Quashed

Dr. Ranjit Narendra Mehta and Anr. v. the State of Maharashtra and Anr.

Bombay HC4 Oct 2023WP/4348/2019

Case brief

AI extract

What is this about?

Petitioners, doctors running a registered clinic, challenged the process issued and revision order rejecting their discharge plea. The court found no material evidence that an unregistered staff member performed sonography on patients and lacked patient testimony to substantiate the accusation of carriage out such examinations.

What did the court decide?

Quashed the order dated 14/9/2017 passed by the JMFC, Nashik and the order dated 13/5/2019 passed by the Additional Sessions Judge, Nashik.

Dr. Ranjit Narendra Mehta and Anr. Vs the State of… — Company and Corporate | Bombay HC (2023)

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+IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 4348 Of 2019

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Digitally signed by RAJSHREE RAJSHREE KISHOR KISHOR MORE MORE Date: 2023.10.13 14:40:56 +0530

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Dr.Ranjit Narendra Mehta & Anr. Petitioners

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Versus

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The State of Maharashtra & Anr. Respondents

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Mr. V.M. Thorat with Mr.M.V. Thorat, Avinash Bailmane, Mr.Amar Bodke for the petitioner. Mr.Y.M. Nakhwa, APP for the State.

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Ms.Chaitrali Deshmukh, for respondent no.2.

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CORAM: BHARATI DANGRE, J. DATED : 4^th OCTOBER, 2023

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P.C:-

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1] The petitioners are Doctors by profession and they face trial in RCC No. 479/2017 before the JMFC, Nashik for committing offence punishable u/s. 3(2), 4(3), 29 r/w Section 23, 25 of Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (for short “PCPNDT Act”) and Rules 10(1)(a), 9(4), 17(2) of the Rules framed thereunder.

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2] By the present Writ Petition fled under Article 227 read with 482 of Cr.P.C, the petitioners seek quashment of the order dated 14/9/2017 passed by the JMFC, Nashik in RCC No.479/2017, as well as order dated 13/5/2019 passed by the Additional Sessions Judge at Nashik in Criminal Revision Application No. 52/2018, refusing them discharge from the pending proceedings.

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rajshree

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3] Heard learned counsel Mr.V.M. Thorat with Mr.M.V. Thorat for the petitioners, Mr.Y.M. Nakhwa, learned APP for the State and Ms.Chaitrali Deshmukh for respondent no.2 – Medical Offcer for Health and Appropriate Authority under the Nashik Municipal Corporation, Nashik.

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Before I appreciate the argument of Mr.Thorat, it is necessary to glean the facts from the record.

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Petitioner No.1 Dr.Ranjit Mehta is a Gynecologist and is the owner of Mehta Hospital situated at Sharanpur, Nashik. The said hospital was registered as Sonography Centre under the PCPNDT Act and the validity of registration certifcate runs from 30/8/2012 to 29/8/2017. Petitioner no.2 Dr.Smt. Asha Chavan is the Assistant of Petitioner No.1. Both the Petitioners are specialized in Gynecology stream and claim to possess unblemished track record.

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4] On 16/10/2015, at about 2.00 p.m, team of three Doctors, in discharge of their duty as the ‘Appropriate Authority’, visited the hospital of Petitioner no.1 and inspected the Sonography Centre. It is alleged that the petitioners were present, but though the petitioner no.2 was not registered under PCPNDT Act to conduct sonography, she was found to be indulged in conducting sonography on the patients. The hospital was inspected and the PCPNDT record book was not available and hence, a show cause

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rajshree

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notice was issued, making the following accusations :-

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(a) Accused no.2 was found doing Sonography on the patient though she has not registered herself under the PCPNDT Act.

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(b) The book of Pre-conception and Pre-natal diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 was not available at the Centre.

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5] On receipt of the show cause notice, the Petitioner No.1 responded by admitting that he had called Dr.Mrs.Asha Chavan, who is a Sonologist and a Radiologist to carry out non-obstetrical i.e. Gynecological Fertility Sonographies at Mehta Hospital Sonography Centre. But he bonafdely submitted that he was not aware that even for obstetrical sonographies, the visiting Sonologist has to be registered for that particular machine and when it is alleged that Dr. Mrs.Asha Chavan was carrying out ovulation study on an infertility patient, it was her second day of work, but it was clarifed that she has not carried out any ultrasound sonography on any pregnant patient.

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As far as second objection is concerned, the explanation offered is, PCPNDT book was displayed at the center even on 16.10.2015.

