Karnataka High Court
Dr Smt Subhalakshmi N vs State By District Appropriate ... on 9 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 30.07.2024
Pronounced on : 09.08.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3002 OF 2024
BETWEEN:
1 . DR. SMT. SUBHALAKSHMI N.,
W/O MANIYAN NARAYANAN
AGED ABOUT 39 YEARS
RESIDING AT NO.22
KHATA NO. 862, 2ND CROSS
ABBAIAH REDDY LAYOUT
PROPRIETOR
MEDIZONE MEDICAL CENTRE
KAGGADASAPURA
BENGALURU - 560 093.
2 . DR. MOSCOW MANI SA
S/O SOMASUNDARAM S.,
AGED ABOUT 46 YEARS
RESIDING AT NO. 77,
4TH MAIN ROAD
VIVEKANAGAR
FURTHER EXTENSION
BENGALURU - 560 047.
... PETITIONERS
(BY SRI PRAVEEN S., ADVOCATE)
2
AND:
1. STATE BY
DISTRICT APPROPRIATE AUTHORITY (DAA)
PC AND PNDT DISTRICT HEALTH AND
FAMILY WELFARE OFFICE
BANGALORE URBAN DISTRICT
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. DR. RAVINDRANATH M.METI
AGED ABOUT 50 YEARS
DISTRICT HEALTH AND
FAMILY WELFARE OFFICER
BENGALURU URBAN DISTRICT.
... RESPONDENTS
(BY SRI B.N.JAGADEESH, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CASE AND PROCEEDINGS
AGAINST THE PETITIONERS IN C.C.NO.1938/2024 IN PCR
NO.2/2024 FOR ALLEGED OFFENCES P/U/S 23, 23(1)(2),
20(1)(2)(3) OF PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC
TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994,
PENDING ON THE FILE OF HONBLE MMTC-1, MAYOHALL,
BANGALORE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
3
CAV ORDER
The petitioners, both doctors, are before this Court calling in
question proceedings in C.C.No.1938 of 2024 pending before the
Metropolitan Magistrate, Traffic Court-I, Mayo Hall, Bangalore,
pursuant to a complaint initiated by the 1st respondent under
Section 200 of the Cr.P.C., alleging offences under Sections 20(1),
(2), (3) and 23(1) and (2) of the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ('the
Act' for short).
2. Facts, in brief, germane are as follows:-
Both the petitioners are doctors. The 1st petitioner is the
proprietor of the Diagnostic Centre in the name and style of
'Medizone Medical Centre' (the Centre' for short). The 2nd petitioner
is a certified registered operator of the ultrasound machine at the
Diagnostic Centre. It is the averment in the petition that the
ultrasound diagnostic procedures are conducted at the centre
between 10.30 a.m. and 11.30 a.m. and between 6.00 p.m. and
7.00 p.m. on the prescription of doctors who direct a test to be
4
conducted upon the patients. When things stood thus, the 1st
respondent/Appropriate Authority under the Act, on receipt of
certain information, conduct an inspection at 4.00 p.m. on
08-12-2023 at the Centre. At that time, it was found that the
ultrasound room, which was situated opposite the reception
counter, was open and in active mode. It is said that the lab
technician have admitted that scanning was done in the Centre.
The medical centre is closed, the scanning machine is locked. The
result of conduct of inspection and seizure of materials is filing of a
complaint before the jurisdictional Magistrate invoking Section 200
of the Cr.P.C., read with Section 28 of the Act, by registering a
crime for offences punishable as afore-quoted. The registration of
criminal case and issuance of summons is what has driven the
petitioners to this Court in the subject petition.
3. Heard Sri S. Praveen, learned counsel appearing for the
petitioners and Sri B.N. Jagadeesh, learned Additional State Public
Prosecutor appearing for the respondents.
5
4. The learned counsel appearing for the petitioners would
vehemently contend that inspection of the Centre is conducted at
4.00 p.m. when no records were displayed. The bone of contention
is that signatures of 4 patients on Form-F were missing. Those
signatures were taken in the register. It is not that the scanning
was done without prescriptions from respective doctors. The
information that is filled in Form-F clearly indicates that it is
pursuant to prescriptions from doctors. The duration of pregnancy
is also indicated. He would admit that signatures of concerned
patients were not taken on the form, but they were taken in the
register. Based upon the inspection, a notice comes to be issued on
08-12-2023. The notice seeks the petitioners to reply as to why
registration should not be suspended, but on the same day seizure,
closure and locking of the scanning machine had happened.
Therefore, it was a post-decisional hearing. He would like to place
reliance upon certain guidelines issued by Government of India, in
the Ministry of Health and Family Welfare, to buttress his
submission qua the procedure adopted by the respondent in
registering and continuing with the criminal case.
6
5. Per contra, the learned Additional State Public Prosecutor
would vehemently refute the submissions to contend that taking of
signatures in Form-F is mandated under the statute. It cannot be
that the patients would not sign on the document and scanning is
done. It is, therefore, necessary for the petitioners to explain or
face proceedings for having conducted the scanning without the
consent of patients. He would submit that guidelines so issued by
Government of India are adopted by the State and no separate
guidelines are notified by the State Government. He would further
contend that the petitioners should come out clean in the trial, as
they have admittedly undertaken the exercise of conducting
ultrasound scanning to determine sex of the fetus.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. The issue, at
this juncture, lies in a narrow compass. The 1st respondent is said
to be the Appropriate Authority under the Act to check violations of
7
the Act and regulate functioning of the diagnostic centres. The
petitioners are respectively the proprietor and certified operator of
the ultrasound machine in the diagnostic centre. The diagnostic
centre of the petitioners is inspected by the 1st respondent at 4.00
p.m. on 08-12-2023 and found several irregularities in the
functioning of the Centre. The moment irregularities are found, a
complaint comes to be registered invoking Section 28 of the Act.
Since the entire issue has now sprung from the complaint, the
complaint is necessary to be noticed. It reads as follows:
".... .... ....
3. It is further submitted that complainant is a officer of
Government having designation as the District Health and
Family Welfare Officer at Bengaluru urban District, Reporting
Letter and CTC document are herewith produce, visited with
power given by the District Appropriate Authority under PC &
PNDT Act under Sec.17A and 28 of the Pre-Conception and
pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994, read with Rules 18A(1)(V) of the PC & PNDT Rules,
1996. The Delegation of power for filing of this case Delegation
of power for authorize to inspect Dr. Ravindranath M.Meti, PC
& PNDT the same is hereby produced for the kind perusal of
this Hon'ble Court and marked as Annexure 'A' and 'B'.
