Orissa High Court
Unknown vs Indian Radiological And Imaging ... on 21 June, 2018
CRLREV No. 318 of 2018
4. 21.6.2018 Heard Mr.D. Panda, learned counsel for the petitioner and
Mr. P.K. Mohanty, learned Addl. Standing Counsel.
2. Challenge has been made to the order of framing charge for
the offence under Section 420/34 I.P.C. read with Section 16 of
Clinical Establishment (Control & Regulation) Act, 1990 (hereinafter
called "the Act") and under section 23 of the Pre-Conception & Pre-
natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
(hereinafter called "the P.C. & P.N.D.T. Act").
3. Learned counsel for the petitioner submits that on the date of
visit by the squad to the clinic in question does not disclose that the
petitioner being the doctor was engaged in determining of sex
contravening the provision of the P.C. & P.N.D.T. Act on the date of
visit of enforcement squad to the clinic. According to him, the clinic
belongs to co-accused Md. Zamila Ahemad. In that clinic co-
accused Sanjaya Kumar Sahu was found to have not obtained
appropriate license for conducting ultrasound test. The material only
shows that the petitioner occasionally attends the clinic whenever
pregnant woman requires for such test. But there is no allegation
that the petitioner made ultrasound test for determining the sex of
any fetus since the allegation is mainly against the co-accused
Sanjaya Kumar Sahu and Md. Zamila Ahemad and the present
petitioner being a doctor by profession has attended the clinic as per
the permission granted vide Annexure-2 to the petition to attend the
clinic and there is no allegation of contravention of any provision of
any statute. The impugned order of framing charge against the
petitioner under such offences is abuse process of Court and per se
illegal. Apart from this, the order sheet would go to show that no
opportunity was given to the petitioner to hear on the point of charge
because on the very same date when the police paper was supplied,
the charge was framed against him by the learned J.M.F.C., Aul. So,
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he submits to set aside the impugned order against the present
petitioner.
4. Learned Addl. Standing Counsel submits that as per the case
diary there is allegation against three accused persons including the
present petitioner. Charge sheet also submitted in this case. The
entire materials show that the present petitioner also has
participated with other two co-accused persons, but on the date of
visit, he was absent in the clinic. So, he supports the impugned
order.
5. Considered the submissions of learned counsel for the
respective parties. The impugned order is as follows:-
" xx xx xx xx
"Later
Heard on the point of charge. Perused the case
record along with its connected documents like F.I.R.,
Charge Sheet submitted by the I.O. I am of the
considered view that there is sufficient ground for
presuming that the accused persons have committed
offence under Section 420/34 of I.P.C./16 Clinical
Establishment Control & Regulation Act, 1990 & 23 of
P.C.F.N.D.T. Act which comes under XIX of Cr.P.C. The
said offences are triable by this Court and in my earnest
considered view that the accused persons could be
adequately punished by this Court. Hence, charge under
Section 420/34 of I.P.C./16 Clinical Establishment
Control & Regulation Act, 1990 & 23 of P.C.P.N.D.T. Act
is framed against the accused persons and the contents
of the charge is read over and explained to the accused
persons to which they pleads not guilty and claims for
trial. The learned A.P.P. orally prays to issue summons
to the Charge-sheeted witnesses. Hence, issue
summons to the Charge-sheeted witnesses fixing
17.04.18 for evidence."
6. From the impugned order it appears that the learned
Magistrate having found a prima facie case has framed the charge
against the present petitioner including other co-accused persons.
7. On cursory reading of the record, it is found that on the date
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of visit, the petitioner was not performing any ultrasound, although
Sanjaya Kumar Sahu was found to have been conducting
ultrasound. The material also shows that the petitioner being doctor
has conducted certain ultrasound in that clinic for certain witnesses
like Aparna Das, Pratima Biswal and other witnesses, but they are
referred by other doctors for conducting ultrasound and they have
specifically stated that they have neither asked the petitioner to
conduct sex determination test nor the present petitioner has
conducted any such sex determination test which is banned under
Section 3 read with Section 6 of the P.C. & P.N.D.T. Act . From the
materials it appears that the petitioner is not found in cheating
punishable under Section 420 I.P.C. as only attends the clinic
occasionally and there is no allegation that he has conducted any
sex determination test by cheating any woman.
