Hitesh D. Shah – vs State Of Gujarat & 1 – on 19 June, 2008

CR.MA/4406/2008 14/14 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 4406 of 2008

WITH

CRIMINAL MISC. APPLICATION NO.4410 OF 2008

AND

CRIMINAL MISC.APPLICATION NO.4414 OF 2008



==========================================

HITESH D. SHAH – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

=========================================
Appearance :
MR MAHENDRA K PATEL for Applicant(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) : 1,
None for Respondent(s) : 2,
=========================================

CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI

Date : 19/05/2008

ORAL ORDER

  1. By these applications under section 482 of the Code of Criminal Procedure, 1973 (?Sthe Code??) the applicants seek quashment of the complaints lodged against them in the Court of the Metropolitan Magistrate, Ahmedabad for the offences punishable under sections 4(3), 5 (1) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (?Sthe PNDT Act??) as well as Rules 9(4), 10(1A), 17(1) and 17(2) of the Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (?Sthe PNDT Rules??).

 

  1. The main grounds for challenging the complaint are set out in paragraph 2 of the application. One of the grounds is that the respondent No.2 herein is not an ?Sappropriate authority?? as envisaged under section 17(2) of the Act and that therefore the complaint made by him is not maintainable. In support of the said contention reliance has been placed upon a decision of this Court in the case of Dr. Manish Dave v. State of Gujarat and Another and other cognate matters, (2008 (1) GLR 239) wherein on similar facts, for the reasons stated in the said judgement and order, it had been held that the complaints were bad in law. Similar contention was raised before this Court in the case of Jagruti R. Sanghvi v. State of Gujarat (Criminal Miscellaneous Application No.4996 of 2008), wherein this Court had for the reasons stated in its order dated 7.2.2007 rendered in Criminal Miscellaneous Application No.7328 of 2006 and allied matters, expressed disagreement with the view taken by the learned Single Judge in the case of Dr.Manish Dave (supra) and referred the following question to the larger bench for its consideration and opinion:

 

  1.  
    1. Whether under the provisions of section 28 of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 a Court can take cognizance of an offence under the Act on a compliant made by any officer authorised in this behalf by the Appropriate Authority?

 

  1. The other grounds stated in the application are that there is no specific allegation in the entire complaint that the applicants have conducted test for determining the sex of the foetus or that the applicants had communicated the sex of the foetus to any one. That the only allegation against the applicant is that there is deficiency and inaccuracy found in Form ??F?” as there are some blanks in the same. That as far as non-filling up of certain columns is concerned the applicants are not required to note the same as the applicants have nothing to do with such particulars in view of the fact that ultimately the report which is indicated in the sonography test is just to be handed over to the patient concerned. Reliance is placed upon the decision of this Court in the case of Dr. Manish Dave (supra) wherein while construing the provisions of the proviso to sub-section (3) of section 4 of the PNDT Act, it has been held that ?Sthe language of the proviso is to the effect that ?Sany deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or 6 unless contrary is proved by the person conducting such ultra sonography??. The phrase ?Sunless contrary is proved by the person conducting such ultra sonography?? connotes that if there is any allegation, the person conducting can prove otherwise. In the present case, there is no allegation by the respondent authority that the provisions of section 5 and 6 of the Act are attracted and hence there is no question of proving otherwise.?? Interpreting the provisions of section 5 and 6 of the PNDT Act it has been held as follows:

?S[14]. A reading of the aforesaid provisions would show that no person should be communicated the sex of foetus, the test should not be conducted for the purpose of determining the sex of a foetus nor can there be a test for selection of sex before conception. If the test is is done for the aforesaid purpose there is a contravention of the provisions of the Act.

[15]. From a bare perusal of the complaints it is apparent that it is not the case of the authority that provisions of Secs.5 or 6 are applicable inasmuch as the authority has not been able to show or even alleged that (i) any pregnant woman or her relative or any other person has been communicated the sex of foetus by the petitioners or (ii) at any place and by any person, including the person conducting ultrasonography, there has been either sex determination or sex selection. In absence of such specific allegations in the complaint it cannot be said that provisions of Secs.5 and 6 of the Act would be attracted.

[16]. Reading the proviso to Sec.(3) it is to be presumed that the deficiency or inaccuracy in the record would amount to contraventions of the provisions of Sec.5 or 6 of the Act. As a natural consequence, in view of such deficiency or inaccuracy, there should be allegation of contention of provisions of Secs.5 and 6 of the said Act. In the present case there are no specific allegations in the complaint pertaining to the provisions of Secs.5 and 6. Apart from that the language of Secs.5 and 6 is prohibitory in nature, and therefore, the burden of proof will be on the authority to prove that there was contravention and thereupon to rely on the provisions of Statutory Form-F for filing criminal complaint.

[17]. In the present case, without alleging the contravention to provisions of Secs.5 and 6, the complaint has been filed merely on the alleged deficiency or inaccuracy, it should follow contravention of provisions of Secs.5 and 6 Such is not the case in the complaints in question.

