Dismissed

M/S Arundathi Poly v. the State Appropriate Authority (Saa)

Karnataka HC15 Jul 2022CRL.P/3069/2022

Case brief

AI extract

What is this about?

Prosecutions concerning alleged sex determination and sex-selective abortions survived a challenge to the complainant's authority. The court upheld the delegation covering Mysore and Mandya and dismissed both petitions. It directed the State to notify Appropriate Authorities for every district within twelve weeks.

What did the court decide?

State directed to notify Appropriate Authorities for all districts to register crimes under the Act within twelve weeks of receipt of the order.

M/S Arundathi Poly Vs the State Appropriate Authority (Saa) — Quashing and FIR | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.3069 OF 2022

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C/W.

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WRIT PETITION No.7573 OF 2022 (GM-RES)

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IN CRIMINAL PETITION No.3069 OF 2022

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BETWEEN:

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M/S ARUNDATHI POLY CLINIC & DIAGNOSTICS SITUATED AT NO.4/61, SRP ROAD, THYAGARAJA MOHALLA BANNUR - 571 101 MYSURU DISTRICT REPRESENTED BY ITS PROP. MR. N. RAMAKRISHNA S/O LATE NINGE GOWDA AGED ABOUT 48 YEARS.

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MR.N.RAMAKRISHNA S/O LATE NINGE GOWDA AGED ABOUT 48 YEARS R/AT 203/1, WARD NO.4 SRP ROAD, THYAGARAJA MOHALLA BANNUR - 571 101 MYSURU DISTRICT.

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MRS. MANGALA AGED ABOUT 47 YEARS W/O CHANNABASAPPA R/AT C/O HOTTESIDDEGOWDA, KARASAWADI VILLAGE MANDYA - 571 478. 4. M/S SHREYA CLINIC SITUATED AT DURGABHAVAN CIRCLE SHRAVANABELAGOLA ROAD K.R.PETE, MANDYA - 577 133 REPRESENTED BY ITS PROP. DR. MALLIKARJUNA. 5. DR. MALLIKARJUNA ADULT S/O LATE ISHWARAIAH PROP. OF SHREYA CLINIC SITUATED AT DURGABHAVAN CIRCLE SHRAVANABELAGOLA ROAD K.R.PETE, MANDYA - 577 133. ... PETITIONERS (BY SRI MOHANA CHANDRA P., ADVOCATE) AND: THE STATE APPROPRIATE AUTHORITY (SAA) P.C. AND P.N.D.T., OFFICE OF THE STATE APPROPRIATE AUTHORITY STATE PC AND PNDT CELL DIRECTORATE OF HEALTH AND FAMILY WELFARE SERVICES AROGYA SOUDHA 2^ND FLOOR, MAGADI MAIN ROAD, BENGALURU – 560 023 REPRESENTED BY STATE NODAL OFFICER AND DEPUTY DIRECTOR PC AND PNDT DR.CHANDRAKALA G.,

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REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA AMBEDKAR VEEDHI BENGALURU – 01.

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... RESPONDENT

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(BY SRI K.S.ABHIJITH, HCGP.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.3917/2021 (PCR NO.169/2021) INCLUDING THE IMPUGNED ORDER DATED 24.11.2021 TAKING COGNIZANCE OF THE OFFENCE P/U/S.23, 23(1), 23(2), 20(1), 20(2) AND 20(3) OF PNDT ACT, PENDING ON THE FILE OF THE JMFC, MANDYA AGAINST THE PETITIONER.

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IN WRIT PETITION No.7573 OF 2022

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BETWEEN:

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M/S NAMMA MANE POLY CLINIC SITUATED AT NO.2826, 5^TH CROSS GANDHINAGAR, VIVEKANANDA NAGAR ROAD MANDYA CITY MANDYA – 571 401 REP. BY ITS PROPRIETOR MR. MAHESH CHANDRA GURU S/O LATE B.C.SHIVA SHANKAR AGED ABOUT 55 YEARS.

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SRI MAHESH CHANDRA GURU S/O LATE B.C.SHIVA SHANKAR AGED ABOUT 55 YEARS R/AT NO.2826, 5^TH CROSS GANDHINAGAR, VIVEKANANDA NAGAR ROAD MANDYA CITY MANDYA – 571 401

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PROPRIETOR OF

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NAMMA MANE POLY CLINIC.

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SMT. ANUSUYA W/O MAHESH CHANDRA GURU AGED ABOUT 46 YEARS R/AT NO.2826, 5^TH CROSS GANDHINAGAR, VIVEKANANDA NAGAR ROAD MANDYA CITY MANDYA – 571 401 WORKING AS MANAGER OF NAMMA MANE POLY CLINIC. ... PETITIONERS

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(BY SRI BASAVARAJU P., ADVOCATE)

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AND:

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STATE OF KARNATAKA DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES NO.105, I FLOOR, VIKAS SOUDHA BENGALURU – 560 001 REP. BY IT’S PRINCIPAL SECRETARY.

