Dr Niten Seth Vs State of NCT of Delhi & others

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NitenSeth-Ammended Petition reply

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL MISC CASE NO 731 OF 2012.

In the matter of

Dr. Niten Seth                                             …Petitioner

Versus

State NCT of Delhi and Another                     …Respondents

 

INDEX

1. Date Wise Events  
2. Reply to the Application for amendment in the writ petition Crl.M.A no  
3. Reply to the Amended Petition Crl.M.C. 731/2012  
4. Annexure D-1 – USG report dated 28/04/2005  
5. Annexure-D2- complaint dt19 April 2008.  
6. Annexure D-3- email from Central P.N.D.T dated 08/05/2008  
7. Annexure D-4- Report of raid dated 03  June 2008  
8. Annexure D-5- Letter from Central P.N.D.T deptt dated 14 Nov 08  
9. Annexure D-6 Additional affidavit filed by the co-accused Dr Harsh Mahajan in Crl.M.C no 3128/2011  

 

                                               

Delhi                                                          Respondent No 2

                                                                                                                                       Through

                                                                                     

Dated                                                        Counsel

 

 

 

 

 

 

 

 

 

BRIEF SYNOPSIS/ LIST OF DATES AND TRUE FACTS OF THE PRESENT MATTER ARE SUMMARIZED AS UNDER

The Respondent No 2 is a doctor and belongs to a well-reputed family and the father of the Respondent No 2 is a well-known and renowned Orthopaedic Surgeon and her mother has retired as Additional Director from the Central Health Services, Government of India.

28thNov 2004 The Respondent no 2 got married as per Hindu rites and ceremonies on 28.11.2004 to Dr Kamal Khurana (Accused no 4, in her complaint dated 22/11/08 in court of Chief Metropolitan Magistrate, hence after mentioned as “Complaint”). The Respondent no 2 was subjected to cruelty and violence by her ‘husband and in laws on various counts. However, the details of the cruel behaviour are not set out in the present reply as they are already detailed in the various complaints filed by the Respondent no 2 and which are annexed with the Petition as well the present affidavit of the Respondent no 2.
05 Feb 2005 Respondent no 2 came to know that she has conceived
26 Feb 2005 It was revealed to the Respondent no 2 and husband and in-laws that it is a twin pregnancy. The nightmare of the Respondent no 2 became worst when it transpired that the Respondent no 2 was carrying twin babies during the pregnancy and after that her in-laws started pressurizing the Respondent no 2 to go for the sex determination in order to know whether foetuses were male or female.
27April 2005 That when the Respondent no 2 refused to have sex determination a conspiracy was hatched between the accused persons to get the sex determination of the foetuses. The in-laws of the Respondent no 2 were well aware of the fact that the Respondent no 2 was allergic to egg and whenever Respondent no 2 eats egg, she develops acute abdominal pain and vomiting. In order to fulfil their nefarious designs the brother-in-law of the Respondent no 2 brought a cake on 27.4.05 at about 10-11 p.m. in the night, which was laced with the eggs as, they were aware that the Respondent no 2 was fond of the cakes. The Respondent no 2 was given the said cake to be consumed by her and it resulted in acute abdominal pain with vomiting to the Respondent no 2
28 April 2005

(Annexure D1 of the reply to the original Petition )

Respondent no 2 was then taken to Jaipur Golden Hospital. It is relevant to mention here that Respondent no 2 made several requests of the husband and other in laws, that if at all she has to be taken to any hospital, then she should be taken to Sir Ganga Ram Hospital, as she was undergoing Anti Natal treatment there. However, her requests were brushed aside.

She was taken to Jaipur Golden Hospital casualty.

9:34 a.m. – the Respondent no 2 was admitted to the labor room despite the fact that she was only 16 weeks pregnant. The consent for the admission and treatment was not taken from the Respondent no 2 despite the fact that she was conscious and in a position to give informed consent. The records show that the heart sounds of both the foetuses were normal at the time of admission and during her stay in Jaipur Golden Hospital, clearly implying that the foetuses remained unaffected by the allergy.

10:00 a.m. – The doctor’s notes reveal that the Respondent no 2 was already feeling better by then.  The foetal heart sounds noted at this time were also normal.

12:30 noon – The treating gynaecologist Dr S.K. Basu was re-informed about the past history of pyelonephritis (acute infection of the kidneys) with recurrent U.T.I.  The bare perusal of the records show that the gynaecologist ordered KUB ultrasound only at around 12:30 p.m. after taking note of past history of pyelonephritis, by when the Respondent no. 2 was already feeling better. The complete admission case records are annexed with the reply to the original petition and marked as ANNEXURE D-1.

The Respondent no 2 was subjected to foetal ultrasound under the disguise of a K.U.B ultrasound, without the consent and the knowledge of the Respondent no 2 by the Petitioner Radiologist

28April 2005 to 18 May 2005 After the ultrasonography was done on the Respondent no 2 and it was revealed that the foetuses were females, the behaviour of the husband and other in-laws of the Respondent no 2 deteriorated further. Thenceforth she was pressurized for an abortion, which she resisted. In fact, she was subjected to gross physical and mental torture, so that somehow an abortion takes place. It is submitted that till this time the answering respondent was not aware as to from where have the in-laws and the husband of the answering respondent got to know about the foetuses being female and till the time they never admitted having such knowledge.
18 May 2005 The Respondent no 2 was abused following which she developed leaking and pain abdomen. Accused no 4 and 5 denied her medical care and locked her up in the room with an intention to induce abortion.
19 May 2005 Somehow Respondent no 2 managed to contact her father. And her father immediately contacted the accused no 4 and insisted on shifting her to nursing home.  After the discharge from Nursing home, Respondent no 2 shifted to her parental home for the remaining duration of pregnancy to save her twin babies (foetuses) and self.
6th July 2005

(Annexure D2. of the reply to the original Petition)

 

Respondent no 2 made a complaint to Police stating events in a chronological sequence from marriage conception  pressures for sex determination pressures to abort  attempt to abort and  threat to life Respondent no 2 shifts to parental home to save her life and babies (foetuses) .

The complaint is annexed with the reply to the original petition as Annexure D-2.

11th Aug 2005 Amidst all these tortures and brazen attempts to kill the female foetuses, the Respondent no 2 gave birth to twin daughters on 11.8.2005 at Sir Ganga Ram Hospital, and all the expenses were borne by the family of the Respondent no 2.
Feb/March 2006 The Husband of the Respondent no 2 accepted getting sex determination done by him and his family did not disclose the place where it was done. Therefore the Respondent no 2 had although definite knowledge of being subjected to sex determination test only in month of Feb /March 2006, but she did not have any knowledge of the place where sex determination was done.
12 Mar 2006

(Annexure P-7 of the original Petition)

Just after attaining knowledge of being subjected to sex determination test got done by Husband and in laws, Respondent no 2 filed a complaint to the S.H.O. Janakpuri stating that “I had repeated ultrasounds during pregnancy and from somewhere my in-laws came to know I am carrying female babies
9 June 2006

(Annexure –P-8 of  the original Petition)

 

The Respondent no 2 filed a complaint to D.C.P, Crime Against Women Cell outlining the chronological sequence of events including as

Then they came to know that I am carrying twin babies. My mother-in-law started demanding sex determination of the babies. I have a strong suspicion that they got to know about the sex of the babies, because mother in law started demanding that I get one of the babies killed in uterus. My husband asked for D.N.A. testing of the babies saying that it is written in his horoscope that he would have only sons. He also asked me to get an M.T.P. done or take a divorce.”  (Annexure –P-8 of  the original Petition)

16June 2006

(Annexure D3 of  the reply to original Petition)

An agreement was signed by the husband and in-laws of the Respondent no 2 in which it is clearly admitted that ” Dr Mitu will not be pressurized for conception to bear sons” and “Dr Mitu will not be asked or forced to go for sex determination of the foetus, if any or sex selective abortion in future by Dr Kamal or anyone from his family.” This Agreement is annexed along with this reply and marked as (Annexure D3 of  the reply to original Petition)
1 Jan 2008

