Karnataka High Court
Mr B Gopala Krishna vs District Commissioner And District ... on 21 October, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 31.08.2024
Pronounced on : 21.10.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.6934 OF 2024
BETWEEN:
1. MR.B.GOPALA KRISHNA
S/O BRAMHANANDA,
AGED ABOUT 47 YEARS,
SREE VENKATESHWARA CLINICAL LABORATORY
OPP.K.G.HALLI POLICE QUARTERS,
NAGAWARA MAIN ROAD,
BENGALURU - 560 045.
2. DR.SOMU ELANGOVAN S.K.,
S/O KANNAN ACHARY,
AGED ABOUT 60 YEARS,
SREE VENKATESHWARA CLINICAL LABORATORY
OPP.K.G.HALLI POLICE QUARTERS,
NAGAWARA MAIN ROAD,
BENGALURU - 560 045.
... PETITIONERS
(BY SRI TEJASVI K.V., ADVOCATE)
AND:
DISTRICT COMMISSIONER AND
DISTRICT APPROPRIATE AUTHORITY ("DAA")
2
OFFICE OF DISTRICT HEALTH AND FAMILY
WELFARE,
80 FEET ROAD, H COLONY,
INDIRANAGAR, BENGALURU.
KARNATAKA - 560 038.
REPRESENTED BY DR.RAVINDRANATH M. METI,
DISTRICT HEALTH AND
FAMILY WELFARE OFFICER,
BENGALURU URBAN
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU.
... RESPONDENT
(BY SRI B.N.JAGADEESHA, ADDL.SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO 1) QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.10586/2024 (ARISING OUT OF PCR NO.04/2024) PENDING
ON THE FILE OF THE LEARNED METROPOLITAN MAGISTRATE,
TRAFFIC COURT-1, MAYOHALL, BENGALURU FOR THE OFFENCES
P/U/S 23, 23(1), 23(2), 20(1), 20(2), 20(3) OF PC AND PNDT ACT,
VIDE ANNEXURE-A AND ALSO SET ASIDE THE ORDER OF
COGNIZANCE DATED 20.04.2024 VIDE ANNEXURE-B; 2) ALLOW
THIS CRIMINAL PETITION.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 31.08.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
1st petitioner, owner of a clinical laboratory in the name and
style of Sree Venkateshwara Clinical Laboratory and the 2nd
petitioner, registered medical practitioner are knocking at the doors
of this Court, in the subject petition, seeking quashment of
proceedings in C.C.No.10586 of 2024 pending before the
Metropolitan Magistrate, Traffic Court-1, Bengaluru and the order of
the concerned Court taking cognizance of the offence under the
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 ('the Act' for short).
2. Facts, in brief, germane are as follows:-
The 2nd petitioner is said to be the qualified registered medical
practitioner who has begun his practice in the year 1980 and has a
Karnataka Medical Council registration. The 1st petitioner who is the
owner of the aforesaid clinic obtains a certificate of registration
under the Act and the Rules framed thereunder for a period of 5
4
years. It was to be in operation from 30-10-2017 through
29-10-2022. On 26-09-2022 the petitioners paid renewal fee as is
necessary under the Act for renewal of certificate of registration.
For two years no action is taken on the application. On 22-02-2024
the District Health and Family Welfare Officer and his team
members conduct an inspection and search in the clinic and seized
one ultrasound machine and kept the machine so sealed in the
clinic. Another team comes on 27-02-2024 and conducts search in
the diagnostic centre of the laboratory. Based upon the aforesaid
search conducted, a crime comes to be registered invoking Section
200 of the Cr.P.C. The concerned Court, in terms of its order dated
20-04-2024, takes cognizance of the offence, registers
C.C.No.10586 of 2024 and issues summons to the petitioners to be
returnable by 16-07-2024. It is taking of cognizance, registration of
crime and issuance of summons that has driven the petitioners to
this Court in the subject petition.
3. Heard Sri K.V. Tejasvi, learned counsel appearing for the
petitioners and Sri B.N. Jagadeesha, learned Additional State Public
Prosecutor appearing for the respondent.
5
4. The learned counsel appearing for the petitioners would
vehemently contend that the petitioners have not committed any
offence under the Act. No violation is found at the time of search.
The complaint is registered on the score that no records are
maintained and no records with forms are maintained. The only
allegation is that they did not find Form-2F. Not maintaining Form-
2F does not relate to sex selection or detection. It is not even a
punishable offence. He would further contend that the petitioners
have filed the application for renewal of certificate of registration
along with requisite fee before the date of expiry of the licence. The
respondent did not pursue the application in a timely manner and
what is now projected is that the clinic is running without a licence.
The laboratory runs on ultrasound machine. The ultrasound
machine itself is seized which deprived services to the general
public. Before initiation of criminal prosecution, no notice to show
cause as to why action should not be taken for the offence
punishable under the Act, is even issued. He would submit that
there are glaring lacunae in what the respondent has done by
conducting search in the laboratory of the petitioners. He would
seek quashment of proceedings.
