nowhere the case of respondent No. 2 that, the petitioner has not maintained
the record as mandatorily required under the provisions of the said Act &
Rules thereunder. What has been alleged is certain omissions, mistakes or
lacunae on the part of petitioner in maintaining the record as envisaged under
the provisions of the said Act & Rules. The discrepancies as noted are mainly
refers to omission to mention full address, mobile number etc. of patients
underwent sonography. If we consider the over all discrepancies noted by the
Vigilance Committee, then same cannot be termed as act committed with
intention to violate the provisions of the said Act & Rules made thereunder. In
fact, there are no allegations against the petitioner that the discrepancies
noted were made with ulterior motive or with a view to suppress certain
information about patients or to misuse the ultrasonography machine for
determination of sex of foetus.
15. The petitioner has started ultrasonography centre in the year
2013. It is nowhere the case of the respondent No.2 that she has not
maintained the record. The allegations made against the petitioner that,
certain information which was to be recorded in the particular manner has not
been recorded. The omissions of a nature not to mention the mobile number
of the patient, full address of the patient with mobile number, difference in
signature of the Doctor & other inadvertent mistakes cannot be termed as a
discrepancy or act of inaccuracy amounting to violation of the Sections 4, 5 or
6 or 29 of the PCPNDT Act. The petitioner has offered satisfactory
explanation to each & every deficiency in Inspection Report.
Thus, if we read the provisions of sections 17, 17A and 28 of the
said Act together, then the role of the Appropriate Authority is very important.
The Appropriate Authority has to act as an investigator to inquire into the
allegations of violation of the PCPNDT Act and Rules thereunder either on the
basis of complaint received as well as to act suo motu. The role of the
Appropriate Authority is not just to receive the complaint and file the
proceeding in the Court of law. Section 17(4)(c) specifically provides that,
one of the function of the Appropriate Authority is to investigate the
complaints of breach of provisions of the act and the rules made thereunder
and take legal action. Section 17(4)(e) provides that, the Appropriate
Authority to take legal action against the use of any sex selection technique
by any person at any place, suo motu or brought to to its notice or also to
initiate independent investigation in such matter. Thus, to investigate the
complaints received against the persons violating the provisions of PCPNDT
Act is the job of Appropriate Authority. Outcome of such investigation
provides basis either to drop the proceeding or to initiate appropriate
proceeding which includes initiation of criminal prosecution by filing
complaint u/s 28 of PCPNDT Act. Mere report or complaint or information
received cannot be sole basis to prosecute the person. If the complaint is
inquired and investigated results into collection of evidence sufficient to
prosecute the person for violation of the provisions of PCPNDT Act, then only
criminal proceeding is expected to be filed u/s 28 of the PCPNDT Act. There
appears to be specific legislative intent behind introducing Section 17A in the
PCPNDT Act (incorporated by amended act of 2003) to vest fullfledged
powers of inquiry and Appropriate Authority to investigate the matter. Thus,
the role of the Appropriate Authority is much more than the authority to file
complaint.
18. In the light of role of the Appropriate Authority discussed as
above, it was expected on the part of the Appropriate Authority to have
investigated the information received in the form of inspection report from the
Vigilance Squad to find out there was any violation of provisions of PCPNDT
Act on the part of the petitioner. It was expected on the part of Appropriate
Authority to have summoned the persons referred in the inspection report to
verify as to whether the petitioner had complied with the requirement of
obtaining written consent as contemplated under Section 5 r/w Rule 9 of the
PCPNDT Act and there was any violation in observing the mandatory
conditions. Simply certain lacunae, omission detected in the consent form
could not be the basis to prosecute the person. By exercising the powers u/s
17A, certainly the Appropriate Authority could have summoned those
persons, recorded their statement and conducted further investigation as
deemed fit and proper to collect the evidence to sustain the prosecution in the
Court of law. However, in the instant case, it appears that Appropriate
Authority has failed to discharge its statutory obligations as contemplated u/s
17(4) of PCPNDT Act i.e. to investigate the report of inspection received from
Vigilance Squad which restricts to noting of certain lacunae, omission and
certain mistakes in maintenance of record. The report of inspection itself
could not be the basis to arrive at the conclusion that such lacunae, omission
and mistake were deliberate and acts of omission and commission committed
on the part of the petitioner with an intention to violate the provisions of
PCPNDT Act. It was also expected on the part of Appropriate Authority to
look into explanation given by the petitioner vide reply dt. 09.03.2015 and
opportunity of personal hearing and then to arrive at just decision. The
communication dt. 15.04.2015 which, in fact is an order communicated to the
petitioner as to suspension of sonography centre finds no reasons for taking
such action. The expected role of Appropriate Authority u/s 17(4) of PCPNDT
Act is to probe the matter and then to arrive at a proper decision as to
whether prima facie case of violation of the provisions of the PCPNDT Act and
Rules framed thereunder is made out or not. In the case of Dr. Uma
Shankarrao Rachewad Vs. Appropriate Authority reported in 2012 Cri.L.J.
2634 decided by one of us (Coram : A. V. Nirgude, J.), dealing with the case
more or less identical to the facts of the case, has observed in para 14 as
under:
“14. In view of the discussion above, the case filed against the petitioner does not
disclose prima facie case and therefore should fail. Before I conclude this
judgment, I think I must also hold that when the Competent Authority visits
a clinic for inspection, after inspection he should record statement of the
person against whom he intends to file the case. In such statement, such
person would get ample opportunity to putforward his or her explanation.
The Competent Authority under this Act, in my view, should consider each
case on its merits, examine it meticulously, preferably with the help of a
Legal Advisor and then file complaint in the Court. At least in this case, it
appears that the necessary care was not taken and the case was filed
hurriedly, without examining its strength.”
