Partly allowed

Dr.Jayesh @ Gulab Sukhadeorao Shinde v. Appropriate Authority and Anothers

Bombay HC15 Dec 2014APPLN/1013/2014

Case brief

AI extract

What is this about?

Challenges to prosecutions over deficient sonography records failed. The court held that an in-charge Medical Superintendent could file complaints under Section 28 and found sufficient prima facie material against both applicants. It dismissed the substantive applications, declined a larger Bench reference and allowed the amendment applications.

What did the court decide?

The two amendment applications were allowed; both substantive applications were dismissed.

Dr.Jayesh @ Gulab Sukhadeorao Shinde Vs Appropriate… — Quashing and FIR | Bombay HC (2014)

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1 Application 5232/2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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Criminal Application No.5232 of 2012

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Dr. Aparna w/o Shekhar Muthhe. .. Applicant.

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Versus

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The Appropriate Authority Dr. R.K. Savkare, Medical Sudt. Rural Hospital Amalner, District Jalgaon And Another. .. Respondents.

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With

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Criminal Application No.1013 of 2014

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Dr. Jayesh @ Gulab s/o Sukhadeorao Shinde. .. Applicant.

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Versus

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The Appropriate Authority (Dr. Rameshchandra Kisan Savkare) And Another. .. Respondents.

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With

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Criminal Application No.6023 of 2014 In Criminal Application No.5232 of 2014

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Dr. Aparna w/o Shekhar Muthhe. .. Applicant.

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Versus

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2 Application 5232/2012 The Appropriate Authority Dr. R.K. Savkare, Medical Sudt. Rural Hospital Amalner, District Jalgaon And Another. .. Respondents.

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With

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Criminal Application No.6022 of 2014 In Criminal Application No.1013 of 2014

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Dr. Jayesh @ Gulab s/o Sukhadeorao Shinde. .. Applicant.

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Versus

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The Appropriate Authority (Dr. Rameshchandra Kisan Savkare) And Another. .. Respondents.

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Shri. Bharat R. Waramaa, Advocate, for applicant.

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Shri. A.S. Mantri, Advocate, for respondent No.1.

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Shri. S.R. Palnitkar, Additional Public Prosecutor, for respondent No.2.

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CORAM: T.V. NALAWADE, J.

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DATE : 15^th DECEMBER 2014

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ORDER:

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The first two proceedings are filed under section 482 of the Code of Criminal Procedure. The first

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3 Application 5232/2012

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proceeding is filed for relief of setting aside the order of issue process made in R.C.C. No.115/2012 by the Judicial Magistrate, First Class, Amalner. No revision was filed against this order in the Court of Session and the order is directly challenged in the present proceeding. The second proceeding is filed for the relief of setting aside the order made on Exhibit 56 of R.C.C. No.7/2012 which is pending in the Court of the Judicial Magistrate, First Class, Amalner. The said application was filed by the applicant, accused for relief of discharge and it is rejected by the learned Judicial Magistrate, First Class. Criminal Revision Application No.4/2012 filed against this order of the Judicial Magistrate in the Court of the Additional Sessions Judge Amalner is also dismissed by the Sessions Court. Criminal Application No.6023 of 2014 is filed by the applicant of the first proceeding and the remaining application is filed by the applicant of the second proceeding. The last two applications are filed for permission to make amendment in the main proceedings. The applicants want to contend that the complainant of the aforesaid two criminal cases pending in the Court of the learned Judicial Magistrate, First Class, was not

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4 Application 5232/2012

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appointed as Medical Superintendent in Rural Hospital and so he was not Appropriate Authority and for that reason the cognizance taken by the learned Judicial Magistrate of the offences under the provisions of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the Act") is bad in law. In both the amendment applications it is further contended that, subsequent to filing of the main proceedings, this Court (other Hon'ble Judge) has given some decisions in Criminal Application No.142/2014 and Criminal Writ Petition No.206/2013 and it is held that the Superintendent / In-charge Superintendent is not the Appropriate Authority and the Magistrate cannot take cognizance on the basis of his complaint. Both the sides were allowed to argue on the points which the applicants wanted to raise by way of amendment and they argued on the facts of the cases also.

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Against both the applicants complaints are filed under the provisions of Sections 4 (4), 5, 6, 23, 24 and 29 of the Act and under Rules 9(1), (4) and 10(1-A) of

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5 Application 5232/2012

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the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 framed under the Act. Process has been issued for aforesaid offences in both the complaints. The complaints show that they are shown to be filed by "Appropriate Authority Dr. Rameshchandra Kisan Savkare, Occupation : Medical Superintendent Rural Hospital Amalner."

¶36

In both the main proceedings and the amendment applications it is contentions of the accused that since Shri. Savkare was not appointed on the post of Medical Superintendent and so he cannot be treated as Appropriate Authority under the provisions of the Act. It is their contention that under the Right to Information Act, information is collected by them which is to the effect that initial posting of Shri. Savkare was as Medical Officer Class II in the aforesaid Rural Hospital. It is contended that under Notification of the Public Health Department of the State Government dated 6-11-2001 only Medical Superintendent, Class I officer can be the Appropriate Authority from Rural Hospital.

