Supreme Court - Daily Orders
Smt. Rekha Sengar vs The State Of Madhya Pradesh on 21 January, 2021
Author: Mohan M. Shantanagoudar
Bench: Mohan M. Shantanagoudar, Vineet Saran, Ajay Rastogi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 380 OF 2021
REKHA SENGAR …PETITIONER(S)
VERSUS
STATE OF MADHYA PRADESH …RESPONDENT(S)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J. :
1. By the impugned order passed by the Madhya Pradesh High Court on 7.12.2020 in MCRC No. 48262 of 2020, the Petitioner’s application for bail under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been rejected.
The record shows that an FIR was registered against the Petitioner and another person on 26.9.2020 in PS City Kotwali Morena, Madhya Pradesh alleging their involvement in prenatal sex determination and abortion of female fetuses at their residence, Signature Not Verified without the required registration or license under law. The petitioner Digitally signed by GULSHAN KUMAR ARORA Date: 2021.01.30 12:46:24 IST Reason: has been in custody since September 2020. Her first application for bail (Bail Application No. 1203/2020) was rejected by the learned IV 2 Addnl. Sessions Judge, Morena on 01.10.2020, and her subsequent bail application before the High Court (MCRC396492020) was dismissed as withdrawn on 14.10.2020. Chargesheet was filed against the petitioner and the coaccused on 6.11.2020, for offences under the certain relevant provisions of Indian Penal Code, Medical Termination of Pregnancy Act, 1971 and under the provisions of the Pre Conception and PreNatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (‘PC&PNDT Act’). Trial is pending.
In the meanwhile, the petitioner again approached the High Court for grant of bail under Section 439, Cr.P.C. The High Court, vide impugned order dated 7.12.2020, has denied bail on facts. Aggrieved, the petitioner has approached this Court seeking bail.
2. The gravamen of the allegations against the petitioner pertain to violation of the provisions of the PC&PNDT Act. Section 6 prohibits the use of prenatal diagnostic techniques, including ultrasonography, for determining the sex of a fetus. Section 23 provides that any violation of the provisions of the Act constitutes a penal offence. Additionally, Section 27 stipulates that all offences under the said Act are to be nonbailable, noncompoundable and cognizable.
It is well settled that in nonbailable cases, the primary factors the court must consider while exercising the discretion to grant bail are the nature and gravity of the offence, its impact on society, and 3 whether there is a prima facie case against the accused.
3. The charge sheet prima facie demonstrates the presence of a case against the petitioner. A sting operation was conducted upon the order of the Collector, by the member of the PC&PNDT Advisory Committee, Gwalior; the Nodal Officer, PC&PNDNT; and lady police officers. The team used the services of an anonymous pregnant woman, who approached the petitioner seeking sexdetermination of the fetus and sexselective abortion. The petitioner accepted Rs 7,000 for the same whereupon the team searched her residence. From the residence, an ultrasound machine with no registration or license, adopter and gel used in sexdetermination, and other medical instruments used during abortion and sexdetermination were seized. This constitutes sufficient evidence to hold that there is a prima facie case against the petitioner.
4. To understand the severity of the offence, it is imperative to note the legislative history of the PC&PNDT Act. Reference may be had to the Preamble; which states as follows:
“An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sexlinked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.” 4 (emphasis supplied) The passage of this Act was compelled by a cultural history of preference for the male child in India, rooted in a patriarchal web of religious, economic and social factors. This has birthed numerous social evils such as female infanticide, trafficking of young girls, and bride buying and now, with the advent of technology, sexselection and female feticide. The pervasiveness of this preference is reflected through the census data on the skewed sexratio in India. Starting from the 1901 census which recorded 972 females per 1000 males; there was an overall decline to 941 females in 1961, and 930 females in 1971, going further down to 927 females in 1991. Records of Lok Sabha discussions on the PreNatal Diagnostic Techniques (Regulation and Prevention of Misuse) Bill, 1991 reflect various members’ concern with this alarming state of affairs, which acted as a clarion call to the passage of the PC&PNDT Act. (See : Lok Sabha Debates, Tenth Series, Vol. XXXIII No.2, July 26, 1994, Eleventh Session, at pages 506544).
The prevalence of prenatal sex selection and feticide has also attracted international censure and provoked calls for strict regulation. In September 1995, the UN 4 th World Conference on Women, adopted the Beijing Declaration and Platform for Action which inter alia declared female feticide and prenatal sexselection as forms 5 of violence against women. (See : Beijing Declaration and Platform for Action, adopted in 16th plenary meeting of UN 4th World Conference on Women, (15th September, 1995), Article 115).
