Supreme Court Appeal

SYNOPSIS
This Special Leave Petition has been filed against the judgment dated 25.04.2016 passed by the Delhi High Court under Section 482 CrPC by which the High Court has not only quashed the summoning Orders dated 08.06.2011 and 28.05.2013 passed by the Chief Learned Metropolitan Magistrate in CC No. 327/01/08 but also set aside the Complaint of the Petitioner dated 22.11.2008. The High Court has given two reasons for the impugned judgment: (i) that the complaint was time-barred; (ii) that the complaint was not in accordance With Section 28 of the PC-PNDT Act.

The High Court gravely erred in passing the impugned Order. It exceeded the revisional jurisdiction. It is settled law that at the time of issuing Summons, the Court only has to see whether a prima facie case is made Out. At that stage, the Court cannot look into any documents or arguments advanced by the accused in support of his defense. Therefore, the limited jurisdiction which can be exercised by the High Court in revision is to see whether the finding of the MM in holding that a prima face case exists suffers from any perversity. A bare reading of both the summoning orders clearly show that the learned Metropolitan Magistrate had looked into the material which existed on record in the form the complaint submitted by the Petitioner and related documents and found that a prima facie Case existed to issue summons. The Learned MM has also given detailed reasons in support of the Summoning Order. It is Submitted that the summoning orders are legally tenable; they have been passed after arriving at the finding that prima facie Sufficient material exists and that at the stage of exercising revisional jurisdiction, the High Court Could not have interfered with these Summoning orders. Further, in several decisions, this Hon’ble Court has held that it is only in rare cases that the powers under Section 482 CrPC should be exercised.

Before going into the facts, it is submitted that this is the first case which arises under the Pre-Conception and Prenatal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the PCPNDT Act) where the Petitioner has questioned her husband, in-laws and the doctors who were involved in violation of the PCPNDT Act, 1994. The Petitioner got married on 28.04.2004. She became pregnant on 04.01.2005. The husband and in-laws were pressurizing and torturing her for Sex determination. She resisted this pressure. However, surreptitiously, she was taken to Jaipur Golden Hospital on 28.04.2005 by giving an egg-laden cake to which she was allergic and hence, developed acute abdominal pain and vomiting. Under the guise of doing KUB ultrasound(Kidney-Ureter-Bladder), the ultrasound of her foetuses was done. The said ultrasound was done by Dr. Niten Seth-Respondent at Mahajan Imaging Center ( at Jaipur Golden Hospital). Dr. Harsh Mahajan-Respondent was admittedly a partner of Mahajan Imaging Center. The said Mahajan Imaging Center was not registered under the PCPNDT Act, which is mandatory under Section 18 of the Act of 1994. It has come on record that while doing the said ultrasonography, following violations were done:
(i) the consent of the pregnant woman under Section 5 of the PC-PNDT Act was not taken;
(ii) the mandatory Form F was not filled by Dr. Niten Seth;
(iii) the mandatory declaration under Rule 10(1)(a) stating that no Sex determination was not provided in the ultrasound report.

The fact that the ultrasonography of the foetuses was done was not disclosed to the Petitioner. The husband and her in-laws however, came to know about it and they started harassing the Petitioner and demanding that she undergoes abortion. Feeling insecure about her safety and that of her foetuses, she left her in-laws house and started residing with her parents. Fortunately, the intentions of her husband and in laws did not succeed and she gave birth to twin daughters on 11.08.2005. She had given various complaints dated 06.07.2005, 12.03.2006, 09.06.2006, and 02.01.2008 to police and other authorities. However, it came to her knowledge in March, 2008 that at Mahajan Imaging Center, she was subjected to ultrasonography of the foetuses. She therefore, gave a complaint to the National Commission for Women, which was also sent to the Minister in charge of the Ministry of Health and Family Welfare (which is in-charge of the PCPNDT Act) on 10.04.2008. Thereafter she received an email from Central PNDT Department, Nirman Bhawan on 08.05.2008 that she should send her complaint to the District Appropriate Authority, Rohini. She accordingly, sent a Complaint dated 09.05.2008 to the District Appropriate Authority, Rohini. When required action was not taken, she gave a 15 day notice to the District Appropriate Authority under Section 28 of the PCPNDT Act and thereafter, filed a complaint before the Learned Metropolitan Magistrate on 22.11.2008.

It is also important to point out that meanwhile, the National Inspection and Monitoring Committee (referred to as NIMC hereinafter) which functions under the Ministry for Health and Family Welfare, had conducted a raid pursuant to her complaint dated 10.04.2008, where it was found that Out of the 103 Form Fs submitted by Jaipur Golden Hospital for the month of April, 2005, the Form F with regard to the Petitioner was not available, although another Form F of a patient whose ultrasound was conducted on the same day was found. This ultimately led to the appropriate authority also filing a Complaint CC No. 33/01/09 against Jaipur Golden Hospital, husband and in-laws.
The complaint dated 22.11.2008 which was filed by the Petitioner after due Compliance of Section 28 of the act of 1994, her pre-summoning evidence was recorded on 26.06.2010 and vide order dated 08.06.2011, the Learned Metropolitan Magistrate issued summons against Dr.Harsh Mahajan and Dr. Niten Seth, citing that there was sufficient prima facie material against them on record. There was an error in the summoning order and therefore, the High Court by order dated 03.05.2013 asked the Trial Court to pass a fresh summoning order after hearing. The Trial Court thereafter issued summoning Order dated 28.05.2013 finding prima facie against Dr. Harsh Mahajan and Dr. Niten Seth.
At this juncture, it is necessary to point out that in Paras 7, 9, 10 and 11 of the Complaint dated 22.11.2008, the Petitioner had clearly pointed out violation of PC-PNDTAct. In the pre-summoning evidence, the Petitioner specifically stated as follows:

“Next day morning they took me to Jaipur Golden Hospital casualty. From the casualty, I was referred to labour room despite the fact (that I was only 16 weeks pregnant at that time and I had come to the hospital with the medical problem of allergy. In the labour room I was given some injections after which I felt better. The gynaecologist took note of my past history of kidney infection (2 to 3 years before pregnancy) and she ordered a ultrasound scan of my whole abdomen With kidneys, ureter and bladder. Than I was taken to the ultrasound room where the accused No.3 i.e. radiologist instead of doing ultra sound whole Abdomen with kidney ureter bladder, also did a fetal ultrasound which had never been ordered by the gynecologist. The fetal ultrasound was done without my consent and knowledge. The photocopy of the ultrasound is Ex. CW-I/A (original seen and returned)”

XXXXXXX “I Came in possession of antenatal ultrasound from Jaipur Golden Hospital only in March, 2008 in that report there is a clear mention Of fetal ultrasound by accused No.3 without my Consent and knowledge and there is no declaration on the ultrasound report which is mandatory as per rule-9 (i)(a) of the PC-PNDT Act.”

The Learned Metropolitan Magistrate in the order dated 28.05.2013 prima facie found that material exists against the accused-Respondents to proceed and therefore, issued summons. This was challenged by Harsh Mahajan and Dr. Niten Seth in the Hon’ble High Court of Delhi in Criminal Miscellaneous Case No. 3128/2011 and Miscellaneous Case No. 731/2012.

In Miscellaneous Case No. 3128/2011, Dr. Harsh Mahajan admitted in the pleadings as follows:

“4(II) A doctor working in the centre of the Petitioner namely Dr. Niten Seth Conducted the ultrasound examination. As per the instructions of the gynaecologist an ultrasound of the abdomen with KUB was conducted and since the pregnant uterus was present in the same area and any problem in it could have been responsible for the abdominal pain the uterine and foetal ultrasound was also done by the radiologist, so as to not miss any diagnosable cause for the pain. Foetal ultrasound of the twin foetuses was also conducted to look for their viability and clinical status which could have been compromised as a result of the abdominal pain in case there was some complication in the foetus. Since no cause was found in the Kidney and urinary bladder (KUB) or elsewhere in the abdomen a uterine and foetal examination Was necessary. At no point in the report is there any attempt to hide the fact that a foetal examination had also been done and all aspects of foetal well being are note for each of the twins.”

XIII. It is noteworthy that the genetic clinic under Rule 9(8) of the PreConception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, 1996 (“PC-PNDT Rules”) in the present case will be the Jaipur Golden Hospital, being responsible for sending the Complete report in respect of pre-natal diagnosis of pregnancy related procedures and tests conducted by them. It is further submitted that under Section 3 of the PC-PNDT Act, genetic clinic in the present case will be only the Jaipur Golden Hospital in the premises of whom the Imaging Centre was functioning and providing the ultrasound facilities. Under the Act, it is only the Jaipur Golden Hospital which was registered and required to be registered and there is no requirement for the Imaging Centre to be registered separately for providing ultrasound facilities. The said fact is also evident from the of Section 19(4) of the Act, which mandates the genetic clinic to display the Certificate of registration in a conspicuous of the Jaipur place at its place of business. The business is Golden Hospital under whose control and Supervision the Imaging Centre was working. In the instant case also the registration was in the name of the Jaipur Golden Hospital, and not in the name of Mahajan Imaging Centre unit of partnership firm called Mahajan Diagnostics) of which the Petitioner at the relevant time was the partner.

XIV. The Petitioner got associated with the Jaipur Golden Hospital in October 2002 as a partner in firm Mahajan Diagnostics. The Petitioner observed that the Jaipur Golden Hospital was not complying with the PC-PNDT Act and accordingly the Petitioner on its own initiative started sending the reports under Rule 9(8) of the PC-PNDT Rules, although not obliged to do so by law. The Petitioner by merely complying with the law at his own initiative did not become the entity responsible for Sending the said reports as the said responsibility, in law, Continues to vest with the Jaipur Golden Hospital by virtue of the fact that they are the ones who are registered under the PC-PNDT Act and thus by law liable to send the reports under Rule 9(8) of the PC-PNDT Rules. It is for this reason only that the particular report for the month of April 2005 is submitted on the letterhead of the Imaging Centre and by virtue of which no legal obligation is taken on by the Petitioner which the Petitioner as otherwise is not liable to perform under the PC-PNDT Act or under the Rules. Since November 2008, the Jaipur Golden Hospital is itself sending the Form ‘F’ in respect of not only machines of the petitioner but also in respect to the other machines operating in the hospital and not operated by the Petitioner.”
In his pleadings in Miscellaneous Case No. 731/2012, Dr.Nitin Seth admitted as follows:

4.(i) That on 28.04.2005 one Dr. Mitu Khurana (the Complainant) came to consult a gynecologist at the Jaipur Golden Hospital being about four months pregnant with some pain in the abdomen. The gynecologist advised conduct of ultrasonography (USG) of the whole abdomen with Kidney Ureter Bladder. The Petitioner, then a Consultant Radiologist at the Mahajan Imaging Centre at the Jaipur Golden Hospital conducted the ultrasound by a detailed examination and recorded the actual Condition that he found On Such examination in his detailed report. The Complainant at that stage did not make any complaint. The ultrasound test report clearly discloses that no Sex determination test had been done”.

In view of these admissions, the High Court should not have interfered with the summoning order. However, the High Court made so many observations, committed several legal and factual errors and as mentioned above, on two points, set aside the summoning proceedings as Well as the Complaint.

The Petitioner submits that both the reasons given by the High Court are erroneous. The High Court did not consider the submissions which were made by the Petitioner at the time of arguments, also did not consider the written Submissions of the Petitioner,
The Petitioner had submitted that from the date of knowledge of offence, that is March 2008, the petition was within limitation. It was also submitted that even if there was some delay (in the present case, delay of 12 days) it should be condoned in the interest of justice. The Petitioner also submitted that the offence under PC-PNDT is against the society and therefore, should be treated as a continuing offence. The Petitioner cited the judgment of Vanka Radhamanohari (Smt). V. Vanka Venkata Reddy And Others, (1993)3 SCC 4, among several others, where this Hon’ble Court said as follows:

“7, it is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent, the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned, in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab v. Sarwan Singh (1981) 3 SCC 34 : 1981. SCC (Cr) 625 : AIR 1981. SC 1054) But, that consideration cannot be extended to matrimonial offences, where the allegations are of Cruelty, torture and assault by the husband or other members of the family to the Complainant, it is a matter of Common experience that victim is Subjected to such cruelty repeatedly and it is more or less like a Continuing Offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and Cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, Courts while considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to Cruelty by her husband or the relative of her husband, should judge that question; in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether “it is necessary to do so in the interests of justice”.

The High Court, however, held in para 34 that the Complaint is barred by limitation. This finding is factually and legally untenable and therefore, required to be interfered with by this Hon’ble Court.

