Bombay High Court
Dr. Kalpana W/O. Suryakant Sable vs The State Of Maharashtra on 27 September, 2018
1 CrApln 2069 17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2069 OF 2017.
Dr. Mrs. Kalpana w/o Suryakant Sable,
Age 41 years, Occ. Medical Practitioner,
R/o. Sable Hospital, Majalgaon, Tq.
Majalgaon, Dist. Beed. ... Applicant
VERSUS
The State of Maharashtra,
Through Dr. Sumant Nagnathrao Wagh,
Medical Superintendent/Authorised
Officer, Rural Hospital, Majalgaon/
Appropriate Authority, PCPNDT,
Majalgaon, Dist. Beed. ... Respondent.
...
Advocate for the Applicant : Mr. Khandare N.B.
APP for the respondent/State : Mr. K. D. Munde.
CORAM : K. L. WADANE, J.
DATE : 27th SEPTEMBER, 2018. PER COURT :
1. The original accused No. 2 challenged the order passed by the learned Additional Sessions Judge, Majalgaon in Criminal Revision Application No. 11/2016 by which the revision preferred by the original accused No. 2/applicant is dismissed. The revision was against the order of refusal to discharge of present applicant from Regular Criminal Case No. 175/2014, registered against the applicant for the offence punishable under the Pre-conception and Pre-natal 1/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 ::: 2 CrApln 2069 17.odt Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred as "PC & PNDT Act")
2. The complainant namely Dr. Sumant Wagh lodged a complaint in the Court of Judicial Magistrate, First Class, Majalgaon against the applicant and her husband Dr. Suryakant, for the offence punishable under section 28 of the PC & PNDT Act read with Rules of 1996 and it is alleged by the complainant that on 25.07.2014 the complainant along with Civil Surgeon and a member of vigilance squad visited the sonography center of applicant on Gavrai road at Majalgaon in presence of two panchas. The premises of the sonography centre was inspected and they found that the applicant has not maintained record as contemplated under the PC & PNDT Rules 1996. The accused has not produced 'F' form for their scrutiny. Further it was found that the full name of the patients were not mentioned in the register together with their address, age and phone numbers. The applicant has not displayed the registration certificate in the waiting room of the sonography centre. The applicant has not kept the book of PC & PNDT Act as required under Rule 17(2). The complainant and the panch witnesses further found one sonography machine in working condition. The applicant has not submitted periodical reports, which are to be submitted under the provisions of 2/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 ::: 3 CrApln 2069 17.odt Rule 9 Sub Rule 8 of the PC & PNDT Act. So also, the applicant has not displayed warning board of sex determination, any where in the hospital. So, according to the complainant there was contravention at the hands of applicant particularly of Rules 9, 10 and 17 of the PC & PNDT Act. On behalf of the complainant, evidence before charge was adduced i.e. of P.W. 1 Dr. Sumant Wagh- complainant and two witnesses namely Purushottam and Damodhar and it was recorded by the learned Trial Court. Thereafter the applicant prayed for discharge. Her prayer for discharge was rejected. That order was assailed before the Sessions Court and the Sessions Court dismissed the revision, therefore, present application.
3. I have heard the arguments of Mr. Khandare, learned counsel for applicant and Mr. Munde, learned APP for the respondent/State.
4. Mr. Khandare, learned counsel for applicant argued firstly on the point that the applicant was not determining the sex of the foetus as prohibited under section 6 punishable under section 23 of the PC & PNDT Act. Secondly, Mr. Khandare argued that before presentation of the complaint, notice under section 28 of the PC & PNDT Act is mandatory, which the complainant had not given to the applicant/accused and thirdly the District Advisory Committee headed by the Civil Surgeon, in the meeting dated 14.08.2014 decided and 3/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 ::: 4 CrApln 2069 17.odt resolved that no action against the applicant can be taken under PC & PNDT Act, as the applicant informed by a letter dated 08.11.2010 that her sonography centre was closed due to unavailability of the Radiologist.
5. Learned APP opposed the submissions of Mr. Khandare, learned counsel for applicant, on the ground that there are clear cut contravention of number of rules of the PC & PNDT Act. Further more, no notice under section 28 of the PC & PNDT Act is required for the appropriate authority to file complaint. The advisory committee is not a competent authority to decide whether there was any contravention or not regarding the rules framed under the PC & PNDT Act.
