Court has no hesitation to observe that for ensuring
effective implementation of the aforesaid provisions strict
compliance of the aforesaid provisions needs to be made.
Thumb impressions need to be attested as it involves
identification of pregnant women. The declaration form
needs to be signed by the doctor conducting procedure
also as the things are required to be explained to
pregnant woman by the doctor. Referral slips need to be
maintained and preserved and unless it is self referred
case the person conducting processes and the persons
who own the Centre need to insist for production of
referral slip and if it not done it needs to be presumed
that there is contravention of the provisions. Blank pages
of forms cannot be kept in the book as it gives opportunity
for creation of record subsequently. If record is not
created and maintained as per aforesaid provisions, the
Court has to go with the presumption that there is
contravention of the provisions and the offence is
committed unless the accused rebuts the presumption. In
view of the facts of both the cases this Court has no
hesitation to hold that the Magistrate has not committed
error in ordering issuance of process. Thus there is no
possibility of quashing of the proceedings filed against the
applicants. As the offence is committed, there is no
question of release of sonography machine in the first
case. It is up to the authority to take decision on the
permission given for the use of the machine and unless
there is permission, the accused cannot be allowed to get
the custody of the machine. It is open to the authority to
make appropriate order in that regard.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.680 of 2012
Dr. Prabhakar s/o Ganpatrao Tawshikar
Versus
The State of Maharashtra
CORAM: T.V. NALAWADE, J.
DATE : 5th NOVEMBER 2014
Citation;2014(4)BOMCR(CRI)700
1) The first proceeding is filed under Section 482
of the Code of Criminal Procedure and under Article 227
of the Constitution of India. Relief to set aside the order of
issue process made in Regular Criminal Case No.73/2011
is claimed and the relief of quashing of the proceeding
filed as a complaint by the public servant, authority under
the provisions of the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 (hereinafter referred to as “the Act”) is claimed. The
proceeding is pending before the Judicial Magistrate, First
Class, Omerga, District Osmanabad and it is filed under
sections 23, 25, 29 of the Act and under Rule 9(4), (6) and
(8) of the The Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996
(hereafter referred to as “the Rules”). Criminal Revision
Application No.9/2011 was filed against the order of issue
process by the petitioners in Sessions Court but the
revision is dismissed by the Sessions Court and so that
decision is also challenged. Relief of getting custody of
sonography machine seized by the authority is also
claimed as a consequential relief. No interim custody was
claimed before the Judicial Magistrate by the petitioners.
Both the sides are heard.
2) Petitioner No.1 owns and runs one hospital at
Omerga and the petitioner No.2 works as a Radiologist in
the hospital. The hospital has a registered sonography
centre. On 19-6-2011 the authority created under the Act
visited the hospital for inspection and the sonography
center was also visited and inspection was done. After
finding discrepancies and irregularities in the record
which is required to be prepared and maintained in
Sonography Centre, the sonography machine came to be
seized. Complaint then came to be filed for the aforesaid
offences.
3) It is the case of the complainant that Forms “F”
which are required to be prepared and maintained by the
Sonography Centre were not complete. It is contended
that consent forms which are required to be obtained
from the pregnant women were also not complete. It is
contended that even when no pregnant woman was
subjected to diagnosis by the hospital, when there was no
record of reference, sonography of many pregnant
women was done at this centre. It is contended that Dr.
Prabhakar Tawshikar who was in-charge of the hospital
had not referred the patient and he denied that patients
were referred by him to the centre. On many forms his
name was mentioned as the doctor who had referred the
patient. Some forms were found blank and they were not
having paging number. More particulars of the
irregularities and discrepancies are given in the affidavit
filed by the complainant in reply to the present
proceeding.
