Bombay High Court
Dr. Geeta Gannushing Shevgan (Rajput) vs The State Of Maharashtra on 19 September, 2019
Equivalent citations: AIRONLINE 2019 BOM 1650
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
(1) 904 cri wp 1689.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1689 OF 2017
Dr. Geeta Gannushing Shevgan (Rajput),
Age: 72 years, Occ. Doctor,
R/o Samarth Nagar Gitanjali
Hospital Aurangabad,
Tq. & Dist. Aurangabad. ... PETITIONER
Versus
The State of Maharashtra
Through its appropriate authorities
Under PCPNDT Act
Dr. Sarika Kadam Naib Tahsildar
Aurangabad, Tq. & Dist. Aurangabad. ... RESPONDENT
...
Advocate for Petitioner : Mr. K.M. Nagarkar.
A.P.P. for Respondent-State : Mr. B.V. Virdhe
...
CORAM : MANGESH S. PATIL, J.
DATE : 19.09.2019
ORAL JUDGMENT :-
Heard. Rule. The Rule is made returnable forthwith. The learned A.P.P. waives service for respondent-state. With the consent of both the sides the matter is heard finally at the stage of admission.
2. The petitioner is an accused in an offence punishable under Section 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (2) 904 cri wp 1689.17 (Prohibition of Sex Selection) Act, 1994 and the Rules framed thereunder.
3. According to the prosecution, without there being any licence or permit the petitioner was found to have used a sonography machine and to have performed sonography on patient Usha Kiran Pawar. Dr. Sarika Kadam who was then serving as Naib Tahsildar (Revenue) at Aurangabad stated to have been duly authorsied by the Government notification dated 16.10.2007 conducted a panchanama and filed the complaint before the Magistrate. The evidence before the charge was recorded and by the impugned order the Magistrate directed the charge to be framed holding that there were sufficient grounds to frame it. Being aggrieved by such order a revision was preferred before the Sessions Court but the Revisional Court also dismissed it by the order dated 08.11.2017. Hence this Writ Petition.
4. The learned advocate for the petitioner vehemently submits that the complainant was not the Appropriate Authority appointed under Section 17 of the PCPNDT Act and therefore the complaint filed by her is not maintainable. The learned advocate further submitted that merely because the sonography machine was found in her clinic no inference about its use could have been deduced. Though the petitioner is alleged to have performed sonography test on the patient Usha on 20.07.2014 the grievance was made ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (3) 904 cri wp 1689.17 belatedly and the complaint was also filed after several months. The petitioner is being falsely implicated with some ulterior motive. In fact patient Usha is the wife of one Kiran who serves as a Peon in the office of Dr. Munde who is the Technical Officer and was entertaining a grudge against the petitioner. The papers of prescriptions purportedly issued by the petitioner also do not contain any report regarding sonography. In fact the machine found in the clinic of the petitioner was a thirty year old machine and was defunct. The whole matter is concocted and the petitioner is being falsely implicated. There was no explanation for the delay occasioned in filing the complaint. The data record from the sonography machine was also not captured. There was total non-application of mind by the Appropriate Authority. The situation is squarely covered by the decision of this Court in the case of Dr. Sai W/o Santosh Shiradkar V/s. State of Maharashtra in (Criminal Writ Petition No. 1381 of 2015 decided on 27.09.2016). There was no sufficient ground to frame the charge. The learned Magistrate ignored all the aforementioned aspects and even the Sessions Court has overlooked those. Therefore both the impugned orders be quashed and set aside and the petitioner may be discharged.
5. Per contra, the learned A.P.P. submits that this being a stage for framing of the charge pursuant to the recording of evidence before framing it, ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (4) 904 cri wp 1689.17 the prosecution has examined the complainant. At this juncture there is nothing to doubt veracity of this witness. In fact the witness has been cross- examined on behalf of the petitioner to some extent. The complainant being the Naib Tahsildar was duly authorised by the Government and she had specifically mentioned about it in her examination in chief itself. Besides, the patient has also specifically stated about the petitioner having performed sonography test on her in her hospital on 20.07.2014. She has also furnished the prescriptions which have been produced on the record purportedly issued by the petitioner in her own handwriting and signature. These prescriptions clearly show that there are specific notings about the observations which are usually made pursuant to a sonography test. Therefore merely because the record from the machine has not been retrieved, the petitioner cannot take advantage thereof at this juncture.