(Annexure D4 of  the reply to original Petition)

Respondent no 2 made a complaint through email to Mrs Reny Jacob, member Delhi Commission for Women stating that “Then we came to know that I am carrying twin babies. Then my mother in law started demanding sex determination. They got that done by force. Then they started demanding that I get an M.T.P. My mother in law asked me many times to at least get one child killed in uterus. I was kept without food and water. My husband was totally ignoring me and was indulging in watching Pornography all the time. When I developed bleeding and threatened abortion, I was not even allowed to call up my parents for medical help. My mother in law told me that daughters would be a big burden on them, and that I should give one of them up for adoption. Or get them aborted, or at least one of them killed“. The said complaint is annexed with this affidavit and marked as Annexure D-4 of the reply to original Petition.
Feb/ March 2008  When Respondent no 2 came across the papers of ultrasound done at Jaipur Golden Hospital dated 28.04.2005, the Respondent no 2 got shocked to see that under the disguise of KUB ultrasound, full fetal ultrasound had been done by the petitioner without the consent and knowledge of the Respondent no 2. The report has been annexed by the respondent no 2 as Annexure D-1.

The bare perusal of the said report clearly shows that :

i.           The petitioner conducted fetal ultrasound instead of Kidney Ureter Bladder (KUB) ultrasound, which was recommended by the gynaecologist. (Referral report of Gynaecologist is attached as part of the case records with the reply to the original petition and marked as Annexure D-1)

ii.           The said fetal ultrasound was done even though it was neither required nor recommended by the gynaecologist.

iii.           It was done without the consent and the knowledge of the Respondent No 2.

iv.           Even though it was imperative that declaration be given by the Petitioner on every report of ultrasonography/ image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to anybody, it was not made.

v.           Evidently, no form F was filled up, which is mandatory under the Act. The said fact can be safely gathered from the reply dated 06/06/08 given by Jaipur Golden Hospital, to the show cause notice by National Inspection and Monitoring Committee, wherein the Hospital has accepted that “form F of Dr Mitu Khurana is not traceable while assuring that such kind of lapse will not be repeated in future”. A copy of the same is annexed with reply to original petition and is marked as Annexure D-5.

vi.           The Petitioner is deliberately misleading this Hon`ble Court by stating that form F and other documents of the Respondent No 2 were not maintained, as they were not required to do so beyond a period of two years. Hence, they are falsely implying and trying to make this Hon`ble Court believe that though the relevant records including form F were there but the same was weeded out only after 2 years. This is the grossest misrepresentation and a brazen lie.

vii.        The list of Form F for the month of April 2005 sent to the Appropriate Authority on 3rd May 2005, shows that form F of 103 pregnant women who had undergone antenatal ultrasound in Jaipur Golden Hospital were sent to the Appropriate Authority. This list does not mention the Respondent No 2`s name, which itself shows that Form F in respect of the Respondent No 2 was never filled up. (List of antenatal ultrasounds done in April 2005 in Jaipur Golden Hospital, as submitted to Appropriate Authorities in May 2005 is annexed with reply to original Petition and is marked as Annexure D-6).

10 April 2008 (Annexure D-7 of the reply to the original Petition ) 

 

The Respondent no 2 wrote a complaint to various authorities including National Commission for Women and Health Minister, explaining about the deception and requesting an enquiry into the matter, with assurance of complete co-operation by Respondent no 2 in same. This complaint also mentions the Foetal ultrasound done under deception, without the knowledge and the consent of the Respondent no 2. The Respondent no 2 has requested the authorities to take appropriate legal action against the culprits.
19 April 2008.

Annexure-D2

The Respondent no 2 filed a complaint with ACP, crime against women cell mentioning about the deceitfully conducted ultrasound and requested the authorities to take necessary action on her complaint.
08 May 2008

(Annexure D-3)

The Respondent no 2 received an email from central PNDT department, Nirman Bhawan informing her address of the Appropriate Authority to whom she had to file complaint under the PC-PNDT Act.
9 May 2008

(Annexure P-6 with the original petition)

When, the Respondent no 2 did not receive any reply/information on the complaint to National Commission for women, Health Minister or from any other agency to the complaint dated 10th April 2008, than the Respondent no 2 filed a complaint to National Implementation and Monitoring Committee (N.I.M.C) and C.D.M.O requesting them to conduct an enquiry, Complaint dated 09/05/08 to the Appropriate Authority was accompanied with the reports of ultrasounds done at various times at various places during her pregnancy.
21 May 2008 When the Respondent no 2 did not receive any information from office of N.I.M.C and office of C.D.M.O, then the Respondent no 2 filed a R.T.I to know the status of action on her complaint dated 9th May 2008.
03  June 2008

(Annexure D-4)

After the R.T.I filed by the Respondent no 2 a raid was conducted by N.I.M.C on the Jaipur Golden hospital, and in the raid many irregularities in following the provisions of P.C-P.N.D.T act were found. The report clearly mentions that

“ 7.  Form F in the case of Dr Mitu Khosla (Khurana) was neither found in JGH records nor was sent to the AA northwest district.”

The report of the raid is annexed as Annexure D-4

16 July 2008

(Annexure D 8 of the reply to the original petition )

The Respondent no 2 received a reply to R.T.I. in which it is clearly stated –

On a surprise visit to Jaipur Golden Hospital along with National Inspection and Monitoring Team on 3/6/2008 records were checked and it was found that the Ultrasonography (KUB) was done on the complainant by Dr.Niten Seth. As per report B/L Renal Hydronephrosis was diagnosed along with 16-weeks of gestation but Form F for the same was not filled. However, Dr.Niten Seth Ultrasonologist had already left the job from Jaipur Golden Hospital. A show cause notice under registered post to him was issued at the address provided by Jaipur Golden Hospital authorities.”

Thus it was only after reply dated 16th July 2008, that it came in the knowledge of the Respondent no 2, that she was subjected to sex determination, at Jaipur Golden Hospital.

14 Nov 08 (Annexure D-5) The respondent received a reply to RTI from central PNDT department , whereby it is clearly mentioned that

This complaint was verified by the NIMC during its inspection visit on 03.06.08, along with AA (Appropriate Authority) of NCT of Delhi. The state AA was advised to take further necessary action as provided in the PC-PNDT Act on basis of evidence gathered from the hospital

20 Nov. 08 Thus after the Respondent no 2 got to know about the involvement of Jaipur Golden Hospital, Mahajan Imaging Centre and the petitioner radiologist in sex determination of her foetuses, she filed a case against them before Ld. Chief Metropolitan Magistrate on 20th November 2008. (Complaint case no 327/01/08)
19thJan 2009 Appropriate Authority has also filed a criminal complaint under Section 200 Cr.P.C for offence under section 23 of P.C-P.N.D.T Act, against Dr D.K. Baluja, Director Jaipur Golden Hospital on 19th January 2009, before the CMM.( C.C.No. 33/01/09)
08 June 11 That in the Complaint case no 327/01/08, the trial court has taken cognizance and summoned all the accused persons by order dated 08.06.2011.
 27 Feb 2012 Petitioner was granted ex-party stay by This Hon`ble court.
30-Apr-2013 During the pendency of the petition, it came to the knowledge of the applicant that in the complaint case bearing no 327/01/08, the accused no 1 (i.e. Jaipur Golden Hospital) was not summoned in the mistaken belief that the Jaipur Golden Hospital has already been summoned in the case no C.C.No. 33/01/09 filed by the government/CDMO. Whereas actually the accused summoned in the C.C.No. 33/01/09 was not Jaipur Golden Hospital, but Dr D.K.Baluja who was the director of Jaipur Golden hospital.