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6 Application 5232/2012

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This Court is dealing with the aforesaid

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contention first. For appointing Appropriate Authority under section 17 of the Act, relevant notification is issued which is as under :

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" NOTIFICATION

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Public Health Department, Mantralaya, Mumbai 400 032 Dated 6th November 2001.

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No.PRACHIN-2001/1545/CR-349 FW-III. In exercise of the powers conferred by sub-section (2) read with subsection (3) of section 17 of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (57 of 1994) and of all other powers enabling it in that behalf the Government of Maharashtra is hereby pleased to appoint the Medical Superintendent of Rural Hospital at every Taluka level in the State of Maharashtra, to be the Appropriate Authority for the respective area under jurisdiction for the purse of said ACT.

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By order in the name of Governor of Maharashtra.

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Sd/(S.C. Mondkar) Under Secretary to Government of Maharashtra. "

¶45

The learned counsel for the accused submitted that Shri. Savkare was not appointed on the post of Medical Superintendent though he has signed as Medical Superintendent on the complaint. It is submitted that even if Shri. Savkare was in-charge of the post of Medical Superintendent his initial posting was as Medical Officer and so the Judicial Magistrate ought not to have taken

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7 Application 5232/2012

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cognizance of the offences under the Act. The learned counsel for the applicants placed reliance on some cases decided by this Court (other Hon'ble Judges). This Court has carefully gone through the orders and decisions of this Court which were referred to by the learned counsel. It appears that Writ Petition No.90/2014 was first decided and in this writ petition there was challenge to the action taken by Dr. Baviskar of Rural Hospital Chalisgaon. The post Medical Superintendent of Chalisgaon Rural Hospital was vacant. It can be said that Shri. Baviskar being seniormost medical officer of that Rural Hospital was in charge of the post and he had taken action in that capacity. The seizure made by Shri. Baviskar was set aside by this Court in Writ Petition No.90/2014. The order made in Writ Petition No.90/2014 was referred by other Hon'ble Judge in Criminal Writ Petition No.206/2013 and this petition was filed for quashing of criminal proceeding itself which was filed by Shri. Baviskar. The prosecution case came to be quashed by this Court and the complaint came to be dismissed by judgment and order dated 4-8-2014 delivered in Criminal Writ Petition No.206/2013. The decision of Criminal Writ Petition No.206/2013 was

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8 Application 5232/2012

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referred by other Hon'ble Judge in Criminal Application No.142/2014 which was also filed for quashing of the criminal proceeding itself. The order made in Criminal Application No.142/2014 shows that the learned Additional Public Prosecutor had conceded that the complainant of the said case was not the Medical Superintendent and he was initially appointed as Medical Officer. The Hon'ble Judge referred to Notification dated 6-1-2001 of the State Government and it also referred to the decision recorded in Criminal Writ Petition No.206 of 2013 (supra) and quashed criminal case.

¶50

This Court had occasion to decide similar case. In Criminal Writ Petition No.406/2012 (Dr. Kalpana vs. Sate of Maharashtra) decided by this Court the points in dispute in the case like present one and the law relating to the point in dispute are discussed by this Court. This Court has also discussed the scheme of the Act. The discussion is at paragraphs 5,6,7 and 14 to 24 and it is as under : -

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9 Application 5232/2012

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"5) The main contention in the first proceeding on which argument was advanced is that the complaint is not filed by appropriate authority created under the Act [under section 17(2)] and so the learned Magistrate ought not to have taken cognizance of the offence. In this regard there is copy of State Government Notification dated 16-102007. In this Notification some officers are appointed as Appropriate Authorities for working under the Act for different areas and the Notification is as under :

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"PUBLIC HEALTH DEPARTMENT

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Mantralaya, Mumbai 400 032, dated the 16th October 2007.

¶55

NOTIFICATION

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The Pre-conception and Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

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No. Prachini, 2007/525/C.R. 133 (Part-Ii)/FW-II,--In exercise of the powers conferred by sub-section (2) of section 17 of the Pre-conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (57 of 1994) and of all other power enabling it in that behalf, the Government Maharashtra hereby appoints the Additional Collectors, SubDivisional Officers, Tahsildars, Nayab Tahsildars, Commissioners, Deputy Commissioners and Ward Officers of Municipal Corporations and Chief Officer of Municipal Councils, to be the Appropriate Authorities for the purposes of the said Act, for the areas within their jurisdiction.

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By order and in the name of the Governor of Maharashtra.

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SHOMITA BISWAS,

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Joint Secretary (Family Welfare) to Government."

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10 Application 5232/2012

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In the aforesaid regard the respondent is placing reliance on the order made by the Commissioner of Nanded Municipal Corporation, copy of which is at Exhibit "G".

