Kerala High Court
Haji A Abdul Rafeeq vs State Of Kerala on 14 January, 2019
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940
Crl.MC.No. 2173 of 2018
AGAINST THE ORDER/JUDGMENT IN MP 5128/2017 of J.M.F.C.,CHAVAKKAD
PETITIONER/ACCUSED 1 TO 3:
1 HAJI A ABDUL RAFEEQ
ERECHOM VEETTIL, RAJA MANZIL, MUTHUVATTOOR,CHAVAKKAD,
(MANAGING TRUSTEE, RAJAH CHARITABLE MEDICALTRUST,
CHAVAKKAD)
2 DR. ANGALA GOPINATHI RAO
58, TUMA STREET, GREEN PARK, THRISSUR, KERALA.
3 DR. PRIYA JOHN
D/O JOHN JOSEPH, 147/906, THAVOOZ LANE,MISSION
QUARTERS, THRISSUR.
BY ADV. SRI.MILLU DANDAPANI
RESPONDENT/STATE & COMPLAINANTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
2 THE SUB INSPECTOR OF POLICE
CHAVAKKAD POLICE STATION, CHAVAKKAD PO, THRISSUR-
680506.
3 THE DISTRICT MEDICAL OFFICER OF HEALTH
THRISSUR-680001.
BY ADV. PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.K.P DANDAPANI(SR.) ,SR.GP SUMAN CHAKRAVARTHY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.10.2019,
THE COURT ON 14/1/2019 PASSED THE FOLLOWING:
Crl.M.C.No.2173/2018 2
O R D E R
The first petitioner is the managing trustee of a charitable trust which is running a hospital registered under the Pre Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994(hereinafter referred to as PC & PNDT Act). The second and third petitioners are the doctors employed in that hospital. The hospital had installed and used scanning machine and Echo-Cardiogram machine for conducting various tests the patients on the strength of the certificate issued under the above Act, which had validity upto 4/5/2017. Before the expiry of the period of above certificate, an application in Form A was submitted by the hospital on 4/4/2017 for its renewal. While so, an inspection was conducted in the hospital by the District RCH officer on 30/5/2017. He reported that he noticed several violations under the Act. Based on the report, third respondent who is the appropriate authority under the said Act issued a notice in writing to the hospital directing them to stop the pre-natal test. The above direction was received by the hospital on 3/7/2017. Reply was sent by the hospital on 6/7/2017 Crl.M.C.No.2173/2018 3 clarifying that the due to certain difficulties regarding the maintenance of records, it could not be properly maintained and apologized for the violation.
2. Inspection was again conducted by the third respondent in her capacity as the appropriate authority under the PC & PNDT Act. She noticed violations under sections 23(1) and 25 of the Act. Following are the important violations alleged in the occurrence report filed before the Magistrate court.
(i). The Hospital has conducted scanning, including on pregnant women, without registration under the PC & PNDT Act.
(ii). Petitioners conducted Echo-Cardiogram without registration under the PC & PNDT Act.
(iii). Hospital was not retaining the images of scanning conducted on pregnant women.
3. Occurrence report dated 17/8/2017 is produced along with Crl.M.C. as Annexure A1. Annexure A2 is the complaint MP No. 5128/2017 filed before the Judicial First Class Magistrate, Chavakkad alleging offences punishable under sections 23 (1), 23 (3) read with sections 4 (3) and 25 of the PC & PNDT Act.
4. Petitioners challenge the above criminal proceedings on Crl.M.C.No.2173/2018 4 the ground that the above proceedings are not legally sustainable and in the light of the application submitted by them for renewal well in advance, before its expiry, they had deemed licence and hence hospital was justified in conducting the tests and proceeding with the running of the hospital.
5. According to the third respondent, as revealed from the records, which were made available by the hospital, the third respondent had submitted 166 Form F applications before the authorities on 4/8/2017. The above forms were maintained under the PC and PNDT Act, relating to the test/proceedings conducted by the hospital. Among them 17 forms related to the test/proceedings conducted during the period from 1/7/2017 to 3/7/2017. 149 Forms covered the period from 4/7/2017 to 31/7/2017. According to the complainant, it amounted to violation under section 3 (1) of the Act. Hence, a team of officers conducted the inspection on 16/8/2017 under the direction of the third respondent. Detailed verification of the machines, registers and records maintained in the hospital was conducted. It showed that about 649 patients had undergone scanning during the period from 1/7/2017 to 31/7/2017. Among them 181 were pregnant women. However, only 166 Form F were Crl.M.C.No.2173/2018 5 produced. 15 Forms relating to the pregnant women were not produced, on an explanation that such records were not available with the hospital. The statement of a staff was recorded which show that she had stated that she had collected fees from the patients who had undergone pre natal test.
