultrasound tests.
6. Pre-natal diagnostic techniques include pre-natal diagnostic tests and pre-natal diagnostic procedures. Procedures are defined as all gynecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo blood or any other tissue or fluid of a man, or of a woman, before or after conception, 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. Tests are defined as 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 disease. “sex section” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex. After the enforcement of PC & PNDT Act, 1994 no Genetic Counseling Center, Genetic Laboratory or Genetic Center can conduct or associate with, or hold and conduct activities relating to pre-natal diagnostic techniques, which is not registered. A person, who does not possess the qualification prescribed under Rule 3 of the PNDT Rules, 1996 can not be employed or be taken in services, whether on an honorary basis or on payment. Section 3 of the PC & PNDT Act, 1994 prescribes that no qualified person shall conduct or cause any pre-natal diagnostic technique, to be conducted in any place other than a place registered under this Act. Section 2 (c) to (p) define genetic counselling center; genetic clinic; genetic laboratory; gynecologist, pediatrician; pre-natal diagnostic procedures; pre-natal diagnostic techniques; pre-natal diagnostic test; registered medical practitioner; sex selection and sonologist or imaging specialist. Section 2 (c), (d), (e), (f), (h), (j), (k), (m), (o) and (p) are quoted as below:-
“(c) “Genetic Counseling Center” means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counseling to patients;
(d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is sued for conducting pre-natal diagnostic procedures;
(e) “Genetic Laboratory” means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test;
(f) “gynecologist” means a person who possesses a postgraduate qualification in gynecology and obstetrics;
(h) “paediatrician” means a person who possesses a post-graduate qualification in paediatrics;
(j) “pre-natal diagnostic techniques” includes all prenatal diagnostic procedures and pre-natal diagnostic tests;
(k) “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;
(m) “registered medical practitioners” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register;
(o) “sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex;
(p) “sonologist or imaging specialist” means a person who possesses any one of the medical qualification recognized under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology.”
7. Section 3, in Chapter-II of the PC & PNDT Act, 1994 provides for regulation of genetic counseling centers and genetic laboratories and genetic clinics. Section 3A and 3B of the Act provide as follows:-
“3A. Prohibition of sex selection- No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.
3B. Prohibition on sale of ultrasound machine, etc., to persons, laboratories, clinics, etc., not registered under the Act-
No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of the foetus to any Genetic Counseling Center, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act.”
8. The PNDT Rules, 1996 prescribe the qualifications of the employees, requirement of the equipment etc. for Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Center as follows:-
“3. The qualifications of the employees, the requirement of equipment etc. for a Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Center shall be as under:
(1) Any person being or employing
(i) a gynecologist or a pediatrician having six months experience or four weeks training in genetic counseling or
(ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counseling may set up a genetic counseling center and get it registered as a genetic counseling center.
(2) (a) Any person having adequate space and being or employing
(i) a Medical Geneticist and
(ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in conducting appropriate prenatal diagnostic techniques, tests or procedures may set up a genetic laboratory.
(3) (1) Any person having adequate space and being or employing
(a) Gynecologist having experience of performing at least 20 procedures in chorionic vili aspirations per vagina or per abdomen, chorionic villi biopsy, amniocentesis, cordocentesis foetoscopy, foetal skin or organ biopsy or foetal blood sampling etc. under supervision of an experienced gynecologist in these fields, or
(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six months training or one year experience in sonography or image scanning or.
(c) A medical geneticist, may set up a genetic clinic/ ultrasound clinic/ imaging center.”
9. Rule 3A prohibits sale of ultrasound machine/ imaging machine by any organization including commercial organization or a person, including manufacturer, importer, dealer or supplier of ultrasound machine/ imaging machine to sell, distribute, supply, rent, allow or authorize use of such machine to a genetic counseling center, genetic laboratory, genetic clinic, ultrasound clinic, imaging center or any other body or person, unless such center, laboratory, clinic body or person is registered under the Act. The provider of such machine/ equipment under sub-rule (2) is required to send a list every three months to the concerned State, UT, appropriate authority and the Central Government and under sub-rule (3), he shall take an affidavit from such centers that the person purchasing or getting authorization for use of such machine/ equipment shall not use it for detection of sex, foetus or selection and sex after conception. The registration of the Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and imaging centers, application fees, the certificate of registration, validity, renewal, maintenance and preservation of records is provided from Rule 4 to 9. The conditions for conducting PNDT and procedures is provided in Rule 10, powers of inspection, search and seizure are provided under Rules 11 and 12 of the Rules. Intimation is also to be given of such centers and clinics of change of employees under Rule13 and the conditions for analysis or test and pre-natal diagnostic procedures is provided under Rule 14.