The second ground on which the High Court has interfered related to Section 28 of the PCPNDT Act, under which notice is to be given to the Appropriate Authority before a complaint is filed before the Court. The Petitioner had sent the 15 day notice to the Appropriate Authority on 18.10.2008, which was received by the Appropriate Authority on 22.10.2008 and the complaint before the Learned Metropolitan Magistrate was filed by the Petitioner on 22.11.2008. The notice clearly refers to the Petitioner’s complaint dated 09.05.2008 and states that since the Appropriate Authority had failed to take action on her Complaint, she would be filing a Court case after 15 days of sending of the letter i.e. 15 days after 18.10.2008. Along with the complaint, the Petitioner enclosed a copy of the notice sent on 18.10.2008 with the postage receipt of the same day that showing that it was received. The Petitioner had also annexed file noting of the Appropriate Authority dated 22.11.2008 stating that a 15 day notice had been Submitted by the Petitioner stating her intent to file a complaint in Court with regard to her complaint dated 09.05.2008 within 15 days of her having sent the notice, that is, 18.10.2008. The Hon’ble High Court has committed a serious error in paragraphs 38-45 by holding that 15 days notice as per Sec.28 was not given by the Petitioner. The Petitioner, therefore submits that the second reason by the High Court on the basis of Section 28 is also required to be set aside.
The Petitioner wishes to submit that if a genetic clinic/doctor/concerned doctor does not comply with the requirement of law and does not fill up mandatory Form F, he commits an offence under Section 4, 5 read with Section 23 of the PCPNDT Act. As per the NIMC raid Conducted on 03.06.2008, Form F for all other patients other than the Petitioner existed which proves that Form F for the Petitioner was not filled up. The NIMC also found Several other violations of the PC-PNDT Act. The Courts have considered the impact of violation of not filling up of mandatory forms including Form-F or if any deficiency or inaccuracy is found in the records. The High Courts have held in such cases there will be a presumption of contravention of Sections 5 and 6, unless contrary is proved by the person conducting ultrasonography in the trial.

The Gujarat High Court vide judgment by a Full Bench in Suo Motu V. State of Gujarat (Criminal Reference No. 4 of 2008 with Criminal Reference No. 3 of 2008) observed that the proviso to Section 4 (3) of the PCPNDT Act clearly states that improper maintenance of records of Form F as prescribed under the Rules in cases of ultrasonography performed on pregnant women is in itself an independent violation of Sections 5 and 6 of the PC-PNDT Act and that Once any inaccuracy or deficiency is established, it is presumed that the person accused of such deficiency has violated Sections 5 and 6 of the Act. The burden of proof lies on the accused to prove that he has not contravened the aforesaid provisions. The relevant excerpt of the judgment is as follows:

  1. 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 loopholes in strict and full compliance are sought to be plugged by detailed provisions for maintenance and preservation of records. In order to fully Operationalize the restrictions and injunctions Contained in the Act in general and in sections 4, 5 and 6 in particular, to regulate the use of prenatal 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 subsection (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.”
    The Gujarat High Court further noted that apart from prosecution for violation of Section 5 and 6 of the Act, improper maintenance of records is also a valid ground for cancellation or suspension of registration of Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic under Section 20 of the PCPNDT Act. The High Court stressed that flouting of procedural requirements as prescribed by the Act and Rules cannot be dismissed as insignificant as compared to violations of substantive provisions since such an approach would result in failure of the purpose envisioned by the Legislature when the Act was brought into force. While reiterating that the proviso to section 4 (3) explicitly States that failure to maintain proper records amounts to an independent offence under Sections 5 and 6 of the Act, the Court deemed it appropriate to clarify that a Complaint under the Act need not specifically allege violation of Sections 5 and 6. A Complaint of inaccuracy or deficiency in maintaining records, once established, is sufficient to presume that Sections 5 and 6 have been contravened. The relevant paragraph of the judgment reads as follows:

“8.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 Counseling 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 Counseling 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.”

The High Court held that burden to prove that there is contravention of Sections 5 and 6 of the Act in a case of deficiency or inaccuracy in maintenance of records as prescribed by Section 4 (3) of the Act does not lie on the Prosecution. Furthermore, a situation where record of Form F for ultrasonography performed on a pregnant woman is not maintained at all must not be dismissed as inconsequential and is to be treated as an Offence in violation of Sections 5 and 6 of the Act. The relevant paragraphs read as follows:

“9 (iii) In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under Subsection (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.

9 (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.”
The Petitioner has raised an important question in this Special Leave Petition and therefore, urges this Hon’ble Court to decide the same in the interest of justice and for strict implementation of the PCPNDT Act.

LIST OF DATES
28.04.2004 The Petitioner (Dr. Mitu Khurana) got married as per Hindu rites and ceremonies to Dr.Kamal Khurana. Since her marriage, she suffered torture and humiliation on account of demand of dowry.
04.01.2005 The Petitioner became pregnant. Her husband and his family came to know that she had conceived twins. Thereafter, the husband of the Petitioner and his family started to mentally harass her asking her to undergo a sex determination test.
27.04.2005 Even after much harassment and torture, the Petitioner did not relent to the wishes of her husband and in-laws and refused to get a sex determination test. As they desperately wanted to be aware of the sex of the foetuses, the husband of the Petitioner and his family collectively connived to deceive the Petitioner into undergoing the test. On the night on 27.04.2005, though the family members were aware that the Petitioner was highly allergic to egg and that she would have acute abdominal pain and vomiting on ingestion of egg, the brother-in-law of her husband surreptitiously made her eat an egg-laced cake. This resulted in the Petitioner having acute abdominal pain and vomiting as expected.
28.04.2005: The Petitioner was taken to Jaipur Golden Hospital by her husband and his family, inspite of her repeated requests to take her to Ganga Ram hospital as she had been undergoing antenatal treatment there, if at all necessary as she said that she Could manage by herself at home with Self-medication. She was first taken to the casualty and then admitted in the labour room of the Jaipur Golden Hospital though she was only 16 weeks pregnant. The Consent in the admission slip to conduct any treatment or investigation on the Petitioner was given by her husband, although she was wide awake at the time at 9.34am. A true and correct copy of the admission slip at the Jaipur Golden Hospital dated 28.04.2005 is annexed herein as ANNEXURE P 1.(Page 81-84)
28.04.2005: According to the note sheet written by the doctor, Dr. SN Basu, the patient was feeling better by 10am and the foetal heartbeats Were also normal. At 12.30pm, the doctor Was informed that the Petitioner had suffered from pyelonephiritis (acute infection of the kidneys) and recurrent UTIs much before the Conception of the foetuses. After this, the doctor ordered a KUB ultrasound. A true and Correct Copy of the note sheet written by the gynaecologist at Jaipur Golden Hospital dated 28.04.2005 is annexed herein as ANNEXURE-P2. (Page 85-90)
28.04.2005: Dr. Niten Seth-Respondent, who was radiologist at Mahajan Imaging Centre located at the Jaipur Golden Hospital did the KUB ultrasound . However, under the Cover of doing KUB ultrasound, he did a detailed foetal ultrasound. This was done by Dr. Niten Seth when (i) there was no referral from the gynaecologist; (ii) the Consent of the Petitioner(pregnant Woman) was not taken; (iii) Form F which is mandatory under the PCPNDT was not filled up; (iv) mandatory declaration under Rule 10(1)(a) was not given by him. The fact that ultrasonography of the foetus was done has been admitted by Respondent-Dr, Niten Seth in his Revision Petition No. 713/2012, which will be referred to later. A true and correct copy of the KU-B ultrasound and the foetal ultrasound conducted by Dr. Nitin Seth on the Petitioner in Dr. Mahajan Imaging Centre dated 28.04.2005 is annexed herein as ANNEXURE-P3.

03.05.2005 : The Petitioner came to know subsequently through RTI dated 16.07.2008 that the Mahajan Imaging Centre, Working out of Jaipur Golden Hospital, submitted 103 Form Fs that were filled in the clinic in the month of April, 2005 to the District Appropriate Authority as the requirement of the P.N.D.T Rule 9(8) which states that: “Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall 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”. It is important to note that the Petitioner’s name did not feature in this list. It is striking to see that at Serial No.8, though the date of ultrasound of the other patient was the same as the day(i.e. on 28.04.2005) on which the foetal ultrasound was done on the Petitioner, the name of the Petitioner has been missed out. While it has been never denied by the Mahajan Imaging Centre or Dr. Harsh Mahajan or Dr. Niten Seth that a foetal ultrasound was done on the Petitioner, the absence of a filled Form-F is a clear violation of the provisions of the PCPNDT Act. The plea taken by Respondents was that Mahajan Imaging Centre not being registered was not bound to submit Form F. A true and Correct copy of the list of 103 Form Fs filled in April, 2005 submitted by Jaipur Golden Hospital is annexed herein as Annexure P4 (Page 93-98)

06.07.2005 : The Petitioner filed a complaint dated 06.07.2005 to the S.H.O, Janakpuri Police Station. In the complaint, she detailed the torture and mental harassment she was facing by her husband and his family. She stated that from the time they came to know that she was carrying twins, they started demanding her to undergo a sex determination test and abortion if both babies were female. While she maintained she did not want any Coercive action to be taken against them, she indicated that if anything happened to her or her babies, her husband and his family were to be blamed and that in case she returned to them, her life and that of her babies will be in danger. A true and correct copy of the complaint dated 06.07.2005 filed to the S.H.O.Janakpuri Police Station is annexed herein as ANNEXURE-P-5 (page 99-101)

11.08.2005: The Petitioner gave birth to two twin-girls.

12.03.2006: Another complaint was given by the Petitioner to the S.H.O, Janakpuri Police Station. She mentioned as to how her in-laws, after coming to know that she was carrying twin female babies were forcing her to undergo medical termination of the pregnancy or to atleast get one of the babies terminated as her mother-in-law had Come to know that it could be done for Rs.1 Lakh, She narrated how her husband Or her inlaws humiliated her because the babies were girls. A true and correct copy of the letter dated 12.03.2006 submitted by the Petitioner to the S.H.O, Janakpuri Police Station is annexed herein as ANNEXURE-P6. (Page 102-110)

09.06.2006: The Petitioner submitted a complaint to the Deputy Commissioner of Police, Woman Cell, Nanakpura, wherein she mentioned about the torture and abuse she faced at the hands of her husband and his family. A true and correct copy of the Complaint letter dated 09.06.2006 submitted by the Petitioner to the Deputy Commissioner of Police, Woman Cell, Nanakpura is annexed herein as ANNEXURE-P7. (Page 111-113)

16.06.2006: A reconciliation agreement was entered into between the Petitioner and her husband wherein Conditions 4 and 5 are relevant, which read as follows:
“4. Dr. Mitu Will not be pressurized for Conception to bear Sons’
5. 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”.
It is clear from this that was no denial on the part of her husband that he and his family made the Petitioner undergo a sex determination test. A true and correct copy of the reconciliation agreement dated 16.06.2006 entered into between the Petitioner and her husband is annexed herein as ANNEXURE-P8 (Page 114-116)

02.01.2008: The Petitioner sent a complaint through email to Ms. Reny Jacob, member Delhi Commission for Women, wherein she, interalia, pointed out as to how she suffered the torture of demand of sex determination by her in-laws. She mentioned that though she gave delivery to twin daughters on 11.08.2005, however fearing that her daughters will not be safe at in-laws place, she has been staying with her parents. She informed in the letter that she was Scared for her life and that of her daughters and the matter should be looked into, in Case anything unfortunate was to happen to either of them. A true and correct copy of the complaint dated 02.01.2008 sent by the Petitioner to Ms. Reny Jacob, Member, Delhi Commission for Women is annexed herein as ANNEXURE-P9 (Page 117-121).

March,2008: The Petitioner found the ultrasound report along with the discharge summary dated 28.04.2005 from her husband’s almirah. She was shocked to find Out that a foetal ultrasound was done along with a KUB(Kidney-Ureter-Bladder) ultrasound at Mahajan Imaging Center during her admission to Jaipur Golden Hospital on 28.04.2005, when she was admitted for allergy. This fact has been stated by her in her pre-summoning evidence before the Learned Metropolitan Magistrate.