4. The complainant states that it is the duty of the
Appropriate Authorities to implement the act as per Rules 12
and to take action against all bodies upon violation of the Act
and also against persons who have appointed/ allowed a
person to operate without a valid qualification as mentioned in
the Act or involved in sex selection/ determination of sex of
the same to anyone else, as they are amount to violation of
Act u/Sec.3A, 4, 5, 6, 29 and 30.
8
5. The complainant further submits that on 08-12-2023
the District Appropriate Authority & District Inspection and
monitoring Committee visited MEDIZONE MEDICAL CENTRE,
No.22, 2nd Cross, Abhayareddy, Kaggadasapur, Bengaluru-560
093 comprising of Dr. Ravindranath M.Meti, DHO, Delegated
as DAA, Dr. NadeemAhamad, FWO, Dr. Leela Government
Radiologist, Mr. Narayana R (Case Worker PCPNDT) Bengaluru
Urban, on 08-12-2023 Friday about 4.00 p.m. The
complainant have produced panchanama hereby produced for
the kind perusal of this Hon'ble Court and marked as
Annexure-C.
6. The DAA & DIMC, Team has inspected MEDIZONE
MEDICAL CENTRE Kaggadasapura, Bangalore and checked the
relevant registers and Form F etc., under the provision of said
Act and Rule on arrival at the premises the DIMC found that.
7. The Ultrasound room is located opposite to the
Reception. The ultrasound room was open when team visited
the Centre and the USG machine was in the active mode.
Mis/Mrs Jenifer & Karthik (Lab Tech.) accepted that scanning
was done without generating Form F as per the PC and PNDT
Act.
8. The USG machine present in the Diagnostics Centre
was Wipro GeVoluson P8 BT16, with serial No.VP8002800 with
single curvilinear probe.
9. On inspection of the machine, it was found that no
images and patient details were not found and it was not store
in any media, including the USG machine.
10. On inspection of Form B (Certificate of Registration)
1 USG machines were found with following details, Wipro
GeVoluson P8 BT16, with serial No.VP8002800 machine was
available in the Diagnostic Centre premises and staff were
unable to provide referral slips & Form-F (1) Images, Patient
Bill, Referral slips are hereby marked as Annexure-D.
11. The complainant submits that -
a) The signature of the Patient was not found in
the Form-F
9
i) The patient Signature was not found in Form-F
name of the patients Neelam aged: 31 years
Dated 13-11-2023, Ayesha aged 24 years,
Dated: 26-11-2023; Rashmitha aged 31 years
Dated 26-11-2023; Ramani aged 30 years Dated
27-11-2023
The same is hereby produced for kind perusal of this
Hon'ble Court and marked as Annexures E, F, G, H.
b) It is further submitted that, the complainant
respectfully prays that this Hon'ble Court may
kindly be pleased to permit to produce that seized
documents before this Hon'ble Court other notice
and Letter given by the complainant to the
Centre. The same is hereby produced for kind
perusal of this Hon'ble Court and marked as
Annexure-I & J.
c) The complainant further submits that after
inspecting and examining the ultrasound
machine, District Appropriate Authority found that
these major violations of the PCPNDT Act, that all
the relevant records be seized and sealed.
d) The cause of action arose in Bangalore Urban
Baiyappanahlli Police Station Limits. Hence, this
Court has got jurisdiction to try this matter.
12. It is for the submitted that, the complainant being
the Appropriate Authority file this complaint against the
accused without any mala-fide intention and misuse of power.
PRAYER:
Wherefore, it is respectfully prays that this Hon'ble
Court may kindly be pleased to take cognizance non-bailable
offence punishable under Section 23, 23(1), 23(2), 20(1),
20(2), 20(3) and other relevant Sections of PC & PNDT Act and
other relevant applicable sections under IPC and secure the
accused person and punish him for having committed the said
offences, as per law, in the interest of justice."
10
The complaint results in invocation of offences under Sections
20(1), (2), (3) and 23(1) and (2) of the Act. It is necessary to
notice those provisions. Sections 20 and 23 of the Act read as
follows:
"20. Cancellation or suspension of registration.--(1)
The Appropriate Authority may suo motu, or on complaint, issue
a notice to the Genetic Counselling Centre, Genetic Laboratory
or Genetic Clinic to show cause why its registration should not
be suspended or cancelled for the reasons mentioned in the
notice.
(2) If, after giving a reasonable opportunity of being
heard to the Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic and having regard to the advise of the Advisory
Committee, the Appropriate Authority is satisfied that there has
been a breach of the provisions of this Act or the rules, it may,
without prejudice to any criminal action that it may take against
such Centre, Laboratory or Clinic, suspend its registration for
such period as it may think fit or cancel its registration, as the
case may be.
(3) Notwithstanding anything contained in sub-sections
(1) and (2), if the Appropriate Authority is of the opinion that it
is necessary or expedient so to do in the public interest, it may,
for reasons to be recorded in writing, suspend the registration of
any Genetic Counselling Centre, Genetic Laboratory or Genetic
Clinic without issuing any such notice referred to in sub-section
(1).
... ... ...
23. Offences and penalties.--(1) 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, and who contravenes any of the
provisions of this Act or rules made thereunder shall be
11
punishable with imprisonment for a term which may extend to
three years and with fine which may extend to ten thousand
rupees and on any subsequent conviction, with imprisonment
which may extend to five years and with fine which may extend
to fifty thousand rupees.
(2) The name of the registered medical practitioner shall
be reported by the Appropriate Authority to the State Medical
Council concerned for taking necessary action including
suspension of the registration if the charges are framed by the
court and till the case is disposed of and on conviction for
removal of his name from the register of the Council for a period
of five years for the first offence and permanently for the
subsequent offence.
(3) Any person who seeks the aid of any Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic or
ultrasound clinic or imaging clinic or of a medical geneticist,
gynaecologist, sonologist or imaging specialist or registered
medical practitioner or any other person for sex selection or for
conducting pre-natal diagnostic techniques on any pregnant
women for the purposes other than those specified in sub-
section (2) of Section 4, he shall be punishable with
imprisonment for a term which may extend to three years and
with fine which may extend to fifty thousand rupees for the first
offence and for any subsequent offence with imprisonment
which may extend to five years and with fine which may extend
to one lakh rupees.
(4) For the removal of doubts, it is hereby provided that
the provisions of sub-section (3) shall not apply to the woman
who was compelled to undergo such diagnostic techniques or
such selection."
Section 20 which deals with cancellation of registration and
empowers the Appropriate Authority to issue a notice to any
diagnostic centre to show cause as to why its registration should
not be suspended or cancelled for reasons mentioned in the notice.