. It appears that in the instant case what has been observed as
above, not followed. The case has been instituted solely on the basis of report
of the Vigilance Committee without investigating the matter and collecting the
requisite material to prosecute the petitioner. The Appropriate Authority has
failed to discharge its obligation as contemplated u/s 17(4) of PCPNDT Act
before lodging the complaint against the petitioner. It is not out of place to
observe that sometime such casual approach of the Authority to invariably file
complaints without proper inquiry, investigation & due application of mind
leads to unnecessary criticism of the provisions of PCPNDT Act & Rules framed
thereunder by the persons from the field of Medical profession. It is expected
that the legal action must follow based upon sufficient material to establish
that there was a violation of provisions of PCPNDT Act and Rules thereunder.
Inadvertent mistakes committed during the course of maintaining record,
lacunae and omission in filling up certain information in detail in the requisite
forms needs to be considered in a proper perspective. Only after holding
inquiry, if it is found that such lapses have been committed with any intent or
motive to misuse the techniques and such professioner indulges into acts
prohibited under the law, then stringent provisions of such act must be
invoked and Appropriate Authority shall ensure that such persons are
punished. Mistakes committed without any criminal intent and merely in the
nature of procedural lapses needs to be properly understood before taking
drastic action of initiating criminal prosecution against a person in the field of
Medical profession. In an appropriate case, if the authority is satisfied that the
mistakes were inadvertent and there was no criminal intent behind such
procedural mistakes then such person be asked to rectify the mistakes and if
necessary, such person be appropriately given understanding not to commit
such procedural lapse. If there is persistent defaults and lapses on the part of
such person, then recourse to stringent provision to prosecute such person
may be taken. If such precautions are taken before lodging the prosecution
against a person in the field of Medical profession, it would help to remove
the fear in the mind of medical profession doing their work with utmost
honesty, sincerity and due observance of medical ethics and code of conduct
laid down under the PCPNDT Act being subjected to face unnecessary
humiliation, harassment and criminal prosecution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1381 OF 2015
Dr. Sai W/o Santosh Shiradkar,
V
The State of Maharashtra,
through the Appropriate Authority
Under PCPNDT Act,
CORAM : A. V. NIRGUDE &
V.L. ACHLIYA, J.
DATED : 27.09.2016.
2. Petitioner herein has preferred this petition under Article 226
and 227 of the Constitution of India and Section 482 of the Criminal
Procedure Code seeking quashing of RCS NO. 265/2015 pending on the file of
CJM, Nanded, on the grounds set out in detail in the petition.
3. Petitioner herein claims to be Doctor by profession and practices
at Nanded. She possesses the educational qualification as MBBS and DGO.
Petitioner started her practice at Nanded since August 2013. She has installed
Sonography machine in her Hospital known as “Suyog Hospital” at Nanded.
She claims that, the Sonography centre established by her is duly registered
with the Health Department and the certificate of registration is valid for the
period 11.11.2013 to 10.11.2018.
4. On 26.2.2015, the members of the Regional Vigilance Squad,
Aurangabad, inspected the Ultrasonography Centre of the petitioner and
recorded following deficiencies.
(i) Referral slip with respect to one pregnant woman is not found.
(ii) Serial number is not given to the Form 'F'.
(iii) Signature of Smt. Ranjana Tode, R/o Sonari is not found on the Consent Form
dated 07/02/2015.
(iv) Sonography Date : 25/02/2014, signature of petitioner Doctor on the Consent
Form of smt. Indu Shinde, R/o. Bhim Nagar is found contrast. So also, mobile
number is not found on the 'F' Form.
(v) Sonography dated: 31/12/2013, signature of Petitioner Doctor on the Consent
Form of Smt. Salma Parveen, R/o Mudhked is found contrast. So also detailed
address is not found on the 'F' Form.
(vi) Difference is found on Form 'F' of Smt. Vanashri Jalnekar, R/o Gavalipura, Nanded,
in the two dates i.e. 01/01/2013 and 01/01/2014. The signature of Petitioner
Doctor on the Consent Form and Form 'F' is found contrast. Mobile number is not
found on the said 'F' Form.
(vii) Sonography Date: 12/03/2014, Detailed address of Smt. Priya Shinde, R/o
Girgaon is not found on 'F' Form. So also, signature of Petitioner Doctor is not
found on the Consent Form.
(viii) Sonography Date: 05/12/2014, Detailed address of Smt. Afreen Fatema is not
found on the Form 'F'.
(ix) Sonography Date: 17/12/2014, Detailed address of Smt. Vaishali Patange, R/o.
Dhavoda, Kalamnoori is not found on the Form 'F'.
(x) Sonography Date: 09/12/2014, Smt. Anju Kishor Sawant, Date of sonography was
not found on the Form 'F'. Detailed address was not found.
(xi) Sonography Date: 08/12/2014, Smt. Jyoti Santosh Waghmare. Detailed address
and mobile number were not noted.
(xii) Sonography Date: 08/12/2014, Smt. Begum Abdul Razakk. The thumb impression
of the pregnant woman was not attested. Detailed address and mobile number
were not found.
(xiii) 91 Register was not available in the said Centre.
5. Based upon the report of inspection, wherein the Vigilance
Committee has noted the violation of Sections 4, 5, 6 and 29 of the Preconception
& Prenatal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 (hereinafter to be referred as “said Act”) & and Rule 9, 10(1A) and
18 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of
Sex Selection) Rules, 1996 (hereinafter to be referred as “the said Rules”), the
showcause notice as contemplated u/s 20(1) of the said Act, was issued to
petitioner. Petitioner has responded the said notice and given detailed
explanation to each of the deficiencies noted in the showcause notice. The
Advisory Committee in its meeting dt. 01.04.2015 discussed the matter and
decided to suspend the registration of petitioner's Sonography Centre and
further decided to initiate prosecution against her. Accordingly, the complaint
was filed in the court of CJM, Nanded. Vide order dt. 28.06.2015, the learned
Chief Judicial Magistrate, Nanded pleased to issue process u/s 4, 5, 6, 29 r/w
Rule 9, 10A & 18 of the said Act & Rules against accused. Being aggrieved,
the petitioner has preferred this petition seeking setting aside the order of
issuance of process and quashing of criminal proceedings.