10.04.2008: The Petitioner wrote a complaint dated 10.04.2008 to the National Commission for Women, a copy of which was also sent to the Minister in charge of the Ministry for Health and Family Welfare, which is also in charge for the implementation for the PCPNDT Act and which has the powers to order an enquiry into the complaint regarding violation of the PCPNDT Act. In this Complaint, she mentioned as to how she was admitted in the hospital and though only KUB ultrasound Was advised, her foetal ultrasound was done in order to find the sex of the foetuses. A true and correct copy of the complaint dated 10.04.2008 filed by the Petitioner to the National Commission for Women, a copy of which was also sent to the Minister in charge of the Ministry for Health and Family Welfare is annexed herein as ANNEXURE P 10 (Page 122-128)

19.04.2008 The Petitioner also sent a complaint to the ACP, Crime Against Women Cell, Kirti Nagar. A true and correct copy of the complaint dated 19.04.2008 filed by the Petitioner to the ACP, Crime Against Women Cell, Kirti Nagar is annexed herein as ANNEXURE-P11 (Page 129-137)

08.05.2008 Petitioner received an email from the Central PNDT Department, Nirman Bhawan, in response to her Complaint to the Ministry of Health and Family Welfare, informing her the address of the Appropriate Authority to whom she should file her complaint under the PCPNDT Act i.e., to District Appropriate Authority, Rohini. A true and correct copy of the email dated 08.05.2008 received by the Petitioner from the Central PNDT Department,Nirman Bhawan is annexed herein as ANNEXURE P-12,(Page 138)
09.05.2008 The Petitioner filed a complaint to the District Appropriate Authority, Rohini, pointing out that her ultrasound was Surreptitiously done, her in-laws came to know about the fetuses being female, they were pressurizing her to get an abortion. She requested them to investigate into the matter based on the information and documents submitted by her. The report of the ultrasound done at Jaipur Golden Hospital-Mahajan Imaging Centre was made an enclosure. An original copy as well as a true and Correct typed copy of the complaint dated 09.05.2008 filed by the Petitioner to the District Appropriate Authority, Rohini is annexed herein as ANNEXURE P-13.(Page 139-151)

21.05.2008 When no reply was received to her complaints to the Ministry of Health and Family Welfare and the District Appropriate Authority, the Petitioner filed an RTI to the Ministry of Health and Family Welfare so as to know the status of her complaint.

03.06.2008 After the RTI was filed by the Petitioner, a raid was conducted by the National Implementation and Monitoring Committee (which comes under the purview of the Central Ministry of Health and Family Welfare to which she had filed the related complaint to on 10.04.2008) at Jaipur Golden Hospital and several Serious violations of the PCPNDT act were found to have been Committed. Other than violations such as Form F in Some cases not being filled properly, Form F being filled at the reception, certificate of registration not being displayed, with regard to the complaint of the Petitioner, it was noted that “Form F in the case of Dr. Mitu Khosla (Khurana) was neither found in JGH records nor was sent to the AA North West District”. Custody of the file in respect of Dr. Mitu Khosla (28.04.2005) was taken into Custody. In view of these findings, a show cause notice was sent to Jaipur Golden Hospital under Section 2001) of the PCPNDT Act. It is relevant to point out here that in the present case, it is accepted by the Jaipur Golden Hospital and the Radiologist concerned that a foetal ultrasound was conducted but there was no Form F either found at the Hospital nor was it sent to the Appropriate Authority on 03.05.2005 along with 103 other form Fs for the same period and this in itself is a Serious violation under the PCPNDT Act. A true and correct Copy of the report dated 03.06.2008 of the raid conducted by the National Implementation and Monitoring Committee at Jaipur Golden Hospital is annexed herein as ANNEXURE-P14 (Page 152).

16.07.2008 The Petitioner was given a reply by the District Authority by reply dated 16.07.2008 to the RTI received in their office vide Diary No. 5818 dated 08.07.2008. It was informed that on the basis of her complaint, the Appropriate Authority had asked South and Central District to provide them with the photocopy of Form F of the ultrasound Conducted at Jaipur Golden Hospital on the complainant. They had replied that they would be unable to provide a copy of the same as the test was conducted in the year 2005 and they had already weeded out the same. It was also informed via the RTI reply that on a surprise raid to Jaipur Golden Hospital on 03.06.2008, records were checked and it was found that the ultrasonography (KUB) was done on the Petitioner by Dr. Niten Seth but Form F for the same was not filled. A show cause for this reason had also been issued to him. It was said that the matter is under process. A true and Correct Copy of the RTI reply dated 16.07.2008 received by the Petitioner is annexed herein as ANNEXURE P-15 (Page 153-154).

11.07.08 The Chief District Medical Officer(North West), Rohini, sent a Show Cause notice under Section 5/6 of PC-PNDT Act to Dr. Niten Seth for the reason that an ultrasound was conducted by him on Dr. Mitu Khurana. On 28.04.2005 but Form F Was not filled for the same as per hospital record. A true and Correct Copy of the show cause notice dated 11.07.08 sent by The Chief District Medical Officer(North West), Rohini to Dr. Niten Seth is annexed herein as ANNEXURE P-16 (Page 155-156).
02.09.2008 When Dr.Niten Seth was examined by the Office of the Chief District Medical Officer(North West), Rohini with regard to not filling up Form F, he evaded the direct questions asking him if he filed Form F in the Case of the Petitioner and Shirked off all responsibility by stating that he fills Form F in all cases and that he was only an employee and that hospital records must be checked. Relevant excerpts of his statement are produced below:
“Can you recall having filled Form F for patient Mitu Khosla on 28.04.05?

NitenSeth : I fill Form in alI Cases.
Form F was not found in this case in a subsequent search, What do you have to say about this?
NitenSeth : I have filled Form F in all cases, I was employee of the hospital. Please check the hospital records.”
A true and Correct Copy of the statement by Dr.Nitin Seth before the office of the Chief District Medical Officer(North West), Rohini dated 02,09,2008 is annexed herein as ANNEXURE P-17 (Page 157)

26.09.2008 Report of investigation team submitted to the Appropriate Authority Constituted a three member Committee to look into the complaint filed by the Petitioner. With regard to the ultrasound Conducted on the Petitioner by Dr. Niten Seth, the Committee stated the following:
“The USG at S.No. 4 was performed on 28.04.2005 at the Jaipur Golden Hospital, Delhi, which falls in North-West District, Delhi. The Form ‘F’ of this USG was not available in the records of the District as the same was not provided by the hospital at the time of submitting the routine report for that period.”
Though a finding was given by the Investigating Committee in conclusion of the investigation that the Form F of the USG performed on 28.04.05 at Jaipur Golden Hospital was not available, but still without giving any valid reason, it was concluded that there was no direct or circumstantial evidence of Sex determination. A true and correct copy of the report of the Investigating Committee dated 26.09.2008 is annexed herein as ANNEXURE P18.(Page 158-168)
18.10.2008 The Petitioner gave the requisite notice of 15 days under Section 28 of the PCPNDT Act to the District Appropriate Authority that she would be filing a complaint as they had failed to act on her complaint dated 09.05.2008. A true and correct copy of the notice dated 18.10.2008 given by the Petitioner to the District Appropriate Authority is annexed herein as ANNEXURE-P 19 (Page No 169). A copy of the postage receipt dated 18.10.2008 Confirming that the notice was received by the District Appropriate Authority is annexed herein ANNEXURE-P20.(Page 170)

22.10.2008 The District Appropriate Authority received the notice sent by the Petitioner and it was registered as PUC Diary No. 8764. The Petitioner has a copy of the file noting by an official of the District Appropriate Authority by which it was noted that they received the notice sent by the Petitioner on 22.10.2008 with regard to her complaint dated 09.05.2008 and that she will be filing the case in Court after 15 days of sending the notice, that is, 18.10.2008. A true and correct copy of the file noting of the District Appropriate Authority dated 22.10.2008 is annexed herein as ANNEXURE-P21 (Page 171)

14.11.2008 The Petitioner received a reply dated 14.11.2008 from the Ministry of Health and Family Welfare to the RTI application dated 08.10.2008 inquiring about the status of her earlier complaints. It was informed that as per her earlier RTI application dated 21.05.2008, it was verified by the NIMC during its inspection visit on 03.06.2008 and the State Appropriate Authority was advised to take further necessary action on the basis of the evidence gathered from the hospital. A true and correct copy of the reply dated 14.11.2008 from the Ministry of Health and Family Welfare to the RTI application dated 08.10.2008 is annexed herein as ANNEXURE P-22. (Page 172-174)

22.11.2008: The Petitioner filed Complaint Case No. 327/01/08 under Sections 5, 6 r/w Section 23, 24, 25 of the PCPNDT Act 2014 before the Learned Chief Metropolitan Magistrate, Delhi against Jaipur Golden Hospital, Mahajan Imaging Centre through its proprietor Dr. Harsh Mahajan, Dr. Nitin Seth, her husband and his family members. The Petitioner wrote in the complaint that She came to know the fact that sex determination was done When her husband told her about the same sometime in February/March 2006 it was confirmed when she received a reply from the District Appropriate Authority that no Form-F was submitted by Jaipur Golden Hospital regarding the ultrasound done on her. Her suspicion that the test was done by Dr.Niten Seth at Mahajan Imaging Centre, in Connivance with her husband and his family, was ensured by this fact.

She pointed out in the complaint that upon examination of the ultrasound report dated 28.04.2005, it was clear to her that a foetal ultrasound was conducted in detail was done without her Consent or knowledge and that there was no declaration given by Dr. Niten Seth that no sex determination was done which is mandatory under Rule 10(1)(a) of the PCPNDT Rules. She also categorically stated that there a glaring violation of the PCPNDT Act as no Form-F was submitted by the radiologist, as was evident from the fact that her Form F was not a part of the 103 Form Fs submitted by the hospital for the tests conducted in the month of April, 2005. The Petitioner alleged that the radiologist, Dr.Niten Seth was an employee of Dr.Harsh Mahajan, through Mahajan Imaging Centre and that they in Connivance with her husband and his family had Conducted a sex determination test. On her Without her Consent and knowledge and that these persons should be made jointly and severally liable under Sections 3, 4, 5, 6, 23, 24 and 25 of the PC PNDT Act. A true and correct copy of Complaint Case No. 327/01/08 dated 22.11.2008 filed by the Petitioner against Jaipur Golden Hospital, Mahajan Imaging Centre through its proprietor Dr. Harsh Mahajan, Dr. Nitin Seth, her husband and his family members before the Learned Chief Metropolitan Magistrate, Delhi is annexed herein as ANNEXURE-P23 (Page 175-184). Along With the Complaint, the Petitioner had also annexed the 15 day notice dated 18.10.2008 sent to the District Appropriate Authority and the postage receipt which showed that it was received by them.
26.05.2009: The Petitioner received a reply to an RTI filed by her with regard to the Form F in her Case from the Office of the District Appropriate Authority. It was stated that till date, no Form F has been made available either by Dr. Niten Seth or Jaipur Golden Hospital and that for that violation of the PCPNDT Act, a Complaint had been filed against them. A copy of the RTI reply dated 26.05.2009 received by the Petitioner is annexed herein as ANNEXURE-P24.(Page 185)

26.06.2010 to 01.07.2010 In her pre-summoning evidence in Complaint Case No. 327/01/08, the Petitioner stated as follows:

“I came in possession of antenatal ultrasound from Jaipur Golden Hospital only in March, 2008 in that report there is a clear mention of fetal ultrasound by accused No.3 without my Consent and knowledge and there is no declaration on the ultrasound report which is mandatory as per rule-9 (1)(a) of the PC-PNDTAct.”

A true and correct copy of the pre-summoning evidence of the Petitioner dated 28.06.2010 in Complaint Case No. 327/01/08 is annexed herein as ANNEXURE-P25, (Page 186-194)

08.06.2011. The Chief Metropolitan Magistrate issued a summoning Order dated 08.06.2011 against Mahajan Imaging Centre through Harsh Mahajan, Dr. Niten Seth and the husband of the Petitioner and his family members on the basis of the complaint dated 22.11.2008 filed by the Petitioner. It was stated in the Order that at the stage of issuing process, the Magistrate is concerned about the complaint and the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds to proceed against the accused. He noted that that there was sufficient material on record to prove that there Was a Contravention Of Rule 9 Of the PCPNDT Rules and that such deficiency or inaccuracy in filing of Form F is not a mere procedural lapse but an independent offence amounting to Contravention of the Section 5 and 6 of the PC PNDTAct. He also noted that it was clear that her husband and his family members had sought the aid of ultrasound clinic for the purpose of sex selection. The Chief Metropolitan Magistrate also observed that there was prima facie sufficient material on record to show that Mahajan Imaging Centre, Dr. Niten Seth had committed offences punishable under Section 23(1) of the PCPNDT Act and he issued Summons for them for the same offence. He noted that as Criminal proceedings had already been initiated against Jaipur Golden Hospital in Complaint No. 335/01/09, it need not be summoned. A true and Correct copy of the summoning order dated 08.06.2011 passed in Complaint Case No. 327/01/08 issued against Mahajan Imaging Centre through Harsh Mahajan and Dr. Niten Seth by the Chief Metropolitan Magistrate, Delhi is annexed herein as ANNEXURE-P 26. (Page 195-203)
29.08.2011 In the complaint case Cri. MC. No. 460/10 instituted against the Director of Jaipur Golden Hospital by the Appropriate Authority, the Director approached the High Court against his summoning order and in that case, a reply dated 29.08.2011 was filed by the Appropriate Authority. It was stated that the NIMC raided Jaipur Golden Hospital on 30.06.2008 and no Form F in case of the Petitioner was found. It was pointed out by her that the case against the Hospital could not be quashed on the basis that they had no liability to maintain the records for over two years, but that it initiated in the first place as the Form F of the Petitioner was not in the list of 103 Form Fs sent by the hospital for the month of April, 2005 which made it clear that Form F was not filled by Dr. Niten Seth, which is a clear violation of Section 23 of the PNPNDT Act. It was also emphasized in the reply that the limitation to file the complaint against the hospital would only begin once there was knowledge of the offence having been Committed and not when the Offence Was Committed. A true and correct copy of the reply affidavit filed by the Appropriate Authority in Crl. MC. No 460/10 before the Hon’ble High Court of Delhi is annexed herein as ANNEXUREP-27. (Page 204-206)

17.09.2011 Dr.Harsh Mahajan filed a petition being Criminal Misc Case No 3128 of 2011 under Section 482 of the Cr, PC read with Article 227 of the Constitution before the Hon’ble High Court of Delhi against the summoning order dated 08.06.2011 by the Metropolitan Magistrate in Criminal Complaint Case no. 327/01/08.