¶63

tk-dza- euik@ihlhih,uMhVh@57@2011 ukansM ok?kkGk 'kgj egkuxjikfydk] ukansMfnukad %& 17@06@2011-

¶64

" vkn s'k "

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lanHkZ %& egkjk"Vª 'kklu vf/kfu;e] vkjksX; vf/klqpuk dza- izf'kfu 207@525@iz-dza- 123 ¼Hkkx 3½@iz-dza- 2-

¶66

xHkZ/kkj.kiwoZ o izloiwoZ funku ra= ¼fofu;eu vkf.k nq:i;ksx izfrca/k½ 1994 ph ukansM ok?kkGk 'kgj egkuxjikfydse/;s izHkkohi.ks vaeyctko.kh gks.;kP;k n`f"Vdks.kkrwu lanHkkZadhr vf/klqpuse/;s ueqn izHkkx vf/kdkjh ;k ukR;kus loZ {ksf=; vf/kdkjh ;kauh R;kaP;k dk;Z{ks=krhy o lgk¸;d vk;qDr ¼eglqy½] lgk¸;d vk;qDr ¼vkjksX;½ ;kauh euik gfn~ne/khy lksuksxzkQh lsaVjph osGksosGh rikl.kh djkoh o lnj dk;|kps mYya? ku dj.kk&;k lsaVjoj mDr dk;|kvarxZr ueqn iz'kkldh; o QkStnkjh Lo:ikph dk;Zokgh leqfpr izkf/kdkjh ;k ukR;kus djkoh-

¶67

vk;qDr]

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ukansM ok?kkGk 'kgj egkuxjikfydk] ukansM-"

¶69

The order shows that the Assistant Commissioners of the Corporation were working as Ward Officers of respective areas of the Corporation. This order was issued on 17th June 2011 and the action was taken subsequent to the date of the order by the Assistant Commissioner in all the first three proceedings. In

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11 Application 5232/2012

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the first proceeding complaint was filed on 4-8-2011 and the order of issue process was also made on the same date.

¶72

The particulars of breach of the provisions of the Act and the Rules are given in the reply affidavit by the complainant. It is the contention the complainant that his initial appointment was as Tahsildar and he came to be sent on deputation basis to Corporation and he is working there as Assistant Commissioner. It is also contended that, he has been working in the capacity of Prabhag Adhikari /Ward Officer in the Corporation. It is contention that there is no separate cadre of Prabhag Adhikari /Ward officer in this Corporation and so the Assistant Commissioners are working as Prabhag Adhikari .

¶73

In view of the contentions/arguments advanced by the learned Senior Counsel in the first three proceedings that the Assistant Commissioner who has filed the complaint has no power to file the complaint and the Magistrate has committed error in taking cognizance of the matter, relevant provisions need to be seen and the case law developed on these provisions also needs to be seen. Both the sides have placed reliance on some reported and unreported cases.

¶74

To ascertain as to who can file complaint for offences committed under the Act, the scheme of the Act needs to be seen. The petitioners want to show

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12 Application 5232/2012

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that the order suspending the registration could not sustain in law and so cognizance of the offence is bad in law and due to this contention also, it needs to be seen as to whether there is similarity in the provision made with regard to the registration of the Centre and with regard to the taking cognizance of the matter by the Judicial Magistrate.

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Statement of Objects and Reasons in respect of the Act (as amended in 2003) shows that, the Act seeks to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. The Act is Central Legislation. In Chapter I of the Act definitions are given. Central Supervisory Board is created and it is required to be constituted under the Act by the Central Government. The rule making power is also kept with the Central Government. It is the Central Board which is given power to review and monitor the implementation of the Act and the Rules and it is also expected to oversee the performance of the various bodies constituted under the Act. The State is expected to constitute State Advisory Board. The State Advisory Board is given power to review the activities of the Appropriate Authorities functioning in the State. It is expected to monitor the implementation of the provisions of the Act and the Rules and it is also expected to make suitable recommendation to the Central Board.

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13 Application 5232/2012

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In Section 2(a) the definition of "Appropriate Authority" is given and it is as under :-

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"Appropriate Authority" means the Appropriate Authority appointed under section 17."

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In Section 17(2) and (3) of the Act power of the State Government to appoint Appropriate Authorities is given and this portion runs as under :--

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" 17. Appropriate Authority and Advisory Committee :

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(1) ......

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(2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.

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(3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be, --

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(a) when appointed for the whole of the State or the Union territory, consisting of the following three members -

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(i) an officer of or above the rank of the Joint Director of Health and Family Welfare - Chairperson;

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(ii) an eminent woman representing women's organization; and,

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(iii) an officer of Law Department of the State or the Union territory concerned:

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Provided that it shall be the duty of the State or the Union territory concerned to constitute multi-member

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14 Application 5232/2012

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State or Union territory level appropriate authority within three months of the coming into force of the Prenatal Diagnostic Techniques (Regulation and Prohibition of Misuse) Amendment Act, 2002;

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Provided further that any vacancy occurring therein shall be filled within three months of the occurrence;

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(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be may deem fit. "

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The power regarding appointment of Appropriate Authority given to the State shows that only if the authority is to work for the whole of the State, the authority shall be multi-member authority constituted as per section 17(3) of the Act. If the authorities are created for different areas, any officer of the State also can be appointed as Appropriate Authority.

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The provision of section 17(4) of the Act shows that the Appropriate Authority has the functions like grant registration in respect of bodies like Genetic Clinic (Sonography Centre), investigate complaint against such centres, to take action for breach of the provisions of the Act and the Rules against the bodies and this action includes the action of suspending or cancelling the registration. Suspension or cancellation of the registration can be done on the recommendations of the Advisory Board created under the Act. The Advisory Board consists of experts and it is also created under section 17 of the Act.