6
5. Per contra, the learned Additional State Public Prosecutor
would vehemently refute the submissions to contend that the
petitioners are running the clinic/laboratory without a licence under
the Act. They do not possess any registration under the provisions
of the Karnataka Private Medical Establishments Act, 2007. The
laboratory has not maintained appropriate forms. All this is in
violation of law and, therefore the petitioners should face the
proceedings and come out clean in a full blown trial. He would seek
dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. It would
suffice if the story would commence from the certificate of
registration of the petitioners laboratory under the Act. Section 19
of the Act deals with certificate of registration. It reads as follows:
"19. Certificate of registration.--(1) The Appropriate
Authority shall, after holding an inquiry and after satisfying itself
that the applicant has complied with all the requirements of this
7
Act and the rules made thereunder and having regard to the
advise of the Advisory Committee in this behalf, grant a
certificate of registration in the prescribed form jointly or
separately to the Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, as the case may be.
(2) If, after the inquiry and after giving an opportunity of
being heard to the applicant and having regard to the advise of
the Advisory Committee, the Appropriate Authority is satisfied
that the applicant has not complied with the requirements of
this Act or the rules, it shall, for reasons to be recorded in
writing, reject the application for registration.
(3) Every certificate of registration shall be renewed in
such manner and after such period and on payment of such fees
as may be prescribed.
(4) The certificate of registration shall be displayed by the
registered Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic in a conspicuous place at its place of business."
The Appropriate Authority shall after holding an inquiry and
satisfying itself that genetic counseling centre, genetic laboratory or
any clinic has complied with all the requirements of the Act grant
such registration. Registration is granted to the petitioners in terms
of an order dated 30-10-2017. This was to be in operation up to
29-10-2022. This is an admitted fact. The petitioners on
26-09-2022, nearly 40 days prior to the expiry of the aforesaid
registration, enclosing all the documents and payment of fee of
`12,500/- seek renewal of registration. The communication reads as
follows:
8
"Date: 26-09-2022
From:
B.Gopala Krishna
Sree Venkateshwara Clinical Laboratory,
Opp: K.G.Halli Police Quarters,
Above Balaji Medical Nagawara Main Road,
Bangalore-560 045.
To
District Health and Family Welfare Officer,
Bangalore Urban District,
Old Madras Road,
Bangalore-560 045.
Respected Sir,
Subject: Issue of certificate of registration to conduct ultra
sound scan.
With reference to above I have enclosed all the necessary
documents as per the online guidelines.
I request you to kindly sanction and issue me Form B
certificate to start ultra sound scanning at our centre.
Thanking you,
Yours faithfully,
Sd/- B.Gopala Krishna
Enclosures: Copy of installation report."
No action is taken on the said application though the application is
received on the same day. Two years passed by, but no action is
taken on the application. A search is conducted and on conduct of
search of the clinic some discrepancies under the Act are noticed.
Complaint emerges. On the complaint, the concerned Court takes
9
cognizance of the offence, registers criminal case and issues
summons. The order of taking cognizance is as follows:
"ORDER
Complainant Dr. Ravindranath M.Meti filed complaint
under Section 200 of Cr.P.C r/w Sec.28 of the Pre-conception
and pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 for the offence punishable under Section
23, 23(1), 23(2), 20(1), 20(2), 20(3) of PC & PNDT Act and
other relevant applicable sections under IPC.
2. On 23-02-2024 the complainant is a Officer of
Government having designation as the District Health and
Family Welfare Officer in Bengaluru, visited the accused
laboratory and on inspection under the provision of the said act
and rules they found that;
(a) The ultrasound room is located besides to the reception
and it was open at the time of visit and the USG machine
was in the active mode Mss/Mrs SANA TAJ (Lab Tech).
Accepted that scanning was done without generating
Form-F as per the PC and PNDT Act.
(b) The USG machine present in the diagnostic centre was
MINDRAY DC 6 SERIAL NUMBER: MA-96101241 with
single Curvilinear probe.
(c) At the inspection time USG machine WIPRO GE LOGIC
100 PRO machine not found in the said centre.
(d) On inspection of the machine, it was found that no
images and patient details were not found and it was not
stored in any media, including the USG machine.
(e) They also accepted that they are not maintaining any
records with regards any scanning done by Radiologist as
per the rules.
10
(f) The inspection of Form-B, 1 USG machines were found
with following details, Wipro GE Login P6 with serial
No.113528SU4 machine was available in the Diagnostic
centre premises and staff were unable to provide Refferal
slips and Form-F.
(g) Along with the above violations, the centre has not
mentioned any documents as per the said rules.
3. Complainant further submitted that the Centre
registration has expired dated 29-10-2022. The accused No.2
Dr. Somu Elangovan SK is not a empanelled specialist and also
respected doctor is performing the ultrasound scanning wherein
the centre registration is expired 15 months back. Hence, this
complaint.
4. Complainant is a public servant. Hence, recording of
sworn statement is exempted. Complainant filed application
under Section 408 Cr.P.C seeking condonation of delay.
5. Perused documents placed on record.
6. Heard complainant.
7. At this juncture there are prima facie material available
against the accused to proceed. An opportunity of being heard
will be granted to accused. As the alleged offences are offence
against the woman and grave in nature, against the established
provisions of law. Considering that complainant assigned
satisfactory reason for delay, the delay is condoned. Considering
all these aspects I proceed to pass the following:
ORDER
There are sufficient material to proceed against accused Nos. 1 and 2 for the offence P/U/S 23, 23(1), 23(2), 20(1), 20(2), 20(3) of PC & PNDT Act.
Office is hereby directed to register Criminal case against accused Nos. 1 and 2 in Register No.III.
Issue summons to the accused No.1 and 2 returnable by 16-07-2024.
11Sd/- MMTC-1, Bangalore."
