Delhi District Court
Dr. H.K. Singh vs Dr. Aruna Jain on 5 March, 2016
IN THE COURT OF SANJAY GARG-I: SPECIAL JUDGE-IV,
(PC ACT) CBI: DELHI.
C.R. No.:- 30/15
I.D. No. 02401R0420152015
Dr. H.K. Singh,
S/o Late Sh. Hardayal Singh,
Owner / Proprietor of
Nanak Hospital, Main Road,
Burari, Sant Nagar, Delhi ...Petitioner
Versus
1. Dr. Aruna Jain,
The then Chief District Medical Officer
Appropriate Authority (North District)
Office of Chief District Medical Officer
Govt. of Delhi, Gulabi Bagh,
Delhi.
2. The State
N.C.T. of Delhi
Delhi ...Respondent
Date of Institution : 13.08.2015
Date of Argument : 20.02.2016
Date of order : 05.03.2016
CR No. 25/15
I.D. No. 02401R0471632015
The Appropriate Authority PC & PNDT, Central District, Delhi
Through Public Prosecutor Delhi (State)
...Petitioner
Versus
1. Dr. Anil Grover,
S/o Late Sh. G.R. Grover,
R/o 1767, Outram Lane, Delhi
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. &
CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 1/21
2. Dr. Neeraj Goel,
W/o Dr. Rajiv Goel,
R/o 66, Vaishali, Pitampura,
Delhi - 110088 ...Respondents
Date of Institution : 07.09.2015
Date of Argument : 20.02.2016
Date of order : 05.03.2016
ORDER
1. Both these petitions are arising out of the same impugned order i.e. 25.07.2015 of Ld. MM, and decided together with this order.
2. Vide impugned order dated 25.07.2015 the Ld. Trial Court has find existence of prima facie evidence u/s 5(4) of MTP Act and u/s 23 of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PC & PNDT Act, 1994) against Dr. H.K. Singh petitioner in petition no. 1 and petitioner being aggrieved with this order has preferred the first petition.
3. Vide impugned order Ld. Trial Court has observed that there is no material worth framing the charge against respondents Dr. Anil Grover and Dr. Neeraj Goel and accordingly they both were discharged. The State being aggrieved with this order has preferred second petition.
4. Brief facts of the case as enumerated by the Ld. Trial Court in the impugned order are mentioned as follows:-
"Complainant Dr. Aruna Jain is the appropriate authority under The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short PC & PNDT Act, 1994) and under The Medical Termination of Pregnancy Act, 1971 (in short MTP Act, 1971). It is CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.Page No. 2/21
averred by the complainant that accused H.K. Singh is the Proprietor and Medical Director of Nanak Hospital, Main Road Burari, Sant Nagar, Delhi and the said Nanak Hospital is registered under PC & PNDT Act w.e.f. 01.08.2002 to 31.07.2007 for ultrasonography by registration no. 1142 under the State appropriate authority for PNDT Act and said Nanak Hospital is not registered under MTP Act. It is further averred in the complaint of the complainant that the said Nanak Hospital was irregular in sending reports under PC & PNDT Act, 1994. It is further averred that accused H.K. Singh got registered equipment of hospital namely logiq-100 mp console as ultrasound machine and accused Dr. Anil Grover as ultrasonologist for the Nanak Hospital. It is further averred that notices were issued to the hospital for non maintenance of record under PC & PNDT Act, 1994 and during the visit of the appropriate authority with team constituted under it to the Nanak Hospital, certain records were seized and hospital failed to produce the records as per OT register. It is further averred by the complainant that at the time of visit of appropriate authority alongwith team one patient namely Neelam W/o Sh. Surinder was in the operation theater and the statements of the patient and her husband were recorded after the procedure of the operation theater and in their statements they stated that they got abortion done as they did not have sufficient income. It is further averred by the complainant that statements of the doctor who had conducted the procedure of the patient Neelam was recorded and statement of three other employees of the hospital were also recorded and statement of three other employees of the hospital were also recorded and product of conception i.e. product taken out of the uterus of the patient after the procedure was sealed in jar and the sample of the jar was forwarded to Hindu Rao Hospital for histo - pathological examination on 31.07.2006 at 05:50 PM and they returned the sample after taking 1 - 2 blocks with subsequent sealing and the sample bottle was kept in the office of CDMO. It is further averred by the complainant that on scrutiny of the record which were seized during the inspection it was found that record were incomplete and consent forms were signed for surgical procedure without mentioning the case sheets and hospital was not able to produce the OT register and record which were seized also found that hospital was doing number of CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.Page No. 3/21
MTPs and D&C procedures without registration under MTP Act."