4) In reply it is contended by the authority that in
Forms "F" which are at Sr. Nos.1 to 74, the name of the
doctor who referred the patient to the centre was
subsequently added as the record collected was virtually
filled subsequently and different ink was used. It is
contended that column 13 of Form "F" was not complete
and the centre ought to have mentioned that this column
was not applicable if it was not applicable. It is contended
that column Nos.5 and 6 were not filled. It is contended
that in the forms at Sr. Nos.1 to 75 column Nos.14 and 19
were not filled. Model form dully filled, is attached with
the affidavit by the complainant. It is specifically
contended that the form Nos.75 to 408 were filled without
examining the patients in the hospital. It is contended that
in respect of Form Nos.75 to 408 there were no referral
slips. It is contended that computerized record of the
patients shown in Form "F" at Sr. Nos.1 to 75 were not
authenticated by the doctor when such authentication
needs to be done as per the rules. It is contended that
consent form No.153 which is in respect of the period 17-
1-2011 to 30-1-2011 is blank. It is contended that consent
form at Sr. Nos.154 bears thumb impression but the
thumb impression is not attested. This Court has seen the
copy of form which needs to be supplied to the patient
which is at Sr. No.154 in respect of Usha Pahune. It is still
present in the form book and it was not supplied to the
patient as required by law. It is contended that thumb
impression of Mangal Pujari, patient from Form No.194 is
also not attested. It is contended that similarly thumb
impressions appearing on Form "F" at Sr. No.11 and 71
which are for the period from 1-4-2011 to 18-6-2011 are
not attested. Similar contentions are made in respect of
forms at Sr. Nos.8, 16, 18, 21, 22, 25, 28, 33, 38 and 45
and they are in respect of the period from 2-1-2011 to 17-
1-2011.
5) It is the case of the complainant that attestation
is compulsory as form needs to be complete in every
respect. There is allegation in respect of Form No.60
which is for the period from 1-4-2011 to 18-6-2011 that it
does not bear date. It is the contention of the complainant
that column Nos.12, 14, 15, 17 to 19 need to be filled as
they involve future outcome, the result of diagnosis.
6) It is the case of the petitioners that no show
cause notice was issued under section 20 of the Act and as
no opportunity was given to explain the things, the
complaint could not have been filed. It is contended that
the order of issue process is not reasoned order and on
that ground also it is liable to be set aside. It is contended
that the petitioners have complied with the provisions of
the Act and the Rules and no form was incomplete. It is
contended that the centre was used as sonography centre
only and no invasive procedure was involved and so other
columns of the relevant forms were not filled. It is
contended that there was no specific direction from the
authority to attest the thumb impressions. It is contended
that as the record was computerized there was no
signature of the doctor and so on some forms there was no
such signature. It is contended that the sonography centre
was under the roof of one hospital and both these
institutions were being run by the members of the same
family and so referral slips were not maintained. It is
denied that Dr. Tawshikar had denied that he had referred
the patients to the sonography centre. It is contended
that due to over sight there were some blank pages of
consent forms and that does not amount to commission of
offence.
7) It is the case of the petitioners that as the
registration of the centre cannot be cancelled without
giving notice under section 20 of the Act, the prosecution
could not have been launched without giving such notice
and without seeking explanation. It is the contention that
the complainant himself was trapped subsequently in a
corruption case and his action was mala fide and there is
professional rivalry behind the complaint. It is also
contended that subsequent to the inspection, new Form
"F" was created with effect from 1-1-2014 and separate
portion like portion C is created for invasive procedure
and that shows that other columns of Form "F" need not
be filled by the Sonography Centre, Ultra Sound Clinic.
8) This Court has gone through the original
record of the forms and register. The contentions made in
the complaint and the reply given by the complainant in
this proceeding are apparently correct and there are such
discrepancies in the record.
9) The second proceeding is filed under provision
of Section 482 of the Code of Criminal Procedure for
quashing of the proceeding bearing Regular Criminal
Case No.573/2012 filed by the authority under the Act for
offences punishable under section 23,25 and 29 of the Act
and the relief of setting aside the order of issue process
made by the learned Judicial Magistrate First Class is also
claimed. Criminal Revision No.8/2013 was filed by the
applicant to challenge the order of issue process in
Sessions Court Latur and the revision is dismissed. Said
decision is also challenged in the present proceeding.
10) In Regular Criminal Case No.573/2012 it is
contended by the authority that accused – Dr. Smt. Kamla
owns Toshniwal Hospital at Latur and there she has the
sonography centre. Information was received by the
authority that some record was burnt by the hospital and
then the authority paid visit to the centre on 14-6-2012.
The authority found discrepancies in the record like Form
"F". Form dated 7-6-2012 was not signed by the doctor.