6. Mr Deshmukh, learned counsel for the petitioner, strenuously
contended that the impugned order passed by the Magistrate is without
application of mind. He has contended, that on the face of allegations made
in the complaint together with the documents relied, no offence under any of
the provisions of the PCPNDT Act & Rules made thereunder is made out
against the petitioner. The complaint is filed by person who was not notified
as Appropriate Authority u/s 17 of PCPNDT Act and, therefore, the ld.
Magistrate should not have taken the cognizance of the complaint. The search
and inspection carried out by the alleged Vigilance Squad was without any
authority of the law and contrary to the provisions of the said Act & Rules
made thereunder. He has submitted that, the discrepancies as noted by the
Vigilance Committee cannot be termed as violation of any of the provisions of
the PCPNDT Act & Rules thereunder. At the most, the discrepancies as alleged
can be treated as clerical and arithmetical irregularities which itself not
amounts to violation of any of the provisions of the PCPNDT Act & Rules
thereunder. The report of the committee at the most treated as certain
irregularities in maintenance of the record & directed the petitioner to rectify.
None of the irregularities make out a case for initiation of criminal
proceedings against the petitioner.
7. On the other hand, the ld. APP for the State and the counsel
representing the respondent No. 2 supported the action taken by respondent
No. 2 and the order passed by ld. Magistrate. On behalf of respondent No. 2,
the affidavitinreply is filed by Medical Health Officer, Nanded–Waghela
Municipal Corporation, Nanded claiming as Appropriate Authority notified
under the PCPNDT Act. In nutshell, it is contended that, the deficiencies as
noted by the Vigilance Committee prima facie attract the offence u/s 4, 5, 29
& Rule 9, 10 (1A) & 29 of the said Act & Rules thereunder. In reply dt.
09.03.2015 filed by the petitioner in response to the showcause notice dt.
04.03.2015, the petitioner has admitted all the deficiencies as found during
the course of inspection. The report clearly points out that the petitioner has
deliberately avoided to keep the record of patients as per the requirement of
provisions of PCPNDT Act & Rules thereunder. During the inspection, it was
also found that the petitioner has not uploaded the Form No. “F” on PCPNDT
Maha Online Link for the month of January2015 and for the month of
December2014. The report of Sonography was shown as seven whereas
petitioner has uploaded eight FormF on said link, which itself shows that the
grave deficiencies committed on the part of the petitioner.
8. The challenge raised in this petition confines to criminal
proceedings filed against the petitioner. So far as order dt. 15.04.2015 passed
by the Appropriate Authority suspending the registration of petitioner's
Sonography Centre is concerned, the petitioner has challenged the said action
before the appellate authority constituted under the said Act. Therefore, the
limited question falls for our consideration is even if the allegations made in
the complaint taken at their face value and accepted in their entirety prima
facie made out any offence under the provisions of the PCPNDT Act & Rules
thereunder as alleged in the complaint & further the complainant was duly
authorized to file complaint against the petitioner.
9. We have perused the complaint dt. 30.04.2015 filed by the
NandedWaghala Municipal Corporation, through its Medical Health Officer –
Smt. Meera Ashish Kulkarni, who claims to be Appropriate Authority notified
under Section 17(2)(iii) of the PCPNDT Act by the State Government by
virtue of notification dt. 03.02.2006 issued by Public Health Department of
State Government. In the complaint filed, it is alleged that on 26.02.2015, the
Vigilance Squad has inspected the Sonography Centre run by the petitioner
and noted the discrepancies. On consideration of the report of the Inspection
Committee, it was prima facie found that, the petitioner has committed breach
of Sections 5, 29 and Rules 9 of the said Act & Rules and, therefore, the showcause
notice as contemplated under Section 20(1) of the said Act was issued.
In response to the showcause notice, the petitioner has filed reply before the
Advisory Committee. As the Committee was satisfied that the petitioner has
violated the provisions of Sections 4, 5, 6, 29 and Rules 9, 10 (1A) and 18 of
the said Act & Rules, it was decided to suspend the license to run the
Sonography Centre and to seal Sonography machine and it was further
decided to prosecute the petitioner. Thus, the complaint filed by the
respondent No. 2 is wholly based upon the discrepancies noted by the
Vigilance Squad during the inspection carried out on 26.06.2015. We have
therefore to examine as to whether the deficiencies as noted by the Vigilance
Committee attract offence under Sections 4, 5, 6 and 29 and Rules 9,
10(1A) and 18 of the said Act & Rules. In order to appreciate the
submissions advanced, it is useful to refer the said provisions, which reads as
under.
S 4. Regulation of pernatal diagnostic techniques.On and from the
commencement of this Act,
(1) no place including a registered Genetic Counselling Centre or Genetic
Laboratory of 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) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) heamoglobinopathies
(iv) sexlinked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central
Supervisory Board;
[(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) age of the pregnant woman is above thirtyfive 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 of physical deformities such as, spasticity or any other
genetic disease;
(v) any other conditions 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 of 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 prenatal 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 sexselection technique on her or him or both.]
S 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 prenatal
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 prenatal 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.]
S 6. Determination of sex prohibited. On and from the commencement of this Act,
(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall
conduct or cause to be conducted in its Centre, Laboratory or Clink, prenatal
diagnostic techniques including ultrasonography, for the purpose of
determining the sex of a foetus;
(b) no person shall conduct or cause to be conducted any prenatal diagnostic
techniques including ultrasonography for the purpose of determining the sex
of a foetus;
(c) no personal shall, y whatever means, cause or allow to be caused selection of
sex before or after conception.]