5. Sh. Anil Kumar Gupta and Sh. Sanjay Aggarwal, Ld. Counsels for petitioner addressed arguments. Sh. Atiq Ahmed, Ld. Addl. PP for State / respondent has also addressed arguments. Perused the trial court record and various grounds of revision raised in petition no. 1.
6. In petition no. 2 Sh. Atiq Ahmad, Ld. Addl. PP for State addressed arguments for petitioner. Sh. Tarun Walia, Ld. Counsel for respondent no. 1 and Sh. Siddharth Aggarwal, Ld. Counsel for respondent no. 2 have also addressed arguments. Perused the trial court record and various grounds of revision raised in petition no. 2.
7. Sh. Anil Kumar Gupta and Sh. Sanjay Aggarwal, Ld. Counsels for the petitioner in petition no. 1 have submitted that the Ld. Trial Court has only considered statement of the witnesses recorded in examination in chief and has ignored to consider the statement during cross examination. It has been stated that Ld. Trial Court has failed to consider that there was no record of minutes prepared regarding the alleged inspection which is mandatory provision for holding the meeting and conducting the raid. It has been stated that Ld. Trial Court has failed to consider that witnesses examined by respondent have admitted that if a lady comes to the hospital having profuse bleeding, for the safety of that lady MTP as a process to save her life can be done. It has been stated that as per the rules the hospital was required to send the documents before 5th of next month, the inspection took place on 31.07.2006 and accordingly respondent erringly has alleged that requisite record was not sent to the department. It has been stated that the inspection team was not property constituted as it was containing some members who were not regular employees. Morever, as CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 4/21per section 30 of the Act atleast the respective members from the neighbour should have been joined. It has been stated that Ld. MM erred in observing that six forms were incomplete but the court has failed to appreciate that hospital was suppose to submit the forms by 6 th of next month and could have completed the forms before 5th of succeeding month. It has been submitted that other two co-accused were discharged vide this impugned order but the Ld. Trial Court has failed to distinguished the role played by this petitioner viz a viz role of the other two accused who were discharged. It has been stated that in case no MTP was done, therefore, provision of section 5(4) of MTP Act is not at all attracted.
8. Sh. Atiq Ahmed, Ld. APP for State has submitted that in petition no. 1 charges against petitioner Dr. H.K. Singh was rightly framed by the Ld. Trial Court as he being the owner of Nanak Hospital was responsible for maintaining the records as required under Act, which he failed to do. It has been stated that the Nanak Hospital was not registered under the MTP Act but as per the record various MTPs were found conducted and even patient Neelam was found in OT for the purpose of MTP.
9. Regarding petition no. 2, Ld. APP for State has submitted that the Ld. Trial Court has failed to appreciate the facts properly and erred in discharging both the respondents. It has been stated that respondent no. 1 Dr. Anil Grover and his ultrasound machine were got registered by Dr. H.K. Singh, owner of the Nanak Hospital as a visiting Ultrasonologist for the Nanak Hospital. It has been stated that both the respondents were summoned as accused persons by Ld. MM vide his order dated 28.10.2006 for the offences punishable u/s 23 of PC & PNDT Act and u/s 5 of MTP Act. It has been stated that as per ultrasound register, name of Dr. Grover has not been mentioned as Radiologist who conducted ultrasound on several CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 5/21women found mentioned there. It has been stated that as per OT register Ex. CW-1/F MTP was conducted on several patients which shows involvement of Dr. Grover. It has been stated that respondent no. 2 has conducted a procedure upon patients as reflected in the statement of CW-1 to CW-5 and burden of proof of innocence shifts upon her u/s 106 of Indian Evidence Act.
