Karnataka High Court
Shree Devi Nursing Home vs State Of Karnataka on 28 February, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 12.02.2024
Pronounced on : 28.02.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.1412 OF 2024 (GM - RES)
BETWEEN:
SHREE DEVI NURSING HOME
AT NO.1, 2, 3 RCES COLONY
BHOGADI 2ND STAGE
MYSURU - 570 026.
REPRESENTED BY ITS PARTNER
DR.DEVARAJ
S/O LATE B.D.DEVAPPA
AGED ABOUT 59 YEARS
NEAR SANGAM CIRCLE
VIJAYANAGAR 3RD STAGE,
MYSURU - 570 017. ... PETITIONER
(BY SMT.B.V.VIDYULATHA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF
HEALTH AND FAMILY WELFARE
VIKAS SOUDHA
BENGALURU - 560 001
REPRESENTED BY ITS
2
PRINCIPAL SECRETARY.
2. THE DEPUTY COMMISSIONER AND
DISTRICT REGISTRATION AUTHORITY
MYSURU - CITY
MYSURU - 570 001.
3. TALUK HEALTH OFFICER AND LOCAL INSPECTION
COMMITTEE, KPMEA
JHANSI RANI LAKSHMI BAI ROAD
CHAMARAJAPURAM MOHALLA,
LAKSHMIPURAM MYSURU TALUK
MYSURU DISTRICT - 570 004.
... RESPONDENTS
(BY SMT.NAVYA SHEKHAR, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO a) QUASH THE NOTICE
DATED 19/12/2023 ISSUED BY THE R3 BEARING NO. TAA AA A /
MY /11/2023-24 AT ANNEXURE-E TO THE WP, HOLDING THAT
THERE IS NO AUTHORITY IN LAW TO THE RESPONDENTS TO LOCK
DOWN THE PREMISES OF THE PETITIONER NURSING HOME AND
ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.02.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question a notice dated 19-12-1923 by which the Nursing Home run by the petitioner 3 comes to be locked and has sought a consequential direction by issuance of a writ in the nature of mandamus to hold proceedings in accordance with law.
2. Shorn of unnecessary details, the facts, in brief, germane are as follow:-
The petitioner is one Shree Devi Nursing Home (hereinafter referred to as 'the Nursing Home' for short). It is claimed that the petitioner is a 40 bedded nursing home registered under the provisions of the Karnataka Private Medical Establishments (Amendment) Act, 2017 ('the Act' for short). The licence so granted by the authorities under the Act is said to be valid up to 14-06-2026. It is further claimed that the petitioner runs a Ultra Sound Clinic within the premises of the Nursing Home and the said Ultra Sound Clinic is registered under the provisions of the Pre-
conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ('the 1994 Act' for short). It is claimed that the Nursing Home is run by Dr. Devaraj B.D., and his wife Dr. Nalini P, who are registered before the Karnataka Medical Council under the 4 Karnataka Medical Registration Act, 1961. The claim is that the Nursing Home and the doctors are all registered under the appropriate provisions of law. It is further averred that the Nursing Home is being run without any complaint from any quarter whatsoever. On 19-12-2023 the 3rd respondent/Taluk Health Officer and Local Inspection Committee under the aforesaid Acts causes a surprise inspection upon the Nursing Home, finds various deficiencies, issues notice enclosing list of deficiencies and calls upon the Nursing Home to submit its reply within seven days, failing which, action would be taken in accordance with law.
3. Pending issuance of clarification, on the score that the documents seized during the search did not reveal any maintenance of records both under the Act and the 1994 Act, the Nursing Home comes to be closed by placing a lock. It is then, the petitioner is said to have got the knowledge of sex determination racket being unearthed by the authorities in the city of Mysore, as several scanning centres were inspected and records were seized. Therefore, the notice comes to be issued after the search and seizure of the documents upon the petitioner on 19-12-2023. A 5 reply is said to have been submitted on 21-12-2023 and pending consideration of the reply the premises is locked as observed hereinabove. It is these actions that have driven the Nursing Home to this Court in the subject petition.
4. Heard Smt. B.V. Vidyulatha, learned counsel appearing for the petitioner and Smt. Navya Shekhar, learned Additional Government Advocate appearing for the respondents.
5. The learned counsel Smt. B.V.Vidyulatha appearing for the petitioner would take this Court through the provisions of the Act, the 1994 Act and the Medical Termination of Pregnancy Act, 1971 to buttress her submission that no provision under the aforesaid Acts would permit closure of a Nursing Home by locking it, unless it is in violation of the provisions of the Act. She would, therefore, contend that if there are violations under the 1994 Act it would be open to the State to seal the scanning machine or close the scanning centre within the Nursing Home and not seize the Nursing Home itself. It is her submission that closure of Nursing Home is a drastic step, which power the State does not have, unless the 6 Nursing Home is not the one registered under the Act. She would submit that time was not even granted to the Nursing Home to submit its reply to the notice so issued. The scanning machine was very much available in the Nursing Home and all scanning reports are found in the scanning machine itself. Even to demonstrate that everything was in order, no breathing time was given by the State is the submission of the learned counsel. She would seek quashment of the entire proceedings and opening of Nursing Home.
6. Per-contra, the learned Additional Government Advocate Smt. Navya Shekar would vehemently refute the submissions by taking this Court through the documents filed by the State to contend that there are gross violations by the Nursing Home both under the Act; the 1994 Act and the Medical Termination of Pregnancy Act. She would contend that several surgeries are performed which are found in the record books but none of them are by qualified doctors. The doctors who run the Nursing Home are only qualified with MBBS and they have even performed surgeries without qualification. MBBS is only a basic qualification and unless they have a post-graduation or super-speciality degree, the doctors 7 cannot perform surgeries. The learned Additional Government Advocate would further submit that there is violation of 1994 Act as well, as the scanning machine did not contain any details of medical termination of pregnancies undertaken by the Nursing Home. Specific instances are quoted that foetus is removed of four patients which were 20 weeks, 24 weeks, 31 weeks and 29 weeks old and so on without following due process of law and these records are not even found in the scanning machine. It is, therefore, action had to be taken to plug all these scanning centres which have been running sex determination resulting in removal of female foetus. She would, therefore, submit that the petition be dismissed with exemplary costs.
