Punjab-Haryana High Court
State Of Haryana vs Sanjeev Kaushal on 18 January, 2019
Author: Inderjit Singh
Bench: Inderjit Singh
221
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No.A-450-MA of 2014 (O&M)
Date of decision: January 18, 2019
State of Haryana through District Appropriate Authority-cum-Civil
Surgeon, Sirsa
...Applicant
Versus
Dr.Sanjeev Kaushal
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Satbir Gill, Advocate
for the applicant.
Mr.J.S.Bedi, Senior Advocate with
Mr.Lovekirat S. Chahal, Advocate
for the respondent.
****
INDERJIT SINGH, J.
Applicant-State of Haryana through District Appropriate Authority-cum-Civil Surgeon, Sirsa has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondent Dr.Sanjeev Kaushal, challenging the judgment dated 16.11.2013 passed by learned Chief Judicial Magistrate, Sirsa, whereby accused-respondent was acquitted.
It is mainly stated in the application that accompanying appeal is being filed which is likely to succeed on the grounds taken therein. It is, therefore, prayed that leave to appeal be granted.
As per the record, complainant State through District 1 of 6 ::: Downloaded on - 17-03-2019 06:40:30 ::: CRM No.A-450-MA of 2014 -2- Appropriate Authority-cum-Civil Surgeon, Sirsa filed a complaint against accused Dr.Sanjeev Kaushal and M/s Diagnostic Centre, under Sections 323, 325, 452, 506 and 34 IPC. The brief averments of the complaint as noted down in the judgment passed by learned CJM, Sirsa, are as under:-
"2. It is alleged that on 06.12.2006, Deputy Commissioner, Sirsa received a complaint on public help line against the diagnostic centre of Dr.Sanjeev Kaushal, that the above said doctor was examining pregnant women about the male and female sex in the foetus and thereby violating the provisions of P.N.D.T. Act which is an offence". On receiving this complaint, Deputy Commissioner, Sirsa constituted a team and ordered to check the above said diagnostic centre surprisingly. This team was being headed by SDM (Civil), Sirsa Smt.Geeta Bharti and doctor of Health Department Dr.Viresh Bhushan and one journalist Shri Bhupinder Dharmani. On 06.12.2006 when this team checked the above said diagnostic centre of Dr.Sanjeev Kaushal, at that time one pregnant lady was being examined by Dr.Sanjeev Kaushal ultrasonically on the spot. In this regard although Form-F of that pregnant lady was found filled up but her name was not entered by Dr.Kaushal in the ultrasound register, which is mandatory and provision of PNDT Act and he was not complying with the provision of PNDT Act. Similarly, another pregnant woman, who had also been exmained earlier on the same day, but her name was also not found mentioned in the ultrasound register. Names of these two women were Smt.Kailash wife of Shri Surender Kumar, resident of Village Dhottar, District Sirsa and Darshna wife of Shishpal, resident of Village Darba, District Sirsa.
3. It is further alleged that the above raiding team asked from Dr.Kaushal about the entry of name of the above said two pregnant women, in the ultrasound register, then he replied through his statement written by the SDM that due to rush of work, he did not enter the names of the above said two ladies in the ultrasound register and he does so daily after 5:00 PM. Meaning thereby, he was having oblique intention in his mind that if some checking team comes, then he will use the Form-F for entry in the register otherwise this form will be used as a waste paper according to his choice. From the above said circumstances, it is very much clear that Dr.Kaushal was committing the offence under PNDT Act. The raiding party also recorded that statement of Sarita Rani daughter of Tilak Raj Mehta, resident of Inderpuri Mohalla, Sirsa, who stated before SDM that Dr.Kaushal had instructed her that entry of the patients ultrasonically examined in the centre be made in the ultrasound register after 5:00 PM which also shows his malafide intention.
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4. It is further alleged that the pregnant women can be examined ultrasonically and before this examination, the patient so examined must be referred for examinations by a qualified doctor through a proper referral slip under the PNDT Act. In this case, two patients namely Smt.Rameti and Smt.Sushila were allegedly referred to the above said centre by Dr.Manisha Mehta of Apex Hospital, Sirsa. It is worthwhile to mention here that Dr.Kaushal moved an application in the court to remove seals of Appropriate Authority, Sirsa and to release the ultrasound machine to him. During the course of arguments on that application, he relied upon the slips issued by Dr.Manisha Mehta to patient Smt.Rameti and Smt.Sushila to be the proper referral slip of Dr.Manisha Mehta. When Appropriate Authority inquired from Dr.Manisha Mehta whether the slips issued to the patients Smt.Rameti and Smt.Sushil were the referral slips were issued by her i.e. Dr.Manisha Mehta, then she categorically denied that these were not her proper referral slips. She also gave so in writing to CMO, Sirsa and also gave a specimen slip being the proper referral slip and she also stated that whenever she refers a patient for ultrasonic examination, she refers through a referral slip like a specimen slip. Meaning thereby, Dr.Kaushal was wrongly alleging that the slip issued by Dr.Manisha Mehta as proper referral slip and thereby violating the provisions of PNDT Act. Hence this complaint."
