Hon'ble Division Bench in the case of "Sujit
Govind Dange", mentioned above, there remains no
doubt that deficiencies or inaccuracies in the
maintaining of record and Form F attract the
provisions of Section 5 or 6 of the Act. I am
bound by the Judgment of the Division Bench of
this Court.
16. When the complaint has been filed under
this Act showing the inaccuracies and deficiencies
in the keeping of record, and complainant has
documents to support disclosing sufficient grounds
to proceed in the light of provisions of this Act
and Rules, this Court cannot, before holding of the
trial, sit in Judgment whether or not the Record
has been kept properly; or Form F concerned has
been properly filled or improperly filled; or
whether or not the deficiencies pointed out are
serious or insignificant. When complaint has been
filed pointing out deficiencies or inaccuracies,
before trial it would not be proper for this Court
to consider the arguments that what is pointed out
is no deficiency or no inaccuracy. It would be
prejudging the matter. As per Proviso of Section
4(3) "any" deficiency or inaccuracy in keeping of
complete record "shall amount to contravention" of
Section 5 or 6 "unless contrary is proved."
Naturally, the contrary can be "proved" only at
the trial. Appropriate Authority under the Act is
Public Servant acting in discharge of official
duty and has to act with responsibility. Keeping
in view the Judgments discussed above, in such
serious matters, it would be inappropriate to
interfere when prima facie case is made out.
17. It cannot be said, at present, that there
is no sufficient ground for proceeding. Keeping in
view Aims and Objects of the Act and Scheme of the
Act and Rules referred above and stringent and
specific provisions not tolerating any (meansany)
deficiency or inaccuracy in keeping complete
records, I am unable to accept the explanatory
arguments in defence or to invoke writ
jurisdiction, inherent power or revisional
jurisdiction to quash the proceedings at the
threshold when sufficient grounds to proceed are
made out in the complaint.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3966 OF 2013
Dr. Sau. Nirmala w/o Ramprasad Bajaj,
VERSUS
The State of Maharashtra,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 9TH MAY, 2014.
Citation:2016 ALLMR(CRI)1034
1. The present Petition has been filed to
quash complaint filed by Appropriate Authority
(hereafter referred as "complainant") under the
provisions of Preconception and Prenatal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (hereafter referred as "Act")
and the Preconception and Prenatal Diagnostic
Techniques (Prohibition of Sex Selection) Rules,
1996 (hereafter referred as "Rules").
2. The Petition is Admitted and has been
heard finally. Learned counsel for the Petitioner
as well as learned Public Prosecutor for the
Respondents submitted elaborate arguments. With
this matter some other similar matters were also
argued and Counsel for Petitioners adopted
arguments of each other on law points to request
for quashment of Criminal Trials against accused.
3. The case of the Petitioner is that the
Appropriate Authority Respondent No.2 along with
other officers had, on 6th October, 2010 carried
out inspection at the clinic of the Petitioner and
found certain deficiencies. The Respondent No.2
issued notice on 7th October, 2010 and in
response, the Petitioner did the necessary
compliances and informed vide letter dated 8th
October, 2010. Still the Respondent No.2 filed
complaint bearing R.C.C. No.174 of 2010 against
the Petitioner and others for offence under
Sections 3(2), 4(3), 29(1), 5(1), 3(3), 4(2), 6
and 3B of the Act. The Judicial Magistrate, First
Class, Majalgaon issued summons. Being aggrieved,
Criminal Revision No.28 of 2010 was filed before
the Additional Sessions Judge, Majalgaon but the
same was dismissed, hence the present Petition.
According to the Petitioner, she was not involved
in sex determination and the complaint does not
disclose that criminal offence was committed.
Various explanations are given regarding alleged
deficiencies. The Petitioner wants the complaint
to be quashed and set aside.