10. Sh. Tarun Walia, Ld. Counsel for respondent no. 1 in petition no. 2 has submitted that respondent no. 1 was only visiting Radiologist at Nanak Hospital which was lawfully registered under PNDT Act. It has been stated that respondent no. 1 was not present in the hospital at the time of the raid and this fact stands admitted by various prosecution witnesses. It has been stated that ultrasound machine of respondent no. 1 was also not there in the hospital at the time of this inspection and it is not the prosecution case if any ultrasound of patient Neelam was even done by respondent no. 1. It has been stated that as per Rule 9(4) of the Act it is the duty of the hospital / genetic clinic to maintain and preserve the records under PC & PNDT Act and as per Rule 9(8) it is the duty of the hospital / genetic clinic to send a complete record in respect of all pre-conception or pregnancy related procedures / techniques / tests conducted by them by 5th of the following month. It has been stated that as per Rule 10(1A) of the Act it is the duty of Radiologist to give a declaration that no sex determination of the fetus of the pregnant woman was done. It has been stated that all Form F (13 in number) seized by the complainant bears signatures of respondent no. 1 and even declaration column are complete. It has been stated that as per the PC & PNDT Act, 2013, the Form F should have been signed by anybody among the Gynaecologist / Owner / Radiologist and it was only under the new Act of 2014 that the person performing the procedure was required to sign the Form. It has been stated that there is no evidence on record to CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 6/21establish that respondent no. 1 has conducted ultrasound on several patients as reflected in the ultrasound register and OPD register but as per the seized records there was some male patients and some were not pregnant females on whom ultrasound was stated to have been conducted. It has been stated that as per the petitioner department, respondent no. 1 has conducted ultrasound on patient Renu Devi on 08.07.2006 and Form F is filled up duly entered in the ultrasound register showing pregnancy of 8 months. It has been stated that if name of this patient is not found mentioned in other hospital registers, for this lapse hospital is responsible and it is not the duty of Radiologist to maintain details in Form F as it is a purely clerical work which is required to be done by the clinic. It has been stated that as per the observations made by the court in Dr. Ranjeet Ghatge Vs. The State of Maharashtra & Anr., (Writ Petition No. 4194 of 2014, High Court of Judicature at Bombay, date of decision 17.08.2015), it is a purely a clerical work which is to be done by the clinic and Radiologist cannot be prosecuted for not maintaining particular record. In support of his submissions Ld. Counsel has also relied upon Dr. Mrs. Uma Shankarrao Rachewad Vs. Appropriate Authority, Nanded, Criminal Writ Petition No. 407 of 2011 in the High Court of Judicature at Bombay, date of decision 19.04.2012.