7. The learned counsel for the petitioner would join the issue in contending that there were reasons for medical termination of pregnancy of four illustrations that are given. The reasons are indicated in the discharge summary itself. Insofar as scanning machine not divulging these details are concerned, the learned counsel would contend that the scanning machine was replaced recently and the old scanning machine data was not retrievable. It 8 would need time to retrieve the data with the help of appropriate technicians. If time is granted that also would be done. In all, the submission of the learned counsel for the petitioner is that the Nursing Home has not indulged in any act that would become contrary to any of the provisions of law projected by the State.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute and as such they would not require reiteration. It is a matter of record that two people run the Nursing Home, the names of whom are quoted hereinabove. Their qualification is admittedly MBBS. They do not possess either post-graduation or super-speciality degrees. It is the averment that the Nursing Home is being run for the last 28 years. The Government in order to curb sex detection in the State conducted inspection of 139 scanning centres in Mysore. One such was the petitioner. On conduct of search on 19-12-2023 several violations of law are projected to have been discovered at the time 9 when the search was conducted. Therefore, a notice dated 19-12-2023 comes to be issued to the petitioner. The notice reads as follows:
" ಾಲೂಕು ಆ ೋ ಾ ಾ ಗಳ ಕ ೇ , ೖಸೂರು ಾಲೂಕು, ೖಸೂರು ಸಂ ೆ : ಾಆಅ/ ೖ/11/2023-24 ಾಂಕ:19/12/2023 " ೋ%&"
ೋ%&"
(ಷಯ: +ಮ- .+/ / 0ಾ1 .+/ / 2ೆಂಟ4 .+/ / ಪ78ೕಗ9ಾ:ೆ / 2ೇ ೇ; <ೆಂಟ;/ ನ>೯A@ Aೋಂ / ಆಸB ೆ7Cಾದ ಅ:ೋಪE ಆಯುF/ನುG HಾIE ಮತುK Lಾಖ:ಾEಗಳನುG ಸ1ಸುವ ಬ ೆP. ಾಂಕ: 18/12/2023 ºÁUÀÆ 19/12/2023 gÀAzÀÄ ¤ªÀÄä ²æÃzÉë £À¹ðAUï ºÉÆÃA E°èUÉ PÉ.¦.JA.E.J £ÉÆÃqÀ¯ï C¢üPÁjUÀ¼ÀÄ ªÀÄvÀÄÛ vÁ®ÆèPÀÄ DgÉÆÃUÁå¢üPÁjUÀ¼ÀÄ ¨sÉÃn ¤Ãr ¥Àj²Ã°¹zÁUÀ, F PɼÀPÀAqÀ £ÀÆå£ÀvÉUÀ¼ÀÄ PÀAqÀħA¢zÀÄÝ ¢£ÁAPÀ: 19/12/2023 gÀAzÀÄ £ÉÆÃn¸ï eÁj ªÀiÁqÀ¯ÁVzÀÄÝ, FªÀgÉUÉ vÀªÀÄä ¸ÀªÀÄeÁ¬Ä¶ ¸À°è¹gÀĪÀÅ¢®è. F «µÀAiÀĪÀ£ÀÄß Cwà UÀA©üÃgÀªÁV ¥ÀjUÀt¹zÀÄÝ, F jÃwAiÀÄ ¤ªÀÄä £ÀÆå£ÀvÉUÀ¼À£ÀÄß PÀ£ÁðlPÀ SÁ¸ÀV ªÉÊzÀåQÃAiÀÄ ¸ÀA¸ÉÜUÀ¼À C¢¤AiÀĪÀÄ 2007 ªÀÄvÀÄÛ ¤AiÀĪÀiÁªÀ½UÀ¼ÀÄ 2009 gÀ ¤AiÀĪÀĪÀ£ÀÄß G®èAX¹gÀĪÀÅzÀjAzÀ ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ PÀæªÀĪÀ£ÀÄß ¤ªÀÄä «gÀÄzÀÞ KPÉ dgÀÄV¸À¨ÁgÀzÀÄ JA§ÄªÀÅzÀPÉÌ F £ÉÆÃn¸ï ¥ÀvÀæ vÀ®Ä¦zÀ 7 ¢£ÀzÉƼÀUÉ, F ¥Áæ¢üPÁgÀPÉÌ ¤ªÀÄä ¸ÀÆPÀÛ ¸ÀªÀÄeÁ¬Ä¶AiÀÄ£ÀÄß ¤Ãr zÁR¯ÁwUÀ¼À£ÀÄß ¸À°è¸ÀvÀPÀÌzÀÄÝ, vÀ¦àzÀ°è PÁ£ÀÆ£ÀÄ jÃw ¸ÀÆPÀÛ PÀæªÀÄ dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ.
ನೂ ನ ೆಗಳR:
1. ಾಸS Tೈದ .ೕಯ ಸಂ<ೆU ಉತKಮ ಪ ಸರದ1 ಇಲLೆ ಇರುವXದು.
2. ಉತKಮTಾದ ಾZ [ೆಳಕು ಪ ಸರ ೆ\ ಲಭ (ಲ ರುವXದು.
ರುವXದು.
3. 9ೌ_ಾಲಯದ ವ ವ<ೆU <ಾಕಷು` ಸಂ ೆ ಯ1 ಇಲ ರುವXದು.
ರುವXದು.
4. ಸಂ<ೆUಯು (Lಾ ಹc ೆಯುಳd Tೈದ ರನುG. ರನುG. (Lಾ ಹc ೆಯುಳd ಮತುK ತರ[ೇE Aೊಂ ದ.
ದ. ಅ ೆTೈದ .ೕಯ >ಬeಂ ಯನುG AೊಂದLೆ ಇರುವXದು.
ಇರುವXದು.
10
5. ((ಧ ಪ7 ಾಯcಗಳನುG ನ2ೆಸಲು.
ನ2ೆಸಲು. <ಾಧ ೆ ಸಲಕರhೆಗಳR Aಾಗೂ ಇತರ ಮೂಲ <ೌಕಯcಗZ ಾS ಅವಶ ಕTಾದ ಕಟ`ಡಗಳನುG AೊಂದLೆ ಇರುವXದು.
ಇರುವXದು.
6. ಘನ ಾ ಜ ವಸುKಗಳ +ವcಹhೆಯನುG ಕ7ಮಬದnTಾS +ವcIಸLೆ ಇರುವXದು ದು..
ಇರುವXದು
7. p. ಾq Lಾಖ:ೆಗಳ +ವcಹhೆಯನುG ಕ7ಮಬದnTಾS +ವcIಸLೆ ಇರುವXದು.
ಇರುವXದು.
8. Tೈದ .ೕಯ ದೃsಕರಣ ಪ7Hಾಣ ಪತ7ಗಳR, ಪತ7ಗಳR, ಸಂ<ೆUಯ1 ೋSಗZ ೆ Aಾಗೂ <ಾHಾನ ಜನರ EಳRವZ ೆ ಬರುವಂ ೆ ಸೂಚ ಾ ಫಲಕದ1 ಪ7ದxcಸLೆ ಇರುವXದು.
ಇರುವXದು.
9. ಶಸy p. ಾq ೊಠ{, ೊಠ{, Aೆ ೆ ೊಠ{ಯ1 ಸ|ಚ} ೆ,ೆ, ಸU~ಾವ ಾಶ, ಾಶ, ಸೂಕK ಸಲಕರhೆಗಳR ಇಲ ರುವXದು.
ರುವXದು.
10..
10 ಎಕq ೇ, €,, ಇ.>.• ಗಳ <ೌಲಭ (ಲ ರುವXದು.
ೇ, :ಾ € ರುವXದು.
11. 1. PÁ¥ÉÆÃðgÉõÀ£ï mÉæÃqï ¯ÉʸÀ£ïì (ªÀÈwÛ ¥ÀgÀªÁ£ÀV ¥ÀvÀæ)
2. ¸ÉêÉUÀ½UÉ «¢ü¸ÀĪÀ ZÁdÄð ¥ÀnÖ.
3. PÀ£ÁðlPÀ gÁdå ¥Àj¸ÀgÀ ªÀiÁ°£Àå ¤AiÀÄAvÀæt ªÀÄAqÀ½¬ÄAzÀ ¤ÃqÀĪÀ ¥ÀvÀæ.
4. ¦.¹. ªÀÄvÀÄÛ ¦.J£ï.r.n ¯ÉʸÀ£ïì.
5. ªÀåzÀågÀÄ, CgɪÉåzÀåQÃAiÀÄ ¹§âA¢UÀ¼À ¥ÀæªÀiÁt ¥ÀvÀæ - EvÀgÉ zÁR®wUÀ¼À£ÀÄß MzÀV¹gÀĪÀÅ¢®è.
6. ¥ÀgÀªÁ¤UÉ £À«ÃPÀgÀt ºÉÆAzÀzÉ EgÀĪÀÅzÀÄ.