6. On the basis of the above records, it was alleged by the prosecution that it amounted to violations under sections 3, section 29 and Rules 9 and 10 of the Rules 1996 framed under the Act. Hence, it was alleged that petitioners are liable for prosecution for offences under sections 3 (1), 3 (3), 26(1) and 29 of the PC & PNDT Act and Rules 9, 10 (2) and 18 (v) of the Rules.
7. It was vehemently contended by the learned counsel for the petitioners that prosecution was not sustainable. It was contended that, terminology used in section 23 is that of "contravention" of any other provisions of the Act or Rules. The term "contravention" is not defined under the Act. According to the learned counsel, section 23 comes under Chapter VII which deals with offences and penalties. It was hence contended that offences and contraventions are not having the same meaning. Under section 25 of the Act, penalty was contemplated for Crl.M.C.No.2173/2018 6 contravention of the provisions of the Act or Rules, for which no specific punishment is provided.
8. I am not at all impressed by the above contention. Sections 22 to 28 come under Chapter VII dealing with offences and penalties. Section 23 provides for penalty for contravention of Act and Rules. Evidently, the heading of the section is "ofences and penalties", clearly indicating that any contravention of Act and Rules would constitute an offence, for which penalty is prescribed.
9. It was contended by the learned counsel for the petitioners that before the expiry of the licence on 4/5/2017, renewal application was submitted on 4/5/2017. Under Rule 8(6) of the Rules, there is a deeming provision which provides that in the event of failure of the appropriate authority to renew 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. Hence, it was contended that the alleged violation is not correct and in the light of Rule 8 (6) of the Rules deemed permission was in force and any activity done by the Crl.M.C.No.2173/2018 7 hospital is protected. It is evident that though the application for renewal was filed on 4/4/2017, one month in advance, before the expiry of the registration, on 4/5/2017, prima facie materials are available to indicate that even after 4/5/2017, the hospital had conducted various tests. The deeming provision will came into play only on expiry of 90 days from the date of application and if it is not renewed or rejection communicated within above period. Evidently, the period of registration expired on 4/5/2017. The wording in Rule 8 (6) is clear that if certificate of registration is not renewed or rejection is not communicated within 90 days, after the period of 90 days, it would be deemed that certificate has been renewed.
9. The above provision mean that the petitioner is not entitled to conduct the various tests under the Act, after the expiry of the certificate period taking benefit under Rule 8 (6) of the deemed licence that can come into play on the expiry of 90 days from the date of submission of the application. Evidently, in this case before the expiry of 90 days, inspection was conducted on 30/5/2017. At that time, the certificate period stood expired. It had not been ordered to be renewed. Hence, the petitioners cannot contend that they were continuing on the Crl.M.C.No.2173/2018 8 basis of the deemed registration. Even otherwise, on finding of violation, on 30/5/2017, the hospital was directed to stop all pre natal test by order received by the hospital on 3/7/2017. Evidently, even thereafter the petitioners herein continued to conduct the test and the procedures. In the above circumstances, even assuming that the petitioners herein were not communicated with the order of stoppage prior to 3/7/2017, by a subsequent order served on 3/7/2017, the petitioners were directed to stop the business. Hence, I do not feel that petitioners are entitled to get the benefit on the basis of the deemed registration. Hence, I find no ground for interference in the proceedings. However, this will not preclude the petitioners from raising any other grounds before the court below and also on facts even at the preliminary stage.
Having considered the above facts, I feel that there is no ground for interference in the prosecution. Petition fails and is accordingly dismissed.
Sd/-
SUNIL THOMAS JUDGE dpk Crl.M.C.No.2173/2018 9 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE OCCURRENCE REPORT ALONG WITH THE MAHAZAR PREPARED BY THE 3RD RESPONDENT DATED 17.8.2017 BEARING NO.D6- 10078/2017 AND PRODUCED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD.
ANENXURE A2 TRUE COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT WHICH WAS NUMBERED AS C.C NO.320/2018 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD.