Gujarat High Court
Dr Yogesh Nathabhai Chauhan vs State Of Gujarat on 27 September, 2019
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/12960/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12960 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DR YOGESH NATHABHAI CHAUHAN
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR VIJAY H NANGESH(3981) for the Petitioner(s) No. 1
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3,4
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 27/09/2019
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Ms. Shruti Pathak wavies service of rule on behalf of the respondent no.1 and learned advocate Mr. Nikhilesh Shah waives Page 1 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021 C/SCA/12960/2017 JUDGMENT service of rule on behalf of respondent no.2.
2. Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.
3. By this petition under Articles 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"(A) Your Lordships may be pleased to allow and admit this petition.
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the order dated 19.10.2016 (AnnexureA) passed by respondent no.4 herein in the interest of justice.
(C) Your Lordships may be pleased to direct the respondent authority to issue registration certificate under the Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and also release the sonography machine with some reasonable time, in the interest of justice.
(D) To pass other and further orders necessary in the interest of justice."
4. Brief facts giving rise to this petition are as under :
4.1) The petitioner is a medical practitioner duly registered with Gujarat Medical Council. The petitioner started his clinic in the name of Chiranjivi Hospital and Sonography Clinic in the year 2006 and got registered his clinic as well as his Sonography machine under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Page 2 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021 C/SCA/12960/2017 JUDGMENT Selection) Act, 1994 ("the Act" for short).
4.2) On 16th January, 2009, the premises of the petitioner was checked and sonography machine was sealed after carrying out panchnama by the respondent authority.
4.3) Thereafter, on 17th January, 2009, petitioner was served with a show cause notice intimating suspension of certificate of registration and sealing of sonography machine on the ground of few deficiency in maintaining the records required under the Act and under Rules 9 and 17 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 ("the Rules" for short). The petitioner replied to such show cause notice on 19th January, 2008.
4.4) In the meeting of advisory committee held on 20 th January, 2009, it was decided that criminal compliant should be filed against the petitioner and other three doctors before the Court of learned Judicial Magistrate First Class at Shihor, District Bhavnagar. Accordingly Criminal Case No. 171 of 2009 was filed against the petitioner on 30th January, 2009.
4.5) The petitioner preferred Appeal No. 2/2009 before the State Appellate Authority on 1st April, 2009 which was disposed of declaring it to be premature as no final order of cancellation of registration was passed and the authority was directed to pass final order within a week.
4.6) Thereafter respondent no.2 passed the final order of Page 3 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021 C/SCA/12960/2017 JUDGMENT cancellation of registration of the petitioner on 19th May, 2009.
4.7) Being aggrieved and dissatisfied with the order dated 19th May, 2009, petitioner preferred Appeal No. 4/2009 before State Appellate Authority and the State Advisory committee on 8th June, 2009 passed order directing the Appropriate Authority, Bhavnagar to place the matter before the Advisory Committee for its opinion and then pass order under section 20(2) of the Act.
4.8) Thereafter, pursuant to direction dated 8th June, 2009, matter was referred to Advisory Committee and after the same, the Appropriate Authority confirmed its earlier order dated 19th May,2009 cancelling the registration of the petitioner's clinic.
4.9) The petitioner thereafter preferred Appeal No.6/2009 which was rejected by the respondent authority on 24th September, 2009.
4.10) Being aggrieved by the order dated 24 th September, 2009, petitioner preferred Special Civil Application No.12881/2009 before this Court. This Court by order dated 9th April, 2014 quashed and set aside the impugned orders and directed respondent no.2 to give an opportunity of personal hearing to the petitioner and permit the petitioner to adduce further explanation and/or document and thereafter, pass a denovo order.
4.11) Thereafter respondent no.2 authority by order dated Page 4 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021 C/SCA/12960/2017 JUDGMENT 7th May, 2014 cancelled the registration of the petitioner.
4.12) However, in Criminal Case No.171/2009, learned Principal Civil Judge and JMFC Shihor by judgment and order dated 15th October, 2015, acquitted the petitioner from all charges levelled against him.
