Allowed

Dr. Shrihari S/O Limbaji Lahane and Anr. v. the State of Maharashtra

Bombay HC21 Feb 2018APPLN/5159/2015

Case brief

AI extract

What is this about?

In a criminal revision application challenging the conviction of doctors for alleged violations of record maintenance rules under the PNDT Act, the High Court quashed the proceedings. The court held that the inspection was conducted in the applicants' absence without proper opportunity to present their case, rendering the enquiry superficial.

What did the court decide?

Criminal application allowed; orders of Judicial Magistrate and Additional Sessions Judge quashed and set aside; rule made absolute.

Dr. Shrihari S/O Limbaji Lahane and Anr. Vs the State of… — Medical Negligence | Bombay HC (2018)

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CrAppln 5159 15.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 5159 OF 2015

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1)Dr. Shrihari s/o Limbaji
Lahane, Age 61 years, Occ.
Medical Practitioner, R/o.
Vithai Hospital & Research
Centre, Jirewadi, Tq. & Dist.
Beed.

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2)Dr. Shivaji s/o Raosaheb
Sanap, Age 45 years, Occ.
Agriculture, R/o. Yash
Hospital, Beed, Tq. & Dist.
Beed.
...Applicants.

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VERSUS.

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The State of Maharashtra,
Through : Abhay Devidasrao
Maske, Age 33 years, Occ.
Naib Tahsildar (Rev), &
Competent Authority, Beed, ... Respondent.
Tq. & Dist. Beed.
...

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Advocate for the Applicants : Mr. S.S. Thombre.

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APP for the respondent : Mr. A.P. Basarkar.

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CORAM:K. L. WADANE, J.

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Reserved on : 14th February, 2018
Pronounced on : 21st February, 2018

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JUDGMENT :

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1. Rule. Rule made returnable forthwith. With

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CrAppln 5159 15.odt the consent of the parties, application is taken up for final hearing.

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2. Heard Mr. Thombre, learned counsel for

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applicants and Mr. Basarkar, learned APP for the
respondent.

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3. The respondent herein has filed a complaint
before the Judicial Magistrate First Class, Beed. It
is alleged that the respondent has visited the premises
of the hospital on 08.06.2012 and prepared a panchnama

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and reported that the ultra sonography machine was open
and the doctor who was authorized to perform the
sonography was not present there. It is further
alleged that the applicants have not maintained record
properly, more particularly, the record relating to the
pregnant woman, in the form of 'F' were kept blank.
Similarly, the forms 'G' were not filled up. In
absence of a Radiologist the sonography room is to be
locked, however, it was found open. With these
allegations the respondent has filed complaint in the
Court of Chief Judicial Magistrate, Beed.

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4. After presentation of the complaint, the learned
Judicial Magistrate First Class Beed, issued process

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CrAppln 5159 15.odt against the applicants under section 18, 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (herein after referred as 'the Act'). The applicants have challenged this order by way of filing Criminal Revision No. 141/2014 but same was also dismissed by the Additional Sessions Judge-2 Beed on 05.02.2015. Hence, this application.

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5. Mr. Thombre, learned counsel for the applicants

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has submitted that when on earlier occasion the
Appropriate Authority inspected the centre of the
applicants on 05.06.2012 and 06.06.2012 nothing was
found against the applicants and when the respondent

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has conducted the inspection and panchnama on
08.06.2012 both the applicants were in the police
custody in connection with another Crime No. 66/2012.
Therefore, the alleged inspection carried out by the
respondent in absence of the applicants. Therefore
there was no opportunity for them to produce the
relevant record to show that they were following the
rules and regulations of the Act.

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6. Mr. Thombre, learned counsel, for applicants has

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CrAppln 5159 15.odt

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further submitted that when the Appropriate Authority
inspected the Centre of the applicants on 06.06.2012,
on that day also the Appropriate Authority has not
found any violation of the provisions of the Act and
it is specifically written against column No. 10 at
Sr. No. 6.

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7. Mr. Thombre, learned counsel, further points out

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that on behalf of applicants a Medical Director has
also written to the Civil Surgeon, Beed, on 03.10.2011

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informing that the sonography machine in Vithai
Hospital and Research Centre was not in use and
therefore it was requested to close the centre
temporarily. With these background, Mr. Thombre,

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learned counsel, has submitted that this is a fit case,
in which, the proceedings against the applicants can be
quashed and set aside.

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8. Mr. Thombre, learned counsel for the applicants

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relied upon the observations in case reported in 2012 ALL MR (Cri) 3991 (Dr. Mrs. Uma Shankarrao Rachewad

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Vs. Appropriate Authority, Nanded) . He also relied on

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the observations of this Court in Criminal Writ

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Petition No. 4194 of 2014 ( Coram : M.L.Tahaliyani, J.)

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CrAppln 5159 15.odt and Criminal Writ Petition No. 406 of 2011 ( Coram : A.V. Nirgude J.)

