Allowed

Dr.T.Vasudevan v. the Appropriate Authority for

Madras HC1 Mar 2022CRL OP/21835/2015

Case brief

AI extract

What is this about?

A criminal original petition filed to quash a complaint under the PCPNDT Act against accused operating a scan centre. The court allowed the petition, holding that since the accused had not been given the opportunity to complete the six-month training by the statutory deadline of January 1, 2017, the prosecution was illegal and unjustifiable.

What did the court decide?

The complaint in C.C.No.36 of 2015 pending before the Judicial Magistrate Court No.II at Cuddalore is quashed.

Dr.T.Vasudevan Vs the Appropriate Authority for — Pension and Retirement Benefits | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 17.02.2022 PRONOUNCED ON: 01.03.2022 CORAM

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THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

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CRL.O.P.No.21835 of 2015

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1.Dr.T.Vasudevan

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2.Dr.V.Jeyalakshmi

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3.Dr.Anusha, BAMS ...Petitioners/Accused 1 to 3

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Vs.

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The Appropriate Authority for District, under Preconception and Pre-Natal,

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Diagnostic Techniques(Prohibition of Sex Selection) Act, (CentralAct)No.57 of 1994 &

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The Joint Director of Medical and

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Rural Health Services & Family Welfare, Cuddalore,

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Cuddalore District ...Respondent/Complainant

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Prayer:- Criminal Original Petition is filed under Section 482 of Code of Criminal Procedure, to quash the complaint in connection with C.C.No.36/15 pending on the file of the learned Judicial Magistrate Court No.II at Cuddalore, Cuddalore District.

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For Petitioners : Mr.V.Raghavachari for Mr.N.Umapathi

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For Respondent : Mr.E.Raj Thilak Additional Public Prosecutor(APP)

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ORDER

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This petition is filed to quash the complaint in connection with C.C.No.36 of 2015 pending on the file of learned Judicial Magistrate Court No.II at Cuddalore, Cuddalore District.

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https://hcservices.ecourts.gov.in/hcservices/

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2.Petitioners are the accused in C.C.No.36 of 2015. This case was taken cognisance by the learned Judicial Magistrate, Cuddalore on the complaint given by the respondent. The complaint was filed under Sections 23 (1) and 25 of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (Central Act) No.57 of 1994 r/w Rules (3) (1) (b) & 3 (3) (1) (b) of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996 r/w Section 200 CRPC.

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3.The gist of the complaint is that the appropriate authority Dr.Vidyasankar, the Joint Director of Medical and Rural Health Services, Cuddalore, made a joint surprise visit to Shakthi Scan Centre, No.2, Leppolier street, Sorakalpet, Cuddalore-1, Cuddalore District on 03.02.2015 at about 10.30a.m. along with other officials. Shakthi Scan Centre is run by Dr.Vasudevan. Knowing fully well that Dr.Anusha, B.A.M.S. is not having required qualification as per Rule 3 (3) (1) (b) of PreConception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996 has engaged her in conducting diagnostic techniques by using the machine and other equipment of ultra sound technology in the centre and thereby violated the provisions of Section 3 (2) that of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994, r/w Rule 3(3) (1) (b) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996. Dr.Anusha, knowing fully well that she does not possess qualification as mentioned above has done scan procedures and violated the provisions of Section 3 (2) of the Pre-Conception and Pre-natal Diagnostic (Prohibition of Sex Selection) Act 1994, Act r/w. Rules 3 (3) (1) (b) of Pre-conception and Pre-Natal Diagnotic Techniques (Prohibition of Sex Selection) Rules 1996. It was noticed during the surprise visit on 03.02.2015 that, scan procedures were done by Dr.Anusha. She has done scan procedures and issued scan report signed by her. She has committed an offence under Section 3 (2) of the PCPNDT Act, 1994. Shakthi Scan Centre is administered by second accused Dr.Jeyalakshmi, wife of first accused, Dr.Vasudevan. She permitted the first accused to run Sakthi Scan Centre within the premises of her hospital JVR Maternity Home, No.2, Leppolier street, Sorakalpet, Cuddalore. She also has the knowledge that third accused Dr.Anusha has no prescribed qualification for scanning and aided first accused in engaging Dr.Anusha in scan centre. After investigation, ultra sound machine and Form F Register, educational qualification records were seized. First accused Dr.Vasudevan contravened provisions by appointing unqualified third accused Dr.Anusha and thus, they committed the offences under Sections 23 (1) and 25 of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition

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https://hcservices.ecourts.gov.in/hcservices/

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of Sex Selection) Act (Central Act) No.57 of 1994 r/w Rules (3) (1) (b) & 3 (3) (1) (b) of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996. The first accused Dr.Vasudevan being a medical practitioner failed to comply with the provisions of the Act as per Section 3 (2), which is punishable under Sections 23 (1) and 25 of the PCPNDT Act. Second accused Dr.Jeyalakshmi in connivance with first accused Dr.Vasudevan committed the offence and she is also punishable under Sections 23 (1) and 25 of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (Central Act) No.57 of 1994 r/w Rules (3) (1) (b) & 3 (3) (1) (b) of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996.