S 29. Maintenance of records.
(1) All records, charts, forms, reports, consent letters and all other documents
required to be maintained under this Act and the rules shall be preserved for
a period of two years or for such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted
against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clink,
the records and all other documents of such Centre, Laboratory or Clinic shall
be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for
inspection to the Appropriate Authority or to any other person authorised by
the Appropriate Authority in this behalf.
R 9. Maintenance and preservation of records.
(1) Every Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic
shall maintain a register showing, in serial order, the names and addresses of
the women given genetic counseling, subjected to prenatal diagnostic
procedures or prenatal diagnostic tests, the names of their husbands or
fathers and the date on which they first reported for such counseling,
procedure or test.
(2) The record to be maintained by every Genetic Counselling Centre, in respect
of each woman counseled shall be as specified in Form D.
(3) The record to be maintained by every Genetic Laboratory, in respect of each
woman subjected to any prenatal diagnostic test, shall be as specified in
Form E.
(4) The record to be maintained by every Genetic Clinic, in respect of each
woman subjected to any prenatal diagnostic procedure, shall be as specified
in Form F.
(5) The Appropriate Authority shall maintain a permanent record of applications
for grant or renewal of certificate of registration as specified in Form H.
Letters of intimation of every change of employee, place, address and
equipment installed shall also be preserved as permanent records.
(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 for a period of two years from the date of completion of counseling,
prenatal 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.
(7) In case the Genetic Counselling Centre or Genetic Laboratory or Genetic
Clinic maintains records on computer or other electronic equipment, a
printed copy of the record shall be taken and preserved after authentication
by a person responsible for such record.
R 10(1A). 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 anybody. The pregnant woman shall before undergoing
ultrasonography/image scanning declare that she does not want to know the sex of
her foetus.]
R 18. Code of Conduct to be observed by persons working at Genetic Counselling
Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging
Centres etc. All persons including the owner, employee or any other person
associated with Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics,
Ultrasound Clinics, Imaging Centres registered under the Act/these Rules shall
(i) not conduct or associate with, or help in carrying out detection or disclosure
of sex of foetus in any manner;
(ii) not employ or cause to be employed any person not possessing
qualifications necessary for carrying out prenatal diagnostic
techniques/procedures and tests including ultrasonography;
(iii) not conduct or cause to be conducted or aid in conducting by himself or
through any other person any techniques or procedure for selection of sex
before or after conception or for detection of sex of foetus except for the
purposes specified in subsection (2) of section 4 of the Act;
(iv) not conduct or cause to be conducted or aid in conducting by himself or
through any other person any techniques or test or procedure under the Act
at a place other than a place registered under the Act/the Rules;
(v) ensure that no provision of the Act and these Rules are violated in any
manner;
(vi) ensure that the person conducting any techniques, test or procedure leading
to detection of sex of foetus for purposes not covered under section 4(2) of
the Act or selection of sex before or after conception, is informed that such
procedures lead to violation of the Act and the Rules which are punishable
offences;
(vii) help the law enforcing agencies in bringing to book the violators of the
provisions of the Act and the Rules;
(viii) display his/her name and designation prominently on the dress worn by
him/her;
(ix) write his/her name and designation in full under his/her signature;
(x) on no account conduct or allow/cause to be conducted female foeticide;
(xi) not commit any other act of professional misconduct.
10. Thus, if we consider the provisions of Section 4(3) of the said Act,
then it prohibits use of Prenatal Diagnostic Techniques by the qualified
persons unless such person is satisfied with the reasons to be recorded in
writing that any of the conditions enumerated in clauses (i) to (v) of said
Section 4, are fulfilled. Proviso to subsection 3 of Section 4 creates a
statutory obligation on the person conducting ultrasonography on a pregnant
woman to keep complete record thereof in the clinic in such a 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 ultrasonography. Section 5 provides that the written
consent of the pregnant woman must be obtained by the person before
conducting the prenatal diagnostic procedure for conducting such diagnostic
procedure. The consent to be obtained must be in writing and in a form
prescribed and the language which she understands. The copy of same to be
given to such pregnant woman and further she be explained and made known
side and after effects of such procedure. Section 6 of the said Act prohibits
determination of sex of foetus by use of prenatal dignostic techniques
including the ultrasonography. Section 29 provides an obligation of
maintenance of record as required to be maintained under the provisions of
said Act for a period of two years and such record be made available at all
reasonable times for inspection by the Appropriate Authority or to any other
person authorized by the Appropriate Authority in their behalf. Rule 9 of the
said Rules provides for maintenance and preservation of record by every
Genetic Counselling Centre, Genetic Laboratory, Ultrasound Clinic and
Imaging Centre in the form of register showing, serial number, the names and
addresses of the men or women given genetic counseling or subjected to prenatal
diagnostic procedures or prenatal diagnostic tests. Subrule 2 of Rule 9
provides that, the record to be maintained by every Genetic Counselling
Centre, in respect of each woman counselled shall be as specified in Form 'D'.
Subrule 3 of Rule 9 provides that, 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'.
Subrule 4 of Rule 9 provides that 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. Subrule
5 of said Rules provides obligation on Appropriate Authority to maintain
permanent record regarding grant or renewal etc. Subrule 6 of Rule 9
provides for maintenance and preservation of records related to forms of
consent, laboratory results, microscopic pictures, sonographic plates or slides,
recommendations and letters for a period of two years from the date of
completion of counselling, prenatal diagnostic procedure or prenatal
diagnostic test, as the case may be. In case such legal proceedings initiated
against such centre or till expiry of period of two years whichever is later.
