Patna High Court
Dr. Rajiv Ranjan & Anr vs State Of Bihar & Anr on 22 November, 2017
Author: Arun Kumar
Bench: Arun Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.43217 of 2014
Arising Out of PS.Case No. -22 Year- 2013 Thana -BEGUSARAI COMPLAINT CSAE District-
BEGUSARAI
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1. Dr. Rajiv Ranjan, Son of Birendra Pd. Singh, Resident of Village - Ram Nagar,
P.S. - Gayghat, District - Muzaffarpur
2. Pankaj Kumar Choudhary(Proprietor), Son of Nawal Kishore Choudhary,
Resident of Mohalla - Ashok Nagar, Pokhariya Ward No. 36, N.H. 31, P.S. -
Begusarai Town, District - Begusarai
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Dr. Sona lal Akela C.S. cum Chief Medical Officer Cum Appropriate Authority,
District - Begusarai
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s :
For the Opposite Party/s :
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
Date: 22-11-2017
Heard learned counsel for the petitioners as well as
learned counsel for the O.P. No. 2.
2. Petitioners seek quashing of cognizance order dated
01.07.2013passed by the learned Chief Judicial Magistrate, Begusarai in Complaint Case No. 22C2 of 2013, thereby taking cognizance of the offence, under Sections 23 and 25 of the Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the 'Act').
3. A brief fact giving rise to the case is that Civil Patna High Court Cr.M isc. No.43217 of 2014 dt.22-11-2017 2/6 Surgeon-cum-Chief medical Officer, Begusarai, along with other doctors, made a surprise inspection, examined the records of the Ultrasound Centre, owned by the petitioner no. 2, Pankaj Kumar Choudhary, situated in Begusarai and found violations of the said Act and Rules, which are as follows:
(i) Accused petitioner has not submitted monthly report to the office of the concerned authority, therefore, violated Rule 9(8) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as the 'Rules').
(ii) The Ultrasound machine was found to be operated by the incompetent sonologist, so there is violation of Section 3(2) of the Act.
(iii) There was no prominently display on its premises and notice to the effect that disclosure of sex of the foetus is prohibited under the law.
(iv) No maintenance or preservation of record was found properly maintained, so it's a violation of Rule 9 (1)(2)(3)(4) and Form-F does not bear signature of sonologist, so there is violation of Section 29 of the Act.
So for the aforesaid violation, further registration of Ultrasound Centre of the petitioners was cancelled. Patna High Court Cr.M isc. No.43217 of 2014 dt.22-11-2017 3/6
4. Learned counsel appearing on behalf of the petitioners submits that the allegation levelled against the petitioners is false and in reply to the show cause, they submitted a detailed report of every month; moreover ultrasound machine was not operated by incompetent sonologist rather petitioner no. 1 is a qualified doctor having M.B.B.S. degree, only on the date of inspection, petitioner no. 1, who is also a sonologist, was found absent from the Ultrasound Centre and petitioner no. 2 is a Ayurvedic doctor. Inspection report itself shows that reports were being submitted regularly by the accused persons and there was also display on the notice board regarding determination of sex of the foetus is prohibited under law and this is also indicated in the inspection format, so no ingredient of the offence is made out in this case.
5. Contrary to this, learned counsel appearing on behalf of the State submits that no trained sonologist was found at the Ultrasound Centre and the same is accepted by the petitioners in this application that petitioner no. 1, a sonologist, was absent on that day and inspection report clearly reveals that last report was sent on 24.04.2013 while the inspection was done on 07.05.2013 and the report, as per rule, has to be sent by 5th day of each succeeding month and there was also discrepancies in the report of the number of patients in comparison to the number of patients entered in the O.P.D. Patna High Court Cr.M isc. No.43217 of 2014 dt.22-11-2017 4/6 register. It is also mentioned that the doctor was not found present and the patient reports were not made available.
6. In the present case, cognizance has been taken under sections 23 and 25 of the Act. Section 23 defines offences and penalties and the provision envisages that in case any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, or who contravenes any of the provisions of this Act or rules made thereunder, shall be liable to be punished with imprisonment for a term which may extend to three years and with fine extending to Rs. 10,000/- and on any subsequent conviction, if the offence becomes graver, imprisonment may extend to five years and fine may be modified up to Rs. 50,000/-.
Section 25 of the Act is a penal provison, in case of contravention of any of the provisions of the Act or rules done by person for which there is no any specific penalty given in the Act is also liable to be punished with imprisonment for a term extending to three months or with fine extending to Rs. 1000/- or with both and in case of continuing contravention an additional fine may be extend to Patna High Court Cr.M isc. No.43217 of 2014 dt.22-11-2017 5/6 Rs. 500/- for every day during which such contravention continues even after conviction for the first contravention.
7. The objective of the Act is to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. The pre-natal diagnostic techniques are to be used only for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders. So the purpose of the Act is to eliminate the determination of sex of the foetus as it was leading to imbalance in the sex ratio by selecting the sex of a child before or after conception leading to female foeticide, therefore, stringent provisions has been laid down so that any such clinic would not indulge in sex determination of the foetus.
8. Prima facie, allegations made in the complaint show violations of provisions of the Act and Rules with regard to not sending the monthly report to the concerned authority. In view of Rule 9(8) of the Rules, the report is required to be sent with respect to all pre-conception or pregnancy related procedures/techniques/tests conducted by them in respect of each month by 5th day of the following month. Such report was not being transmitted on monthly basis, as per allegation. Rule 9(4) of the Rules envisages maintenance of record by the Ultrasound Centre with respect to each man or Patna High Court Cr.M isc. No.43217 of 2014 dt.22-11-2017 6/6 woman subjected to any pre-natal diagnostic procedure/technique/test, as specified in Form-F, but no such record was produced, as per allegation. There is also allegation that Form-F was not found signed by the sonologist. Therefore, finding prima facie case being made out under Sections 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, so no ground exists for setting aside the cognizance order or the criminal proceeding in the instant matter.
9. The application stands dismissed.
(Arun Kumar, J) Sujit/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 30.11.2017 Transmission 30.11.2017 Date