After attaining the knowledge by the applicant, filed a petition bearing no CRL.M.C.-1740/2013 under section 482 Cr.P.C before this Hon`ble Court for summoning of accused no 1 i.e. Jaipur Golden Hospital in the complaint case No.327/01/08.

03 May 13 That on 03.05.2013 , this Hon`ble Court was pleased to pass order in CRL.M.C.-1740/2103

In view of the aforesaid error as pointed out by learned counsel for petitioner, impugned order of 8th June, 2011 is set aside with direction to trial court to pass a speaking order after hearing learned counsel for petitioner afresh.”

28 May 13 That the trial court thereafter has passed fresh summoning order against all the accused persons vide order dated 28.05.2013 and summoned all the accused except accused no 2and Accused no 3 (petitioner in this case) as they had been granted stay by this Hon’ble court in their petition against the order dated 08.06.2011 (though the order dated 08.06.2011 was itself set aside by the orders of this Hon`ble court and the petitions filed by accused no 2 & 3 had therefore become infructuous).
16-July-2013

(Annexure D-6)

The co-accused owner of the ultrasound clinic filed an additional affidavit in this Hon`ble Court in the case no 3128/2011 titled “Dr Harsh Mahajan vs State of NCT of Delhi & others” stating in para 4 that

“The Petitioner got associated with the Jaipur Golden Hospital in the October 2002. The Petitioner observed that the Jaipur Golden Hospital was not complying with the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and accordingly the Petitioner on its own initiative started sending the reports under Rule 9(3) of the Pre-conception and Pre-national Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996, although not obliged to do so by law.”

21-Oct-2013 Four weeks time was sought by the petitioner to amend the petition to challenge the fresh summoning orders dated 28th May 2013. Four weeks time was granted by this Hon`ble court to the petitioners to Modify the petition.

 

Therefore from the above summary of facts it is clear that:

  1. Respondent No 2 was unaware of this fraudulent sex determination and learnt about it only when her husband informed her somewhere in Feb/March 06. However, the fact that the USG was done at Jaipur Golden Hospital for the sex determination was revealed to the Respondent No 2 only in an around May 2008, when she filed the complaint before the District Appropriate Authorities with all ultrasound reports and when in its reply dated 16/7/08 (Annexure D-8 with the reply to original petition), the appropriate authority stated that form F was not filled upon when she was taken for Ultra Sonography at Mahajan Imaging Centre, Jaipur Golden Hospital.
  2. The Appropriate Authority made all possible efforts to shield the wrong doers i.e. Jaipur Golden Hospital,
    Dr. Harsh Mahajan and the present petitioner. The same is evident from the fact that even though initially the authorities themselves issued a show cause notice under Section 5 or Section 6 of the P.C-P.N.D.T Act to the petitioner dated 11th July 2008, asking him regarding non-filling of “Form F” (Annexure D-9 of the reply to the original petition). However subsequently they diluted the said offence on the part of the guilty by observing that “Form F” was not traceable. This is despite the fact that authorities were well aware that form F of the Respondent No 2 had not been submitted in May 2005, to the Appropriate Authority, along with Form F of 103 other women who underwent antenatal ultrasounds in April 2005 in Mahajan Imaging Centre, Jaipur Golden Hospital.
  3. As submitted herein above, the Respondent No 2 has been running from pillar to post to secure Justice for herself. Respondent No 2 has knocked the doors of various authorities like Police, Appropriate Authority under the P.C-P.N.D.T Act etc. However, despite a cognizable crime was reported to the Police, but no F.I.R was registered or investigation initiated into the matter even after repeated request by the respondent no.2. The police and other authority had not complied the directions, as contained in various Judgments were blazingly flouted.
  4. It may be noteworthy to mention that the tolerance of the Respondent No 2 was exhausted and Respondent No 2 filed complaints against her husband and in laws. Thereafter when the involvement of Accused no 1-3 was revealed, a complaint was filed on 20th November 2008 without any delay or laxity after giving the mandatory Notice of 15 days to the Appropriate Authorities.

 

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL MISC CASE NO 731 OF 2012.

In the matter of

Dr. Niten Seth                                             …Petitioner

Versus

State NCT of Delhi and Another                     …Respondents

 

REPLY ON BEHALF OF THE RESPONDENT NO 2 , NAMELY DR MITU KHURANA TO THE  APPLICATION FILED BY APPLICANT/ PETITIONER U/S SEC 482 OF THE CODE OF CRIMINAL PROCEDURE 1972 SEEKING PERMISSION TO AMEND THE CRIMINAL MISC. PETITION NO 731/2012.

  1. That the present application filed by the petitioner is not maintainable as on 21/10/2013, the petitioner/applicant made submission that to amend the petition and needs four weeks time for same, on which this Hon`ble court has granted the applicant/petitioner four weeks time to amend the petition, but has not been filed with in time granted by the Hon’ble court.
  2. That after passing the order dated 21/10/2013, the applicant /petitioner did not file any amended petition before this Hon`ble Court , but regularly appeared in petition no CRL.M.C No 731/2012 and in place of amending the petition, the petitioner kept watch on the present petition along with other petition related to the proceedings in other connected matters. It is further stated that when the pleadings of the other petitions were going to be completed, and after almost 14 months of the passing of the order dated 21/10/2013, the petitioner/applicant filed the present petition with the aim/intention to delay the proceedings in all connected matters i.e. M.C 3128/2011 (Dr Harsh Mahajan Vs State of NCT of Delhi & others), Crl.M.C 3460/2013 (Dr Kamal Khurana Vs State of NCT of Delhi & others) and  Crl.M.C 1281/2013 (Mrs Indira Khurana & others  Vs State of NCT of Delhi & others). All the petitions have been filed against the summoning order dated 28/05/2013 passed by Shri Dharmender Singh, MM, Rohini Court New Delhi.
  3. That the present petition is not maintainable as the Apex Court has categorically stated in Civil writ petition No 349/2006 titled as “Voluntary health Association of Punjab Vs Union of India” vide order dated 14/03/2013 that

“There will be a direction to all Genetic Counselling Centers, Genetic Laboratories, Clinics etc.  to  maintain  forms  A,  E,  H  and  other Statutory forms provided under the Rules and if these  forms  are  not properly  maintained,  appropriate  action  should  be  taken  by  the authorities concerned.”

and

“The various Courts in this country should take steps to dispose of all pending cases under the Act, within a period of six months. Communicate this order to the Registrars of various High Courts, who will take appropriate follow up action with due intimation  to  the concerned Courts.”