The reason for taking cognizance is that ultrasound room is located beside the reception; the scanning was done without generating From-F; the scanning machine in the diagnostic centre did contain a particular serial number with only one probe; no images or patient details are stored in the media or the machine; Form-B of one ultrasound machine was found with details; and registration of the centre had expired on 29-10-2022. These are the allegations against the laboratory. A perusal at the aforesaid allegations nowhere indicates any offence under the Act. I deem it appropriate to take the last of the allegations at the outset. It is, the laboratory not functioning with a registration.
8. As quoted hereinabove, the petitioners have long before expiry of registration submitted an application seeking renewal along with requisite fee. The Competent Authority sleeps over the file for two years. For the folly of the Competent Authority who had displayed lackadaisical attitude or sheer callousness, the petitioners are made to suffer with an allegation that the clinic is running 12 without registration. Therefore, the observation that the clinic is being run without a registration cannot be laid against the petitioners, as it is dereliction of duty on the part of the Competent Authority to have kept the file for over two years. The allegations made do not touch upon any scanning being done by these petitioners of sex determination. In fact the allegation is, no records of scanning are found in the machine nor in the existed media. The only allegation projected is non-maintenance of form. Form-F deals with maintenance of record in the case of pre-natal diagnostic test.
If the pre-natal diagnostic test is done, Form-F would be maintained. The submission is nothing of that sort has happened in the scanning centre.
9. Yet another glaring illegality in the case at hand is, violation of Section 20. Section 20 of the Act deals with cancellation or suspension of registration. It reads as follows:
"20. Cancellation or suspension of registration.--(1) The Appropriate Authority may suo motu, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.13
(2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advise of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1)."
Section 20 directs that the Appropriate Authority may suo motu or on a complaint issue notice to the counseling centre seeking to show cause why registration should not be suspended or cancelled for the reasons mentioned therein. It is an admitted fact that there is no show cause notice issued in the case at hand. Therefore, there is large scale violation of the procedure stipulated by law not by the petitioners but by the State.
10. This Court has issued certain guidelines in the case of DR. SMT. SUBHALAKSHMI N., V. STATE1, to the State to be 1 Criminal Petition No.3002 of 2024 decided on 09th August 2024 14 followed to balance strict implementation of the Act and the Rules. I deem it appropriate to notice the same in the case at hand as well.
It reads as follows:
".... .... ....
7. The afore-narrated facts are not in dispute. The issue, at this juncture, lies in a narrow compass. The 1st respondent is said to be the Appropriate Authority under the Act to check violations of the Act and regulate functioning of the diagnostic centres. The petitioners are respectively the proprietor and certified operator of the ultrasound machine in the diagnostic centre. The diagnostic centre of the petitioners is inspected by the 1st respondent at 4.00 p.m. on 08-12-2023 and found several irregularities in the functioning of the Centre. The moment irregularities are found, a complaint comes to be registered invoking Section 28 of the Act. Since the entire issue has now sprung from the complaint, the complaint is necessary to be noticed. It reads as follows:
".... .... ....
3. It is further submitted that complainant is a officer of Government having designation as the District Health and Family Welfare Officer at Bengaluru urban District, Reporting Letter and CTC document are herewith produce, visited with power given by the District Appropriate Authority under PC & PNDT Act under Sec.17A and 28 of the Pre-Conception and pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, read with Rules 18A(1)(V) of the PC & PNDT Rules, 1996. The Delegation of power for filing of this case Delegation of power for authorize to inspect Dr. Ravindranath M.Meti, PC & PNDT the same is hereby produced for the kind perusal of this Hon'ble Court and marked as Annexure 'A' and 'B'.
4. The complainant states that it is the duty of the Appropriate Authorities to implement the act as per Rules 12 and to take action against all bodies upon violation of the Act and also against persons who have appointed/ allowed a person to operate without a valid qualification as mentioned in the Act or involved in sex selection/ determination of sex 15 of the same to anyone else, as they are amount to violation of Act u/Sec.3A, 4, 5, 6, 29 and 30.
5. The complainant further submits that on 08-12- 2023 the District Appropriate Authority & District Inspection and monitoring Committee visited MEDIZONE MEDICAL CENTRE, No.22, 2nd Cross, Abhayareddy, Kaggadasapur, Bengaluru-560 093 comprising of Dr. Ravindranath M.Meti, DHO, Delegated as DAA, Dr. NadeemAhamad, FWO, Dr. Leela Government Radiologist, Mr. Narayana R (Case Worker PCPNDT) Bengaluru Urban, on 08-12-2023 Friday about 4.00 p.m. The complainant have produced panchanama hereby produced for the kind perusal of this Hon'ble Court and marked as Annexure-C.
6. The DAA & DIMC, Team has inspected MEDIZONE MEDICAL CENTRE Kaggadasapura, Bangalore and checked the relevant registers and Form F etc., under the provision of said Act and Rule on arrival at the premises the DIMC found that.
7. The Ultrasound room is located opposite to the Reception. The ultrasound room was open when team visited the Centre and the USG machine was in the active mode. Mis/Mrs Jenifer & Karthik (Lab Tech.) accepted that scanning was done without generating Form F as per the PC and PNDT Act.
8. The USG machine present in the Diagnostics Centre was Wipro GeVoluson P8 BT16, with serial No.VP8002800 with single curvilinear probe.
9. On inspection of the machine, it was found that no images and patient details were not found and it was not store in any media, including the USG machine.