12
After giving a reasonable opportunity of being heard, if the
Authority concerned is satisfied that there has been breach of the
provisions of the Act, it may initiate criminal action against the
Centre, suspend its registration for a period it may think fit or
cancel its registration for reasons to be recorded in writing. Section
23 which deals with offences and penalties makes any person who
would contravene the provisions of the Act to undergo punishment
stipulated therein.
8. The Act is notified for the purpose of prohibition of sex
selection before or after conception and for regulation of pre-natal
diagnostic techniques to abolish this crude of female foeticide.
Therefore, two factors would emerge from the present proceedings
- the first being, that the diagnostic centre must be involved in
activities which would contravene the provisions of the Act, the
foundation of which is determination of sex and the other being,
prior to cancellation or suspension of registration, a reasonable
opportunity should be granted to the person whose registration is
sought to be suspended or cancelled. It is not in dispute that the 1st
respondent is the Appropriate Authority empowered to conduct
13
inspection in terms of Rule 18 of the Rules framed under the Act.
The diagnostic centre is inspected on 08-12-2023. The inspection
panchanama is drawn thereto. It reads as follows:
"¸ÀܼÀ ¥ÀAZÀ£ÁªÉÄ
qÁ|| gÀ«ÃAzÀæ£Áxï JA.ªÉÄÃn DzÀ £Á£ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ f¯Éè ¨ÉAUÀ¼ÀÆgÀÄ ¥ÀƪÀð
vÁ®ÆèPÀÄ, ¦.¹.&¦.J£ï.r.n. PÁAiÉÄÝAiÀÄ ¸ÉPÀë£ï 17(J), ¸ÉPÀë£ï 18 J(A) ªÀÄvÀÄÛ ¸ÉPÀë£ï 30 gÀAvÉ
f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ ¥ÀævÁåAiÉÆÃf¹zÀ C¢üPÁjzÀ ªÉÄÃgÀUÉ ¢£ÁAPÀ:...gÀAzÀÄ ¨É½UÉÎ / ªÀÄzsÁåºßÀ
/ ¸ÀAeÉ 4 UÀAmÉUÉ MEDIZONE MEDICAL CENTRE Kaggadasapura,
Bengaluru Urban District ¸ÁÌöå¤AUï ¸ÉAlgï / ¯Áå¨ÉÆÃgÉÃlj / Qè¤Pï / D¸ÀàvæU É É
¨sÉÃn ¤Ãr ¥ÀAZÀ£ÁªÉÄ ªÀiÁrgÀÄvÉÛãÉ.
gÁdå / f¯Áè vÀ¥À¸ÀuÁ ªÀÄvÀÄÛ ¥Àj²Ã®£Á ¸À«Äw ªÀÄvÀÄÛ gÁdå / f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ
UÀÄgÀÄw¹zÀAvÉ MEDIZONE MEDICAL CENTRE Kaggadasapura,
Bengaluru ¸ÁÌöå¤AUï ¸ÉAlgï / Qè¤Pï / D¸ÀàvÉæ AiÀÄÄ zÀ¸ÁÛªÉÃdÄUÀ¼À£ÀÄß / ªÀ»UÀ¼À£ÀÄß
PÁ£ÀÆ£ÀÄ §zÀÞªÁV ¤ªÀð»¹gÀĪÀÅ¢®è ªÀÄvÀÄÛ ¦.¹&¦.J£ï.r.n PÁAiÉÄÝAiÀÄ 20/3 Rule 8 «¢ü
/ ¤AiÀĪÀÄUÀ¼À£ÀÄß G®èAX¹gÀÄvÀÛzÉ.
F PɼÀPÁt¹zÀ zÁR¯ÉUÀ¼ÀÄ / zÁ¸ÁÛªÉÃdÄUÀ¼ÀÄ / £ÀªÀÄÆ£ÉUÀ¼ÀÄ / ªÀ¸ÀÄÛUÀ¼ÀÄ / AiÀÄAvÀæUÀ¼À£ÄÀ ß
gÁdå ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ / f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ, C¯ÁÖç¸ËAqï ¸ÁÌöå¤AUï ¸ÉAlgï ªÀiÁ°ÃPÀgÀ
¸ÀªÀÄPÀëªÀÄ ªÀÄvÀÄÛ F PɼÀUÉ ¸À» ªÀiÁrgÀĪÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ¦.¹&¦.J£ï.r.n. PÁAiÉÄÝAiÀÄ PÀ®A
30 ¤AiÀĪÀÄ 12 gÀAvÉ d¦Û ªÀiÁqÀ¯Á¬ÄvÀÄ.
1. Ultra sound scanning AiÀÄAvÀæ 5.
wipro Ge Voluson P8BT16 S/N
VP8002800
2. Form - F" 6.
3. 7.
4. 8.
What forms crux of the complaint is that signatures of patients were
not found in Form-F. Four patients are named. These four
patients' details are appended to the petition. The first patient is
14
one Neelam, aged 31 years who gets scanning done of the
pregnancy pursuant to a prescription by a doctor - Dr. Shoba
Venkat. The pregnancy is said to be of eight weeks. The next
patient is one Ayesha aged 24 years. The prescription is by one
doctor - Dr. Asha. The pregnancy is said to be of 5 weeks. The
third patient is one Rashmita, aged 31 years, again referred by the
same Dr.Asha. Pregnancy is said to be of six weeks. The fourth
patient is one Ramani, aged 30 years referred by one Dr. Maya
V.V., The pregnancy is of 9 weeks. It is ununderstandable as to
how between five weeks and nine weeks of pregnancy the
determination of sex of the fetus can happen. It is in public domain
that sex of the fetus can be determined only after 12 to 14 weeks.
Therefore, what was carried out in the diagnostic centre was only
normal general routine pregnancy test on prescription of doctors.
9. It is an admitted fact that forms which contained details of
the patients did not contain signatures of the patients. It is the
contention of the learned counsel appearing for the petitioners that
those signatures are in the register. The register and all other
documents are said to have been seized. The Additional Special
15
Public Prosecutor would contend that there was no register
maintained for getting the signatures, as there is no seizure
undertaken of the register being maintained also. While the
complaint contends that there were no images in the scanning unit,
but the images are taken and seized. Though it becomes a matter
of documentation or evidence that signatures are found in the
register or otherwise, what merits consideration of the petition
notwithstanding absence of signatures is the notice that is issued.