[18]. As far as Sec.4(3) is concerned, it is the case of the petitioners that the register is maintained with all the columns which fall within the four corners of the duties and functions of the petitioners. Apart from that no opportunity is afforded to the petitioners to prove contrary and put up their case. Further, such deficiency or inaccuracy, at least so far as the present proceedings are concerned, is merely a procedural lapse, which do not in any manner contravene the provisions of Secs.5 and 6 of the Act.

[19]. In view of the above, when it is not established that there is contravention of the provisions of Sec.5 or 6, the contention regarding any inaccuracy or deficiency in in Form-F will not be applicable, and, therefore, the complaints themselves are not maintainable. I am, therefore, of the view that the complaints do not prima facie establish any alleged offence against the petitioners.??

  1. For the reasons that follow, this Court is not in agreement with the view taken by a co-ordinate bench in the aforesaid decision:
  2. The PNDT Act is an Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto.
  1. Chapter III of the PNDT Act, which provides for ?SRegulation of Pre-Natal Diagnostic Techniques?? consists of three sections viz. sections 4, 5 and 6. Section 4 makes provision for regulation of pre-natal diagnostic techniques. Section 5 makes provision for written consent of pregnant woman and prohibition of communicating the sex of foetus. Section 6 prohibits the determination of sex. Sub-section (3) of section 4 which is relevant for the purpose of the present applications reads as under:

?S4. Regulation of pre-natal diagnostic techniques.- On an from the commencement of this Act.-

(3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely :-

  1. age of the pregnant woman is above thirty-five years;
  2. the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
  3. the pregnant woman has been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
  4. the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
  5. any other condition as may be specified by the Board

Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or 6 unless contrary is proved by the person conducting such ultrasonography.??

  1. The interpretation of the proviso to sub-section (3) of section 4 of the PNDT Act is the main issue involved in the present case.
  1. A plain reading of the proviso to sub-section (3) of section 4 shows that the same imposes an obligation on the person conducting ultrasonography on a pregnant woman to keep a complete record thereof in the clinic in such manner, as may be prescribed.
  1. The manner in which such record is to be kept is prescribed by the PNDT Rules. Sub-rule (4) of Rule 9 of the PNDT Rules provides that the record to be maintained by every 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.

 

  1. Rule 10(1A) of the PNDT Rules lays down that ?SAny person conducting ultrasonography/image scanning on pregnant woman shall give a declaration on each report on ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to any body. The pregnant woman shall before undergoing ultrasonography/image scanning declare that she does not want to know the sex of her foetus.
  1. In view of the aforesaid provisions, the person conducting ultrasonography on a pregnant woman is required to keep a complete record thereof in the clinic in such manner, as prescribed under the Rules. Hence, the concerned person is required to fill up Form F which is the ?SForm for maintenance of record in respect of pregnant woman by genetic clinic/ultrasound clinic/imaging centre??.
  1. Under the proviso to sub-section (3) of section 4 any deficiency or inaccuracy found in maintaining the record as prescribed shall amount to contravention of the provisions of section 5 or 6 unless contrary is proved by the person conducting such ultrasonography. Hence, there is a presumption under the statute by virtue of which the moment any inaccuracy or deficiency is found in the record maintained by the clinic, the same would ipso facto amount to contravention of the provisions of section 5 and 6 of the PNDT Act, subject to a caveat that such inaccuracy or deficiency shall not amount to contravention of the provisions of section 5 and 6 if the person conducting the ultrasonography proves to the contrary. Therefore, once an inaccuracy or deficiency is found, the burden shifts upon the person conducting the ultrasonography to prove to the contrary, failing which the deficiency or inaccuracy in maintaining the record as prescribed shall be presumed to be a contravention of section 5 or 6 of the Act.
  1. Looking to the complaints in question, it is evident that the persons conducting the ultrasonography have not properly filled up Form-F as prescribed under the PNDT Rules; hence, there is clearly a deficiency in maintaining the record, which would amount to contravention of sections 5 or 6 of the Act. In view of the provisions of sub-section (3) of Section 4 of the PNDT Act, the deficiency or inaccuracy in maintaining the record would ipso facto amount to contravention of section 5 or 6 and no other allegations regarding the provisions of section 5 or 6 being attracted, are necessary. Therefore, the authority is not required to prove contravention of the provisions of section 5 or 6. But once any inaccuracy or deficiency is found in maintaining the record, there is a presumption against the person conducting the ultrasonography that there is a contravention of the provisions of section 5 ot 6 of the Act, which has to be rebutted by cogent evidence. Hence, the onus lies upon the said person and not on the authority.
  1. The provisions of sub-section (3) of Section 4 of the PNDT Act mandate that the person conducting ultrasonography on a pregnant woman shall keep record thereof in the clinic in such manner as may be prescribed. The statute provides that any deficiency or inaccuracy found in maintaining such record shall amount to contravention of section 5 or 6 of the Act. Hence, when the non-maintenance of such records as prescribed, entails such serious implications, it cannot be said that any inaccuracy or deficiency in filing Form-F as required under the statutory provisions is merely a procedural lapse
  1. The words ?Sunless the contrary is proved?? have come up for consideration before the Supreme Court in several cases in the context of the provisions of section 4(1) of the Prevention of Corruption Act, 1947. In the case of C.S.D. Swami v. State, AIR 1960 SC 7, the Supreme Court while construing the provisions of section 5(3) (before amendment by Act 40 of 1964) of the Prevention of Corruption Act, has held as follows:

?SIn this case, no acceptable evidence, beyond the bare statements of the accused, has been adduced to show that the contrary of what has been proved by the prosecution, has been established, because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct in the discharge of his official duties “unless the contrary is proved”. The words of the statute are peremptory, and the burden must lie all the time on the accused to prove the contrary. After the conditions laid down in the earlier part of sub-section (3) of S. 5 of the Act, have been fulfilled by evidence to the satisfaction of the court, as discussed above, the court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and this presumption continues to hold the field unless the contrary is proved, that is to say, unless the court is satisfied that the statutory presumption has been rebutted by cogent evidence.??

  1. In the case of Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575 the Supreme Court while interpreting the provisions of section 4(1) of the Prevention of Corruption Act, 1947 has held as follows:

?SIt is well to bear in mind that whereas under S. 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under sub-sec. (1) of S. 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that the person received that thing as a motive of reward such as is mentioned in S. 161, I. P. C. Therefore, the Court has no choice in the matter, once it is established that the accused person had received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ‘unless the contrary is proved’ which occur in this provision make it clear that the presumption has to be rebutted by ‘proof’ and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.??

  1. In the case of Mahesh Prasad Gupta v. State of Rajasthan, (1974) 3 SCC 591, the Supreme Court while dealing with the provisions of section 4(1) of the Prevention of Corruption Act, 1947 held as under:

?S7. Under Section 4(1) of the Act, the burden of proving the contrary must rest on the appellant. But the learned Counsel appearing on his behalf urges that the presumption under Section 4(1) can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as a legal remuneration. This contention is contrary to the clear terms of section 4(1) and would render illusory the presumption arising under the Section. To cast on the prosecution the burden of proving that the amount was accepted by the accused otherwise than by way of legal remuneration is to ask the prosecution to prove that the amount was paid and accepted by way of bribe. If this be the true nature of the burden resting on the prosecution, no presumption at all need be raised because apart from the presumption that prosecution would have to prove that the money was accepted by the accused and that it was accepted as a bribe. It is plain that if the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not accepted by him as a motive or reward as is mentioned in section 161, Penal Code. As held in V.D. Jhangan v. The State of Uttar Pradesh, the accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt.??

  1. In the case of Dr. Manish Dave (supra), the view taken by a Coordinate Bench of this Court is that ?SReading the proviso to Sec (3) it is presumed that the deficiency or inaccuracy in the record would amount to contraventions of the provisions of Section 5 and 6 of the Act. As a natural consequence, in view of such deficiency or inaccuracy, there should be allegation of contravention of provisions of Sections 5 and 6 of the said Act. In the present case there are no specific allegations in the complaint pertaining to the provisions of Sections 5 and 6. Apart from that the language of Sections 5 and 6 is prohibitory in nature, and therefore, the burden of proof will be on the authority to prove that there was contravention and thereupon to rely on the provisions of Statutory Form-F for filing criminal complaint.??
  1. In the opinion of this Court, if the aforesaid interpretation were to be accepted, the same would render illusory the presumption arising under the proviso to sub-section (3) of section 4 of the PNDT Act. To cast on the prosecution the burden of proving that there was contravention of the provisions of sections 5 and 6 of the PNDT Act is to ask the prosecution to prove that the accused has communicated to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner or that the accused has conducted pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of the foetus. If this be the true nature of the burden resting on the prosecution, no presumption at all need be raised. From the language employed in the statute it is plain that the person conducting ultrasonography on a pregnant woman is required to maintain complete record thereof in the clinic in such manner as may be prescribed. If the prosecution proves that there is any deficiency or inaccuracy found therein, there would be a presumption that the provisions of sections 5 or 6 of the PNDT Act have been contravened and it is for the person conducting such ultrasonography to establish that there is no contravention of the provisions of section 5 or 6 of the Act.
  1. In the light of the aforesaid discussion, the following questions are referred to the Larger Bench for its consideration and opinion:
  1.  
    1. Whether under the provisions of section 28 of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 a Court can take cognizance of an offence under the Act on a compliant made by any officer authorised in this behalf by the Appropriate Authority?
    2. Whether the provisions of the proviso to sub-section (3) of Section 4 of the PNDT Act, require that the complaint should contain specific allegations regarding the contravention of the provisions of sections 5 or 6 of the Act?
    3. Whether the burden lies on the authority to prove that there was contravention of the provisions of sections 5 or 6 of the PNDT Act?
    4. Whether any deficiency or inaccuracy in filing Form-F as required under the statutory provisions is merely a procedural lapse?
  1. The Registry is directed to place this matter before the learned Chief Justice for passing appropriate orders.

[HARSHA DEVANI, J.]

parmar*

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