4. For the Respondents, affidavitinreply
has been filed by Respondent No.2. According to
the Respondent, at the time of inspection it was
found that the Petitioner was using unregistered
"Thoshbro Shimadzu" Sonography Machine. The
sonography tests were being carried out without
obtaining consent forms of the patient or pregnant
women in the language known to them and the
sonography tests were being done without
maintaining necessary records such as Form 'F',
and O.P.D. register, receipt books, charts,
report etc. In addition to present Petitioner,
complaint has been filed against Dr. Rajendra
Kalantri (Accused No.2), Dr. Anand Karnawat
(Accused No.3) and one Ravi Nandapurkar of Toshbro
Private Limited (Accused No.4). According to
Respondent No.2, as mentioned in affidavitinreply,
in the inspection it was found that Accused
No.2 was registered as radiologist, however the
sonography tests were being performed by Accused
No.3 who was not registered and such illegalities
were found in the hospital. For such reasons,
Respondent claims that the Petition deserves to be
rejected.
5. Learned counsel for the Petitioner
referred to the defects and submitted that the
complaint is that concerned Forms were not got
filled in. According to the counsel, vide letter
dated 8th October, 2010 (Exhibit C) the Petitioner
informed to the Authorities that the concerned
deficiencies had been removed. The deficiency
regarding non maintaining Form F in Marathi has
also been corrected, as the book of said Form has
been got printed. It was argued that steps were
taken to get the machine registered which was
being used. The argument is that there are no
allegations that the Petitioner disclosed gender
and thus, according to the counsel for Petitioner,
no offence was made out and there were minor non
compliances and errors which the Petitioner has
corrected.
6. After referring to the various provisions
of the Act, reference was made to the case of Dr.
Pratidnya Jayesh Shinde and another vs. Dr.
Rameshchandra Kisan Savkare and another, reported
in 2014 ALL M.R.(Cri) 681. In that matter,
proceeding was quashed as the complaint was silent
as to how responsibility of maintaining records
was cast upon the concerned Applicants as were
before the Court. Reliance is also placed on the
Judgment in the case of Dr. Alka w/o Anant Gite
and another vs. The State of Maharashtra in
Criminal Application No.3500 of 2011 decided on
11th May, 2012. Referring to that Judgment,
submission is that inadvertently if a column is
blank, it cannot attract offence. Relying on the
case of "Dr. Mrs. Uma Shankar Rachewad vs.
Appropriate Authority" Criminal Writ Petition No.
407 of 2011, decided on 19th April, 2012, it is
submitted that writing of "N.A." i.e. NonApplicable
does not amount to incomplete filling
of Form. Judgment in the case of Dr. Ravindra s/o
Shivappa Karmudi vs. The State of Maharashtra in
Criminal Application No.757 of 2012 decided on 3rd
May, 2012, was referred to submit that F Form was
incomplete does not mean criminal offence is
there. Reliance was also placed on the Judgment
in the matter of Dr. Tushar Rangrao Patil vs.
Appropriate Authority in Criminal Writ Petition
No.406 of 2011 decided on 2nd May, 2012. These are
matters decided by learned Single Judge of this
Court. The submission is that in those matters
also although there were defects in maintaining of
Form F, the Petitioners therein were given benefit
and the concerned cases against those Petitioners
were quashed. Thus it is argued that the Petition
needs to be allowed.
7. It has been argued by the Public
Prosecutor that the Petitioner vide reply dated
8th October, 2010 admitted that there were defects
and errors in maintenance of the record. The
learned Public Prosecutor submitted that perusal
of the complaint shows various non compliances of
the provisions of the law and there were many
deficiencies and defects noticed at the time of
inspection. It is submitted that the Petitioner
was using unregistered sonography machine
"Thoshbro Shimadzu", although the machine got
registered with the Authorities was "Toshiba
Shirmo24". Section 3B of the Act prohibits sale
of ultra sound machines to persons, laboratories,
clinics which are not registered and as per Rule
13, any change of equipment is required to be
informed to the Authorities. There are clear
violations of the provisions of the Acts and
Rules. The sonography tests were being carried out
without maintaining necessary records such as Form
F, and O.P.D. register, receipt books, charts
reports etc. It transpired that Accused No.2 was
registered Radiologist to carry out sonography
tests but in the inspection it was found that
Accused No.3 was carrying out the sonography
tests. Thus, according to the Public Prosecutor,
these are various acts of violation of the
provisions which has attracted the various
Sections mentioned above. The learned Public
Prosecutor submitted that no defect can be found
in the order of issue of summons passed by the
Magistrate and also the Judgment of revisional
Court rejecting the revision filed by the
Petitioner. According the learned Public
Prosecutor, the Petition deserves to be rejected.
