Dr. Kalpana Pundlik Jamdade Versus The State of Maharashtra And Another

ordjud (2)

Bombay High Court
1 crwp 406/2012 group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.406 of 2012
Dr. Kalpana Pundlik Jamdade. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–
With
Criminal Writ Petition No.407 of 2012
Dr. Sheela W/o Subhash Rachewad. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–

Criminal Writ Petition No.408 of 2012
Dr. Quamar Sultana W/o Mohd. Khursheed
Ahmed. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. S.K.Tambe, Additional Public Prosecutor, for
respondents.
——–
Criminal Writ Petition No.409 of 2011
Dr. Sudhir Mahadeorao Nimkar. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–
CORAM: T.V. NALAWADE, J.
DATE : 18th NOVEMBER 2014

ORDER:
1) All the petitions are filed under the provisions
of Articles 226 and 227 of the Constitution of India and
section 482 of the Code of Criminal Procedure. The
proceedings are in respect of action taken of filing
complaint by the authority created under the provisions of
the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (hereinafter
referred to as “the Act”) and so all the proceedings are
being decided by common order.
2) Complaints are filed against the petitioners by
an officer to whom the authority under the Act has been
given to take action and file complaint for the breach of
the provisions of the Act and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996
framed under the Act (for short, “the Rules”). The matters
are relating to the provisions of Sections 4 (3), 5,6, 23, 29
and 30 of the Act. The learned Judicial Magistrate has
made order of issue process in all the complaints. Prayers
are made for setting aside the order of issue process and
also for quashing the proceeding itself. Only one
proceeding i.e. the petitioner in Criminal Writ Petition
No.408/2012 had filed revision against the order of issue
process and the petitioners in other three proceedings
have directly come to this Court.
3) Against the petitioner of first proceeding,
Regular Criminal Case No.636/2011 is pending in the
Court of the Judicial Magistrate, First Class, Nanded. The
petitioner, Dr. Kalpana Jamdade was running Ultra Sound
Clinic and Hospital under the name and style as “Jamdade
Maternity Home at Nanded”. She had registered her Ultra
Sound Clinic under the Act and she was conducting
ultrasonograpghy on pregnant women. There was
information received by the authority that she was
misusing the techniques for determining sex of the foetus.
Inspection was done by the complainant in the presence
of other officers and witnesses of the Sonography Centre.
4) In the hospital of Smt. Jamdade many
discrepancies and irregularities were found and there was
breach of the provisions of the Act and the Rules.
Following discrepancies and irregularities were noticed :-

(i) Record of Form “F” was not available for the period
from June 2009 to September 2010. Attempt was made to
create record of the names of the parties in diary but that
was also not the complete information;
(ii) monthly reports with regard to the cases of the
patients who had come to the Centre were not submitted
to the authority for the period from June 2009 to August
2010;
(iii) declarations of pregnant women were not taken for
the period from July 2009 to September 2010;
Some false reports were submitted and they were for
the months of October 2010, November 2010, April, 2011,
May 2011 and June 2011. For instance when 13 patients
had come there were 10 Forms “F” and there were less
declarations for the month of May 2011. For June there
were 21 declarations but 20 Forms “F”. Many other
discrepancies of serious nature were noticed and they are
mentioned in the complaint. They are not being quoted as
the challenge is not on any ground relating to such
discrepancies. In the petition, it is contended that there
was time till 5th of next month to send the report and in
some cases the discrepancies could have been removed.
It is also contended that some times illiterate women do
not make declaration. In respect of these contentions it
can be said that if the period is considered, the first
contention is not at all acceptable. Further in law such
contention is not acceptable as report is required to be
sent and not any record of Form “F” or declaration. It is
also contention that some columns of Form “F” are
relating to use to invasive technique and as no invasive
technique was used, those columns were not filled. This
contention was also not raised during the arguments but
this Court is considering that point.
5) The main contention in the first proceeding on
which argument was advanced is that the complaint is
not filed by appropriate authority created under the Act
[under section 17(2)] and so the learned Magistrate ought
not to have taken cognizance of the offence. In this regard
there is copy of State Government Notification dated 16-
10-2007. In this Notification some officers are appointed
as Appropriate Authorities for working under the Act for
different areas and the Notification is as under : “PUBLIC HEALTH DEPARTMENT Mantralaya, Mumbai 400 032, dated the 16th October 2007. NOTIFICATION The Pre-conception and Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. No. Prachini, 2007/525/C.R. 133 (Part-Ii)/FW-II,–In exercise of the powers conferred by sub-section (2) of section 17 of the Pre-conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (57 of 1994) and of all other power enabling it in that behalf, the Government Maharashtra hereby appoints the Additional Collectors, Sub-Divisional Officers, Tahsildars, Nayab Tahsildars, Commissioners, Deputy Commissioners and Ward Officers of Municipal Corporations and Chief Officer of Municipal Councils, to be the Appropriate Authorities for the purposes of the said Act, for the areas within their jurisdiction. By order and in the name of the Governor of Maharashtra. SHOMITA BISWAS, Joint Secretary (Family Welfare) to Government.”

