contents of form “F” which are required to be filled up
and maintained by the
Gynacologist/Radiologist/registered medical
practitioner performing the diagnostic procedures, it
can not be disputed that the filling up and
maintenance of form “F” is mandatory. However, in
the present case, the point is whether a bonafide
mistake or deficiency on the part of the Gynacologist
or Radiologist or registered medical practitioner can
be said to be of such a nature that the concerned
Gynacologist or Radiologist or registered medical
practitioner is liable to face prosecution.
10. In the complaint filed by the Appropriate
Authority, the only allegations are that there is some
deficiency in maintaining “F” forms in respect of some
patients. There is no averment in the complaint that
the omission in the “F” forms is deliberate or the
accused is indulging in conducting pre-natal
diagnostic techniques for determination of sex of
foetus.
11. More-over, as recorded earlier, the
deficiencies as mentioned in the complaint, in-fact do
not exist. In some of the “F” forms, though the
signature of the applicant is not found on “F” form, it
is not disputed by the Appropriate Authority that the
'F' forms are submitted through and in the name of
the clinic which is registered in the name of the
applicant. On some of the “F” forms, the signature of
the applicant is found below the declaration of Doctor
conducting Ultra Sonography. The accusations are
that the applicant has not signed below column No.
19 where also he is required to sign. The form “F” is
a composite form and below column No. 19 is the
declaration which is required to be signed by the
patient and below it is the declaration which is
required to be signed by the Doctor conducting Ultra
sonography. As the signature of the applicant is
found on most of the forms below the declaration,
only because the applicant has not signed below
column No. 19, it can not be said that because of the
omission, he is liable to face prosecution.
12. After examining the matter, I find that the
complainant has not been able to establish on record
that the charges for the offences mentioned in the
complaint are required to be framed against the
applicant and that the applicant is liable to be
prosecuted for those offences.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2574 OF 2014
Dr. Udaysingh S/o Mansingh Patil
V
The State of Maharashtra
CORAM : Z.A.HAQ, J.
DATED : 8th DECEMBER, 2016
Citation: 2017(2) MHLJ 232,2017 ALLMR(CRI)23
01. Heard Mr. K.C.Sant, learned Advocate for
the Applicant, Mr. A.R.Kale, learned A.P.P. for nonapplicant
No. 1 – State and Mr. S.C.Swami &
Ms.S.L.Pansambal holding for Mr. V.D.Gunale, learned
Advocate for non-applicant No. 2.
02. Rule. Rule made returnable forthwith.
03. The applicant has approached this Court
praying that the Judgment passed by the Sessions
Court dismissing the Revision filed by the applicant be
set aside and the order passed by the learned
Magistrate framing charge against the applicant for
the offences u/ss 4 (3),5,6,29 read with Section 28 of
the Pre-conception and Pre-natal Diagnostic
Techniques [Prohibition of Sex Selection] Act, 1994
[hereinafter referred as 'PC & PNDT Act, 1994] and
under Rule 9 (1) (4) (10) (1-A) of the Pre-conception
and Pre-natal Diagnostic Techniques [Prohibition of
Sex Selection] Rules, 1996 [hereinafter referred as
'PC & PNDT Rules, 1996] be set aside.
The copy of the order passed by the
learned Magistrate in R.C.C. No. 583/2011 on
10/03/2014 is not on record. The learned Advocate
for the petitioner sought liberty to place the copy of
the above order on record as Exh. H-1. Liberty
granted subject to depositing ` 2,000/- [Rupees Two
Thousand] with the High Court Legal Services SubCommittee,
Aurangabad and producing receipt on
record of this application within 2 weeks from today.
04. The non-applicant No. 2 – Appropriate
Authority filed Complaint before the Chief Judicial
Magistrate u/s 4 (3),5,6,29 read with Section 28 of
the PC & PNDT Act, 1994 and under Rule 9 (1) (4)
(10) (1-A) of the PC & PNDT Rules, 1996 read with
Sections 23 and 25 of the PC & PNDT Act, 1994
alleging that when the complainant along with some
other officials visited the hospital of the applicant on
08/09/2011, where the applicant had been running a
Sonography centre, following deficiencies were
found :
[i] “F” forms maintained by the applicant were
incomplete.
[ii] In December, 2010, 13 “F” forms were not
signed by the applicant.
[iii] The declarations in “F” forms were not
signed by the applicant.
[iv] Signatures of pregnant women, whose
sonography was conducted were not taken
on the “F” forms.
[v] The name and registration of the applicant
was not found on the “F” forms.
[vi] In the “F” forms of the period from
January, 2010 onwards, column Nos. 4 and
10 were not properly filled up and the
number of living children of the patient
were not mentioned and reasons for
conducting sonography were not
mentioned.
The complainant contended that the
accused is liable for prosecution and
conviction for the offences as
mentioned in the complaint.
