Saturday, 19 November 2016

When prosecution under PCPNDT Act is liable to be quashed?

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.  
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
 State of Maharashtra,

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 ]
    
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