8. To appreciate the controversy, it would
be appropriate to keep in view certain provisions
of the Act.
. Portions relevant from Section 4 of the
Act are as under:
"4. Regulation of prenatal
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 prenatal
diagnostic techniques except
for the purposes specified in clause
(2) and after satisfying any of the
conditions specified in clause (3);
(2) no prenatal diagnostic
techniques shall be conducted except
for the purposes of detection of any
of the following abnormalities,
namely:
(i) ........ (iv).........
(ii)........ (v)..........
(iii)....... (vi).........
(3) no prenatal diagnostic
techniques 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) ........ (ii).........
(iii) ........ (iv).........
(v) ........
Provided that the person conducting
ultra sonography 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 ultra
sonography;
(4).............
(5)............."
. With reference to the above proviso as
regards keeping of records, relevant portions of
Rule 9 are as under:
"9. Maintenance and preservation of
records. (1) Every Genetic
Counselling Centre, Genetic
Laboratory, Genetic Clinic including
a Mobile Genetic Clinic, Ultrasound
Clinic and Imaging Centres shall
maintain a register showing, in
serial order, the names and
addresses of the men or women given
genetic counselling, subjected to
prenatal diagnostic procedures or
prenatal diagnostic tests, the
names of their spouse or father and
the date on which they first
reported for such counselling,
procedure or test.
(2) The record to be maintained by
every Genetic Counselling Centre, in
respect of each woman counselled
shall be as specified in Form D.
(3) The record to be maintained by
every Genetic Laboratory, in respect
of each man or woman subjected to
any prenatal diagnostic
procedure/technique/test shall be as
specified in Form E,
(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
prenatal diagnostic procedure/
technique/test, shall be as
specified in Form F.
(5)..........
(6)..........
(7)..........
(8).........."
. In Rule 10 conditions for conducting prenatal
diagnostic procedures are prescribed, which
includes obtaining written consent as prescribed
in Form G in a language the person undergoing the
procedure understands.
Section 20 of the Act deals with
cancellation or suspension of the registration.
Subsection (1) and (2) deal with giving of notice
and reasonable opportunity before suspending or
cancelling registration of the Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic. Subsection
(3) of Section 20 reads as under:
"(3) Notwithstanding anything
contained in subsections (1) and
(2), if the Appropriate Authority is
of the opinion that it is necessary
or expedient so to do in the public
interest, it may, for reasons to be
recorded in writing, suspend the
registration of any Genetic
Counselling Centre, Genetic
Laboratory or Genetic Clinic without
issuing any such notice referred to
in subsection (1).”
9. The learned Public Prosecutor submitted
that the cases under the Act are treated as
warrant cases instituted otherwise than on police
report. It has been argued that major or minor
violation in the keeping of records is immaterial.
10. Scheme of the Act and Rules need to be
appreciated:
(A). Proviso below Section 4(3) of the Act
shows that persons conducting ultra sonography on
a pregnant woman are required to 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 of the Act
unless contrary is proved by the person conducting
such ultra sonography. Section 5 of the Act
relates to taking written consent of pregnant
woman and prohibition of communicating the sex of
foetus. Section 6 of the Act prohibits
determination of sex by Genetic Counselling Centre
or Genetic Laboratory or Genetic Clinic or any
person. Rule 9 relates to maintenance and
preservation of records and this interalia
includes keeping record in respect of each man or
woman subjected to any prenatal diagnostic
procedure/technique/test in specified Form F.