7. Expired suture material labour room £À°è ®¨sÀåªÁVzÉ.
8. zÁR¯Áw «ªÀgÀ ¤ÃrgÀĪÀÅ¢®è (Inpatient and Outpatient)
9. MTP ¸ÉÃªÉ ¥ÀqÉ¢gÀĪÀ ªÀÄ»¼ÉAiÀÄgÀ zÁR¯Áw «ªÀgÀzÀ Case sheet ¤ÃrgÀĪÀÅ¢®è.
UÉ, ¸À»/-
qÁ: ©.r.zÉêÀgÁeï, 19.12.2023
²æÃzÉë £À¹ðAUï ºÉÆÃA vÁ®ÆèPÀÄ DgÉÆÃUÁå¢üPÁjUÀ¼ÀÄ
¨ÉÆÃUÁ¢, ªÉÄʸÀÆgÀÄ. ªÉÄʸÀÆgÀÄ vÁ®ÆèPÀÄ, ªÉÄʸÀÆgÀÄ f¯Éè
PÉ.¦.JA.E.J. ¸ÀܽAiÀÄ ¥Áæ¢üPÁgÀ
ªÉÄʸÀÆgÀÄ vÁ®ÆèPÀÄ, ªÉÄʸÀÆgÀÄ f¯Éè. ¥ÀæwAiÀÄ£ÀÄß ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ ªÀiÁ»wUÁV ¸À°è¹zÉ:
1. ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼ÀÄ ºÁUÀÆ CzsÀåPÀëgÀÄ, PÉ.¦.JA.E.J., ¥Áæ¢üPÁgÀ, ªÉÄʸÀÆgÀÄ f¯Éè, ªÉÄʸÀÆgÀÄ gÀªÀjUÉ.
2. ªÀiÁ£Àå f¯Áè DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯ÁåuÁ¢üPÁjUÀ¼ÀÄ, ªÉÄʸÀÆgÀÄ f¯Éè, ªÉÄʸÀÆgÀÄ gÀªÀjUÉ.11
3. ªÀiÁ£Àå £ÉÆÃqÀ¯ï C¢üPÁjUÀ¼ÀÄ, PÉ.¦.JA.E. «¨sÁUÀ, ªÉÄʸÀÆgÀÄ f¯Éè, ªÉÄʸÀÆgÀÄ gÀªÀjUÉ.
4. PÀbÉÃj ¥Àæw.
5. ¸ÀA§AzsÀ¥ÀlÖ £À¹ðAUï ºÉÆÃA ªÉÊzÀåjUÉ."
(Emphasis added) The notice also appended several violations of law by the Nursing Home. The detailed notice reads as follows:
"ತಮ- ಸಂ<ೆU/ಆಸB ೆ7 ೆ ಾಂಕ: ರಂದು ‚.>. ಮತುK ‚.ಎƒ.{.%. ಾಯc/ರಮದ ಪ xೕಲ ೆ ಾS •:ಾ / ಾಜ ಸ„ಮ 0ಾ7 ಾರವX ಅ+ ೕ...ತ †ೇ% +ೕ{Lಾಗ ಈ ೆಳಕಂಡ ನೂ ನ ೆಗಳR ಕಂಡು ಬಂ ರುತKTೆ. ಈ ಬ ೆP ಾವX Tೈಯ.KಕTಾS ಗಮನಹ > ಈ ಪತ7 ತಲು‚ದ ಒಂದು TಾರLೊಳ ಾS ನೂ ನ ೆಗಳನುG ಸ ಪ{> ೊಂಡು ೈ ೊಂಡ ಕ7ಮದ ವರ ಯನುG ಈ ಕ ೇ ೆ ಸ1ಸಲು EZ>Lೆ. ತ‚Bದ1 ‚.> ಮತುK ‚.ಎƒ.{.%. ಾ‰Šಯನ|ಯ ಕ7ಮ ವIಸ:ಾಗುವXದು.
ಗಭc‹ಾರhಾ ಪŒವc ಮತುK ಪ7ಸವ ಪŒವc ಪ ೆK ಹಚು•ವ ತಂತ7ಗಳR (‚.> & ‚.ಎƒ.{.%) (1ಂಗ ಆ‰\ +Žೇಧ) ಾ‰Š 1994 ಅನ|ಯ ಈ ೆಳಕಂಡ ಆ•ೇಪhೆಗZ ೆ ಸಮಪcಕ ಸಮ•ಾ''ಯನುG +ೕಡುವXದು.
1) ಾವX ‚.> ಮತುK ‚.ಎƒ.{.% ಾ‰Šಯ ಕಲಮು 4 ಮತುK ಉಪಕಲಮು (1), (2) (3) (4) ಮತುK (5) ರಂ ೆ ಪ7ಸವ ಪŒವc ಪ ೆK ತಂತ7 (‹ಾನಗಳನುG ಉಪ8ೕSಸಲು ಅಥTಾ ೈ ೊಳdಲು ಅಹc ೆ Aೊಂ ದ Cಾ ೇ ವ .Kಯು, CಾವXLೇ ಷರತುKಗಳನುG ಪŒ ೈಸ:ಾSLೆ ಎಂಬುದನುG +ೕವX 1"ತTಾS Lಾಖ1ಸLೆ ೕ:ಾ\•>ದ ಕಲಂ ಮತುK ಉಪಕಲಂಗಳನುG ಉಲಂ->ರುEKೕ ಎಂದು ಕಂಡುಬಂ ರುತKLೆ.
2) ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.% ಾ‰Šಯ ಕಲಮು 5 ರ ಅನ|ಯ ಗ˜c• ಮI~ೆಯ 1"ತ ‚.ಎƒ ಸಮ-E ಪ2ೆಯLೆ ಉಪಕಲಮು 1 ((ಎ ಎ) ((š š) ((> >) ಮತುK 2 ನುG ಉಲಂ->ರುEKೕ ಎಂದು ಕಂಡುಬಂ ರುEKLೆ.ೆ.
3) ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.%
‚.ಎƒ ಾ‰Šಯ ಕಲಂ 6 ರಂ ೆ 1ಂಗ +ಧcರhೆಯನುG
+Žೇ ಸ:ಾSದŠರೂ ಾವŒ 1ಂಗ +ಧcರhೆಯನುG Hಾ{,
Hಾ{, ಉಪಕಲಮು (ಎ) ((š
š) ((>
>)
ಯನುG ಉಲಂ->ರುEKೕ ಎಂದು ಕಂಡುಬಂ ರುತKLೆ.ೆ. 12
4) ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.% ಾ‰Šಯ ಕಲಂ 18 ಮತುK ಉಪಕಲಮು (1) ರಂ ೆ ‚.ಎƒ ಆನುವಂxೕಯ ೆಯ ಸಲAಾ ೇಂದ7ಗಳR ಆನುವಂxೕಯ ೆ ಪ78ೕ ಾಲಯಗಳ ಮತುK ಅನುವಂxೕಯ ೆ p. ಾqಲಯಗಳ ೊಂದ• HಾಡLೆ ಾ‰ŠಯನುG ಉಲಂ->ರುವXದು ಕಂಡುಬಂ ರುತKLೆ.ೆ.
5) ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.%. ಾ‰Šಯ ಕಲಂ 19 ಉಪಕಲಮು 4 ರಂ ೆ ೊಂದ• ‚.ಎƒ ಪ7ದxcಸLೇ ಪ7Hಾಣ ಪತ7ವನುG ತಮ- ಸಂ<ೆUಯ ವ ವAಾರದ ಸUಳದ1 ಎದುŠ ಾಣುವಂ ೆ ಪ7ದxcಸ Lೇ ಇಲ ರುವXದು ಕಂಡುಬಂ ರುತKLೆ.ೆ.
6) ಾವX ‚. ಎƒ..{.%.
‚.> & .‚.ಎƒ ಾ‰Šಯ{ಯ1 ಪ7ಸವ ಪŒವc 1ಂಗ +ಧcರhೆ ೆ
ಸಂಬಂ >ದ •ಾIೕ ಾEನ +Žೇಧ(ದŠರೂ ಾವX ಕಲಂ 22 ಉಪಕಲಮು (1) ಮತುK (2) ನುG ಉಲಂ->ರುವXದು ಕಂಡುಬಂ ರುತKLೆ.ೆ.
7) ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.%. ಾ‰Šಯ ಕಲಂ 29 ರ ಉಪಕಲಮು (1) ಮತುK (2) ನುG ‚.ಎƒ ಮತುK +ಯಮ 9 ಉಪ+ಯಮ (1) ((22) ((33) ((4
4) ((55) ((66) ((77) ಮತುK (8) ರಂ ೆ,ೆ, Lಾಖ:ಾEಗಳನುG +ವcಹhೆ HಾಡLೆ ಾ‰ŠಯನುG ಉಲಂ->ರುವXದು ಕಂಡುಬಂ ರುತKLೆ.ೆ.
8) ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.%.
‚.ಎƒ ಾ‰Šಯ +ಯಮ 8 ರ ಉಪಕಲಮು (1) ರಂ ೆ
ೊಂದ•ಯ ನ(ೕಕರಣವನುG
ನ(ೕಕರಣವನುG HಾಡLೆ ಾ‰ŠಯನುG ಉಲಂ->ರುವXದು ಕಂಡು
ಬಂ ರುತKLೆ.ೆ.
9) ‚.> ಮತುK ‚.ಎƒ..{.%. ಾ‰Šಯ +ಯಮ 10 ರಂ ೆ ಜನನ ಪŒವc ಪ ೆK ತಂತ7 (‹ಾನ
‚.ಎƒ
ಪ7.7‰ಗZ ಾS ಷರತುKಗಳನುG ಉಪ+ಯಮ (1) ಮತುK (1 (1J) ರಂ ೆ ಗ˜c• >yೕ'ಂದ ಆ ೆ ೆ ೊEKರುವ †ಾŽೆಯ1 EZ>>ರುವX 4ಲ.
4ಲ.
10))
10 ‚.> ಮತುK ‚.ಎƒ..{.%. ಾ‰Šಯ +ಯಮ 13 ರಂ ೆ
‚.ಎƒ ೌಕರರ1,
ೌಕರರ1, ಸUಳದ1 ಅಥTಾ
<ಾಧನ ಸಲಕರಣಗಳ1 ಆದ ಬದ:ಾವhೆಯ ಬ ೆP •:ಾ ಸ„ಮ 0ಾ7 ಾ ೆ EZಸLೇ
ಇದುŠ, ಾ‰ŠಯನುG ಉಲಂ->ರುವXದು ಕಂಡು ಬಂ ರುತKLೆ.ೆ.
11)) 11 ಾವX ‚.
‚.> ಮತುK ‚.ಎƒ..{.%. ಾ‰Šಯ +ಯಮ 17 ರಂ ೆ ತಮ- ಸಂ<ೆUಯ1 ಭೂ7ಣದ ‚.ಎƒ (ಗಭcಸU xಶು(ನ) xಶು(ನ) 1ಂಗವನುG ಬIರಂಗಪ{ಸುವXದು ಾನೂ+ನ ೕ ೆ ೆ +Žೇ ಸ:ಾSLೆ 13 ಎಂಬ ಸೂಚ ೆಯನುG <ಾವcಜ+ಕ HಾIE ಾS ಇಂSೕ'ನ1 ಮತುK ಸUZೕಯ †ಾŽೆಗಳ1 ತಮ- ಸಂ<ೆUಯ ಆವರಣಗಳ1 ಎದುŠ ಾಣುವಂ ೆ ಪ7ದxcಸLೇ ಇರುವXದು ಕಂಡುಬಂ ರುತKLೆ.ೆ.
12) +ಯಮ 17 ಉಪ +ಯಮ (2) ರಂ ೆ <ಾ\œ+ಂ@ ೊಠ{ಯ1 ‚.> ಮತುK ‚.ಎƒ.{.%.
ಾ‰Šಯ ಪXಸKಕ ಇ%`ರುವX ಲ.
13) +ಯಮ 18 ಉಪ +ಯಮ (VIII) ರಂ ೆ ತಮ- ಸಂ<ೆUಯ1 ಾಯc+ವcIಸುEKರುವ ಆತನ/ಆ ೆಯ AೆಸರನುG ಮತುK ಪದ ಾಮವನುG (ಹುLೆŠಯ AೆಸರನುG) ಆತನು/ಆ ೆಯು ಧ >ದ ಉಡುಪXಗಳ ೕ:ೆ ಸBಷ`TಾS ಾಣುವಂ ೆ ಪ7ದxc>ರುವX ಲLೆ ಇರುವXದು ಕಂಡು ಬಂ ರುತKLೆ.
14) Tೈದ ರು †ೇ% +ೕಡುವ Tೇ~ಾಪ%`ಯನುG ಪ7ದxc>ರುವX ಲ.
15) ಎಂ0ಾ ನ4 Hಾ{ ೊಂ{ರುವ Tೈದ ರ Aೆಸರು, ಅಹc ಾ ಪತ7ಗಳನುG ಪ7ದxc>ರುವX ಲ.
16) ಎಂ0ಾ ನ4 Hಾ{ ೊಂ{ರLೇ ಇರುವ Tೈದ ಂದ <ಾ\œ+ಂ@ Hಾ{>ರುEKೕ ಎಂದು EZದು ಬಂ ರುತKLೆ.
17) N.©.f ¸ÁÌöå¤AUï ªÀiÁr¹PÉÆA¹gÀĪÀªÀgÀ jf¸ÀÖgï ¥ÀĸÀÛPÀzÀ° ¸ÀjAiÀiÁzÀ ¥ÀÆtð ªÀiÁ»w EgÀĪÀÅ¢®è.
18) ಾವX +ೕಡುEKರುವ <ೌಲಭ ಗZ ೆ ಭ ಸುವ ಶುಲ\ದ ಪ%`ಯನುG ಫಲಕದ1 ಪ7ದxcಸLೆ ಇರುವXದು ಕಂಡುಬಂ ರುತKLೆ.
19) ತಮ- .+/ / <ಾ\œ+ಂ@/ <ೆಂಟ;ನ1 ಅವಶ ಕTಾS [ೇ ಾSರುವ ಸಲಕರhೆಗಳR, ಉಪಕರಣಗಳನುG AೊಂದLೇ ಇರುವXದು ಕಂಡುಬಂ ರುತKLೆ.
20) ತಮ- .+/ / <ಾ\œ+ಂ@/ <ೆಂಟ;ನ1 ೋSಗZ ೆ ಸೂಕK <ೇTೆ ೊಡಲು ಅವಶ ಕTಾದ ಕಟ`ಡ, ಾZ, [ೆಳಕು ಇಲLೇ ಇರುವXದು ಕಂಡುಬಂ ರುತKLೆ.
21) 9ೌ_ಾಲಯದ ವ ವ<ೆU ಸ CಾS ಇಲLೇ ಇರುವXದು ಕಂಡುಬಂ ರುತKLೆ. 14
22) ಇತ ೆ:- EªÉÆd£ïì ºÁUÀÆ ¸ÁÌöå¤AUï ªÀiÁr¹PÉÆArgÀĪÀ gÉÆÃVAiÀÄ ªÀåQÛAiÀÄÄ UÀ©üðt ¹ÛçÃAiÀÄ ªÀiÁ»wUÀ¼À£ÀÄß ¸ÁÌöå¤AUï «ÄµÀ£ï£À°è ¸ÉÃªÉ ªÀiÁrgÀĪÀÅ¢®è (2 ªÀµÀðzÀ ªÀiÁ»w) ೕ:ಾ\•>ದ ಎ:ಾ ನೂ ನ ೆಗಳನುG ಪ xೕ1> ‚.>. & ‚.ಎƒ.{.%. ಾ‰Šಯ ಕಲಂ 20(1), (2) ಮತುK (3) ರಂ ೆ ತಮ- <ಾ\œ+ಂ@ <ೆಂಟ;/ .+/ / :ಾ [ೋ ೇಟ ಯ ೊಂದ•ಯ ರ ŠCಾE ಅಥTಾ ಅHಾನತು ಏ ೆ Hಾಡ[ಾರದು? ಎಂಬುದ ೆ\ 7 ನಗ~ೆŸ ಳ ೆ ಉತKರ +ೕಡಲು ಆLೇxಸ:ಾSLೆ.
¸À»/-
19/12/2023 gÁdå /f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ, UÀ¨ÀsðzsÁgÀuÁ ªÀÄvÀÄÛ ¥Àæ¸ÀªÀ ¥ÀƪÀð ¥ÀvÉÛ vÀAvÀæ«zsÁ£ÀUÀ¼À (°AUÀ DAiÉÄÌAiÀÄ ¤µÉÃzsÀ) C¢ü¤AiÀĪÀÄ 1994."