10. On inspection of Form B (Certificate of Registration) 1 USG machines were found with following details, Wipro GeVoluson P8 BT16, with serial No.VP8002800 machine was available in the Diagnostic Centre premises and staff were unable to provide referral slips & Form-F (1) Images, Patient Bill, Referral slips are hereby marked as Annexure-D.
11. The complainant submits that -
16a) The signature of the Patient was not found in the Form-F
i) The patient Signature was not found in Form-F name of the patients Neelam aged: 31 years Dated 13-11-2023, Ayesha aged 24 years, Dated: 26-11-2023; Rashmitha aged 31 years Dated 26-11-2023; Ramani aged 30 years Dated 27-11-2023 The same is hereby produced for kind perusal of this Hon'ble Court and marked as Annexures E, F, G, H.
b) It is further submitted that, the complainant respectfully prays that this Hon'ble Court may kindly be pleased to permit to produce that seized documents before this Hon'ble Court other notice and Letter given by the complainant to the Centre. The same is hereby produced for kind perusal of this Hon'ble Court and marked as Annexure-I & J.
c) The complainant further submits that after inspecting and examining the ultrasound machine, District Appropriate Authority found that these major violations of the PCPNDT Act, that all the relevant records be seized and sealed.
d) The cause of action arose in Bangalore Urban Baiyappanahlli Police Station Limits. Hence, this Court has got jurisdiction to try this matter.
12. It is for the submitted that, the complainant being the Appropriate Authority file this complaint against the accused without any mala-fide intention and misuse of power.
PRAYER:
Wherefore, it is respectfully prays that this Hon'ble Court may kindly be pleased to take cognizance non- bailable offence punishable under Section 23, 23(1), 23(2), 20(1), 20(2), 20(3) and other relevant Sections of PC & PNDT Act and other relevant applicable sections under IPC and secure the accused person and punish him for having committed the said offences, as per law, in the interest of justice."17
The complaint results in invocation of offences under Sections 20(1), (2), (3) and 23(1) and (2) of the Act. It is necessary to notice those provisions. Sections 20 and 23 of the Act read as follows:
"20. Cancellation or suspension of registration.--(1) The Appropriate Authority may suo motu, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
(2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advise of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-
sections (1) and (2), if the Appropriate Authority is of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1).
... ... ...
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.
18(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 women 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."
Section 20 which deals with cancellation of registration and empowers the Appropriate Authority to issue a notice to any diagnostic centre to show cause as to why its registration should not be suspended or cancelled for reasons mentioned in the notice. After giving a reasonable opportunity of being heard, if the Authority concerned is satisfied that there has been breach of the provisions of the Act, it may initiate criminal action against the Centre, suspend its registration for a period it may think fit or cancel its registration for reasons to be recorded in writing. Section 23 which deals with offences and penalties makes any person who would contravene the provisions of the Act to undergo punishment stipulated therein.
8. The Act is notified for the purpose of prohibition of sex selection before or after conception and for regulation of pre- natal diagnostic techniques to abolish this crude of female 19 foeticide. Therefore, two factors would emerge from the present proceedings - the first being, that the diagnostic centre must be involved in activities which would contravene the provisions of the Act, the foundation of which is determination of sex and the other being, prior to cancellation or suspension of registration, a reasonable opportunity should be granted to the person whose registration is sought to be suspended or cancelled. It is not in dispute that the 1st respondent is the Appropriate Authority empowered to conduct inspection in terms of Rule 18 of the Rules framed under the Act. The diagnostic centre is inspected on 08-12-2023. The inspection panchanama is drawn thereto. It reads as follows:
"¸ÀܼÀ ¥ÀAZÀ£ÁªÉÄ qÁ|| gÀ«ÃAzÀæ£Áxï JA.ªÉÄÃn DzÀ £Á£ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ f¯Éè ¨ÉAUÀ¼ÀÆgÀÄ ¥ÀƪÀð vÁ®ÆèPÀÄ, ¦.¹.&¦.J£ï.r.n. PÁAiÉÄÝAiÀÄ ¸ÉPÀë£ï 17(J), ¸ÉPÀë£ï 18 J(A) ªÀÄvÀÄÛ ¸ÉPÀë£ï 30 gÀAvÉ f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ ¥ÀævÁåAiÉÆÃf¹zÀ C¢üPÁjzÀ ªÉÄÃgÀUÉ ¢£ÁAPÀ:...gÀAzÀÄ ¨É½UÉÎ / ªÀÄzsÁåºÀß / ¸ÀAeÉ 4 UÀAmÉUÉ MEDIZONE MEDICAL CENTRE Kaggadasapura, Bengaluru Urban District ¸ÁÌöå¤AUï ¸ÉAlgï / ¯Áå¨ÉÆÃgÉÃlj / Qè¤Pï / D¸ÀàvÉæUÉ ¨sÉÃn ¤Ãr ¥ÀAZÀ£ÁªÉÄ ªÀiÁrgÀÄvÉÛãÉ.
gÁdå / f¯Áè vÀ¥À¸ÀuÁ ªÀÄvÀÄÛ ¥Àj²Ã®£Á ¸À«Äw ªÀÄvÀÄÛ gÁdå / f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ UÀÄgÀÄw¹zÀAvÉ MEDIZONE MEDICAL CENTRE Kaggadasapura, Bengaluru ¸ÁÌöå¤AUï ¸ÉAlgï / Qè¤Pï / D¸ÀàvÉæ AiÀÄÄ zÀ¸ÁÛªÉÃdÄUÀ¼À£ÀÄß / ªÀ»UÀ¼À£ÀÄß PÁ£ÀÆ£ÀÄ §zÀÞªÁV ¤ªÀð»¹gÀĪÀÅ¢®è ªÀÄvÀÄÛ ¦.¹&¦.J£ï.r.n PÁAiÉÄÝAiÀÄ 20/3 Rule 8 «¢ü / ¤AiÀĪÀÄUÀ¼À£ÀÄß G®èAX¹gÀÄvÀÛzÉ.