6) In the aforesaid regard the respondent is
placing reliance on the order made by the Commissioner
of Nanded Municipal Corporation, copy of which is at
Exhibit “G”.
The order shows that the Assistant Commissioners of the
Corporation were working as Ward Officers of respective
areas of the Corporation. This order was issued on 17th
June 2011 and the action was taken subsequent to the
date of the order by the Assistant Commissioner in all the
first three proceedings. In the first proceeding complaint
was filed on 4-8-2011 and the order of issue process was
also made on the same date.
7) The particulars of breach of the provisions of
the Act and the Rules are given in the reply affidavit by
the complainant. It is the contention the complainant that
his initial appointment was as Tahsildar and he came to
be sent on deputation basis to Corporation and he is
working there as Assistant Commissioner. It is also
contended that, he has been working in the capacity of
Prabhag Adhikari/Ward Officer in the Corporation. It is
contention that there is no separate cadre of Prabhag
Adhikari/Ward officer in this Corporation and so the
Assistant Commissioners are working as Prabhag
Adhikari.
8) In the reply affidavit the respondent has placed
reliance on the cases reported as :
(i) (2008 4 SCC 471 (CBI v. K.M. Sharan);
(ii) (2010) 11 SCC 226 (State of A.P. v. Gourishetty
Mahesh).
This court is discussing the observations made by the
Apex Court in the reported cases at appropriate place. It
is further contended by the complainant that after 10
months of the order of issue process the order is
challenged in the present proceedings and revision ought
to have been filed within the prescribed period of
limitation. It is contended that only to protract the things
such tactics are being played by the petitioners.
9) Criminal Writ Petition No.407/2012 is filed by
Dr. Sheela Rachewad. She runs Ultra Sound Clinic and
Hospital in the name and style as “Shiva Hospital, at
Nanded”. The petitioner has registered ultra sonography
machine. The inspection of the record for the period from
21-5-2010 to 4-8-2011 was done by paying visit on 4-8-
2011 by the complainant. The irregularities which were
found in the first proceeding were also found in the
present case and similar contentions are made in the
petition by this doctor also. Similar reply is given by the
complainant in the reply affidavit. In this proceeding also
cognizance is challenged only on the ground, contention
that the complainant had no power to file the complaint
and the cognizance is bad in law. Against this petitioner
Regular Criminal Case No.660/2011 is pending in the
Court of learned Judicial Magistrate, First Class, Nanded.
10) Criminal Writ Petition No.408/2012 is filed by
Dr. Quamar Sultana who owns and runs ultra sound clinic
and hospital in the name and style as “Neelofar
Sonograph6y Centre, Nanded”. The record of this Centre
for the period of two years ending on 30th June 2011 was
examined by the complainant on 30th June 2011. Similar
irregularities were found. The petitioner had challenged
the order of issue process by filing Criminal Revision
No.106/2011 in the Sessions Court Nanded. The revision
is dismissed. The learned Senior Counsel argued only on
the ground which was argued in the first two proceedings
to challenge the cognizance. One more contention was
made that there is possibility of creation of record of the
authority subsequent to the taking of action. But
apparently there is no force as the order was issued by the
authority on 17-6-2011 and the action was taken on 30-6-
2011.
11) Dr. Sudhir Nimkar has filed Criminal Writ
Petition No.409 of 2011 to challenge the cognizance of the
offence taken against him by the Judicial Magistrate in
Regular Criminal Case No.420/2011. This complaint is
filed by the Tahsildar Nanded. This proceeding is filed on
different grounds and it is contended that there were no
material discrepancies and irregularities in the record.
This doctor owns and runs “Saket Diagnostic Center, at
Nanded”. The record of the period of two years ending on
31-1-2011 was inspected by paying visit on 31-1-2011 by
the authority. In Regular Criminal Case No.420/2011
allegations are made that Dr. Nimkar did not maintain
the record as required under the provisions of the Act
and the Rules. Following irregularities were found which
are mentioned in the complaint :
(i) Forms “F” were not complete and some portion of
the Form F was wrongly filled;
(ii) declaration of pregnant women were not taken.
Form “G” (consent forms) were not maintained in
prescribed format and that way the illegal activities were
concealed;
(iii) copy of the Act and the Rules was not available in
the premises of ultra sound clinic;
(iv) there was non compliance of the provisions of the
Act and the Rules for which action needs to be taken
under the provisions of Section 4(3) and other provisions
as mentioned in the first three proceedings.
12) This Court has gone through the record like
panchanama under which the sonography machine of Dr.
Nimkar was taken over and also the relevant “F” Forms.
There is force in the contentions made in the complaint. In
the reply affidavit there is contention of the complainant
that even complete record was not made available in
respect of two years for which the inspection was made.
13) In all the proceedings submissions were made
by the learned Senior Counsel for the petitioners that the
orders suspending the registration made against them by
the so called Appropriate Authority created under the Act
are set aside either by this Court or the Appellate
Authority and so there was no room for taking cognizance
of the aforesaid offences.
14) In view of the contentions/arguments advanced
by the learned Senior Counsel in the first three
proceedings that the Assistant Commissioner who has
filed the complaint has no power to file the complaint and
the Magistrate has committed error in taking cognizance
of the matter, relevant provisions need to be seen and the
case law developed on these provisions also needs to be
seen. Both the sides have placed reliance on some
reported and unreported cases.
15) To ascertain as to who can file complaint for
offences committed under the Act, the scheme of the Act
needs to be seen. The petitioners want to show that the
order suspending the registration could not sustain in
law and so cognizance of the offence is bad in law and due
to this contention also, it needs to be seen as to whether
there is similarity in the provision made with regard to
the registration of the Centre and with regard to the
taking cognizance of the matter by the Judicial
Magistrate.
16) Statement of Objects and Reasons in respect of
the Act (as amended in 2003) shows that, the Act seeks to
prohibit pre-natal diagnostic techniques for determination
of sex of the foetus leading to female foeticide. The Act is
Central Legislation. In Chapter I of the Act definitions are
given. Central Supervisory Board is created and it is
required to be constituted under the Act by the Central
