Gujarat High Court
Jitendrasinh Lalitsinh Rana vs State Of Gujarat on 6 October, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/SCR.A/5883/2018 ORDER DATED: 06/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5883 of 2018
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JITENDRASINH LALITSINH RANA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BHARGAV HASURKAR(5640) for the Applicant(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 2
MS M D MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/10/2022
ORAL ORDER
1. By way of this petition the petitioner herein has prayed for the following reliefs :-
"(A) The Hon'ble Court be pleased to admit and allow this Special Criminal Application.
(B) The Hon'ble Court be pleased to quash and set aside the order passed by the Judicial Magistrate F.C., Mangrol in application below Exh.-12 in Criminal Page 1 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 Complaint case No. 1833/11 passed on 06-
06-2018 and further be pleased to hold and declare that such order is illegal, arbitrary as well as erroneous in the interest of justice.
(C) The Hon'ble Court be pleased to quash and set aside the Complaint filed before the Judicial Magistrate F.C., Mangrol being Criminal Complaint no.1833/2011 at Annexure- E and further be pleased to hold and declare that such complaint in filed in abuse of powers as are vested with the respondent no. 2 by the PC & PNDT Act.
(D) The Hon'ble Court be pleased to stay implementation and operation of order by the Judicial Magistrate F.C., Mangrol in application below Exh.-12 in Criminal Complaint case No.1833/11 passed on 06-06- 2018 pending admission, hearing and final disposal of this Special Criminal Application.
Page 2 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 (E) The Hon'ble Court be pleased to stay further proceedings of Criminal Complaint no.1833/2011 at Annexure E pending before Judicial Magistrate F.C., Mangrol pending admission, hearing and final disposal of this Special Criminal Application, in interest of justice.
(F) The Hon'ble court be pleased to pass any other just and proper order as deemed fit in favour of the applicant."
2. It appears that the complaint came to be filed by the respondent authority under the provisions of PC & PNDT Act against the applicant herein which came to be registered as Criminal Case No.1833 of 2011. The petitioner was to be tried for the offence under Section 22 of the PC & PNDT Act. Initially complaint came to be filed against the applicant herein under Section 20(2) of PC & PNDT Act and process came to be issued under Section 22. The Court below has taken the Page 3 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 cognizance under Section 22(2) of the Act and complaint was filed for deficiency in Form - F. Pending the said application the respondent authority preferred an application below Exh.12 on 06.02.2016 keeping addition of Section 23 in the complaint against the applicant herein in the complaint being Criminal Complaint No.1833 of 2011 pending before the Court below. It appears that the respondent authority preferred an application seeking impleadment of Section 23 of the Act in the year 2016, which came to be decided by the learned Judicial Magistrate on 06.06.2018 allowing the application below Exh.12 which is duly produced on record at Annexure-A. The order passed by the Court below while allowing the said application reads thus :-
"ORDER BELOW EXHIBIT 12 IN CC NO.1833 0F 2011 ".... ..... ..... ..... ...
6) This court has gone through the records and application if we perused the Page 4 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 complaint then it is alleged that 'I went there on 05/11/2011, where Dr. Jitendrasinh Lalitsinh Rana found present.
Upon asking him about his academic qualification, he stated that he is MS Surgeon. In addition, upon asking him as to whether he has any undergone any course or special qualification of Sonography or not, he stated that he does hold any course or degree of Sonography. Despite that, the accused was found doing Sonography examination of the pregnant women, thus, the accused has violated PNDT Act. As per the law, he cannot examine the pregnant women being a General Surgeon. He was found doing the Sonography examination of pregnant women during my investigation though he was not holding any course. Moreover, a Sonography machine is also found from his hospital. Upon finding the said Sonography machine (Logic xp 100, Serial no.52733wm 3, Wipro), the same was placed in the box, sealing the box with sticking and plaster and affixing label thereon in the presence of panchas, affixed seal of District Appropriate Authority, Surat with lakh. After obtaining undertaking from Dr. Jitendrasinh Lalitsinh Rana to maintain Page 5 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 the said seal, it was kept on the shelf in the sister room on the first floor of his hospital. Power-cord, Wire, Prob etc. material attached to the said machine have been removed. Moreover, the said Dr. Jitendrasinh Lalitsinh Rana was asked to produce the records and registers required to be maintained after Sonography examination of the pregnant women as per the PNDT Act. Upon perusal of one of the form produced, following defects were found:
1) Name and registration number of the organization are not written in Column No.1 and 2 in many forms.