4.13) Against the order of acquittal, Taluka Health Officer, Bhavnagar preferred Criminal Appeal No. 623/2016 before this Court which is admitted and bailable warrant for a sum of Rs. 10,000/ was issued.
4.14) It is the case of the petitioner that after acquittal from the criminal case, petitioner made various applications on 11th July, 2016, 13th September, 2016 and 26th September, 2016, before respondent no.2 for registration as well as for opening the seal of the sonography machine.
4.15) The respondent no.4 vide order dated 19th October, 2016 rejected the applications of the petitioner on the ground that against the order of acquittal, Criminal Appeal is pending before this Court.
5. Heard learned advocate Mr.A.D.Oza for learned advocate Mr. Vijay Nagesh for the petitioner learned Assistant Government Pleader Ms. Shruti Pathak for the respondent no.1 and learned advocate Mr. Nikhilesh Shah for respondent no.2.
6. Learned advocate for the petitioner submitted that order Page 5 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021 C/SCA/12960/2017 JUDGMENT dated 19th October, 2016 passed by respondent no.4 is without considering the fact that the petitioner is acquitted from the criminal case under the provisions of the Act. It was further submitted that no case is pending against the petitioner except the acquittal appeal filed by the respondent before this Court. The respondent authorities passed the impugned order only on the ground that as acquittal appeal is pending before this Court, application of the petitioner is to be rejected.
6.1) Learned advocate further submitted that no opportunity of hearing was given by the respondent authority before passing the impugned order. The only reason given in the order is that against the acquittal of the petitioner by the trial Court, Criminal Appeal No. 623/2016 pending before this Court is admitted and bailable warrant for sum of Rs. 10,000/ is issued.
6.2) It was therefore, submitted that the grounds on which the sonography machine of the petitioner was sealed and registration was cancelled are therefore, contrary to the provisions of the Act inasmuch as the petitioner has never violated any of the provisions of the Act or the Rules framed thereunder.
6.3) It was also submitted that keeping the sonography machine in idle condition would neither serve any purpose nor it would be required for any evidence at the appellate stage and therefore, the action of the respondent authority of not desealing the sonography machine even after the petitioner is acquitted is unjust and arbitrary.
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7. On the other hand, learned advocate Mr. Nikhilesh Shah for the respondent no.2 submitted that appeal is continuation of trial and as the appeal is pending before this court, respondent authorities thought it fit not to consider the application made by the petitioner for de sealing of the sonography machine.
7.1) It was submitted that as this Court has found substance in appeal and that is how appeal is admitted and therefore, there are all chances of respondents succeeding in appeal meaning thereby acquittal granted by the trial Court is likely to be set aside and probably the proceedings may be remanded back for fresh consideration after taking into account the impounded documents like FormF seized from the clinic of the petitioner.
7.2) Reliance was placed on the averments made in the affidavit in reply filed on behalf of respondent no.2 and more particularly on paragraphs no. 4 to 8 which read as under :
"4. Annexed herewith and marked as AnnexureR4 is a chart reflecting the statistical data about the no of forms were in deficit/inaccuracy has been found in practically most of FormF. Detail of deficit/inaccuracy is also narrated for 120 Form F. This is just to bring it to the notice of the Hon'ble Court about the type of deficit/inaccuracy/nonobservance of the statutory provision by the petitioner. To give an idea following is the list.
Column No. 8 is not filled in Reason for doing sonography as well as the result of sonography not stated.Page 7 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021
C/SCA/12960/2017 JUDGMENT No of existing children not written Form is left blank.
Form is signed by the beneficiary but not filled in. Address incomplete Signature of the pregnant woman is not there Signature of the doctor conducting sonography is missing instead of signature of pregnant woman, others have signed.
Form not sent to the office.
Column no. 814 not filled in Age of pregnant lady is not written Copy of prenatal Registration (PNDT Register) is not available.