Subrule 7 of Rule 9 prescribes that Genetic Counseling Centre or Genetic
Laboratory or Genetic Clinic or Ultrasound Clinic or Imaging Centre it
maintains records on computer or other electronic equipment, a printed copy
of the record shall be taken and preserved after authentication by a person
responsible for such record. Subrule 8 of said Rue provides that, such such
Genetic Counseling Centre, Gentic Laboratory, Genetic Clinic, Ultrasound
Clinic and Imaging Centre shall send a complete report in respect of all preconception
or pregnancy related procedures/technique/tests conducted by
them in each month by 5th day of the following month to the concerned
Appropriate Authority. Rule 10 (1A) provides that, 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
anybody. The pregnant woman shall, before undergoing
ultrasonography/image scanning, declare that she does not want to know the
sex of foetus. Rule 18 of the said Rules provides for code of conduct to be
observed by the persons working at Genetic Counselling Centre, Genetic
Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centres etc.
11. In order to appreciate the submissions advanced, we have
carefully examined the allegations made in the complaint as stated above.
The basis of the complaint is the outcome of inspection carried out by the
Vigilance Squad on 26.02.2015, which has noted the discrepancies as referred
above.
12. So far as the deficiency referred at Sr. No. (i) in the report of
inspection referred above, the petitioner has offered explanation vide reply
dt. 09.03.2015 wherein she has stated that as she conducts sonography on her
own patients and not entertain the patients referred from outside, the
Reference Slip was not found by the committee. She has stated that, she has
recently started the ultrasonography centre and not aware that the Reference
Slip of her own patients also required to be kept on record and expressed that,
henceforth she will attach her own patients' reference slip along with the
form. So far as the discrepancy noted at Sr. No. (ii) that, serial number was
not given to the form F, she has offered an explanation that it was
inadvertently remained to be given and for that she has expressed her regret
and assured that in future, she will not commit such a mistake. The
discrepancy noted at Sr. No. (iii) & (iv), the petitioner has offered explanation
that, on the form 'F' filled in, due to oversight the signature of the patient
remained to be obtained and inadvertently the mobile number of said patient
remained to be mentioned in Form 'F'. However, the mobile number of the
said patient was noted in the OPD Book along with the address. So far as the
discrepancy noted at Sr. No. (v), the petitioner has offered explanation that
the difference in her signature was due to the reason that she makes two
different signatures one for bank purpose and other for routine work.
Therefore, two different signatures appear on consent forms. So far as
recording of complete address of the person is concerned, she has offered
explanation that the patient was resident of Mudkhed, Tq. Nanded, within the
Nanded district. She was not in a position to give complete address.
Therefore, the address as disclosed by her was recorded in the consent form.
In respect of deficiency noted in clause (vi), the petitioner has offered
explanation that the discrepancy as to date 1.1.2014 & 1.1.2013 was
occurred inadvertently as it was the first date of new year inadvertently in
place of 1.1.2014, the date was mistakenly recorded as 1.1.2013. She has
further offered explanation that, the patient was wife of his brother who
delivered a baby on 15.5.2015. Inadvertently the mobile number of said
patient remained to be mentioned. So far as the difference in her signature,
she has offered an explanation that as she uses different signatures for bank
and other routine work, the difference in signature found on the Form F. In
the reply, she has also mentioned phone number of said patient. So far as
discrepancy noted in clause (vii), the petitioner has offered explanation that
inadvertently signature remained to be made on form F. She has further
stated that, the address of the patient was R/o Girgaon, Tq. Basmat, Dist.
Hingoli and inadvertently in front of her name the name of her village is only
recorded and name of taluka and district was not mentioned. She has given
complete address of the patient as Girgaon, Tq. Basmat, Dist. Hingoli. In
respect of the discrepancy noted in clause (viii), she has stated that,
inadvertently detailed address of the patient remained to be recorded on Form
'F' and the detailed address of the patient to be given as Khudbainagar,
Degloor Naka, Nanded. She has mentioned that, inadvertently the word
'Nanded' remained to be mentioned in the Form of Smt. Fatima. So far as
discrepancy noted in clause (ix), she has mentioned that the address which
was given by the patient was Dhawanda, Tq. Kalamnuri, Dist. Hingoli and she
has visited her Sonography Centre in advanced stage of pregnancy i.e. 9th
month of pregnancy and she gave birth to child in her hospital on 29.12.2014.
So far as discrepancy noted at Sr. No. (x), the petitioner has offered
explanation that, inadvertently the date of carrying out sonography i.e.
09.12.2014 remained to be mentioned on the Form F. She has further averred
that, the detail address of the said patient was mentioned in her OPD register
but same was remained to be recorded in Form F due to inadvertence. So far
as discrepancy noted in clause no. (xi), the petitioner has offered an
explanation that the woman was unable to tell her address. She has stated
that, as she has recently changed the house, she was not remembering her
address and keeps mobile phone and therefore the complete address and
mobile number could not be mentioned. In respect of the discrepancy noted
at sr. no. (xii), the petitioner has offered explanation that said woman visited
her clinic in advanced stage of pregnancy i.e. 9th month, nobody was
accompanied her. She was not able to read and write, therefore, she could
not obtain attestation of her relatives. Due to advanced stage of pregnancy
and the moments of the child was found to be slowed down, she was required
to conduct sonography test. Since the woman has not provided the mobile
number and complete address, the detailed address could not be mentioned
on the form F. So far as the discrepancy noted at sr. no. (xiii) concerned, the
petitioner has stated that as the register was kept in the Cupboard and she
was out of station, the staff of the Hospital could not produce the register at
the time of visit of Inspection Committee. She has assured to take note of the
mistakes and ensure that no such mistakes will be committed in future. Thus
reply filed by petitioner reflects that the deficiencies noted by Committee in
respect of maintenance of record by petitioner was not deliberate or with
oblique motive or intentional. The mistakes were occurred inadvertently. No
criminal intent can be attributed to petitoner in committing such procedural
mistakes or lacunae.
