Certificate in the waiting room. It is necessary to refer to provisions of
Section 19(4) of the PCPNDT Act, which reads as follow :
(4) The certificate of registration shall be displayed by
the registered Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic in a conspicuous place at its
place of business.
With this reference, learned counsel for applicant has relied upon evidence
of Dr. Vanita Gargelwar, who had admitted that at Brindavani Hospital,
apart from hospital of applicant, her mother Dr. Rajlaxmi is also running a
Hospital, who is also a Gynaecologist, where all kinds of gynaec patients
are treated and it is a maternity home. As such, it appears that Brindavani
Hospital, where the inspection came to be carried out is not exclusively
run by applicant but her mother, who also is a Gynaecologist, has her
hospital. This fact needs to be borne in mind with reference to the
contents of inspection report, which is at Exhibit 53, according to which,
the Registration Certificate was displayed in USG Clinic room. As such, it
is material to note that accused, in fact, finding that clinic room would be
more conspicuous place, had displayed the concerned Registration
Certificate in the clinic room, where the USG machine is also installed than
to display in the waiting room, which is found common waiting room of all
the patients visiting Brindavani Hospital. In that view of the matter and as
it is no case of complainant that no Registration Certificate was at all
displayed, I find no reason to hold on this count that applicant has
committed contravention of subsection (4) of Section 19 of the PCPNDT
Act. On the contrary, applicant is found to have displayed the required
certificate in the clinic room where only those patients, who are required
to undergo examination at USG clinic would visit and in that
circumstances, can have a look to the Registration Certificate, rather than
displaying it in a common waiting hall where patients of all kinds may be
waiting.
19. Second contravention of the PCPNDT Act and Rules alleged is
with reference to use of Prosound Aloka Machine in place of Logic 202
model machine for which Registration Certificate No. 33 is issued. With
reference to above contravention, Rule 13 contemplates that :
13. Intimation of changes in employees, place or
equipment. Every [Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and
Imaging Centre] shall intimate every change of employee,
place address and equipment installed, to the
Appropriate Authority [atleast thirty days in advance of
the expected date of such change, and seek reissuance of
certificate of registration from the Appropriate Authority,
with the changes duly incorporated.]
20. Thus, it is the case of respondent that in spite of change of
machine, no intimation as required above was given by applicant. On this
ground, learned counsel for applicant has rightly relied upon the
correspondence entered into by the Civil Surgeon, District Hospital,
Chandrapur to Dr. Vanita Gargelwar, the letter is on record at Exhibit 66.
On plain reading of contents of this letter, it established that on
3122009, that is prior to the date of inspection, applicant had entered
into correspondence with the competent authority requesting to take note
of new sonography machine installed by her. Said letter of applicant
dated 3122009 is received in the office of Civil Surgeon, Chandrapur as
in Exhibit 66, there is also reference of inward no. 15789 and 15790 and
are further stated to be marked by one Mr. Deshmukh.
21. Learned APP on this count had contended that in fact the said
letter is not available in the office of Civil Surgeon and has relied upon
documents in respect of Departmental Enquiry initiated against
Mr. Deshmukh, contending that enquiry was initiated against
Mr. Deshmukh, employee from the office of Civil Surgeon for committing
forgery establishing of fact of receipt of such letter in the office of Civil
Surgeon. Admittedly, said documents do not form part of record. As such,
even though there was any enquiry initiated against the employee of Civil
Surgeon, this by itself, at this stage, cannot be a ground to reject the claim
of applicant, more particularly, in view of contents of letter Exhibit 66 of
Civil Surgeon which prima facie establish correspondence by applicant.
22. Moreover, it is material to note that order dated 5102012
passed by respondent under subsection (3) of Section 20 of the PCPNDT
Act, 1994 by which registration of Genetic Clinic of applicant was
suspended, is quashed by this Court by its order passed in Writ Petition
No. 4594/2013. As such the order passed by the Appropriate Authority
and the Commissioner of Municipal Corporation, Chandrapur is set aside
and the registration of the Genetic Centre of applicant came to be restored.
Respondent in its reply had raised this as one of its ground while
opposing this application contending that order cancelling registration of
applicant's Genetic Centre is also issued by the Appropriate Authority.
In that view of the matter and further considering the
admission given by complainant Dr. Vanita Gargelwar that on 2572012,
she received Exhibit 66 from the office of Civil Surgeon, Chandrapur, it is
prima facily established by applicant that she had duly informed about the
change of machine to the office of Civil Surgeon at the material time and
who was the appropriate authority. In the background of above,
complaint fails on this count also.
Lastly, it is the case of complainant that four numbers of forms
being FForm Nos. 719, 720, 721 and 722 are incompletely filled, it is
alleged that :
columns no. 3 pertaining to name, age of the patient,
column no. 4 pertaining to number of children with their sex,
column no. 5 pertaining to husband's/father's name,
column no. 6 pertaining to full address and telephone number of patient
and
column no. 15 pertaining to date on which CSJ procedure was carried out
are alleged to be not filled.