Although subrule (4) of Rule 9 refers to Genetic
Clinic, definition of "Genetic Clinic" as in
Section 2(d) of the Act specifies that Genetic
Clinic means a clinic, institute, hospital,
nursing home or any place, by whatever name
called, which is used for conducting prenatal
diagnostic procedures. Thus, all such places are
covered where prenatal diagnostic procedures are
being conducted and all persons doing the same are
also covered, and as per the statute, maintaining
of proper records and Form F as prescribed, is
mandatory.
(B). Section 5 requires taking written consent
of the pregnant woman and prohibits communication
of sex of foetus. In this regard Form G is
prescribed in Rule 10. (According to the Public
Prosecutor Section 5(2) of the Act prohibits
communicating of sex of the foetus by words,
signs, or in any other manner and thus according
to him displaying of even photographs of Gods and
Goddess where prenatal diagnostic procedures are
conducted, is not permissible, as the same gives
opportunity to convey sex of foetus by signs or in
other manners.)
(C). Section 23 of the Act shows that medical
geneticist, gynecologist, registered medical
practitioner or any person who owns a Genetic
Counselling Centre, a Genetic Laboratory or a
Genetic Clinic or is employed in such a Centre,
Laboratory or Clinic and renders his professional
or technical services to or at such a Centre,
Laboratory or Clinic, whether on an honorary basis
or otherwise, and who contravenes any of the
provisions of the Act or rules made thereunder is
also liable for punishment. Under Section 23 of
the Act, the owner of Centre, Laboratory, Clinic
who takes professional services to run the Centre
where prenatal diagnostic techniques are
conducted, is also liable, if any provisions of
the Act or Rules are contravened.
(D). Under Section 26 of the Act, with
reference to companies, the word "company" means
any body corporate and includes a firm and other
association of individuals and such persons are
also liable, when offences by Companies are there.
(E). In view of Section 3(3) of the Act, prenatal
diagnostic techniques can be conducted only
at place registered and any change has to be
reported. Under Rule 13 every change of employee,
place, address and equipment installed has to be
informed to the Appropriate Authority.
11. I have heard learned counsel for the
Petitioner as well as learned Public Prosecutor.
Record has been perused. The criminal case filed
by the Appropriate Authority in the lower Court
supported by documents shows the deficiencies and
inaccuracies found and necessary particulars are
there. Counsel for Petitioner has strenuously
tried to demonstrate that either the defects
alleged are not there or even if they are there,
they are insignificant. The Petitioner is trying
to give reasons as to how the Form was maintained
and if there are lacunae, what is the explanation.
12. The Full Bench of High Court of Gujarat
in Suo Motu vs. State of Gujarat, reported in 2009
CRI.L.J. 721, considered effects of non
maintaining records properly under this Act. It
was held that criminal consequences are attracted
and there can also be suspension of the
registration. Para 8 of the Judgment reads as
under:
"8. It needs to be noted that improper
maintenance of the record has also
consequences other than prosecution
for deemed violation of section 5 or
6. Section 20 of the Act provides for
cancellation or suspension of
registration of Genetic Counselling
Centre, Genetic Laboratory or Genetic
Clinic in case of breach of the
provisions of the Act or the Rules.
Therefore, inaccuracy or deficiency in
maintaining the prescribed record
shall also amount to violation of the
prohibition imposed by section 6
against the Genetic Councelling
Centre, Genetic Laboratory or Genetic
Clinic and expose such clinic to
proceedings under section 20 of the
Act. Where, by virtue of the deeming
provisions of the proviso to subsection
(3) of section 4,
contravention of the provisions of
section 5 or 6 is legally presumed
and actions are proposed to be taken
under section 20, the person
conducting ultrasonography on a
pregnant woman shall also have to be
given an opportunity to prove that the
provisions of section 5 or 6 were not
violated by him in conducting the
procedure"
.....................................
"It would also be improper and
premature to expect or allow the
person accused of inaccuracy or
deficiency in maintenance of the
relevant record to show or prove that
provisions of section 5 or 6 were not
violated by him, before the deficiency
or inaccuracy were established in
court by the prosecuting agency or
before the authority concerned in
other proceedings.”