But to intentionally defeat the purpose of the Apex Courts orders, the Petitioner has now come with this amended petition more than 14 months after the orders of this Hon'ble court giving the petitioners time of only 4 weeks to do so.
<ol start="4">
<li>That the present petition filed by the petitioner before this Hon’ble court is not maintainable as all the issues raised by the petitioner in the present petition are matter of facts and need trial before the trial court. Since petitioner have an alternate and efficacious remedy to seek discharge from trial court by urging the pleas taken herein, therefore, this Court is not inclined to exercise its inherent jurisdiction under Section 482 of Cr.P.C. Such a course is being adopted in view of dictum of Apex Court in Crl. M.C. No.210/2013 Page 2 Padal Venkata Rama Reddy Alias Ramu v. Kovvuri Satyanarayana Reddy &amp; Ors. (2011) 12 SCC 437, which is as under: - "It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State and B.S.Joshi v. State of Haryana). If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specifically when the applicant may not have availed of that remedy."</li>
<li>That the present petition is not maintainable as once it has been established that the records of ultrasound of the Respondent no 2 were not maintained as per the P.C-P.N.D.T Act, the onus to prove that the records were maintained are on the Petitioner and that is a matter of trial. The said facts have been confirmed by the Full bench judgment of Bombay high court in <strong> (Mrs.) Suhasini Umesh Karanjkar Vs. Kolhapur Municipal Corporation &amp; Ors.</strong> (2011(4) AIR Bom R 326) and in the Double bench judgment of Bombay High court in the matter of <strong>Radiological and Imaging Association (State Chapter- Jalna), through Dr. Jignesh Gokuldas Thakker, its PC-PNDT Coordinator for the Indian Radiological and Imaging Association Vs. Union of India (UOI) Through its Secretary, Ministry of Health and Family Welfare and others</strong> (Writ Petition No. 797 of 2011) that</li>
</ol>
<strong>“The person conducting ultrasonography on a pregnant woman has to maintain a complete record thereof in the manner prescribed in the Rules and a deficiency or inaccuracy in maintaining such records would amount to an offence, unless the person conducting such sonography is able to show that there was No deficiency or inaccuracy.</strong>”
<ol start="6">
<li>That the present petition is not maintainable as the issues raised by the petitioner by the way of this petition can be raised by the petitioner at the time of framing of charge/argument on point of charge as the trial court has taken the cognizance after recording the pre-summoning evidence of the Respondent no 2 and now the pre-charge evidence is going on and petitioner will have ample opportunity to present his case before trial court.</li>
<li>The Respondent No 2 states that any allegation unless specifically admitted, is/are deemed to be not admitted and hence denied.</li>
<li>The petition of the petitioner is based on twisted, distorted, false and fabricated facts as well as on the basis of gross misinterpretation of the law. The Petitioner is guilty of misrepresentation before this Hon’ble Court. Petitioner has made blatant false averments in this petition, supported with an affidavit. Thus, the petitioner is also liable to be prosecuted for Perjury.</li>
<li>The meaningful appreciation of the present petition clearly shows the active collusion of the Petitioner with the husband and in laws of the Respondent No 2, who subjected the Respondent No 2 to gross cruelties apart from the gruesome act of sex determination of fetuses followed by attempts of female feticide and subsequently attempts to life of Respondent No 2 and her twin infant daughters.</li>
</ol>
&nbsp;
<ol start="10">
<li><strong>THE VARIOUS FACTUAL AND LEGAL MISREPRESENTATIONS MADE BY THE PETITIONER ARE OUTLINED AS UNDER- </strong>
<ol>
<li><strong>Has deliberately misquoted, misread and misinterpreted complaint dated 6 July 2005 made by the deponent</strong>- as it is mentioning the events as they happened in a chronological event.</li>
<li><strong>On Issue regarding Limitation :</strong> That in the present case the respondent no 2 first time came to know about
<ol start="2006">
<li>Sex determination test being done on the Respondent no 2 in Feb /March 2006. Thereafter immediately a complaint was made by Respondent no 2 on 12/03/06 t0 SHO, Janakpuri. At this point respondent no 2 was unaware as to how, when and where it had been done.</li>
<li>That in month of March 2008, when the respondent no 2 came across the report of ultrasound dated 28/04/05, done by the petitioner, she for the first time came to know that she had been deceived into a fetal ultrasound when she was taken to Jaipur Golden Hospital with the complaint of egg allergy. After that the Respondent no 2 immediately again made complaint dated 10/04/08 to various authorities and agencies empowered to investigate her complaint and take action.</li>
</ol>
</li>
</ol>
</li>
</ol>
<ul>
<li>That on 16/07/2008, the respondent no 2 received a reply from the office of the Appropriate Authority that on 28/04/2005, when the fetal ultrasound was done by the petitioner, no form F for the same was filled. This was the very first time when Respondent no 2, came to know that sex determination was conducted by the Petitioner.</li>
</ul>
<ol>
<li>On Issue pertaining the maintenance of Form F by radiological establishments conducting ultrasounds of pregnant women
<ol>
<li>The list of Form F for the month of April 2005 sent to the Appropriate Authority on 3rd May 2005, shows that form F of 103 pregnant women who had undergone antenatal ultrasound in Jaipur Golden Hospital were sent to the Appropriate Authority. This list does not mention the Respondent no 2
s name, which itself shows that Form F in respect of the Respondent no 2 was never filled up and never sent to the Appropriate Authorities as per rule 9 (8) of the P.C-P.N.D.T rule


 

PARAWISE REPLY TO THE APPLICATION FILED BY THE  PETITIONER U/S 482 OF THE CODE OF CRIMINAL PROCEDURE 1972 SEEKING PERMISSION TO AMEND THE CRIMINAL MISC. PETITION NO 731/2012

  1. Para No 1 is a matter of records.
  2. Para No 2 is a matter of records.
  3. In reply to para no 3, it is most respectfully submitted that during the course of arguments in the present petition along with all connected matters, it came to the notice of this Hon’ble court along with the parties that the orders dated 08.06.2011 suffered from a technical error with regard to summoning of the Jaipur Golden Hospital. Thereafter the Respondent no 2, filed Criminal M.C. No. 1740 of 2013 for modification of summoning orders to rectify the technical errors.This Hon’ble court vide order dated 03.05 2013,directed the Court of Metropolitan Magistrate to pass a fresh speaking orders after hearing the Respondent no 2.
  4. Para no 4 is a matter of records.
  5. Para no 5 is a matter of records. However it is most respectfully submitted that the Trial Court after considering all the evidence before it, came to the conclusion that there is enough evidence to summon all the accused. The trial court was pleased to take cognizance against all the Accused, however did not issue summons to the Accused no 2 and Accused no 3 (the present petitioner) because of the ex-party stay granted by this Hon’ble court.

The relevant portion of the fresh Summoning Order dated 28.05.2013 reads as under

“in this way there is sufficient material on record against accused No. 1, 2 and 3 for offences punishable U/s 23(1) of the Preconception & Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and there is sufficient material on record against accused no. 4, 5 and 6 for offences punishable U/s. 23(3) of the Preconception & Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. However, the proceedings are stayed against accused no. 2 namely Harsh Mahajan vide order of Hon’ble Delhi High Court in CH. M. A. No. 11094/ 2011 Cr. M. C. No. 3128/ 2011 and proceedings against accused No. 3 Nitin Seth are stayed vide order of Hon’ble Delhi High Court in CRL M. C. No. 731/20120 So, summons be issued against remaining accused persons on filing of PF for next date of hearing i.e. 05.06.2013.”

  1. In reply to Para no 6 , it is denied that the fresh Summoning Order dated 28.05.2013, in any case is illegal and bad in law and deserves to be set aside by this Hon’ble Court on the same grounds as have been taken by the Petitioner in the present petition. It is further denied that the said order has been passed in a completely illegal manner without following the procedure prescribed by law and is in direct contravention of the provisions of the Code of Criminal Procedure, 1973. The orders have been passed by the Trial Court after examining the respondent no 2 on Oath and considering all the evidence in the trial court file which very clearly shows contravention of section 4,5 and 5 of the P.C-P.N.D.T Act and punishable u/s 23(1) and 23(3) of the P.C-P.N.D.T Act
  2. In reply to Para no 7, it s again most humbly yet empathetically stated that the application filed by the petitioner is not only time barred but has been filed in active collision with other accused with an aim to delay the proceedings in all the connected matters pending before this Hon’ble Court.
  3. In reply to Para no 8, it is humbly stated that the reply to the Amended Petition along with all additions and subtractions is given in this reply.

 


 

PARAWISE REPLY TO THE AMMENDED PETITION CRL.M.C. No 731/2012

  1. In reply to Para no 1 of the petition it is submitted that the petitioner has committed an offence under Sec 23 (i) of the Pre Conception And Pre Natal Diagnostic Techniques Regulation (Prohibition Of Sex Selection) Act, with the collusion of other co-accused persons. After the examination of the Deponent under oath, on different dates, the Ld. Trial Court has passed the order dated 8/6/2011 in CC-327/01/08 and summoned the present petitioner with directions to appear before Ld. Trial Court. The present petitioner has been avoiding his appearance before the Learned Trial Court on one pretext or another and since the passing of the order dated 8/6/2011, the petitioner has not appeared even on a single date before the learned trial court. It is further submitted that the offence committed by the petitioner is heinous in nature and is a non-bailable offence.
  2. Para no. 2 is matter of record and need no reply.
  3. In reply to Para no. 3, it is submitted that the Petitioner was working as a consultant Radiologist with Mahajan Imaging Centre, who is also a co-accused in the CC-327/01/08 titled as Dr Mitu Khurana Vs. Jaipur Golden Hospital and others and Ld. Trial Court has also summoned Dr. Harsh Mahajan, who is the owner of the Mahajan Imaging Centre.