There was over writing on the dates mentioned in the
Form "F" at Sr. Nos.42, 45, 110, 113, 114 and 117 and the
consent forms and declarations were not complete and
many columns were kept blank. The declarations were
also not bearing signatures of the doctor. In the affidavit
filed by the complainant, particulars regarding
contraventions of the provisions of the Act are given. It is
contended that, information was received that one illegal
abortion was caused as the lady who was having three
daughters had again conceived and she was having
female foetus. The case of termination of pregnancy is
also registered against this accused / applicant. In this
case submissions were made which were similar to the
submissions made in the first proceeding and it was also
submitted that on consent forms, declarations, the doctor
had signed but those forms were handed over to the
pregnant women and only on the forms which remained
with the centre the doctor did not sign due to over sight.
The argument was advanced that till 5th day of next month
report needs to be sent to the authority and so there was
some time with the accused but before that, action was
taken. This Court has perused copies of aforesaid forms
and record. The record shows that there is substance in
the contentions made by the authority. There is one more
additional circumstance like detection of case of illegal
abortion against this accused.
11) The submissions made by the learned counsel
for the petitioners that in such case prosecution cannot be
launched without issuing notice under section 20 of the
Act is not at all acceptable.
12) This Court has carefully gone through the
scheme of the Act. The provisions of Sections 18 to 20 are
for different purpose and they relate to exercise of the
powers by the authority to issue registration certificate or
to cancel registration certificate. The power to inspect
Ultra Sound Clinic is given under section 30 to the
Appropriate Authority and it is a separate power. Action
like the present action is taken by exercising the power
under section 30 of the Act and under Rule 12 of the
Rules. These provisions do not show necessity of issuing
notice under section 20 of the Act. This Court holds that
there was no need of issuing notice under section 20 of
the Act before launching of the prosecution for the
aforesaid offences.
13) For ascertaining as to which record needs to be
created and maintained and which columns of the form
need to be filled by the owner of the Ultra Sound Clinic
and by the persons conducting the procedure, the relevant
provisions of the Act and the Rules need to be seen. The
relevant provisions of the Act are Section 2(d), (i), (k),
Sections 4 and 5. they are as under :-
“2. Definitions.-- In this Act, unless the context
otherwise requires, –
(d) “Genetic Clinic” means a clinic, institute,
hospital, nursing home or any place, by whatever
name called, which is used for conducting pre-natal
diagnostic procedures.
Explanation.-- For the purposes of this clause,
“Genetic Clinic” includes a vehicle, where
ultrasound machine or imaging machine or scanner
or other equipment capable of determining sex of
the foetus or a portable equipment which has the
potential for detection of sex during pregnancy or
selection of sex before conception, is used.”
“(i) “pre-natal diagnostic procedures” means all
gyneacological 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.”
“(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.”
“4. Regulation of pre-natal diagnostic
techniques.-- On and from the commencement of
this Act--
(1) no place including a registered Genetic
Counselling Centre or Genetic Laboratory or
Genetic Clinic shall be used or caused to be used
by any person for conducting pre-natal diagnostic
techniques except for the purposes specified in
clause (2) and after satisfying any of the conditions
specified in clause (3);
(2) no pre-natal diagnostic techniques shall be
conducted except for the purposes of detection of
any of the following abnormalities, namely:-
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) heamoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as
may be specified by the Central
Supervisory Board;
(3) no pre-natal diagnostic technique shall be
used or conducted unless the person qualified to
do so is satisfied for reasons to be recorded in
writing that any of the following conditions are
fulfilled, namely:-
(i) age of the pregnant woman is above
thirty-five years;
(ii) the pregnant woman has undergone two
or more spontaneous abortions or foetal
loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as, drugs,
radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a
family history of mental retardation or physical
deformities such as, spasticity or any other genetic
disease;
(v) any other condition as may be specified by
the Board:
Provided that the person conducting
ultrasonography on a pregnant woman shall keep
complete record thereof in the clinic in such
manner, as may be prescribed, and any deficiency
or inaccuracy found therein shall amount to
contravention of provisions of section 5 or section
6 unless contrary is proved by the person
conducting such ultrasonography;
(4) no person including a relative or husband of
the pregnant woman shall seek or encourage the
conduct of any pre-natal diagnostic techniques on
her except for the purposes specified in clause
(2);
(5) no person including a relative or
husband of a woman shall seek or encourage the
conduct of any sex-selection technique on her or
him or both.”