11. In petition no. 2 Sh. Siddharth Aggarwal, Ld. Counsel for respondent no. 2 submitted that as per prosecution case, the only allegation against respondent no. 2 is that she has conducted MTP at unregistered centre in violation of section 5(3) of MTP Act. It has been stated that even in the impugned order Ld. Trial Court has observed that prima facie there is no material on record to charge her regarding the allegation for the offence punishable u/s 5(3) of MTP Act. It has been stated that there is no material on record to prove live pregnancy of patient Neelam at the time of alleged CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 7/21procedure. It has been stated that from the record seized at the time of inspection i.e. Ex. CW-1/U it is not possible to conclude that patient was pregnant at that time and from the statements of the prosecution witnesses it stands clearly established that the procedure being undertaken at the hospital was a D&C and not an MTP. It has been stated that in view of statement of CW-4 prosecution has failed to establish chain of custody in relation to Ex. CW-1/J (products of conception). It has been stated that even Histopathological Report is not clear and none of the witnesses has been able to identify the signatures and identity of such Pathologist. It has been stated that as per section 244 to 246 evidence is admissible only if the same is produced in accordance with the provision established under the Indian Evidence Act. (Reliance is placed upon Sunil Mehta Vs. State of Gujarat, (2013) 9 SCC 209). It has been stated there is no material on record to prove that patient Neelam was put to MTP. It has been stated that CW-1 & CW-4 in their statements have stated that giving priority to the medical treatment, the team came out of the OT and requested the doctor to continue with the treatment; when a medical termination of pregnancy is conducted to save the life of a patient, such termination is not punishable under the MTP Act. It has been stated that CW-1 during her cross examination has stated that Gynaecologist can perform the D&C as life saving procedure even at the unregistered place. It has been stated that D&C undertaken on the patient was a life saving measure. CW-2 in his cross examination has admitted that when the bleeding cannot be controlled by conservative methods, then D&C is required and this procedure is not covered under the MTP Act and the treating Gynaecologist is competent to decide about D&C. It has been further stated that entries in the procedure room / OT register Ex. CW-1/F cannot be relied upon by the prosecution.
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 8/2112. Complainant Dr. Aruna Jain was posted as CDMO North District. While deposing as CW-1 she has stated that from 01.07.2005 till 20.12.2006 she was posted as CDMO, North District under Delhi Government Dispensary. Nanak Hospital situated at Burari, Delhi was registered under PC & PNDT Act. Hospital was irregular in sending reports under PC & PNDT Act. Reminders and show cause notices were sent for timely submission of reports. On 31.07.2006 the hospital was inspected at about 02:30 PM by team constituting her, Dr. Vineet Swaroop, Addl. CDMO, North District (CW-2), Dr. Shalley Kamra, Program Officer, North District (CW-4), Dr. Mittal, CMO, PNDT Directorate of Family Welfare, Delhi Govt. (CW-3) and Dr. Arvind, Doctor from Directorate of Family Welfare, Delhi Govt. (CW-5). When they visited the hospital there was a patient in operation theatre. Dr. Neera Goel (Respondent No. 2 in petition no. 2) was in process of changing into OT dress. They tried to speak to the patient but she was not able to speak properly. Giving priority to the medical treatment, team came out of the OT and requested the doctor to continue with the treatment. Later on the same day after the procedure was over products removed from uterus were sealed. It was signed by Dr. H.K. Singh (Petitioner No. 1 in petition no. 1) and Dr. Neeraj Goel (Respondent No. 2 in petition no. 2). Various records including ultrasound register, OT/procedure register, consent forms, case receipt book, OPD/prescription pads, few case records etc. were seized. Registration of hospital under PC & PNDT Act was cancelled. She proved the complaint Ex. CW-1/A. Various documents were seized vide seizure memo Ex. CW-1/B, ultrasound register w.e.f. 04.07.2006 as Ex. CW-1/C, labour room register w.e.f. 24.01.2004 as Ex. CW-1/D, OPD register w.e.f. 24.07.2006 as Ex. CW-1/E, procedure room / OT record register w.e.f. 03.01.2006 as Ex. CW-1/F, admission register w.e.f. 25.01.2006 as Ex. CW-1/G, cash receipt book w.e.f. 30.12.2005 as Ex. CW-1/H, evacuated products in a sealed jar over which Ms. Neelam aged 21 CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 9/21years is written as Ex. CW-1/J, Form F for the month of July, 2006 (13 in number) as Ex. CW-1/K, case records of 31 patients are Ex. CW-1/L (Colly), referral slip and prescription slips are Ex. CW-1/M (Colly), consent Forms (18 in number) are Ex. CW-1/N (Colly), statement of Dr. Neeraj Goel as Ex. CW-1/O, statement of hospital employee Chanda as Ex. CW-1/P, statement of hospital nurse Meena as Ex. CW-1/Q, statement of hospital nurse Neelima Nalson as Ex. CW-1/R, statement of patient Neelam as Ex. CW-1/S, statement of Surender Singh husband of Neelam as Ex. CW-1/T, case sheet of patient Neelam Ex. CW-1/U (Colly). She has also proved notices issued to submit documents as Ex. CW-1/Z2 (Colly), notice issued for sending irregularly reports as Ex. CW-1/Z3, show cause notice under Act as Ex. CW-1/Z4 and pathology report from Hindu Rao Hospital as Ex. CW-1/Z11.