2) The date of LMP is not mentioned in many forms. In addition, the date of LMP of Farhana Ayun Shaikh, patient in Form dated 27/02/2011 is mentioned as 12 June, 1910.
3) One form contains signature of 'Asmita J Tailar' in the signature column of the patient, however, no details have been filled up in the said form.
4) There is no indication of the Page 6 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 purpose of the Sonography in many forms. 5) Most of the Form-F were not
containing result of the Sonography.
6) Most of the forms were not
containing the information of Point
No.15, 16 and 17.
7) Out of the produced forms, 14
forms were not bearing the signature of the doctor performing Sonography.
8) Refer chits of the doctors for the pregnant women sent for the Sonography examination to the Dr. Jitendrasinh L. Rana, Aaram Surgical Hospital have not been maintained.
Upon asking Dr. Jitendrasinh L. Rana to produce the register of the information of the pregnant women underwent Sonography at his hospital, he stated that the register has been lost and he has not produced register today. Dr. Jitendrasinh L. Rana used to go at Kanuga Hospital, Kosamba with his machine as visiting doctor to perform Sonography of pregnant women.
Page 7 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 Though the accused of the said case does not have any Educational Qualification for carrying out the Sonography test of the pregnant
women, despite that he had done the Sonography test of the pregnant women through Sonography machine. By doing so, the accused have committed an offence under P.N.D.T. Act. Hence, we pray to conduct the trail against him and be pleased to pass an order to punish the accused in the interest of justice. "
3. Mr. Bhargav Hasurkar, the learned advocate appearing for the applicant vehemently submitted that the learned Magistrate could not have added the Section 23 of the PNDT Act after a lapse of five years and also submitted that no new facts by the impugned application below Exh.12 are brought to the record of the Court.
4. In view of above, the impugned order passed by the learned Judicial Magistrate dated 06.06.2018 allowing the application below Exh.12 be quashed and set aside.
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5. Ms. R.V. Acharya, the learned advocate appearing for the respondent No.2 authority submitted that no prejudice would be caused to the petitioner herein in addition of Section 23 of the Act in the impugned complaint.
5.1 Ms. R.V. Acharya, the learned advocate appearing for the respondent authority submitted that there is no bar of addition any Sections under the Code.
6. There is no period of limitation is prescribed in the criminal code for adding any Section and admitted that the impugned order passed below not to be interfered. Section 23 deals with the offences and penalty, which reads thus :-
"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 Page 9 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 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.29
[(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 Page 10 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 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 specified 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 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.]"
7. The Court below while allowing the application has passed reasoned order and permitted to the addition of Section 23 of the Act in the complaint. It is after duly considering the documents which were placed before the Court below that the Section was permitted to be added.
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8. Having heard the learned advocates appearing for the respective parties, the allegation against the applicant herein as stated in the complaint which is duly produced at page 35/A and the same is referred to in the impugned order as stated above and considering the same, it is noticed that several irregularities are alleged against the applicant herein. The Court below prima-
facie came to the conclusion that the Section 23 be permitted to be added.
9. Considering the gravity of alleged irregularities by the applicant herein, this Court is not inclined to interfere with the order impugned. The submissions advanced by Mr. Bhargav Hsurkar, the learned advocate appearing for the applicant that Section 23 could not have been added after a period of six years is not accepted by this Court. This Court also takes notice of the fact that the impugned complaint is still at the stage of arguments and the complaint has not proceeded further though it Page 12 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022 R/SCR.A/5883/2018 ORDER DATED: 06/10/2022 was filed as back as in the year 2011. It is always open for the applicant herein to take all the contentions before the Court below at the time of trial. Any contentions that may be taken by the applicant herein be considered by the Court below in accordance with law, including the aspect of composition of the advisory committee.
10. With the aforesaid reasons, no interference is called for. The present application stands disposed of.
11. Notice is discharged.
(VAIBHAVI D. NANAVATI,J) Pallavi Page 13 of 13 Downloaded on : Thu Oct 13 21:00:05 IST 2022