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THE STATE APPROPRIATE AUTHORITY (SAA) - P.C. AND P.N.D.T. OFFICE OF THE STATE APPROPRIATE AUTHORITY STATE PC AND NDT CELL DIRECTORATE OF HEALTH AND FAMILY WELFARE SERVICES AROGYA SOUDHA, 2^ND FLOOR MAGADI MAIN ROAD BENGALURU – 560 023 REP. BY STATE NODAL OFFICER AND DEPUTY DIRECTOR - PC AND PNDT DR.CHANDRAKALA G.,

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... RESPONDENTS

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(BY SRI K.S.ABHIJITH, HCGP)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN P.C.R.NO.169/2021 AND FOLLOWED BY CRIMINAL CASE IN C.C.NO.3917/2021 PENDING ON THE FILE OF THE C/C JUDICIAL MAGISTRATE FIRST CLASS AT MANDYA AND QUASH THE PRIVATE COMPLAINT IN PCR.NO.169/2021 VIDE ANNEXURE-A AND ORDER OF COGNIZANCE DATED 24.11.2021 VIDE ANNEXURE-B AND PROCEEDINGS IN C.C.NO.3917/2021 PENDING ON THE FILE OF THE C/C JUDICIAL MAGISTRATE FIRST CLASS AT MANDYA.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.05.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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Both these petitions call in question proceedings in C.C.No.3917 of 2021 pending before the JMFC, Mandya instituted by the respondent/State on registration of a private complaint invoking Section 200 of the Cr.P.C. for offences punishable under Sections 23, 23(1), 23(2), 20(1), 20(2) and 20(3) of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (‘the Act’ for short).

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Since both the petitions arise out of a common complaint registered by the complainant/State they are taken up together and considered in this order.

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Heard Sri P.Mohana Chandra, learned counsel appearing for the petitioners in Crl.P.No.3069 of 2022, Sri P.Basavaraju, learned counsel appearing for the petitioners in W.P.No.7573 of 2022 and Sri K.S.Abhijith, learned High Court Government Pleader for the respondent/State in both the petitions.

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Brief facts leading to the filing of the present petitions, as borne out from the pleadings, are as follows:

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M/s Arundathi Poly Clinic & Diagnostics is the 1^st petitioner and its staff are other petitioners in Criminal Petition No.3069 of 2022 and M/s.Namma Mane Poly Clinic is the 1^st petitioner and its proprietor and Manager are petitioners 2 and 3 in Writ Petition No.7573 of 2022. The 1^st petitioner in both the petitions are private polyclinics claiming to be doing medical services to its patients who come to them. On 11-10-2021 the State Cell constituted under the Act, its Deputy Director received a complaint from the District Health and Family Welfare Officer, Mandya District that victim by name Mrs. Sulochana had complained that an illegal Medical Termination of Pregnancy (‘MTP’) was conducted on a pregnant woman by name Mrs. Mangala in order to conduct sex selection

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abortion. Later it transpires that the respondent-Nodal Officer under the Act visited the premises and found several instances of such abortion taking place with the connivance of the petitioners in these petitions. On registration of the private complaint and cognizance being taken by the learned Magistrate, the petitioners have knocked the doors of this Court in the subject petitions.

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The learned counsel appearing for the petitioners in both these petitions would in unison contend that search and seizure conducted by the District Health Officer, Mandya (‘DHO’) is without authority of law and no document is placed to show that there is delegation of authority on the DHO for search and seizure. The learned counsel would submit that it is in violation of Rule 12 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (‘the Rules’ for short) and search and seizure conducted by the DHO is without jurisdiction. They would further contend that the trial Court ought to have noted that the accused persons are residing outside the jurisdiction of the trial Court and without conducting an inquiry in terms of Section 202 of the Cr.P.C. cognizance could not have been taken against the

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petitioners. They would further contend that in terms of Section 28 of the Act, no Court can take cognizance of the offence except on its registration by an appropriate authority. The complainant one Dr.G. Chandrakala had registered the complaint and had not produced any document to demonstrate that she has been designated as the appropriate authority in terms of the Act. Filing of a private complaint by a Nodal Officer or Deputy Director under the Act is contrary to law as is held by this Court.

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On the other hand, the learned High Court Government Pleader would vehemently refute the submissions to contend that the respondent-Nodal Officer is the one who is delegated with the powers to exercise jurisdiction over those polyclinics under the Act and is empowered to register the complaint. There is no warrant for interference at this stage of the proceedings as the petitioners are indulging in grave instances of performance of MTP contrary to the Act.

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I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

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The only issue that drives these petitions to this Court is that the search conducted or the proceedings instituted are not by the competent authority or the appropriate authority under the Act. Therefore, it becomes germane to notice certain provisions of the Act which empower constitution of appropriate authority or delegation of power to such authority. Sub-sections (a), (bc), (i), (j), (k) and (o) of Section 2 read as follows:

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

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otherwise requires, -

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(a) “Appropriate Authority” means the Appropriate Authority appointed under section 17;

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(bc) “foetus” means a human organism during the period of its development beginning on the fifty-seventh day following fertilization or creation (excluding any time in which its development has been suspended) and ending at the birth;

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(i) “pre-natal diagnostic procedures” means all gynecological 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

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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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(j) “pre-natal diagnostic techniques” includes all pre-natal diagnostic procedures and pre-natal diagnostic tests;

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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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(o) “sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex.”