13. During her cross examination CW-1 has stated that she cannot say as to whether any role was performed by Dr. Anil Grover or anybody else for termination of pregnancy of patient Neelam; she does not know as to whether Dr. Anil Grover was present in the hospital when they visited as they have no occasion to meet him; when they entered in the OT of the hospital, operation procedure was still to be initiated and patient was unable to talk; they came out of the OT and asked the concerned doctor to carry on the operation; doctor concerned informed that she is going to perform D&C and they did not try to ascertain the same; the concerned doctor informed that no ultrasound has been done as the patient has come bleeding; the gynaecologist can perform the D&C as life safety procedure even at unregistered place; Dr. Neeraj Goel had told that patient was brought to the hospital in bleeding condition in emergency; no form is required under the law to be filled by the gynaecologist for performing D&C. CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 10/2114. CW-2 Dr. Vineet Swaroop, CW-3 Dr. A.K. Mittal, CW-4 Dr. Shalley Kamra and CW-5 Dr. Arvind Kumar were the members of the inspection team and they have supported the statement made by CW-1. CW-2 has deposed that female attendant of the hospital whose name he does not remember has told that patient has come with the bleeding and she was taken to the hospital for necessary treatment. During his cross examination he has admitted that if the patient comes with profuse bleeding the first duty of the doctor is to immediate give first aid. He does not remember as to whether they were informed that Dr. Anil Grover was only doctor on call. No report or film of the ultrasound of patient Neelam was received by him; as far as he knows, the D&C (Dilatation and Curettage) is done for diagnostic purpose as well as therapeutic purpose and on the other hand the MTP is an induced abortion after due certification by the doctor as per MTP Act. In case of bleeding, when the bleeding cannot be controlled by the conservative method D&C is required and this procedure is not covered under MTP Act; if the condition of the patient is so serious or there is a life risk he can straightway go for D&C without taking ultrasound or other investigation and in this case they did not find any ultrasound report of the patient Neelam.
15. CW-3 during his cross examination after seeing the record has stated that there is no Form F or ultrasound film and report of the patient Neelam on the record. CW-4 Dr. Shalley Kamra has deposed that evacuated products were sent to Hindu Rao Hospital and was confirmed to be product of conception. During her cross examination she has stated that there were few names on the board in the hospital and she cannot say whether names of doctors associated with the hospital were displayed there. Regarding a question if there is a difference in the preparation of a patient for conducting MTP or D&C, she has answered stating that she cannot CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 11/21comment and gynaecologist can reply this question. She has admitted that products of conception may be obtained both in MTP as well as D&C. She does not remember after how many days the product was sent to government hospital but it was not on the same day. They did not check the patient physically.
16. CW-5 Dr. Arvind Kumar admitted that there are distinct medical conditions such as threatened abortion, inevitable abortion, incomplete abortion and missed abortion. He does not have any personal knowledge as in what circumstances D&C was being done in the OT in this case. Ultrasound machine was not in the hospital when they visited the hospital. Hospital has not shown to him the documents of ultrasound of this patient at the time of inspection.
17. Object of this PC & PNDT Act and MTP Act is to check abuse of Pre-natal diagnostic technique for determination of the sex of the fetus as it was found that some Centres have become Centres of female foeticide.
18. Before proceeding ahead to deal with the submissions made by Ld. Counsels for the petitioner, the various provisions provided in PC & PNDT Act needs to be seen.