The notice is issued on 08-12-2023. It reads as follows:
" "£ÉÆÃnøï"
«µÀAiÀÄ: UÀ¨ÀsðzsÁgÀuÁ ¥ÀƪÀð ªÀÄvÀÄÛ ¥Àæ¸ÀªÀ ¥ÀƪÀð °AUÀ ¥ÀvÉÛ ºÀZÀÄѪÀ vÀAvÀæUÀ¼ÄÀ
(°AUÀ DAiÉÄÌ ¤µÉÃzsÀ) PÁAiÉÄÝ 1994 ¸ÀªÀÄ¥ÀðPÀªÁV C£ÀĵÁ×£ÀUÉƽ¸À¢gÀĪÀ §UÉÎ.
***
vÀªÀÄä ¸ÀA¸ÉÜ / D¸ÀàvÉæUÉ ¢£ÁAPÀ:8/12/2023gÀAzÀÄ ¦.¹ ªÀÄvÀÄÛ ¦.J£ï.r.n
PÁAiÀÄðPÀæªÀÄzÀ ¥ÀgÀ²Ã®£ÉUÁV f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀªÀÅ C¤jÃQëvÀ ¨sÉÃn ¤ÃrzÁUÀ F PɼÀPÀAqÀ
£ÀÆå£ÀvÉUÀ¼À£ÀÄß ¸Àj¥Àr¹PÉÆAqÀ PÀæªÀÄzÀ ªÀgÀ¢AiÀÄ£ÀÄß F PÀbÉÃjUÉ PÀÆqÀ¯Éà ¸À°è¸À®Ä w½¹zÉ.
vÀ¦àzÀ°è ¦.¹. ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ PÀæªÀÄ ªÀ»¸À¯ÁUÀĪÀÅzÀÄ.
*UÀ¨sÀðzsÁgÀt ¥ÀƪÀð ªÀÄvÀÄÛ ¥Àæ¸ÀªÀ ¥ÀƪÀð ¥ÀvÉÛ ºÀZÀÄѪÀ vÀAvÀæUÀ¼ÀÄ (¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n)
(°AUÀ DAiÉÄÌ ¤µÉÃzsÀ) PÁAiÉÄÝ 1994gÀ C£ÀéAiÀÄ F PɼÀPÀAqÀ DPÉëÃ¥ÀuÉUÀ½UÉ ¸ÀªÀÄ¥ÀðPÀ
¸ÀªÀÄeÁ¬Ä¶AiÀÄ£ÀÄß ¤ÃqÀĪÀÅzÀÄ:-
1. vÁªÀÅ ¦.¹ ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 4 ªÀÄvÀÄÛ G¥ÀPÀ¯ÁA (1) (2) (3)
(4) ªÀÄvÀÄÛ (5) gÀAvÉ ¥Àæ¸ÀªÀ¥ÀƪÀð ¥ÀvÉÛ vÀAvÀæ «zsÁ£ÀUÀ¼À£ÀÄß G¥ÀAiÉÆÃV¸À®Ä CxÀªÁ
PÉÊUÉƼÀî®Ä CºÀðvÉ ºÉÆA¢zÀ ªÀåQÛAiÀÄÄ AiÀiÁªÀÅzÉà µÀgÀvÀÄÛUÀ¼À£ÀÄß ¥ÀÆgÉʸÀ¯ÁVzÉ
JA§ÄzÀ£ÀÄß ¤ÃªÀÅ °TvÀªÁV zÁR°¸ÀzÉ ªÉÄïÁÌt¹zÀ PÀ¯ÁA ªÀÄvÀÄÛ G¥À
PÀ¯ÁAUÀ¼À£ÀÄß G®èAX¹gÀÄwÛÃj JAzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
2. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 5 gÀ£ÀéAiÀÄ UÀ©üðt ªÀÄ»¼ÉAiÀÄ °TvÀ
¸ÀªÀÄäw G¥À PÀ¯ÁA 1 (J) (©) (¹) ªÀÄvÀÄÛ 2£ÀÄß G®èAX¹gÀÄwÛÃj.
16
3. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 6 gÀAvÉ °AUÀ ¤zsÀðgÀuÉAiÀÄ£ÀÄß
¤µÉâü¸À¯ÁVzÀÝgÀÆ vÁªÀÅ °AUÀ ¤zsÀðuÉAiÀÄ£ÀÄß ªÀiÁr G¥ÀPÀ¯ÁA (J) (©) (¹)
AiÀÄ£ÀÄß G®èAX¹gÀÄwÛÃj JAzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
4. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 18 ªÀÄvÀÄÛ G¥À PÀ¯ÁA (1) gÀAvÉ
C£ÀĪÀA²ÃAiÀÄvÉAiÀÄ ¸À®ºÁ PÉÃAzÀæUÀ¼ÀÄ, C£ÀĪÀA²ÃAiÀÄvÉAiÀÄ ¥ÀæAiÉÆÃUÁ®AiÀÄUÀ¼ÀÄ ªÀÄvÀÄÛ
C£ÀĪÀA²ÃAiÀÄvÉAiÀÄ aQvÁì®AiÀÄUÀ¼À£ÀÄß £ÉÆÃAzÀt ªÀiÁqÀzÉ PÁAiÉÄÝAiÀÄ£ÀÄß
G®èAX¹gÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ.
5. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 19 G¥À PÀ¯ÁA 4 gÀAvÉ £ÉÆÃAzÀtÂ
¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß vÀªÀÄä ¸ÀA¸ÉÜAiÀÄ ªÀåªÁºÁgÀzÀ ¸ÀܼÀzÀ°è PÁtĪÀAvÉ ¥ÀæzÀ²ð¸ÀzÉÃ
EgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ.
6. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄrAiÀÄ°è ¥Àæ¸ÀªÀ ¥ÀƪÀð °AUÀ ¤zsÀðgÀuÉUÉ
¸ÀA§A¢ü¹zÀ eÁ»ÃgÁw£À ¤µÉÃzsÀ«zÀÝgÀÆ vÁªÀÅ PÀ¯ÁA 22 G¥ÀPÀ¯ÁA(1) ªÀÄvÀÄÛ
(2)£ÀÄß G®èAX¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
7. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 29gÀ G¥À PÀ¯ÁA(1) ªÀÄvÀÄÛ (2)£ÀÄß
¤AiÀĪÀÄ 9 G¥À¤AiÀĪÀÄ (1) (2) (3) (4) (5) (6) (7) ªÀÄvÀÄÛ (8) gÀAvÉ,
zÁR¯ÁwUÀ¼À£ÀÄß ¤ªÀðºÀuÉ ªÀiÁqÀzÉ PÁAiÉÄÝAiÀÄ£ÀÄß G®èAX¹gÀĪÀÅzÀÄ
PÀAqÀħA¢gÀÄvÀÛzÉ.
8. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ PÀ¯ÁA 8gÀ G¥À PÀ¯ÁA(1) gÀAvÉ
£ÉÆÃAzÀtÂAiÀÄ £À«ÃPÀgÀtªÀ£ÀÄß ªÀiÁqÀzÉ PÁAiÉÄÝAiÀÄ£ÀÄß G®èAX¹gÀĪÀÅzÀÄ PÀAqÀÄ
§A¢gÀÄvÀÛzÉ.
9. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ ¤AiÀĪÀÄ 10gÀAvÉ d£À£À ¥ÀƪÀð ¥ÀvÛÉAiÀÄ
vÀAvÀæ «zsÁ£À ¥ÀæQæAiÉÄUÀ½UÉ µÀgÀvÀÄÛUÀ¼À£ÀÄß G¥À¤AiÀĪÀÄ (1) ªÀÄvÀÄÛ (3) gÀAvÉ UÀ©üðtÂ
¹ÛçìÄAzÀ DPÉUÉ UÉÆwÛgÀĪÀ ¨sÁµÉAiÀÄ°è w½¹gÀĪÀÅ¢®è.
10. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ ¤AiÀĪÀÄ 13gÀAvÉ £ËPÀgÀgÀ°è, ¸ÀܼÀzÀ°è CxÀªÁ
¸ÁzsÀ£À ¸À®PÀgÀuÉUÀ¼À°è DzÀ §zÀ¯ÁªÀuÉAiÀÄ §UÉÎ f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁjUÉ w½¸ÀzÉÃ
EzÀÄÝ, PÁAiÉÄÝAiÀÄ£ÀÄß G®èAX¹gÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ.
11. vÁªÀÅ ¦.¹.ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ ¤AiÀĪÀÄ 17gÀAvÉ ¸ÀA¸ÉÜAiÀÄ°è ¨sÀÆætzÀ
(UÀ¨sÀð¸ÀÜ ²±ÀÄ«£À) °AUÀªÀ£ÀÄß §»gÀAUÀ ¥Àr¸ÀĪÀÅzÀÄ PÁ£ÀƤ£À ªÉÄÃgÉUÉ
¤µÉâü¸À¯ÁVzÉ JA§ ¸ÀÆZÀ£ÉAiÀÄ£ÀÄß ¸ÁªÀðd¤PÀ ªÀiÁ»wUÁV EAVèö£À°è ªÀÄvÀÄÛ
¸ÀܽÃAiÀÄ ¨sÁµÉUÀ¼À°è vÀªÀÄä ¸ÀA¸ÉÜUÀ¼À DªÀgÀtU¼ÀÀ°è JzÀÄÝ PÁtĪÀAvÉ ¥ÀæzÀ²ð¸ÀzÉÃ
EgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ.
17
12. ¤AiÀĪÀÄ 17 G¥À ¤ªÀÄAiÀÄ (2) gÀAvÉ ¸ÁÌöå¤AUï PÉÆoÀrAiÀÄ°è ¦.¹.ªÀÄvÀÄÛ¦.J£ï.r.n
PÁAiÉÄÝAiÀÄ ¥ÀĸÀÛPÀ EnÖgÀĪÀÅ¢®è.
13. ¤AiÀĪÀÄ 18 G¥À¤AiÀĪÀÄzÀAvÉ vÀªÀÄä ¸ÀA¸ÉÜAiÀÄ°è PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ DvÀ£À/DPÉAiÀÄ
ºÉ¸ÀgÀ£ÀÄß ªÀÄvÀÄÛ ¥ÀzÀ£ÁªÀĪÀ£ÀÄß (ºÀÄzÉÝAiÀÄ ºÉ¸ÀgÀ£ÀÄß) DvÀ£À/DPÉAiÀÄ zsÀj¹zÀ
GqÀÄ¥ÀÄUÀ¼À ªÉÄÃ¯É ¸ÀàµÀÖªÁV PÁtĪÀAvÉ ¥ÀæzÀ²ð¹gÀĪÀÅ¢®èzÉà EgÀĪÀÅzÀÄ PÀAqÀÄ
§A¢gÀÄvÀÛzÉ.
14. ªÉÊzÀågÀÄ ¨sÉÃn ¤ÃqÀĪÀ ªÉüÁ¥ÀnÖAiÀÄ£ÀÄß ¥ÀæzÀ²ð¹gÀĪÀÅ¢®è.
15. JA¥Áå£À¯ï ªÀiÁrPÉÆArgÀĪÀ ªÉÊzÀågÀ ºÉ¸ÀgÀÄ, CºÀðvÁ ¥ÀvÀæUÀ¼À£ÀÄß ¥ÀæzÀ²ð¹gÀĪÀÅ¢®è.
16. JA¥Áå£À¯ï ªÀiÁrPÉÆArgÀzÉ EgÀĪÀ ªÉÊzÀåjAzÀ ¸ÁÌöå¤AUï ªÀiÁr¹gÀÄwÛÃj JAzÀÄ
w½zÀÄ §A¢gÀÄvÀÛzÉ.
17. N.©.f ¸ÁÌöå¤AUï ªÀiÁr¹PÉÆArgÀĪÀªÀgÀ jf¸ÀÖgï ¥ÀĸÀÛPÀ EnÖgÀĪÀÅ¢®è.
18. ¥sÁgÀA-J¥sï £ÀÄß ¤AiÀĪÀiÁ£ÀĸÁgÀªÁV ¤ªÀð»¹gÀĪÀÅ¢®è.
19. vÁªÀÅ ¤ÃqÀÄwÛÃgÀĪÀ ¸Ë®¨sÀåUÀ½UÉ ¨sÀj¸ÀĪÀ ±ÀÄ®ÌzÀ ¥ÀnÖAiÀÄ£ÀÄß ¥sÀ®PÀzÀ°è ¥ÀæzÀ²ð¸ÀzÉÃ
EgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ.