“5. Written consent of pregnant woman and
prohibition of communicating the sex of foetus.--
(1) No person referred to in clause (2) of section
3 shall conduct the pre-natal diagnostic
procedures unless--
(a) he has explained all known side and after
effects of such procedures to the pregnant
woman concerned;
(b) he has obtained in the prescribed form her
written consent to undergo such procedures in the
language which she understands; and
(c) a copy of her written consent obtained under
clause (b) is given to the pregnant woman.
(2) No person including the person conducting
pre-natal diagnostic procedures shall communicate
to the pregnant woman concerned or her relatives
or any other person the sex of the foetus by words,
signs, or in any other manner.”
14) The learned counsel for petitioner No.2 of first
proceeding submitted that as he is not the owner of the
ultrasound clinic, the provisions with regard to creation
and maintenance of the aforesaid record cannot be used
against him. For considering this defence, the aforesaid
provisions [viz. section 5(1)(a)] and some more rules need
to be considered. In rule 2(b) of the Rules, definition of
“employee” is given as under :-
“(b) “employee” means a person working in or
employed by a Genetic Counseling Centre, a Genetic
Laboratory or a Genetic Clinic or an Ultra Sound
Clinic or Imaging Centre, and includes those working
on part-time, contractual, consultancy, honorary or
on any other basis.”.
In rule 4 nature of undertaking required to be given
by the person applying for registration is given. Reading
of this rule shows that such certificate is to be used only
as per the contents of the certificate. Rule 9 provides for
maintenance and preservation of record in respect of
persons who come for diagnosis and this record is to be
created to enable to identify the person who had come to
the centre for sonography. Rule 9(4) shows that Form "F"
need to be filled and it runs as under :-
“9. Maintenance and preservation of records.--
(4) The record to be maintained by every Genetic
Clinic including a Mobile Genetic Clinic, in respect
of each man or woman subjected to any pre-natal
diagnostic procedure/technique/test, shall be as
specified in Form F.”
Rule 9 (6) runs as under :--
“(6) All case-related records, forms of consent,
laboratory results, microscopic pictures,
sonographic plates or slides, recommendations and
letters shall be preserved by the Genetic
Counselling Centre, Genetic Laboratory or Genetic
Clinic, Ultra Sound Clinic or Imaging Centre for a
period of two years from the date of completion of
counselling, pre-natal diagnostic procedure or prenatal
diagnostic test, as the case may be. In the
event of any legal proceedings, the records shall be
preserved till the final disposal of legal proceedings,
or till the expiry of the said period of two years,
whichever is later.”
Rule 9 (8) runs as under :-
“(8) Every Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and
Imaging Centres shall send a complete report in
respect of all pre-conception or pregnancy related
procedures / techniques / tests conducted by them
in respect of each month by 5th day of the following
month to the concerned Appropriate Authority.”
15) Submission was made that record can be
created before 5th of next month as report needs to be
sent during this period and so there was time to correct
the things. In view of the aforesaid sections and rules the
record needs to be created immediately at Ultra Sound
Clinic and it needs to be completed before leaving of the
patient with the report regarding diagnosis though report
to authority needs to be sent before 5th of next month.
Thus, the provision of Rule 9(8) of the Rules cannot be
used as the defence in such a case.
16) Another submission is made that as
computerized record was maintained, rule 9 (7) needs to
be used. This rule shows that when there is computerized
record, printed copy is to be taken and preserved after
authentication by the person responsible for such record.
Such authentication and signature are missing.
17) Rule 10(1) and 10(1-A) are as under :-
“10. Conditions for conducting pre-natal
diagnostic procedure.-- (1) Before conducting
preimplanatation genetic diagnosis, or any prenatal
diagnostic technique/test/procedure such as
amniocentesis, chorionic villi biopsy, foetoscopy,
foetal skin or organ biopsy or cordocentesis, a
written consent, as specified in Form G, in a
language the person undergoing such procedure
understands, shall be obtained from her/him.
“(10-A) Any person conducting ultrasonography/
image scanning on a pregnant woman shall give a
declaration on each report on ultrasonography /
image scanning that he/she has neither detected
nor disclosed the sex of foetus of the pregnant
woman to any body. The pregnant woman shall
before undergoing ultrsonography/ image scanning
declare that she does not want to know the sex of
her foetus.”