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(Emphasis supplied)

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Section 2(a) defines ‘appropriate authority’ to be the one appointed under Section 17 of the Act. Section 2(bc) defines ‘foetus’ to be a human organism during the period of its development on the fiftyseventh day following fertilization. Section 2(i) defines ‘pre-natal diagnostic procedures’ which would mean gynaecological or

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obstetrical or medical procedures including ultrasonography, and foetoscopy. Section 2(j) defines ‘pre-natal diagnostic techniques’ . Section 2(k) defines ‘pre-natal diagnostic test’ and ultrasonography or any analysis of amniotic fluid would be a diagnostic test. Section 2(o) defines ‘sex selection’ and any procedure, technique, test or administration or prescription to get sex selection tested for determination of a particular sex. Chapter-II of the Act deals with regulation of genetic counseling centres, genetic laborators and genetic clinics. Section 3A reads as follows:

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“3A. Prohibition of sex-selection .-No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.”

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Section 3A prohibits sex selection and directs that no person in the

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field of infertility shall conduct or cause to be conducted sex selection of a woman or a man. Chapter-III deals with regulation of Pre-natal Diagnostic Techniques. Section 4 deals with regulation of pre-natal diagnostic techniques and reads as follows:

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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) haemoglobinopathies;

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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 techniques 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 the 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 a woman shall seek or encourage the conduct of any sexselection technique on her or him or both.”

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Section 5 of the Act mandates consent of a pregnant woman and

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prohibition of communicating the sex of foetus. Section 6 deals with prohibition of determination of sex. Chapter III in its entirety deals with regulation of prenatal diagnostic techniques. The diagnostics permitted and prohibited are all contained in Chapter III which

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regulates such techniques. Chapter-V of the Act deals with appropriate authority and advisory committee. Section 17 defines it and reads as follows:

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“17. Appropriate Authority and Advisory Committee. (1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act.

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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

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Authorities under subsection (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

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constitute multi-member State or Union territory level Appropriate Authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention 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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(4) the Appropriate Authority shall have the following functions, namely:—

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(a) to grant, suspend or cancel registration of a Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic;

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(b) to enforce standards prescribed for the Genetic Counseling Centre, Genetic Laboratory and Genetic Clinic;

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(c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action;

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(d) to seek and consider the advice of the Advisory Committee, constituted under subsection (5), on application for registration and on complaints for suspension or cancellation of registration;

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(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to

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its notice and also to initiate independent investigations in such matter;

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(f) to create public awareness against the practice of sex selection or pre-natal determination of sex;

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(g) to supervise the implementation of the provisions of the Act and rules;

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(h) to recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions;

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(i) to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of registration.]

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(5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman.

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(6) The Advisory Committee shall consist of(a) three medical experts from amongst gynecologists, obstetricians, pediatricians and medical geneticists;

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(b) one legal expert;

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(c) one officer to represent the department dealing with information and publicity of the State Government or the Union Territory, as the case may be;

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(d) three eminent social workers of whom not less than one shall be from amongst representatives of women's organizations.0

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(7) No person who has been associated with the use or promotion of pre-natal diagnostic techniques for determination of sex or sex selection shall be appointed as a member of the Advisory Committee.

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(8) The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for registration or any complaint for suspension or cancellation of registration and to give advice thereon:

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Provided that the period intervening between any two meetings shall not exceed the prescribed period.

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(9) The terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee in the discharge of its functions shall be such as may be prescribed.”

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(Emphasis supplied)

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Section 17A of the Act deals with powers of appropriate authorities and reads as follows:

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“17A. Powers of Appropriate Authorities.The Appropriate Authority shall have the powers in respect of the following matters, 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 be indulging in sex selection techniques or pre-natal sex determination; and

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d) any other matter which may be prescribed.” (Emphasis supplied)

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Chapter VI of the Act deals with registration of genetic counseling centres, genetic laboratories and genetic clinics.

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The afore-quoted are the provisions right from the definition of foetus till its prohibition or termination as found in the Act. The issue in the case at hand is whether the competent authority has instituted the proceedings or the action of institution of the case suffers from want of jurisdiction. Section 28 of the Act reads as follows:

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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 authorised 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” includes a social organisation.

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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 subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.”

