Dismissed

Dr.Anjali Pradeep Huse(Dhakne) v. the State of Maharashtra and Another

Bombay HC15 Dec 2014WP/925/2013

Case brief

AI extract

What is this about?

The High Court at Bombay (Aurangabad Bench) dismissed a writ petition seeking to quash criminal proceedings against a sonography center owner for alleged violations of the PNDT Act, 1994. Ruling that strict compliance with record-keeping mandates is essential to prevent female feticide, the court held deficiencies in forms and case papers established a prima facie contravention, precluding summary

What did the court decide?

The petition seeking quashing of criminal proceedings under the PNDT Act is dismissed. The Magistrate's order issuing process against the petitioner is sustained.

Dr.Anjali Pradeep Huse(Dhakne) Vs the State of… — Writ and Judicial Review | Bombay HC (2014)

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Cri.W.P. No. 925/13

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 925 OF 2013

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Dr. Anjali Pradeep Huse (Dhakne)

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....Petitioner.

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Versus

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The State of Maharashtra & Anr.

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....Respondents.

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Mr. S.S. Jadhavar, Advocate for petitioner. Mr. A.S. Shinde, APP for State.

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CORAM : T.V. NALAWADE, J. DATED : 15th December, 2014.

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ORDER :

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The petition is filed for relief of quashing of the criminal case bearing R.C.C. No. 746/2012, which is pending in the Court of Judicial Magistrate, First Class, Jalna. The case is filed by respondent, appropriate authority, appointed under the provisions of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'the Act'). Cognizance of the offences punishable under sections 23, 25, 26 and 29 of the Act is taken by the learned J.M.F.C. Both the sides are heard.

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There are following allegations against the petitioner,

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owner of one hospital and owner of a sonography center.

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(i) 'F' forms in respect of few pregnant women were not complete, (ii) Case papers in respect of OPD patients were not available and they were not maintained.

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The learned counsel for petitioner submitted that the allegations made against the petitioner are not correct and the necessary particulars of the 'F' forms were filled. He submitted that the case papers, which are required to be preserved, were available. The learned APP, on the other hand, submitted that the provisions of the Act and Rules need to be complied with strictly and if there is no compliance or even if the compliance is not properly made and forms are incomplete, it needs to be presumed that the offence is committed.

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This Court has carefully gone through the copies of forms in respect of which there are allegations. Specific instances are mentioned in the affidavit in respect of some patients. It is the contention of the authority that column Nos. 10 and 11 of 'F' form need to be filled as from those columns, it can be ascertained as to whether there was any abnormalities noticed. It is the contention that in these columns, it is written

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by the accused as 'anomaly scan', but the OPD case papers of the patients were not available. Specific case of one Smt. Sagar Jadhav is mentioned in this regard. The final result of the examination is not mentioned in this form. It is contended that if there is any anomaly, there is choice to the patient to terminate the pregnancy and anomaly scan can be done ordinarily when there is pregnancy of 18-20 weeks as after 18 weeks all the organs of the foetus can be seen. It is contended that after 20 weeks of the pregnancy, termination of pregnancy is not possible in law and this case was not of necessity of anomaly scan. The lady was carrying of 6 weeks. In case of another patient Suchita Bhople, the pregnancy was of 35 weeks and it appears to the complainant that the reason for sonography mentioned in the paper is false. It is contended that under the provisions of sections 5 and 6 of the Act and Rule 9 of the Rules, it is necessary to maintain all the record and record should be complete in every respect, but the record was not available in respect of aforesaid cases and many other cases and so, the offence has been committed. Copies of 'F' forms are produced along with the affidavit showing that the final result was not mentioned in some cases, in some cases anomaly scan was mentioned even when the cases of pregnancy were beyond the aforesaid period.

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It appears that present petitioner has admitted that in many cases the case papers were not available at the sonography center. It is the contention of the petitioner that the case papers of those OPD patients were returned to the patients and so, they were not available. This submission is not at all acceptable. This Court has discussed the necessity to follow the provisions of the Act and the Rules strictly in Criminal Writ

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Petition No. 680/12 and others [Between Dr. Prabhakar s/o. Ganpatrao Tawshikar Vs. The State of Maharashtra]

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decided on 5th November 2014. The relevant observations are made at paragraph Nos. 13 to 26 and they are as under :-

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"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 :-

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

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(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.

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Explanation .-- For the purposes of this clause,

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“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.”

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“(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.”

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“ (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.”