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Even Petitioner No.2, Dr.Mrs.Asha Chavan offered an explanation to the Medical Superintendent, Nashik Municipal

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rajshree

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Corporation by stating that she was called at Mehta Hospital on 15.10.2015 and was requested to join the centre as visiting Sonologist exclusively for the infertility (non-obstetric) cases of follicular studies. On 16.10.2015, she had gone to Mehta Hospital to submit her documents for carrying out offcial process and for having an overall view of the machine.

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She categorically made the following statement in her reply:-

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“I have not performed any kind of ultrasound examination and charges levelled against me are false and are not acceptable to me.”

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6] The complaint was fled before the Magistrate by the Authorized Offcer of the Nashik Municipal Corporation, alleging that on the visit of the said hospital, the accused were present and Accused No.2 Dr. Mrs.Asha Chavan though not registered with the Sonography Centre/machine, was found carrying out Sonography. Even the record was not found to be updated as required by the Act and Rules.

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On 14.09.2017, the JMFC, 7^th Court, Nashik, issued process against Accused Nos.1 and 2 i.e. the present Petitioners.

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Pursuant thereto, a Revision Application was fled before the Sessions Court, seeking recall of the process. However, by order dated 13.05.2019, the Additional Sessions Judge, Nashik, has dismissed the Revision by inferring that the Sonography machine

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rajshree

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was being handled by a doctor who was not registered under PCPNDT Act and whose name was not there in the list of doctors, being an employee of Mehta Hospital, which was registered as Genetic Clinic under the PCPNDT Act.

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The fnding is recorded that the complaint on its face value prima facie constitute an offence as admittedly the Sonography machine was being operated by a person who was not registered under PCPNDT Act or shown as employee or consultant of Mehta Hospital as per the registration certifcate issued to it under the Act. In terms of the certifcate, it is only Dr.Ranjit Mehta, Dr. Priyanka Jadhav, Dr. Patekar Tejashree who were registered as the persons employed to operate the sonography machine and since the accused had admitted in her letter dated 16.10.2015 that she was operating the machine, there is suffcient material to proceed against her.

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7] The PCPNDT Act is a special enactment, which seeks to prohibit prenatal diagnostic techniques for determination of the sex of foetus, leading to female infanticide. It prohibit sex selection before or after conception and regulate the use of pre-natal diagnostic techniques for detecting genetic abnormalities or metabollic disorders or chromosomal abnormalities etc. apart from prevention of misuse of sex determination.

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Chapter 2 of the said Act contain the regulation of genetic

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rajshree

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counseling centers, genetic laboratories and genetic clinics and contemplate that no such centre, laboratory or clinic shall conduct or associate with or help in conducting activities relating to prenatal diagnostic techniques unless it is registered under the Act. It also contemplate that it shall not employ or caused to be employed or take services of the persons who do not posses the qualifcations as may be prescribed.

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8] The term medical genetics is defned in Section 2(g) to the following effect :

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2(g) “medical geneticist” includes a person who possesses a degree or diploma in genetic science in the felds of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in any of these felds after obtaining-

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(i) any one of the medical qualifcations recognised under the Indian Medical Council Act, 1956 (102 of 1956); or;

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(ii) a post-graduate degree in biological sciences;] Pre-natal diagnostics test is defned in Section 2(k) as under

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“Pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fuid, chronic villi, blood or any tissue or fuid of a pregnant woman or concepts conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases.

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rajshree

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Sonologist or imaging specialist is also defned in section 2(p) as under :

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“Sonologist or imaging specialist” means a person who possesses any one of the medical qualifcations recognised under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualifcation in ultrasonography or imaging techniques or radiology.”

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Upon registration of the genetic centre/laboratory, clinic under Chapter 6, it can make use of the ultrasound machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection or render services contemplated under the Act. Section 19 of the Act provide for a certifcate of registration to be issued by the appropriate authority on ensuring that the conditions contemplated under the Act and Rules are satisfed. Every such certifcate of registration is permitted to be renewed in such manner and after such period as may be prescribed and it is imperative to display the same in a conspicuous place at its place of business.

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9] The learned counsel representing Corporation has attempted to canvas before me that in terms of Rule 13 of the PCPNDT (Prohibition of Sex Selection Rules, 1996), it was imperative for the Petitioner No.1 to intimate change of employee, if at all he was to engage the services of Petitioner No.2 in his clinic. It is her specifc

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rajshree

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submission that as per Rule 13, every genetic centre/ laboratory/ clinic shall intimate every change of employee, place, address and equipment installed, to the appropriate authority at least 30 days in advance of the expected date of such change and seek re-issuance of certifcate4 of registration from the appropriate authority with the changes duly incorporated.