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15 Application 5232/2012

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In Section 17-A some other powers of Appropriate Authority are given and the powers are as under :--

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" 17-A, Powers of Appropriate Authorities. -- The Appropriate Authority shall have the powers in respect of the following matter, namely:-

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(a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder;

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(b) production of any document or material object relating to clause (a);

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(c) issuing search warrant for any place suspected to the indulging in sex selection techniques or prenatal sex determination; and

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(d) any other matter which may be prescribed."

¶104

In Chapter VI of the Act, procedure for registration of bodies like Genetic Clinic (sonography Centres) is given. Procedure for cancellation registration certificate is also given. It is provided that appeal against the order of State Appropriate Authorities lies to the State Government. Thus the functions and powers of the State Board, the Appropriate Authorities are mentioned in the Act and it can be said that the Appropriate Authority has the power to grant registration to such centre and it can cancel the registration. However, the Appropriate Authority has other powers like the powers mentioned in sections 17and 17-A of the Act.

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16 Application 5232/2012

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In Chapter VII of the act there are provisions with regard to offences and penalties. Relevant provisions are sections 27 and 28. Sections 27 and 28 run as under :-

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" 27. Offence to be cognizable, non-bailable and non-compoundable :- Every offence under this Act shall be cognizable, non-bailable and noncompoundable.

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" 28. Cognizance of offences .-- (1) No Court shall take cognizance of an offence under this Act except on a complaint made by -

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(a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or

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(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.

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Explanation.-- For the purpose of this clause, "person" included a social organization.

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(2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

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(3) Where a complaint has been made under clause (b) of sub-section (1), the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant record in its possession to such person."

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Provisions of Sections 27 and 28 need to be read together. The two sections need to be read together as care needs to be take by the Court to see that the Appropriate Authority is discharging its functions. So opportunity needs to be given

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17 Application 5232/2012

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first to the Appropriate Authority as provided in the aforesaid sections as the Appropriate Authority needs to file complaint. These provisions also show that criminal Court is not bound by the opinion which may be formed by the Appropriate Authority in this regard. Even if the Appropriate Authority has refused to take legal action, filing complaint, the Court can take cognizance of the offence on the complaint made by any private person provided that the private party has followed the procedure given under section 28(1)(b) of the Act. Further, it is not only the Appropriate Authority who can file complaint, in view of the wording of these sections. The provisions show that any officer authorized in this behalf by the Central or the State Government as the case may be or any officer authorised by the Appropriate Authority can file complaint. Thus, the provision is not that rigid. The Central or the State Government, as the case may be can appoint any officer or class of officers to file complaint and even the Appropriate Authority can authorise any officer or officers for filing complaint.

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The provision of section 30(1) of the Act is also relevant for the present purpose and it runs as under :-

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" 30(1) Power to search and seize records, etc. -- (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other

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18 Application 5232/2012

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place, such Authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act."

¶121

The aforesaid provisions show that Appropriate Authority appointed by the State Government can authorise other officer to make the investigation of the case, to take action like search and seizure of the record and to file complaint. From this angle also it can be said that there is no force in the ground taken by the petitioners. Further, the complainant was originally appointed as Tahsildar, he was working on deputation in the Corporation and he was discharging the duties as Prabhag Adhikari / Ward Officer (officer mentioned in State Notification) and this circumstance also cannot be ignored. It will be a matter of evidence, to prove this contention."

¶122

The only question which needs to be addressed specifically in the present matter is that whether Shri. Savkare, who was initially appointed as Medical Officer in Rural Hospital but he was in charge of the post of the Medical Superintendent which was vacant post, could

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19 Application 5232/2012

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have filed the complaint in view of the provisions of the Act. Section 28 of the Act relates to this question.

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In the case reported as AIR 1961 SC 606 (Central Talkies Ltd. Dwarka Prasad) , a three-Judge Bench of the Hon'ble Apex Court has made some observations on this point and they are at para 9 and as under :-

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" 9 . The argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of "District Magistrate" the special authorisation by the District Magistrate had the effect of treating officers exercising the powers of a District Magistrate under the Eviction Act. To that extent, those officers would, on authorisation, be equated to the District Magistrate. A persona designata is "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member or a class, or as filling a particular character." (See Osborn's Concise Law Dictionary, 4th Edn., p.253). In the words of Schwabe, C. J. in Parthasaradhi Naidu v. Koteshwara Rao, ILR 47 Mad 369 : (AIR 1924 Mad 561) (FB), personae designate are "persons selected to act in their private capacity and not in their capacity as Judges". The same consideration applies also to a well-known officer like the District

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20 Application 5232/2012

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Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act. the decision of Sapru, J. in the Allahabad case, with respect, was erroneous."

¶129

In view of the aforesaid position of law discussed by the Apex Court and the provisions of the General Clauses Act like Section 15 it can be said that if an officer is holding a particular post though as in charge, he being senior most to hold the post, in absence of the regular employee, he is expected to discharge the duties of the said post unless there is some prohibition to it.