F PɼÀPÁt¹zÀ zÁR¯ÉUÀ¼ÀÄ / zÁ¸ÁÛªÉÃdÄUÀ¼ÀÄ / £ÀªÀÄÆ£ÉUÀ¼ÀÄ / ªÀ¸ÀÄÛUÀ¼ÀÄ / AiÀÄAvÀæUÀ¼À£ÀÄß gÁdå ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ / f¯Áè ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ, C¯ÁÖç¸ËAqï ¸ÁÌöå¤AUï ¸ÉAlgï ªÀiÁ°ÃPÀgÀ ¸ÀªÀÄPÀëªÀÄ ªÀÄvÀÄÛ F PɼÀUÉ ¸À» ªÀiÁrgÀĪÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ¦.¹&¦.J£ï.r.n. PÁAiÉÄÝAiÀÄ PÀ®A 30 ¤AiÀĪÀÄ 12 gÀAvÉ d¦Û ªÀiÁqÀ¯Á¬ÄvÀÄ.
1. Ultra sound scanning AiÀÄAvÀæ wipro 5.
Ge Voluson P8BT16 S/N
VP8002800
2. Form - F" 6.
3. 7.
4. 8.
What forms crux of the complaint is that signatures of patients were not found in Form-F. Four patients are named. These four patients' details are appended to the petition. The 20 first patient is one Neelam, aged 31 years who gets scanning done of the pregnancy pursuant to a prescription by a doctor - Dr. Shoba Venkat. The pregnancy is said to be of eight weeks. The next patient is one Ayesha aged 24 years. The prescription is by one doctor - Dr. Asha. The pregnancy is said to be of 5 weeks. The third patient is one Rashmita, aged 31 years, again referred by the same Dr.Asha. Pregnancy is said to be of six weeks. The fourth patient is one Ramani, aged 30 years referred by one Dr. Maya V.V., The pregnancy is of 9 weeks. It is ununderstandable as to how between five weeks and nine weeks of pregnancy the determination of sex of the fetus can happen. It is in public domain that sex of the fetus can be determined only after 12 to 14 weeks. Therefore, what was carried out in the diagnostic centre was only normal general routine pregnancy test on prescription of doctors.
9. It is an admitted fact that forms which contained details of the patients did not contain signatures of the patients. It is the contention of the learned counsel appearing for the petitioners that those signatures are in the register. The register and all other documents are said to have been seized. The Additional Special Public Prosecutor would contend that there was no register maintained for getting the signatures, as there is no seizure undertaken of the register being maintained also. While the complaint contends that there were no images in the scanning unit, but the images are taken and seized. Though it becomes a matter of documentation or evidence that signatures are found in the register or otherwise, what merits consideration of the petition notwithstanding absence of signatures is the notice that is issued. The notice is issued on 08-12-2023. It reads as follows:
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The notice notices several lacunae in the maintenance of the unit. It gives an opportunity to the petitioners to reply as to why the registration should not be cancelled or suspended within seven days from the date of receipt of the notice. The registration stood suspended on the day of the notice itself. Therefore, no time was granted to these petitioners to submit reply to the so called show cause notice.
10. The learned Additional Special Public Prosecutor submits that a show cause notice is to be issued to the petitioners and accordingly it has been issued. There are serious lacunae in the maintenance of diagnostic centre. If leniency is shown to these petitioners, they would indulge in the tests of sex determination as well as the State is on a serious look out of checking sex determination being done illegally resulting in female foeticide. The object of the State is laudable, as it is imperative today to check the growth of cases of female foeticide which happen due to determination of sex at the diagnostic centres illegally. While that cannot be brushed aside for implementation, without compliance with the provisions of the Act, as every diagnostic centre cannot be painted with the same brush.
11. Therefore, the notice that is given to any diagnostic centre in terms of Section 20 of the Act, it should be in furtherance of providing an opportunity to explain with regard to the violations of the Act, failing which, the notice would become meaningless, or an empty formality, as they are held guilty and criminal cases are registered even before seeking an appropriate explanation. Any act of this kind of not providing adequate opportunity would be in blatant violation of principles of natural justice. It is this that merits entertainment of petition notwithstanding signatures not being found in the Form. If it is found in the register, it was for the petitioners to explain as to why it was not taken in the Form and then the criminal case could be registered against these petitioners, as law clearly 24 indicates that if satisfactory reply is not given by those laboratories only then a criminal case can be registered. The procedure cannot be deviated in the wake of any rush to implement the provisions of the Act.
12. It now becomes germane to notice the guidelines issued by Government of India, Ministry of Health and Family Welfare publishing the standard operating guidelines of District Appropriate Authorities. I deem it appropriate to quote certain clauses of the guidelines, since the Additional State Public Prosecutor has admitted that the State has adopted and is following the same guidelines, though no document to that effect is produced before the Court. The guidelines are issued under the Act. It varies from Code of Conduct for the Appropriate Authorities under the Act; Guidelines for inspection of facilities; Search and Seizure operations; Guidelines for filing criminal complaints and Indicative Checklist for inspection of facilities under the Act. I deem it appropriate to quote them. They read as follows:
"1. Code of Conduct for the Appropriate Authorities under the Act ......
