Dr.Arvind Pal Singh Gambhir vs State Of Punjab And Another on 3 July, 2012

Punjab-Haryana High Court
Dr.Arvind Pal Singh Gambhir vs State Of Punjab And Another on 3 July, 2012

CRM No.M-33595-M of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH

CRM No.M-33595-M of 2008

Date of decision:

Dr.Arvind Pal Singh Gambhir

…Petitioners

Versus

State of Punjab and another

…Respondents

CORAM: HON’BLE Ms. JUSTICE RITU BAHRI

Present: Mr.B.S.Sobti, Advocate,

for the petitioner.

Mr. P.S.Bajwa, DAG, Punjab.

RITU BAHRI, J. (Oral)

The petitioner is seeking quashing of FIR No.118 dated 31.7.2008 registered under Sections 18, 25 and 26 of Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short `the Act’) at Police Station Sarabha Nagar, Ludhana and the proceedings consequential thereto are being sought.

The impugned FIR was registered on an application of Dr.Reena Sandhu, DFWO, Ludhiana. This application was addressed to the SHO, Police Station, Sarabha Nagar, Ludhiana to register a case. As per the application, on a secret information received by the Civil Surgeon, a team comprising of Dr.Gurbinder Kaur and S/N Darshna Sharma were sent to the hospital of the petitioner to investigate a case of illegal M.T.P being attempted at the hospital. .

CRM No.M-33595-M of 2008 2 The statements of the team members were recorded. One patient was present there for examination and on internal examination, it was found that she was 3 ½ months pregnant and bleeding P/V. The team assumed that there is a sex determination followed by attempted medical termination of pregnancy. Thereafter, ASI received a message that a dispute was going on in Jatinder Gambhir Hospital, then he alongwith Sukhwinder Singh HC, HC Kulwinder Singh and SPO Gurjeet Singh went to the hospital. Dr.Reena Sandhu produced the complaint and an offence under Sections 25 and 26 of P.N.D.T. Act was made out against Dr.Jatinder Gambhir and Dr.Arbind Pal Singh Gambhir. The FIR was registered on account of an application by Dr.Reena Sandhu. Quashing of FIR is being sought on the basis of following grounds:-

(i) No offence under Section 18 of the Act is made out as the initial registration certificate, Annexure P-2 was given to the hospital by the appropriate authority while exercising power under Section 19(i) of the Act on 4.7.2001. This registration was subsequently renewed vide Annexure P-3 on 30.06.2006. This Centre has been approved for conducting medical termination of pregnancy as per certificate of approvate, Annexure P-4 issued by the Director, Health Services Family Welfare, Punjab on 21.7.2004.

(ii) No offence under Sections 25 and 26 of the Act is made out.

CRM No.M-33595-M of 2008 3 (iii) As per Section 28 of the Act, for non-compliance of the Act, the remedy available is to file a complaint. There is no provisions that the police can take cognizance of the offence and investigate the complaint.

On notice, reply has been filed by respondent No.1. As per reply, the facts relating to setting up of the institute, registration and renewal of the registration are not disputed. Necessary certificate of approval to medically terminate pregnancy as per Medical Termination of Pregnancy Act, 1971 has been granted to the petitioner’s hospital on 21.7.2004. Pursuant to written complaint submitted by respondent No.2 to ASI Mehtab Singh, the Civil Surgeon, Ludhiana, constituted a team of four members comprising of D.F.W.O. Ludhiana, Dr. Yashpal Mehta, DMC PHSC, Ludhiana, Dr.Gurbinder Kaur, EMO, Civil Hospital, Ludhiana and Smt.Darshna Sharma, Staff Nurse, Civil Hospital, Ludhiana. The team was authorised to investigate the record and search the premises of petitioner’s hospital and they were authorised to take appropriate action, as per law, if any violation of the Act and MTP Act is detected. The statement of Dr.Gurbinder Kaur, EMO was recorded to the effect that she was a patient Jasvir Kaur lying on the table and having bleeding through vagina. As they entered the examination room, the petitioner left the room from other door and he was wearing gloves at that time. On taking the history of the patient, she disclosed that she has already two children and last week she got the ultrasound done in the same hospital and since it was again a female child, they have come for the termination of the same. She further CRM No.M-33595-M of 2008 4 stated that the petitioner broke the glass of the door and tried to flee away the patient. The petitioner was arrested on the spot. During the course of investigation, number of efforts were made to associate Jasvir Kaur and her husband Lakhbir Singh to join the investigation but they did not come forward to join the investigation. As per the statement of Surjit Singh, Sweeper, has been recorded to the effect that the petitioner and his wife do the MTP and wife of the petitioner takes the foetus with her and destroyed the same. However, he was not aware the place, where she destroyed the foetus. Vide notification dated 2.11.1997, Civil Surgeons of all the the Districts have been appointed for the effective implementation of the Act. Although, the petitioner’s hospital is registered for tests yet they determine the sex, which is in contravention of the Act. After determining the sex, they had terminated the pregnancy when it was found to be a female child. No ground for quashing at this stage is made out as the investigating is still going on. As per reply given by respondent No.2, Dr. Rina Sandhu, District Family Welfare Officer, the offence committed under the Act is cognizable in terms of Section 27 of the Act. As per Section 27 of the Act, the offence is cognizable, non-bailable and non- compoundable. As per Section 2(c) of Cr.P.C., the cognizable offence includes an offence for which the police officer in accordance with first schedule can make an arrest without warrant. The Act was amended in the year 2002. Section 27 of the Act has not been deleted from the principal act.