19.09.2011 In Criminal Miscellaneous Case No. 3128/2011, by which his Summoning Order dated 08.06.2011 was challenged, Dr.Harsh Mahajan was granted an ex-parte stay by Hon’ble High Court of Delhi by order dated 19.09.2011. A copy of the order dated 19.09.2011 passed by the Hon’ble High Court of Delhi in Criminal Miscellaneous Case No. 3128/2011 is annexed herein as ANNEXURE-P28.(Pages 207-208)

25.02.2012 Dr. Niten Seth filed a petition being Criminal Misc. Case No. 731 of 2011 under Section 482 of the Cr. PC read with Article 227 of the Constitution before the Hon`ble High Court of Delhi against the summoning order dated 08.06.2011 by the Metropolitan Magistrate in Criminal Complaint case no. 327/01/08.

27.02.2012 In Criminal Miscellaneous Case No. 731/2012, by which his summoning order dated 08.06.2011 was challenged, Dr.Nitin Seth was granted an ex-parte stay by Hon’ble High Court of Delhi by order dated 27.12.2012. A true and correct copy of the order dated 27.12.2012 passed by the Hon’ble High Court of Delhi in Criminal Miscellaneous Case No. 731/2012 is annexed herein as ANNEXURE-P29.(Page 209)

30.04.2013 During the pendency of the Petition, it came to the knowledge of the Petitioner that in Complaint Case No. 327/01/08, Jaipur Golden Hospital was not summoned under the erroneous belief that it was already summoned in the case CCNo. 33/01/09 filed by the Government, whereas it was director of Jaipur Golden Hospital, Dr. DK Baluja who was summoned. Therefore, the Petitioner filed application Cr.M.C No. 1740/2013 before the Hon’ble High Court of Delhi to correct this innocuous error.
03.05.2013 In view of the aforesaid error pointed out by the Petitioner, the Hon’ble High Court set aside the summoning order dated 08.06.2011, with a direction to the Trial Court to pass a speaking order after hearing the Learned Counsel for the Petitioner afresh. A true and correct of the order dated 03.05.2013 passed by the Hon’ble High Court of Delhi in Cr.M.C No. 1740/2013 is annexed herein as ANNEXURE-P30. Page 210

28.05.2013 The Learned Metropolitan Magistrate re-iterated what was said in the earlier summoning order dated 08.06.2011. While he took Cognizance of the offence Committed under the PCPNDT Act by Dr. Harsh Mahajan and Dr. Niten Seth, he did not issue a formal summoning order against Dr. Harsh Mahajan and Dr. Niten Seth as the Trial Court proceedings qua them were stayed by the Hon’ble High Court, as mentioned above. A true and correct copy of the summoning order dated 28.05.2013 passed by the Learned Metropolitan Magistrate is annexed herein as ANNEXURE-P31.(Page 211-217)

16.07.2013: An Additional Affidavit was filed by the Respondent- Harsh Mahajan stating that only Jaipur Golden Hospital was the genetic clinic as specified under Section 3 of the PCPNDT Act and Mahajan Imaging Centre merely functioned within the hospital’s premises. It was further stated that only Jaipur Golden Hospital was registered under the PCPNDT Act and that Mahajan Imaging Centre was not required to be registered separately for providing ultrasound facilities since it Worked under the Control and supervision of the hospital. Thus, the registration was in Jaipur Golden Hospital’s name and not in the name of Mahajan Imaging Centre of which Harsh Mahajan is a partner. A true and correct copy of the additional affidavit dated 16.07.2013 filed by Dr. Harsh Mahajan is annexed herein as ANNEXURE-P32 (Page 218-220)
21.10.2013 : In view of the change in circumstances with regard to the fresh order dated 28.05.2013, Dr. Harsh Mahajan and Dr. Niten Seth Were permitted vide order dated 21.10.2013 to file amended petitions in Criminal Miscellaneous Case No. 3128/2011 and Criminal Miscellaneous Case No. 731/2012 and were given 4 weeks to file the amended petition. A true and correct copy of the order dated 21.10.2013 passed by the Hon’ble High Court is annexed herein as ANNEXURE-P33 (Pages 221-222)

20.11.2013 The amended petition (Criminal Miscellaneous Case No. 3128/2011) was filed by Harsh Mahajan in the Hon’ble High Court of Delhi, challenging the summoning order dated 08.06.2011 and 28.05.2013 passed by the Learned Metropolitan Magistrate. The said petition contains the following admissions:

“4(II) A doctor Working in the centre of the Petitioner namely Dr.Niten Seth Conducted the ultrasound examination. As per the instructions of the gynaecologist an ultrasound of the abdomen with KUB was Conducted and since the pregnant uterus was present in the same area and any problem in it could have been responsible for the abdominal pain the uterine and foetal ultrasound was also done by the radiologist, so as to not miss any diagnosable cause for the pain. Foetal ultrasound of the twin foetuses was also conducted to look for their viability and clinical status which could have been compromised as a result of the abdominal pain in case there was some complication in the foetus. Since no cause was found in the Kidney and urinary bladder (KUB) or elsewhere in the abdomen a uterine and foetal examination was necessary. At no point in the report is there any attempt to hide the fact that a foetal examination had also been done and all aspects of foetal well being are note for each of the twins.”

XIII. It is noteworthy that the genetic clinic under Rule 9(8) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, 1996 (“PC-PNDT Rules”) in the present case will be the Jaipur Golden Hospital, being responsible for sending the complete report in respect of pre-natal diagnosis of pregnancy related procedures and tests conducted by them. It is further submitted that under Section 3 of the PC-PNDT Act, genetic clinic in the present case will be only the Jaipur Golden Hospital in the premises of whom the Imaging Centre was functioning and providing the ultrasound facilities. Under the Act, it is only the Jaipur Golden Hospital which was registered and required to be registered and there is no requirement for the Imaging Centre to be registered separately for providing ultrasound facilities. The said fact is also evident from the of Section 19(4) of the Act, which mandates the genetic clinic to display the certificate of registration in a conspicuous of the Jaipur place at its place of business. The business is Golden Hospital under whose control and supervision the Imaging Centre was working. In the instant case also the registration was in the name of the Jaipur Golden Hospital, and not in the name of Mahajan Imaging Centre unit of partnership firm called Mahajan Diagnostics) of which the Petitioner at the relevant time was the partner.

The Petitioner got associated with the Jaipur Golden Hospital in die October 2002 as a partner in firm Mahajan Diagnostics, The Petitioner observed that the Jaipur Golden Hospital was not complying with the PC-PNDT Act and accordingly the Petitioner On its own initiative started sending the reports under Rule 9(8) of the PC-PNDT Rules, although not obliged to do so by law. The The Petitioner by merely complying with the law at his own initiative did not become the entity responsible for sending the said reports as the said responsibility, in law, continues to vest with the Jaipur Golden Hospital by virtue of the fact that they are the ones who are registered under the PC-PNDT Act and thus by law liable to send the reports under Rule 9(8) of the PC- PNDT Rules. It is for this reason only that the particular report for the month of April 2005 is submitted on the letter head of the Imaging Centre and by virtue of which no legal obligation is taken on by the Petitioner which the Petitioner as otherwise is not liable to perform under the PC-PNDT Act or under the Rules. Since Novernber 2008, the Jaipur Golden Hospital is itself sending the Form ‘F’ in respect of not only machines of the petitioner but also in respect to the other machines operating in the hospital and not operated by the Petitioner.”

In his amended petition, Dr. Harsh Mahajan stated that the Petitioner in her complaint to the Appropriate Authority admitted that when she made her complaint, she was not aware of any sex determination test done on her by the Jaipur Golden Hospital. This is not only factually incorrect, but a striking observation has to be made with regard to a document filed by Harsh Mahajan. In his amended petition, the complaint dated 09.05.2008 filed by the Petitioner before the District Appropriate Authority has been filed as ANNEXURE-P6. On the basis of this, Dr. Harsh Mahajan claims that the Petitioner in her complaint did not suspect that the said test was done at Jaipur Golden Hospital as she did not enclose any ultrasound test that was done on her at Jaipur Golden Hospital. What is to be noted is that in the original complaint, it is clearly marked at the end of the document that it is ultrasound report of Jaipur Golden Hospital and Mahajan Imaging Centre and what was annexed is the ultrasound report which was on the letterhead which consisted of Mahajan Imaging Centre and Jaipur Golden Hospital. The relevant excerpt is produced below:

“Enclosures :
1. a booklet of photocopies of 30 pages of letters to police stations and women cell.
2. photocopies of ultrasounds of
• Neeraj Diagnostic Clinic
• Sir Ganga Ram Hospital
• DrHandas Imaging Center
• Jaipur Golden Hospital
• Mahajan Imaging Center
• Ultrasound Lab”

But surreptitiously, to mislead the Court, in the copy of the complaint filed by Dr. Harsh Mahajan, the part of the complaint which clearly shows that the ultrasound reports of Mahajan Imaging Centre has been enclosed has been removed. Even more glaring is the fact that in the original copy of the complaint annexed by Dr. Mahajan, the part with the annexures is completely missing while in the typed copy, only the part which mentions Jaipur Golden Hospital and Mahajan Imaging Center have been deleted. The relevant part is reproduced below:

Enclosures:
1. a booklet of photocopies of 30 pages of letters to police stations and Women cell.
2. photocopies of ultrasounds of
• Neeraj Diagnostic Clinic
• Sir Ganga Ram Hospital
• Dr handas Imaging Center”

The malafide intentions and conduct of the revision petitioners cannot be made more clear than through this forgery.

A true and correct copy of the amended petition Criminal Misc. Case No. 3128/2011 dated 20.11.2013 filed by Dr. Harsh Mahajan is annexed herein as ANNEXURE-P34 (223-242). A Copy of the complaint dated 09.05.2008 as filed by Dr. Harsh Mahajan along with Criminal Misc. Case No. 3128/2011 dated 20.11.2013 as ANNEXURE P-6 is annexed herein as ANNEXURE P35 (243-254).
16.04.2014 Reply to the amended petition Criminal Misc. Case No. 3128/2011 was filed by the Petitioner. She reiterated the contents of the earlier complaints filed by her before various authorities and emphasised that from the various materials on record, it was clear that Dr. Harsh Mahajan and Dr. Niten Seth was in clear violation of the provisions and rules of the PCPNDT Act. While relying on the Full Bench judgment of the Bombay High Court in Dr. Suhasini Umesh Karanjkar V. Kolhapur Municipal Corporation, she said that once it has been established that records of ultrasound Were not maintained, the onus to prove that is on the accused and that it is a matter of trial. With regard to the issue of her complaint being barred by limitation, she stated that the fact that a foetal ultrasound was Conducted on her came into her knowledge only in March 2008 when she came across the report dated 28.04.2005 and that immediately thereafter, she made many complaints about the same to various agencies and authorities empowered to take action and that hence, her complaint was not barred by limitation. She also said that it was on 16.07.2008 when she received an RTI Reply from the Appropriate Authority stating that no Form F was filled during her ultrasound on 28.04.2005, she was aware that the sex determination was conducted Surely at Mahajan Imaging Centre in Connivance with her husband and his family.