8) All the Appropriate Authorities including the State, District and Sub-district notified under the Act, Inter-alia, shall observe the following conduct for Inspection and monitoring, namely • conduct regular inspection of all the registered facilities once in every ninety days and shall preserve the inspection report as documentary evidence and a copy of the same be handed over to the owner of facility inspected and obtain acknowledgement in respect of the inspection • place all the inspection reports once in three months before the Advisory Committee for follow up action 25 • maintain bimonthly progress report containing number of cases filed and persons convicted, registration made, suspended or cancelled, medical licenses cancelled, suspended, inspections conducted, Advisory Committee meetings held at the district level and quarterly progress report at the State level
(a) procure the copy of the charges framed within seven days and in the case of doctors, the details of the charges framed shall be submitted within seven days of the receipt of copy of charges framed to the State Medical Council
(b) procure the certified copy of the order of conviction as soon as possible and in the case of conviction of the doctors, the certified copy of the order of conviction shall be submitted within seven days of the receipt of copy of the order of conviction."
... ... ...
5. Guidelines for inspection of facilities.
"....
Following things need to be examined during inspection of a Centre (indicative list not exhaustive): [Also refer to the indicative checklist for inspection of facilities at annex 6] • Board is displayed prominently on its premises with text in English and the local language saying, 'Disclosure of the sex of the foetus is prohibited under the law' [Rule 17 (1)] • Copy of the Act and Rules available on premises (and to be made available to clientele on demand for perusal) [Rule 17 (2)] • Registration Certificate displayed in a conspicuous place (near the machine) at the place of business [Rule 6(2)] • Name and designation of the person using the equipment is to be displayed prominently on the dress/coat worn by him/her [Rule 18 (viii)] 26 • Details to be checked in the Registration application, certificate and other related documents (as per Form B) i. Validity of certificate of registration ii. Name and educational qualifications of the persons authorised to use the equipment or machine iii. Information about the ultrasonography machine or similar equipment such as number, make model including probe/s iv. Prenatal diagnostic procedures approved for the centre • Details to be checked in case of facilities with portable machine/s(portable machine to be used for indoor patients or as a part of the mobile medical unit or MMU) i. Area of operation ii. Number of portable machines installed and/or used iii. Make and model of the portable machine/s iv. Registration of the vehicle that is the mobile medical unit in which the portable machine/s is available. Confirm that the registration number of the vehicle is the same as the one mentioned in Form B (registration certificate) v. Full address of the service providers vi. Availability of other services mandated by the PC&PNDT law in MMU.
• Review of the records at the
centre/facility
i. Review of Form 'F' (Genetic
clinics/Ultrasonography centres) [Form F at annex 7] a. All the relevant points in the F form are filled and the form is duly signed by the Gynaecologist / Radiologist / Registered Medical Practitioner performing the procedure with his/her name, seal, number as per the Act b. Copy of the F form (including the complete information about the pregnant woman) is sent to the Appropriate Authority before the 5th (date) of every succeeding month 27 c. Declaration of the pregnant woman is obtained in the language she understands when non-invasive techniques such as ultrasonography have been used d. Consent letter obtained from the pregnant woman in the language she understands, when invasive techniques such as Amniocentesis have been used e. Declaration is submitted by the doctor/s with time and date f. Referral records along with the copy of films of scans are maintained g. OPD register along with the ANC register and cash receipts h. Review computer records along with the hard copies of the records.
The Central Supervisory Board in the meeting held on 17th October 2005 recommended developing mechanisms so that form F can be filled/submitted online. Subsequently, some state governments have made it mandatory to fill 'F' forms online. In such cases, along with online filling of the forms, a hard copy of each form must be maintained at the centre/facility along with the signed declaration/consent letter (as the case may be) of the pregnant woman and the declaration of the doctor.
ii. Review of Form 'D' (Genetic Counselling centres) [Form D at annex 8] a. All relevant points are filled b. Forms have been submitted by the 5th (date) of every month to the Appropriate Authority [Rule 9 (8)] iii. Review of Form 'E' (Genetic Laboratories) [Form E at annex 9] a. All relevant points are filled b. Consent obtained from the pregnant woman in Form 'G' [at annex 10] c. Forms have been submitted by the 5th (date) of every month to the Appropriate Authority [Rule 9 (8)].
• Tally Form 'F' with the OPD Register [Rule 9 (1)] to ensure that there is no discrepancy In the number of patients examined and the total number of statutory forms filled 28 • After the inspection, if any lapses are found, the AA is expected to take necessary steps to address the violation [Section 30 read with Rule 12 (1)] • Issue a show cause notice seeking explanation as to why registration of the centre should not be suspended/cancelled [Section 20 (1)]. Sample format for issuing a show cause notice can be found at Annex 11. Guidelines on suspension and cancellation of registration are at annex 12 [Please also refer to the key sections of the law pertaining to inspection and issuance of show cause notice in the box below] • If applicable, as per Section 30. complete the legal procedure of search, and seize the Record and the Ultrasonography machine [Rule 12 (1)] • File a case with the Judicial Magistrate First Class / metropolitan magistrate [Section 28]. Sample format for filing a case is at annex 13."
... ... ...
6. Search & Seizure Operations.
How to undertake search and seizure
operations?