Heard counsel for the parties.

CRM No.M-33595-M of 2008 5 As per Section 28 of the Act, no court shall take cognizance of an offender under this Act except on a complaint made by the appropriate authority. As per Section 28 (1) (b) of the Act, a person who has given notice of not less than 15 days in the manner prescribed to the appropriate authority of the alleged offence on presentation of complaint by a person, a direction can be given by the Court to make available copies of the relevant record to such a person as per Section 28(3) of the Act. This ground is liable to be rejected on the ground that as per Section 27 of the Act, every offence under the Act is cognizable, non-bailable and non compoundable. Section 27 of the Act is reproduced as under:_ “Offence to be cognizable, non-bailable and non- compoundable-every offence under this Act shall be cognizable, non-bailable and non-compoundable.” A plain reading of Section 27 of the Act makes out that the police has powers to arrest a person who is found to be indulging in an offence is committed under this Act.

Section 2(c) of Cr.P.C. is as under:-

(c)”cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

As per Section 2(c) of Cr. P.C. the cognizable offence gives power to the police to arrest a person without warrant. There is no bar or prohibition at the stage of investigation. CRM No.M-33595-M of 2008 6 In the facts of the present case, the FIR was registered on a complaint made by Dr. Reena Sandhu, DFWO, Ludhiana. On a secret information received by the Civil Surgeon, a team comprising of Dr.Gurbinder Kaur and S/N Darshna Sharma was sent to the hospital of the petitioner to investigate a case of illegal M.T.P being .

conducted at the hospital. Vide notification dated 2.11.1997, Civil Surgeons of all the Districts have been appointed for the effective implementation of the Act. The constitution of the team of Civil Surgeons was pursuant to the notification dated 2.11.1997 and the police was bound to investigate the same when an application was made by Dr.Reena Sandhu, DFWO, Ludhiana.

The provisions of the Act was amended in the year 2002 (14 of 2003) with effect from 14.2.2004. Prior to that date only determination of sex by ultrasonography etc was prohibited, but after the said amendment, any step taken by a specialist or any other person to cause or even to allow to be caused selection of sex before or after conception was made punishable. Section 27 of the Act was not amended and therefore, the police investigation as per Section 27 of the Act is not prohibited. A Division Bench of Allahabad High Court in Dr.Varsha Gautam vs. State of U.P. & others 2006(5) ALJ 221 had an occasion to consider the provisions of the Act and has held that the police has every right to investigate any offence committed violation of the provisions of the Act and no case is made out to quash the proceedings in an FIR at the stage of investigation. The aims and objects of the Act are reproduced as under:- “Amendment Act 14 of 2003-Statement of Objects and CRM No.M-33595-M of 2008 7 Reasons-The pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 seeks to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. During recent years, certain inadequacies and practical difficulties in the administration of the said Act.

2. The pre-natal diagnostic techniques like amniocentests and sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked disorders, etc. However, the amniocentesis and sonography are being used on a large scale to detect the sex of the foetus and to terminate the pregnancy of the unborn child if found to be female. Techniques are also being developed to select the sex of child before, conception. These practices and techniques are considered discriminatory to the female sex and not conducive to the dignity of the women.

3. The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male- female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of the society, especially of the women and children. It is, therefore, necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic CRM No.M-33595-M of 2008 8 techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society.

4. Accordingly, it is proposed to amend the aforesaid Act with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended.”

20. We also observed that admittedly there was no registration of the petitioner’s clinic under the Act, which amounts to an offence under Section 3(1) of the Act….”

Hon’ble the Supreme Court in `Centre for Enquiry Into Health and Allied Themes (CEHAT) and others v. Union of India and others‘, AIR 2003 SC 3309 has issued directions for effective implementation of the Act.

Scene from all the angles, registration of an FIR and subsequent investigation calls for no interference by this Court and does not require quashing at this stage. Accordingly, the present petition stands dismissed.

(RITU BAHRI)

mks JUDGE

 

CRM-M_23040_2012_10_07_2013_FINAL_ORDER

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