13. The communication made by respondent No. 2 vide letter/order
dt. 15.4.2015 reflects that, the Advisory Committee has considered the reply
filed by the petitioner and then found that the petitioner has violated the
provisions of Sections 5, 29 and Rule 9 of the said Act & Rules. Thus, if we
consider the showcause notice, reply filed by the petitioner and the order
dt. 15.4.2015 then the Advisory Committee itself recorded that the violation
of sections 5, 29 and Rule 9 of the said Act & Rules committed on the part of
petitioner for taking action against her. However, the complaint filed by
respondent No. 2 alleges breach of Sections 4, 5, 6, 29 and Rules 9, 10(1A)
and 18 of the said Act & Rules. Therefore, the complaint filed alleging offence
under Sections 4, 6 of PCPNDT Act and violation of Rule 10(1A) and 18 itself
contrary to the decision of the Advisory Committee taken in its meeting dt.
01.04.2015.
14. If we consider the discrepancies as noted above, then it is
nowhere the case of respondent No. 2 that, the petitioner has not maintained
the record as mandatorily required under the provisions of the said Act &
Rules thereunder. What has been alleged is certain omissions, mistakes or
lacunae on the part of petitioner in maintaining the record as envisaged under
the provisions of the said Act & Rules. The discrepancies as noted are mainly
refers to omission to mention full address, mobile number etc. of patients
underwent sonography. If we consider the over all discrepancies noted by the
Vigilance Committee, then same cannot be termed as act committed with
intention to violate the provisions of the said Act & Rules made thereunder. In
fact, there are no allegations against the petitioner that the discrepancies
noted were made with ulterior motive or with a view to suppress certain
information about patients or to misuse the ultrasonography machine for
determination of sex of foetus. The PCPNDT Act has been enacted with an
object to prohibit the misuse of Prenatal Diagnostic Techniques for
determination of sex of foetus, leading to female foeticide, prohibition of
advertisement of prenatal diagnostic techniques for detection or
determination of the sex, permission and regulation of the use of prenatal
diagnostic techniques for the purpose of detection of specific genetic
abnormalities or disorders, permitting the use of such techniques only under
certain conditions by the registered institutions and to provide for stringent
punishment for violation of the provisions of the proposed legislation. In order
to regulate the working of the genetic counseling centre, laboratory,
ultrasound centre, the detail procedure has been provided for maintenance of
the record, inspection of record and penal consequences for violating such
regulatory mechanism by the genetic centre laboratory, sonography centre,
imagining centre for determination of sex of foetus leading to female foeticide
and creating imbalance in the male and female child. The provisions of
Sections 4, 5, 6, and 29 are primarily lay down obligation on the part of the
persons permitted to run such centers, laboratory, sonography machine,
imagining machine, etc. to obtain the licence and to conduct their activities
strictly in accordance with the conditions of the licence and statutory
provisions of PCPNDT Act & Rules framed thereunder. The discrepancies of a
nature as referred above cannot be treated as an act made with an intention
to violate the provisions of PCPNDT Act and particularly sections 4, 5, 6, 29
and Rules 9, 10(1A) and 18 of the said Act & Rules.
15. The petitioner has started ultrasonography centre in the year
2013. It is nowhere the case of the respondent No.2 that she has not
maintained the record. The allegations made against the petitioner that,
certain information which was to be recorded in the particular manner has not
been recorded. The omissions of a nature not to mention the mobile number
of the patient, full address of the patient with mobile number, difference in
signature of the Doctor & other inadvertent mistakes cannot be termed as a
discrepancy or act of inaccuracy amounting to violation of the Sections 4, 5 or
6 or 29 of the PCPNDT Act. The petitioner has offered satisfactory
explanation to each & every deficiency in Inspection Report.
16. If we look into the provisions of PCPNDT Act, then u/s 28(1)(a)
of the said Act it is specifically provided that no Court shall take cognizance of
an offence under the PCPNDT Act except on a complaint made by an
Appropriate Authority i.e. the Authority notified u/s 17 of PCPNDT Act. The
provision has been engrafted with an object that the provisions of the Said Act
may not be misused and police have been deliberately kept out of the purview
of initiating prosecution though the offences are made cognizable, nonbailable
and noncompoundable by virtue of Section 27 of the said Act. The
entire process of taking legal action against the person violating the provisions
of PCPNDT Act which includes investigation of complaint has been entrusted
to Appropriate Authority. In order to empower the Appropriate Authority the
powers to summon any person who is in possession of any information
relating to violation of provisions of the Act and Rules made thereunder,
production of any document or material object relating to possession of
information relating to such violation including the powers of issuance of
search warrant etc. are entrusted and conferred upon Appropriate Authority.
In general, the high ranking officer from the field of Medical have been
notified as an Appropriate Authority to file such complaint. Section 17(4) of
the said Act lays down the functions of the Appropriate Authority which reads
as under:
S. 17(4) The Appropriate Authority shall have the following functions, namely :
(a) to grant, suspend or cancel registration of a Genetic Counseling Centre, Genetic
Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counseliling Centre, Genetic
Laboratory and Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this Act or the rules made
thereunder and take immediate action;
(d) to seek and consider the advice of the Advisory Committee, constituted under
subsection (5), on application for registration and on complaints for suspension
or cancellation of registration;
(e) to take appropriate legal action against the use of any sex selection technique by
any person at any place, suo motu or bought to its notice and also to initiate
independent investigations in such matter;
(f) to create public awareness against the practice of sex selection or prenatal
determination of sex;
(g) to supervise the implementation of the provisions of the Act and rules;
(h) to recommend to the Board CSB and State Boards modifications required in the
rules in accordance with changes in technology or social conditions;
(i) to take action on the recommendations of the Advisory Committee made after
investigation of complaint for suspension or cancellation of registration.