¶130

The record of the present case shows that the post of the Medical Superintendent of this Rural Hospital was vacant for many years and Shri. Savkare was incharge of this post. There may be many such vacant posts in Maharashtra. In all such cases the next senior-most medical officers are working as in-charge of the post of Medical Superintendent and thus he holds the notified post though as in charge officer. If for the purpose of section 28 of the Act also such in-charge officer is

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21 Application 5232/2012

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excluded, the purpose behind the giving of power to the authority to delegate its powers under section 28 of the Act will be frustrated. It can be said that for practical purpose, there will be nobody to take action against persons who commit offences under the Act in such areas and those cases will be excluded from the operation of the Act. Though provisions made in Chapter VII of the Act are penal in nature, these provisions cannot be construed in such a way that they would exclude from operation of the Act all cases of area where in-charge officers are working who are supposed to perform the functions of Appropriate Authority under section 28 of the Act. This Court holds that for the purpose of section 28 of the Act, the medical officer like Shri. Savkare who was in-charge of the post of the Medical Superintendent has the power to file complaint as Medical Superintendent of Rural Hospital. It is also his duty to do so.

¶133

The provision of Section 28 of the Act shows that delegation of the powers and duties of the Appropriate Authority by Appropriate Authority is made possible by this section. From this angle also when a

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22 Application 5232/2012

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person like Shri. Savkare takes charge of the post of the Medical Superintendent he automatically gets powers of Medical Superintendent for the purpose of section 28 of the Act and he can sign the complaint.

¶136

Learned counsel for the applicants, accused, placed reliance on a decision given by this Court in Criminal Application No.287/2000. It was a case under the Prevention of Food Adulteration Act, 1954. Sanction could have been given by the Joint Commissioner but it was given by the in-charge officer and the Court held that it was bad in law.

¶137

In the case reported as AIR 1986 SC 2160 (A.K.

¶138

Roy v. State of Punjab) point of permissibility of sub delegation of powers given to the Food (Health) Authority, to the Local Food Inspector was considered by the Apex Court. In that case the Apex Court held that under the statute there was no power to Food (Health) Authority to sub delegate to Local Food Inspector. Thus, the facts of that case were different and the provisions of the different Act were under consideration. In the present matter

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23 Application 5232/2012

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relevant provisions to show that delegation of the powers is permissible.

¶141

The learned counsel for the applicants has placed reliance on a case reported as 2013 (7) Supreme 226 (G.L. Batra v. State of Haryana). The learned counsel submitted that as in the aforesaid two cases, the other Hon'ble Judges of this Court have decided the point, this Court may request the Hon'ble the Chief Justice to refer the present matter to larger Bench if this Court is not inclined to accept the view of the other Hon'ble Judges. This Court has already discussed the circumstances in which the aforesaid two orders were made by other Hon'ble Judges. At the cost of repetition it needs to be mentioned here that the first proceeding bearing Writ Petition No.90/2014 was filed for different relief, to challenge the order of seizure of sonogrpahy machine and for that different provisions were required to be considered. This Court is avoiding to discuss that point further in the present matter. Thus the relevant provisions, provisions of Chapter VII of the Act, were not referred to in the aforesaid two orders of this Court. In

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24 Application 5232/2012

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view of the decision given by this Court in Criminal Writ Petition No.406/2014 this Court has no hesitation to hold that it is not necessary in the present matter to request the Hon'ble the Chief Justice to refer the present matter to Larger Bench. In view of the aforesaid discussion, this Court holds that the aforesaid point needs to be answered against the accused and it is answered accordingly.

¶144

The learned counsel for the applicant has placed reliance on some other cases like 2005 (Supp.) Bom. C.R. 283 (Carona Limited v. Arunchndra Hiralal) and 1977 U.C.R. (Bom.) 342 (Nagnath v. Osman) . The points raised in these two reported cases were altogether different. There was question of exercise of judicial power and in such case there is no question of delegation of the powers.

¶145

To address the other point, merits of the case, material itself, needs to be seen. It needs to be observed that one applicant did not wait till giving of the evidence by the complainant before charge and he filed application for discharge and it came to be rejected. The other

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25 Application 5232/2012

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applicant has challenged the order of issue process directly in this court.

¶148

The facts of the case filed against the applicant from first proceeding show that she owns and runs a hospital by name "Ramaa Hospital". In the hospital there is registered sonography machine belonging to the applicant. The applicant was using the machine and she was also working as Gynecologist. In the inspection dated 6-6-2012 made by the complainant in the presence of witnesses and other officers following deficiencies and irregularities were noticed :-

¶149

(i) one pregnant woman - Kavita Vijay Patil was examined but "F" Form was incomplete. Columns 16 to 18 were not filled. Consent form of this lady was also not filled (even if it presumed that non invasive techniques was used in her case, the declaration of this lady as required by Rule 10-A was not obtained.); (ii) There was no "F" Form in respect of lady Pratibha Sonwane though there was consent form in respect of this lady dated 12-4-2012;

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(iii) There was no "F" Form of lady Sonali Shekhar who was examined on 12-4-2012 though her consent form was available;

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26 Application 5232/2012

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(iv) "F" Forms in respect of ladies like Sunita Koli, Sushila Mahale, Sunita Vilas, Najminbi Sheikh and Ranjaja Rajesh were incomplete.

