Madhya Pradesh High Court
Dr. Sanjay Jain vs The State Of Madhya Pradesh on 13 June, 2022
Author: Nandita Dubey
Bench: Nandita Dubey
MCrC No.5465/2020
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
M.Cr.C. No.5465/2020
Between:-
DR. SANJAY JAIN S/O SHRI NIRMAL KUMAR, AGED
ABOUT 53 YEARS, OCCUPATION: GOVERNMENT
DOCTOR O/O VICTORIA HOSPITAL, JABALPUR
(MADHYA PRADESH)
....PETITIONER
(By Shri Anubhav Jain, Advocate)
AND
1. THE STATE OF MADHYA PRADESH THR. COLLECTOR
DISTRICT NARSINGHPUR (M.P.) (MADHYA PRADESH)
2. APPROPRIATE AUTHROITY AND COLLECTOR (P.C AND
P.N.D.T) NARSINGHPUR DISTT. NARSINGHPUR (MADHYA
PRADESH)
3. CHIEF MEDICAL AND HEALTH OFFICER
NARSINGHPUR DISTT. NARSINGHPUR (MADHYA
PRADESH)
MCrC No.5465/2020
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4. NODAL OFFICER (P.C AND P.N.D.T) DISTRICT
HOSPITAL DISTT. NARSINGHPUR (MADHYA
PRADESH)
5. TEHSILDAR TENDUKHEDA DISTT. NARSINGHPUR
(MADHYA PRADESH)
6. BLOCK MEDICAL OFFICER TENDUKHERA DISTT.
NARSINGHPUR (MADHYA PRADESH)
.......RESPONDENTS
(By Shri Yash Soni, Got. Advocate)
Arguments heard on : 24.02.2022
Order delivered on : 13.06.2022
---------------------------------------------------------------------------------------------
ORDER
Petitioner, presently posted as Medical Officer at Victoria Hospital, Jabalpur is aggrieved by the order dated 12.09.2019, passed by the JMFC, Gadarwara, District Narsinghpur, whereby cognizance under Sections 23 and 25 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition MCrC No.5465/2020 3 of Sex Selection) Act, 1994 has been taken against the petitioner on the complaint of respondents authorities.
2. The petitioner, in the year 2005 applied for registration of Sonography/Ultrasound Centre at Tendukheda, under the Act of 1994. A registration certificate was issued by the Appropriate Authority/Collector under Rule 6(2), Rule 6(5) and Rule 8(2) of PC and PNDT Act, 1994 for a period of 5 years i.e., from 27.10.2005 to 26.10.20210 for running a Sonography Centre. The respondent authority in pursuant to the certificate of registration, issued a letter dated 28.12.2006 permitting the petitioner to run his Sonography centre at Tendukheda on Sunday and other holidays. This registration was further renewed from 26.10.20010 to 25.10.2015 for a period of five years and thereafter from 26.10.2015 to 01.01.2017. The petitioner was thereafter informed vide letter dated 09.03.2017 that his centre has been registered and he was asked to submit necessary form F and other reports on line within seven days. Thereafter vide letter dated 09.04.2019, his registration was cancelled. According to petitioner this letter dated 09.04.2019 was never communicated to him and he received the same as certified copy from the Court of JMFC, where the respondent has filed this letter/document alongwith the complaint.
MCrC No.5465/2020 43. On 21.07.2019, the CMHO, Tehsildar and Block Medical Officer inspected the Sonography centre of petitioner at Tendukheda where they found the petitioner conducting sonography on Smt Koushalya Patel, pursuant to which the Panchnama was made and the relevant documents were seized and the Sonography machine and the room was sealed.