18) These two rules show that declaration form
needs to be obtained if pre-natal diagnostic technique,
procedure is to be conducted. The taking of such
declaration is necessary when there is no invasive
procedure. In the present case Form "F" is shown to be
prepared by accused as per section 4(3) and rule 9(4) and
Rule 10(1-A). In this form there is no printed declaration
of pregnant woman as required by Rule 10(1-A). It
appears that separate declaration and consent form which
is also titled as Form "F" is maintained. A book of the form
is seen by this Court. Even if this record is considered and
accepted as annexure to the Form "F" maintained in the
register, they need to be complete in every respect
including for the purpose of declaration. Under the law,
such declaration needs to be made in Form "F" itself.
19) The wording of section 5 shows the procedure
that needs to be followed for conducting of pre-natal
diagnosis. However in section 5(1)(b) the term
“prescribed" is used in respect of consent form of
pregnant woman. In rule 10 and in Form "G" prepared
under rule 10 it is made clear that this form is applicable
to invasive techniques. In view of clause (c) of section 5 it
needs to be presumed that written consent of pregnant
woman is necessary when invasive procedure needs to be
used. When no invasive procedure is to be used and
when it is to be done without invasive procedure by
using ultra sound machine, only declaration as required
in rule 10(1-A) as mentioned in Form "F" of section 4(3)
needs to be obtained from the pregnant woman.
Submissions made in this regard by the learned counsel
need to be accepted. However, the record needs to be
seen to ascertain as to whether at least the declaration
was complete as per the requirement. These provisions
also show that person using the procedure needs to give
declaration and so he is also involved in creation and
maintenance of record.
20) For interpretation of the provisions of the Act
and the Rules, learned counsel for the petitioners has
placed reliance on following four cases decided by this
Court (Aurangabad Bench) :--
(1) Criminal Writ Petition No.232/2012 (Satyaprem v.
the State of Maharashtra), decided on 11th
September 2014;
(2) Criminal Application No.3500/2011 (Dr. Alka Gite v.
The State of Maharashtra), decided on 11th May
2012;
(3) Criminal Application No.3044/2012 (Dr. Pratidnya
Jayesh Shinde v. Appropriate Authority), decided on
4
th December 2013; and,
(4) Criminal Application No.2065/2012 (Dr. Pradip
Prabhuappa Dama v. The State of Maharashtra),
decided on 28th January 2014.
21) In the first case, the Court considered Form “F”
which needs to be used from 31st January 2014 and
observed that there are separate requirements in respect
of maintenance of record for Ultrasound Clinic not using
invasive technique and genetic test using invasive
procedure. The Court further found that the allegations
were very vague in nature and gave relief to the accused.
In the second case there were referral letters. This Court
held that flimsy mistakes can be ignored and relief was
given to the accused in the second case also. In the third
case there was allegation that the record was not
properly maintained. As the allegations were found
baseless, relief was given to the accused. In the last case,
this Court held that there was no allegation against
the applicant and the shortcoming or deficiency in
maintaining the record could not be attributed to him.
This Court is avoiding to discuss more the reasons
given. The relevant provisions which are quoted above,
were not considered and discussed.
22) For the State, the learned Additional Public
Prosecutor has placed reliance on the following cases :--
(1) 2013(2) Bom. C.R. 351 (Sujit Govind Dange v. State
of Maharashtra);
(2) 2009 Cri.L.J. 721 (Suo Motu v. State of Gujarat);
(3) Criminal Application No.4513/2012 (Dr. Harsha
Patil v. The State of Maharashtra) decided by this
Court (Aurangabad Bench) on 4th December 2013;
(4) 2011 (4) Bom. C.R. 293 (Suhasini Umesh Karanjkar
v. Kolhapur Municipal Corporation);
(5) Criminal Application No.3966/2013 (Dr. Nirmala
Bajaj v. The State of Maharashtra), decided by this
Court (Aurangabad Bench) on 9th Mary 2014; and,
(6) Criminal Writ Petition No.5 of 2013 (Dr. Vinayak
Khedkar v. The State of Maharashtra), decided by
this Court (Aurangabad Bench) on 9th May 2014.