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(Emphasis supplied)

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Section 28 deals with cognizance of offences and mandates that no Court shall take cognizance of an offence under this Act except on a complaint made by the appropriate authority concerned or any officer authorized in this behalf by the Central Government or the State Government as the case would be. Therefore, the Court is empowered to take cognizance only on a complaint made by the appropriate authority under the Act or any other authority authorized on behalf of the appropriate authority. The ‘appropriate

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authority’ is defined under Section 17 of the Act. Section 17 of the Act ( supra ) which deals with ‘appropriate authority’ and an advisory committee also empowers the Central Government or the State Government for appointment of appropriate authorities by appropriate notifications. In the case at hand, the State Government has issued a notification on 4.06.2021 constituting advisory committee to be the appropriate authority under the Act as Section 17 empowers constitution of such appropriate authority and advisory committee. The notification dated 4-06-2021 reads as follows:

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¸ÀASÉå:DPÀÄPÀ 135 J¥sï ¦ E 2020

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C¢ü¸ÀÆZÀ£É

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¶163

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¶165

Term of the State Inspection and Monitoring Committee:

¶166

1. The Term of the State Inspection and Monitoring Committee is 3(three) years.

¶167

2. The term of office of a member other than ex-officio member shall be 3(three) years. It shall meet once in 3 months.

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3. If a vacancy occurs in the office of any member other than exofficio member it shall be filled by making fresh appointment.

¶169

4. Member secretary shall perform such functions as may be assigned to him by the Chairperson from time to time in his absence and prior permission.

¶170

5. In case of ex-officio member membership falls vacant due to any reason such as transfer, promotion, and retirement by superannuating or voluntary retirement, retrenchment, and dismissal from service, it can be filled automatically by the

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¶172

successor or in charge of such post as the membership is by designation only.

¶173

6. One third of the total number of members of the committee shall constitute the quoram.

¶174

7. In respect of the matter not specified in the above terms and conditions, the State Inspection and Monitoring Committee shall follow procedure and conditions laid by the State Supervisory Board from time to time.

¶175

8. Every member of the SIMC shall be entitled to draw traveling and daily allowances for journeys performed by him for attending the meetings/inspections or for the purpose of discharging any other duties prescribed, on the scale admissible to First Grade Officers of the Government of the State or Union Territory, as the case may be.

¶176

Responsibilities of State Inspection and Monitoring Committee:

¶177

a. To inspect and monitor periodically centers registered under PC & PNDT Act with prior permission from the Chairperson.

¶178

b. To bring to the notice of concerned appropriate authority, any breach of the PC &PNDT Act which are observed during inspection.

¶179

c. To visit any Centre registered or not registered, right to visit collectively at reasonable times with or without prior information to the clinic/center, to Determine if the center is functioning according to the PC&PNDT Act. If not, the SIMC will point out lapses to the appropriate authority and establishment registered under PC&PNDT Act in writing.

¶180

PÀ£ÁðlPÀ gÁdå¥À®gÀ DeÁÕ£ÀÄ¸ÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è ¸À»/-4/6/2021 (r.zsÀ£ÀAdAiÀÄ) ¸ÀPÁðgÀzÀ C¢üÃ£ÀPÁAiÀÄðzÀ²ð DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉ, (PÀÄlÄA§ PÀ¯Áåt)”

¶181

(Emphasis added)

¶182

¶183

Responsibilities of State Inspection and Monitoring Committee or Advisory Committee are also determined under this notification. They are empowered to inspect and monitor the centres registered under the Act and bring to the notice of the concerned appropriate authority any breach of those centres under the Act and to visit any centre registered or not registered with or without prior information to any clinic or centre to determine if the centre is functioning in accordance with the Act and point out lapses to the appropriate authority under the Act. By another official memorandum in terms of delegation of powers to the authorized officer in terms of Rule 18A1(v) of the Rules made under the Act, the State Government has appointed the Project Director, Directorate of Health and Family Welfare to be the said appropriate authority under the Act who has delegated her powers to the Deputy Director one Dr. Chandrakala G, to inspect such centres and register cases if need be against them. The power is delegated for the period between 22-10-2021 and 23-10-2021. The Official Memorandum reads as follows:

¶184

“No.DD/PC&PNDT/21/2021-22 Dated: 21-10-2021.

¶185

OFFICIAL MEMORANDUM

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¶187

Sub: Delegation of Powers to authorized officer as per Section 18A 1(v) of PC 7 PNDT Act 1994 and Rules, 1996.

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¶189

In exercise of the powers conferred on me under Section 17-A(d) of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection Act,1994) read with Rule 18A 1(v) of the PC & PNDT Rules, 1996, I Dr. Parimala S.Maroor, Project Director (RCH), Directorate of Health and Family Welfare Services & State Appropriate Authority under the said Act, do hereby delegate my powers to Dr. Chandrakala G, Deputy Director (PC&PNDT). She is empowered to inspect, any Genetic Counseling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Centres, IVF Centres, ART Centres registered under PC & PNDT Act or any other place in Mysore and Mandya districts and to examine any record registers, documents, books, pamphlets, advertisements or any other materials object found there in, including machines and seize and seal further as per Section 28 of PC&PNDT Act, to file criminal complaint in the court, the same if she has reason to believe that it may furnish evidence of the commission of an offence punishable under the PC & PNDT Act, 1994. This power is delegated for a period of 22.10.2021 to 23-10-2022.

¶190

Sd/-Project Director (RCH), Directorate of Health & Family Welfare Services & State Appropriate Authority, (PC&PNDT Act), Bangalore.”

