Bombay High Court
Dr. Shrihari S/O Limbaji Lahane And Anr vs The State Of Maharashtra on 21 February, 2018
CrAppln 5159 15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 5159 OF 2015
1) Dr. Shrihari s/o Limbaji
Lahane, Age 61 years, Occ.
Medical Practitioner, R/o.
Vithai Hospital & Research
Centre, Jirewadi, Tq. & Dist.
Beed.
2) Dr. Shivaji s/o Raosaheb
Sanap, Age 45 years, Occ.
Agriculture, R/o. Yash
Hospital, Beed, Tq. & Dist.
Beed.
... Applicants.
VERSUS.
The State of Maharashtra,
Through : Abhay Devidasrao
Maske, Age 33 years, Occ.
Naib Tahsildar (Rev), &
Competent Authority, Beed, ... Respondent.
Tq. & Dist. Beed.
...
Advocate for the Applicants : Mr. S.S. Thombre.
APP for the respondent : Mr. A.P. Basarkar.
CORAM : K. L. WADANE, J.
Reserved on : 14th February, 2018
Pronounced on : 21st February, 2018
JUDGMENT :
1. Rule. Rule made returnable forthwith. With 1/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt the consent of the parties, application is taken up for final hearing.
2. Heard Mr. Thombre, learned counsel for applicants and Mr. Basarkar, learned APP for the respondent.
3. The respondent herein has filed a complaint before the Judicial Magistrate First Class, Beed. It is alleged that the respondent has visited the premises of the hospital on 08.06.2012 and prepared a panchnama and reported that the ultra sonography machine was open and the doctor who was authorized to perform the sonography was not present there. It is further alleged that the applicants have not maintained record properly, more particularly, the record relating to the pregnant woman, in the form of 'F' were kept blank. Similarly, the forms 'G' were not filled up. In absence of a Radiologist the sonography room is to be locked, however, it was found open. With these allegations the respondent has filed complaint in the Court of Chief Judicial Magistrate, Beed.
4. After presentation of the complaint, the learned Judicial Magistrate First Class Beed, issued process 2/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt against the applicants under section 18, 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (herein after referred as 'the Act'). The applicants have challenged this order by way of filing Criminal Revision No. 141/2014 but same was also dismissed by the Additional Sessions Judge-2 Beed on 05.02.2015. Hence, this application.
5. Mr. Thombre, learned counsel for the applicants has submitted that when on earlier occasion the Appropriate Authority inspected the centre of the applicants on 05.06.2012 and 06.06.2012 nothing was found against the applicants and when the respondent has conducted the inspection and panchnama on 08.06.2012 both the applicants were in the police custody in connection with another Crime No. 66/2012. Therefore, the alleged inspection carried out by the respondent in absence of the applicants. Therefore there was no opportunity for them to produce the relevant record to show that they were following the rules and regulations of the Act.
6. Mr. Thombre, learned counsel, for applicants has 3/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt further submitted that when the Appropriate Authority inspected the Centre of the applicants on 06.06.2012, on that day also the Appropriate Authority has not found any violation of the provisions of the Act and it is specifically written against column No. 10 at Sr. No. 6.
7. Mr. Thombre, learned counsel, further points out that on behalf of applicants a Medical Director has also written to the Civil Surgeon, Beed, on 03.10.2011 informing that the sonography machine in Vithai Hospital and Research Centre was not in use and therefore it was requested to close the centre temporarily. With these background, Mr. Thombre, learned counsel, has submitted that this is a fit case, in which, the proceedings against the applicants can be quashed and set aside.
8. Mr. Thombre, learned counsel for the applicants relied upon the observations in case reported in 2012 ALL MR (Cri) 3991 (Dr. Mrs. Uma Shankarrao Rachewad Vs. Appropriate Authority, Nanded). He also relied on the observations of this Court in Criminal Writ Petition No. 4194 of 2014 ( Coram : M.L.Tahaliyani, J.) 4/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt and Criminal Writ Petition No. 406 of 2011 ( Coram :
A.V. Nirgude J.)