(Emphasis added) The result of inspection and non-divulging of documents is the sealing of Nursing Home. The doctors of the Nursing Home submit a representation on 21-12-2023 which reads as follows:
"ಇಂದ, 2ಾ. {. Lೇವ ಾ x7ೕLೇ( ನ>ಂc@ Aೋಂ [ೋ ಾ , ೖಸೂರು ಇವ ೆ.
Hಾನ ಾಲೂಕು ಆ ೋ ಾ ಾ ಗಳR
ೖಸೂರು ಾಲೂಕು
ೖಸೂರು.
Hಾನ ೇ,
15
(ಷಯ: ತಮ- ಾಂಕ 19/12/2023 ೋ%ೕ> ೆ ಉvÀÛರ
G¯ÉèÃR: ಸಂ ೆ : ಾಆಅ ೖ/11/2023-24
ೕಲ\ಂಡ ಾನು x7ೕLೇ( ನ>ಂc@ Aೋಂ ಇದರ ಮುಖ ಸU ಾSದುŠ, ನಮ- ಸಂ<ೆU ೆ, 2004 ಂದಲೂ ೆ ‚ ಎಂ ಇ, ಪರTಾ+ ೆ ಇದುŠ, ಾವX ಪರTಾ+ ೆಯನುG ಾಲ ಂದ ಾಲ ೆ\ ಾನೂನು ೕEಯ1 ನ(ೕಕ ಸು ೆKೕTೆ. ಪ7ಸುKತ 2024 ೇ ಇಸ(ಯವ ೆ ೆ ನಮ- ಪರTಾ+ ೆ ನ(ೕಕ ಸಲB%`ದುŠ. ಇದುವ ೆಗೂ ಾವX CಾವXLೇ ಾನೂನು ¡ೕರLೆ ನಮ- ಸಂ<ೆUಯನುG ಮುನG2ೆ>ರು ೆKೕTೆ.
ಪ7ಸುKತ +ೕವX ನನ ೆ +ೕ{ರುವ ೋ%ೕಸನುG ಾನು ಓ EZದು ೊಂ{ರು ೆKೕ ೆ. ಾವX ೋ%ೕ>ನ1 EZ>ರುವಂ ೆ ನಮ- ಸಂ<ೆU'ಂದ CಾವXLೇ ಾನೂನು ಉಲಂಘ ೆ ಆSರುವX ಲ. ಾವX ನಮ ೆ £ದ:ೇ EZಸLೇ sೕರ ೆ ಬಂದು ಪ xೕಲ ೆ Hಾ{ರುವ ಾರಣ, ಮತುK ನಮ ೆ ೋSಗಳ ಆ ೈ ೆ ಆಧ Tಾದ ಾರಣ, ತಮ- ಪ xೕಲ ೆ ಸಮಯದ1 ಾವX ತಮ ೆ ನಮ- ಎ:ಾ Lಾಖ:ಾEಗಳನುG +ೕ{ ಸಹಕ ಸಲು <ಾಧ TಾSರುವX ಲ.
ತಮ- ೋ%ೕ>ನ1 EZ>ರುವಂ ೆ ಾವX 18/3/2023 Aಾಗು 19/3/2023 ರಂದು ಪ xೕಲ ೆ Hಾ{ರುವXದು ಸತ ೆ\ ದೂರTಾSರುತKLೆ.
ಈ ಸಂದಭcದ1 ಾವX ನಮ ೆ ಸೂಕK ಸಮCಾವ ಾಶ +ೕಡLೆ, ನಮ- ಸಂ<ೆU ೆ šೕಗಮುLೆ7 Aಾ.ರುವXದ ಂದ ತಮ- ನೂ ನ ೆ ಪ%` ೆ ಈ ೆಳಕಂಡಂvÉ ಉತK ಸ:ಾSLೆ;
೧) ಾವX AೇZರುವಂ ೆ ನಮ- ಸಂ<ೆUಯ1 (ಉLಾ ಹc ೆಯುಳd Tೈದ ರು ಮತುK ತರ[ೇE Aೊಂದದ >ಬeಂ ಯ (ಷಯ ಸತ ೆ\ ದೂರTಾSದುŠ, ಅದ ೆ\ ಸಂಬಂ >ದ Lಾಖ:ೆಗಳನುG ಾವX ೆ ‚ ಎಂ ಇ ಪರTಾ+ ೆ ನ(ೕಕರಣದ Tೇ~ೆ +ೕಡ:ಾSLೆ Aಾಗು ಾವX ನಮ- ಸಂ<ೆU ೆ Aಾ.ರುವ šೕಗಮುLೆ7 ೆ ೆದು ಾಮUÉ ಾ:ಾವ ಾಶ +ೕ{ದ1 ಮ ೊK - ಎ:ಾ ಸೂಕK Lಾಖ:ೆಗಳನುG ತಮ ೆ ಒದSಸಲು ಬದn ಾSರು ೆKೕTೆ.
೨) ಘನ ಾ då ವಸುKಗಳ +ವcಹhೆ ೆ ಸಂಬಂ > ಾವX x7ೕ ಾನುq:ೆ|+q ಇವ ೊಂ ೆ ಒಂಡಂಬ{ ೆ Hಾ{ ೊಂ{ದುŠ, ಸದ Lಾಖ:ೆಗಳR ಸಂ<ೆUಯ ಒಳSದುŠ, ಾವX šೕಗಮುLೆ7 ೆ ೆದ ತ„ಣ ಅವXಗಳನುG ಒದSಸಲು ಬದn ಾSರು ೆKೕTೆ.
೩) p. ೆqಯ Lಾಖ:ೆಗಳನುG ಸ CಾS +ವcIಸ ರುವ (ಷಯ ಸತ ೆ\ ದೂರTಾSದುŠ ಎ:ಾ Lಾಖ:ೆಗಳR ಸಮಪcಕTಾSದುŠ, ಾವX šೕಗಮುLೆ7 ೆ ೆದು ಅನುವX Hಾ{ ೊಟ` ತ„ಣ ಅವXಗಳನುG ಒದSಸಲು §zÀÞgÁVgÀÄvÉÛêÉ.16
೪) ಕ ಾcಟಕ ಾಜ ಪ ಸರ Hಾ1ನ +ಯಂತ7ಣ ಮಂಡZ +ೕ{ರುವ 0ಾತ7 ಸಂ<ೆUಯ ಒಳSದುŠ ಾವX šೕಗಮುLೆ7 ೆ ೆದು ಅನುವX Hಾ{ ೊಟ` ತ„ಣ ಅವXಗಳನುG ಒದSಸಲು ಬದn ಾSರು ೆKೕTೆ.
೫) Tೈದ Aಾಗು ಅ ೆTೈದ >ಬeಂ ಗಳ ಪ7Hಾಣಪತ7ಗಳR ೆ ‚ ಎಂ ಇ ಪರTಾ+ ೆ ನ(ೕಕರಣದ Tೇ~ೆ +ೕಡ:ಾSರುತKLೆ, ಮತುK ಪ7ಸುKತ ಪ7EಗಳR ಸಂ<ೆUಯ ಒಳSರುವ ಾರಣ ಾವX šೕಗಮುLೆ7 ೆ ೆದು ಅನುವX Hಾ{ ೊಟ` ತ„ಣ ಅವXಗಳನುG ಒದSಸಲು ಬದn ಾSರು ೆKೕTೆ.
೬) ಅವ ¡ೕ ದ ವಸುKಗಳR ನ+ತ ಬಳ ೆ ವಸುKಗ~ಾSರLೇ, ಅವXಗಳನುG ಬಳಸುವ ಸಮಯ ೆ\ ಪ xೕ1ಸ:ಾಗುತKLೆ, ಮತುK ಅವXಗಳನುG ಸೂಕKTಾS ª ಾ ಾ ಜ ವಸುKಗಳ •ೊ ೆ (:ೇTಾ Hಾಡ:ಾಗುತKLೆ.