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4.Learned counsel for the petitioner submitted that third accused Dr.Anusha has required qualification to function as a Sonologist or imaging specialist within the meaning of the definition of "Sonalogist or imaging specialist" as defined under Section 2 (p) of PCPNDT Act, 1994. She had completed Bachelor in the system of Ayurvedic medicine in December 1997 and completed the House Surgeoncy. Copies of certificates are produced in this regard. BAMS course had the theory and practical aspects in the subjects of 1) Medicine and Paediatrics, 2)Surgery Orthopaedics & Ophthalmology 3) Obsetrics & Gynaecology. She had also completed Bachelor of Ayurvedic Medicine and Surgery in July 1982. She is qualified to practise in the integrated system of medicine and a certificate of registration was issued to her on 09.10.1984. She had completed training in clinical applications of ultra sound conducted by Department of Radiology and Imaging Sciences, Apollo Hospitals. Therefore, third accused Dr.Anusha has requisite qualification to act as Sonologist or imaging specialist.

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5.It is further submitted by the learned counsel for the petitioners that the first accused submitted application for registration or renewal of registration of Genetic Counselling Centre / Genetic Laboratory / Genetic Clinic/Ultra Sound Clinic / Imaging Centre. Shakthi Scan Centre was registered and certificate of registration was given on 26.06.1999. On the basis of the application filed for renewal of registration of Shakthi Scan Centre, it was renewed from 26.06.2004 to 25.06.2009. Again from 26.06.2009 to 25.06.2014 and again from 26.06.2014 to 24.06.2019. In the renewal application submitted on 19.06.2014, the name of third accused Dr.Anusha with her qualification and registration number was mentioned as a person employed in Shakthi Scan Centre. The educational qualification of the third accused Dr.Anusha was never suppressed by the first accused. The second accused has nothing to do with Shakthi Scan Centre and she is

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https://hcservices.ecourts.gov.in/hcservices/

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unnecessarily implicated as accused in this case. The accused have not violated any of the provisions of the PCPNDT Act. There is no Prima facie case made out against them. Therefore, the complaint has to be quashed.

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6.Per contra, learned Government Advocate appearing for the State submitted that third accused had only completed degree in Ayurvedic Medicine and she has not completed the six months training required under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six months Training) Rules, 2014. The Hon'ble Supreme Court in W.P.No.349 of 2006, directed on 03.04.2013 that "The State Advisory committees and District Advisory committees should gather information relating to the breach of the provisions of the PCPNDT Act and the Rules and take steps to seize records, seal machines and institute legal proceedings, if they notice violation of the Provisions of PCPNDT Act." In pursuance of this direction, a surprise visit was made to Shakthi Scan Centre made on 03.02.2015 and it was found that third accused Dr.Anusha had no required qualification and therefore, this case was registered. Therefore, he prays for the dismissal of this petition.

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7.Considered the rival submissions and perused the records.

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8.The statement of object and reasons of the PCPNDT Act reads that this act was enacted to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. Such abuse of techniques is discriminatory against the female sex and affects the dignity and status of women. Therefore, this Act is enacted to regulate the use of such techniques and to provide deterrent punishment to stop such inhuman act.

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9.It is not in dispute in this case that first accused was running a registered scan centre called the Shakthi Scan Centre and it is also not in dispute that third accused was working as a Sonologist / imaging specialist in Shakthi Scan Centre. The complainant alleged that third accused Dr.Anusha had no requisite qualification to act as Sonologist or imaging specialist. This claim is refuted by the accused and they claim that third accused Dr.Anusha has necessary qualification to act as a Sonologist and imaging specialist.

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10.Section 2 (p) of PCPNDT Act defines the term Sonologist and imaging specialist. It reads as “Sonologist or imaging specialist means a person who possesses any one of the

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https://hcservices.ecourts.gov.in/hcservices/

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medical qualifications recognized under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultra sonography or imaging techniques or radiology”.

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11.It is clear that a Sonologist or imaging specialist is a person who possesses any one of the qualification recognized under Indian Medical Council Act or Post Graduate qualification in Ultra sonograpy or imaging techniques or radialogy. There is yet another rules called, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six months Training) Rules, 2014. Rule 6 of this Rules reads that any registered medical practitioner shall be eligible to undergo six months training. It also exempts existing registered medical practitioners, who are conducting ultra sound procedures in Genetic clinic or ultra sound clinic or imaging centre on the basis of one year experience or six months training from undertaking the said training, provided they are able to qualify the competency based assessment specified in schedule II. This changed criteria is made prospective under Rule 9. Those, who do not satisfy the eligibility criteria should clear six months training on or before 1^st January 2017. We have to approach this case with this legal provisions in the background. Relevant rules are extracted hereunder for better understanding, Rule 6:

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Eligibility for Training:

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1)Any registered medical practitioner shall be eligible for undertaking the said six months training.