9. As against this, learned APP submits that the record kept by the applicants in the sonography centre were blank and no record was kept in respect of the sonography done on pregnant women.
10. I have carefully gone through the record, from which it appears that, these registers are not filled. However, on perusal of the entire record it appears that, there is no complaint against the applicants that they were doing sonagraphy and thereby determining the sex. On the contrary it was informed on behalf of the applicants to the Civil Surgeon Beed that the Centre should be temporarily closed because of non-functioning of the sonagraphy machine.
11. From the record it appears that when the sonography centre was examined by the Appropriate Authority on 06.06.2012, no irregularity was found and it is particularly reported by way of inspection report in format 'B' and since the applicants were in police custody remand therefore how the respondent surprisingly noted that the record was not properly 5/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt maintained, when such irregularities were not found at the time of inspection by appropriate authority on 05.06.2012 and 06.06.2012. On the contrary from the contents of the record, seizure panchnama dated 08.06.2012 it appears that at the time of panchnama the sonography room was locked, thereafter the lock was opened and the premises were inspected. In brief, it is the allegations against the present applicants that a sonography centre using diagnostic techniques are supposed to maintain record as prescribed i.e. form No. 'F' and 'G'.
12. Rule 9 of the Act reads as follows :
9. Maintenance and preservation of records : [(1) Every Genetic Counselling Centre, Genetic Laboratory, [Genetic Clinic including a Mobile Genetic Clinic], Ultrasound Clinic and Imaging Centres 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.
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CrAppln 5159 15.odt (2) The record to be maintained by every Genetic Counselling Centre, in respect of each woman counselled shall be as specified in Form D. (3) The record to be maintained by every Genetic Laboratory, in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form E. (4) The record to be maintained by every [Genetic Clinic including a Mobile Genetic Clinic], in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test,shall be as specified in Form F] (5) The Appropriate Authority shall maintain a permanent record of applications for grant or renewal of certificate of registration as specified in Form H. Letters of intimation of every change of employee, place, address and equipment installed shall also be preserved a permanent records. (6) All case-related records, forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, Ultra 7/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt Sound Clinic or Imaging Centre for a period of two years from the date of completion of counselling, pre-natal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the records shall be preserved till the final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is later.
(7) In case the Genetic Counselling Centre or Genetic Laboratory of Genetic Clinic, Ultra Sound Clinic or Imaging Centre maintains records on computer or other electronic equipment a printed copy of the record shall be taken and preserved after authentication by a person responsible for such record.
(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centres shall send a complete report in respect of all pre-conception or pregnancy related procedures/techniques/tests conducted by them in respect of each month by 5th of the following month of the concerned Appropriate Authority.
13. As per Rule 9(4) of the Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex 8/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 ::: CrAppln 5159 15.odt Selection) Rules, the record is to be maintained by the Sonography Centre in respect of each man or woman subjected to any pre-natal diagnostic procedure/ technique/test, shall be specified in Form F.
14. In my opinion, when the inspection of the Centre was carried out in absence of the applicants, therefore, in fact, there was no opportunity for them to show that they have maintained the record properly. The allegations against the applicants are serious, therefore, it was necessary to collect the precise evidence which may, prima-facie, specify that the applicants had not maintained the record of Ultrasound Sonography Centre. Therefore, it appears to me that a superficial enquiry was done and the panchnama was prepared. The applicants cannot be asked to face prosecution on the basis of a superficial enquiry. As such, the criminal case lodged against the applicants for violation of rule 9(4), 10(1) punishable under section 25 of the Act, deserves to be quashed and the order of the Revision Court is required to be set aside. Hence, following order is passed.
O R D E R
1) Criminal Application is allowed. 9/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 :::
CrAppln 5159 15.odt
2) The order passed by Judicial Magistrate First Class, Beed, below Exh. 1, in R.C.C. No. 410/2012 on 03.11.2014 and the order dated 05.02.2015 passed by the Additional Sessions Judge-2, Beed,in Criminal Revision No.141/2014 are quashed and set aside.
3) Rule made absolute in above terms. No costs.
(K. L. WADANE, J.) mkd 10/10 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:56:35 :::