6. The learned A.P.P. would further submit that in fact the petitioner's machine was already seized in connection with some other crime in the year 2003 and the burden was on her to show that the seal was broken pursuant to some order or decision of some Court. In spite of such seizure she was found to have used the machine. Obviously the petitioner was unable to produce any record as is required under the Act and the Rules as regards the use of the sonography machine. Thus there is a prima facie sufficient material ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (5) 904 cri wp 1689.17 to frame the charge. All these aspects have been minutely considered by the learned Magistrate. The order did not suffer from any perversity, arbitrariness or capriciousness so that it could have been interfered with in the revision by the Sessions Court.
7. Lastly, the learned A.P.P. adverted my attention to the judgment of the Supreme Court in the case of Federation of Obstetrics and Gynecological Societies of India (FOGSI) V/s. Union of India and Ors; 2019 SCC Online SC 650, particularly observations in paragraph no.92, 98 and 102 which clearly take into consideration the aim and object of maintaining the record. The observations and the conclusions drawn by the Supreme Court clearly indicate the seriousness with which all the stakeholders are expected to look at the violations of the provisions of the Act. Therefore the petitioner cannot be allowed to go scot free at the threshold when there is enough material on the record making it a serious violation of the provisions of the Act and the Rules framed thereunder.
8. As far as the competence of the complainant Dr. S.K. Kadam who filed the complaint is concerned, in her complaint as well as in her deposition she has specifically referred to the Government Resolution dated 06.11.2001 issued under Section 17 of the PCPNDT Act appointing all Medical ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (6) 904 cri wp 1689.17 Superintendents as an Appropriate Authority and as to how the Collector, Aurangabad has also appointed her as an Appropriate Authority to discharge the duties throughout the district of Aurangabad by the order dated 01.09.2014.
9. Taking hint from it the learned advocate for the petitioner submits that the alleged sonography was performed on 20.07.2014 but Dr. S.K. Kadam was authorised by the Collector only on 01.09.2014 and therefore she was not competent to file the complaint.
10. True it is that Dr. Kadam was authorised by the Collector to act as an Appropriate Authority w.e.f 01.09.2014 and the alleged sonography was performed on 20.07.2014. But then, pursuant to the information it is only after she derived the power by the order of the Collector on 01.09.2014 that she visited the petitioner's hospital on 27.01.2015 along with the other officers from the vigilance squad. It is thereafter that the sonography machine was found in the hospital and other paraphernalia like gel bottles, probe, swabs etc. were found lying nearby. Therefore it cannot be said that Dr. S.K. Kadam had no authority to file the complaint only on the ground that the alleged sonography test was performed before she derived the authority and power under Section 17. Therefore there is no substance in the submission of ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (7) 904 cri wp 1689.17 the learned advocate in this regard.
11. The Magistrate has conducted evidence before the charge and has examined Dr. S.K. Kadam. She has specifically stated in consonance with her complaint as to how she visited the hospital of the petitioner and to have recovered some incriminating material to justify the inference about the petitioner having performed sonography test on the patient Usha Pawar. Even the prescriptions purportedly in the handwriting of the petitioner have been recovered which prima facie indicate the observations made pursuant to the performance of sonography test. She has specifically stated to have confronted the petitioner with these prescriptions and the latter having admitted those to be in her handwriting. This witness has thereafter stated that the petitioner could merely produce two registration certificates of sonography clinic one of which was for the period 1993 to 1998 and the other was for the period 1996 to 2001. During her cross-examination conducted on behalf of the petitioner nothing could be elicited much less to draw any inference about either there being any loophole in procedural aspects or about the complaint having been filed with some ulterior motive. If such is the state of affairs, there is apparently sufficient material to show that there is a clear violation of the provisions of the Act and the Rules framed thereunder and the material is sufficient enough to frame the charge as has been elaborately ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 ::: (8) 904 cri wp 1689.17 considered by the Magistrate.
12. The aim and object of the PCPNDT Act and the Rules framed thereunder have now been elaborately considered and discussed by the Supreme court in the case of FOGSI (supra). In my considered view one need not delve in that aspect at this juncture. Suffice for the purpose to observe that there is enough material to frame the charge. The Magistrate has considered all the aspects and by no stretch of imagination the observations can be said to be either perverse, arbitrary or capricious. Obviously the Revisional Court could not have intervened and has rightly refused to intervene.
13. The Writ Petition is dismissed. The rule is discharged.
[MANGESH S. PATIL, J.] mub ::: Uploaded on - 24/09/2019 ::: Downloaded on - 19/04/2020 12:12:22 :::