Government. The rule making power is also kept with the
Central Government. It is the Central Board which is
given power to review and monitor the implementation of
the Act and the Rules and it is also expected to oversee
the performance of the various bodies constituted under
the Act. The State is expected to constitute State Advisory
Board. The State Advisory Board is given power to review
the activities of the Appropriate Authorities functioning in
the State. It is expected to monitor the implementation of
the provisions of the Act and the Rules and it is also
expected to make suitable recommendation to the Central
Board.
17) In Section 2(a) the definition of “Appropriate
Authority” is given and it is as under :- “Appropriate Authority” means the Appropriate Authority appointed under section 17.”
In Section 17(2) and (3) of the Act power of the State
Government to appoint Appropriate Authorities is given
and this portion runs as under :– “17. Appropriate Authority and Advisory Committee: (1) …… (2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide. (3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be, — (a) when appointed for the whole of the State or the Union territory, consisting of the following three members – (i) an officer of or above the rank of the Joint Director of Health and Family Welfare – Chairperson; (ii) an eminent woman representing women’s organization; and, (iii) an officer of Law Department of the State or the Union territory concerned: Provided that it shall be the duty of the State or the Union territory concerned to constitute multimember State or Union territory level appropriate authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prohibition of Misuse) Amendment Act, 2002; Provided further that any vacancy occurring therein shall be filled within three months of the occurrence; (b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be may deem fit. ”
18) The power regarding appointment of
Appropriate Authority given to the State shows that only if
the authority is to work for the whole of the State, the
authority shall be multi-member authority constituted as
per section 17(3) of the Act. If the authorities are created
for different areas, any officer of the State also can be
appointed as Appropriate Authority.
19) The provision of section 17(4) of the Act shows
that the Appropriate Authority has the functions like grant
registration in respect of bodies like Genetic Clinic
(Sonography Centre), investigate complaint against such
centres, to take action for breach of the provisions of the
Act and the Rules against the bodies and this action
includes the action of suspending or cancelling the
registration. Suspension or cancellation of the registration
can be done on the recommendations of the Advisory
Board created under the Act. The Advisory Board consists
of experts and it is also created under section 17 of the
Act.
20) In Section 17-A some other powers of
Appropriate Authority are given and the powers are as
under :– “17-A, Powers of Appropriate Authorities.– The Appropriate Authority shall have the powers in respect of the following matter, namely:- (a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder; (b) production of any document or material object relating to clause (a); (c) issuing search warrant for any place suspected to the indulging in sex selection techniques or pre-natal sex determination; and (d) any other matter which may be prescribed.”
21) In Chapter VI of the Act, procedure for
registration of bodies like Genetic Clinic (sonography
Centres) is given. Procedure for cancellation registration
certificate is also given. It is provided that appeal against
the order of State Appropriate Authorities lies to the
State Government. Thus the functions and powers of the
State Board, the Appropriate Authorities are mentioned
in the Act and it can be said that the Appropriate
Authority has the power to grant registration to such
centre and it can cancel the registration. However, the
Appropriate Authority has other powers like the powers
mentioned in sections 17and 17-A of the Act.
22) In Chapter VII of the act there are provisions
with regard to offences and penalties. Relevant provisions
are sections 27 and 28. Sections 27 and 28 run as under :- “27. Offence to be cognizable, non-bailable and
non-compoundable:- Every offence under this Act shall be cognizable, non-bailable and noncompoundable. “28. Cognizance of offences.– (1) No Court shall take cognizance of an offence under this Act except on a complaint made by – (a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court.
Explanation.– For the purpose of this clause, “person” included a social organization. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section (1), the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant record in its possession to such person.”
23) Provisions of Sections 27 and 28 need to be
read together. The two sections need to be read together
as care needs to be take by the Court to see that the
Appropriate Authority is discharging its functions. So
opportunity needs to be given first to the Appropriate
Authority as provided in the aforesaid sections as the
Appropriate Authority needs to file complaint. These
provisions also show that criminal Court is not bound by
the opinion which may be formed by the Appropriate
Authority in this regard. Even if the Appropriate Authority
has refused to take legal action, filing complaint, the
Court can take cognizance of the offence on the
complaint made by any private person provided that the
private party has followed the procedure given under
section 28(1)(b) of the Act. Further, it is not only the
Appropriate Authority who can file complaint, in view of
the wording of these sections. The provisions show that
any officer authorized in this behalf by the Central or the
State Government as the case may be or any officer
authorised by the Appropriate Authority can file
complaint. Thus, the provision is not that rigid. The
Central or the State Government, as the case may be can
appoint any officer or class of officers to file complaint
and even the Appropriate Authority can authorise any
officer or officers for filing complaint.
24) The provision of section 30(1) of the Act is also
relevant for the present purpose and it runs as under :- “30(1) Power to search and seize records, etc. — (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.”
The aforesaid provisions show that Appropriate Authority
appointed by the State Government can authorise other
officer to make the investigation of the case, to take action
like search and seizure of the record and to file complaint.
From this angle also it can be said that there is no force in
the ground taken by the petitioners. Further, the
complainant was originally appointed as Tahsildar, he was
working on deputation in the Corporation and he was
discharging the duties as Prabhag Adhikari / Ward Officer
(officer mentioned in State Notification) and this
circumstance also cannot be ignored. It will be a matter of
evidence, to prove this contention.

