Application for leave to appeal maintained against an acquittal in a case under the PNDT Act. The High Court dismissed the application, holding that the trial court properly appreciated evidence and reasonable doubt existed regarding the charges.
Application for leave to appeal stands dismissed; order of acquittal is maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.A-397-MA of 2014 (O&M) Date of decision: January 18, 2019
State of Haryana through District Appropriate Authority-cum-Civil Surgeon, Sirsa
...Applicant
Versus
Dr.Sanjeev Kaushal
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Satbir Gill, Advocate for the applicant.
Mr.J.S.Bedi, Senior Advocate with Mr.Lovekirat S. Chahal, Advocate for the respondent.
INDERJIT SINGH, J.
Applicant-State of Haryana through District Appropriate Authority-cum-Civil Surgeon, Sirsa has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondent Sanjeev Kaushal, challenging the judgment dated 16.11.2013 passed by learned Chief Judicial Magistrate, Sirsa, whereby accused-respondent was acquitted.
It is mainly stated in the application that accompanying appeal is being filed which is likely to succeed on the grounds taken therein. It is, therefore, prayed that leave to appeal be granted.
As per the record, complainant State through District
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Appropriate Authority-cum-Civil Surgeon, Sirsa filed a complaint against accused Dr.Sanjeev Kaushal and M/s Diagnostic Centre, under Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act, 1994 and Rules 1996. The brief averments of the complaint as noted down in the judgment passed by learned CJM, Sirsa, are as under:-
“2. It is alleged that on 06.10.2006 in the morning, higher officials and some journalists informed Civil Surgeon, Sirsa on telephone that in Hisar, on IBV-7 News Channel, on 05.10.2006 in the night, in "Haryana News" a telecast had been shown carrying news that "some ultrasound centres in Haryana are violating the provisions of P.N.D.T. Act which includes two ultrasound centres of Sirsa, namely Munjal Nursing Home and City Diagnostic Centre, Sirsa, where pregnant women are being examined ultrasonically for the male and female sex in the foetus and thereby violating the provisions of P.N.D.T. Act which is an offence". On 06.10.2006 it was a news in the "Dainik Bhaskar Sirsa (Sirsa Bhaskar)" that "Haryana mein bhrun ling janch ka pardaphash - Sirsa ke do doctor benakab". Upon this, Director Health Services Haryana ordered the complainant to take action and District Administration also on the basis of news in Dainik Bhaskar, directed the complainant to take necessary action against the guilty persons and on this, complainant constituted a team including District Family Welfare Officer and Lady Doctor of the Civil Hospital, Sirsa and directed them to inspect the above said two Ultrasound Centres and to take necessary action according to law.
3. It is further alleged that when the above said team inspected the City Diagnostic Centre situated at Circular Road, Sirsa, there was big mob of people present at this Centre, which include some social organizers. The police personnels and other officials were also present there to control the law and order situation. The Ultrasound Centre was locked at that time and people were raising slogans against Dr.Sanjeev Kaushal like this "hatyare doctor ko fansi do, ultrasound centre ko band karo". Neither Dr.Kaushal nor any employee of Ultrasound Centre was present there. The team tried to contact Dr.Kaushal on phone, but he could not be contacted. The people were also speaking loudly against the administration. There is also X-Ray Department of Dr.Kaushal and Dental Clinic of the wife of Dr.Kaushal in the same premises. Upon seeing the team of the Health Department, people started raising slogans loudly and became furious and demanded from the team to close the Ultrasound Centre immediately. Since the Ultrasound Centre was closed from all sides, so it was not
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possible for the team to inspect it. In the presence of Civil Surgeon, the team fixed the seals on the locks of the Centre and handles of the doors with the seal of District Family Welfare Officer and lady doctor and was photographed. In all, seals were affixed at 14 places. Thereafter, the team reached at Munjal Nursing Home and same scene was there as was at City Diagnostic Centre. The team then tried to contact Dr.Munjal and Mrs. Munjal but could not contact them. Then the door of the room in which Ultrasound machine was installed and door of its adjacent room were sealed with the seals of District Family Welfare Officer and lady doctor. The Director, General Health, Haryana and Deputy Commissioner, Sirsa were informed about this action.
4. It is further alleged that CMO issued a show cause notice to the owners of these Ultrasound Centres i.e. Dr.Kaushal and Dr.Munjal and asked them to give reply within three days, otherwise their registration would be cancelled and criminal action would be taken against them. Since Dr.Kaushal and Dr.Munjal were not present at their respective Clinics, so show cause notice was affixed outside their clinics. Dr.Kaushal submitted his reply in the office of Civil Surgeon, Sirsa on 09.10.2006 and during this period whenever this team visited the Ultrasound Centres, every time these centres were found locked and people were found agitating outside them. On 12.10.2006 in the evening, complainant received a copy of proceedings initiated by Dr.Sanjeev Kaushal against Health Department and State of Haryana in which the Court had fixed date of hearing as 13.10.2006, wherein after hearing the arguments, the order ordered for removal of seals from the premises of City Diagnostic and Ultrasound Centre, Sirsa and to seal the ultrasound machine only. On 13.10.2006, in compliance of orders of the court, seals of City Diagnostic Centre, Sirsa were removed through a team, which comprised of District Immunization Officer, Lady doctor of General Hospital, Sirsa and District Drug Inspector, Sirsa. Ultrasound register and Form-F were taken into possession for the purpose of enquiry and ultrasound machine was sealed. On 13.10.2006 during inspection conducted on the spot, it was found that in some of the Form-F, no referral slips were attached therewith and on the spot also, out of two ultrasound machines, one was not there in the Centre and upon asking about this, Dr.Kaushal had told that it was out of order and had been sent by him for repairing.