While the sex ratio has improved since after the passage of the PC&PNDT Act, rising to 933 as per the 2001 census, and then to 943 in the 2011 census, these pernicious practices still remain rampant. As per the reply filed by the then Minister of State, Health and Family Welfare in the Rajya Sabha on 27.3.2018, as of December 2017, around 3,986 court cases had been filed under the Act, resulting in only 449 convictions and 136 cases of suspension of medical licenses.
The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish prenatal sexdetermination as a grave offence with serious consequences for the society as a whole.
5. We may also refer with benefit to the observations of this Court in Voluntary Health Association of India v. State of Punjab, (2013) 4 SCC 1, as follows:
“6…Above statistics is an indication that the provisions of the Act are not properly and effectively being implemented. There has been no effective supervision or followup action so as to achieve the object and purpose of the Act. Mushrooming of various sonography centres, 6 genetic clinics, genetic counselling centres, genetic laboratories, ultrasonic clinics, imaging centres in almost all parts of the country calls for more vigil and attention by the authorities under the Act. But, unfortunately, their functioning is not being properly monitored or supervised by the authorities under the Act or to find out whether they are misusing the prenatal diagnostic techniques for determination of sex of foetus leading to foeticide. 7…Seldom, the ultrasound machines used for such sex determination in violation of the provisions of the Act are seized and, even if seized, they are being released to the violators of the law only to repeat the crime. Hardly few cases end in conviction. The cases booked under the Act are pending disposal for several years in many courts in the country and nobody takes any interest in their disposal and hence, seldom, those cases end in conviction and sentences, a fact well known to the violators of law…” In the present case, contrary to the prevailing practice, the investigative team has seized the sonography machine and made out a strong primafacie case against the petitioner. Therefore, we find it imperative that no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a paper tiger and that clinics and laboratories can carry out sexdetermination and feticide with impunity. A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society. Though it certainly remains open to the petitioner to disprove the merits of these allegations at the stage of trial.
6. The fact that on 13.10.2020, the coaccused in the present case 7 was released on bail by the High Court in MCRC No.39380/2020 does not alter our conclusions. The allegations in the FIR and the charge sheet, as well the disclosure statements made by the petitioner and the coaccused under Section 27 of the Indian Evidence Act, 1872, reveal that prima facie, the petitioner had a more active role in conducting the alleged illegal medical practices of sex determination and sexselective abortion. Whereas the alleged role of the coaccused was limited to merely picking up and dropping off the petitioner’s clients. Hence, we find no grounds for granting parity with the co accused to the petitioner.
7. Thus, in view of the presence of prima facie evidence against the petitioner and other factors as referred to supra, we find ourselves compelled to uphold the impugned order of the High Court denying bail to the petitioner. However, in light of this Court’s directions in Voluntary Health Association of India (supra) mandating speedy disposal of such cases it is open for the petitioner to request the Trial Court to expedite her trial and decide it within a period of 1 year.
8. We make it clear that the above observations on facts are made only to decide the present petition. Any of the observations made on facts will not come in the way of the Trial Court to complete the trial and decide the matter. The matter shall be decided by the Trial Court 8 on its own merits based on facts. The Special Leave Petition is dismissed accordingly.
…..…………................................J. (MOHAN M. SHANTANAGOUDAR) .……………………………...............J. (VINEET SARAN) …………………………………………J. (AJAY RASTOGI) NEW DELHI, JANUARY 21, 2021 9 ITEM NO.13 Court 10 (Video Conferencing) SECTION II-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s). 380/2021 (Arising out of impugned final judgment and order dated 07-12-2020 in MCRC No. 48262/2020 passed by the High Court Of M.P At Gwalior) SMT. REKHA SENGAR Petitioner(s) VERSUS THE STATE OF MADHYA PRADESH Respondent(s) (FOR ADMISSION and I.R. and IA No.4732/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.4736/2021-EXEMPTION FROM FILING O.T. and IA No.4734/2021-EXEMPTION FROM FILING AFFIDAVIT ) Date : 21-01-2021 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR HON'BLE MR. JUSTICE VINEET SARAN HON'BLE MR. JUSTICE AJAY RASTOGI For Petitioner(s) Ms. Sakshi Vijay, Adv.
Mr. Tapendra Sharma, Adv.
Mr. Palav Agarwal, Adv.
Mr. Ashutosh Kumar, Adv.
Mr. Astik Gupta, Adv.
Mr. Mnan Patel, Adv.
Mr. Varun Kumar, Adv.
Mr. Triloki Nath Razdan, AOR For Respondent(s) UPON hearing the counsel the Court made the following O R D E R Heard learned counsel for the petitioners. The special leave petition is dismissed in terms of the signed reportable judgment.
It is open for the petitioner to request the Trial Court to complete the trial within one year.
(GULSHAN KUMAR ARORA) (R.S. NARAYANAN) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)