The Petitioner stated that it was only due to the influence and power of the revision petitioners that the enquiry committee gave a report that there was no sex determination despite noting that the records submitted did not have the Form F of the Petitioner. While relying on the full bench judgment of Suo Motu v. State of Gujarat, 2009(1) GLR 64, she pointed out that this in itself was a violation of Sections 4, 5 and 6 of the PC PNDT Act.

To the justification provided that the foetal ultrasound also happened to be done while confirming through entire abdomen ultrasound that the health of the foetuses was intact, the Petitioner submitted a template for reporting ultrasound of Whole abdomen which said that other organs such as liver, Spleen, gallbladder, pancreas, etc. should also be included in a report of whole abdomen. She also pointed out that her report dated 28.04.2005 does not mention important ingredient of KUB ultrasound such as size of kidneys, volume of bladder, etc. It is amply clear from this that the ultrasound was only done so as to deceive the Petitioner into undergoing a sex determination test. A true and correct copy of the reply to the amended petition Criminal Misc. Case No. 3128/2011 filed by the Petitioner is annexed herein as ANNEXURE P-36 (Page 255-319)

26.11.2014: An amended petition was filed in Criminal Misc. Case No. 731/2012 by Dr. Niten Seth-Respondent. In the Petition, it was admitted by Dr. Niten Seth that:

“4.(1) That on 28.04.2005 one Dr. Mitu Khurana (the Complainant) came to Consult a gynaecologist at the Jaipur Golden Hospital being about four months pregnant with Some pain in the abdomen. The gynaecologist advised conduct of ultraSonography (USG) of the whole abdomen with Kidney Ureter Bladder. The Petitioner, then a Consultant Radiologist at the Mahajan Imaging Centre at the Jaipur Golden Hospital Conducted the ultrasound by a detailed examination and recorded the actual Condition that he found on such examination in his detailed report. The Complainant at that stage did not make any complaint. The ultrasound test report clearly discloses that no sex determination test had been done”.

A true and correct copy of the amended petition dated 03.12.2014 filed by Dr. Niten Seth before the Hon’ble High Court in Criminal Misc. Case No. 731/2012 is annexed herein as ANNEXURE-P37 (page 320-339).

02.03.2015: The reply to the amended petition Criminal Misc. Case No. 731/2012 was filed by the Petitioner on 02.03.2015. The Petitioner reiterated her contents of the reply to the amended petition by Dr. Harsh Mahajan and emphasised that Dr. Niten Seth has prima facie clearly violated the provisions of the PCPNDT Act by not filling in Form F and for not giving the mandatory declaration under Rule 10(1) (a) that no sex determination was done during the ultrasound. A true and correct copy of the reply filed by the Petitioner to petition Criminal Misc. Case No. 731/2012 is annexed herein as ANNEXURE P38 (Page 340-394)
29.09.2015: By order dated 29.09.2015, in C.C. No. 327/01/08, the Jaipur Golden Hospital and the husband of the Petitioner and his family members were discharged by the Metropolitan Magistrate to following çited reasons:

(a) As per the case of Complainant in Jaipur Golden Hospital, her case for admission was recommended by Casualty Doctor and ultrasound was recommended by another doctor Who was a Gynaecologist. Both these doctors have not been arrayed as accused and there is no allegation against them. This court is of the Considered view that no Occasion for ultrasound test would have arisen unless complainant had not been admitted on the recommendation of Casualty Doctor and her ultrasound had not been recommended by Gynaecologist.

(b) As per the Case of Complainant, she was taken to Jaipur Golden Hospital although she wanted to get treatment at Ganga Ram Hospital. This court is of the considered view that as per the testimony of complainant she was in severe pain and it is very natural on the part of any reasonable man to take the patient in nearer Hospital in Such case instead of taking the patient to distant hospital,

(c) As per testimony of complainant on 26.03.2008 while she was shifting in rented accommodation documents relating to Jaipur Golden Hospital came in her hand and only then she came to know that sex determination was conducted at Jaipur Golden Hospital. As per complainant, said document is incriminating against accused. This court is of the considered view that there was no use of such document for accused no. 4. and it is highly improbable that a reasonable man will keep safely any document which is of incriminating nature against him instead of destroying the same.

(d) Complainant of this case is a Doctor. Even her parents are doctors and her sister is a Radiologist. This court is of the considered view that it is highly improbable that a person who is from Doctor Profession will not see his discharge Summary after discharge from treatment. (e) AS per the case of Complainant, in the year 2006 in drunken state, accused no. 4 admitted before her that they got Conducted the sex determination during her pregnancy, however, as per complainant she did not believe the same as she was not aware that where said sex determination was done and so she did not file any case. As per testimony of Complainant, she was admitted in Jaipur Golden Hospital against her wish and Form F was also not filled up and in all Other hospitals said form was filled up whenever ultrasound Was conducted during pregnancy. This court is of the considered view that in View of the above facts, complainant could easily find out the hospital where sex determination was Conducted.

(f) It is also relevant to mention here that present Complaint has been filed after institution of matrimonial proceeding between the parties and filing of number of Complaints against accused persons by Complainant.” A revision petition has been filed by the Petitioner against the above order dated 20.09.2015 and it is currently pending before Rajneesh Kumar; Spl. Judge-II, CBI, Rohini Court,

22.01.2016 Petitioner filed written submissions in support of her contentions before the High Court. A true and correct Copy of the written submissions dated 22.01.2016 filed by the Petitioner before the High Court is annexed herein as ANNEXURE-P39 (P-395-412).
25.04.2016 Ву impugned order dated 25.04.2016, the Hon’ble High Court while allowing both the petitions under Section 482 quashed the summoning orders dated 08.06.2011 and 28.05.2013 against both Dr. Harsh Mahajan and Dr Niten Seth, all the Consequential proceedings arising Out of the complaint, as well as the complaint by holding that it was barred by limitation and that before filing the Complaint, the mandatory procedure under Section 28 of the PC-PNDT Act was not complied with by the Petitioner.
08.08.2016 Present Special Leave Petition filed against Order dated 25.04.2016 passed by the Hon’ble High Court of Delhi in Cri. Misc. Case No. 3128/2011 and Cr, Misc. Case No. 731/2012.

THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS HON’BLE COMPANION JUDGES OF THE SUPREME COURT OF INDIA.
THE SPECIAL LEAVE PETITION OF THE PETITIONER MOST RESPECTFULLY SHOWETH:

That this Special Leave Petition has been filed against the common order/ judgment dated 25.4.2016 passed by the High Court of Delhi at New Delhi in Criminal Misc. Case No. 3128 of 2011 (Harsh Mahajan v. State of NCT & Anr.) and Criminal Misc. Case No. 731 of 2012(Nitin Seth v. State of NCT & Anr.), by which the High Court has set aside Summoning Orders dated 08.06.2011 and 28.05.2013, all Consequential proceedings arising out the Complaint and the Complaint on two grounds- that the complaint was barred by limitation and that the mandatory requirement under Section 28 of the PCPNDT Act was not complied with by the Petitioner. It is against this impugned Common order/judgment that the present Special Leave Petition has been filed.

2. QUESTIONS OF LAW: The following questions of law arise for consideration by this Hon’ble Court:

  1. Whether the High Court Committed a serious error in holding that the complaint of the Petition before the Metropolitan Magistrate was barred by limitation?

  2. Whether the High Court’s findings on Section 28 of the PCPNDT Act in the factual background of the Petitioner’s case are justified and Correct, factually and legally?

  3. Whether the High Court Committed a jurisdictional error in interfering with the impugned order of summoning when in revision the limited role of the High Court was to see whether the summoning order suffered from any serious illegality or perversity?

  4. Whether the High Court acted contrary to the law laid down by this Hon’ble Court in Bhushan Kumar & Anr. V. State (NCT of Delhi), 2012 (5) SCC 424, with regard to its powers to interfere with summoning orders?

  5. Whether the High Court exceeded its jurisdiction under Section 482 by quashing the Complaint Contrary to the law laid down by this Hon’ble Court in Central Bureau of Investigation v. A. Ravishankar Prasad &Ors, 2009(6) SCC 351?

  6. Whether the High Court Committed a serious error resulting in miscarriage of justice to the Petitioner when it did not consider the factual and legal Submissions made by the Petitioner?

  7. Whether the High Court ought to have seen that the facts indicated prima facie that Form F in relation to ultrasonography on the foetuses of the Petitioner was not filled, whether a Case violating Sections 4, 5 read with 23 of the Act was committed by the accused and that to show otherwise, the burden lay on the Respondents-accused?

3. DECLARATION IN TERMS OF RULE 2(2) The Petitioner states that no other petition seeking leave to appeal has been filed by him against the impugned judgment and order.
4. DECLARATION IN TERMS OF RULE 5: The Annexures P-1 to P- produced along with Special Leave Petition are true Copies of the pleadings/documents which formed part of the records of the case in the Courts below against whose order, the leave to appeal is Sought for in this Petition.

5. GROUNDS:
The leave to appeal is sought for on the following, amongst other, grounds:
1. Because the High Court gravely erred in passing the impugned order. It exceeded the revisional jurisdiction in interfering with the Summoning orders. It is settled law that at the time of issuing summons, the Court only has to see whether a prima facie case is made out. At that stage, the Court cannot look into any documents Or arguments advanced by the accused in support of his defence. Therefore, the limited jurisdiction which can be exercised by the High Court in revision is to see whether the finding of the MM in holding that a prima face case exists suffers from any perversity. It is necessary to point out that in Paras 7, 9, 10 and 11 of the Complaint dated 22.11.2008, the Petitioner had clearly pointed out violation of PCPNDT Act. In the pre-summoning evidence, the Petitioner specifically stated as follows:
“Next day morning they took me to Jaipur Golden Hospital Casualty. From the Casualty, I was referred to labor room despite the fact (that I was only 16 weeks pregnant at that time and I had come to the hospital with the medical problem of allergy. In the labor room I was given some injections after which I felt better, The gynecologist took note of my past history of kidney infection (2 to 3 years before pregnancy) and She Ordered a ultrasound Scan of my whole abdomen With kidneys, ureter and bladder. Than I Was taken to the ultrasound room where the accused No.3 i.e. radiologist instead of doing ultra Sound whole Abdomen with kidney ureter bladder, also did a fetal ultrasound which had never been ordered by the gynecologist. The fetal ultrasound was done without my Consent and knowledge. The photocopy of the ultrasound is Ex. CW-I/A (Original seen and returned)”
XXXXXX “I came in possession of antenatal ultrasound from Jaipur Golden Hospital only in March, 2008 in that report there is a clear mention of fetal ultrasound by accused No.3 without my Consent and knowledge and there is no declaration on the ultrasound report which is mandatory as per rule-9 (i)(a) of the PC-PNDT Act.”

The Learned Metropolitan Magistrate in the order dated 28.05.2013 prima facie found that material exists against the accused-Respondents to proceed and therefore, issued summons.
A bare reading of both the summoning orders clearly show that the learned Metropolitan Magistrate had looked into the material which existed on record in the form the Complaint Submitted by the Petitioner and related documents and found that a prima facie Case existed to issue summons. The Learned MM has also given detailed reasons in support of the summoning order. It is submitted that the summoning orders are legally tenable; they have been passed after arriving at the finding that prima facie Sufficient material exists and that at the stage of exercising revisional jurisdiction, the High Court Could not have interfered with these summoning Orders. Further, in several decisions, this Hon’ble Court has held that it is only in rare cases that the powers under Section 482 CrPC should be exercised. While exercising the powers under Section 482 CrPC, the Court Cannot act as if it is conducting the trial itself and all that it has to look into is whether a prima facie case existed on the basis of the complaint on the basis of which the Summoning Order was made.

  1. Because in the Case of Bhushan Kumar & Anr. V. State (NCT of Delhi), 2012(5) SCC 424 this Hon’ble Court, while referring to several judgments, settled the law that if in the opinion of the Magistrate taking Cognizance of an offence, there is sufficient ground for proceeding, then the Summons may be issued. Relevant paragraphs from the above mentioned judgment are referred to below for ready reference:
      13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the Section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.

15. In Kanti Bhadra Shah & Anr. VS. State of West Bengal, 2000) 1. SCC 722, the following passage Will be apposite in this Context:

  1. If there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, Why should the already burdened trial Courts be further burdened with Such an extra Work. The time has reached to adopt all possible measures to expedite the Court procedures and to chalk Out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the Counsel would address arguments at all stages, the Snail-paced progress of proceedings in trial Courts Would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if Such a detailed Order has been passed for culminating the proceedings before them. But it is quite unnecessary to Write detailed Orders at Other stages, such as issuing process, remanding the accused to Custody, framing of charges, passing Over to next stages in the trial” (emphasis supplied)

  2. In Smt. Naga WWa VS. Veeranna ShİValingappa Konjalgi & OrS. (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion. On the merits Or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into Consideration improbabilities appearing on the face of the Complaint or in the evidence led by the Complainant in support of the allegations. The Magistrate has been given an undoubted disCretion in the matter and the discretion has to be judicially exercised by him. It was further held that: (SCC p. 741, para 5)
    5. Once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to Substitute its own disCretion for that of the Magistrate or to examine the case on merits with a view to find Out Whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.”