4. Shri Anubhav Jain, learned counsel for the petitioner contended that the order dated 09.04.2019, whereby the registration of petitioner's Sonography Centre was cancelled was never communicated to him and he has received the certified copy of the same from the JMFC Court. It is submitted that the same is done only to harass the petitioner. It is submitted that his application was pending for registration before the authorities and vide letter dated 09.03.2017, he was informed that his centre has been registered and was further asked to submit within seven days Form F and other documents on line, despite that by a unilateral order dated 09.04.2019, his registration was cancelled, which was never communicated to him nor any show cause notice or opportunity of hearing was given to him, prior to cancelling his registration. It is stated that in W.P. No. 15509/2013 and W.P. No.391/2016, the Co-ordinate of this Court vide order dated 13.09.2013 has granted stay on the effect and operation of the said order and directed that no coercive action be taken against all such MCrC No.5465/2020 5 doctors who are doing private practice at home or clinic after duty hours. It is urged that the Act contemplates, the complaint to be filed by the appropriate authority. The CMHO, who has filed the complaint not being the appropriate authority as defined under Section 17 of the Act has no authority to initiate the proceedings. Reliance is placed on the order dated 22.02.2013 passed in M.Cr.C. No. 11619/2012 and order dated 30.09.2020 passed in M.Cr.C. No.51196/2019. Referring to the documents Annexure A- 5, which is the complaint filed by the CMHO before the JMFC, it is urged that the complaint is filed without application of mind. It is submitted that as per the medical prescriptions, annexed with this compliant, Smt. Koushalya Patel is 60 years of age, who is menopaused since 10 years. She was having sonography for other medical reasons and not for the purpose of sex determination. It is further pointed out this fact has not been denied by the respondent in their reply. Without considering this aspect and without applying its mind, the Court below has taken cognizance of the matter, only on the basis of surmises and presumptions. It is contended that the Rule 71 of 1996 Rules provides that the validity of the registration certificate once issued is for a period of five years, but the appropriate authority without any rhyme or reason renewed it only for a period of one year and three months vide letter dated 19.11.2015, which is in violation of the rules.
MCrC No.5465/2020 65. Per contra, it is contended by Shri Yash Soni, learned Govt. Advocate that the prosecution case is at initial stage and the evidence is yet to be recorded. Under such circumstances, no interference can be made at the preliminary stage. It is stated that petitioner, a Government Doctor is running the private sonography clinic at Tendukheda in the name and style of Monu Clinic, Tendukheda, District Narsinghpur, which was run without a valid registration contrary to the provision of Pre-Conception and Pre- Natal Diagnostic Techniques Act and Rules. It is stated that prima facie, the complaint constitutes a cognizable offence against the petitioner and therefore, the JMFC has rightly passed the order taking cognizance against the petitioner. It is further stated that the interim protection granted by this Hon'ble Court in W.P. No. 15509/2013 is not applicable to the instant case as that was a case challenging the order dated 07.08.2013, whereby complete restriction was imposed on the private practice of the medical officers, doctors, including registration of equipment instructions, which requires a separate licence, whereas in the instant case, the petitioner was not having a valid registration after 01.01.2017, for running his Sonography Centre. It is further pointed out that the letter dated 09.03.2017 do not aid the petitioner as it only provides the direction to file necessary documents and forms as per the requirement of registration, but no registration certificate was issued in favour of the petitioner after the expiry of earlier MCrC No.5465/2020 7 registration on 01.01.2017, hence the letter dated 09.03.2017 cannot be taken as indication of renewal of petitioner.
6. I have heard the learned counsel for the parties and perused the record.
7. Before adverting to the rival contentions, it is apposite to reproduce the relevant Sections of the 1994 Act and 1996 Rules which have a bearing on the present case.
8. Section 17(2) of the Act prescribes for appointment of one or more appropriate authority for the whole or part of the State by notification in the Official Gazette. It is not disputed that the Collector is the appropriate authority notified under the Act.
9. A perusal of aforesaid provisions show that the appropriate authority notified under Section 17, may delegate its power and authorize any officer in this behalf to search as considered necessary such Centre Laboratory or Clinics and examine the records etc. and also to seize if there is any reason to believe that it may furnish evidence of commission of an offence under the Act.
MCrC No.5465/2020 810. As per Section 28 of the Act, the cognizance can be taken only on a complaint made by the appropriate authority concerned, which reads as under :-
28. Cognizance of Offences :-(1) No court shall take cognizance of an offence under this Act except on a complaint made by--
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than thirty days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
Explanation.--For the purpose of this clause, "person" includes a social organisation.
(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(3) Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person."
MCrC No.5465/2020 911. The aforesaid provision makes it clear that the Court can take cognizance of an offence not only on a complaint made by the appropriate authority, but also on a complaint filed by any officer authorized by the appropriate authority in this regard.
12. I, therefore, do not find force in the submissions of Shri Anubhav Jain, learned counsel for the petitioner that the complaint was illegal as vide authorization letter dated 02.09.2019, CMHO as well as Nodel Officer (PC and PNDT Act) were authorized to file the complaint.
13. Rules 6 and 7 of the 1996 Rules provides for the procedure for grant of certificate of Registration and its validity period as under :-
6. Certificate of registration.--
(1) The Appropriate Authority shall, after making such enquiry and after satisfying itself that the applicant has complied with all the requirements, place the application before the Advisory Committee for its advice.