8. Since the petitioner is not the owner of the clinic or the
ultrasound machine, the question of attracting Section 16 of the
Clinical Establishment (Control & Regulation) Act, 1990 is far from
truth. However, Sections, 3, 3A, 4, 5(2), 6 and 23 of the P.C. &
P.N.D.T. Act are relevant to be quoted below:-
"3. Regulation of Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics.- On and from the
commencement of this Act,--
(1) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic unless registered under this Act, shall
conduct or associate with, or help in, conducting
activities relating to prenatal diagnostic techniques;
(2) no Genetic Counselling Centre or Genetic Laboratory
or Genetic Clinic shall employ or cause to be
employed or take services of any person, whether on
honorary basis or on payment who does not possess
qualifications as may be prescribed;
(3) no medical geneticist, gynaecologist, paediatrician,
registered medical practitioner or any other person
shall conduct or cause to be conducted or aid in
conducting by himself or through any other person,
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any pre-natal diagnostic techniques at a place other
than a place registered under this Act.
3A. Prohibition of sex-selection.- No person, including
a specialist or a team of specialists in the field of
infertility, shall conduct or cause to be conducted or aid
in conducting by himself or by any other person, sex
selection on a woman or a man or on both or on any
tissue, embryo, conceptus, fluid or gametes derived from
either or both of them.
4. Regulation of pre-natal diagnostic techniques.- On
and from the commencement of this Act,--
(1) no place including a registered Genetic Counselling
Centre or Genetic Laboratory or Genetic Clinic shall
be used or caused to be used by any person for
conducting pre-natal diagnostic techniques except
for the purposes specified in clause (2) and after
satisfying any of the conditions specified in clause
(3);
(2) no pre-natal diagnostic techniques shall be conducted
except for the purposes of detection of any of the
following abnormalities, namely:--
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be
specified by the Central Supervisory Board;
(3) no pre-natal diagnostic techniques shall be used or
conducted unless the person qualified to do so is satisfied
for reasons to be recorded in writing that any of the
following conditions are fulfilled, namely:--
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone of two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially
teratogenic agents such as drugs, radiation, infection
or chemicals;
(iv) the pregnant woman or her spouse has a family
history of mental retardation or physical deformities
such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the Central
Supervisory Board;
Provided that the person conducting ultrasonography on a
pregnant woman shall keep complete record thereof in the
clinic in such manner, as may be prescribed, and any
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deficiency or inaccuracy found therein shall amount to
contravention of provisions of section 5 or section 6 unless
contrary is proved by the person conducting such
ultrasonography;
xx xx xx
5. (2) No person including the person conducting pre-natal
diagnostic procedures shall communicate to the pregnant
woman concerned or her relatives or any other person the
sex of the foetus by words, signs, or in any other manner.
xx xx xx
6. Determination of sex prohibited.- On and from the
commencement of this Act,--
(a) no Genetic Counselling Centre or Genetic Laboratory
or Genetic Clinic shall conduct or cause to be
conducted in its Centre, Laboratory or Clinic, pre-
natal diagnostic techniques including
ultrasonography, for the purpose of determining the
sex of a foetus;
(b) no person shall conduct or cause to be conducted any
pre-natal diagnostic techniques including
ultrasonography for the purpose of determining the
sex of a foetus;
(c) no person shall, by whatever means, cause or allow to
be caused selection of sex before or after conception.
23. Offences and penalties.-
(1) Any medical geneticist, gynaecologist, registered
medical practitioner or any person who owns a Genetic
Counselling Centre, a Genetic Laboratory or a Genetic
Clinic or is employed in such a Centre, Laboratory or
Clinic and renders his professional or technical services to
or at such a Centre, Laboratory or Clinic, whether on an
honorary basis or otherwise, and who contravenes any of
the provisions of this Act or rules made thereunder shall
be punishable with Act, 1994 & Amendments
imprisonment for a term which may extend to three years
and with fine which may extend to ten thousand rupees
and on any subsequent conviction, with imprisonment
which may extend to five years and with fine which may
extend to fifty thousand rupees
Xx xx xx
3. Any person who seeks the aid of a Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic or ultrasound
clinic or imaging clinic or of a medical geneticist,
gynaecologist, sonologist or imaging specialist or
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registered medical practitioner or any other person for sex
selection or for conducting pre- natal diagnostic
techniques on any pregnant women for the purposes other
than those specified in sub-section (2) of section 4, he
shall, be punishable with imprisonment for a term which
may extend to three years and with fine which may extend
to fifty thousand rupees for the first offence and for any
subsequent offence with imprisonment which may extend
to five years and with fine which may extend to one lakh
rupees."