  3. In Chief Controller of Imports & Exports Vs. Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in para 9, held as under: (SCC pp. 145-46)

9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for Conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W. B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6).The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process.There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused Cannot be quashed merely on the ground that the Magistrate had not passed a speaking Order.”
18. In U.P. Pollution COntrOl BOard VS. Dr.Bhupendra Kumar Modi & Anr., (2009) 2. SCC 147, this Court, in paragraph 23, held as under: (SCC p. 154)

  1. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly Concerned with the allegations made in the Complaint or the evidence led in Support of the same and he is only to be prima facie Satisfied whether there are sufficient grounds for proceeding against the accused.

  2. This being the settled legal position, the Order passed by the Magistrate could not be faulted with only on the ground that the summoning Order was not a reasoned Order.”

From the above judgments, it is amply clear that at the time of issuing of summons, it is not necessary for there to be evidence to support the Conviction of the accused as that is a part of the trial. At the Summoning stage, it is only necessary that there is a prima facie Case against the Summoned individuals. Hence, the Hon’ble High Court Committed an error in setting aside the summoning orders as there was clearly a prime facie Case against both Dr.Harsh Mahajan and Dr. Niten Seth and the Learned Magistrate had clearly set out the reasons and the provisions of law under which they were being summoned.
3. Because the revision petitions were filed by Dr. Harsh Mahajan and Dr. Niten Seth under Section 482 of the Criminal Procedure Code. Section 482 states the inherent power of the High Court and it reads as follows:

  1. Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to Secure the ends of justice.”
    It is settled law that the power of quashing under Section 482 can only be used in rare circumstances and it should only be done when the High Court needs to interfere so as to prevent the abuse of justice and to do Complete justice.

In the case of Central Bureau of Investigation v. A. Ravishankar Prasad & Ors., 2009(6) SCC 351, it was held that it must only be in exceptional circumstances that the inherent power of the High Court be used. Relevant excerpts of the said judgment are reproduced below for ready reference:
18. Inherent powers under Section 482 CrPC can be exercised in the following category of Cases:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of Court; and
(iii) to otherwise Secure the ends of justice.

  1. This Court time and again has observed that the extraordinary power under Section 482 CrPC should be exercised sparingly and with great care and caution. The Court Would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. In order to understand the nature and Scope of power under Section 482 CrPC it has become necessary to recapitulate the ratio of the decided Cases,

  2. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866 : (1960) 3 SCR 388] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (AIR p. 869, para 6)
    (i) where it manifestly appears that there is a legal bar against the institution Or Continuance of the proceedings;

(ii) where the allegations in the first information report or Complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(ii) where the allegations Constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

  1. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise.
    The Court must be careful to ensure that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down with regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. Ed. Similar observations as in paras 21 to 23 herein were made in Inder Mohan Goswami V.State Of Uttaranchas (2007) 12 SCC 1, pp. 10-11, paras 25-27.)
  2. This Court had an occasion to deal with the Concept of inherent powers in State of Karnataka v. L. Muniswamy (1977) 2. SCC 699 : 1977 SCC (Cri) 404). The Court again reiterated that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it Comes to the Conclusion that allowing the proceeding to Continue Would be an abuse of the process of the Court or that the ends of justice require that the proceeding Ought to be quashed.
  3. The High Courts have been invested with inherent powers, both in civil and Criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a Weapon of harassment or persecution. The Court observed in L. Muniswamy case (1977) 2. SCC 699 : 1977 SCC (Cri) 404) that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of Subsequent cases of this Court and other Courts.
  4. In another leading Case State of Haryana v. Bhajan La/ (1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426) this Court in the backdrop of interpretation of various relevant provisions of CrPC under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following Categories of cases by Way of illustration wherein Such power Could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (SCC pp. 378-79, para 102)
    “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie Constitute any offence or make Out a Case against the accused.
    (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a Cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
    (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence Collected in support of the same do not disclose the Commission of any offence and make Out a case against the accused.
    (4) Where the allegations in the FIR do not Constitute a cognizable offence but Constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or Complaint are SO absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is Sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act Concerned (under which a Criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act Concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for Wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
29. The decision in CBI V. Duncans Agro Industries Ltd. (1996) 5 SCC 591 : 1996 SCC (Cri) 1045) was relied upon by the learned Counsel for the respondents. The Court observed that: (SCC p. 607, para 26)
26, … for the purpose of quashing the Complaint, it is necessary to consider whether the allegations in the Complaint prima facie make out an offence or not. It is not necessary to scrutinise the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. Any action by Way of quashing the complaint is an action to be taken at the threshold before evidences are led in Support of the Complaint. For quashing the complaint by Way of action at the threshold, it is, therefore, necessary to consider whether on the face of the allegations incorporated in a complaint or FIR), a criminal offence is Constituted or not.”

  1. In B.S. Joshi v. State of Haryana (2003) 4 SCC 675 : 2003 SCC (Cri) 848), the Court reiterated the legal position that the Court’s inherent powers have no limit but should be exercised with utmost care and caution. Inherent powers must be utilised with the Sole purpose to prevent the abuse of the process of the court or to otherwise Secure the ends of justice. In exercise of inherent powers, proper scrutiny of facts and circumstances of the case Concerned are absolutely imperative.”

This view was again re-iterated by a 3 judge bench of this Hon’ble Court in Gian Singh v. State of Punjab & Another, 2012(10). SCC 303.

  1. Because in the present case, in light of the above judgments, it was not right for the Hon’ble High Court to interfere with the summoning Order as none of the criteria as mentioned in the above judgments have been met. The Petitioner submits that it would meet the ends of justice that if judgment dated 25.04.2016 is set aside and the trial is allowed to be Continued against the accused Dr. Harsh Mahajan and Dr. Niten Seth as there is a strong prima facie Case against them.
  2. Because the High Court failed to Consider that there is a very strong prima facie Which exists against both accused Dr.Harsh Mahajan and Dr.Niten Seth simply by their own admissions in their petitions under Section 482. The following admissions by Dr.Harsh Mahajan make it amply clear:
    4a It is admitted in Para 4(II) that Dr. Mitu Khurana, who was pregnant at the relevant time was Subjected to ultraSonography test. It is admitted that “the uterine and foetal ultrasound was also done by the radiologist so as to not to miss any diagnostic cause for the pain”. In defense, it is stated in para 4(III) that ultraSonography does not per se discloses sex of the foetus and that therefore, it cannot be conceded that during examination of the foetuses, the sex was also determined.
    B. Dr. Harsh Mahajan has stated that it was Jaipur Golden Hospital which was registered under the provisions of PC-PNDT Act as a genetic clinic and that in those premises, his imaging Centre was functioning and Was providing ultraSOund facilities, It is his submission in defense that there was no requirement for the imaging Centre to be registered separately for providing ultrasound facilities.

C. Dr. Harsh Mahajan’s further statement is that Jaipur Golden Hospital Was not complying With the PC-PNDT Act and that on its violation, he started sending their reports under Rule 8 although he was not obliged to do so. He admits that the reports for the month of April, 2005 was sent on the letterhead of the imaging centre.

D. The ultrasound on the Petitioner was done by Dr Niten Seth who was working in the Imaging Centre. It was thus established that the ultrasonography on the Petitioner was done by Dr Niten Seth in the imaging centre of which Dr Harsh Mahajan is a partner and that Mahajan Imaging Centre was not registered and that no forms including Form-F was filled up. It is submitted that these facts are sufficient, not only for prima facie summoning the accused but also for his Conviction under the PC-PNDT Act. The above admitted facts prove that Dr Harsh Mahajan Was violating Section 3(1), 4(3) proviso read with Section 5 and 6, Section 19 and 23 read With Rule 9.
6. Because Dr. Nitin Seth also admitted in his petition under Section 482 CrPC as follows:
“4.(1) That on 28.04.2005 one Dr. Mitu Khurana (the Complainant) Came to COnSult a gynaecologist at the Jaipur Golden Hospital being about four months pregnant with Some pain in the abdomen. The gynaecologist advised Conduct of ultrasonography (USG) of the whole abdomen with Kidney Ureter Bladder. The Petitioner, then a Consultant Radiologist at the Mahajan Imaging Centre at the Jaipur Golden Hospital conducted the ultrasound by a detailed examination and recorded the actual Condition that he found on such examination in his detailed report. The Complainant at that stage did not make any complaint. The ultrasound test report clearly discloses that no sex determination test had been done”.
That the following prima facie case exists against Dr.Niten Seth on the basis of Which the summoning order was issued:
a. Dr. Niten Seth did ultrasonography on a pregnant woman without her Consent as required under Section 5.
b. Dr. Niten Seth did not fill up Form-F which is mandatory. The said Form-F also Contains the declaration of the person undergoing prenatal diagnostic test as Well as declaration of the doctor Besides the fact that he did not take the Consent as mandated by section 5. Dr. Niten Seth thus Committed an offence under Section 4(3) proviso,
c. There is no declaration by Dr. Niten Seth as required Under Rule 10(1)(a) which requires that the person Conducting ultraSonography on a pregnant Woman shall give a declaration on the ultrasonography report that the sex of the foetus of the pregnant woman has neither been detected nor disclosed.
d. Dr. Niten Seth Was Working With Mahajan Imaging Centre which was not registered under the provisions of the PC-PNDT Act.
e. Dr. Niten Seth’s reason for alleging that no sex determination was done was that the foetal ultrasound report dated 28.04.2005 did not specify the sex of the child. This reasoning cannot be accepted as no doctor Will disclose in Writing Sex of the foetus as it would be put as an evidence against him; that is why the act of not filling up Form F is penalized under the PCPNDT Act.
The above facts establish that Dr. Niten Seth has Committed offences under the PC-PNDT Act and is liable to be prosecuted under Section 23(1) of the PCPNDT Act. The High Court has committed a serious error in not considering the above clear admission by Dr. Niten Seth and quashing the summoning order.
7. Because it is essential under Section 18 of the PC-PNDT Act that no person can establish any genetic Counselling centre, genetic laboratory or genetic clinic, including clinic, laboratory or centre having ultrasound or imaging machine or Scanner or any other technology capable of undertaking determination of sex of foetus and Sex Selection to be registered under the Act.
It was admitted by Dr. Harsh Mahajan in his Section 482 petition that it was only Jaipur Golden Hospital which was registered under the PCPNDT Act and that hence, there was no requirement for the Imaging Centre to be registered separately. It was said that the business Was that of the Jaipur Golden Hospital under whose control and supervision the Mahajan Imaging Centre Was Working. He alleged that as he was partner of Mahajan Imaging Centre, he could not have been made liable for the Form-Fs not being sent by Jaipur Golden Hospital. He further stated that he got asSociated with Jaipur Golden Hospital in 2002 as a partner of Mahajan Imaging Centre. When he noticed that the hospital was not complying with the PCPNDT Act, he on its own initiative started sending the reports of Form-F, although not obliged by law. He stated that only because he sent reports on his own volition, it did not make him the entity responsible for doing the same under law and that the responsibility Continues to Vest With Jaipur Golden Hospital as it is the entity that is registered under the PCPNDT Act. It was mentioned that from November 2008, Jaipur Golden Hospital is in itself sending the Form Fs of not only with respect to machines operated in Mahajan Imaging Centre but also of those not operated by Mahajan Imaging Centre.
It is submitted that by this admission of Dr. Harsh Mahajan himself, he is liable to be prosecuted under the PC-PNDT Act as his clinic, Mahajan Imaging Centre, did not possess a separate registration from Jaipur Golden Hospital not only at the time the ultrasound Was done. On the Petitioner but even after November 2008.