. In that Judgment of Full Bench,
mentioned above, opinion (iv) recorded in
Para 9, is as under:
"(iv). Deficiency or inaccuracy in
filling Form F prescribed under Rule 9
of the Rules made under the PNDT Act,
being a deficiency or inaccuracy in
keeping record in the prescribed
manner, it is not a procedural lapse
but an independent offence amounting to
contravention of the provisions of
section 5 or 6 of the PNDT Act and has
to be treated and tried accordingly.
It does not, however, mean that each
inaccuracy or deficiency in maintaining
the requisite record may be as serious
as violation of the provisions of
section 5 or 6 of the Act and the Court
would be justified, while imposing
punishment upon conviction, in taking a
lenient view in cases of only
technical, formal or insignificant
lapses in filling up the forms. For
example, not maintaining the record of
conducting ultrasonography on a
pregnant woman at all or filling up
incorrect particulars may be taken in
all seriousness as if the provisions of
section 5 or 6 were violated, but
incomplete details of the full name and
address of the pregnant woman may be
treated leniently if her identity and
address were otherwise mentioned in a
manner sufficient to identify and trace
her.”
13. It is clear that it would be premature to
accept explanations regarding inaccuracies or
deficiencies before trial takes place. It is
further apparent that if the lapse is
insignificant, the benefit would go to the accused
at the time of sentence, but claiming that
deficiencies in Form F and keeping Records are
insignificant, cannot be reason to claim that no
offence is there and to discharge the accused.
14 (A). Reference needs to be made to the
case of Sujit Govind Dange (Dr.) and another vs.
State of Maharashtra and others, reported in
2013(2) Bom.C.R. 351. In that matter Division
Bench of this Court held that any deficiencies
noticed in maintaining the record, in specially
Form F, attracts the provisions of the Act.
(B). The Division Bench of this Court
considered the objects and reasons of the Act and
as to how the Act was necessary to control menace
of female foeticide. In Para 29, while considering
Section 4 of the Act, it was observed with
reference to Rule 9, as under:
"29. Considering the object of the
Act, the maintenance and preservation
of records as per rule 9 is an
important statutory duty cast upon the
person (Doctor) conducting ultra
sonography on a pregnant woman and,
therefore, any deficiency or
inaccuracy found in this regard
amounts to contravention of the
provisions of section 5 or 6 of the
Act unless contrary is proved by the
person (Doctor) conducting such ultra
sonography".
(C). In that matter also arguments were raised
that the discrepancies were minor in nature or
that they were only inaccuracies. The Hon'ble
Division Bench in Para 30 held as under:.
"30. It is important to note that in
order to prohibit abuse of these
prenatal diagnostic techniques, the
Legislature has incorporated a proviso
to subsection (3) of section 4 of the
Act which stipulates that any
deficiency or inaccuracy found in
maintaining and preserving complete
record in a manner prescribed by the
person conducting ultrasonography on a
pregnant woman shall amount to
contravention of the provisions of
section 5 or section 6 unless contrary
is proved by the person conducting
such ultrasonography. This provision,
in our view, is completely consistent
with the objectives of the Act and has
been introduced to prohibit abuse of
the prenatal diagnostic techniques by
the person conducting ultra sonography
on a pregnant woman".
......................................
"The contention of the petitioner that
the discrepancy was of a minor nature
is wholly misconceived. Neither the
provisions of the Act nor that of the
Rules provide or define minor or
major deficiencies or inaccuracies.
On the other hand, it requires strict
compliance of every provision of the
Act and the Rules. Considering the
objectives to be achieved, strict
punishment is provided for violating
the conditions prescribed under the
Act. The contentions canvassed by the
petitioner, in this regard, therefore,
are devoid of substance and are
rejected".