• Appropriate Authorities hold the right to
enter and search at all reasonable times any Genetic Laboratory / Genetic Counselling Centre / Ultrasonography Centre which is suspected to have contravened the Act and examine all registers, documents, receipts, books, pamphlets, advertisements or machines and other equipment, and seize and seal these, If the AA believes that these are likely to furnish evidence related to a commission of offence [Section 30 (1) and Rule 12]"
... ... ...
9. Guidelines for Filing a Criminal Complaint.
29How to file a criminal complaint under the PCPNOT Act?
As per section 28 of PCPNDT Act the Appropriate Authorities are authorised to file a criminal complaint in the Court of Judicial Magistrate First Class/Metropolitan Magistrate. The process of filing a complaint case has been divided into four segments:
A) Preparatory processes prior to filing a complaint case B) Documents to be submitted or annexed with the complaint C) Actual filing of the case D) General instructions A) Preparatory Processes • The Appropriate Authority or any person authorised by the Appropriate Authority may Inspect any centre. During inspection if the inspecting authority finds a violation of Provisions of the Act, they should mention all the violations of the Act and draw seizure memo/Panchnama with the help of Independent witnesses [Rule 12] • Panchnama should be drawn in the presence of Panchas. Witnesses are only to identify seized/witnessed by them • if the inspecting authority finds it necessary to seal and seize materials, including the machine and records, this should be done in accordance with the law. Inspecting authority should supply one copy of the list of sealed & seized objects and obtain an acknowledgement from the owner of the centre or a person authorised on his/her behalf [Section 30 Rule 12 (3)] • AA should issue a showcause for violations found in the centre and call for explanation from the owner of the centre Explanation should un considered in the Advisory Committee and recommendation for cancellation/suspension of the registration 30 of centre should be made to Appropriate Authority Appropriate Authority should suspend or cancel the registration of centre by providing reasons for the action taken • If AA has reason to believe that the machine or any object may furnish evidence of the commission of an offence then they may seal the machine or other objects as well in such cases, the reason has to be recorded in writing for such action being necessary in the public interest and the registration of the centre should be suspended without giving any notice in the interest of law [Section 20 (3)] • In other cases (except in matters of public interest), white suspending registration the authority should issue a show cause notice and call for explanation in a stipulated time.
The explanation should be put forth for consideration of the Advisory Committee for deciding a. Cancellation of registration of centre b. Initiation of Court proceeding as explanation provided in response to the show cause notice was not found satisfactory • If the owner of the centre or the facility or the sonologist, assistant/employee gives any confession admitting the offence, it should be properly recorded in writing and duly signed by the owner or the person authorised on his/her behalf. If this is not possible then the statement recorded by anybody on the scene needs to be read by the owner, and if that too is not possible (in case disease, III-health, illiteracy, etc.), the same should be read to him/her and explained and his/her signatures to be taken on it by mentioning that he/she has understood the contents of the statement after it was read to him/her and he/she has signed the it willfully, fully conscious of the content and without any coercion or undue influence. This will be helpful for proving the case.
31The inspecting authority should draw up a detailed report of the inspections with accurate date and time and place and preferably with a site plan.
B) Documents to be submitted or annexed with the complaint:
[Pl also refer to the indicative checklist to ascertain completeness of legal documentation for filing a Case at annex 17. Pl. note that documents are to be submitted in original as mentioned in the checklist] It is necessary to submit accurate and complete documents in the Court of Law. The following list of documents must be submitted a. Notification of Appropriate Authority in Government Gazette should be submitted in original. (Section 17(1) b. Authorisation letter by the Appropriate Authority in case of inspection by authority or person authorised by Appropriate Authority. The letter should contain date and specific area for inspection, preferably with a site plan c. Inspection report with all seizure memos d. Show cause notice issued by Appropriate Authority (Sec 20(1) e. Panchnama, seated and seized documents/objects(seizure memo) with the list f. Statement of centre owner g. Explanation of centre owner h. Recommendation of Advisory Committee i. Order of Suspension and/or cancellation of registration j. Any other documents which are found during inspection.
C) Actual filing of the complaint:
The complaint must be filed by the Appropriate Authority or the officer so authorised [Sample format for filing of the complaint at is at Annex 13] 32 a. During filing of the case the Appropriate Authority should take all the papers to the legal expert and draft a complaint in consonance with the facts of the inspection b. This procedure should be followed under the guidance of the legal expert who is member in the Advisory Committee/Assistant Public Prosecutor/District Public Prosecutor/Special Public Prosecutor as the case may be and documents vetted by the legal expert before filing of the complaint c. All factual aspects should be narrated in the complaint and law should not be pleaded d. All necessary people should be made an accused and proper addresses should be mentioned in the complaint e. Proper process fee should be submitted in court after the summoning order is passed. All necessary legal fees and process fee to be paid from the account of PCPNDT f. All original documents should be submitted. One copy of the documents should be kept with the Appropriate Authority and concerned lawyer/ Public Prosecutor before submission g. Copy of the documents should be provided to the accused as and when directed by the court h. Proper RCC (Registered Complaint Case) Number should be obtained with the help of superintendent of the Court and allotment of the case should be checked. Proper next date should be obtained. This date and Court name and court proceedings should also be mentioned in the file with the Appropriate Authority.