  1. Because the High Court in Para 27 has held that the Magistrate has to carefully scrutinize the evidence brought on record in Order to find out truth in the allegations. The High Court however failed to appreciate that while issuing Summons, it is only prima facie evaluation of the material on record, which is required to be done. At that juncture, the Court cannot look into the Counter Case/explanations/defence of the other side. If that Course is adopted, it will convert the pre-Summoning/summoning stage into a full-fledged trial. If the approach adopted by the High Court is accepted, it will result in quashing of most of the Complaints under Section 482 CrPC. The High Court has Committed a serious jurisdictional error and therefore, the judgment given by it is a nullity.
  2. Because the High Court accepts in Para 28 that in the Complaint, the allegations made by the Complainant are of a serious nature but deals with the serious allegations in a manner which shows either gross error of law or giving findings contrary to the facts on record. The High Court failed to consider that this is the first case in the entire history of PCPNDT Act where a Woman dared to question the husband, in-laws and doctors for violating the provisions of PCPNDT Act. She courageously pointed out the violations Committed by the mighty Respondents, Dr. Harsh Mahajan of Mahajan Imaging Center and Dr. Niten Seth. It is indeed shocking that instead of appreciating the Courage shown by the Petitioner and interpreting the law in a manner which strengthens the implementation of the PCPNDT Act, the High Court went on to shower praises on Harsh Mahajan and Dr Niten Seth by picking up those paragraphs they had devoted in their self-praise in their petitions before the High Court.
  3. Because the High Court has dealt with the question of limitation from Para 29-34.In Para 34, the High Court has held as follows:
    Thus, the Cognizance taken by the Magistrate is beyond the period of three years of the Commission of the date of alleged offence as pleaded. The Magistrate did not deal with any of the provisions of Sections 468-473 of CrPC while applying his judicial mind at the time of issuing summons against the Petitioners.”
    On the question of limitation, the Petitioner had submitted that the Complaint was not barred by limitation. It had referred to the documents. On record and had also supported it by referring to the judgments of the Hon’ble Supreme Court. The Petitioner had also put the Oral Submissions of her Counsel in the form of Written submissions. The arguments advanced by the Petitioner on the question of limitation reads as follows:
    (i) The offences under the PC-PNDT Act, 1994 are offences against the Society. The decline in the female sex ratio throughout the country is a matter of serious concern. The Hon’ble Supreme Court has been repeatedly passing orders from 2001 onwards and is currently also seized of the said issue to ensure That the provisions of PCPNDT Act are implemented rigorously. The high Courts of different states have also been passing orders to ensure the implementation of the PCPNDT Act.
    (ii) Under Section 28, right has been given to a person, which includes a social organization, to file a complaint before the Court. The appropriate authority can also file a Complaint Suo motu. The said Section 28 has been subject matter of interpretation in Dr. Kalpana Pundlik Jamdade v The State Of Maharashtra 8. Another CRWP 406/2012 group (Para 23, 24 and 25) where it has been held that a private person can also file a Complaint.
    (iii) In the present case, the complainant is none other than the Victim of Violations of the PC-PNDT Act.
    (iv) The respondent No.2 pregnant Woman Was Subjected to foetal ultrasonography On 28.04.2005, admittedly without her Consent and Knowledge. Only in March 2008, she came across the papers of foetal ultrasound done at Mahajan Imaging Centre, and came to know that she had been deceived into a fetal USG on the pretext of a USG. of Kidneys, Ureter and. Bladder (K.U.B).
    (V). On 10th April 2008 and 19th April 2008, respondent no 2, filed Complaint with various authorities regarding being deceived into foetal USG on the pretext of Ultrasound KUB.
    (vi) Later on 16.07.2008, in RTI she received the information, that during raid and investigation it Was found that form F was not filled, when she was deceived into the Foetal USG on the pretext of K.U.B. Ultrasound.
    (vii) Thereafter, on 18.10.2008, Respondent. No.2 had sent a notice as required under Section 28 and then filed a complaint on 20.11.2008.
    (viii) Therefore, Respondent No.2 filed the complaint immediately after she got the records confirming that she was subjected to ultrasonography without her consent and without filling up of Form-F. Therefore there is no delay in lodging the Complaint. The nature of offence under PC-PNDT Act is of a Continuous nature and therefore, the provision of limitation cannot be invoked.
    (ix) That in this regard, the Respondent No.2 places reliance On: a. Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy And Others, (1993)3 SCC4
    “7, it is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent, the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned. in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab V. Sarwan Singh [(1981)3 SCC 34 : 1981 SCC (Cri) 625: AIR 1981. SC 1054) But, that consideration Cannot be extended to matrimonial offences, where the allegations are of Cruelty, torture and assault by the husband or other members of the family to the complainant, it is a matter of Common experience that victim is subjected to such cruelty repeatedly and it is more or less like a Continuing offence. It is Only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and Cruelty faced by her, inside the house, which many of such victims do not like to be made public. AS such, Courts While considering the question of limitation for an Offence under Section 498-A i.e. subjecting a woman to Cruelty by her husband or the relative of her husband, should judge that question; in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether “it is necessary to do so in the interests of justice”.
    State of Rajasthan v. Sanjay Kumar and Others AIR. 1998 S.C. 1919, decided on 1st May 1998 answers the question as to when does the period of limitation commence in a prosecution under the Drugs and Cosmetics Act 1940: It was held that the period of limitation Commences not on the date When the sample was taken but commences only on the date of receipt of the Govt. analyst’s Report within Section 469(1)(b).

In view of the judgments above, the limitation would start from the day respondent no 2 came to know that Form F was not filled, when she was subjected to foetal USG on pretext of Ultrasound KUB. There was no question of any Complaint against the petitioner till March 2008, as till then Respondent no 2 was not even aware that she had been subjected to foetal USG at the Centre of Dr Harsh Mahajan by Dr Niten Seth.
Moreover it was only after the raid on the Hospital. (03.06.08) and when the Respondent no 2, came to know that even her form F was not present in the records of the -relevant period (1.6:07.08), that a cause for action arose. The Complaint was filed in the Trial Court On 21.11.08.”

11.Because it was also stated by the Petitioner in her pre Summoning evidence before the Learned Metropolitan Magistrate that came into possession of the foetal ultrasound report only in March, 2008. Her evidence was as follows:

“I came in possession of antenatal ultrasound from Jaipur Golden Hospital only in March, 2008 in that report there is a clear mention of fetal ultrasound by accused No.3 without my Consent and knowledge and there is no declaration on the ultrasound report which is mandatory as per rule-9 (i)(a) of the PC-PNDT Act.”

This clearly means that the limitation, as under Section 469, would only begin from March, 2008 and hence, her Complaint would not be barred by limitation. In view of the above, the offence under PCPNDT is in fact offence against the Society and therefore, the Petitioner Submits that her Complaint Was firstly not barred by limitation and even if there was a delay of 12 days, it should have been condoned and in any case, the nature of offence was continuing one.

  1. Because in addition to what was stated before the High Court, in the submission of the Petitioner, she received knowledge of the fact that was subjected to ultrasonography of the foetuses in March, 2008. Thereafter, on 10.04.2008, she had given a complaint to the Minister in charge of the Ministry of Health and Family Welfare which holds power of the Central PCPNDT Division. Thereafter she received an email from Central PNDT Department, Nirman Bhawan that she should send her complaint to the District Appropriate Authority, Rohini. She accordingly, sent a Complaint dated 09.05.2008 to the District Appropriate Authority, Rohini. When she found that action is not taken by the Appropriate Authority, she sent a 15 days notice on 18.10.2008 under Section 28 and filed a Complaint on 22.11.2008 to the Learned Metropolitan Magistrate. Therefore, for the purpose of limitation, her Complaint dated 10.04.2008 to the Minister of Health and Family Welfare should be treated as a Complaint under the PCPNDT Act, which falls well within the limitation period of 3 years within the Commission of the Offence on 28.04.2005.

  2. Because the allegation by Dr. Harsh Mahajan that the COmplaint against him was an after-thought cannot be accepted as the Petitioner became aware of the involvement of Jaipur Golden Hospital and Mahajan Imaging Centre only in March, 2008 when she chanced upon the foetal ultrasound which was done on her in the guise of a KUB ultrasound report. Immediately after this came to her knowledge, she sent a complaint dated 10.04.2008 to the National Commission for Women, a copy of which was sent to the Minister in charge of the Ministry of Health and Family Welfare and a complaint dated 09.05.2008 was sent to the District Appropriate Authority. In the complaint dated 09.05.2008, the report on the letterhead of Mahajan Imaging Centre and Jaipur Golden Hospital was enclosed and in the complaint dated 10.04.2008, it was clearly mentioned that she was taken to a hospital where she was deceived into undergoing a foetal ultrasound without her consent or knowledge.

It was alleged by Dr. Harsh Mahajan that the Petitioner in her complaint to the Appropriate Authority admitted that when she made her complaint, she was not aware of any sex determination test done on her by the Jaipur Golden Hospital. This is not only factually incorrect, but a striking observation has to be made with regard to a document filed by Harsh Mahajan. In his amended petition, the Complaint dated 09.05.2008 filed by the Petitioner before the District Appropriate Authority has been filed as ANNEXURE-P6. On the basis of this, Dr. Harsh Mahajan claims that the Petitioner in her Complaint did not Suspect that the said test was done at Jaipur Golden Hospital as she did not enclose any ultrasound test that Was done on her at Jaipur Golden Hospital. What is to be noted is that in the original Complaint, it is clearly marked at the end of the document that it is ultrasound report of Jaipur Golden Hospital and Mahajan Imaging Centre and what was annexed is the ultrasound report which was on the letterhead which consisted of Mahajan Imaging Centre and Jaipur Golden Hospital. The relevant excerpt is produced below:

Enclosures:
1. a booklet of photocopies of 30 pages of letters to police stations and women cell.

  1. photocopies of ultrasounds of
    ● Neeraj Diagnostic Clinic
    ● Sir Ganga Ram Hospital
    ● Dr Handas Imaging Center
    ● Jaipur Golden Hospital
    ● Mahajan Imaging Center
    ● Ultrasound Lab

But Surreptitiously, to mislead the Court, in the Copy of the complaint filed by Dr. Harsh Mahajan, the part of the Complaint which clearly shows that the ultrasound reports of Mahajan Imaging Centre has been enclosed has been removed. Even more glaring is the fact that in the Original Copy of the Complaint annexed by Dr. Mahajan, the part with the annexures is completely missing while in the typed Copy, only the part which mentions Jaipur Golden Hospital and Mahajan Imaging Center have been deleted. The relevant part is reproduced below:

Enclosures:
1. a booklet of photocopies of 30 pages of letters to police stations and women cell.
2. photocopies of ultrasounds of
• Neeraj Diagnostic Clinic
• Sir Ganga Ram Hospital
• Dr Handas Imaging Center”
The malafide intentions and Conduct of the Respondents cannot be made more clear than through this forgery.

  1. Because it is also pertinent to be mentioned that the Complaint with regard to a violation under the PCPNDT Act is not an after-thought on behalf of the Petitioner as from the year 2006, she had been filing complaints to various authorities where she mentioned that from Somewhere her husband and his family had come to know that she was carrying twin female babies and that she was being forced to medically terminate the pregnancy. If the Petitioner had been aware at that time about the report dated 28.04.2005 (which she received access to in March, 2008), it would have been only to her advantage that she Submit the report and there was no reason to withhold the report if she was aware of it. It is clear from this that the Petitioner had complained about the foetal ultrasound done on her immediately after she had knowledge of the same and that it was not an after-thought.

  2. Because the Hon’ble High Court Committed an error in holding that the Petitioner had not complied with the provisions of Section 28 (1) (b) of the PC-PNDT Act Which reads as follows:

  3. 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 the 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. “As under Section 28, the Petitioner had given a notice of 15 days to the District Appropriate Authority, North West District on 18.10.2008. A copy of it was also sent to the Director PNDT, Directorate of Family Welfare, State Appropriate Authority. The notice clearly refers to the Petitioner’s Complaint dated 09.05.2008 and States that since the Appropriate Authority had failed to take action on her complaint, she Would be filing a Court case after 15 days of sending of the letter i.e. 15 days after 18.10.2008.

  4. Because the High Court has considered the issue of mandatory notice of 15 days in Paras 38-45. In Paragraph 42 and 43, mistakes which are apparent on the face of the record have been Committed. For ready reference, Para 42 and 43 are quoted below:

“42. Admittedly, in the Complaint to the Magistrate dated 22nd November, 2008, the Complainant only makes a reference of the complaint dated 9th May, 2008 made to the appropriate authority as compliance of Section 28 Of the PC-PNDT Act. Even in the said Complaint dated 9th May, 2008, the Complainant Only Suspects Commission of an offence under the PC-PNDT Act and thus neither makes any allegation qua the Petitioner nor expresses any intention to make a complaint to the Court, therefore the said Complaint does not fulfill the Compliance of Section 28 of the PC-PNDT Act.

  1. The Complainant/respondent No.2 in response to the present petition being Cri. M.C. No.3128/2011, for the first time relied upon letter dated 18th October, 2008 as annexure-D- 12 of which there is no reference in the complaint before the Magistrate to show that she has complied with the mandate of Section 28.”