. Section 17(a) lays down the powers of Appropriate Authority which reads as under:
17A when appointed for the whole of the State or the Union Territory,
consisting of the following three members
(i) an officer of or above the rank of the Joint Director of Health and Family
Welfare – Chairperson;
(ii) an eminent woman representing women's organization; and
(iii) an officer of Law Department of the State or the Union Territory concerned :
17. Thus, if we read the provisions of sections 17, 17A and 28 of the
said Act together, then the role of the Appropriate Authority is very important.
The Appropriate Authority has to act as an investigator to inquire into the
allegations of violation of the PCPNDT Act and Rules thereunder either on the
basis of complaint received as well as to act suo motu. The role of the
Appropriate Authority is not just to receive the complaint and file the
proceeding in the Court of law. Section 17(4)(c) specifically provides that,
one of the function of the Appropriate Authority is to investigate the
complaints of breach of provisions of the act and the rules made thereunder
and take legal action. Section 17(4)(e) provides that, the Appropriate
Authority to take legal action against the use of any sex selection technique
by any person at any place, suo motu or brought to to its notice or also to
initiate independent investigation in such matter. Thus, to investigate the
complaints received against the persons violating the provisions of PCPNDT
Act is the job of Appropriate Authority. Outcome of such investigation
provides basis either to drop the proceeding or to initiate appropriate
proceeding which includes initiation of criminal prosecution by filing
complaint u/s 28 of PCPNDT Act. Mere report or complaint or information
received cannot be sole basis to prosecute the person. If the complaint is
inquired and investigated results into collection of evidence sufficient to
prosecute the person for violation of the provisions of PCPNDT Act, then only
criminal proceeding is expected to be filed u/s 28 of the PCPNDT Act. There
appears to be specific legislative intent behind introducing Section 17A in the
PCPNDT Act (incorporated by amended act of 2003) to vest fullfledged
powers of inquiry and Appropriate Authority to investigate the matter. Thus,
the role of the Appropriate Authority is much more than the authority to file
complaint.
18. In the light of role of the Appropriate Authority discussed as
above, it was expected on the part of the Appropriate Authority to have
investigated the information received in the form of inspection report from the
Vigilance Squad to find out there was any violation of provisions of PCPNDT
Act on the part of the petitioner. It was expected on the part of Appropriate
Authority to have summoned the persons referred in the inspection report to
verify as to whether the petitioner had complied with the requirement of
obtaining written consent as contemplated under Section 5 r/w Rule 9 of the
PCPNDT Act and there was any violation in observing the mandatory
conditions. Simply certain lacunae, omission detected in the consent form
could not be the basis to prosecute the person. By exercising the powers u/s
17A, certainly the Appropriate Authority could have summoned those
persons, recorded their statement and conducted further investigation as
deemed fit and proper to collect the evidence to sustain the prosecution in the
Court of law. However, in the instant case, it appears that Appropriate
Authority has failed to discharge its statutory obligations as contemplated u/s
17(4) of PCPNDT Act i.e. to investigate the report of inspection received from
Vigilance Squad which restricts to noting of certain lacunae, omission and
certain mistakes in maintenance of record. The report of inspection itself
could not be the basis to arrive at the conclusion that such lacunae, omission
and mistake were deliberate and acts of omission and commission committed
on the part of the petitioner with an intention to violate the provisions of
PCPNDT Act. It was also expected on the part of Appropriate Authority to
look into explanation given by the petitioner vide reply dt. 09.03.2015 and
opportunity of personal hearing and then to arrive at just decision. The
communication dt. 15.04.2015 which, in fact is an order communicated to the
petitioner as to suspension of sonography centre finds no reasons for taking
such action. The expected role of Appropriate Authority u/s 17(4) of PCPNDT
Act is to probe the matter and then to arrive at a proper decision as to
whether prima facie case of violation of the provisions of the PCPNDT Act and
Rules framed thereunder is made out or not. In the case of Dr. Uma
Shankarrao Rachewad Vs. Appropriate Authority reported in 2012 Cri.L.J.
2634 decided by one of us (Coram : A. V. Nirgude, J.), dealing with the case
more or less identical to the facts of the case, has observed in para 14 as
under:
“14. In view of the discussion above, the case filed against the petitioner does not
disclose prima facie case and therefore should fail. Before I conclude this
judgment, I think I must also hold that when the Competent Authority visits
a clinic for inspection, after inspection he should record statement of the
person against whom he intends to file the case. In such statement, such
person would get ample opportunity to putforward his or her explanation.
The Competent Authority under this Act, in my view, should consider each
case on its merits, examine it meticulously, preferably with the help of a
Legal Advisor and then file complaint in the Court. At least in this case, it
appears that the necessary care was not taken and the case was filed
hurriedly, without examining its strength.”
. It appears that in the instant case what has been observed as
above, not followed. The case has been instituted solely on the basis of report
of the Vigilance Committee without investigating the matter and collecting the
requisite material to prosecute the petitioner. The Appropriate Authority has
failed to discharge its obligation as contemplated u/s 17(4) of PCPNDT Act
before lodging the complaint against the petitioner. It is not out of place to
observe that sometime such casual approach of the Authority to invariably file
complaints without proper inquiry, investigation & due application of mind
leads to unnecessary criticism of the provisions of PCPNDT Act & Rules framed
thereunder by the persons from the field of Medical profession. It is expected
that the legal action must follow based upon sufficient material to establish
that there was a violation of provisions of PCPNDT Act and Rules thereunder.