5. In fact total 692 Form F were seized and out of which 48 forms have been found to be not as per the statutory requirement. Perusal of the AnnexureR4 also indicate that the forms filled in by the petitioner have not been send to the office of answering respondent. Thus there is a clear violation of Rule 9(8).
6. On one hand the petitioner is resorting to frequently making application/initiating communication and on other hand the petitioner is threatening of committing suicide. This clearly indicates that by hook or crook the petitioner wanted to have things being revoked in his favour despite the fact that the petitioner has absolutely violated the statutory provisions and thereby it can safely be said that the petitioner is not having due respect for the law of land. As there cannot be any direct evidence about having detected sex of the foetus and disclosed to the pregnant lady or relative, the legislators have thought it fit to make stringent provisions in the Act so as to deter the wrong doers from frustrating the very purpose of the Act. It is settled position of law that if a thing is required to be done in a particular manner it has to be done in that way. This seems to have been taken very lightly by the petitioner. Annexed herewith and marked as AnnexureR5 is zerox copy of such communication. Ultimately, the petitioner has realised the mistake and given the statement before the police as well as the answering respondent that the petitioner will not be resorting to any sort of such kind of nuisance. Nonetheless the fact remains that petitioner was ppressurizing.Page 8 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021
C/SCA/12960/2017 JUDGMENT
7. For some or other reason during trial Form F seized from the clinic of the petitioner has not been produced by the complainant. The same has been attempted to be produced during examination of one of the panch. Annexed here with and marked as AnnexureR6 is copy of Exhibit 35 which is deposition of one Shri Naredrasinh Dilavarsinh Zala during trial of Criminal Case No. 171/09 in the Court of Judicial Magistrate 1st Class, Sihor. Said Shri Zala was one of the signatory of rojkam drawn during visit of the clinic of the petitioner. It has not been observed that the documents that were intended to be produced wee not seized from the clinic of the petitioner. Even in the memo of the petitioner also it has not been contended that the form F attempted to be submitted as a part of evidence were not seized from the clinic of the petitioner.
These are the most important document as stated earlier and go to the root of the matter indicating the petitioner conveniently violating the statutory provisions not only once or twice but as many as more than 480 times. The Hon'ble Court would not like to view this leniently because that may amount to giving go by to the statutory provisions which are required to be observed by the petitioner.
8. As there are all likelihood of the answering respondent succeeding in criminal appeal, it would be premature at this stage go entertain the Special Civil Application or grant any kind of relief in favour of the petitioner as it may encourage the wrong doers to commit further wrong/act illegally. The Hon'ble Court may not be wanting to let this happen. Disturbed sex ratio is the concern of one and all and granting any kind of relief in favour of the petitioner may worsen already disturbed sex ratio."
7.3) Referring to the above averments, it was submitted to dismiss the petition as no case is made out by the petitioner for any relief.
8. Having considered the submissions made by the learned advocates for the respective parties and having gone Page 9 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021 C/SCA/12960/2017 JUDGMENT through the material on record, it is not in dispute that the petitioner is acquitted from the charges levelled against him under the provisions of the Act by the trial court. Therefore, merely because the appeal is pending before this Court, cannot be a ground for denying the registration under the Act or not removing the seal applied on the sonography machine by respondent no.2. Reason given by respondent no.2 in the impugned order dated 19th October, 2016 is not tenable in law as there is no provision under the Act to deny registration under the Act or not to open the seal in sonography machine placed by respondent authority on the pretext of pendency of the acquittal appeal before this Court or before any Court. The petition is therefore, required to be allowed only on this ground without going into the merits of the case.
9. In view of such circumstances the petition succeeds and is accordingly allowed. Impugned order dated 19th October, 2016 passed by respondent no.4 is hereby quashed and set aside. Respondent authority is directed to consider the application made by the petitioner for registration certificate under the Act and for release of sonography machine within a period of four weeks from the date of receipt of this order in accordance with law after providing opportunity of hearing to the petitioner.
10. Petition is accordingly disposed of. Rule is made absolute to above extent. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 10 of 10 Downloaded on : Mon Jan 11 20:59:37 IST 2021