19. Section 4 Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 has prescribed the grounds for which Pre-natal Diagnostic technique shall be conducted. Section 29 Pre- conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 prescribes that all records, Charts, Forms, Reports, consent letters and all the documents required to be maintained under this Act and the Rules shall be preserved for a period of two years for such period as CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 12/21may be prescribed. Rule 4 provides registration of such Centres with the Appropriate Authority. Rule 9 provides maintenance and preservation of record. It provides to maintain the record on Form 'F' of each man & woman subject to Pre-natal diagnostic procedures / pre natal diagnostic tests. It further puts a mandatory responsibility on the Centre to send complete report in respect of Pre-conception or pregnancy related procedures conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority. Rule 10 provides that any person conducting the Ultrasonography /image scanning declare on pregnant women should declare on each report that he has neither conducted nor discussed the sex of foetus of the pregnant women to anybody. Rule 18 provides code of conduct to be observed by persons working at the Centres.
20. Under the MTP Act, section 3(2) deals with the circumstances where pregnancy can be terminated. Section 4 provides the place where pregnancy will be terminated. Section 5(1) provides exception to section 3 &
4. The remaining part of section 5 provides punishment for contravening the provisions of this Act.
21. The law at the stage of framing of Charge is settled that Court is only required to see the existence of prima-facie case at this stage. Reliance is placed on Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC page 4. The principles governing the exercise of powers are summarized as follows:-
"1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.Page No. 13/21
accused had been made out.
2) Whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing as charge and proceeding with the trial.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the Prosecution, but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial".
Dr. H.K. Singh (Petitioner in Petition No. 1.)
22. Vide impugned order Dr. H.K. Singh i.e. petitioner in petition no. 1 has held to have prima facie committed offence punishable u/s 5(4) of MTP Act and section 23 of PC & PNDT Act. One of the contention raised by Ld. Counsel for this petitioner is that no record of minutes regarding CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 14/21inspection were prepared which is mandatory provision and as per section 30 of the Act at least respective members from the neighbourhood should have been joined by the inspection team. Ld. Counsel for the petitioner has failed to show any provision mandating the drawing of minutes for holding any meeting and conducting the raid under this Act. Section 30 of the Act is also silent if any respectable member from the neighbourhood was required to be joined by the inspection team at the time of the inspection of Nanak Hospital owned by this petitioner.
23. Other contention raised on behalf of petitioner is that inspection team was not properly constituted as it was containing some members who were not regular employees. At the time of inspection CW-1 was posted as CDMO, North District and other four accompanying doctors were in the employment of the Govt. of NCT of Delhi in different capacities. Whether the were regular or not, in view of this court, is not a relevant fact for the purpose of deciding this petition.
24. Ex. CW-1/F is procedure room / OT record seized from the hospital. As per this register in the month of July various MTPs have been done in the hospital. The case of the prosecution is that this hospital was not registered with the MTP Act, therefore, prima facie ingredients of the offene punishable u/s 5(4) of MTP Act are made out against Dr. H.K. Singh.
25. As per ultrasound register Ex. CW-1/C in the month of July ultrasounds of 22 patient has been done. As per Rule 9(4) for any pre-natal diagnostic procedure / techniques / test Form F shall be filled. Ex. CW-1/K (Colly) are 13 Forms F. For the remaining 9 patients Froms F are not there. The Nanak Hospital was issued show cause notice Ex. CW-1/Z4 for non- maintenance of the record. Perusal of various registers Ex. CW-1/C to Ex.
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 15/21CW-1/G reveals that these registers were not regularly / properly maintained by the hospital.
26. The other contention raised on behalf of the petitioner is that Ld. Trial Court has failed to distinguish the role of this doctor viz a viz other two doctors who were discharged. Against other two doctors who are respondents in petition no. 2, revision petition filed by the State against their discharge is being decided by this court vide this common order.
27. In view of the aforesaid reasons, prima facie evidence is there for the commission of offence u/s 23 of PC & PNDT Act against Dr. H.K. Singh. Accordingly the petition no. 1 filed by Dr. H.K. Singh is found without merit and same is dismissed.