20. vÀªÀÄä QèäPï / ¸ÁÌöå¤AUï / ¸ÉAlgï£À°è CªÀ±ÀåPÀªÁV ¨ÉÃPÁVgÀĪÀ ¸À®PÀgÀuÉUÀ¼ÄÀ ,
G¥ÀPÀgÀtUÀ¼À£ÄÀ ß ºÉÆAzÀzÉà EgÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
21. vÀªÀÄä QèäPï / ¸ÁÌöå¤AUï / ¸ÉAlgï£À°è gÉÆÃVUÀ½UÉ ¸ÀÆPÀÛ ¸ÉÃªÉ PÉÆqÀ®Ä
CªÀ±ÀåPÀªÁzÀ PÀlÖqÀ, UÁ½, ¨É¼ÀPÀÄ E®èzÉà EgÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
22. ±ËZÁ®AiÀÄzÀ ªÀåªÀ¸ÉÜ ¸ÀjAiÀiÁV E®èzÉà EgÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
23. EvÀgÉ:- Scanning Room Inside Photo Image
ªÉÄïÁÌt¹zÀ J¯Áè £ÀÆå£ÀvÉUÀ¼À£ÀÄß ¥Àj²Ã°¹ ¦.¹ ªÀÄvÀÄÛ ¦.J£ï.r.n PÁAiÉÄÝAiÀÄ
PÀ¯ÁA20(1), (2) ªÀÄvÀÄÛ (3) gÀAvÉ vÀªÀÄä QèäPï / ¸ÁÌöå¤AUï / ¸ÉAlgï
¯Áå¨ÉÆÃgÉÃljAiÀÄ £ÉÆÃAzÀt gÀzÁÝUÀ°Ã CxÀªÁ CªÀiÁ£ÀvÀÄ KPÉ ªÀiÁqÀ¨ÁgÀzÄÀ ?
JA§ÄzÀPÉÌ 7 ¢£ÀUÀ¼ÉƼÀUÉ GvÀÛgÀ ¤ÃqÀ®Ä DzÉò¸À¯ÁVzÉ."
The notice notices several lacunae in the maintenance of the unit.
It gives an opportunity to the petitioners to reply as to why the
18
registration should not be cancelled or suspended within seven days
from the date of receipt of the notice. The registration stood
suspended on the day of the notice itself. Therefore, no time was
granted to these petitioners to submit reply to the so called show
cause notice.
10. The learned Additional Special Public Prosecutor submits
that a show cause notice is to be issued to the petitioners and
accordingly it has been issued. There are serious lacunae in the
maintenance of diagnostic centre. If leniency is shown to these
petitioners, they would indulge in the tests of sex determination as
well as the State is on a serious look out of checking sex
determination being done illegally resulting in female foeticide. The
object of the State is laudable, as it is imperative today to check
the growth of cases of female foeticide which happen due to
determination of sex at the diagnostic centres illegally. While that
cannot be brushed aside for implementation, without compliance
with the provisions of the Act, as every diagnostic centre cannot be
painted with the same brush.
19
11. Therefore, the notice that is given to any diagnostic
centre in terms of Section 20 of the Act, it should be in furtherance
of providing an opportunity to explain with regard to the violations
of the Act, failing which, the notice would become meaningless, or
an empty formality, as they are held guilty and criminal cases are
registered even before seeking an appropriate explanation. Any act
of this kind of not providing adequate opportunity would be in
blatant violation of principles of natural justice. It is this that merits
entertainment of petition notwithstanding signatures not being
found in the Form. If it is found in the register, it was for the
petitioners to explain as to why it was not taken in the Form and
then the criminal case could be registered against these petitioners,
as law clearly indicates that if satisfactory reply is not given by
those laboratories only then a criminal case can be registered. The
procedure cannot be deviated in the wake of any rush to implement
the provisions of the Act.
12. It now becomes germane to notice the guidelines issued
by Government of India, Ministry of Health and Family Welfare
publishing the standard operating guidelines of District Appropriate
20
Authorities. I deem it appropriate to quote certain clauses of the
guidelines, since the Additional State Public Prosecutor has
admitted that the State has adopted and is following the same
guidelines, though no document to that effect is produced before
the Court. The guidelines are issued under the Act. It varies from
Code of Conduct for the Appropriate Authorities under the Act;
Guidelines for inspection of facilities; Search and Seizure
operations; Guidelines for filing criminal complaints and Indicative
Checklist for inspection of facilities under the Act. I deem it
appropriate to quote them. They read as follows:
"1. Code of Conduct for the Appropriate Authorities under the Act
......
8) All the Appropriate Authorities including the State,
District and Sub-district notified under the Act, Inter-alia,
shall observe the following conduct for Inspection and
monitoring, namely
• conduct regular inspection of all the registered
facilities once in every ninety days and shall
preserve the inspection report as documentary
evidence and a copy of the same be handed over to
the owner of facility inspected and obtain
acknowledgement in respect of the inspection
• place all the inspection reports once in three months
before the Advisory Committee for follow up action
21
• maintain bimonthly progress report containing number of
cases filed and persons convicted, registration made,
suspended or cancelled, medical licenses cancelled,
suspended, inspections conducted, Advisory Committee
meetings held at the district level and quarterly progress
report at the State level
(a) procure the copy of the charges framed within seven
days and in the case of doctors, the details of the charges
framed shall be submitted within seven days of the receipt
of copy of charges framed to the State Medical Council
(b) procure the certified copy of the order of conviction as
soon as possible and in the case of conviction of the
doctors, the certified copy of the order of conviction shall be
submitted within seven days of the receipt of copy of the
order of conviction."
... ... ...
5. Guidelines for inspection of facilities.
"....
Following things need to be examined during inspection of a
Centre (indicative list not exhaustive): [Also refer to the
indicative checklist for inspection of facilities at annex 6]
• Board is displayed prominently on its premises with
text in English and the local language saying,
'Disclosure of the sex of the foetus is
prohibited under the law' [Rule 17 (1)]
• Copy of the Act and Rules available on premises
(and to be made available to clientele on demand
for perusal) [Rule 17 (2)]
• Registration Certificate displayed in a conspicuous
place (near the machine) at the place of business
[Rule 6(2)]
22
• Name and designation of the person using the
equipment is to be displayed prominently on the
dress/coat worn by him/her [Rule 18 (viii)]
• Details to be checked in the Registration
application, certificate and other related documents
(as per Form B)
i. Validity of certificate of registration
ii. Name and educational qualifications of the persons
authorised to use the equipment or machine
iii. Information about the ultrasonography machine or
similar equipment such as number, make model
including probe/s
iv. Prenatal diagnostic procedures approved for the
centre
• Details to be checked in case of facilities with portable
machine/s(portable machine to be used for indoor patients or
as a part of the mobile medical unit or MMU)
i. Area of operation
ii. Number of portable machines installed and/or used
iii. Make and model of the portable machine/s
iv. Registration of the vehicle that is the mobile
medical unit in which the portable machine/s is
available. Confirm that the registration number of
the vehicle is the same as the one mentioned in
Form B (registration certificate)
v. Full address of the service providers
vi. Availability of other services mandated by the
PC&PNDT law in MMU.