¶191

(Emphasis added)

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The Official Memorandum which delegates the powers is specific to the centres coming within Mysore and Mandya Districts only but not to other Districts.

¶194

The petitioners in Criminal Petition No.3069 of 2022 are Diagnostics centre or clinic registered under the Act at Bannur and K.R.Pete in Mysore and Mandya Districts and the 1^st petitioner in Writ Petition No.7573 of 2022 is a Polyclinic situated in Mandya City. Therefore, both these would come under the delegated powers as ascribed in the Official Memorandum (supra). Insofar as it pertains to Criminal Petition No.3069 of 2022, an information is received that accused No.3 is conducting illegal termination of pregnancy on a woman and immediate action is to be taken against accused No.3. Therefore, a team comprising of persons who were empowered to search, searched the premises of accused No.3 and seized all MTP related materials. On 11-10-2021 again information was received that termination of pregnancy is being conducted on pregnant woman by the staff of the clinic. Search being conducted leads to registration of crime against those clinics by the State Nodal Officer and Deputy Director appointed under the Act in terms

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of Official Memorandum above mentioned. The date of registration of crime is 24-11-2021. The contents of the private complaint so registered against the clinics, two of whom are the petitioners before this Court in these petitions read as follows:

¶197

“6. The complainant further states the Brief Facts of the case, that on 09.10.2021, around 09.30 AM, an Informer belongs to Karasawadi Village tipped an Information to the Mandya District Family Welfare Officer (FWO), Dr. K R Shashidhar that, a Person by name Mrs. Mangala residing at a Rental House belongs to Mr. Hotte Siddhegowda situated next to Karasawadi provision Store was conducting illegal MTP on a Women and requested to take immediate action. Accordingly, a Team comprising of Mandya District Family Welfare Officer (FWO), Dr. K R Shashidhar, Mandya Taluk Health Officer (THO), Dr. K.B.Javaregowda, District Malaria Control Officer, Dr. Bhavani Shankar proceeded in their Govt. Vehicle Jeep Bering No. KA 11 G 473 raided the said premises around 10.30 AM and found a Women coming out in extensive pain identified as Mrs. Sulochana who was accompanied by her husband identified as Mr. Lakshman to the said place. When enquired by the Team it was found that Mrs. Mangala, (Accused No.3) had injected a MTP Injection and provided MTP Tablets to the Victim Mrs. Sulochana W/o. Mr. Lakshmana and had conducted Sex Selected Abortion to the Victim. It is to be noted that, the Victim had started to suffer from extensive continuous bleeding and she pleaded help of the Raid Team Officials against which the Officials immediately rescued the Victim ad her husband and took them to the nearest Mandya Govt. Hospital Mandya Institute of medical Sciences

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(MIMS) for Immediate Treatment and was admitted at OBG Ward vide IPD No.202132278.

¶200

9. The complainant further states that, upon investigation and written statement taken from the Victim, it was found out that Mrs. Mangala (Accused No.3), is by profession as Staff Nurse working privately in a rental house belongs to mr. Hotte Siddhegowda located at Karaswadi Village, Mandya Tq., Mandya District. The Accused was Ex-Employee of Namma Mane Poly Clinic situated at No.2826, 5^th Cross, Gandhinagar, Mandya City, Mandya. That, the Victim Smt. Sulochana resident of Yethambadi Village, Malavalli Taluk, Mandya District submitted a Written Statement to the Compalinant (Dr. Chandrakala G) on 13.10.20212 that, she had One and half Year Female Child and presently she was Pregnant for the Second Time (3 Months 8 Days). The Victim and her Husband in order to have a Male Child had predetermined to under go Sex Determination. Accordingly, through One Unidentified Person they had come to know that a Ultra Sound Scanning Centre Clinic by name “:Arundathi Poly Clinic & Diagnostics” (herein Accused No.1), situated at No.4/61, S.R.P. Road Thyagarja Mohalla Bannur Village, T Narasipura Tq., Mysuru District PIN 571101 would conduct Sex Determination Tests and provide illegal abortion services and was instructed to call the provided Pone Number 9845177137 belongs to the Owner of the Clinic by Name “Mr. N. Ramakrishna S/o. Ninge Gowda aged 47 yrs (Herein Accused No.2). The Victim on 06/10/2021 (Wednesday) called to the said number (9845177137) and requested for Sex Determination and Mr. N Ramakrishna (Accused No.2) accepted to do the same and

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¶202

instructed the Victim to come the Next Day i.e., Thursday 07/10/2021 around 8:00 AM.

¶203

10. The said Victim and Husband visited “Arundathi Poly Clinic & Diagnostics” Centre the Next Day i.e., Thursday 07/10/2021 at 8.00 AM and met the Owner of the said Centre i.e. Mr. N Ramakrishna (Accused No.2) who at that time was wearing Shorts and T Shirt greeted and guided the Victim inside the Scanning Room and the Accused himself conducted the ANC (Antenatal Care) Scanning and directly conveyed that it is Female Foetus and in order for Termination of the Female Foetus he gave the MTP conducting persons number i.e., 8431408497 and demanded Rs.5000/- and collected the same from the Accused as per the Written Statement of the Victim.