Dr. Anil Grover (R-1 in Petition No. 2)
28. It has been contended on behalf of the respondent that main allegation against this respondent is that all Forms F signed by this doctor were incomplete but these Forms are complete containing all necessary information.
29. The contention raised by the State is that this doctor was registered as Ultrasonologist with the Nanak Hospital and only 13 Forms F were found, whereas as per ultrasound register Ex. CW-1/C he has conducted 22 ultrasounds on different patients including various males, which amounts to contravention of various provisions of Act and hence he is liable for commission of offence u/s 23 of PC & PNDT Act.
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 16/2130. I agree with the contention raised by Ld. Counsel for the respondent that maintenance of various records in the hospital is the responsibility of the hospital authorities. In ultrasound register Ex. CW-1/C, for all the 22 patients the name of Dr. Anil Grover is found mentioned but it does not bear his signature anywhere. From Ex. CW-1/C it cannot be concluded that Dr. Anil Grover has done ultrasound of these patients whose names are mentioned here.
31. It has been contended on behalf of State that the Form F are incomplete lacking vital information and the purpose for which ultrasound was done is not found mentioned anywhere or any diagnosis of the patient is not there in the hospital records reflecting the reason that why the said patient was put to ultrasound. It has to be appreciated that Dr. Anil Grover was a visiting Radiologist to Nanak Hospital. As per the provisions of the Act he was supposed to fill Form F and sign it including the declaration that he has neither conducted nor disclosed the sex of the fetus to anybody in any manner. All these Forms are duly signed by him including the declaration that he has not disclosed sex of the fetus to anyone. Ld. Addl. PP for State has pointed out that as per Form F this doctor was also required to mention the registration number on this Form but the same is not mentioned. Admittedly by the prosecution that this doctor was registered as Ultrasonologist for Nanak Hospital. Simply from this fact that he has not mentioned his registration number on Form F, it cannot be concluded that Forms F were deficient and were not properly filled in any manner.
32. Other contention raised by Ld. Addl. PP for State is that ultrasound of patient Renu Devi was done by Dr. Anil Grover on 08.07.2006 as per Form F and ultrasound register, there is also consent Form of this patient and her case sheet showing admission at 10:30 AM and discharg at CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 17/2110:00 PM on same day. It has been stated that entry of this patient has been made in the admission register, however, no entry was found in the Labour / OT / MTP / D&C register. Simply from the fact that the patient remain admitted in the hospital for about 11 & ½ hours on 08.07.2006, it cannot be presumed that she might have been taken to OT or have undergone MTP or D&C.
33. In view of the aforesaid reasons, in petition no. 2, I found no substance against Dr. Anil Grover. Accordingly, this petition qua Dr. Anil Grover (respondent no. 1) is dismissed.
Dr. Neeraj Goel (R-1 in Petition No. 1)
34. The main contention raised by Ld. Counsel on behalf of this doctor is that there is no material on record to prove that patient Neelam was having live pregnancy at the time of alleged procedure on 31.07.2006 being done by this doctor. It has been vehemently urged that the witnesses examined by prosecution during pre-charge evidence have agreed that patient had come bleeding and they were told by doctor that she was doing D&C on the said patient.
35. There is no doubt that D&C is a different procedure than MTP. As per medical dictionary D&C (Dilatation and Curettage) is dilatation of the uterine cervix and scraping of the endometrium of the uterus, performed to diagnose disease of the uterus, to correct heavy or prolonged vaginal bleeding, or to empty uterine contents of the products of conception. It is also done to remove tumors, to rule out carcinoma of the uterus, to remove retained placental fragments postpartum or after an incomplete abortion, and to find the cause of infertility.
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 18/2136. Ex. CW-1/O is the certificate given by this doctor mentioning that patient Neelam has undergone D&C operation for bleeding with pregnancy of two months on 31.07.2006 by him. The statements of patient Neelam, her husband and two employees of the hospital were also recorded. As per patient Neelam she had come to Nanak Hospital on 31.07.2006 for getting abortion done with pregnancy of 2 & ½ months. Since income of husband was low due to this reason she got it aborted and she is making this statement after half an hour of the said procedure. Same is the statement of her husband Sh. Surender Singh. One Ms. Chand working as sweeper in the hospital made statement stating that Neelam had come with bleeding and Dr. Neeraj Goel had cleared the fetus. Same is the statement made by Ms. Meenu who was working as nurse in the same hospital.