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(v) On 17-4-2012 one pregnant woman by name Sushila Jitin was examined but her "F" Form was incomplete. Columns 9 to 13 and 15 to 19 were incomplete and the complainant found that it was a suspicious case;

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(vi) No "F" Forms were filled for the period starting from 9-5-2012 till date of the visit; and,

¶155

(vii) There was no consent form (declaration form) in respect of one pregnant woman Shital Mahajan who was examined on 10-4-2012. 18) Against the applicant, accused, from the second proceeding there are allegations that he owns and runs hospital by name "Sukhanjani Maternity Home" and in the hospital he has registered sonography centre. Following deficiencies and irregularities were found during inspection of this sonograpy centre :-

¶156

(i) Many "F" Forms were incomplete.

¶157

(ii) "F" Forms did not tally with the record of patients from the hospital of the accused.

¶158

27 Application 5232/2012

¶159

(iii) In the case of Manisha Patil the last menstrual period was not mentioned in the "F" Form when she was having one female issue. From the record it appeared to the complainant that the patient wanted to know the sex of the foetus and it was told to the patient by the accused.

¶160

(iv) Signature of the lady Manisha Patil was not obtained on the record.

¶161

(v) when accused owns and runs the sonogrphy centre, he allowed one Dr. Pratidnya Shinde to fill the forms and to put her signatures on the forms and that way this accused allowed unauthorized person to use and operate the machine.

¶162

(vi) Results of examination were not mentioned specifically on the forms and the complainant formed opinion that there is possibility of manipulations.

¶163

In respect of the accused from the second proceeding learned counsel submitted that the allegation with regard to "F" Forms are vague and specific "F" Forms are not mentioned. This contention cannot be accepted as along with the complaint there is always record which is seized. Further in respect of other instances there are specific allegations. When the process is issued and the application is moved for discharge the

¶164

28 Application 5232/2012

¶165

Court is expected to consider all the material which can be used against the accused.

¶166

The aforesaid material shows that there is more than sufficient material to make out prima facie case against both the accused for issuing process. In both the cases the stage of framing of charge is not yet reached and it appears that if the aforesaid material is given as the evidence before charge, there may be sufficient material for framing charge also. However these observations are not required to be used at the time when the Court considers the point of framing of charge and the Court is expected to form its own opinion.

¶167

This Court in Criminal Writ Petition No.680/2012 has discussed the relevant provisions of the Act and the Rules and the necessity of their compliance. For considering the material available relevant provisions also need to be seen. The discussion made by this Court in Criminal Writ Petition No.680/2012 is in paragraph 13 to 26 and it is as under :-

¶168

29 Application 5232/2012

¶169

"13) For ascertaining as to which record needs to be created and maintained and which columns of the form need to be filled by the owner of the Ultra Sound Clinic and by the persons conducting the procedure, the relevant provisions of the Act and the Rules need to be seen. The relevant provisions of the Act are Section 2(d), (i), (k), Sections 4 and 5. they are as under :-

¶170

“ 2. Definitions .-- In this Act, unless the context otherwise requires, –

¶171

(d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures.

¶172

Explanation .-- For the purposes of this clause, “Genetic Clinic” includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.”

¶173

“(i) “pre-natal diagnostic procedures” means all gyneacological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo blood or any other tissue or fluid of a man, or of a woman before or after conception, for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception.”

¶174

“ (k) “pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases.”

¶175

“ 4. Regulation of pre-natal diagnostic techniques. -- On and from the commencement of this Act--

¶176

30 Application 5232/2012

¶177

(1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3);

¶178

(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:-

¶179

(i) chromosomal abnormalities;

¶180

(ii) genetic metabolic diseases;

¶181

(iii) heamoglobinopathies;

¶182

(iv) sex-linked genetic diseases;

¶183

(v) congenital anomalies;

¶184

(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;

¶185

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

¶186

(i) age of the pregnant woman is above thirty-five years;

¶187

(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;

¶188

(iii) the pregnant woman had been exposed to potentially teratogenic agents such as, drugs, radiation, infection or chemicals;

¶189

(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;

¶190

(v) any other condition as may be specified by the Board:

¶191

Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of

¶192

31 Application 5232/2012

¶193

section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;

¶194

(4) no person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2);

¶195

(5) no person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.”

¶196

“5. Written consent of pregnant woman and prohibition of communicating the sex of foetus .-(1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless--

¶197

(a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;

¶198

(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and

¶199

¶200

(2) No person including the person conducting prenatal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner.”

¶201

The learned counsel for petitioner No.2 of first proceeding submitted that as he is not the owner of the ultrasound clinic, the provisions with regard to creation and maintenance of the aforesaid record cannot be used against him. For considering this defence, the aforesaid provisions [viz. section 5(1)(a)] and some more rules need to be considered. In rule 2(b) of the Rules, definition of “employee” is given as under :-

¶202

32 Application 5232/2012

¶203

“(b) “employee” means a person working in or employed by a Genetic Counseling Centre, a Genetic Laboratory or a Genetic Clinic or an Ultra Sound Clinic or Imaging Centre, and includes those working on part-time, contractual, consultancy, honorary or on any other basis.”.