9. The aforesaid provisions have been well dealt in Union of
India Vs. Indian Radiological and Imaging Association and Ors.
Etc., reported in 2018(4) SCALE 542 where Hon'ble Apex Court in
aragraphs-3 and 4 observed as follows:-
" 3. The PCPNDT Act was enacted by Parliament, as its
Preamble indicates, to prohibit sex-selection, and to
regulate pre-natal diagnostic techniques so as to prevent
their misuse for sex determination. The Preamble reads
thus:
"An Act to provide for the regulation of the use
of pre-natal diagnostic techniques for the
purpose of detecting genetic or metabolic
disorders or chromosomal abnormalities or
certain congenital malformations or sex linked
disorders and for the prevention of the misuse
of such techniques for the purpose of pre-natal
sex determination leading to female foeticide;
and, for matters connected there with or
incidental thereto."
4. The intent of Parliament in enacting the law is clarified
in the Statement of Objects and Reasons which
accompanied the introduction of the Bill. Insofar as it is
material to the present controversy, the Statement of
Objects and Reasons reads thus:
"Introduction:
In the recent past Pre-natal Diagnostic Centres sprang
up in the urban areas of the country using pre-natal
diagnostic techniques for determination of sex of the
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foetus. Such centres became very popular and their
growth was tremendous as the female child is not
welcomed with open arms in most of the Indian families.
The result was that such centres became centres of
female foeticide. Such abuse of the technique is against
the female sex and affects the dignity and status of
women. Various Organisation working for the welfare
and uplift of the women raised their heads against such
an abuse."
Statement of Objects and Reasons
It is proposed to prohibit pre-natal diagnostic techniques
for determination of sex of the foetus leading to female
foeticide. Such abuse of techniques is determination
against the female sex and affects the dignity and status
of women. A legislation is required to regulate the use of
such techniques and to provide deterrent punishment to
stop such inhuman act.
The Bill, inter alia provides for:-
(i) prohibition of the misuse of pre-natal diagnostic
techniques for determination of sex of foetus, leading to
female foeticide;
(ii) prohibition of advertisement of pre-natal diagnostic
techniques for detection or determination of sex;
(iii) permission and regulation of the use of pre-natal
diagnostic techniques for the purpose of detection of
specific genetic abnormalities or disorders;
(iv) permitting the use of such techniques only under
certain conditions by the registered institutions; and
(v) punishment for violation of the provisions of the
proposed legislation.
2. The Bill seeks to achieve the above objectives."
5. The comprehensive directions issued by this Court in
its decision in Voluntary Health Association of Punjab
(Supra) must be read as integral to the enforcement of a
law which has been enacted by Parliament to curb a
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grave social evil and to render the statutory provisions
truly effective to curb the mischief which was sought to
be addressed by enacting the law. More specifically, in
its judgment dated 8 November 2016, this Court has
required the states and the Union territories to implement
the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) (Six Months Training)
Rules, 2014 forthwith. JJ."
10. With due regard to the aforesaid decision and provisions
it is clear that any person including doctor if found to have
conducted any sex determination test or any other test like pre-
natal diagnostic test for the reason other than the purposes as
provided under Section 4(2) of the P.C. & P.N.D.T. Act is
punishable under section 23 of the Act. Section 4 of the Act is
clear to show that for the test to be conducted necessary for
saving of life of woman and fetus or any incidental thereto
ultrasound is permissible. In the instant case there is nothing
found from the material on record that sex determination has
been made by the petitioner doctor in the clinic although the
clinic is unauthorisedly run by the accused, prima facie case
against the concerned doctor for violating Section 3, 3A of the
Act made out. In the impugned order the learned Magistrate has
not discussed any other material while framing charge except
giving finding that there is prima facie case against the petitioner.
So, prima facie case under Section 23 of PCPNDT Act is not
found. Therefore being no prima facie case found, the impugned
order is liable to be quashed as continuance of case amounts to
abuse of process of Court, for which the impugned order is
quashed.
dnp
11. In terms of the above discussion, no prima facie case is found
against present petitioner, for which he is discharged from the said
offence.
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12. The Criminal Revision is accordingly allowed. It is made clear
that the doctors at large should also verify the clinic whether it is
registered or not under relevant provision of law before attending the
clinic.
Copy of this order be sent to the Director, Medical Services,
Principal Secretary, Health and Environment Department for
circulation.
Certified copy of this order be granted on proper application.
Dr.D.P.Choudhury, J.