It is further submitted that Mahajan Imaging Centre being on the panel of Hon’ble High Court and Hon’ble Supreme Court of India ,are confidently flouting the laws as is evident from the report of the raid conducted by N.I.M.C on 3rd June 2008, in which there were various discrepancies (e.g.- non display of registration Certificate in Ultrasound room (Section 19 (4) of the Act), non-availability of the P.C-P.N.D.T Act book in the ultrasound room (Rule 17(2) of the P.C-P.N.D.T Rules), and many form F`s not being filled up properly (Section 4(3), Rule 9(4) and Rule 10(1A)), in addition to not filing Form F of the Deponent.

  1. In reply to Para no. 4 (i), it is denied that the Deponent came to Jaipur Golden Hospital to consult Gynaecologist. It is also denied specifically that the Petitioner has annexed any ultrasound report dated 20/4/2005 as Annexure P-1. That on 28th April 2005, the husband and mother in law brought the Deponent to the casualty of Jaipur Golden Hospital, with the medical complaint of allergy, from where she was referred to Labour room. The ultrasound at Jaipur Golden Hospital was a criminal conspiracy between the petitioner and other co-accused in the case.
    1. That on 27.04.2005 (i.e. night before the admission), the brother in law of the deponent brought a cake laced with eggs, and that was given to the deponent saying it is eggless. Even though the accused no 4 to 6 in the original complaint are aware that the deponent was highly allergic to eggs leading to urgent allergic reaction in the form of abdominal pain. It was on account of the egg, that the deponent developed the abdomen pain, at which the husband and in-laws of the Deponent brought her to Jaipur Golden Hospital, despite the fact that she was undergoing ante natal care at Ganga Ram Hospital.

The case records of the Deponent, seized on 3rd June 2008 at time of raid conducted by N.I.M.C (National Inspection and Monitoring Committee) clearly state the fact that the Deponent is allergic to egg, and the complaint of pain abdomen started after only consumption of cake with egg.

This was a medical case of allergy, for which the deponent could have been treated in either casualty itself or in medical ward, however she was admitted to the labor room, and that too without her consent. The consent for admission to labor room was deliberately taken from her husband (who is Accused no 4 in the CC-327/01/08 in case Titled Dr Mitu Khurana Vs Jaipur Golden Hospital) even though the Deponent was conscious, oriented and in a position to give her consent. The consent form is annexed herewith and marked as Annexure D-10.Hence, the guidelines and legal provisions and requirements to be followed regarding consent laid down by Hon’ble Supreme Court of India in case of Samira Kohli v. Dr. Prabha Manchanda, Supreme Court of India, 2008 and the principle that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body [Cardozo J., Schoendorff v. Society of New York Hospital, 1914]” were knowingly flouted with a criminal content.

Further it is stated that the Petitioner conducted fetal ultrasound instead of Kidney Ureter Bladder (KUB) ultrasound, which was recommended by the gynecologist. (Referral report of Gynecologist attached with this affidavit as part of clinical records in Annexure D-1). The report does not mention important ingredients of a KUB examination like size of kidneys, volume of Bladder etc. The report also does not mention any details about other organs included in whole abdomen ultrasound which are important e.g. Liver, spleen, gall bladder, pancreas etc. A copy of template for reporting ultrasound whole abdomen is annexed along with and marked as Annexure D-11. The report prepared by the petitioner only mentions the detailed fetal ultrasound which was never asked for by the Gynecologist.

It is submitted that the ultrasound report prepared by the Petitioner on 28/4/2005 does not mention the mandatory declaration as laid down in Rule 10 (1A) under the amended PNDT Rules to be given on each report of ultrasonography on a pregnant woman, that the Doctor conducting the sex determination has neither detected not disclosed the sex of fetus of the pregnant women to anybody. The Bare perusal of the present report annexed as Annexure D-12 shows that no such declaration is given by the petitioner on the ultrasound report (Annexure D-12) and the petitioner has admitted that the annexure D-12 has prepared by him and petitioner has not disputed the same. The petitioner has thus also committed an offence under Rule 10 (1A) of the Act and be also be prosecuted for same.

The allegations made in the Para of the petition are distorted and twisted. As already explained in the foregoing paragraphs, the Deponent always resisted the demand of her husband and in laws for sex determination of her twin fetuses. Therefore they hatched a conspiracy with Accused nos. 1-3, including the petitioner and subjected her to same gross examination. The Deponent promptly brought the said act to the notice of various Authorities like Police, National Commission for Women, and Crime against Women Cell etc. from time to time.  Thereafter when it was revealed to her that the Accused were also involved (i.e. when the Deponent received a reply dated 16/7/2008 to her query under R.T.I dated 20th May 2008), she lodged a complaint against all the concerned in the learned court of ACMM. Thus, it is a grave mis-representation on the part of the Petitioner to allege that there was any inaction on the part of the Deponent or that the complaint against the Petitioner is time barred.

It is further stated with utmost humility but strong vehemence that as an aggrieved person and a victim, the Deponent had done all that she could do to report the illegal acts /crime/offence of sex determination done on her. The obligation i.e. to conduct proper investigation and bring the guilty persons to book was the job of relevant authorities. Thus, the non-action if any was on the part of concerned authorities, obviously on account of various tactics of accused persons (who are influential and powerful) and this inaction cannot be taken as a tool to give further advantage to them or to deprive the complainant to secure Justice. Allowing this petition would be a cause of great miscarriage of justice to the Deponent.

 

4 (ii) In reply to Para no. 4 (ii), it is submitted that the ultrasound dated 12/07/2005 was done on the advice of the Gynaecologist as a part of the routine ante natal care and same was done with the consent and knowledge of the deponent. The same is not in dispute.

 

4 (iii)           In reply to Para no. 4 (ii), it is submitted that the contents of the same are matter of record that the deponent was blessed with two baby girls, despite all efforts by the petitioner along with other accused to kill them.

4 (iv)           In reply to Para no. 4 (iv), it is submitted that no complaint was made against the doctor or the Hospital till December 2005, as the Deponent was not aware at that time that the petitioner was a part of the conspiracy hatched by the husband and in-laws to get the sex determination done.

4 (v) In reply to Para no. 4 (v), it is submitted that the abuse and torture became worst after the ultrasound was conducted on 28/4/2005, after which the husband and in-laws of the Deponent started torturing her in order to force an abortion. In all the complaints made by the deponent, the deponent has mentioned about being forced for sex determination, followed by force for abortion.

4 (vi)           In reply to Para no. 4 (vi), it is submitted that the in addition to various complaints regarding sex determination to Police stations between March  2006-Jan 2008,  a specific complaint was made on 1st Jan 2008, to Delhi Commission for women and the same was registered on 2nd Jan 2008 vide registration no 8012410.

On 10.04.2008 another complaint was made by the deponent to National Commission for Women, with a copy to Prime Minister, Health Minister and various other authorities to take action on deponents complaint (Annexure D-7) This complaint mentions that sex determination was done by deceit and the deponent was ready to submit all the ultrasounds reports in case of an enquiry. This complaint was also within 3 years from the date of ultrasound. The Petitioner is trying to mislead the Hon’ble Court by stating half-baked and false facts. The complaint dated 09.05.2008, mentions all the ultrasounds done on the Deponent, with copies of all ultrasounds done during pregnancy. A copy of complaint dated 09.05.08 was sent to National Inspection and Monitoring Committee (N.I.M.C). N.I.M.C. conducted a raid on the petitioners centre at Jaipur Golden Hospital on 3rd June 2008, where in addition to the missing records of the Deponent`s ultrasound, various other deficiencies were also found. This report establishes the flagrant violation of law and legal provisions including imperative and stringent mandates of the Act in Jaipur Golden Hospital, to which Mahajan Imaging centre is an active and colliding Party. The report of raid dated 6 June 2008 is annexed hereto and is marked as Annexure D-13.