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9. As against this, learned APP submits that the
record kept by the applicants in the sonography centre
were blank and no record was kept in respect of the
sonography done on pregnant women.

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10. I have carefully gone through the record, from

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which it appears that, these registers are not filled.
However, on perusal of the entire record it appears
that, there is no complaint against the applicants that
they were doing sonagraphy and thereby determining the
sex. On the contrary it was informed on behalf of the
applicants to the Civil Surgeon Beed that the Centre
should be temporarily closed because of non-functioning
of the sonagraphy machine.

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11. From the record it appears that when the
sonography centre was examined by the Appropriate
Authority on 06.06.2012, no irregularity was found and
it is particularly reported by way of inspection report
in format 'B' and since the applicants were in police
custody remand therefore how the respondent
surprisingly noted that the record was not properly

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CrAppln 5159 15.odt maintained, when such irregularities were not found at

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the time of inspection by appropriate authority on
05.06.2012 and 06.06.2012. On the contrary from the
contents of the record, seizure panchnama dated
08.06.2012 it appears that at the time of panchnama the
sonography room was locked, thereafter the lock was
opened and the premises were inspected. In brief, it

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is the allegations against the present applicants that
a sonography centre using diagnostic techniques are
supposed to maintain record as prescribed i.e. form No.
'F' and 'G'.

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12. Rule 9 of the Act reads as follows :

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9. Maintenance and preservation of
records : [(1) Every Genetic Counselling
Centre, Genetic Laboratory, [Genetic Clinic
includingaMobileGeneticClinic],
Ultrasound Clinic and Imaging Centres shall
maintain a register showing, in serial order,
the names and addresses of the men or women
given genetic counselling, subjected to pre-
natal diagnostic procedures or pre-natal
diagnostic tests, the names of their spouse
or father and the date on which they first
reported for such counselling, procedure or
test.

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CrAppln 5159 15.odt

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(2)The record to be maintained by every
Genetic Counselling Centre, in respect of
each woman counselled shall be as specified
in Form D.

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(3)The record to be maintained by every
Genetic Laboratory, in respect of each man or
woman subjected to any pre-natal diagnostic
procedure/technique/test,shallbeas
specified in Form E.

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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,shallbeas
specified in Form F]

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(5)The Appropriate Authority shall
maintain a permanent record of applications
for grant or renewal of certificate of
registration as specified in Form H. Letters
of intimation of every change of employee,
place, address and equipment installed shall
also be preserved a permanent records.

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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

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CrAppln 5159 15.odt

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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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(7)In case the Genetic Counselling Centre
or Genetic Laboratory of Genetic Clinic,
Ultra Sound Clinic or Imaging Centre
maintains records on computer or other
electronic equipment a printed copy of the
record shall be taken and preserved after
authentication by a person responsible for
such record.

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(8)Every Genetic Counselling Centre,
GeneticLaboratory,GeneticClinic,
Ultrasound Clinic and Imaging Centres shall
send a complete report in respect of all
pre-conceptionorpregnancyrelated
procedures/techniques/tests conducted by
them in respect of each month by 5th of the
following month of the concerned Appropriate
Authority.

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13. As per Rule 9(4) of the Pre-conception and Pre-
natal Diagnostic Techniques (Prohibition of Sex

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CrAppln 5159 15.odt Selection) Rules, the record is to be maintained by the Sonography Centre in respect of each man or woman subjected to any pre-natal diagnostic procedure/ technique/test, shall be specified in Form F.

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14. In my opinion, when the inspection of the Centre

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was carried out in absence of the applicants,
therefore, in fact, there was no opportunity for them
to show that they have maintained the record properly.
The allegations against the applicants are serious,

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therefore, it was necessary to collect the precise
evidence which may, prima-facie, specify that the
applicants had not maintained the record of Ultrasound
Sonography Centre. Therefore, it appears to me that a

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superficial enquiry was done and the panchnama was
prepared. The applicants cannot be asked to face
prosecution on the basis of a superficial enquiry. As
such, the criminal case lodged against the applicants
for violation of rule 9(4), 10(1) punishable under
section 25 of the Act, deserves to be quashed and the
order of the Revision Court is required to be set
aside. Hence, following order is passed.

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O R D E R

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Criminal Application is allowed.

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CrAppln 5159 15.odt 2) The order passed by Judicial Magistrate First Class, Beed, below Exh. 1, in R.C.C. No. 410/2012 on 03.11.2014 and the order dated 05.02.2015 passed by the Additional Sessions Judge-2, Beed,in Criminal Revision No.141/2014 are quashed and set aside.

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3)Rule made absolute in above terms. No costs.

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(K. L. WADANE, J.)

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mkd

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Dr. Shrihari S/O Limbaji Lahane and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Dr. Shrihari S/O Limbaji Lahane and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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