¶204

14. After this preliminary shocking revelation, the DHO, Mandya District upon insisting the couple Smt. Gowramma & Mr. Chandrashekar to further deliberate in detail about their whole process that they under went for Sex Revelation, they have submitted detailed written statement, which states that, the Victims Husband Mr. Chandrashekar who intended to get their fetus Sex revealed, approached Dr. Sathish, a BAMS Doctor (herein Accused No.6) a Ayurvedic Medical Officer in Panadavpura PHC, who in turn ha suggested & mediated him to approach the N Ramakrishna (Accused No.2) to his Scanning Centre “Arundathi Poly Clinic & Diagnostic Centre” (Accused No.1) to get the Sex Detected. Accordingly, as per the direction of Dr. Sathish (Accused No.6) on 11.10.2021 the couple visited N Ramakrishna ( Accused No.2) at his Arundathi Poly Clinic & Diagnostic Centre (Accused No.1) around 09.30 AM. Accordingly, N Ramakrishna ( Accused No.2) revealed the Sex of the Foetus as FEMALE.

¶205

¶206

Then, the Mr. Chandrashekar, husband of Smt. Gowramma contacted from his Mobile Phone.9902472347 to Dr. Sathish (Accused No.6)’s Phone Number : 9900741900 at around 09.43 AM and explained that I was a Female Foetus and for which the Dr.Sathish (Accused No.6) suggested the couple to get it aborted and mediated them to go to M/s. Namma Mane Poly Clinic (Accused No.7) situated at Mandya City belongs to Mr. Mahesh Chandra Guru (Accused No.8) & his wife Smt. Anusuya (Accused No.8). Accordingly, the couple had visited the Centre on the same day and were undergoing counselling for Female Sex Selective Abortion from Mr. Mahesh Chandra Guru (Accused No.8) & his wife Smt. Anusuya (Accused No.8) and the couple victim were told to pay a sum of Rs.18000/- to get their female foetus aborted in their Centre. At this juncture the DHO, Mandya on time had raided and intervened and stopped the Female Feticide from happening and rescued the couple and detailed statements were taken from the Victim Couple. The Copy of the Victim Couple Statement is here by produced for the kind perusal of this Hon’ble Court as Annexure “F”.

¶207

15. In order to nab the culprits and in order to close down the network of people involved in an illegal activity of Sex Determination & Selective abortion of the foetus, the Complainant along with other witnesses i.e., 1) Dr. Ravikumar, aged 50 Years, Administrative Medical Officer, CHC Bannur, Mysuru District, 2) Mrs. Bhanushree A.P., aged 24 Years, Lab Technician, CHC Bannur, Mysuru District, 3) Mrs. Naseem Bhanu, aged 34 years, ANM, CHC Bannur, Mysuru District, 4) Ms. Shashikala N., aged 30 Years, DEO, PCPNDT-Cell, Bengaluru District, 5) Mr. B.Y.Shivanna, Asst. Sub Inspector of Bannur Police Station had conducted a Search & Seize Operation on 12^th October 2021 against “Arundathi Poly

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¶209

Clinic & Diagnostics” situated at No.4/61 SRP Road Thyagaraja Mohalla Bannur Village, T Narasipura Tq, Mysuru District PIN 571101 (Accused No.1) belongs to Mr. N. Ramakrishna S/o. Lage Ninge Gowda aged 47 Yrs (herein Accused No.2), Owner of te Clinic and the Entire process has been recorded in the Panchanama and other Electronic Device Photographical Records are produced as Evidence. The complainant further submits that, this Hon’ble Court may kindly permit the same to be produced at the time of evidence in the form of CDs and Pen Drive.

¶210

16. The complainant further states that the State Appropriate Authority represented by DD (PC& PNDT) visited the accused center on 12/10/2021 for inspection and found that “ Arundathi Poly Clinic & Diagnostics” situated at No.4/61 SRP Road Thyagaraja Mohalla Bannur Village, T.Narasipura Tq, Mysuru District PIN 571101 and the Owner of the Clinic by N Ramakrishna S/o Late Ninge Gowda aged 47 Yrs (herein Accused No.2) is the Place situated at the above mentioned address, where the illegal activity i.e., scanning for sex determination was taking place.

¶211

17. The complainant further states that the N Ramakrishna S/o Late Ninge Gowda aged 47 years (herein Accused No.2) is the owner / proprietor of the scanning center. Though the Proprietor has appointed Dr.Harish H & Dr.Vikram H P (Accused No.4 & 5) as a Sonologist and N Ramakrishna the Accused no.2 has himself conducted the scanning for sex detection and communicating the same. He does not even possess the prescribed qualification. He was found detecting the sex of the foetus and communicating the same to the Victim. While all these things were happening, the N Ramakrishna (Accused No.2) was very much present in the above

¶212

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– mentioned center. As per Rule 3(3)(1)(b) only qualified Doctors/Radiologists can conduct the ANC (Antenatal Care) scanning. Whereas he does not have adequate qualification and he indeed is very well aware of the same. Each and every day he was being paid by the many victims for Sex Detection based on number of scanning he was performing. This proves that he was very well aware of the day to day activities in the center.