The Rule 9 (8) of the P.C P.N.D.T Rules 1996 makes it mandatory for Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Clinic and Imaging Centre to send a complete report in respect of all/pre-conception or pregnancy related procedures/Techniques/ Tests conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority.

This record was submitted by Jaipur Golden Hospital to the concerned Authority in May 2005. In the proceedings bearing no. CRL M.C No 460/10, Jaipur Golden Hospital has therein filed the document dated 5th May 2005 (Annexure P-2 in CRL M.C 460/2010), showing that 103 “Form F” was filed in May 2005. This document is annexed hereto and is marked as Annexure D-14. This record (103 form F) also did not contain the form F of the Deponent, which in itself shows that the form F was never filled, and the Petitioner is only trying to misguide the Hon’ble court by saying that records were not maintained because the complaint was filed after more than two years of the ultrasound. An affidavit of the Appropriate Authority is annexed herewith and is marked as Annexure D-15. The name of the 103 women for whom the record was submitted is annexed herewith and is annexed as Annexure D-6.

It is submitted that the gynecologist had only asked for ultrasound of Kidney, Ureter and Bladder of the Deponent, while the Petitioner had conducted the fetal ultrasound, which was not asked (The referral slip of the gynecologist is annexed with clinical records as part of Annexure D-1). It is further submitted that he fetal ultrasound had been done by the petitioner without any reference of the gynecologist as well as knowledge and consent of the deponent, in active collusion with the other co-accused persons.

4 (vii)          In reply to Para no. 4 (vii), it is submitted that the finding of the committee that there is no direct/circumstantial evidence is per se false, incorrect motivated and untenable.  In-fact the enquiry committee has given the finding that Form F in question from Jaipur Golden Hospital is not traceable and after such finding the committee has submitted the report to the appropriate Authority (North –West district ) for necessary action against the petitioner and other co-accused. After such finding the Appropriate Authority has filed a criminal complaint under section 200 Cr.P.C. for offence under section 23 of the P.C-P.N.D.T Act on 19th Jan. 2009 before Ld CMM. On 21/10/2009, the Ld. Trial Court has taken cognizance under section 23 of the P.C-P.N.D.T Act and issued summons to Dr D.K.Baluja, Director Jaipur Golden Hospital. In the said criminal case, on 1/10/2010, Dr D.K.Baluja has been granted bail on furnishing the bail bond of Rs 20,000/-, with one surety in like amount. The case is still pending before the Ld Trial court.

It is submitted for the appreciation of this Hon’ble Court that the page 5 of Enquiry committee report dated 26th September 2008 has wrongly referred to list of April 2005 as that of April 2008. The said oversight /inadvertent typographical error came into light when the deponent filed a R.T.I dated 28.11.2008 which is annexed herewith and marked as Annexure D-16. The reply to this R.T.I clarified that the sentence “the district monthly record of original Form F’s from Jaipur Golden Hospital, Delhi for April ’08 received in May ’08 do not have Form F for Dr. Mitu Khurana’s case” should be read as “the district monthly record of original Form F’s from Jaipur Golden Hospital, Delhi for April ’05 received in May 05 do not have Form-F for Dr. Mitu Khurana’s case”. This reply is annexed herewith this affidavit and is marked as Annexure D-17

4 (viii)         In reply to Para no. 4 (viii), it is submitted that the sex determination was done on the complainant by the petitioner.

4 (ix)           In reply to Para no. 4 (ix), it is denied that no case is made out against the petitioner as the section 23(i)  of P.C-P.N.D.T Act clearly lays down that the doctor conducting sex determination is liable to punishment. The Offence under section 23(i) is Cognizable, non- bailable, non- compoundable.

4 (x) In reply to Para no. 4 (x), it is denied that the complaint is time barred. Section 469 of Cr. P.C. clearly lays down the legal provisions regarding commencement of the period of limitations.

(1) The period of limitation, in relation to an offence, shall commence, –

(a) On the date of the offence; or

(b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

Therefore in accordance with Sec 469 (c) of Cr.P.C period of limitation starts from 6th July 2008, when it became clear from the reply dated 6th July 2008 received by the deponent that the sex determination was done by the petitioner at Jaipur Golden Hospital. Prior to this the deponent had already made many complaints to the concerned authorities regarding being subjected to sex determination test done.

 

4 (xi)           In reply to Para no. 4 (xi), it is denied that there was not even prima facie evidence available before the Hon’ble court to pass summoning orders for the petitioner as well as other accused in the case. As is evident from Annexure D5, D-6, D-13 and D-15, it is evident that no form F was filled when the ultrasound was done on the complainant. This in itself is a sufficient reason to proceed against the Petitioner and non-filling of Form F amounts to Sex determination as stated in Proviso to Section 4 (3) of the Act and reinforced by the Full bench Judgment of High Court of Gujarat in the case “Suo Moto Vs State of Gujarat Criminal Reference No. 4 of 2008 and Criminal Reference No. 3 of 2008” in which a Full bench of Hon’ble Judges have given their judgment on the following questions referred to them i.e.-

  1. i) 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 and 6 of the Act?
  2. ii) Whether the burden lies on the authority to prove that there was contravention of the provisions of section 5 or 6 of the PNDT Act?

iii)         Whether any deficiency of inaccuracy in filing Form-F as required under the statutory provisions is merely a procedural lapse?”

 

While giving the Judgment the Hon’ble judges have opined that

“7.     As seen earlier, the Act and the Rules made thereunder provide for an elaborate scheme to ensure proper implementation of the relevant legal provisions and the possible loop-holes in strict and full compliance are sought to be plugged by detailed provisions for maintenance and preservation of records. In order to fully operationalise the restrictions and injunctions contained in the Act in general and in sections 4, 5 and 6 in particular, to regulate the use of pre-natal diagnostic technique, to make the pregnant woman and the person conducting the pre-natal diagnostic tests and procedures aware of the legal and other consequences and to prohibit determination of sex, the Rules prescribe the detailed forms in which records have to be maintained. Thus the Rules are made and forms are prescribed in aid of the Act and they are so important for implementation of the Act and for prosecution of the offenders, that any improper maintenance of such record is itself made equivalent to violation of the provisions of sections 5 and 6, by virtue of the proviso to sub-section (3) of section 4 of the Act. It must, however, be noted that the proviso would apply only in cases of ultrasonography conducted on a pregnant woman. And any deficiency or inaccuracy in the prescribed record would amount to contravention of the provisions of sections 5 and 6 unless and until contrary is proved by the person conducting such ultrasonography. The deeming provision is restricted to the cases of ultrasonography on pregnant women and the person conducting ultrasonography is, during the course of trial or other proceeding, entitled to prove that the provisions of sections 5 and 6 were, in fact, not violated.

 

  1. It needs to be noted that improper maintenance of the record has also consequences other than prosecution for deemed violation of section 5 or 6. Section 20 of the Act provides for cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic in case of breach of the provisions of the Act or the Rules. Therefore, inaccuracy or deficiency in maintaining the prescribed record shall also amount to violation of the prohibition imposed by section 6 against the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and expose such clinic to proceedings under section 20 of the Act. Where, by virtue of the deeming provisions of the proviso to sub-section (3) of section 4, contravention of the provisions of section 5 or 6 is legally presumed and actions are proposed to be taken under section 20, the person conducting ultrasonography on a pregnant woman shall also have to be given an opportunity to prove that the provisions of section 5 or 6 were not violated by him in conducting the procedure. Thus the burden shifts on to the person accused of not maintaining the prescribed record, after any inaccuracy or deficiency is established, and he gets the opportunity to prove that the provisions of sections 5 and 6 were not contravened in any respect. Although it is apparently a heavy burden, it is legal, proper and justified in view of the importance of the Rules regarding maintenance of record in the prescribed forms and the likely failure of the Act and its purpose if procedural requirements were flouted. The proviso to sub-section (3) of section 4 is crystal clear about the maintenance of the record in prescribed manner being an independent offence amounting to violation of section 5 or 6 and, therefore, the complaint need not necessarily also allege violation of the provisions of section 5 or 6 of the Act. A rebuttable presumption of violation of the provisions of section 5 or 6 will arise on proof of deficiency or inaccuracy in maintaining the record in the prescribed manner and equivalence with those provisions would arise for punishment as well as for disproving their violation by the accused person. That being the scheme of these provisions, it would be wholly inappropriate to quash the complaint alleging inaccuracy or deficiency in maintenance of the prescribed record only on the ground that violation of section 5 or 6 of the Act was not alleged or made out in the complaint. It would also be improper and premature to expect or allow the person accused of inaccuracy or deficiency in maintenance of the relevant record to show or prove that provisions of section 5 or 6 were not violated by him, before the deficiency or inaccuracy were established in court by the prosecuting agency or before the authority concerned in other proceedings.”

 

On the basis of these observations that Hon’ble Judges have given their verdict as-

 

“ (ii) The proviso to sub-section (3) of section 4 of the PNDT Act does not require that the complaint alleging inaccuracy or deficiency in maintaining record in the prescribed manner should also contain allegation of contravention of the provisions of section 5 or 6 of the PNDT Act.

 

(iii)   In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under sub-section (3) of section 4 of the PNDT Act, the burden to prove that there was contravention of the provisions of section 5 or 6 does not lie upon the prosecution.

 

(iv)   Deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the PNDT Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the PNDT Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the Act and the Court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her.”

 

4 (xii) In reply to Para no. 4 (xii), it is submitted that it is a matter of record that the Petitioner resides at Agra. However at the time when the crime took place, the Petitioner was working with Mahajan Imaging centre, Jaipur Golden Hospital, Rohini, New Delhi and the Place of occurrence of offence is in Delhi. Therefore the trial court has the Judisction to try the matter. Moreover the Ld Trial Court Magistrate had recorded the pre summoning evidence of the Deponent under Oath on different dates, and only after going through the facts of the case, the court has taken cognizance against the petitioner and issued summons with directions to appear before Ld Trial Court.

 

4 (xiii)           In reply to Para no. 4 (xiii), it is submitted that contents of the same are matter of record and needs no reply. It is pertinent to mention that the Petitioner had already received show cause notice from the Appropriate Authorities, and had appeared before the enquiry committee.

4 (xiii) (a)        In reply to Para no. 4 (xiii) (a), it is submitted that the sex determination was done on the complainant by the petitioner. The contents of are based on deliberate and intentional misquoting and misreading of the complaint dated 06/07/2005, in order to misguide the Hon’ble court and also to hide his misdeeds.  A bare perusal of the complaint dated 06/07/2005 will in itself show that the complaint states the events in a chronological sequence starting from marriage  conception  pressures for sex determination pressures to abort  attempt to abort  threat to life  Deponent shifts to parental home to save her life and pregnancy.

 

4 (xiii) (b)         In reply to Para no. 4 (xiii) (b), it is submitted that Complaint dated 12.3.6 to S.H.O. Janakpuri clearly mentioning that “I had repeated ultrasounds during pregnancy and from somewhere my in-laws came to know I am carrying female babies” clearly showing that sex determination had been done. It is not mentioned that the sex determination was done on her during her admission to Jaipur Golden Hospital, because neither did the deponent know that she had been deceived into fetal sex determination when she was subjected to K.U.B ultrasound on 28th April 2005, nor was the deponent in possession of any paper (discharge sheet/ ultrasound report) of the said admission.

 

4(xiii) (c)  In reply to Para no. 4 (xiii) (c), it is denied that the complaint dated 9th June 2006, does not mention sex determination being done on her as the Complaint to D.C.P, Crime against Women Cell clearly outlines the chronological sequence of events as “Then they came to know that I am carrying twin babies. My mother in law started demanding sex determination of the babies. I have a strong suspicion that they got to know about the sex of the babies, because mother in law started demanding that I get one of the babies killed in uterus. My husband asked for D.N.A. testing of the babies saying that it is written in the horoscope that he would have only sons. He also asked me to get an M.T.P. done or take a divorce”.

  1. In reply to Para nos. 5 it is denied that the Respondent No 2 had an axe to grind with her in-laws, and the Petitioner and other accused have been unnecessarily roped in the said dispute. It is matter of fact that sex determination followed by female foeticide is a crime in which the Husband and in-laws actively conspire with the doctor who does the sex determination. The crime was not possible without the active involvement of the Petitioner along with the owners of the Mahajan Imaging Centre.
  2. In reply to Para no 6, of the amended petition,it is denied that the Petitioner submits that he has been made a scapegoat in a matrimonial dispute with which he has no concern. it is submitted that the Petitioner is not an innocent person as he claims to be, and has played an active role in the offence of sex determination in collision with other accused persons.

7.In reply to Para 7, it is denied that  the impugned summoning order  has been passed mechanically and without application of mind and the complaint is bereft of material particulars sufficient to summon the Petitioner. It is further denied the complaint is beyond limitation, is full of contradictions and does not even make out a prima facie case even if read on its face value. It is further denied that the summoning order has been passed, unmindful of the mandatory provisions of Section 202 (1) of the Code of Criminal Procedure, 1973. In reply it is submitted that the complainant has been examined on oath under section 200 and then only summons were issued after considering all the evidence on file.  The Petitioner in his entire petition has not been able to point out a single contradiction in the complaint. The answer to rest of the issues raised in this Para has been replied above and is not being repeated herein for the sake of brevity.

  1. In reply to Para no 8 of the Petition , it is most humbly stated that the petitioner has committed an offence under section 4,5& 6 of the P.C-P.N.D.T Act punishable under section 23(1) of the P.C-P.N.D.T act. It has been established from records that the form F was neither filled nor submitted to the Appropriate Authorities on 3rd of May 2005. Hence the petitioner does not deserve any stay. The stay was granted to the co-accused ex-party, before notice was served to the Respondent no 2.
  2. In reply to Para no 9, it is vehemently denied that the petitioner was merely employed as a consultant radiologist with the said centre and is hence entitled to similar relief. It is pertinent to mention that it was the petitioner who conducted the foetal ultrasound on the respondent in collision with the Husband and the in-laws of the respondent no 2, without the consent of the Respondent no 2 and without filling and maintaining the records mandatory under the P.C-P.N.D.T Act.

9A.  Para no 9A is a matter of record. However it is denied that the petitioner was not a party to Crl.M.C. no 1740 of 2013, and came to know about the order dated 03.05.2013 much later , as the petitioner has been regularly appearing in each and every date in this Hon`ble court . On 21/10/2013, He sought time for a period of four weeks for filling the amended petition, which was granted to him. However he did not file the amended petition within the granted four weeks time, and is now filling it after almost fourteen weeks with the aim to delay the proceedings in the matter.

9B. Para no 9B is  matter of records and needs no reply.

9C. Para no 9C is a matter of records.

9D.

 

REPLY TO GROUNDS

  1. A. Content of Para A are a matter of fact and needs no reply.

B TO Z        The grounds invoked are misconceived and untenable in law as well as facts. It is false that the petitioner deserves a stay as he is merely a consultant radiologist in the centre. It is a fact that he is the doctor who did the sex determination and thus liable to face the trial.