The mistake which has been committed in Para 42 by the High Court is to Confuse the Complaint dated 09.05.2008 which was made to the District Appropriate Authority with the subsequent complaint dated 22.11.2008 to the Metropolitan Magistrate after giving 15 days notice vide letter dated 18.10.2008, received by the Appropriate Authority on 22.08.2008. The reasoning given in Para 42 by the High Court are factually incorrect and therefore, untenable.

The mistake which has been Committed in Para 43 is again apparent from the documents on record. In the Complaint before the Metropolitan Magistrate dated 22.11.2008, in para 12, it was stated by the Petitioner that 15 days notice was given to the District Appropriate Authority showing her intention to file a complaint. As matter of fact, in the Summoning order dated 08.06.2011, the Petitioner’s statement has been recorded that she gave a legal notice of 15 days to the District Appropriate Authority and the same was marked as Exhibit CW-1/1. The High Court was therefore, absolutely wrong in giving a finding contrary to the documents on record. The said finding is therefore, to say the least, perverse.

17.Because the High Court committed a further gross error in giving the following finding in Para 44 : “44. The said letter does not Show Whether it was sent by post or delivered by hand to the District Appropriate Authority with a copy to Director of PNDT.”
It is submitted that the Petitioner had in fact attached a Copy of the postage receipt to prove that it was sent by post to the Director of PNDT and the District Appropriate Authority. In the note sheet 22.10.2008 of the District Appropriate Authority notes the fact of Petitioner sending 15 days notice that she intends to file a complaint in Court. This document was procured by the Petitioner through RTI and it was put on the record of the High Court in her reply to the amended petitions of Dr. Harsh Mahajan and Dr. Niten Seth.

  1. Because the further finding given by the High Court in Para 45 is quite shocking. It is given below for ready reference:

  2. Even if it is taken as Correct the same is not in compliance of the said Section as in the said letter there is no reference of any offence under the PC-PNDT Act along with the name of the persons against whom the Complaint is sought to be made as by that time by her own showing she Suspected that the Sex determination was done upon her during the ultraSOund at the Jaipur Golden Hospital and accordingly in the said letter was supposed to name the persons against whom she intends to make a complaint before the Court for commission of Offence under the PC-PNDT Act. The Magistrate had no jurisdiction to take Cognizance on the complaint dated 22nd November, 2008 in view of the statutory bar under Section 28 of the PCPNDT Act.”

The Only requirement under Section 28 is that the Complainant who wishes to file a Complaint should give not less than 15 days notice to the Appropriate Authority. While giving the notice, it is not required that the entire facts should be narrated, names of accused should be disclosed. The High Court has read Something into Section 28 which does not exist in the legal provision. In any case, the Petitioner in her notice had clearly stated that she is giving notice in reference to her complaint dated 09.05.2008 under the PCPNDT Act. The Petitioner had mentioned all the facts including names of the accused in the Complaint dated 22.11.2008 Submitted to the Metropolitan Magistrate.
This again shows that the Hon’ble High Court has failed to appreciate most of the documents filed by the Petitioner as the grounds such as above, on the basis of which the 482 petition has been allowed, Would have not withstood if the documents were carefully perused and appreciated.

  1. Because the Hon’ble High Court in Para 46 failed to appreciate that the liability with regard to the nonavailability of Form Fs could not be brushed aside by Dr.Harsh Mahajan or Dr.Niten Seth by saying that it Was not mandatory for them to maintain records after two years. What the Hon’ble High Court failed to see Was a list of 103 Form Fs of patients who underwent ultrasonography at Jaipur Golden Hospital in the month of April 2005 was sent to the CDMO, Department of Health & Family Welfare, Government of Delhi on 03.05.2005 in accordance with Section 9 (8) of the PC- PNDT Act. Which reads as follows:

“Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall 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.”

The List of 103 Form FS did not include the Petitioner’s Form F even though Form F for another patient, Mrs. Karuna who underwent ultrasonography on the same date as the Petitioner i.e. 28.04.2005 was included. Moreover, the report of the 3 member Committee dated 26.09.2008 observed the following:

The USG at S. No. 4 was performed on 28.04.2005 at the Jaipur Golden Hospital, Delhi, which falls in North-West District, Delhi. The Form ‘F’ of this USG was not available in the records of the District as the same was not provided by the hospital at the time of submitting the routine report for that period.”

It is clear from the above that a clear offence under proviso to Section 4(3) of the PCPNDT Act was Committed by not filling Form F with regard to the ultrasound done on the Petitioner on 28.04.2005. As a matter of fact, it was on this basis the District Appropriate Authority had filed a Criminal Complaint No. CC No. 33/01/09 against Jaipur Golden Hospital. The High Court failed to see that once the accused have Committed the offence of not filling the Form and Submitting it to the appropriate authority, the question of preservation after 2 years does not arise. The accused Committed offence under Section 4, 5 read With Section 23 for which the minimum sentence is 3 years and fine.

20.Because yet another blatant error of law committed by the High Court is in Para 47. The High Court mixes up Section 202 and Section 200, CrPC. When a complaint is filed, the Magistrate can proceed with the issue of process by recording pre-summoning evidence. It is not necessary for him to make an enquiry under Section 202. There are umpteen number of judgments on this point. When the Magistrate records evidence and issues process, he takes cognizance of the offence but When he proceeds to enquire into the matter under Section 202, he does not take Cognizance of the Complaint. This basic but essential difference in law has been overlooked by the High Court.

21.Because the High Court has committed a grave error in relying in Para 48 of the impugned order on the three member enquiry report dated 26.09.2008 and holding that the Learned Magistrate overlooked the same. It is necessary to mention that it was clearly mentioned in the report that Jaipur Golden Hospital had sent original Form F which were received by the Appropriate Authority in May 2008 but it did not have Form F for Mitu Khurana. It has clearly Come on record by Dr.Niten Seth in Mahajan Imaging Center on 28.04.2005. This was noted by the by the National Inspection and Monitoring Committee that visited Jaipur Golden Hospital on 03.06.2008. It is on record that the appropriate authority, even after receiving the enquiry report, decided to file a Complaint No. CC No. 33/01/09 against Jaipur Golden Hospital, which means that the findings of the enquiry report Were not accepted by the Appropriate Authority. It is not understood how the High Court can look into all these facts on merits when it`s only jurisdiction was to examine whether prima facie, a Case for issuing summons was made out.

22.Because the High Court in Para 49 and 50 has observed that the summoning order is required to be quashed on tWO grounds, namely, that the COmplaint Was time-barred and that there was no valid Compliance of Section 28 of the PCPNDT Act. The 4 of 2008 with Criminal Reference No. 3 of 2008) observed that the proviso to Section 4 (3) of the PCPNDT Act clearly states that improper maintenance of records of Form F as prescribed under the Rules in cases of ultrasonography performed on pregnant Women is in itself an independent violation of Sections 5 and 6 of the PCPNDT Act and that once any inaccuracy or deficiency is established, it is presumed that the person accused of such deficiency has violated Sections 5 and 6 of the Act. The burden of proof lies on the accused to prove that he has not Contravened the aforesaid provisions. The relevant excerpt of the judgement is as follows:

  1. 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 operationalize the restrictions and injunctions Contained in the Act in general and in sections 4, 5 and 6 in particular, to regulate the use of prenatal 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 subsection (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.”
    The Gujarat High Court further noted that apart from prosecution for violation of Section 5 and 6 of the Act, improper maintenance of records is also a valid ground for Cancellation or suspension of registration of Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic under Section 20 of the PCPNDT Act. The High Court stressed that flouting of procedural requirements as prescribed by the Act and Rules Cannot be dismissed as insignificant as compared to violations of substantive provisions since such an approach Would result in failure of the purpose envisioned by the Legislature when the Act was brought into force. While reiterating that the proviso to section 4 (3) explicitly states that failure to maintain proper records amounts to an independent offence under Sections 5 and 6 of the Act, the Court deemed it appropriate to clarify that a complaint under the Act need not specifically allege violation of Sections 5 and 6. A complaint of inaccuracy or deficiency in maintaining records, once established, is sufficient to presume that Sections 5 and 6 have been contravened. The relevant paragraph of the judgment reads as follows:

  2. 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 Counseling 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 Counseling 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.”
    The High Court held that burden to prove that there is contravention of Sections 5 and 6 of the Act in a case of deficiency or inaccuracy in maintenance of records as prescribed by Section 4 (3) of the Act does not lie on the Prosecution. Furthermore, a situation where record of Form F for ultrasonography performed on a pregnant woman is not maintained at all must not be dismissed as inconsequential and is to be treated as an offence in violation of Sections 5 and 6 of the Act. The relevant paragraphs read as follows:
    “9 (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.
    9 (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.”
    The following cases by various High Courts have given similar findings:
    a. Sujit Govind Dang v. State of Maharashtra. (2013(2) Bom. C.R. 351)
    b. Dr. (Smt) Pooja Agrawal Vs. Shivbhan Singh Rathore & Anr (Misc. Criminal Case No. 5967/09)- Madhya Pradesh High Court)
    c. Dr. Ravindra vs The State Of Maharashtra on 9 May,2014
    d. Dr.(Smt) Tej Sharma Vs State of Rajasthan (S.B. Cr. Misc. Petition No 1604/2012 and other cases decided by common Judgement Of Rajasthan High Court- Jodhpur Bench) on 25 August 2015.
    e. Privakant Mohanlal Kapadia vs State Of Gujarat (R/CR.MA/10039/2014)
    f. Dr. (Mrs.) Suhasini Umesh Karanjkar Vs. Kolhapur Municipal Corporation & Ors. (2011(4) AIR Bom R 326) (Para 24)

Because from the facts of this case it is clear beyond any doubt that the Respondents have violated provisions of PC&PNDT Act. It was not Only prima facie Case but a fool-proof case With more than sufficient evidence which can be seen as follows:
1) Foetal USG done on 28.07.2005 – as accepted by both the Respondents.
2) Form F – absent from the monthly record of that period sent by Jaipur Golden Hospital to the District Appropriate Authority, making it amply clear that it Was not filled in the Case of the Petitioner.
3) Mahajan Imaging Center was an unregistered center under the PCPNDT Act as accepted by Dr. Harsh Mahajan.

In spite of the above, the High Court, on technical grounds has dismissed the summoning order as well as the Complaint (which Were also not factually or legally available to it) wholly erroneously and Without jurisdiction, not realizing the impact it will have on the implementation of the PC& PNDT Act. In view of the above it is clear that non filling of Form F is a serious offence.

6. GROUNDS FOR INTERIM RELIEF
That Interim Relief is sought for on the following, amongst other,

(i) That the Petitioner has stated all the relevant facts and reasons in the Special Leave Petition which are also relevant for grant of Interim Relief;

(ii) That the Petitioner has a very strong case on merits;

(iii) That the High Court wrongly quashed the summoning order issued by the Learned Metropolitan Magistrate though there is a very strong prima facie case that exists on the basis of documents against Dr. Harsh Mahajan and Dr. Niten Seth which can only be proved beyond reasonable doubt in trial and it is in the ends of justice that the Petitioner’s complaint is revived;

(iv) That the grant of interim directions is in the interest of justice and equity.

7. MAIN PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:-

a) GRANT special leave to appeal against the final order/ judgment dated 25.4.2016 passed by the High Court of Delhi at New Delhi in Criminal Misc. Case No. 3128 of 2011 and Criminal Misc. Case No. 731/2012;

b) PASS such other and further orders as may be deemed fit and proper in the facts and circumstances of the case.

8. INTERIM RELIEF
It is respectfully prayed that this Hon’ble Court may be pleased to:-

a) GRANT ad-interim stay against the final order/ judgment dated 25.4.2016 passed by the High Court of Delhi at New Delhi in Criminal Misc. Case No. 3128 of 2011 and Criminal Misc. Case No. 731 of 2012;

b) PASS such other and further orders as may be deemed fit and proper in the facts and circumstances of the case.

Drawn & Filed by                                                                                Settled by:

[ANITHA SHENOY]                                                                           Sanjay Parikh
ADVOCATE FOR THE PETITIONER                                               Advocate
Drawn on:                                                                                          FILED ON:

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL) No. OF 2016

IN THE MATTER OF:
Mitu Khurana …. Petitioner
Versus
Dr. Harsh Mahajan & Anr. … Respondents

CERTIFICATE
Certified that the Special Leave Petition is confined only to the pleadings before the Court/Tribunal whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the Petition or to make out grounds urged in the Special Leave Petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instructions given by the Petitioner/person authorised by the Petitioner whose affidavit is filed in support of the Special Leave Petition.

FILED BY

(ANITHA SHENOY)
ADVOCATE FOR THE PETITIONER

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