(2) Having regard to the advice of the Advisory Committee the Appropriate Authority shall grant a certificate of registration, in duplicate, in Form B to the applicant. One copy of the certificate of registration shall be displayed by the registered 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound clinic or Imaging centre] at a conspicuous place at its place of business:MCrC No.5465/2020 10
Provided that the Appropriate Authority may grant a certificate of registration to a Genetic Laboratory or a Genetic Clinic to conduct one or more specified pre- natal diagnostic tests or procedures, depending on the availability of place, equipment and qualified employees, and standards maintained by such laboratory or clinic.
(2)A (a) One copy of the certificate of registration shall be displayed by the registered mobile medical unit inside the vehicle at a conspicuous place.
(b) The certificate of registration for such unit, shall clearly specify the following -
(I) the area of its operation, which shall not exceed the district wherein it is registered;
(II) the number of portable machines installed and being used in the vehicle;
(III) the make and model number of the portable machine;
(IV) the registration number of the vehicle;
(V) full address of the service provider for the mobile medical unit;
(2)B The portable equipment used for conducting pre-
natal diagnostic test shall be an integral part of the mobile medical unit and such equipment shall not be used outside such unit under any circumstances.
(2)C In case of a breakdown of the vehicle or for any other reason due to which the registered unit cannot be used as a Genetic Clinic, the Appropriate Authority has to be informed within a period of seven days.
(3) If, after enquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not MCrC No.5465/2020 11 complied with the requirements of the Act and these rules, it shall, for the reasons to be recorded in writing, reject the application for registration and communicate such rejection to the applicant as specified in Form C. (4) An enquiry under sub-rule (1), including inspection at the premises of the Genetic Counselling Centre, Genetic Laboratory Genetic Clinic, Ultrasound clinic or Imaging centre, shall, be carried out only after due notice is given to the applicant by the Appropriate Authority.
(5) Grant of certificate of registration or rejection of application for registration shall be communicated to the applicant as specified in Form B or Form C, as the case may be, within a period or ninety days from the date of receipt of application for registration.
(6) The certificate of registration shall be non- transferable. In the event of change of ownership or change of management or on ceasing to function as a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound clinic or Imaging centre, both copies of the certificate of registration shall be surrendered to the Appropriate Authority.
(7) In the event of change of ownership or change of management of the 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound clinic or Imaging centre], the new owner or manager of such Centre, Laboratory or Clinic shall apply afresh for grant of certificate of registration.
7. Validity of registration.--
Every certificate of registration shall be valid for a period of five years from the date of its issue.
MCrC No.5465/2020 1214. Rule 8 of 1996 Rules prescribes the procedure for renewal of registration as under :-
8. Renewal of registration.
(1) An application for renewal of certificate of registration shall be made in duplicate in Form A, to the Appropriate Authority thirty days before the date of expiry of the certificate of registration. Acknowledgment of receipt of such application shall be issued by the Appropriate Authority in the manner specified in sub-rule (2) of rule 4.
(2) The Appropriate Authority shall, after holding an enquiry and after satisfying itself that the applicant has complied with all the requirements of the Act and these rules and having regard to the advice of the Advisory Committee in this behalf, renew the certificate of registration, as specified in Form B, for a further period of five years from the date of expiry of the certificate of registration earlier granted.
(3) If, after enquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of the Act and these rules, it shall, for reasons to be recorded in writing, reject the application for renewal of certificate of registration and communicate such rejection to the applicant as specified in Form C. (4) The fees payable for renewal of certificate registration shall be one half of the fees provided in sub-rule (1) of rule 5.
(5) On receipt of the renewed certificate of registration in duplicate or on receipt of communication of rejection of application for renewal, both copies of the earlier certificate of registration shall be surrendered immediately to the Appropriate Authority by the 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic Ultrasound clinic or Imaging centre].MCrC No.5465/2020 13
(6) In the event of failure of the Appropriate Authority to renew the certificate of registration or to communicate rejection of application for renewal of registration within a period of ninety days from the date of receipt of application for renewal of registration, the certificate of registration shall be deemed to have been renewed.
15. Sub-rule 3 of Rule 8 prescribes that application of renewal is to be made in duplicate in Form A to the appropriate authority, 30 days before the expiry of the certificate of registration. Sub-rule 2 and 3 of Rule 8 further provides that the Appropriate Authority after holding an exquiry and after being satisfied that requirement of Act of 1994 and Rules, 1996 have been complied with or not either renew the certificate for a further period of five years from the date of expiry of certificate granted earlier or reject the same with reasons to be recorded in writing and communicate the same to the applicant. Sub-rule (6) of Rule 8 is a deeming provision and provides that in the event of failure of Appropriate Authority to renew the certificate or communicate the rejection of the application for renewal of a registration within a period of 90 days from the date of receipt of application, the registration shall be deemed to have been renewed. Sub-rule (2) further clarified that during the pendency of the renewal of the registration certificate upto the date of communication of rejection, the holder of certificate of registration sought to be renewed is entitled to continue to operate on the basis of existing certificate of registration.
