Rajasthan High Court - Jodhpur
Dr.Rajkumari Samar vs State on 30 May, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
1.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B. CRIMINAL MISC. PETITION NO. 1206/2008 (Dr. Rajkumari Samar Vs. The State of Rajasthan) DATE OF ORDER : 30 May, 2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. Manish Shishodia, for the petitioner. Mr. K.K. Rawal, Public Prosecutor.
The instant misc. petition has been filed on behalf of the petitioner seeking quashing of the proceedings of the criminal complaint No.111/2008 pending in the court of the learned Chief Judicial Magistrate, Udaipur for the offence under Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the Act).
Briefly stated the facts necessary for the disposal of this misc. petition are that the CMHO, Udaipur filed a complaint in the court of the learned Chief Judicial Magistrate, Udaipur on 12.8.2008. The allegations levelled in the complaint were that on 13.6.2006, news about a sting operation conducted by the Sahara Channel under the Program Rashtriya Sahara Samaya was telecast under the title of murder in womb.
As per the allegations levelled in the complaint, the 2. petitioner being the operator of the Samar Maternity Home, Udaipur was captured on video while giving her consent for detecting the sex of the foetus of the patient. The transcription of the CD forwarded by the Sahara Samay Channel to the CMHO was reproduced in the complaint.
The learned Chief Judicial Magistrate, Udaipur on the basis of the complaint proceeded to take cognizance against the petitioner by order dated 12.8.2008 for the offence under Section 23 of the Act.
Now, the petitioner has approached this Court by way of instant misc. petition seeking quashing of the proceedings of the criminal complaint pending against her.
Learned counsel for the petitioner Shri Manish Shishodia submitted that in this case the proceedings are ex facie illegal and amount to an abuse of the process of the court. He submits that even if the compact disk of the alleged sting operation is considered in its entirety, then too, prima facie, no offence under Section 23 of the Act is disclosed from a bare consideration thereof. He submits that if the transcription of the CD is considered in its entirety, it is apparent that the petitioner refused to test the foetus on the ground of delay. Learned counsel submits that in this case, the petitioner did not take any step towards determination of the gender of the 3. foetus. Rather, she discouraged the victum from taking such steps. Learned counsel thus prayed that the instant misc. petition deserves to be allowed and the proceedings of the criminal complaint filed against her deserve to be quashed.
Heard and considered the arguments advanced by learned counsel for the parties at the bar, perused the impugned complaint as well as the record of the case.
For a just and proper consideration of the issue in question, the provision of law for the violation whereof the petitioner is being prosecuted is reproduced hereunder:-
"22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention. - (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sec or sec selection before conception available at such Centre, Laboratory, Clinic or at any other place.
(2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-
natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.
4.(3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.
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 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.
[(2) The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre-natal diagnostic techniques on any pregnant woman for the purposes other than those specificied 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 5. rupees.
(4) For the removal of doubts, it is hereby provided, that the provisions of sub- section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.]"
From a bare reading of Section 23 of the Act, it is apparent that the actual determination or an agreement to determining the sex of a foetus is punishable under the Act. The compact disk which is the basis of the prosecution of the petitioner in this case has been seen by this Court and from a consideration of the same, it is apparent that the petitioner has nowhere agreed to subject the decoy who was sent for making the recording of the sting operation for the test of determination of sex of foetus. The transcription of the CD is available in Para No.11 of the complaint. The same is reproduced hereinbelow:-
"मर ज - इल ल गल त नह - लक न ए गड य पहल
स ह।
ड . र ज म र स मर---पर य त -----इस ललए त बहत
समय -------त न महहन पहल ज गर हन
च हहए थ --------
मर ज- ज मडम, ए गलत ह गई क वह पर व
सकस त न महहन म' कल यर पत नह
चलत ------उनह*न' ह
ड . र ज म र स मर - प च-----त न नह स ढ त न र
द ----
मर ज - च र म' रव य थ ------
ड . र ज म र स मर - क-र उस ब द म' डढ महहन----द
महहन कय क य -----
मर ज - आत आत दर ह गय ।"
From a bare perusal of the transcription, it is apparent that no agreement has been expressed by the petitioner for 6. determining the sex of the foetus. Therefore, ex facie, the admitted facts on record do not disclose the necessary ingredients of the offence under Section 23 of the Act against the petitioner so as to permit her prosecution in this case.
Resultantly, the misc. petition is allowed. The proceedings of the criminal complaint No.111/2008 pending against the petitioner in the court of the learned Chief Judicial Magistrate, Udaipur for the offence under Section 23 of the Act are hereby quashed.
(SANDEEP MEHTA), J.
ms rathore