• Review of the records at the centre/facility
i. Review of Form 'F' (Genetic clinics/Ultrasonography
centres) [Form F at annex 7]
a. All the relevant points in the F form are filled and the form
is duly signed by the Gynaecologist / Radiologist /
Registered Medical Practitioner performing the procedure
with his/her name, seal, number as per the Act
23
b. Copy of the F form (including the complete information
about the pregnant woman) is sent to the Appropriate
Authority before the 5th (date) of every succeeding month
c. Declaration of the pregnant woman is obtained in the
language she understands when non-invasive techniques
such as ultrasonography have been used
d. Consent letter obtained from the pregnant woman in the
language she understands, when invasive techniques such
as Amniocentesis have been used
e. Declaration is submitted by the doctor/s with time and
date
f. Referral records along with the copy of films of scans are
maintained
g. OPD register along with the ANC register and cash receipts
h. Review computer records along with the hard copies of the
records.
The Central Supervisory Board in the meeting held on 17th
October 2005 recommended developing mechanisms so that
form F can be filled/submitted online. Subsequently, some state
governments have made it mandatory to fill 'F' forms online. In
such cases, along with online filling of the forms, a hard copy of
each form must be maintained at the centre/facility along with
the signed declaration/consent letter (as the case may be) of
the pregnant woman and the declaration of the doctor.
ii. Review of Form 'D' (Genetic Counselling centres) [Form D
at annex 8]
a. All relevant points are filled
b. Forms have been submitted by the 5th (date) of every
month to the Appropriate Authority [Rule 9 (8)]
iii. Review of Form 'E' (Genetic Laboratories) [Form E at
annex 9]
a. All relevant points are filled
b. Consent obtained from the pregnant woman in Form 'G'
[at annex 10]
24
c. Forms have been submitted by the 5th (date) of every
month to the Appropriate Authority [Rule 9 (8)].
• Tally Form 'F' with the OPD Register [Rule 9 (1)] to
ensure that there is no discrepancy In the number of
patients examined and the total number of statutory
forms filled
• After the inspection, if any lapses are found, the AA is
expected to take necessary steps to address the violation
[Section 30 read with Rule 12 (1)]
• Issue a show cause notice seeking explanation as to why
registration of the centre should not be
suspended/cancelled [Section 20 (1)]. Sample format for
issuing a show cause notice can be found at Annex 11.
Guidelines on suspension and cancellation of registration
are at annex 12 [Please also refer to the key sections of
the law pertaining to inspection and issuance of show
cause notice in the box below]
• If applicable, as per Section 30. complete the legal
procedure of search, and seize the Record and the
Ultrasonography machine [Rule 12 (1)]
• File a case with the Judicial Magistrate First Class /
metropolitan magistrate [Section 28]. Sample format for
filing a case is at annex 13."
... ... ...
6. Search & Seizure Operations.
How to undertake search and seizure operations?
• Appropriate Authorities hold the right to enter
and search at all reasonable times any
Genetic Laboratory / Genetic Counselling
Centre / Ultrasonography Centre which is
suspected to have contravened the Act and
examine all registers, documents, receipts,
books, pamphlets, advertisements or
machines and other equipment, and seize and
25
seal these, If the AA believes that these are
likely to furnish evidence related to a
commission of offence [Section 30 (1) and
Rule 12]"
... ... ...
9. Guidelines for Filing a Criminal Complaint.
How to file a criminal complaint under the PCPNOT Act?
As per section 28 of PCPNDT Act the Appropriate Authorities are
authorised to file a criminal complaint in the Court of Judicial
Magistrate First Class/Metropolitan Magistrate. The process of
filing a complaint case has been divided into four segments:
A) Preparatory processes prior to filing a complaint case
B) Documents to be submitted or annexed with the complaint
C) Actual filing of the case
D) General instructions
A) Preparatory Processes
• The Appropriate Authority or any person authorised by the
Appropriate Authority may Inspect any centre. During
inspection if the inspecting authority finds a violation of
Provisions of the Act, they should mention all the violations
of the Act and draw seizure memo/Panchnama with the help
of Independent witnesses [Rule 12]
• Panchnama should be drawn in the presence of Panchas.
Witnesses are only to identify seized/witnessed by them
• if the inspecting authority finds it necessary to seal and seize
materials, including the machine and records, this should be
done in accordance with the law. Inspecting authority should
supply one copy of the list of sealed & seized objects and
obtain an acknowledgement from the owner of the centre or
a person authorised on his/her behalf [Section 30 Rule 12
(3)]
26
• AA should issue a showcause for violations found in
the centre and call for explanation from the owner of
the centre Explanation should un considered in the
Advisory Committee and recommendation for
cancellation/suspension of the registration of centre
should be made to Appropriate Authority Appropriate
Authority should suspend or cancel the registration of
centre by providing reasons for the action taken
• If AA has reason to believe that the machine or any object
may furnish evidence of the commission of an offence then
they may seal the machine or other objects as well in such
cases, the reason has to be recorded in writing for such
action being necessary in the public interest and the
registration of the centre should be suspended without giving
any notice in the interest of law [Section 20 (3)]
• In other cases (except in matters of public interest), white
suspending registration the authority should issue a show
cause notice and call for explanation in a stipulated time.
The explanation should be put forth for consideration of the
Advisory Committee for deciding
a. Cancellation of registration of centre
b. Initiation of Court proceeding as explanation provided in
response to the show cause notice was not found
satisfactory
• If the owner of the centre or the facility or the sonologist,
assistant/employee gives any confession admitting the
offence, it should be properly recorded in writing and duly
signed by the owner or the person authorised on his/her
behalf. If this is not possible then the statement recorded by
anybody on the scene needs to be read by the owner, and if
that too is not possible (in case disease, III-health, illiteracy,
etc.), the same should be read to him/her and explained and
his/her signatures to be taken on it by mentioning that
he/she has understood the contents of the statement after it
was read to him/her and he/she has signed the it willfully,
27
fully conscious of the content and without any coercion or
undue influence. This will be helpful for proving the case.
The inspecting authority should draw up a detailed report of
the inspections with accurate date and time and place and
preferably with a site plan.
B) Documents to be submitted or annexed with the
complaint:
[Pl also refer to the indicative checklist to ascertain
completeness of legal documentation for filing a Case at annex
17. Pl. note that documents are to be submitted in original as
mentioned in the checklist]
It is necessary to submit accurate and complete
documents in the Court of Law. The following list of
documents must be submitted
a. Notification of Appropriate Authority in Government Gazette should
be submitted in original. (Section 17(1)
b. Authorisation letter by the Appropriate Authority in case of
inspection by authority or person authorised by Appropriate
Authority. The letter should contain date and specific area for
inspection, preferably with a site plan
c. Inspection report with all seizure memos
d. Show cause notice issued by Appropriate Authority (Sec
20(1)
e. Panchnama, seated and seized documents/objects(seizure memo)
with the list
f. Statement of centre owner
g. Explanation of centre owner
h. Recommendation of Advisory Committee
i. Order of Suspension and/or cancellation of registration
j. Any other documents which are found during inspection.