25) Copy of judgment delivered in Writ Petition
No.1637/2013 which was filed by Dr. Smt. Kaplana
Jamdade, petitioner from Criminal Writ Petition
No.406/2012, is produced. This record shows that order
suspending the registration was challenged and this Court
allowed the petition filed by Dr. Smt. Kalpana Jamdade
and held that the Assistant Commissioner was not
Appropriate Authority for taking such action. However,
the Court also observed that the Appropriate Authority
was at liberty to take action in accordance with the
provisions of the Act and the Rules. Special Leave
Petition filed by the complainant against the order made
by this Court is dismissed by the Hon’ble Apex Court.
Similar decision is given in favour of Dr. Smt. Sheela,
petitioner from Criminal Writ Petition No.407/2012 and
Dr. Quamar, petitioner from Criminal Writ petition
No.408/2012. In view of the discussion made about the
provisions of the Act this Court has no hesitation to
observe that the decision given by this Court in favour of
the accused, petitioners, in respect of the action taken of
suspending the registration cannot help them in criminal
cases. This Court has no hesitation to observe that the
complainant from these cases was authorised to take
action under section 30 and also to file complaint under
section 28 of the Act. Thus, no error is committed by the
leaned Magistrate in taking cognizance of the matter and
in issuing process against these accused.