¶214

…. …. …. …

¶215

22. The complainant further states that the Accused number 6, 8, 9, 11 are the agents (doctors and non-doctors) who referred/send/bring the pregnant women for the sex detection scanning. The authorities have found referral slips from Namma Mane Poly Clinic, Arundhati Poly Clinic herein by using the prescription letter/referral slip of the accused scanning center. Authorities further found that Accused number 6 & 11 was being the Mediator using the referral over phone to N Ramakrishna (Accused No.2) to conduct Sex Detection.

¶216

24. The Complainant states that the All the abovementioned offences have been committed for wrongful gain in a fraudulent manner. All the abovementioned accused are committing these offences conspiring with each other which is punishable under IPC.

¶217

25.The complainant further states that the State Appropriate Authority and other members visited the accused center on 12/10/2021 for Inspection and found that, N Ramakrishna (Accused No.2) has not maintained the

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¶219

mandatory records as per the act in his Centres such as;

¶220

I. ANC register,

¶221

II. No F Forms Preserved, Recorded and Stored.

¶222

III. Referral slips for the scanning have found inappropriate and the same have not been preserved along with the concerned documents.

¶223

IV. Not Collected ID Cards of Pregnant Women and stored with F Form

¶224

V. Images are supposed to be saved in the machine or otherwise but they have not been stored. (the present machine has the capacity of a good storage and the potential of automatically saved but seems that it has not been activated or disabled deliberately).

¶225

VI. Name/List of empaneled doctor/s and the other relevant staff/s assisting the Radiologist / Gynecologist / Sonologist at the scanning Centre were not available at the time of inspection.

¶226

VII. Not Displayed Form-B & Radiologist empanelment certificate in the Scanning Centre.

¶227

VIII. Improper Toilet Facility.

¶228

IX. Not kept PC&PNDT Act book in the Centre

¶229

X. Despite the repeated demands of the Appropriate authority the accused have not produced the previous month’s F Forms, ANC

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¶231

registers, cash/receipt books, empaneled doctor’s appointment letter or the MOU entered between the center and the doctor, referral doctors’ addresses as the list of those doctor’ names have been extracted from the ANC register etc.,

¶232

The complainant further submits that the abovementioned rules are mandatory under the Act, this is a deliberate action of the accused to avoid giving the information of the candidates they have entertained. Which are serious offences and punishable under Sections 4 & 29 R/w rules 9, 10, 17, 18, of the PC & PNDT Act. Hence the certificate of Registration Granted in the name of 1^st Accused has been cancelled.”

¶233

(Emphasis added)

¶234

If the allegations against the petitioners are noticed, it becomes

¶235

unmistakably clear that the acts performed by the petitioners or its cohorts are so abhorrent which would defeat the very object of the Act. Merely because the illegal determination has resulted in, it being a girl, illegal termination of pregnancy being carried out by the petitioners, is the allegation against them, in both these cases. The appropriate authority empowered to register the complaint has in fact registered the complaint against the petitioners.

¶236

It is germane to notice the judgment of the Apex Court which observes the scourge of female foetus, being terminated

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¶238

illegally. A three Judge Bench in the case of REKHA SENGAR v. STATE OF MADHYA PRADESH¹ , has held as follows:

¶239

“ 7. To understand the severity of the offence, it is imperative to note the legislative history of the PC & PNDT Act. Reference may be had to the Preamble; which states as follows:

¶240

“An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.”

¶241

(emphasis supplied)

¶242

8. The passage of this Act was compelled by a cultural history of preference for the male child in India, rooted in a patriarchal web of religious, economic and social factors. This has birthed numerous social evils such as female infanticide, trafficking of young girls, and bride buying and now, with the advent of technology, sex-selection and female foeticide. The pervasiveness of this preference is reflected through the census data on the skewed sex-ratio in India. Starting from the 1901 census which recorded 972 females per 1000 males; there was an overall decline to 941 females in 1961, and 930 females in 1971, going further down to 927 females in 1991. Records of Lok Sabha discussions on the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Bill, 1991 reflect various members' concern with this alarming state of affairs, which acted as a clarion call to

¶243

1 (2021) 3 SCC 729

¶244

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the passage of the PC & PNDT Act. (See: Lok Sabha Debates, Tenth Series, Vol. XXXIII No. 2, 26-7-1994, Eleventh Session, at pp. 506-544.)

¶246

10. While the sex ratio has improved since after the passage of the PC & PNDT Act, rising to 933 as per the 2001 census, and then to 943 in the 2011 census, these pernicious practices still remain rampant. As per the reply filed by the then Minister of State, Health and Family Welfare in the Rajya Sabha on 27-3-2018, as of December 2017, around 3986 court cases had been filed under the Act, resulting in only 449 convictions and 136 cases of suspension of medical licences.

¶247

11. The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish prenatal sex determination as a grave offence with serious consequences for the society as a whole.