೭) Lಾಖ:ಾEವI, <ಾUನ ಪಲಟTಾSದುŠ, ಸಂ<ೆUಯ ಒಳ ೆ ಇದುŠ ಾವX šೕಗಮುLೆ7 ೆ ೆದು ಅನುವX Hಾ{ ೊಟ` ತ„ಣ ಅವXಗಳನುG ಒದSಸಲು ಬದn ಾSರು ೆKೕTೆ.
8) MTP ªÀÄ»¼ÉAiÀÄAgÀ zÁR¯Áw «ªÀgÀ ºÁUÀÆ Case Sheet <ಾUನಪಲಟTಾSದುŠ ಾವX šೕಗಮುLೆ7 ೆ ೆದು ಅನುವX Hಾ{ ೊಟ` ತ„ಣ ಅವXಗಳನುG ಒದSಸಲು ಬದn ಾSರು ೆKೕTೆ.
ನಮ- ಸಂ<ೆU 1996 ೇ ಇಸ(ಯ1 pಕ\LಾS 0ಾ7ರಂಭTಾS ಅಂ +ಂದ ಸುತKಮುತKಣ ಹZdಗಳ ಅ ೇಕ ೋSಗZ ೆ <ಾಧ Tಾದಷು` ಉತ¬ಷ` ಮತುK ೈ ೆಟಕುವ Tೈದ .ೕಯ <ೇTೆಗಳನುG +ೕಡು ಾK ಬಂ ದುŠ, ಪ7ಸುKತ (~ಾಸ ೆ\ 2004 ರ1 ಈ ಸಂ<ೆUಯನುG ಸU~ಾಂತ >ದುŠ ಅಂ +ಂದ ಇಂ ನವ ೆ ೆ, CಾವXLೇ pಕ\ ಅ0ಾದ ೆಗೂ ಅವ ಾಶ ಇಲದಂ ೆ ಸಂ<ೆU ನ2ೆ> ೊಂಡು ಬಂ ರು ೆKೕTೆ.
ನªÀÄä ಸಂ<ೆUಯು ೋ(- ಸಂದಭcದ1 ಸ ಾcರ ೆ\ ಸಂಪŒಣc ಸಹ ಾರ +ೕ{ದುŠ, ಆ ®ೂೕರ ಸ+GTೇಶದ1 ಸ+GTೇಶದ1, ನಮ- ಸಂ<ೆUಯ ಎ:ಾ >ಬeಂ ಗಳR 0ಾ7ಣದ ಹಂಗು ೊ ೆದು <ೇTೆ Hಾ{ರುವXದನುG ಈ ಸಂದಭcದ1 ತಮ- ಗಮನ ೆ\ ತರಲು ಇp}ಸು ೆKೕ ೆ.
ನಮ- ಸಂ<ೆUಯ1 ಸುHಾರು 40 >ಬeಂ ಗಳR ಾಯc +ವcIಸುEKದುŠ, ತಮ- ತಪXB ಗ7I ೆಯ, x>Kನ ಕ7ಮ ಂದ, 40 ಸಂ<ಾರಗZ ೆ ಮತುK ಸುತK ಹZd ಹZdಗಳ ಗಳ <ಾ( ಾರು ಬಡ ೋSಗZ ೆ ತುಂಬ:ಾರದ ನಷ` ಉಂ¯ಾಗುEKLೆ.
17
ಾನು ಮತುK ನಮ- ಸಂ<ೆUಯ ಎ:ಾ >ಬeಂ ತಮ- ಎ:ಾ ಪ xೕಲ ೆಗZ ೆ ಪŒಣc ಸಹ ಾರ ಒದSಸಲು >ದn ದುŠ, ಾವX ನಮ- ಸಂ<ೆU ೆ ತಪXB ಗ7I ೆ'ಂದ Aಾ.ರುವ šೕಗಮುLೆ7ಯನುG ೆರವXHಾ{ ನಮ ೆ ಾ ಯ ಒದSಸ[ೇ ಾS 0ಾ7ಥc ೆ."
(Emphasis added) It was pleaded that if lock of the Nursing Home is opened, they would divulge all the documents and completely co-operate with the investigation. This Court on the plea that all the documents are inside the Nursing Home permitted the doctors of the Nursing Home to take the documents in the presence of the State officials. The order dated 23-01-2024 passed by this court reads as follows:
"The issue in the lis relates to the faulty maintenance of records with regard to certain offences under the Prenatal Diagnostic Techniques (Regulations and Prevention of Misuse) Act, 1957 and the Karnataka Private Medical Establishments Act, 2007. The hospital premise is seized on an inspection being made and the petitioner not been able to produce the records, as was sought for by the State.
Learned counsel appearing for the petitioner Smt.B.V.Vidyulatha would submit that all records are inside the hospital premises and the hospital premises is locked. If the lock would be open and the hospital be permitted to run, all the records can be given to the respondent - State.
Learned AGA would object to opening of the hospital and permit to running of the hospital. That would accede to the request of the petitioner that the officers of the State shall accompany the petitioner and the petitioner shall secure all the records that are their in the hospital premises, if any, which would enable them to furnish any answer to the allegations made in the present proceedings.18
The State also shall note down the records that are secured by the petitioner.
List this matter on 29.01.2024 in the fresh matters list."
Pursuant to the aforesaid order, the documents are said to be in place. Whether they are in place or not is what is required to be enquired into. According to the State the violations under the 1971 Act are as follows:
"VIOLATIONS UNDER THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
11. Insofar as the Original MTP register produced is concerned, the gestational age of the foetus finds no mention. However, when F-forms were seized and scrutinised, the gestational period at which these terminations were done, came to light. Out of which, some illustrative examples are provided below:
Sl. Patient Procedure Doctor Gestation period No. and comment 1 Ms. Medical Dr. Nalini Although the MTP Chandana, termination Register 29 years of maintained does pregnancy not disclose the gestation period, a scan report from the case file of the patient disclosed that it was 20 weeks 1 day.
2 Ms. Anusha, Medical Dr. Nalini Although the MTP
23 years termination Register
19
of maintained does
pregnancy not disclose the
gestation period,
from the case sheet
of the patient, a
scan report
disclosed that it
was 24 weeks.
Note: 24 weeks is
an advanced stage
as per the
amended to section
3 of the Medical
Termination Act, 2
medical
practitioners would
have had to sign off
on it.
3 Pushpalatha Medical Dr. Nalini Although the MTP
K. K., 30 termination Register
years of maintained does
pregnancy not disclose the
gestation period,
from the case sheet
of the patient, a
scan report
disclosed that it
was 31 weeks 4
days.
Note : At an
advanced stage of
31 weeks,
recommendation by
the medical board
is absolutely
essential for
termination of
pregnancy. Further,
even though
20
anomalies are
found in the case
sheet, a
termination ought
not to have been
done without any
recommendation
but instead, should
have been done, if
at all
recommended, at
the tertiary level
i.e., at an advanced
medical facility with
adequate facilities.
Further, even the
case file specifically
discloses that it
was a male baby,
when asked for
what was done with
the baby post
delivery, no
satisfactory
answers were
forthcoming from
the Doctors.
4 Ms. Medical Dr. Nalini Although the MTP
Jahnavi, 29 termination Register
years of maintained does
pregnancy not disclose the
gestation period,
from the case sheet
of the patient, a
scan report
disclosed that it
was 29 - 30
weeks.
Note: Medical
board
recommendation
21
not taken. Even so,
a cardiologist's
opinion for the
anomaly found has
not been taken."