6. Mr. Khandare during the course of his arguments repeatedly harping upon the point that the sex determination was not done at the sonography centre, as the same is prohibited under section 6 of the PC & PNDT Act. However, looking to the contents of the complaint itself it reveals that there are no allegations of the complainant against the applicant that she was conducting the test of sex determination. In fact, the allegations against the applicant are that she has not maintained proper record as required under the various rules of PC & PNDT Rules, 1996.
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7. Looking to the relevant provisions of the PC & PNDT Rules, 1996, it appears that as per Rule 9(1) every ultrasound clinic shall maintain a register showing, in serial order, the names and addresses of the men or women given genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouse or father and the date on which they first reported for such counselling, procedure or test.
8. The copy of relevant register is placed on record which starts from page No. 67 onwards. On perusal of the same it appears that only names of the patients and surnames are mentioned. No other particulars as required under Rule 9(1) are mentioned against their names. Not only this, their complete names are not mentioned, apart from other details, such as, age, address, telephone number or mobile number.
9. Furthermore, it is alleged by the complainant that the applicant has not submitted her complete report in respect of all pre- conception or pregnancy related procedures/techniques/tests conducted by her in respect of each month by 5th day of the following month to the concerned Appropriate Authority. So as per Sub Rule 8 it is a requirement to send a periodical report as contemplated and it is the allegations of the complainant that such reports were not sent to 5/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 ::: 6 CrApln 2069 17.odt the appropriate authority. Admittedly, the complainant is an appropriate authority and Mr. Khandare, learned counsel has not disputed this position. Further it appears from the provision of Rule 17(1) of the PC & PNDT Rules,1996, that every Ultrasound Clinic shall prominently display on its premises a notice in English and in the local language or languages for the information of the public, to the effect, that disclosure of the sex of the foetus is prohibited under law. Further more, as per Sub-rule 2 it is obligatory on the part of the applicant to keep at least one copy of the Act (PC & PNDT Act) and rules which shall be available on the premises of every Ultrasound Clinic and shall be made available to the clientele on demand for perusal.
10. P.W. 1-Complainant and two witnesses namely Purushottam and Damodhar deposed in the line of allegations made in the complaint.
11. According to Mr. Khandare, learned counsel, Trial Court is not empowered to take cognizance unless a notice under section 28 sub section (b) is given to the applicant. The provisions of Section 28(a) and (b) which reads as follows:
"28. Cognizance of offences -- (1) No Court shall take cognizance of an offence under this Act except on a complaint made by --6/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 :::
7 CrApln 2069 17.odt
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than [fifteen days] in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court."
12. Looking to the provision of sub section (a) of section 28 of the PC & PNDT Act, complaint by complainant is competent as per sub section (a) of Section 28 of the PC & PNDT Act. Proviso of sub-section
(b) are mandatory on a person who is intended to file a complaint against the accused for contravention of provisions of Rules or Act in that event 15 days notice is necessary to be issued to the Appropriate Authority. This provision of sub-section (b) shall have no application to the facts of the present case.
13. Another submission of Mr. Khandare, learned counsel is that the Advisory Committee headed by the Civil Surgeon has concluded and resolved that action against the applicant under PC & PNDT Act cannot be taken as the applicant informed by a letter dated 08.11.2010 that her sonography centre was closed due to unavailability of the Radiologist. However, the Advisory Committee headed by Civil Surgeon is not a competent to decide whether there was any 7/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 ::: 8 CrApln 2069 17.odt contravention on the part of the applicant in reference to the rules framed under the Act. In such circumstances, the arguments advanced by Mr. Khandare on all counts are not acceptable. There appears to be specific allegations in reference to the contravention of various provisions and prosecution witnesses have deposed on the line of the allegations contained in the complaint. So, prima-facie there is sufficient material against the applicant to frame charge. Therefore, the learned Magistrate has rightly refused to discharge the applicant as well as the learned Additional Sessions Judge has rightly dismissed the revision.
14. The aforesaid observations are made for the limited purpose for dismissal of this application and the Trial Court shall not influence about the same while deciding the complaint on its own merit.
15. In view of the above, there is no substance in the application, therefore, it is liable to be dismissed, accordingly it is dismissed.
16. Criminal Application is disposed of.
(K. L. WADANE, J.) mkd 8/8 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:40:49 :::