10. By impugned order dated 22.9.2008 the Chief Medical Officer, Siddharth Nagar has reminded the petitioners that they have not appointed qualified and eligible doctors in-spite of notice and that if they do not submit their clarifications regarding appointment of qualified and eligible doctors by 30.8.2008, their registration shall be treated to be canceled. On 18.12.2008 we passed the following order in Writ Petition No.57791 of 2008:- “Learned standing counsel has accepted notice on behalf of all the respondents. He is allowed four week’s time to file counter affidavit. The petitioner will have one week’s time thereafter to file rejoinder affidavit. List on 23.1.2009.
The petitioner was registered under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short the Act) for running a ultrasonography clinic. The Chief Medical Officer, Siddarth Nagar gave a show cause notice to the petitioner as to why the registration may not be canceled on the ground that the persons engaged for conducting ultrasonography test are not qualified under the Act. It is alleged that the petitioner submitted his reply stating that he is a qualified doctor in Homeopathy with BHMS degree and registration under the Homeopathic Medicine Board, U.P. Lucknow. He also relied upon the diploma given by Lumbini Diagnosis & Research Center Pvt. Ltd., certifying that the petitioner had conducted 500 ultrasonography tests. The Chief Medical Officer, Siddarth Nagar has, by the impugned order dated 22.9.2008, found that the petitioner has not engaged a qualified medical practitioner at the ultra-sound center and unless he engages a qualified medical practitioner, the registration shall be canceled w.e.f. 30.9.2008.
Prima facie, we find that the petitioner does not possess the qualifications mentioned in Section 2 (g) & (p) of the Act. The petitioner does not hold the medical qualifications recognized under the Indian Medical Council Act, 1956, or post-graduation degree in biological science and also does not possess the requisite experience in Ultrasonography and Imaging Techniques or Radiology. The certificates produced by the petitioners are not from any recognized institution and do not certify that the petitioner has qualifications in ultrasonography and imaging techniques or radiology. We are not inclined to pass any interim order in the writ petition at this stage.”
11. Similar order was passed in the connected writ petition.
12. A counter affidavit has been filed by Dr. G.R. Gupta, Deputy Chief Medical Officer, Siddharth Nagar. In paras 4, 5, 6, 7 and 8 the relevant provisions of PC and PNDT Act, 1994 and PNDT Rules, 1996 has been quoted. Thereafter it is stated in para 9 and 18 as follows:-
“9. That thus from the aforesaid provisions, it is clear that Section 3 (2) prohibits any genetic laboratory or genetic clinic to employ any person, which does not possess qualifications as may be prescribed. The qualifications have been prescribed by Rule 3 (3) (1), which clearly provides that Gynaecologist, Sonologist, Imaging Specialist, Radiologist or Registered medical practitioner having post graduate degree or six months training and a medical geneticist can conduct the ultrasound. Admittedly the petitioner is not a person qualified according to the aforesaid provisions nor has he engaged any person so qualified. It is further stated that the petitioner does not have certificate of training from any recognized institution and thus in any view of the matter, the petitioner does not satisfy that he has qualification in ultra sonography.
18. That the contents of paras 15 to 20 of the writ petition are not admitted. It is submitted that the petitioner does not fulfill the requisite qualification as prescribed by 1994 Act and 1996 Rules framed thereunder. He is not eligible to conduct ultrasound. The petitioner has not engaged any qualified person to do the same. In the facts and circumstances of the case, the petitioner is not entitled for any relief. Further the alleged certificate of training of the petitioner is of no use as the same has not been issued by recognized institution for the purpose.”
13. Learned counsel for the petitioners submit that all the petitioners were given registration certificates after verifying their qualifications. The Act and the Rules have not undergone any change to cancel the registration certificate. He submits that even otherwise the petitioners are fully qualified and eligible as they hold medical qualification in Homeopathic and Unani Medicine valid under relevant Central Acts and are registered with the statutory councils namely the Homeopathic Medical Council established under the Homeopathic Medical Council Act and the Indian Medicine Board under the Indian Medicine Central Council Act, 1971, and the U.P. Indian Medicine Act, 1949. The Chief Medical Officer has not considered the petitioner’s explanation.