D) General instructions:33
a. Witnesses and Panchas should be trustworthy and independent so that the risk of them turning hostile during the trial is minimised b. Date and time of inspection is crucial, hence it should be properly cited c. Ensure that all points of inspection have been covered during inspection. Use checklist of inspection to ensure completeness (Annex 6) d. Ensure that stipulated time is given to the owner of the centre or facility for providing explanation and order of cancellation or suspension should not be passed during this stipulated time.
.... .... ....."
"Indicative Checklist for Inspection of Facilities Under the PCPNDT Act, 1994 A. General Information:
Date and time of Date: Time:
inspection:
Names/designation of the
inspecting authority or
details of team members,
if applicable:
Name:
Designation:
Name:
Designation:
Name:
Designation:
34
Name of the facility:
Name of the facility
owner:
Type of facility (genetic clinic,
genetic counseling centre, genetic
laboratory, ultrasonography
centre, imaging facility and
combinations if any, pl. specify)
Address of the facility(Complete):
Telephone/mobile:
E-mail"
The guidelines would direct all the appropriate authorities including the State and District notified under the Act inter alia to observe the conduct that is indicated under the guidelines for inspection and monitoring. They should conduct regular inspection of all the registered facilities once in every 90 days and preserve the inspection report as documentary evidence and copy of the same should be handed over to the owner of the facility inspected and obtain an acknowledgment in respect of the inspection. This is indicative of the fact that the functioning of both the authorities and the diagnostic centres would be accountable for any violation of the Act. Guideline No.5 which deals with inspection of facilities has various checks and balances. The details to be checked in case of facilities with portable machines have different parameters. The review of the records at a centre is also indicated in the guidelines. Form-F which is a Form that is appended to the provisions of the Act should be checked intermittently and all the relevant points in the Form should be filled and the Form is duly signed by the medical practitioner performing the procedure and the Form-F should be sent to the Appropriate Authority before 5th of every succeeding month and to be followed several other guidelines supra.35
13. Guideline No.6 deals with search and seizure operations. The Appropriate Authorities do hold a right to enter and search any laboratory which is suspected to have contravened the Act, examine all the registers, seize and seal if the Appropriate Authority believes that these are likely to furnish evidence related to the offence. Guideline No.9 deals with filing of criminal complaint. It depicts certain preparatory process that the Appropriate Authority should issue a show cause notice for the violation found in the Centre and call for explanation from the owner and the explanation should be considered in the advisory committee and recommendation should be made for cancellation or suspension of registration of the Centre by the Appropriate Authority. It is only then a criminal complaint can be registered. The documents that are to be annexed to the criminal complaint also bear reference in the guidelines which includes a show cause notice issued by the Appropriate Authority under Section 20 supra. Statement of the owner, explanation of the centre/owner and general instructions would be indicated. The authority should ensure that stipulated time is given to the owner of the facility to provide explanation and then order cancellation or suspension but during the stipulated time, no cancellation or suspension should take place. The checklist for inspection of facilities is also quoted supra.
14. That guidelines issued by Government of India are said to have been adopted by the State. It appears to remain only in paper. None of the procedures which are stipulated in the guidelines in furtherance of the Act are followed in the case at hand. No doubt, a show cause notice is issued to the petitioners on 08-12-2023. By then, the seizure had already happened and suspension had already taken place. But, the notice is issued as to why the registration should not be suspended. Therefore, it is for the State to henceforth adhere to the guidelines quoted supra and meaningfully bring about the violations of the Act. Leaving loopholes in law would only form a protective veneer to the violators of the law, if any. The loopholes should not blur the intent behind the enactment and the rigor of provisions of the Act. Therefore, the afore-quoted guidelines shall be strictly adhered to, by the Authorities, while conducting inspection and registration of criminal cases."36
The afore-quoted guidelines are required to be followed by the State qua inspection and search of clinics for offences under the Act. One added guideline which is peculiar to the present case is with regard to Section 19. Section 19 of the Act, as observed hereinabove, deals with registration. Sub-section (3) of Section 19 mandates that every certificate of registration shall be renewed in such manner and after such period on payment of such fee as may be prescribed. The format of renewal for such renewal along with fee was submitted by the petitioner in advance. The 'advance' would be 40 days in advance, as the registration was to expire on 29-10-2022 and the application was filed for renewal on 26-09-2022.
11. The renewal ought to have been granted or rejected in terms of Section 19 of the Act. But, the Competent Authority chose to keep the file in cold storage and now non-registration is one of the offence in the criminal case against the petitioners. The reason for the offence against the petitioners, is callousness of the officer who has to pass the order on the application for renewal.
37Therefore, it becomes necessary for the Competent Authorities to dispose of the application filed seeking renewal of registration within a reasonable time. Reasonable time, in the opinion of the Court, would be one month from the date of receipt of application failing which, non renewal of registration of any clinic cannot become an offence against those clinics if the clinics/laboratories have submitted their application within time with all necessary documents. In the event the officers would not dispose of the application within one month, they shall incur the wrath of facing disciplinary proceedings for dereliction of duty, as callousness of those officers will lead to unnecessary registration of criminal case against the laboratories.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings initiated against the petitioners in C.C.No.10586 of 2024 before the Metropolitan Magistrate, Traffic Court-I, Bengaluru stand quashed.38
(iii) The respondent is directed to consider and dispose of the application of the petitioners dated 26-09-2022 for renewal of certificate of registration of their clinical laboratory within a period of one month from the date of receipt of a copy of this order.
Sd/-
(M. NAGAPRASANNA) JUDGE Bkp CT:MJ