MCrC No.5465/2020 1416. Sections 20 and 30 of the Act of 1994 which prescribes the procedure for cancellation/suspension of seizure are reproduced as under :-
20. Cancellation or suspension of registration.-
1. The Appropriate Authority may suo moto, 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 advice 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).
30. Power to search and seize records, etc.--
(1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any officer authorised in this behalf may, subject to such MCrC No.5465/2020 15 rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act.
17. The provisions contained in Sections 20 and 30 of the Act of 1994 provides that Appropriate Authority may suo motu or on a compliant can cancel the registration and seize and seal the records, but before doing so, show cause notice and opportunity of hearing is necessary to be given to the affected persons.
18. Section 20 of the Act and Rules 7 and 8 mandates that before rejecting an application for renewal under Rules 8(3) or cancelling the registration, the Appropriate Authority must make an enquiry, give the applicant an opportunity of hearing, satisfy himself to reach to a conclusion that applicant has not complied with any of the provisions of Act of 1994 and the 1996, Rules. Further, reasons are required to be furnished in writing and communicated to the applicant.
MCrC No.5465/2020 1619. As regards the contention of petitioner that the letter dated 09.04.2019 allegedly cancelling his registration was never communicated to the petitioner has not been denied by the respondent authority. A perusal of letter dated 09.03.2017 reveals that authorized officer/Collector has communicated to the petitioner that his centre is registered under the PC and PNDT Act and further asked him to submit the Form F and other relevant documents online within a period of seven days. It is not the case of the respondent that these documents were not submitted by the petitioner. The petitioner was already communicated vide letter dated 09.03.2017 that his clinic/centre was registered, in such case, if after communicating, the registration certificate is not issued, it is the fault on the part of authority concerned and petitioner could not be held liable for such fault. Moreover, even if, the application for registration is pending before the authority concerned and any order on it was not communicated to the petitioner within a period of 90 days from the date of receipt of application for renewal of registration, the certificate of registration shall be deemed to have been renewed.
20 In the instant case, the application was communicated vide letter dated 19.03.2017 that his centre has been registered and was asked to submit certain documents as mentioned hereinabove, MCrC No.5465/2020 17 thereafter on 09.04.2019, his registration was cancelled. Petitioner has made a categoric statement that this order dated 09.04.2019 cancelling his registration was not communicated to him. Interestingly, there is no rebuttal to this allegation by the respondents. It is thus clear that this order was never communicated to the petitioner, and no opportunity of hearing as mandated under Section 20 and Rules 7 and 8 was given before doing so. Under the facts and circumstances, the order cancelling the registration cannot be sustained and hereby set aside. The order of rejection was unilaterally passed on 09.04.2019, i.e., after a period of two years. Under the circumstances, by the fiction introduced under Rule 8(6) and in view of letter dated 09.03.2017, the registration of the petitioner's sonography centre is deemed to be renewed all purposes for a further period of five years starting from the date of expiry of the certificate granted earlier.
21. The only allegation in the complaint filed by the CMHO is that petitioner without valid registration was found conducting ultrasound of a patient namely Koushalya Patel. Once the petitioner was communicated that his registration has been renewed, it would run its full course and can only be cancelled as per the provisions prescribed under the Act of 1994. As already held in preceding paras the order cancelling the registration was MCrC No.5465/2020 18 arbitrary and passed in violation of the provisions of the Act of 1994 and Rules 1996.
22. Further, the impugned order shows that the Court has taken cognizance on the presumption that the applicant was found conducting sonography of Koushalya Patel for the purpose of sex determination. The learned Court failed to consider the medical document/prescription dated 21.07.2019 annexed to the complaint. This medical prescription reveals that Smt Koushalya Patel was 60 years of age and menopoused since last 10 years. The prescription shows that she was having lump on the right side of illiac region, for which she was advised for USG.
23. The unilateral cancellation of petitioner's registration and the subsequent filing of complaint and taking cognizance by the Court is done without application of mind and cannot sustain judicial scrutiny.
24. Resultantly, the order cancelling registration as well as the order impugned taking cognizance against petitioner are quashed. The petition is allowed.
(Nandita Dubey) Judge 13/06/2022 SMT. GEETHA NAIR gn 2022.06.13 17:38:03 +05'30'