05. The learned Magistrate, by the order
passed on 10/03/2014 found that the complainant
had made out prima facie case for framing of charge
against the accused for the offences as mentioned in
the complaint. This order was challenged by the
applicant/accused before the Sessions Court in
Revision, which is dismissed by the impugned
Judgment.
06. Mr. K.C.Sant, learned Advocate for the
Applicant has submitted that the allegations levelled
against the applicant are not correct and the
complaint came to be filed directly without giving
notice and, therefore, the applicant is deprived of the
opportunity of pointing out to the Appropriate
Authority that the allegations against him are not
correct. The applicant has placed on record the
copies of “F” forms which are submitted on-line to the
District Administration, Jalgaon and the copies of the
“F” forms maintained by the applicant at his hospital
are also placed on record.
07. On going through the documents [“F”
forms], I find that name and address of the clinic is
given in column No. 1 of the form and registration
number is given in column No. 2 of the form.
Similarly, column No. 4 is also filled up and number of
children [male and female] is also shown in the form.
Except in the form of Seema Patil [at page No. 22 of
the paper book], in all other forms, column No. 10-D
is filled up and the reason for conducting sonography
is mentioned as verification of 'foetal wellbeing'. In
the copies of “F” form maintained by the applicant
and kept at his clinic, it is found that the signature of
the applicant is there below declaration and in some
forms there is no signature of the applicant.
08. In the above facts, it is required to be seen
whether the deficiency in filling up of/maintaining the
“F” form is of such a nature that the applicant is liable
to face prosecution for it. The PC & PNDT Act, 1994 is
enacted to prohibit sex selection before or after
conception and to regulate the pre-natal diagnostic
techniques for the purpose of detecting genetic
abnormalities or metabolic disorders or chromosomal
abnormalities or certain congenital malformations or
sex-linked disorders and for the prevention of their
misuse for sex determination leading to female
foeticide and for matters connected therewith or
incidental thereto. The Act provides for the conditions
under which the pre-natal diagnostic techniques can
be used by the registered institutions.
09. Considering the object of the Act and the
contents of form “F” which are required to be filled up
and maintained by the
Gynacologist/Radiologist/registered medical
practitioner performing the diagnostic procedures, it
can not be disputed that the filling up and
maintenance of form “F” is mandatory. However, in
the present case, the point is whether a bonafide
mistake or deficiency on the part of the Gynacologist
or Radiologist or registered medical practitioner can
be said to be of such a nature that the concerned
Gynacologist or Radiologist or registered medical
practitioner is liable to face prosecution.
10. In the complaint filed by the Appropriate
Authority, the only allegations are that there is some
deficiency in maintaining “F” forms in respect of some
patients. There is no averment in the complaint that
the omission in the “F” forms is deliberate or the
accused is indulging in conducting pre-natal
diagnostic techniques for determination of sex of
foetus.
11. More-over, as recorded earlier, the
deficiencies as mentioned in the complaint, in-fact do
not exist. In some of the “F” forms, though the
signature of the applicant is not found on “F” form, it
is not disputed by the Appropriate Authority that the
'F' forms are submitted through and in the name of
the clinic which is registered in the name of the
applicant. On some of the “F” forms, the signature of
the applicant is found below the declaration of Doctor
conducting Ultra Sonography. The accusations are
that the applicant has not signed below column No.
19 where also he is required to sign. The form “F” is
a composite form and below column No. 19 is the
declaration which is required to be signed by the
patient and below it is the declaration which is
required to be signed by the Doctor conducting Ultra
sonography. As the signature of the applicant is
found on most of the forms below the declaration,
only because the applicant has not signed below
column No. 19, it can not be said that because of the
omission, he is liable to face prosecution.
12. After examining the matter, I find that the
complainant has not been able to establish on record
that the charges for the offences mentioned in the
complaint are required to be framed against the
applicant and that the applicant is liable to be
prosecuted for those offences.
13. I feel that the things could have been
different, had the Appropriate Authority issued show
cause notice to the applicant asking for his
explanation and the necessity to file complaint should
have been examined after receiving reply from the
applicant.
14. In my view, the order passed by the
learned Magistrate framing Charge against the
applicant and the Judgment passed by the Sessions
Court dismissing the Revision Application filed by the
applicant are unsustainable.
Hence, the following order :
(i) The Judgment passed by the
Additional Sessions Judge in
Misc. Criminal Revision No. 80/2014 on
11/04/2014 is set aside.
(ii) The Order passed by the Judicial
Magistrate, First Class, Jalgaon on
10/03/2014 in R.C.C. No. 583/2011
is set aside.
(iii) The Complaint filed by the non-applicant
No. 2 vide R.C.C. No. 583/2011 is
dismissed.
(iv) Rule made absolute in the above terms.
(v) In the circumstances, the parties to bear
their own costs.
(vi) The certified copy of this Judgment shall be
given to the applicant only after the
applicant produces on record the receipt
showing deposit of ` 2,000/- as ordered.
[Z.A.HAQ, J.]
No comments:
Post a Comment