37. The other contention raised on behalf of this doctor is that chain of custody in relation to Ex. CW-1/J i.e. product of conception is not clear and even Histopathological Report is not clear and hence cannot be relied upon. Ld. Counsel for this respondent has aslo pointed out contradictions in the statements of the witnesses regarding date on which the product of conception was sent to Hindu Rao Hospital and where it was kept after being seized. The other contention raised by Ld. Counsel is that patient Neelam or her husband Sh. Surender Singh were not examined which prosecution should have done and in the absence of their statements prosecution was rightly held to have failed by the Ld. Trial Court to establish the prima face case against this doctor u/s 5(3) of MTP Act. In support of his submissions Ld. Counsel has relied on Sunil Mehta Vs. State of Gujarat (Supra). On the other hand Ld. Addl. PP for the State has submitted that at the stage of framing of charge court has to see the existence of prima facie case against the accused and u/s 246(6) of Cr.P.C. the prosecution can examine additional witnesses than examined during pre-
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 19/21charge evidence. It has been submitted that prosecution may examine patient Neelam and her husband during trial as a witness against the accused.
38. In Sunil Mehta Vs. State of Gujarat (Supra) issue before the court was whether depositions of complainant and his witnesses recorded under Chapter XV of Cr.P.C. before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter XIX of the Code. It has no where been observed by the court that the witness which are not examined during pre- charge evidence by the prosecution cannot be allowed to be examined during trial i.e. after framing of charge.
39. Ex. CW-1/Z11 is the report given by Pathological Department of Hindu Rao Hospital, mentioning that the specimen was containing product of conception. Statement of Neelam and her husband Sh. Surender Singh are very material piece of evidence as they both have stated that since their income was less they have come to OT for getting the fetus aborted. (Aaj OT Mein Safai Karwai). Sh. Surender Singh has specifically stated that his wife got the 2 & ½ months fetus aborted in the Nanak Hospital. I find no reason to disbelieve the statements of Ms. Neelam and her husband Sh. Surender Singh. Both these witnesses though not examined by the prosecution under pre-charge evidence but it has liberty to examine both these witnesses at the post charge stage u/s 246(6) of Cr.P.C. Moreover, as per Ex. CW-1/F i.e. D&C register in the month of July, 2006 on 40 patients D&C and MTP was done. Name of the doctor who has done these processes is mentioned as Dr. N. Goel and Dr. Soni. At some place the complete name Dr. Neeraj Goel is also found mentioned. As per this register, Dr. Neeraj Goel has conducted MTP on some patients.
CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr.
Page No. 20/2140. In view of the aforesaid reasons prima facie evidence is there against Dr. Neeraj Goel (respondent no. 2 in petition no. 2) for the commission of offence u/s 5(3) of MTP Act. Accordingly, the petition no. 2 qua Dr. Neeraj Goel is accepted. The impugned order qua her is set aside. The Ld. Trial Court is directed to frame charge against her and proceed with the trial.
41. Summing up the order, petition no. 1 is dismissed. Petition no. 2 filed by State is partially dismissed qua Dr. Anil Grover (respondent no. 1) and partially accepted qua Dr. Neeraj Goel (respondent no. 2).
42. The copy of this order with TCR be sent back to Ld. Trial Court.
43. The revision files be consigned to Record Room.
Announced in open court on 5th March, 2016 (SANJAY GARG-I) SPECIAL JUDGE-IV, CBI (PC Act) TIS HAZARI COURTS,DELHI CR No. 30/15 Dr. H.K. Singh Vs. Dr. Aruna Jain & Anr. & CR No. 25/15 State Vs. Dr. Anil Grover & Anr. Page No. 21/21