¶204

In rule 4 nature of undertaking required to be given by the person applying for registration is given. Reading of this rule shows that such certificate is to be used only as per the contents of the certificate. Rule 9 provides for maintenance and preservation of record in respect of persons who come for diagnosis and this record is to be created to enable to identify the person who had come to the centre for sonography. Rule 9(4) shows that Form "F" need to be filled and it runs as under :-

¶205

“ 9. Maintenance and preservation of records. --

¶206

(4) The record to be maintained by every Genetic Clinic including a Mobile Genetic Clinic, in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form F.”

¶207

Rule 9 (6) runs as under :--

¶208

“(6) All case-related records, forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, Ultra Sound Clinic or Imaging Centre for a period of two years from the date of completion of counselling, pre-natal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the records shall be preserved till the final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is later.”

¶209

33 Application 5232/2012

¶210

Rule 9 (8) runs as under :-

¶211

“(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centres 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 5^th day of the following month to the concerned Appropriate Authority.”

¶212

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

¶213

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

¶214

Rule 10(1) and 10(1-A) are as under :-

¶215

“ 10. Conditions for conducting pre-natal diagnostic procedure.-- (1) Before conducting preimplanatation genetic diagnosis, or any pre-natal diagnostic technique/test/procedure such as

¶216

34 Application 5232/2012

¶217

amniocentesis, chorionic villi biopsy, foetoscopy, foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him.

¶218

“(10-A) Any person conducting ultrasonography/ image scanning on a pregnant woman shall give a declaration on each report on ultrasonography / image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to any body. The pregnant woman shall before undergoing ultrsonography/ image scanning declare that she does not want to know the sex of her foetus.”

¶219

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

¶220

The wording of section 5 shows the procedure that needs to be followed for conducting of pre-natal diagnosis. However in section 5(1)(b) the term

¶221

35 Application 5232/2012

¶222

“prescribed" is used in respect of consent form of pregnant woman. In rule 10 and in Form "G" prepared under rule 10 it is made clear that this form is applicable to invasive techniques. In view of clause (c) of section 5 it needs to be presumed that written consent of pregnant woman is necessary when invasive procedure needs to be used. When no invasive procedure is to be used and when it is to be done without invasive procedure by using ultra sound machine, only declaration as required in rule 10(1-A) as mentioned in Form "F" of section 4(3) needs to be obtained from the pregnant woman. Submissions made in this regard by the learned counsel need to be accepted. However, the record needs to be seen to ascertain as to whether at least the declaration was complete as per the requirement. These provisions also show that person using the procedure needs to give declaration and so he is also involved in creation and maintenance of record.

¶223

For interpretation of the provisions of the Act and the Rules, learned counsel for the petitioners has placed reliance on following four cases decided by this Court (Aurangabad Bench) :--

¶224

(1) Criminal Writ Petition No.232/2012 (Satyaprem v. the State of Maharashtra), decided on 11^th September 2014;

¶225

(2) Criminal Application No.3500/2011 (Dr. Alka Gite v. The State of Maharashtra), decided on 11^th May 2012;

¶226

(3) Criminal Application No.3044/2012 (Dr. Pratidnya Jayesh Shinde v. Appropriate Authority), decided on 4^th December 2013 ; and,

¶227

36 Application 5232/2012

¶228

(4) Criminal Application No.2065/2012 (Dr. Pradip Prabhuappa Dama v. The State of Maharashtra), decided on 28^th January 2014.

¶229

In the first case, the Court considered Form “F” which needs to be used from 31^st January 2014 and observed that there are separate requirements in respect of maintenance of record for Ultrasound Clinic not using invasive technique and genetic test using invasive procedure. The Court further found that the allegations were very vague in nature and gave relief to the accused. In the second case there were referral letters. This Court held that flimsy mistakes can be ignored and relief was given to the accused in the second case also. In the third case there was allegation that the record was not properly maintained. As the allegations were found baseless, relief was given to the accused. In the last case, this Court held that there was no allegation against the applicant and the shortcoming or deficiency in maintaining the record could not be attributed to him.

¶230

This Court is avoiding to discuss more the reasons given. The relevant provisions which are quoted above, were not considered and discussed.

¶231

For the State, the learned Additional Public Prosecutor has placed reliance on the following cases :--

¶232

(1) 2013(2) Bom. C.R. 351 (Sujit Govind Dange v. State of Maharashtra);

¶233

37 Application 5232/2012

¶234

(2) 2009 Cri.L.J. 721 (Suo Motu v. State of Gujarat) ;

¶235

(3) Criminal Application No.4513/2012 (Dr. Harsha Patil v. The State of Maharashtra) decided by this Court (Aurangabad Bench) on 4^th December 2013;

¶236

(4) 2011 (4) Bom. C.R. 293 (Suhasini Umesh Karanjkar v. Kolhapur Municipal Corporation);

¶237

(5) Criminal Application No.3966/2013 (Dr. Nirmala Bajaj v. The State of Maharashtra), decided by this Court (Aurangabad Bench) on 9^th Mary 2014 ; and,

¶238

(6) Criminal Writ Petition No.5 of 2013 (Dr. Vinayak Khedkar v. The State of Maharashtra), decided by this Court (Aurangabad Bench) on 9^th May 2014.