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Responding to the said requirement, Mr. Thorat has invited my attention to a circular issued by the Ministry of Health and Family Welfare on 16.10.2012 in furtherance of the order of the Delhi High Court on 19.09.2012 , when a decision of the Delhi High Court was directed to be communicated, where the constitutional validity of Rule 3(3) , Rule 5(1) and Rule 13 was being assailed before it as being unconstitutional and arbitrary and beyond the scope of parent Act. On the issue of Rule 13, the Delhi High Court directed that an interim arrangement qua Rule 13 be made wherein for every change in place, equipment and address an advance notice of 7 days be given to the appropriate authority and for every change in employee, an intimation can be given within 7 days of such change. But delay on part of the appropriate authority of incorporating change and re-issuing the certifcate would not prevent the concern clinics from effecting the change in place, address/equipment after lapse of 7 days.

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rajshree

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10] However, I may not be required to go to the aforesaid issue as to whether the change in respect of Petitioner No.2 was intimated and certifed as it is evident that the show cause notice allege that on visit of the hospital on 16.10.2015, Dr. Asha Chavan was seen performing sonography on a patient in Mehta Centre belonging to Petitioner No.1, despite the fact that she was not registered. It is also alleged that she did not obtain any permission to operate the sonography machine.

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Petitioner Nos.1 and 2 specifcally took a stand before the Authority that Petitioner No.2 has not performed ultra sound of any pregnant patient at the centre. Dr. Asha Chavan also categorically stated that she had not performed any kind of ultra sound examination, but she was intending to join the centre as visiting Sonologist. Whether she was entitled to be appointed and at what point of time, the change ought to have been effected is a different matter when the basic allegation is about she carrying out sonography at the centre.

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The appropriate authority has not presented any material in the complaint fled before the Magistrate except the accusation that Petitioner No.2 was performing Sonography of a patient, as the inspection report do not record the name of the patient nor the statement of any patient is recorded, who has revealed that Petitioner No.2 carried her Sonography.

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rajshree

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The allegations that she was carrying on Sonography is vague and her presence in the hospital is justifed when it is her specifc case that she was requested to join the center as visiting Sonoligst exclusively for infertility cases and she had gone to the hospital for submitting her documents. It can thus be inferred that there is no material with the ‘Authority’ to support the accusation that she performed Sonography on 16.10.2015, in the clinic of Petitioner No.1 and in absence of such evidence, the trial of the Petitioners would amount to an abuse of process of law.

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In absence of the material to proceed against the Petitioners for the alleged violation of the provision of PCPNDT Act, I do not think that they deserve to undergo the rigmarole of a trial before the Magistrate who has issued the process.

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The Additional Sessions Judge, in the impugned order has grossly erred in recording that the allegations made in the complaint on their face value constitute an offence, when not a single statement is recorded to refect that the Petitioner No.2 had performed or was performing Sonography on any patient. The accusation is hanging in the air without any ground to rest upon.

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11] The whole purpose of the PCPNDT Act is to prohibit six selection and for regulation of pre-diagnostic Techniques. The appropriate authority appointed under Section 17 of the Act is the

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rajshree

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Authority implementing the enactment and is expected to discharge the functions conferred upon it under Sub Section 4 of Section 17 in a logical manner and is expected to level the charges only on the existing grounds since the power to be exercised by it is a drastic power of suspending or cancellation of registration of a genetic counseling center Laboratory/clinic and to enforce the standards prescribed under the Act and Rules.

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If the Authority allege that there was a breach of the provisions of the Act and Rules, it must be able to demonstrate the said accusation, and since in this case, since the Authority has palpably failed to do so, the order passed by the Magistrate is liable to be quashed and set aside.

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12] As a result, order passed by the Sessions Court, Nashik on 12.05.2019 as well as the order passed by the Magistrate Nashik on 14.09.2017 in RCC No.479/2017 are quashed and set aside.

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As a result, Writ Petition is made absolute in terms of prayer clause (a).

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No order as to costs.

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( SMT. BHARATI DANGRE, J.)

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rajshree

Dr. Ranjit Narendra Mehta and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Dr. Ranjit Narendra Mehta and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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