It is wrong and denied that that petitioner has been made a scape-goat in the matrimonial discord or that the complaint against the Petitioner is an afterthought and has been cooked up by the Respondent No 2 only to make another false case against her husband and in-laws.

It is specifically denied that the complaint is bereft of sufficient materials to summon the petitioner or that the complaint is full of contradictions or does not make any prima facie case against the petitioner. It is specifically denied that the summoning order has been passed without following the mandatory procedure prescribed under section 202 (1) of Code of Criminal Procedure 1973,

It is also denied that the complaint against the Petitioner is liable to be quashed or that the case cannot progress against the petitioner, since under section 29 of the Act the said form F was to be maintained only for a period of 2 years from the date of ultrasound, or since the complaint was made after 3 years, the same was not liable to be maintained or produced.

It is specifically denied that the summoning order dated 08.06.2010; passed by the learned Chief Metropolitan Magistrate is contrary to law. It is also specifically denied that the above order has been passed in a casual and perfuntionary manner without due application of Judicial Mind.

It is also denied that the complainant made the grievance in respect of sex determination test for the first time only when the twin daughters were almost three years old.

It is also denied that the enquiry committee has given any clean chit to the petitioner doctor specifically. It is also denied that the complaint of conspiracy is denied of any material in support thereof. The Indian Evidence Act, 1872 section 10 clearly defines that

“Things said or done by conspirator in reference to common design –

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.” The Petitioner took part in the conspiracy by doing the sex determination and not maintaining the mandatory records, so as to hide the details of the ultrasonography from the authorities.

It is also denied that the complaint is bound to be quashed or the summoning order is bound to be quashed because the complaint has been filed after the expiry of limitation period.

It is misconceived to allege that the complaint is time barred or that as the records were not required to be maintained beyond two years and the allegations especially against the Petitioner and Jaipur Golden Hospital/ petitioner did not crop up in initial complaints and thus are an afterthought or that the allegations against the Petitioner are vague. The said claims of the Petitioner are distorted and are not tenable either in fact or in Law.

It is empathetically yet humbly pointed out to Hon’ble High Court that.

ADMITTEDLY the form F of the Respondent No 2 not neither filled up, nor sent to District Appropriate Authority , while the form F`s of 103 other women who had undergone ante-natal ultrasounds in Jaipur Golden Hospital in April 2005 were sent to the District Appropriate Authority in May 2005. Hence the plea of the same having been weeded out is sham and bogus because the forms F of the same month of other women are preserved. — [Reference: Annexure D-6 i.e. the list of form F sent to Appropriate Authority in May 2005]

 

ADMITTEDLY the co-accused Dr Harsh Mahajan in his petition before this Hon’ble court filed an affidavit on 15thJuly 2013(Annexure D-6) wherein Para No 4, he has categorically accepted that :-

“The petitioner got associated with Jaipur Golden Hospital in October 2002. The petitioner observed that Jaipur Golden Hospital was not complying with the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of sex selection Act) 1994 and accordingly the petitioner on his own initiative started sending the reports under Rule 9(8) of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of sex selection Act)  Rules 1996.”

ADMITTEDLY the Respondent No 2 had filed various complaints from July 2005 to 10th April 2008, to authorities competent to hold an enquiry under P.N.D.T act and register an F.I.R for the cognizable offence of sex determination being conducted on her, which was revealed in her complaints. (refer Criminal Procedure Code, 1973, Section 154 and Judgement of Hon’ble High Court of Allahabad in case of Dr. Varsha Gautam Vs State of U.P. Manu/UP/0857/2006)

ADMITTEDLY the petitioner has nowhere claimed that he filled the form F of the Respondent No 2. The Show Cause Notice sent to the Petitioner was for offence under Sec 5 and 6 of the P.N.D.T act. [Refer Annexure D-9 of the reply to original petition|.

In fact the Respondent No 2 filed an RTI application to Appropriate Authority, CDMO, North West Delhi; interalia asking about the evidence furnished by the petitioner to prove that he has not conducted the sex determination on the Respondent No 2. In response thereof it was conceded by the Appropriate Authority vide reply dt 26/05/09 that except for the written statement by the petitioner that he fills up form F in all cases, he has not been able to give any other evidence. The R.T.I application dated 28/04/09 is annexed hereto and is marked as Annexure D-18 and its reply dated 26/05/09 is marked as Annexure D-19.

ADMITTEDLY The petitioner has nowhere stated that he has filled the form F of the Respondent No 2. Even before the Enquiry Committee, he has no-where categorically stated that he has filled form F of the petitioner. The statement of the petitioner recorded by the Enquiry Committee is annexed along with and marked as Annexure D-20.

ADMITTEDLY the petitioner has nowhere stated in his present petition also that he has filled the form F when doing the ultrasonography on the Respondent No 2.

ADMITTEDLY thus the onus as placed on the petitioner and the establishment as per Section 4 (3) of the P.C-P.N.D.T Act has not been discharged by the Petitioner / Jaipur Golden Hospital/ Dr Harsh Mahajan.

ADMITTEDLY, District Appropriate Authority in its report dated 16/07/08 that form F of the Respondent No 2 was not filled up. [Refer Annexure D-8].

ADMITTEDLY no gynaecologist asked for fetal ultrasound [refer Annexure D-1].

ADMITTEDLY no consent for ultrasound KUB or the foetal ultrasound was taken from the Respondent No 2 though she was conscious and oriented.

ADMITTEDLY the fetal ultrasound was done, though there was no requirement for the same as the Gynaecologist had ordered for KUB scan after taking note of the past history of pyelonephritis (infection in Kidneys) 2-3 years before pregnancy, which had nothing to do with present pregnancy. [Refer to Annexure D-1].

ADMITTEDLY the ultrasound report of the Respondent No 2 does not have the required declaration that no sex determination has been done on her.

ADMITTEDLY the Respondent No 2 has been making various complaints regarding the pressured for Sex Determination; Sex determination conducted on her by deception; followed by pressures for abortion.

Thereafter she also named the Accused no 1 to 3 after it was revealed to her from the reply dated 16th July 2008 that she had been victimized and subjected to Sex Determination by deception; not filling up of form F, Conducting of Foetal ultrasound instead of KUB ultrasound etc. Hence there had been no delay on part of the Respondent No 2.

Respondent No 2 has been running from pillar to post to take her fight for conclusion. Thus if the Police and other Authorities did not timely action, the Respondent No 2 can`t be made to suffer

Even otherwise, the pleadings will itself reveal that the petitioner and other accused have been in active collision with the each other and all the unlawful acts right from conduction of Sex determination test till the deliberate non filling of form F were within his knowledge and with his connivance.

Hence, the petition is based on misconceived and misrepresented facts and hence liable to be quashed with exemplary costs.

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL MISC CASE NO 731 OF 2012.

 

 

In the matter of

 

 

Dr. Niten Seth                                                 …Petitioner               

 

 

Versus

 

 

State NCT of Delhi and Another            …Respondents    

 

 

AFFIDAVIT

 

I, Mitu Khurana, wife of Dr. Kamal Khurana, aged about 39 years, resident of A-1/39, Janakpuri, New Delhi, do hereby solemnly state on oath as under:

 

  1. That I am the Respondent No. 2 in the present case. I am fully conversant with the facts of the case and am competent to depose to that effect.

 

  1. That the accompanying reply to the petition under Section 482 of the Code of Criminal Procedure, 1973 has been drafted under my instructions. I state that the facts stated therein are true and correct based on my knowledge and legal advice received. The contents of the accompanying reply to petition may be read as part and parcel of the present affidavit and the same are not being repeated herein for the sake of brevity.

DEPONENT

 

VERIFICATION:

 

Verified at New Delhi on   Feb 2015 that the contents of the above affidavit are true and correct based on my knowledge and legal advice received. No part of it is false and nothing material has been concealed there from.

 

DEPONENT

MAN25042016CRLMM31282011

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