5. It is further alleged that on 17.10.2006 the complainant was informed to come present in the court immediately. Till then the department was preparing the reply and also was enquiring the addresses mentioned in Form-F taken into possession by the department from Dr.Kaushal. The complainant through A.D.A. submitted the deficiencies found during the inspection of this Centre by the inspecting team. The court ordered to remove seals from the machine upon the
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undertaking by Dr.Kaushal that "he will examine ultrasonically the pregnant ladies only upon referral by a qualified doctor, through a proper referral slip and that whenever he will send ultrasound machine outside the Centre, he will immediately inform the department. Considering these undertakings, the court ordered to remove the seals from the ultrasound machine of Dr.Kaushal and gave him this machine on superdari. While taking the machine on superdari, Dr.Kaushal also undertook to keep complete record of every ultrasound examination. He also undertook to maintain a ultrasound register in which he would enter the names of the referring doctors and to send the weekly report to the department. On 18.10.2006 seals of the ultrasound machine were removed in compliance with the orders of the court.
6. It is further alleged that the complainant then came present in the court to pursue the above noted case and after discussion with the Assistant District Attorney, it was deemed proper first to verify the addresses and whereabouts of the patients, whose name and addresses were mentioned in FormF taken into possession on 13.10.2006 from City Diagnostic and Ultrasound Centre, Sirsa. On verification of the particulars of pregnant ladies, it has been revealed that most of the patients are not available/traceable on the addresses given by Dr.Kaushal in Form-J prepared by him at the time of ultrasound examination of the pregnant women and some of them are also not accompanied with the referral slips of a qualified doctor. In this way, Dr.Kaushal had very grossly violated the provision of P.N.D.T. Act. He had also prepared a wrong and concocted record and thereby had cheated the department as well as court. Hence, the complaint.”
The complainant examined as many as 11 witnesses. The accused were charge-sheeted under Section 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. At the close of complainant evidence, the accused Sanjeev Kaushal was examined under Section 313 Cr.P.C. He was confronted with the evidence of the complainant and he denied all the incriminating evidence against him and pleaded his false implication.
Learned CJM, Sirsa, after appreciating the evidence, acquitted
the accused-respondents vide impugned judgment dated 07.05.2014.
Aggrieved from the above-said judgment, present appeal along
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with application for grant of leave to appeal has been filed.
Notice of the application was issued. Learned counsel for the respondent appeared and contested the application.
I have heard learned counsel for the parties and have gone through the record.
From the record, I find that the main allegation, in the present case, as per prosecution version is that form F was not filled as per the provisions of the Act. Second allegation is that patients were not found on the address given in form F and there were no entries in the register regarding pregnant women etc. The perusal of the evidence on record shows that not even a single pregnant woman has come to the witness box to show that foetus determination test has been conducted by the accused. There is only news channel report on television and report in the newspaper but there is no direct evidence on the record to show that accused has conducted sex determination test on any pregnant woman.
Learned trial Court has correctly held that register entries are to be maintained in the cases where pregnancy test has taken place. As regarding the fact that in form F, in the column of referral doctor, the name of the doctor is not mentioned, learned trial Court has gone through the Rules, where it is written that a doctor can himself be a self referral doctor. Furthermore, the Court has discussed that in form F, some cannot be held as blank. Rather, on these columns, it is written as 'NA' (not applicable).
Learned trial court has discussed the statements of the doctors in detail, who have verified and deposed that persons named in form F, on whom ultrasound test has been conducted, were not found but these VINEET GULATI 2019.01.29 13:10 I attest to the accuracy anddoctors/witnesses have admitted in their cross-examinations that they were authenticity of this document Chandigarh
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not knowing any person in the village and they have not taken voter list, ration card etc. nor they have taken anything in writing from the Sarpanch, Gram Panchayat. Therefore, the Court held that reasonable doubt exists and complainant has failed to prove the guilt of the accused beyond reasonable doubt.
The perusal of the findings given by learned CJM, Sirsa, shows that these have been given as per evidence and law. In no way, the findings can be held as perverse or against the evidence and law. At the time of arguments, nothing has been pointed out as to which material evidence has been misread and which material evidence has not been considered by the trial Court. Nothing has been pointed out as to how the findings are perverse or against the law and what illegality has been committed by learned trial Court. The findings have been given by correctly appreciating the evidence in right perspective and accused-respondents have been rightly acquitted.
In view of the above discussion, I find that the impugned judgment dated 16.11.2013 passed by learned CJM, Sirsa, is correct, as per law and evidence and does not require any interference from this Court. No ground is made out for grant of leave to appeal and therefore, the present application stands dismissed.
January 18, 2019 (INDERJIT SINGH) Vgulati JUDGE
Whether speaking/reasoned Yes Whether reportable No
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2 issues framed by the court
Whether leave to appeal under Section 378 Cr.P.C. should be granted against the acquittal of the accused.
Whether the findings of the trial Court acquitting the accused are perverse or against the evidence.
State of Haryana through District Appropriate Authority-cum-Civil Surgeon, Sirsa
Dr.Sanjeev Kaushal
INDERJIT SINGH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