The learned Additional Government Advocate pointing out on the aforesaid chart would submit that the original Medical Termination of Pregnancy Register is seized wherein the gestational ages of the foetus which have been terminated find no mention. When F-form, a form that is mandatorily required to be maintained, was scrutinized, the gestational period did not come to light. But, only when the second report in the file was seen, it was noticed that termination of pregnancy has happened of the aforesaid four patients of a foetus that is 20 weeks and 1 day; 31 weeks 4 days, 30 weeks and 24 weeks respectively. Therefore, there is violation under the Act. Medical termination of pregnancy is dealt with under the Medical Termination of Pregnancy Act, 1971. According to the said Act up to 20 weeks gestation of the foetus in termination is legal and beyond 20 weeks termination can be only after express permission from the competent authorities. Sections 3, 4 and 5 of the Medical Termination of Pregnancy Act read as follows:22
"3. When pregnancies may be terminated by registered medical practitioners.--(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Explanation 1.--For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.--For the purposes of clauses (a) and
(b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the 23 pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
(2-A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.
(2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
(2-C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.
(2-D) The Medical Board shall consist of the following, namely--
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be
notified in the Official Gazette by the State Government or Union territory, as the case may be.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a 9[mentally ill person], shall be terminated except with the consent in writing of her guardian.
24
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated.-- No termination of pregnancy shall be made in accordance with this Act at any place other than--
(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee:
Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.]
5. Sections 3 and 4 when not to apply.--(1) The provisions of Section 4, and so much of the provisions of sub-section (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.
25
(3) Whoever terminates any pregnancy in a place other than that mentioned in Section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
(4) Any person being owner of a place which is not approved under clause (b) of Section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
Explanation 1.--For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.--For the purposes of this section, so much of the provisions of clause (d) of Section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply."
(Emphasis supplied) Section 3 depicts that when a pregnancy may be terminated by a registered medical practitioner and Section 4 deals with where the pregnancy can be terminated and Section 5 deals with when Sections 3 and 4 would not become applicable. Those are cases where the victim has become pregnant on account of sexual assault. According to the State the aforesaid people have got their medical termination of pregnancy done. It is an admitted fact that 26 records are not maintained. According to the State it could be a case of termination of female foetus. For termination of pregnancy beyond 20 weeks a recommendation by a medical Board is imperative for such termination. It is an admitted fact that there is no recommendation of any medical Board found in the documents maintained by the Nursing Home.
10. The learned counsel for the petitioner takes the Court through the aforesaid specific four cases and explains as to why medical termination had to be done. The reports are appended to the documents so placed before the Court. Here again the termination is found but opinion of the Medical Board for such termination is not forthcoming. Therefore, admittedly there is violation of the 1971 Act.
11. Next comes the violation under the Act. According to the State there are about 20 patients whose records were examined and were all operated upon surgically by the husband and wife who run the Nursing Home. They are all gynaecology surgeries and 27 details of surgeries performed by the husband and wife who run the Nursing Home are as follows:
"GYNAECOLOGY SURGERIES SL. Patient's name Diagnosis Surgery Date of Doctor' Doctor's NO performed surgery s name qualification 1 Mahadevamma Cervical Total 08.11.2022 Dr. MBBS 50 years growth abdominal Devaraj, hysterectomy Dr. Nalini with bi-lateral salphingoophe rectomy 2 Sheela, 34 years Dysfunction Total 25.11.2022 Dr. MBBS al uterine abdominal Devaraj, bleeding hysterectomy Dr. Nalini 3 Jyothi, Pelvic Total 01.08.2023 Dr. MBBS 30 years inflammator abdominal Devaraj, y disease hysterectomy Dr. Nalini and appendisecto my 4 Bhagya, Dysfunction Total 20.12.2022 Dr. MBBS 30 years al uterine abdominal Devaraj, bleeding hysterectomy, Dr. Nalini Appendisecto my 5 Gopal, Acute Appendisecto 12.11.2022 Dr. MBBS 24 years my Devaraj, appendicitis 6 Kalavathi, Fibroid Total 02.12.2022 Dr. MBBS 37 years uterus abdominal Devaraj, hysterectomy and Dr. with Nalini appendisecto my 7 Sudha, Fibroadeno Excision 09.11.2022 Dr. MBBS 36 years ma in right biopsy done Devaraj breast in left breast , 8 Shwetha, Adenomyosi Total 16.07.2023 Dr. MBBS 36 years s with right abdominal Devaraj, ovarian hysterectomy Dr. Nalini mass with right salphingoophe rectomy 9 Neelamma, Dysfunction Total 10.06.2023 Dr. MBBS 40 years al uterine abdominal Devaraj, bleeding hysterectomy Dr. Nalini with 28 appendisecto my 10 Anitha, Dysfunction Total 22.11.2022 Dr. MBBS 32 years al uterine abdominal Devaraj, bleeding hysterectomy Dr. Nalini with appendi-
sectomy
11 Lakshmi, Cholethiatas Laparoscopic 29.01.2023 Dr. MBBS, MS
22 years is cholecystecto Sharath General
my surgery
12 Manjula, Umbilical Herniorrhaphy 14.07.2023 Dr. MBBS
45 years hernia Devaraj
13 Mamatha, Left side Left 17.12.2023 Dr. MBBS
25 years twisted salphingoophe Devaraj,
ovarian cyst rectomy with Dr. Nalini
appendisecto
my with
bilateral
tubectomy
14 Geetha, Pelvic Total 11.08.2023 Dr. MBBS
32 years inflammator abdominal Devaraj,
y disease hysterectomy Dr. Nalini
with
appendisecto
my
15 Rupa, Pelvic Total 12.08.2023 Dr. MBBS
31 years inflammator abdominal Devaraj,
y disease hysterectomy Dr. Nalini
with
appendisecto
my
16 Preethi, Endometrio Total 05.11.2022 Dr. MBBS
32 years ss abdominal Devaraj,
hysterectomy Dr. Nalini
with bilateral
salphingoophe
rectomy with
appendisecto
my
17 Manjula, Fibroid Total 04.11.2022 Dr. MBBS
32 years uterus abdominal Devaraj,
hysterectomy Dr. Nalini
with
appendisecto
my
18 Ramya, Pelvic Total 06.12.2022 Dr. MBBS
30 years inflammator abdominal Devaraj,
y disease hysterectomy Dr. Nalini
with
appendisecto
my
19 Giriamma, Post Total 04.11.2022 Dr. MBBS
29
38 years menopausal abdominal Devaraj,
bleeding hysterectomy Dr. Nalini
with bilateral
salphingoophe
rectomy with
appendisecto
my
21 Bhagya, Fibroid Total abdominal 04.11.2022 Dr. MBBS"
35 years uterus hysterectomy Devaraj,
with Dr. Nalini
appendisectomy
Most of the surgeries performed are hysterectomy and
appendisectomy. Therefore, it is removal of uterus and appendix.
The gynaecologist who performed the surgery i.e., Dr. Nalini claims to be qualified with MBBS and Diploma and that what she has produced before the authorities is only an MBBS degree certificate.
According to the State she was not qualified to perform any of the surgeries as it has to be performed only by qualified doctors.
Appendisectomy that is performed in every case is said to have raised suspicion as there is no scanning done with regard to the appendix to be removed in any of the cases. The main allegation of the State, is that no qualified doctors, ever performed surgeries putting the health of the patients into risk. It is the submission of the learned Additional Government Advocate that merely because no surgery has gone wrong, does not mean that the doctors are 30 qualified to perform the surgeries. These are the violations under the Act. The allegations of violations are prima facie, as the enquiry is pending. The defence of the petitioner is that they come within the exceptions carved out under the provisions of the 1994 Act and the Medical Termination of Pregnancy Act, 1971. I deem it appropriate not to delve deep into the defence of the petitioner, as it would prejudice the petitioner's defence before the enquiry.
Therefore, it is for the petitioner to prove the allegations wrong in the enquiry. The allegations are noticed only for the limited purpose of the resolution of the subject lis.