26) In support of the contentions made for the
petitioner from Criminal Writ Petition No.409/2012, a copy
of decision delivered by this Court in Criminal Writ
Petition No.406/2011 is produced. In the said proceeding
this Court (presided over by other Hon’ble Judge) quashed
one criminal case in view of the facts of that case. The
reasoning is given on the basis of the facts of that case
and due to the provisions of the Act, this Court is avoiding
to discuss the reasons given in that proceeding. Similarly,
the facts of other case,Criminal Writ Petition No.206/2013,
decided by other Hon’ble Judge of this Court were
different.
27) So far as the contentions made by the
petitioner from Criminal Writ Petition No.409/2012 are
concerned, similar stand was taken by the petitioner from
Criminal Writ Petition No.680/2012 which is decided by
this Court. Relevant observations at paragraphs 13 to 26
are as under :– “13) For ascertaining as to which record needs to be created and maintained and which columns of the form need to be filled by the owner of the Ultra Sound Clinic and by the persons conducting the procedure, the relevant provisions of the Act and the Rules need to be seen. The relevant provisions of the Act are Section 2(d), (i), (k), Sections 4 and 5. they are as under :-
“2. Definitions.– In this Act, unless the context
otherwise requires, –

(d) “Genetic Clinic” means a clinic, institute,
hospital, nursing home or any place, by
whatever name called, which is used for
conducting pre-natal diagnostic procedures.
Explanation.– For the purposes of this clause,
“Genetic Clinic” includes a vehicle, where
ultrasound machine or imaging machine or
scanner or other equipment capable of
determining sex of the foetus or a portable
equipment which has the potential for
detection of sex during pregnancy or selection
of sex before conception, is used.”
“(i) “pre-natal diagnostic procedures” means
all gyneacological or obstetrical or medical
procedures such as ultrasonography, foetoscopy,
taking or removing samples of amniotic fluid,
chorionic villi, embryo blood or any other tissue
or fluid of a man, or of a woman before or after
conception, for being sent to a Genetic
Laboratory or Genetic Clinic for conducting any
type of analysis or pre-natal diagnostic tests for
selection of sex before or after conception.”
“(k) “pre-natal diagnostic test” means
ultrasonography or any test or analysis of
amniotic fluid, chorionic villi, blood or any tissue
or fluid of a pregnant woman or conceptus
conducted to detect genetic or metabolic
disorders or chromosomal abnormalities or
congenital anomalies or haemoglobinopathies or
sex-linked diseases.”
“4. Regulation of pre-natal diagnostic
techniques.– On and from the commencement
of this Act–
(1) no place including a registered Genetic
Counselling Centre or Genetic Laboratory or
Genetic Clinic shall be used or caused to be
used by any person for conducting pre-natal
diagnostic techniques except for the purposes
specified in clause (2) and after satisfying any
of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall
be conducted except for the purposes of
detection of any of the following abnormalities,
namely:-