14. In these three writ petitions we are called upon to answer the question about the qualifications and eligibility of the person entitled to be registered under Section 3 of the PC & PNDT Act, 1994 for carrying out the ultrasound tests.
15. Section 3 under Chapter II of the PC & PNDT Act, 1994 provides for regulation of Genetic Counseling Centers, Genetic Laboratories and Genetic clinics. Sub-section (1) of Section 3 provides that no Genetic Counseling Center, Genetic Laboratory or Genetic Clinic, unless registered under this Act shall conduct or associate with or hold in conducting activities relating to prenatal diagnostic techniques. Subsection (2) prohibits the employment whether on honorary basis or on payment of any person in such centers and clinics, who do not possess the qualifications as may be prescribed; and sub-section (3), prohibits the medical geneticist, gynecologist pediatrician, registered medical practitioner or any other person to conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at place other than a place registered under the Act.
16. Rule 3 of the PNDT Rules, 1996 prescribes the qualifications of the employees, the requirement of equipment etc. for a Genetic Counseling Center, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Center. The qualifications prescribed in sub-rule (1) provides that qualification both of the person and the employee under
(i) to be a gynecologist or a pediatrician having six months experience or four weeks training in genetic counseling; or
(ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counseling in a center, which may be registered as genetic center. The relevant sub-rule (2) provides that any person having adequate space and being or employing (i) a Medical Geneticist and (ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in conducting appropriate prenatal diagnostic techniques, tests or procedures, may set up a genetic laboratory.
17. The petitioners are not gynecologist or pediatrician and they do not have any qualification in genetic counseling; they are not medical geneticist having any qualification as medical geneticist. They would thus, at best, fall under Rule 3 (3).
18. A Sonologist, imaging specialist, or Radiologist or Registered Medical Practitioner who has Post Graduate degree or diploma or six months training for one year’s experience in sonography or imaging scanning can only perform the ultrasound tests, in genetic clinic, ultrasound clinic and imaging center, registered under Rule 3 (2). The registered medical practitioner is defined under Section 2 (m) of the PC & PNDT Act, 1994. The definition provides that such a registered medical practitioner means medical practitioner, who possesses any recognized medical qualifications as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956, and whose name has been entered in State Medical Register.
19. The petitioners are not medical practitioners having recognized medical qualifications under clause (h) of Section 2 of the Indian Medical Council Act, 1956; and they are not entered in the State Medical Register. They are qualified differently under the Homeopathic Medicine Central Council Act and the Indian Medicine Central Council Act, 1971. The petitioners are thus not qualified and eligible to run an ultrasound center/ clinic, and they could not be registered by the Chief Medical Officer, for carrying out ultrasound tests/ sonography. They were not entitled and were wrongly allowed registration by Chief Medical Officer under the PC & PNDT Act, 1994.
20. The registration of a person under the PC PNDT Act, 1994, if he is not qualified and eligible under the Act for such registration, will not give him any right to continue and to seek renewal in contravention of the provisions of the Act. The plea of estoppel is not applicable against a clear statutory prohibition. The public purpose for enacting PC PNDT Act, 1994 also does not give any right to the petitioners to claim to continue to run the ultrasound center/ clinic on the basis of registration, which could not be given under the Act. All the petitioners were given show cause notices on the directions of the Chairman, State Competent Authority, Director General U.P. dated 5.8.2008 and the District Magistrate dated 11.8.2008, and that their registrations were canceled by the Chief Medical Officer, Siddharth nagar by a reasoned order.
21. The ultrasound tests are conducted by the ultrasound machine, imaging machine or scanner as non-invasive tests for diagnosis. The technology is useful in the modern medicine for diagnosis and for treatment of the deceases. The technology has advanced gradually and can also be used for determining sex of the child in foetus. The social conditions prevailing in India, in which a girl child is seen as a burden on the family has led to abortion of female foetus in millions of cases. The use of modern technology in determining sex and the sex selection by the families in India, in last decade alone has led to reducing the ratio from 976 female born to every 1000 males in 1961; 964 in 1971; 962 in 1981, 945 in 1991 and 927 in 2001. The decline may look to be a small in a country with 1.2 billion people; the difference, however, translates into millions of fewer females in the population.