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

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(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);

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

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(i) chromosomal abnormalities;

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(ii) genetic metabolic diseases;

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(iii) heamoglobinopathies;

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(iv) sex-linked genetic diseases;

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(v) congenital anomalies;

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

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(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:-

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

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

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

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(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;

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

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Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;

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(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);

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(5) no person including a relative or husband of

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a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.”

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“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--

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

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

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

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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 :-

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“(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.”.

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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 :-

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“ 9. Maintenance and preservation of records. --

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(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.”

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Rule 9 (6) runs as under :--

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“(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.”

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Rule 9 (8) runs as under :-

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“(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

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procedures / techniques / tests conducted by them in respect of each month by 5^th day of the following month to the concerned Appropriate Authority.”

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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.

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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.

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

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“ 10. Conditions for conducting pre-natal diagnostic procedure.-- (1) Before conducting preimplanatation genetic diagnosis, or any pre-natal diagnostic technique/test/procedure such as amniocentesis, chorionic villi biopsy, foetoscopy, foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him.

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“(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.”

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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.

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The wording of section 5 shows the procedure that needs to be followed for conducting of pre-natal diagnosis. However in section 5(1)(b) the term “prescribed" is used in respect of consent form of pregnant woman. In rule 10 and in Form "G" prepared under rule 10 it is made clear that this form

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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.

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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) :--

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

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

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

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Cri.W.P. No. 925/13

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

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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.

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

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

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

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

Cri.W.P. No. 925/13

Gujarat) ;

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

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

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(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,

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(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.

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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

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clear by the Full Bench that if there is contravention in respect of maintenance of record and the persons conducting the process do not maintain necessary record complete in every respect that contravention amounts to offence. Though different point was involved in the matter pending before the Full Bench, the relevant provisions are discussed by the Full Bench even from the angle of commission of offence. In the last two proceedings, this Court refused to quash the proceeding by relying on the observations made by the Division Bench of this Court and the Full Bench of the Gujarat High Court, cited supra.

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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

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Counseling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic, Imaging Centre are registered in Maharashtra and there are maximum number of sonography Centers in Maharashtra. More than 60% of such bodies are ultrasound clinics. The studies have revealed that the pre-natal diagnostic techniques are easily available in sonography centres for sex determination. The cases registered in Maharashtra show that these centers are being misused. Due to misuse of the centres the sex ratio has come down alarmingly in Marathwada region and by the end of year 2012 the ratio of female child birth had got down below 800 in most of the Districts of Marathwada. Only when the authority started making inspection and the cases were registered for causing illegal abortion, the female birth ratio improved and it has now crossed 900 in this region.

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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.

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In view of the discussion made above, this Court has no hesitation to observe that for

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ensuring effective implementation of the aforesaid provisions strict compliance of the aforesaid provisions needs to be made. Thumb impressions need to be attested as it involves identification of pregnant women. The declaration form needs to be signed by the doctor conducting procedure also as the things are required to be explained to pregnant woman by the doctor. Referral slips need to be maintained and preserved and unless it is self referred case the person conducting processes and the persons who own the Centre need to insist for production of referral slip and if it not done it needs to be presumed that there is contravention of the provisions. Blank pages of forms cannot be kept in the book as it gives opportunity for creation of record subsequently. If record is not created and maintained as per aforesaid provisions, the Court has to go with the presumption that there is contravention of the provisions and the offence is committed unless the accused rebuts the presumption. In view of the facts of both the cases this Court has no hesitation to hold that the Magistrate has not committed error in ordering issuance of process. Thus there is no possibility of quashing of the proceedings filed against the applicants. 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

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allowed to get the custody of the machine. It is open to the authority to make appropriate order in that regard.

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In view of this position of law, this court holds that it is not possible to quash the proceeding.

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The learned counsel for petitioner placed reliance on the cases decided by other Hon'ble Judge of this Court bearing Criminal Writ Petition No. 696/2011 [Dr. Shalini Balasaheb Karad Vs. The State of Maharashtra and Ors.] and Criminal Application No. 3500/2011 [Dr. Alka w/o. Anant Gite and Anr. Vs. The State of Maharashtra and Anr.]. In view of the facts of those cases, this Court held that there was sufficient compliance of the provisions. This Court has referred the case of Division Bench of this Court reported as 2013(2) Bom. C.R. 351 (Sujit Govind Dange v. State of Maharashtra) in which there is discussion of the provisions and in which it is laid down that the compliance needs to be done strictly.

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In the result, the petition stands dismissed.

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ssc/

Dr.Anjali Pradeep Huse(Dhakne) v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Dr.Anjali Pradeep Huse(Dhakne) v. the State of Maharashtra and Another

Case brief

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What did the court decide?

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