(D). With reference to Subsection (3) of
Section 20 of the Act, the Hon’ble Division Bench
recorded in Para 39, as under:
“The observations made by the
Division Bench in (Malpani
Infertility Clinic Pvt. Ltd. &
others Vs. Appropriate Authority
PNDT Act & others), reported in
2005(1) Bom.C.R. 595 (supra) clearly
show that the Division Bench in view
of the fact that prosecution was
launched against the petitioner in
the said case, it was held to be
sufficient reason for the
authorities to take recourse to subsection
(3) of Section 20 of the
Act. In the instant case, the
Petitioner having admitted the
existence of deficiency and
inaccuracy in keeping and
maintaining the record including
form ’F’ has resulted in
contravention of the provisions
contained in section 5 or 6 and,
therefore, would amount to an
offence and can be treated to be
sufficient reason for the
Appropriate Authority to invoke the
provisions of subsection (3) of
section 20 of the Act, in the larger
public interest and, therefore, the
action of suspension of registration
of the Genetic Centre of the
petitioner is sustainable in law
till such time contrary is proved by
the petitioner.”
(E). Para 38 of the Judgment of the Division
Bench recorded that:
"38. Rule 9(1) requires that every
Genetic Counselling Centre, Genetic
laboratory, Genetic Clinic, etc.,
shall maintain a register showing, in
serial order, the names and addresses
of the men or women given genetic
counselling, subjected to prenatal
diagnostic procedure or prenatal
diagnostic tests, the names of their
spouse or father and the date on which
they first reported for such
counselling, procedure or test. Subrule
(4) of rule 9 stipulates the
record to be maintained by every
Genetic Clinic, in respect of each man
or woman subjected to any prenatal
diagnostic procedure/technique/test,
shall be as specified in Form 'F'. In
the instant case, the petitioner has
admitted existence of discrepancies,
irregularities in maintenance of Form
'F' which has undoubtedly resulted in
causing deficiency or inaccuracy in
maintaining and preserving the record
and, therefore, as per proviso to subsection
(3) of section 4 of the Act,
resulted in contravention the provisions
of section 5 or 6 of the Act and would
amount to an offence, unless contrary is
proved by the petitioner who has conducted
such ultrasonography test."
15. Keeping in view the observations of the
Hon'ble Division Bench in the case of "Sujit
Govind Dange", mentioned above, there remains no
doubt that deficiencies or inaccuracies in the
maintaining of record and Form F attract the
provisions of Section 5 or 6 of the Act. I am
bound by the Judgment of the Division Bench of
this Court.
16. When the complaint has been filed under
this Act showing the inaccuracies and deficiencies
in the keeping of record, and complainant has
documents to support disclosing sufficient grounds
to proceed in the light of provisions of this Act
and Rules, this Court cannot, before holding of the
trial, sit in Judgment whether or not the Record
has been kept properly; or Form F concerned has
been properly filled or improperly filled; or
whether or not the deficiencies pointed out are
serious or insignificant. When complaint has been
filed pointing out deficiencies or inaccuracies,
before trial it would not be proper for this Court
to consider the arguments that what is pointed out
is no deficiency or no inaccuracy. It would be
prejudging the matter. As per Proviso of Section
4(3) "any" deficiency or inaccuracy in keeping of
complete record "shall amount to contravention" of
Section 5 or 6 "unless contrary is proved."
Naturally, the contrary can be "proved" only at
the trial. Appropriate Authority under the Act is
Public Servant acting in discharge of official
duty and has to act with responsibility. Keeping
in view the Judgments discussed above, in such
serious matters, it would be inappropriate to
interfere when prima facie case is made out.
17. It cannot be said, at present, that there
is no sufficient ground for proceeding. Keeping in
view Aims and Objects of the Act and Scheme of the
Act and Rules referred above and stringent and
specific provisions not tolerating any (meansany)
deficiency or inaccuracy in keeping complete
records, I am unable to accept the explanatory
arguments in defence or to invoke writ
jurisdiction, inherent power or revisional
jurisdiction to quash the proceedings at the
threshold when sufficient grounds to proceed are
made out in the complaint.
For reasons mentioned, arguments in
favour of State have substance, and submissions
for Petitioner to quash process or Complaint need
to be discarded. Defences being raised, can be
considered at the time of trial. The Petition
stands rejected.
[A.I.S. CHEEMA, J.]
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