22. The statistics collected from Census 2001 of the ratio of female/ male population in four states; and a study carried out in Delhi hospitals, of sex selection is quoted below to prove the point:-
Child Sex Ratio (0-6 years) Female/ Male
State 1991 2001
Punjab 875/1000 793/1000
Haryana 879/1000 820/1000
Gujarat 928/1000 878/1000
Maharashtra 946/1000 917/1000
Source Census 2001 (45 Districts out of 600 have sex ratio below 845).
Sex Ratio/ Birth in a study carried out by Joe Verghese in Delhi Hospitals F/M
925/1000 First Born 959/1000
731/1000 Second Born 542/1000
407/1000 Third Born 219/1000
In the Census 2011 the ratio of female/ male population in the country has improved from 933/1000 to 940/1000 but alarmingly the Child Sex Ratio (0-6 years) has come down from 927/1000 to 914/1000. The difference in the sex ratio and the child sex ratio works out to millions of fewer female children in the population.
23. The horrible acts of crime committed by unethical persons in readily aborting female fetuses, of which sex is determined by the modern techniques, gave rise to the need of statutory regulations of prohibition on sex determination and sex selection by pre-conception and prenatal diagnostic techniques. The regulation provided by the PC & PNDT Act, 1994 for carrying out these tests only by qualified medical personnel and for registration of the genetic counseling center, genetic clinic, genetic laboratory and ultrasound centers, was found necessary in public interest. The abortions are not entirely illegal in our country, and are regulated by the Medical Termination of Pregnancy Act, 1971. The loose terms such as contraceptive failure, have led to frequent medical termination of pregnancy by qualified doctors. The PNDT Act, 1994 was amended by including pre-conception techniques including sex selection also within its ambit. In Center for Equiry Into Health and Allied Themes (Cehat) & Ors. Vs. Union of India (UOI) & Ors., (2003) 8 SCC 398 the Supreme Court emphasized the need for effective implementation of the Act and gave directions, which are being monitored, for publication by way of advertisement as well as by electronic media, submission of quarterly reports, maintenance of records by appropriate authorities and the meetings of Advisory Committees. The Supreme Court activated the National Monitoring and Inspection Committee for conducting periodic inspections and for constitution of State Supervisory Boards to implement PC & PNDT Act, 1994.
24. In M/s Malpani Infertility Clinic Pvt. Ltd. & Ors. Vs. Appropriate Authority PNDT Act ; Ors., Writ Petition No.5295 of 2003 the Bombay High Court by judgment dated 17th September, 2004 repelled the challenge to the PC &PNDT Act, 1994, in an action initiating prosecution and the order of suspension of the registration under the Act of persons carrying out the tests illegally.
25. In Dr. Varsha Gautam Vs. State of U.P. & Ors., Criminal Misc. Writ Petition No.5086 of 2006 decided on 26.5.2006 this Court dismissed a writ petition challenging the first information report and for stay of arrest in a matter in which defense was taken that Section 28 of the Act provides cognizance of any offense except on a complaint made by concerned appropriate authority. It was held that prohibition does not apply at the stage of investigation. It relates to the stage when cognizance is sought to be taken and further that there is difference between an attempt to commit an offense, and the preparation to do so. It was held that the attempt once began and criminal act done in pursuance to it, towards commission of the act attempted, does not cease to be a criminal attempt because the person committing the offense does or may repent before the attempt is completed.
Section 3A of the PC- PNDT Act prohibits sex selection, which has been given a wide meaning and that restriction is on every person including a specialist on conducting or even causing to be conducted or aiding in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, fluid or gametes derived from either or both of them. The conducting of sex selection oneself or by aiding another person to engage in sex selection has been brought within the purview of Section 3-A of the Act. Sex determination includes not only determination of the sex, but also includes anything done from fertilization until birth, which increases the probability that the embryo will be of a particular sex. The sex selection, therefore, cannot only be confined to the determination of the sex of the foetus. The Court did not agree that attempt to commit an offense of sex selection would become non-cognizable in view of the last clause of Schedule-1 of the Code of Criminal Procedure. The special provision in the Act would prevail over the general provision in view of Section 5 of the Code of Criminal Procedure.