28
C) Actual filing of the complaint:
The complaint must be filed by the Appropriate Authority or the
officer so authorised [Sample format for filing of the complaint
at is at Annex 13]
a. During filing of the case the Appropriate Authority should take
all the papers to the legal expert and draft a complaint in
consonance with the facts of the inspection
b. This procedure should be followed under the guidance of the
legal expert who is member in the Advisory
Committee/Assistant Public Prosecutor/District Public
Prosecutor/Special Public Prosecutor as the case may be and
documents vetted by the legal expert before filing of the
complaint
c. All factual aspects should be narrated in the complaint and
law should not be pleaded
d. All necessary people should be made an accused and proper
addresses should be mentioned in the complaint
e. Proper process fee should be submitted in court after the
summoning order is passed. All necessary legal fees and
process fee to be paid from the account of PCPNDT
f. All original documents should be submitted. One copy of the
documents should be kept with the Appropriate Authority
and concerned lawyer/ Public Prosecutor before submission
g. Copy of the documents should be provided to the accused as
and when directed by the court
h. Proper RCC (Registered Complaint Case) Number should be
obtained with the help of superintendent of the Court and
allotment of the case should be checked. Proper next date
should be obtained. This date and Court name and court
proceedings should also be mentioned in the file with the
Appropriate Authority.
29
D) General instructions:
a. Witnesses and Panchas should be trustworthy and
independent so that the risk of them turning hostile during
the trial is minimised
b. Date and time of inspection is crucial, hence it should be
properly cited
c. Ensure that all points of inspection have been covered during
inspection. Use checklist of inspection to ensure
completeness (Annex 6)
d. Ensure that stipulated time is given to the owner of the
centre or facility for providing explanation and order of
cancellation or suspension should not be passed
during this stipulated time.
.... .... ....."
"Indicative Checklist for Inspection of Facilities
Under the PCPNDT Act, 1994
A. General Information:
Date and time of inspection: Date: Time:
Names/designation of the
inspecting authority or details of
team members, if applicable:
Name:
Designation:
Name:
Designation:
Name:
30
Designation:
Name of the facility:
Name of the facility owner:
Type of facility (genetic clinic,
genetic counseling centre, genetic
laboratory, ultrasonography centre,
imaging facility and combinations if
any, pl. specify)
Address of the facility(Complete):
Telephone/mobile:
E-mail"
The guidelines would direct all the appropriate authorities including
the State and District notified under the Act inter alia to observe the
conduct that is indicated under the guidelines for inspection and
monitoring. They should conduct regular inspection of all the
registered facilities once in every 90 days and preserve the
inspection report as documentary evidence and copy of the same
should be handed over to the owner of the facility inspected and
obtain an acknowledgment in respect of the inspection. This is
31
indicative of the fact that the functioning of both the authorities and
the diagnostic centres would be accountable for any violation of the
Act. Guideline No.5 which deals with inspection of facilities has
various checks and balances. The details to be checked in case of
facilities with portable machines have different parameters. The
review of the records at a centre is also indicated in the guidelines.
Form-F which is a Form that is appended to the provisions of the
Act should be checked intermittently and all the relevant points in
the Form should be filled and the Form is duly signed by the
medical practitioner performing the procedure and the Form-F
should be sent to the Appropriate Authority before 5th of every
succeeding month and to be followed several other guidelines
supra.
13. Guideline No.6 deals with search and seizure
operations. The Appropriate Authorities do hold a right to enter and
search any laboratory which is suspected to have contravened the
Act, examine all the registers, seize and seal if the Appropriate
Authority believes that these are likely to furnish evidence related
to the offence. Guideline No.9 deals with filing of criminal
32
complaint. It depicts certain preparatory process that the
Appropriate Authority should issue a show cause notice for the
violation found in the Centre and call for explanation from the
owner and the explanation should be considered in the advisory
committee and recommendation should be made for cancellation or
suspension of registration of the Centre by the Appropriate
Authority. It is only then a criminal complaint can be registered.
The documents that are to be annexed to the criminal complaint
also bear reference in the guidelines which includes a show cause
notice issued by the Appropriate Authority under Section 20 supra.
Statement of the owner, explanation of the centre/owner and
general instructions would be indicated. The authority should
ensure that stipulated time is given to the owner of the facility to
provide explanation and then order cancellation or suspension but
during the stipulated time, no cancellation or suspension should
take place. The checklist for inspection of facilities is also quoted
supra.
14. That guidelines issued by Government of India are said
to have been adopted by the State. It appears to remain only in
33
paper. None of the procedures which are stipulated in the guidelines
in furtherance of the Act are followed in the case at hand. No
doubt, a show cause notice is issued to the petitioners on 08-12-
2023. By then, the seizure had already happened and suspension
had already taken place. But, the notice is issued as to why the
registration should not be suspended. Therefore, it is for the State
to henceforth adhere to the guidelines quoted supra and
meaningfully bring about the violations of the Act. Leaving
loopholes in law would only form a protective veneer to the
violators of the law, if any. The loopholes should not blur the intent
behind the enactment and the rigor of provisions of the Act.
Therefore, the afore-quoted guidelines shall be strictly adhered to,
by the Authorities, while conducting inspection and registration of
criminal cases.
15. Swinging back to the case at hand, as observed
hereinabove, the notice that is rendered on 08-12-2023 is after the
seizure and cancellation of registration. Therefore, this is not in
consonance with Section 20 of the Act. If it is not in consonance, it
would tumble down for it being in violation of law. Therefore, the
34
petitioners should be permitted to reply to the said notice and
further action be taken strictly in consonance with the guidelines
and the provisions of the Act.
16. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Notice dated 08-12-2023 issued by the 1st respondent stands obliterated. All consequent actions including registration of criminal case also stand quashed.
(iii) The State shall issue notice within one week from the date of receipt of the copy of this order. The petitioners shall submit their reply within one week from the receipt of notice.
(iv) The State, thereafter, is at liberty to initiate action in strict consonance with Section 20 of the Act, if need 35 arises, after submission of reply or otherwise from the hands of the petitioners.
(v) The petitioners are entitled to all consequential benefits that would flow from the quashment of the notice and all actions thereto.
'
(vi) A copy of this order shall be transmitted to the Secretary, Health and Family Welfare, Government of Karnataka, for necessary compliance. Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:SS