Inadvertent mistakes committed during the course of maintaining record,
lacunae and omission in filling up certain information in detail in the requisite
forms needs to be considered in a proper perspective. Only after holding
inquiry, if it is found that such lapses have been committed with any intent or
motive to misuse the techniques and such professioner indulges into acts
prohibited under the law, then stringent provisions of such act must be
invoked and Appropriate Authority shall ensure that such persons are
punished. Mistakes committed without any criminal intent and merely in the
nature of procedural lapses needs to be properly understood before taking
drastic action of initiating criminal prosecution against a person in the field of
Medical profession. In an appropriate case, if the authority is satisfied that the
mistakes were inadvertent and there was no criminal intent behind such
procedural mistakes then such person be asked to rectify the mistakes and if
necessary, such person be appropriately given understanding not to commit
such procedural lapse. If there is persistent defaults and lapses on the part of
such person, then recourse to stringent provision to prosecute such person
may be taken. If such precautions are taken before lodging the prosecution
against a person in the field of Medical profession, it would help to remove
the fear in the mind of medical profession doing their work with utmost
honesty, sincerity and due observance of medical ethics and code of conduct
laid down under the PCPNDT Act being subjected to face unnecessary
humiliation, harassment and criminal prosecution.
19. In this view, we proceed to examine as to whether the complaint
discloses the commission of offence u/s 5, 29 and Rule 9 of the PCPNDT Act.
Section 5 provides that, the written consent of the pregnant woman to be
obtained before conducting the prenatal diagnostic procedure as well as the
manner in which the consent to be obtained. Section 5(1)(a) provides that,
person conducting prenatal diagnostic techniques shall not conduct the said
procedure unless such pregnant woman explained of known side and after
effects of such procedure. In the case in hand, there are no such allegations
against the petitioner nor there was any complaint to that effect against the
petitioner. Section 5(1)(b) provides that, the person conducting the prenatal
diagnostic technique shall not conduct the procedure unless he has obtained
the consent of such woman to undergo such procedure in the language which
she understands and copy of her written consent is given to such woman. In
the case in hand, there are no allegations that the written consent was not
obtained before conducting the procedure. The allegations made against the
petitioner confines to certain omissions in the consent forms filled in & obtain
from such woman in which it was found that mobile number was not
mentioned and in one case thumb impression was not attested. It is nowhere
the case of the respondents that there were complaints against petitioner of
conducting the procedure without obtaining the consent and not giving copy
of the consent form to such woman. Though the petitioner was found to be
following the prescribed procedure and obtaining the written consent but,
proper care was not taken to fill in the complete information in the form such
as full address, mobile number and attestation. It is also not the case that
Appropriate Authority had investigated any complaint received or conducted
inquiry on its own wherein the petitioner was found violating the provisions
of Sections 5 and 29 & Rule 9 of the said Act & Rules. What has been
observed by the Vigilance Committee that, some information which was
required to have been mentioned in detail in respect of the patient has not
been recorded. In this view the contravention of Rule 5 of the said Rules is
not attracted on the face of the allegations made in complaint filed against the
petitioner. On the contrary it transpires from report of Vigilance Squad that,
the petitioner was following the procedure to obtain the consent in a
prescribed proforma of the pregnant woman undergoing diagnostic
techniques. Therefore, the violation of Section 5 of the said Act cannot be
inferred on the face of the allegations made in the complaint. Similarly the
allegations made in the complaint nowhere discloses the commission of
offence u/s 6 of said Act to the effect that the petitioner has conducted any
prenatal diagnostic procedure for determining the sex of the foetus before or
after conception & violated the provision.
20. Section 29 of the PCPNDT Act provides that the record as
required to be maintained or to be preserved for two years or such period and
such record is to be made available for such inspection at all reasonable times,
for the inspection of the Appropriate Authority or person authorized by the
Appropriate Authority. The allegations made in the complaint nowhere
discloses that the petitioner was found to be acted in violation of Section 29
and destroyed the record before the period prescribed under the said
provisions. As discussed, the allegations as made against the petitioner are
that, certain mistakes found in maintenance of record for which the petitioner
has given detailed explanation. Therefore, on the face of the allegations made
in the complaint the violation of Section 29 of the said Act is not attracted.
21. So far as Rule 9 of said Rules is concerned, it provides that before
conducting prenatal diagnostic techniques/test/procedure, the written
consent as specified in the Form and in a language known to person
undergoing such procedure shall be obtained from such person. As discussed,
the Committee has found that though the petitioner was found to following
the procedure to obtain the consent of woman in the prescribed proforma but
certain information found to be not recorded. What has been observed by the
Committee that while filling up the Form G certain information such as
complete address, mobile number was not recorded. Not obtaining consent in
prescribed proforma invites violation of Section 5 as well as Rule 9 of the said
Act & Rules. However, unintentional & inadvertent mistakes in not recording
certain details as discussed above itself not amounts to violation of Section 5
r/w Rule 9 of the said Act & Rules framed thereunder.
22. In the light of discussion made herein above, we are of the view
the prosecution initiated against the petitioner is not sustainable in law and
the complaint filed against the petitioner is liable to be quashed as the
allegations made in the complaint together with documents filed therein taken
at its face value and accepted in their entirety do not constitute any offence as
alleged. The allegations made are so absurd that no prudent person can ever
reach to conclusion that there are sufficient grounds to proceed against the
petitioner. We are, therefore, inclined to invoke powers u/s 482 of the Code
of Criminal Procedure to quash the complaint filed against the petitioner.
23. In view of the conclusions to which we have arrived at, that
complaint is liable to be quashed, it is not necessary to deal with the other
objection raised that the complainant is not competent & notified under
Section 17 of PCPNDT Act as Appropriate Authority to file the complaint.
24. In the result, the petition is allowed in terms of prayer clause 'C' &
'D' of the petition.
25. Rule made absolute in aforesaid terms.
[ V. L. ACHLIYA ] [ A.V. NIRGUDE ]
No comments:
Post a Comment