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2)The existing registered medical practitioners, who are conducting ultrasound procedures in a Genetic Clinic or Ultrasound Clinic or Imaging Centre on the basis of one year experience or six month training are exempted from undertaking the said training provided they are able to qualify the competency based assessment specified in Schedule II and in case of failure to clear the said competency based exam, they shall be required to undertake the complete six months training, as provided under these rules, for the purpose of renewal of registrations.

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Rule 9:

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Changed criteria to be made prospective: These rules shall come into force with immediate effect in case of new registrations. However, all registered medical practitioners employed in a Genetic Clinic or Ultrasound Clinic or Imaging Centre on the basis of one year experience or six months training and failed to qualify the competency based exam as specified in Schedule II

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https://hcservices.ecourts.gov.in/hcservices/

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shall have to apply and clear six months training on or before 1^st January, 2017.

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12.As already submitted by the learned counsel for the

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petitioners, the copies of educational qualification certificate of third accused Dr.Anusha for completing orientation course in clinical application of ultra sound offered by Department of Radiology and Imaging Sciences, Apollo Hospital is produced. The certificate of registration issued by Karnataka Ayurvedic and Unani Practitioners' Board is also produced. B.A.M.S course is recognized by Government of Karnataka. Dr.Anusha completed Bachelor in System of Ayurvedic medicine and Bachelor of Ayurvedic Medicine and Surgery. The notification dated 30.10.1996 issued by Central Council of Indian Medicine reads that "Institutionally qualified practitioners of Indian Systems of Medicine are eligible to practise Indian Systems of Medicines and Modern Medicine" including surgery, Gynaecology and obstetrics. “Modern Medicine” means advances made in various branches of modern scientific medicine. For the better understanding the notification is extracted below.

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Central Council of Indian Medicine, Janakpuri, New Delhi-110058. No.8-5/96-Ay (MM), Dated 30.10.1996.

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As per provision under Section 2 (1) of the Indian Medicine Central Council Act, 1970 (48 of 1970) hereby Central Council of Indian Medicine notifies that Institutionally qualified practitioners of Indian Systems of Medicine (Ayurved, Siddha & Unani) are eligible to practice Indian Systems of Medicine and Modern Medicine including Surgery, Gynaecology and Obstetrics based on their training and teaching which are included in the syllabi of courses ISM prescribed by Central Council of Indian Medicine after approval of the Government of India.

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The meaning of the word “Modern Medicine” (Advances) means advances made in various branches of Modern Scientific Medicine, clinical, nonclinical bio-sciences also technological innovations made from time to time and notify that the Central Council of Indian Medicine are supplemented with such modern advances.

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Further it is clarified that the rights of practitioners of Indian Systems of Medicine to practise modern scientific system of Medicine (Allopathic Medicine) are protected under Section 17(3) (b) of Indian Medicine Central Council Act,

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1970.__ (R.K.Jain) Registrar-cum-secretary, Central Council of Indian Medicine.

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Thus, this notification makes it clear that practitioners of Indian Systems of Medicine are also eligible to practise Modern Medicine using clinical, non clinical and technological innovations made from time to time.

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13.As already discussed, third accused had completed the Bachelor in the System of Ayurvedic Medicine, Bachelor of Ayurvedic Medicine and Surgery, training in clinical application of ultra sound. At the time of submission of renewal application her name was specifically mentioned in the renewal application with her qualification and registration number. After processing application, license was renewed from time to time. Having permitted the renewal of license, recognizing third accused as Sonologist or imaging specialist, it is not open to the respondent to initiate criminal proceedings against the petitioners/accused. As already indicated, this case was instituted in 2015. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six months Training) Rules, 2014 gives time till 1^st January 2017 to all the registered medical practitioners employed in a genetic clinic or ultrasound clinic or imaging centre on the basis of one year experience or six months training and failed to qualify the competency based exam as satisfied in schedule 'II' shall have to apply and clear six months training. Assuming that third respondent had no requisite qualification as required under aforesaid rules, she had time till 1^st January 2017 to apply and clear six months training. Without affording an opportunity to the accused especially, the third accused to complete the prescribed training, the launching of prosecution against the petitioners is illegal and unjustifiable. Therefore, the case filed against the petitioners is liable to be quashed and quashed accordingly.

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14.In conclusion, this petition is allowed. C.C.No.36 of 2015 pending on the file of learned Judicial Magistrate Court No.II at Cuddalore against the petitioners is quashed.

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Sd/-

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Assistant Registrar(CS-II)

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// True Copy //

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Sub Assistant Registrar

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1.The Judicial Magistrate II, Cuddalore.

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2.-do-Thro Chief Judicial Magistrate, Cuddalore.

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3.The Appropriate Authority for District under Preconception and Pre-Natal, Diagnostic Techniques(Prohibition of Sex Selection) Act, (CentralAct)No.57 of 1994 & The Joint Director of Medical and Rural Health Services & Family Welfare, Cuddalore, Cuddalore District.

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4.The Public Prosecutor, High Court, Madras.

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+1cc to Mr.N.Umapathi, Advocate SR.No.13602

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CRL.O.P.No.21835 of 2015

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RSI(CO) CB(16/03/2022)

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https://hcservices.ecourts.gov.in/hcservices/