(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) heamoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases
as may be specified by the Central
Supervisory Board;
(3) no pre-natal diagnostic technique 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:-
(i) age of the pregnant woman is above
thirty-five years;
(ii) the pregnant woman has undergone two
or more spontaneous abortions or foetal
loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as, drugs,
radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a
family history of mental retardation or physical
deformities such as, spasticity or any other
genetic disease;
(v) 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 provisions of section
5 or section 6 unless contrary is proved by the
person conducting such ultrasonography;
(4) no person including a relative or husband
of the pregnant woman shall seek or encourage
the conduct of any pre-natal diagnostic
techniques on her except for the purposes
specified in clause (2);
(5) no person including a relative or
husband of a woman shall seek or encourage the
conduct of any sex-selection technique on her or
him or both.”
“5. Written consent of pregnant woman
and prohibition of communicating the sex
of foetus.– (1) No person referred to in clause
(2) of section 3 shall conduct the pre-natal
diagnostic procedures unless–
(a) he has explained all known side and after
effects of such procedures to the pregnant
woman concerned;
(b) he has obtained in the prescribed form
her written consent to undergo such procedures
in the language which she understands; and
(c) a copy of her written consent obtained
under clause (b) is given to the pregnant woman.
(2) No person including the person
conducting pre-natal diagnostic procedures shall
communicate 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.” 14) The learned counsel for petitioner No.2 of first proceeding submitted that as he is not the owner of the ultrasound clinic, the provisions with regard to creation and maintenance of the aforesaid record cannot be used against him. For considering this defence, the aforesaid provisions [viz. section 5(1)(a)] and some more rules need to be considered. In rule 2(b) of the Rules, definition of “employee” is given as under :-
“(b) “employee” means a person working in or
employed by a Genetic Counseling Centre, a
Genetic Laboratory or a Genetic Clinic or an
Ultra Sound Clinic or Imaging Centre, and
includes those working on part-time,
contractual, consultancy, honorary or on any
other basis.”. In rule 4 nature of undertaking required to be given by the person applying for registration is given. Reading of this rule shows that such certificate is to be used only as per the contents of the certificate. Rule 9 provides for maintenance and preservation of record in respect of persons who come for diagnosis and this record is to be created to enable to identify the person who had come to the centre for sonography. Rule 9(4) shows that Form “F” need to be filled and it runs as under :-
“9. Maintenance and preservation of
records.–
(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.” Rule 9 (6) runs as under :–
“(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
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.” Rule 9 (8) runs as under :-
“(8) Every Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic, Ultrasound
Clinic and Imaging Centres shall send a
complete report in respect of all preconception or pregnancy related procedures /
techniques / tests conducted by them in
respect of each month by 5 th day of the
following month to the concerned Appropriate
Authority.”

15) Submission was made that record can be created before 5th of next month as report needs to be sent during this period and so there was time to correct the things. In view of the aforesaid sections and rules the record needs to be created immediately at Ultra Sound Clinic and it needs to be completed before leaving of the patient with the report regarding diagnosis though report to authority needs to be sent before 5th of next month. Thus, the provision of Rule 9(8) of the Rules cannot be used as the defence in such a case.

16) Another submission is made that as computerized record was maintained, rule 9 (7) needs to be used. This rule shows that when there is computerized record, printed copy is to be taken and preserved after authentication by the person responsible for such record. Such authentication and signature are missing.

17) Rule 10(1) and 10(1-A) are as under :-
“10. Conditions for conducting pre-natal
diagnostic procedure.– (1) Before conducting
preimplanatation genetic diagnosis, or any prenatal diagnostic technique/test/procedure such
as amniocentesis, chorionic villi biopsy,
foetoscopy, foetal skin or organ biopsy or
cordocentesis, a written consent, as specified in
Form G, in a language the person undergoing
such procedure understands, shall be obtained
from her/him.
“(10-A) Any person conducting ultrasonography/
image scanning on a 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
ultrsonography/ image scanning declare that she
does not want to know the sex of her foetus.”

18) These two rules show that declaration form needs to be obtained if pre-natal diagnostic technique, procedure is to be conducted. The taking of such declaration is necessary when there is no invasive procedure. In the present case Form “F” is shown to be prepared by accused as per section 4(3) and rule 9(4) and Rule 10(1-A). In this form there is no printed declaration of pregnant woman as required by Rule 10(1-A). It appears that separate declaration and consent form which is also titled as Form “F” is maintained. A book of the form is seen by this Court. Even if this record is considered and accepted as annexure to the Form “F” maintained in the register, they need to be complete in every respect including for the purpose of declaration. Under the law, such declaration needs to be made in Form “F” itself.