The complainant examined PW-1 Dr.P.R.Kayasth, PW-2 Dr.Viresh Bhushan, PW-3 Dr.P.L.Verma, PW-4 Mohan Lal, Reader and PW-5 Dr.Narender Chaudhary. The accused were charge-sheeted under Section 23 read with Section 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
At the close of complainant evidence, the accused Sanjeev Kaushal was examined under Section 313 Cr.P.C. He was confronted with the evidence of the complainant and he denied all the incriminating evidence against him and pleaded his false implication.
Learned CJM, Sirsa, after appreciating the evidence, acquitted the accused-respondents vide impugned judgment dated 07.05.2014.
Aggrieved from the above-said judgment, present appeal along 3 of 6 ::: Downloaded on - 17-03-2019 06:40:31 ::: CRM No.A-450-MA of 2014 -4- with application for grant of leave to appeal has been filed.
Notice of the application was issued. Learned counsel for the respondent appeared and contested the application.
I have heard learned counsel for the parties and have gone through the record.
From the record, I find that in the present case, dispute is only on two points, firstly, form F has not been filled completely and secondly, the test was carried out without referral slip. As regarding first dispute, learned Magistrate held that Form-F is filled in by the incharge of the ultrasound clinic when he has to conduct ultrasound of a pregnant woman. There is no dispute that Form-F contains combined columns for invasive test and non-invasive test. Columns No.9 to 10 are applicable to invasive test whereas columns No.11 to 18 are related to non-invasive test. It has come in evidence of the complainant that the accused is running the practice of conducting non-invasive test. The Form-F clearly indicates that the accused has mentioned word "NA" in front of columns No.9 and 10. Thus, while filing up Form-F, there are number of items which are required to be striken off and for saying that they are not applicable to the case, word "NA" is conveniently used.
Learned trial Court further held that while filling the Form-F on number of occasion, the word "NA" is required to be used whenever the doctor finds in certain cases as not applicable. Therefore, it does not amount to incomplete filling of the form. Besides this, Form-F is prescribed for genetic clinic, ultrasound centre and genetic centre. So, some of the information required to be filled up, would be irrelevant for clinic from that of the centres and thus filling up the forms would not amount to maintaining 4 of 6 ::: Downloaded on - 17-03-2019 06:40:31 ::: CRM No.A-450-MA of 2014 -5- incomplete record or would not amount to deficiency or inaccuracy in the information filled in the form. The Court has relied upon the law laid down in 2009(8) SCC 539 (SC).
As per complainant's case, ultrasound examinations were conducted by the accused without referral slip of the doctor and thus the accused is liable for the same is also not acceptable to this court. Learned Magistrate also held that PW-5 Dr.Narender Chaudhary has admitted in his cross-examination that according to Form-F, a self referral patient without any reference from a Medical Officer can get herself/himself ultrasonically examined. The Court further held that this admission of PW-5 Dr.Narender Chaudhary is correlative to column No.7 of Form-F, wherein it is so mentioned. Thus, once the doctor running the ultrasound clinic can carry ultrasound examination on his own, then the contention of learned counsel for the complainant is bound to fall on the ground.
As regarding wrong addresses on the forms, the Court held that the complainant has not examined any Sarpanch, Member Panchayat, Nambardar, Gram Sachiv or other persons to prove that pregnant women were not belonging to the villages mentioned in the referral slips. Dr.Manisha Mehta when appeared in the Court, admitted that referral slips were issued by her.
As regarding the argument that accused was conducting ultrasonic examination upon two ladies namely Kailash and Darshana, I find that none of them has been made accused nor they were examined as witnesses to support the case, which creates reasonable doubt in the complainant's case.
The perusal of the findings given by learned CJM, Sirsa, shows 5 of 6 ::: Downloaded on - 17-03-2019 06:40:31 ::: CRM No.A-450-MA of 2014 -6- that these have been given as per evidence and law. In no way, the findings can be held as perverse or against the evidence and law. At the time of arguments, nothing has been pointed out as to which material evidence has been misread and which material evidence has not been considered by the trial Court. Nothing has been pointed out as to how the findings are perverse or against the law and what illegality has been committed by learned trial Court. The findings have been given by correctly appreciating the evidence in right perspective and accused-respondents have been rightly acquitted.
In view of the above discussion, I find that the impugned judgment dated 16.11.2013 passed by learned CJM, Sirsa, is correct, as per law and evidence and does not require any interference from this Court. No ground is made out for grant of leave to appeal and therefore, the present application stands dismissed.
January 18, 2019 (INDERJIT SINGH)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable No
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