¶248

12. We may also refer with benefit to the observations of this Court in Voluntary Health Assn. of Punjab v. Union of India [Voluntary Health Assn. of Punjab v. Union of India, (2013) 4 SCC 1: (2013) 2 SCC (Cri) 287], as follows: (SCC p. 5, paras 6-7)

¶249

“6. … Above statistics is an indication that the provisions of the Act are not properly and effectively being implemented. There has been no effective supervision or follow-up action so as to achieve the object and purpose of the Act. Mushrooming of various sonography centres, genetic clinics, genetic counselling centres, genetic laboratories, ultrasonic clinics, imaging

¶250

¶251

centres in almost all parts of the country calls for more vigil and attention by the authorities under the Act. But, unfortunately, their functioning is not being properly monitored or supervised by the authorities under the Act or to find out whether they are misusing the pre-natal diagnostic techniques for determination of sex of foetus leading to foeticide.

¶252

7. … Seldom, the ultrasound machines used for such sex determination in violation of the provisions of the Act are seized and, even if seized, they are being released to the violators of the law only to repeat the crime. Hardly few cases end in conviction. The cases booked under the Act are pending disposal for several years in many courts in the country and nobody takes any interest in their disposal and hence, seldom, those cases end in conviction and sentences, a fact well known to the violators of law.”

¶253

13. In the present case, contrary to the prevailing practice, the investigative team has seized the sonography machine and made out a strong prima facie case against the petitioner. Therefore, we find it imperative that no leniency should be granted at this stage as the same may reinforce the notion that the PC & PNDT Act is only a paper tiger and that clinics and laboratories can carry out sex determination and foeticide with impunity. A strict approach has to be adopted if we are to eliminate the scourge of female foeticide and iniquity towards girl children from our society. Though it certainly remains open to the petitioner to disprove the merits of these allegations at the stage of trial.”

¶254

(Emphasis supplied)

¶255

¶256

Likewise several constitutional Courts have also taken the view of strict approach towards violators of the Act in plethora of cases. The solitary contention of all these petitioners in the present petitions is that the empowered authority has not registered the complaint and Section 28 prohibits cognizance of the offence being taken except on a complaint by the appropriate authority tumbles down as the State Government has specifically empowered certain authorities by notification and those authorities have delegated their power in terms of the Official Memorandum empowering them to search, seize and register the crime.

¶257

The other submission of the learned counsel for the petitioners that they are covered by the judgment rendered by this Court in DHONDIBA ANNA JADHAV MEMORIAL HOSPITAL AND ANOTHER v. STATE OF KARNATAKA in Criminal Petition No.101392 of 2019 decided on 21^st February 2022 , is inapplicable to the facts of the case as there is a clear delegation of power under the Act in favour of the authority who has now registered the crime. The delegation is specifically for the Districts

¶258

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of Mysore and Mandya. The case in Criminal Petition No.101392 of 2019 was concerning a hospital which is alleged to have violated the provisions of the Act at Dharwad District and for the District of Dharwad, there was no official memorandum or notification issued. It is in that light the order was passed by this Court on 21^st February 2022 annulling the proceedings therein holding that the Taluk Health Officer who had registered the crime therein was not the competent officer who could have registered the crime without there being any notification or delegation of power under the Act. The case was rendered on admitted facts therein. The facts obtaining in the case at hand are clearly distinguishable without much ado as they are entirely different. Therefore, the solitary submission of registration of crime by the incompetent authority is rendered unacceptable. The allegations made in the complaint as observed hereinabove are so grave that the alleged offenders cannot be permitted to get away with the technicalities. It is the duty of the State Government to bring out such notifications in furtherance of the Act to every District of the State or bringing about a comprehensive notification under the Act depicting

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appropriate authorities or Advisory Committees as offenders of this nature should not be permitted to get away on technical lines.

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Since the issue concerned has now become a burning one, as also the fact of mushrooming of polyclinics or diagnostic centres, is not only restricted to the metropolis but have percolated into the cities as well, and them being engaged in doing acts contrary to law, is now in public domain. It is high time for the State to take swift action and bring about appropriate notifications without any loss of time, as the perpetrators of such alleged illegalities should not be permitted to get over penal action on such pleas. It is time now for the Government to act under the Act.

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Finding no merit in the petitions, in the light of the preceding analysis, the following:

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O R D E R

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(i) The Criminal Petition 3069 of 2022 stands dismissed and Writ Petition 7573 of 2022 also stands dismissed.

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(ii) The State Government is directed to act swiftly and notify Appropriate Authorities for all the districts of the State to register the crimes committed under the Act. Such notification shall be issued by the State within 12 weeks from the date of receipt of a copy of this order.

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(iii) The Registry is directed to communicate this order to the Chief Secretary, Government of Karnataka for compliance with the direction in clause (ii) supra .

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I.A.No.1/2022 filed in Crl.P.No.3069/2022 is disposed, as a

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consequence.

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Sd/JUDGE

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nvj CT:MJ

M/S Arundathi Poly v. the State Appropriate Authority (Saa)

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M/S Arundathi Poly v. the State Appropriate Authority (Saa)

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