19) The wording of section 5 shows the procedure that needs to be followed for conducting of pre-natal diagnosis. However in section 5(1)(b) the term “prescribed” is used in respect of consent form of pregnant woman. In rule 10 and in Form “G” prepared under rule 10 it is made clear that this form is applicable to invasive techniques. In view of clause (c) of section 5 it needs to be presumed that written consent of pregnant woman is necessary when invasive procedure needs to be used. When no invasive procedure is to be used and when it is to be done without invasive procedure by using ultra sound machine, only declaration as required in rule 10(1-A) as mentioned in Form “F” of section 4(3) needs to be obtained from the pregnant woman. Submissions made in this regard by the learned counsel need to be accepted. However, the record needs to be seen to ascertain as to whether at least the declaration was complete as per the requirement. These provisions also show that person using the procedure needs to give declaration and so he is also involved in creation and maintenance of record.
For interpretation of the provisions of the Act and the Rules, learned counsel for the petitioners has placed reliance on following four cases decided by this Court (Aurangabad Bench) :–
(1) Criminal Writ Petition No.232/2012
(Satyaprem v. the State of Maharashtra),
decided on 11 th September 2014;
(2) Criminal Application No.3500/2011 (Dr.
Alka Gite v. The State of Maharashtra),
decided on 11 th May 2012;
(3) Criminal Application No.3044/2012 (Dr.
Pratidnya Jayesh Shinde v. Appropriate
Authority), decided on 4th December 2013;
and,
(4) Criminal Application No.2065/2012 (Dr.
Pradip Prabhuappa Dama v. The State of
Maharashtra), decided on 28th January 2014.

21) In the first case, the Court considered Form “F” which needs to be used from 31 st January 2014 and observed that there are separate requirements in respect of maintenance of record for Ultrasound Clinic not using invasive technique and genetic test using invasive procedure. The Court further found that the allegations were very vague in nature and gave relief to the accused. In the second case there were referral letters. This Court held that flimsy mistakes can be ignored and relief was given to the accused in the second case also. In the third case there was allegation that the record was not properly maintained. As the allegations were found baseless, relief was given to the accused. In the last case, this Court held that there was no allegation against the applicant and the shortcoming or deficiency in maintaining the record could not be attributed to him. This Court is avoiding to discuss more the reasons given. The relevant provisions which are quoted above, were not considered and discussed.
For the State, the learned Additional Public Prosecutor has placed reliance on the following cases :–
(1) 2013(2) Bom. C.R. 351 (Sujit Govind Dange
v. State of Maharashtra);
(2) 2009 Cri.L.J. 721 (Suo Motu v. State of
Gujarat);
(3) Criminal Application No.4513/2012 (Dr. Harsha
Patil v. The State of Maharashtra) decided by
this Court (Aurangabad Bench) on 4 th
December 2013;
(4) 2011 (4) Bom. C.R. 293 (Suhasini Umesh
Karanjkar v. Kolhapur Municipal
Corporation);
(5) Criminal Application No.3966/2013 (Dr.
Nirmala Bajaj v. The State of
Maharashtra), decided by this Court
(Aurangabad Bench) on 9th Mary 2014; and,
(6) Criminal Writ Petition No.5 of 2013 (Dr.
Vinayak Khedkar v. The State of
Maharashtra), decided by this Court
(Aurangabad Bench) on 9th May 2014. 23) In the first case, the Division Bench of this Court has discussed the provisions of sections 4,5,6 and 20 of the Act and it is laid own that if there is deficiency or inaccuracy in the record, that amounts to contravention of sections 5 and 6 unless contrary is proved by the doctor / person conducting ultrasonography. Thus the defence of the accused in such case can be considered during trial. The Court has made it clear that the Act does not distinguish discrepancy as minor or major and in view of the object behind the provisions they need to be strictly complied with. In the second case, the Full Bench of Gujarat High Court has made similar observations and has laid down that such defence can be considered only during trial. In the fourth case the Full Bench of the Bombay High Court at paragraphs 14 and 24 has made similar observations. It is made clear by the Full Bench that if there is contravention in respect of maintenance of record and the persons conducting the process do not maintain necessary record complete in every respect that contravention amounts to offence. Though different point was involved in the matter pending before the Full Bench, the relevant provisions are discussed by the Full Bench even from the angle of commission of offence. In the last two proceedings, this Court refused to quash the proceeding by relying on the observations made by the Division Bench of this Court and the Full Bench of the Gujarat High Court, cited supra.