¶239

In the first case, the Division Bench of this Court has discussed the provisions of sections 4,5,6 and 20 of the Act and it is laid own that if there is deficiency or inaccuracy in the record, that amounts to contravention of sections 5 and 6 unless contrary is proved by the doctor / person conducting ultrasonography. Thus the defence of the accused in such case can be considered during trial. The Court has made it clear that the Act does not distinguish discrepancy as minor or major and in view of the object behind the provisions they need to be strictly complied with. In the second case, the Full Bench of Gujarat High Court has made similar observations and has laid down that such defence can be considered only during trial. In the fourth case the Full Bench of the Bombay High Court at paragraphs 14 and 24 has made similar observations. It is made clear by the Full Bench that if there is contravention in respect of maintenance of record and the persons conducting the process do not maintain necessary record complete in every respect that contravention amounts to offence. Though

¶240

38 Application 5232/2012

¶241

different point was involved in the matter pending before the Full Bench, the relevant provisions are discussed by the Full Bench even from the angle of commission of offence. In the last two proceedings, this Court refused to quash the proceeding by relying on the observations made by the Division Bench of this Court and the Full Bench of the Gujarat High Court, cited supra.

¶242

While interpreting the provisions and considering the prayers made in the proceedings like present one, the object behind the special legislature needs to be kept in mind. The object is to prohibit use of pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. Prenatal diagnostics techniques like sonography are useful for detection of sex. They can be used also for detecting disorders in the foetus. In view of the possibility of use of this technique for determination of sex and then for termination of pregnancy of unborn child, the aforesaid provisions are made. Sale of ultrasound machines to persons not registered under the Act (rule 3-A of the Rules) is prohibited. The study made by Population Research Centre Pune (PRC) shows that most of the bodies like Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic, Imaging Centre are registered in Maharashtra and there are maximum number of sonography Centers in Maharashtra. More than 60% of such bodies are ultrasound clinics. The studies have revealed that the pre-natal diagnostic techniques are

¶243

39 Application 5232/2012

¶244

easily available in sonography centres for sex determination. The cases registered in Maharashtra show that these centers are being misused. Due to misuse of the centres the sex ratio has come down alarmingly in Marathwada region and by the end of year 2012 the ratio of female child birth had got down below 800 in most of the Districts of Marathwada. Only when the authority started making inspection and the cases were registered for causing illegal abortion, the female birth ratio improved and it has now crossed 900 in this region.

¶245

When there is object like the object behind the present Act, the provisions need to be strictly implemented. It can be said that no sufficient powers are with the authority and powers need to be given to the authority to do sample checking of such cases to ascertain as to whether pregnant woman opted to undergo abortion and then, the Act will become more effective.

¶246

In view of the discussion made above, this Court has no hesitation to observe that for ensuring effective implementation of the aforesaid provisions strict compliance of the aforesaid provisions needs to be made. Thumb impressions need to be attested as it involves identification of pregnant women. The declaration form needs to be signed by the doctor conducting procedure also as the things are required to be explained to pregnant woman by the doctor. Referral slips need to be maintained and preserved and unless it is self referred case the person

¶247

40 Application 5232/2012

¶248

conducting processes and the persons who own the Centre need to insist for production of referral slip and if it not done it needs to be presumed that there is contravention of the provisions. Blank pages of forms cannot be kept in the book as it gives opportunity for creation of record subsequently. If record is not created and maintained as per aforesaid provisions, the Court has to go with the presumption that there is contravention of the provisions and the offence is committed unless the accused rebuts the presumption. In view of the facts of both the cases this Court has no hesitation to hold that the Magistrate has not committed error in ordering issuance of process. Thus there is no possibility of quashing of the proceedings filed against the applicants. As the offence is committed, there is no question of release of sonography machine in the first case. It is up to the authority to take decision on the permission given for the use of the machine and unless there is permission, the accused cannot be allowed to get the custody of the machine. It is open to the authority to make appropriate order in that regard."

¶249

The learned counsel for the applicants, accused has placed reliance on some more reported cases like:-

¶250

(1) AIR 2005 SC 4284 (Cref Finance Ltd. v. Shree Shanthi Homes);

¶251

41 Application 5232/2012

¶252

(2) AIR 2012 SC 1747 (Bhushan Kumar v. State (NCT of Delhi);

¶253

(3) 2012 AIR SCW 5314 (Manharibhai Muljibhai v. Shaileshbhai).

¶254

These cases are on the point of taking cognizance and the powers of the Magistrate in that regard. Facts and circumstances of each & every case are always different and the relevant material needs to be considered at the time of taking cognizance of the offences. In respect of bar to take cognizance, sufficient discussion is already made.

¶255

In view of the discussion made above, this Court holds that no case is made out for both the applicants/accused to interfere in the orders made by the Courts below. So, the applications, Criminal Application Nos.5232/2012 and 1013/2014 stand dismissed. The other

¶256

two applications are allowed as they were filed for amendment and the points raised are considered by this Court.

¶257

Sd/- (T.V. NALAWADE, J. )

¶258

rsl

Dr.Jayesh @ Gulab Sukhadeorao Shinde v. Appropriate Authority and Anothers

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Dr.Jayesh @ Gulab Sukhadeorao Shinde v. Appropriate Authority and Anothers

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