23) In the first case, the Division Bench of this
Court has discussed the provisions of sections 4,5,6 and
20 of the Act and it is laid own that if there is deficiency or
inaccuracy in the record, that amounts to contravention of
sections 5 and 6 unless contrary is proved by the doctor /
person conducting ultrasonography. Thus the defence of
the accused in such case can be considered during trial.
The Court has made it clear that the Act does not
distinguish discrepancy as minor or major and in view of
the object behind the provisions they need to be strictly
complied with. In the second case, the Full Bench of
Gujarat High Court has made similar observations and has
laid down that such defence can be considered only
during trial. In the fourth case the Full Bench of the
Bombay High Court at paragraphs 14 and 24 has made
similar observations. It is made clear by the Full Bench
that if there is contravention in respect of maintenance of
record and the persons conducting the process do not
maintain necessary record complete in every respect that
contravention amounts to offence. Though different point
was involved in the matter pending before the Full Bench,
the relevant provisions are discussed by the Full Bench
even from the angle of commission of offence. In the last
two proceedings, this Court refused to quash the
proceeding by relying on the observations made by the
Division Bench of this Court and the Full Bench of the
Gujarat High Court, cited supra.
24) While interpreting the provisions and
considering the prayers made in the proceedings like
present one, the object behind the special legislature
needs to be kept in mind. The object is to prohibit use of
pre-natal diagnostic techniques for determination of sex
of the foetus leading to female foeticide. Pre-natal
diagnostics techniques like sonography are useful for
detection of sex. They can be used also for detecting
disorders in the foetus. In view of the possibility of use of
this technique for determination of sex and then for
termination of pregnancy of unborn child, the aforesaid
provisions are made. Sale of ultrasound machines to
persons not registered under the Act (rule 3-A of the
Rules) is prohibited. The study made by Population
Research Centre Pune (PRC) shows that most of the
bodies like Genetic Counseling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic, Imaging
Centre are registered in Maharashtra and there are
maximum number of sonography Centers in Maharashtra.
More than 60% of such bodies are ultrasound clinics. The
studies have revealed that the pre-natal diagnostic
techniques are easily available in sonography centres for
sex determination. The cases registered in Maharashtra
show that these centers are being misused. Due to misuse
of the centres the sex ratio has come down alarmingly in
Marathwada region and by the end of year 2012 the ratio
of female child birth had got down below 800 in most of
the Districts of Marathwada. Only when the authority
started making inspection and the cases were registered
for causing illegal abortion, the female birth ratio
improved and it has now crossed 900 in this region.
25) When there is object like the object behind the
present Act, the provisions need to be strictly
implemented. It can be said that no sufficient powers are
with the authority and powers need to be given to the
authority to do sample checking of such cases to ascertain
as to whether pregnant woman opted to undergo abortion
and then, the Act will become more effective.
26) In view of the discussion made above, this
Court has no hesitation to observe that for ensuring
effective implementation of the aforesaid provisions strict
compliance of the aforesaid provisions needs to be made.
Thumb impressions need to be attested as it involves
identification of pregnant women. The declaration form
needs to be signed by the doctor conducting procedure
also as the things are required to be explained to
pregnant woman by the doctor. Referral slips need to be
maintained and preserved and unless it is self referred
case the person conducting processes and the persons
who own the Centre need to insist for production of
referral slip and if it not done it needs to be presumed
that there is contravention of the provisions. Blank pages
of forms cannot be kept in the book as it gives opportunity
for creation of record subsequently. If record is not
created and maintained as per aforesaid provisions, the
Court has to go with the presumption that there is
contravention of the provisions and the offence is
committed unless the accused rebuts the presumption. In
view of the facts of both the cases this Court has no
hesitation to hold that the Magistrate has not committed
error in ordering issuance of process. Thus there is no
possibility of quashing of the proceedings filed against the
applicants. As the offence is committed, there is no
question of release of sonography machine in the first
case. It is up to the authority to take decision on the
permission given for the use of the machine and unless
there is permission, the accused cannot be allowed to get
the custody of the machine. It is open to the authority to
make appropriate order in that regard.
27) In the result, both the proceedings stand
dismissed.
Sd/-
(T.V. NALAWADE, J. )
No comments:
Post a Comment