24) While interpreting the provisions and considering the prayers made in the proceedings like present one, the object behind the special legislature needs to be kept in mind. The object is to prohibit use of pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. Pre-natal diagnostics techniques like sonography are useful for detection of sex. They can be used also for detecting disorders in the foetus. In view of the possibility of use of this technique for determination of sex and then for termination of pregnancy of unborn child, the aforesaid provisions are made. Sale of ultrasound machines to persons not registered under the Act (rule 3-A of the Rules) is prohibited. The study made by Population Research Centre Pune (PRC) shows that most of the bodies like Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic, Imaging Centre are registered in Maharashtra and there are maximum number of sonography Centers in Maharashtra. More than 60% of such bodies are ultrasound clinics. The studies have revealed that the pre-natal diagnostic techniques are easily available in sonography centres for sex determination. The cases registered in Maharashtra show that these centers are being misused. Due to misuse of the centres the sex ratio has come down alarmingly in Marathwada region and by the end of year 2012 the ratio of female child birth had got down below 800 in most of the Districts of Marathwada. Only when the authority started making inspection and the cases were registered for causing illegal abortion, the female birth ratio improved and it has now crossed 900 in this region.
When there is object like the object behind the present Act, the provisions need to be strictly implemented. It can be said that no sufficient powers are with the authority and powers need to be given to the authority to do sample checking of such cases to ascertain as to whether pregnant woman opted to undergo abortion and then, the Act will become more effective.

26) In view of the discussion made above, this Court has no hesitation to observe that for ensuring effective implementation of the aforesaid provisions strict compliance of the aforesaid provisions needs to be made. Thumb impressions need to be attested as it involves identification of pregnant women. The declaration form needs to be signed by the doctor conducting procedure also as the things are required to be explained to pregnant woman by the doctor. Referral slips need to be maintained and preserved and unless it is self referred case the person conducting processes and the persons who own the Centre need to insist for production of referral slip and if it not done it needs to be presumed that there is contravention of the provisions. Blank pages of forms cannot be kept in the book as it gives opportunity for creation of record subsequently. If record is not created and maintained as per aforesaid provisions, the Court has to go with the presumption that there is contravention of the provisions and the offence is committed unless the accused rebuts the presumption. In view of the facts of both the cases this Court has no hesitation to hold that the Magistrate has not committed error in ordering issuance of process. Thus there is no possibility of quashing of the proceedings filed against the applicants.”
28) In view of the facts of the present case and the
observations which are quoted above, this Court has no
hesitation to hold that the learned Judicial Magistrate has
not committed any error in making order of issue process
against the petitioner from Criminal Writ Petition No.409
of 2012 also. The other submissions made by the learned
Senior Counsel for the petitioners that the order of issue
process does not contain reasons cannot be accepted in
matters like the present one. Reliance was placed on
some observations made by the apex Court in the case
reported as (2013) 4 SCC 505 (GHCL Employees Stock
Option Trust v. India Infoline Ltd.). The facts of this case
were different and it was necessary to ascertain as to
whether dispute was of civil nature. In the present case
the complaints are filed by public servant under the Act
which has specific object behind the provisions. In the
order of issue process relevant provisions of the Act are
mentioned. The allegations made in the complaint and the
record discussed shows that no error is committed in
making order of issue process.
29) Learned Additional Public Prosecutor has
placed reliance on reported cases as (2008) 4 SCC 471 (CBI v. K.M. Sharan) and (2010) 11 SCC 226 (State of A.P. v. Gourishetty Mahesh), cited supra. In these cases the Apex
Court has discussed the scope of powers of this Court
under section 482 of the Criminal Procedure Code. It
cannot be disputed that the acceptability of the material
to fasten culpability on accused is a matter of trial and
whether the matter in existence would be sufficient for
holding accused guilty or not also needs to be considered
only at the time of trial. If the material allegations on their
face value would prima facie constitute an offence, for
making out a case against the accused, the matter needs
to be left with the trial Court and this Court is not
expected to use the powers given under Section 482 of the
Cr.P.C. This Court is also not expected to use/exercise
extraordinary powers.
30) In the result, all the writ petitions stand
dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
::: Downloaded on – 04/12/2014 19:12:23 :::

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Author: savedaughters19

This is a coverage of my struggles to save my daughters.I am thank full to my parents not only for Not killing me ,but also helping me save my daughters... My dream- A big shelter house for women who want to give birth to their daughters and raise them up with dignity and self respect , but have to fight their own families to do so. Will have medical facilities and facilities for legal aid. will have training centers for vocational courses so that they can stand up on their own two feet and stop the dependency on their husbands for finances, A child care center run and managed by the inmates, A kitchen and a vegetable farm run and managed by the inmates. At present only a dream.... But with grace of God will become a reality. God will show the way and means to achieve the dream.

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