12. The other issue is whether the Nursing Home could have been closed by an act of the State on account of violations under the Act. Certain provisions of the Act become germane to be noticed. Section 7 deals with disposal of applications. Section 15 which deals with penalty or suspension or cancellation of registration is germane to be noticed and it reads as follows:
"15. Penalty or suspension or cancellation of registration.--(1) In case of any private medical establishment failing to comply with any of the directions given by the Registration and Grievance Redressal Authority 31 under sub-section (8) of Section 7, the Authority may impose a penalty not exceeding fifty thousand rupees and extend the time for compliance or proceed to cancel the registration of the establishment, after giving the establishment an opportunity of being heard.
(2) In case of a complaint from a patient regarding over-charging the Registration and Grievance Redressal Authority after holding enquiry under sub-section (3) of Section 8 finds that the Private Medical Establishment has violated the provisions of sub-section (2), (4) or (5) of Section 10 the Registration and Grievance Redressal Authority shall impose a penalty equivalent to one and half times of the overcharged amount, after giving the establishment an opportunity of being heard. Out of the penalty amount an amount equal to the over-charged amount shall be paid to the patient and the balance shall be deposited with the Arogya Raksha Samithi of the district for taking up public health activities:
Provided that in case of such over-charging by a particular private establishment the Registration and Grievance Redressal Authority after holding such enquiry under sub-section (3) of Section 8 finds that the Private Medical Establishments has violated the provisions of Section 10 for the third time within a calendar year, the Registration and Grievance Redressal Authority shall make a written complaint to the concerned Court for taking up cognizance of the offence and subsequent prosecution. On conviction, the concerned private medical establishment shall be liable for a penalty which may be extend to three-times of the amount over charged or rupees one lakh, whichever is higher.
(3) In case of a complaint from a patient regarding any matter in the Patient's Charter or Private Establishments Charter, other than the over-charging the Registration and Grievance Redressal Authority having found that the Private Medical Establishments has violated the provisions of Section 11-A shall impose a penalty of rupees ten thousand for the first non-compliance and rupees twenty five thousand for the second non-compliance during a calendar year on the concerned private medical establishment, after giving the establishment an opportunity of being heard. Fifty percent of 32 the penalty amount shall be paid to the patient and the balance fifty percent shall be deposited with the Arogya Rakshana Samithi of the district for taking up public health activities:
Provided that in case of such complaint against a particular private establishment for the third time within a calendar year, the Registration and Grievance Redressal Authority shall make a written complaint to the concerned Court for taking up cognizance of the offence and subsequent prosecution. On conviction, the concerned private medical establishment be liable for a penalty which may be extend to fifty thousand rupees.
(5) The Registration and Grievance Redressal Authority, on the basis of a complaint or otherwise if a prima facie case exists about the contravention of any provisions of this Act or the rules made there under or conditions of registration may, by order in writing and for the reason to be recorded in writing suspend or cancel the registration of a Private Medical Establishment and also ensure that arrangements are made within reasonable time for uninterrupted health care to the inpatients:
Provided that no such order shall be made except after giving a reasonable opportunity of being heard, to the Private Medical Establishment.
(6) Every order made under sub-section (1) shall contain a direction that the inpatients of the Private Medical Establishment shall be transferred to such other Private Medical Establishment as may be specified in that order and it shall also contain such provisions as to the care and custody of such inpatients pending such transfer.
(7) Every order made under sub-section (1) shall take effect,--
(a) where no appeal has been preferred against such order under Section 17, immediately on the expiry of the period specified for such appeal; and 33
(b) where such appeal has been preferred and the same has been dismissed, from the date of order of such dismissal."
Section 19 deals with penalties and reads as follows:
"19. Penalties.--(1) Where any person establishes, runs or maintains a Private Medical Establishment without registration granted under Section 7 he shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend upto one lakh rupees.
(2) When a person is convicted under sub-section (1), the Registration and Grievance Redressal Authority shall direct immediate closure of the un-registered Private Medical Establishment, except where a registration is cancelled or suspended and an appeal filed against such cancellation or suspension is pending.
(3) Every order made under sub-section (1) shall contain a direction that the inpatients of such unregistered Private Medical Establishment shall be transferred to such other Private Medical Establishment as may be specified in that order and it shall also contain such other provisions as to the care and custody of such inpatients pending such transfer.
(4) Where any person runs or maintains a Private Medical Establishment in contravention of the conditions of registration or contravenes the provisions of Section 12 or 13, or fails to comply with the direction issued under sub-
section (2) he shall, on conviction, be punished with imprisonment for a term which may extend to one year and with a fine which may extend to "twenty five thousand rupees" and in the case of a second or subsequent offence with imprisonment for a term which may extend to one year and with a fine which may extend to "fifty thousand rupees".
(5) Where a person contravenes any other provision of this Act or the rules made thereunder he shall, on conviction, 34 be punishable with a fine which may extend to one lakh rupees.
(6) Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall be punishable by the Registration and Grievance Redressal Authority with a fine which may extend to ten thousand rupees." Section 22 of the Act reads as follows:
"22. Sealing premises of un-registered Private Medical Establishments.--(1) Without prejudice to the provisions of Section 19, if on a report made by the authorised officer under sub-section (1) of Section 21 or otherwise the Registration and Grievance Redressal Authority has reason to believe that any Private Medical Establishment is run or maintained without registration under Section 7, it may order immediate closure of such Private Medical Establishment and also seal the premises:
Provided that no order under this sub-section shall be made without giving an opportunity of being heard to the person likely to be affected thereby.
(2) Every order made under sub-section (1) shall contain a direction that the inpatients of such un-
registered Private Medical Establishment shall be transferred to such other Private Medical Establishment as may be specified in that order and it shall also contain such provisions as to the care and custody of such inpatients pending such transfer."
(Emphasis supplied) 35 Section 22 deals with sealing of premises of unregistered private medical establishments. Section 15 supra deals with cancellation of registration in various circumstances if it is in violation of Section 7 of the Act which has to be determined by the Grievance Redressal Authority. Section 19 depicts penalties upon medical establishments. Section 19 permits prosecution to be initiated against those establishments which are found to be in violation of Section 7 or even the ones who would fail to comply with Section 12 or 13 or the direction of the State. Section 22 permits sealing of a premises where the State has reason to believe that a private medical establishment is run or maintained without registration under Section 7. This can result in immediate closure. The only power to seal a premise is under Section 22 and the only reason under Section 22 can be that a private medical establishment is run without registration.
13. The case at hand is not the one where the Nursing Home is run without registration. It is admitted fact that the Nursing Home is registered under Section 7 of the Act. Therefore, sealing of the premises is contrary to law, but not any other action. The 36 Nursing Home is now issued a notice to hold an inquiry. An inquiry shall be conducted in accordance with law. However, sealing of the premises being contrary to law will have to be annulled. Therefore, the premises will have to be unlocked with several stringent conditions. The scanning unit in the Nursing Home shall not be operated till the Nursing Home comes out clean in the inquiry. The Surgeries cannot be performed by the doctors except with express permission of the competent authority after divulging all the details and not by the owners of the Nursing Home, but by qualified surgeons who are enlisted by the Nursing Home. The aforesaid stringent step is to be taken only in the wake of the Nursing Home performing surgeries by doctors without qualification and not maintaining any records of medical termination of pregnancies. On the specious plea that scanning machine is changed and permission is sought for change of scanning machine, the inquiry cannot be stopped. Till the documents are retrieved and inquiry is completed, no scanning can take place in the Nursing Home. 37
14. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) Sealing of the petitioner/Nursing Home is held to be contrary to Section 22 of the Act and, therefore, a direction ensues to unlock the premises.
(iii) The scanning unit within the premises of the Nursing Home shall remain closed till the inquiry is complete.
(iv) No surgery shall be performed without the express approval of the competent authority and never to be performed by the owners of the Nursing Home, as they are not qualified to perform any surgery, which would all be subject to the outcome of the enquiry.
(v) The inquiry that is now initiated or to be initiated against the Nursing Home shall be concluded within four 38 months from the date of receipt of a copy of this order, if not earlier.
(vi) All contentions of all the parties would remain open.
Sd/-
JUDGE Bkp CT:MJ