In the background of above alleged contravention, subrule (4) of Rule 9 is
necessary to be considered. It contemplates :
(4) The record to be maintained by every [Genetic Clinic
including a mobile Genetic Clinic], in respect of each man
or woman subjected to any prenatal diagnostic
procedure/technique/test, shall be as specified in Form F.
Before considering this aspect, it is necessary to note that admittedly, there
are no allegation nor even it is the case of complainant that applicant has
contravened or is indulged into act of sex determination. Coming back to
the issue of incomplete FForm Nos. 719 to 722, learned counsel for
applicant has relied upon the evidence of Dr. Ramteke, who was Member
of the inspection team authorized by Appropriate Authority and has
admitted that FForm Nos. 719 to 722 are on record at Exhibit 78 to 81
and that there were many patients outside the chamber as well as in the
waiting hall of whose names were not recorded by any of the Members of
the inspection team. It is further admitted that no enquiry was made as to
whom FForm Nos. 719 to 722 belong. Dr. Ramteke further admitted that
there was one assistant in the chamber of applicant and had enquired from
applicant about said forms to which applicant replied that they were in
respect of patients who were in the waiting. In a specific query put to
Dr. Ramteke about the procedure to be carried out while conducting
sonography, it is replied that on obtaining consent, sonography is
performed and thereafter FForm is prepared along with sonography
report on reading sonography printout. Considering above procedure
which is necessary to be followed and having considering the fact that four
patients were in the waiting of whom FForm Nos. 719 to 722 were found
during the course of inspection alleged to be incomplete do not make out
any case against applicant as according to the case of applicant, the
process of examination of patients was yet to be complete and as such,
there was no reason for completing those forms even prior conducting the
required medical examination.
Learned counsel for applicant, in the background of above
facts, has relied upon provisions of subrule (8) of Rule 9 which is
reproduced below.
(8) Every Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging
Centre shall send a complete report in respect of all preconception
or pregnancy related
procedures/techniques/tests conducted by them in respect
of each month by 5th day of the following month to the
concerned Appropriate Authority.
So on considering above, it is necessary for applicant to prepare the record
of the cases attended by her during a particular month of which FormF
are to be submitted along with all necessary particulars up to 5th day of
following month along with monthly report of cases attended by the
concerned Doctor. In that view of the matter and particularly, when the
inspection came to be carried out since four patients of which forms are
alleged to be incomplete were to be examined, it cannot be said that
applicant, with any bias intention, had kept forms incomplete as the
procedure as well as diagnosis of four patients is found to be incomplete
when the inspection came to be carried out.
On considering above discussed facts, I find no substance in the
complaint in respect of any of the alleged contraventions of provisions of
the PCPNDT Act
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
CRIMINAL APPLICATION (APL) No. 245 of 2014
Dr. [Mrs.] Kalyani wife of Ritesh Dixit,
: Versus :
State of Maharashtra,
CORAM : P. N. DESHMUKH, J.
DATED : 1stDecember, 2014
Citation; 2015 ALLMR(cri) 4413
Rule. Rule is made returnable forthwith. Heard finally, by
consent of learned counsels for the parties.
2. This application takes exception to the impugned judgment
and order dated 2532014 passed by the Additional Sessions Judge1,
Chandrapur rejecting her application for discharge of the alleged offences
for contravention of Sections 4, 5 and 6 read with Rule 9 and Rule 13
punishable under Sections 23 and 25 of the Preconception and Prenatal
Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter
referred to as the PCPNDT Act) and Rules framed thereunder.
3. Prior to the impugned order, the discharge application filed by
applicant came to be rejected by the learned JMFC, Chandrapur vide its
order below Exhibit 83 in Criminal Case No. 275/2012 dated 3092013.
4. Being aggrieved by the rejection of discharge as aforesaid,
present application is preferred by applicant/accused invoking its
Constitutional jurisdiction praying for quashing and setting aside the
impugned orders dated 3092013 passed by learned Judicial Magistrate
First Class, Chandrapur as well as the order of the appellate Court dated
2532014 passed in Criminal Revision No. 119/2013.
5. I have heard Shri M.P. Khajanchi, learned counsel for applicant
and Shri P. V. Bhoyar, learned APP for the State/respondent. With the
assistance of the learned counsels, I have gone through the application and
the annexures thereto and the copy of complaint and impugned order.
6. The applicant is accused in Regular Criminal Case No.
275/2012 filed for contravention of above stated offences. It is the case of
complainant that inspection of applicant's hospital known as Brindavani
Nursing Home, Chandrapur was carried out by complainant's Department
on 1262012, in pursuance to the letter issued by the Collector,
Chandrapur dated 1162012 by which team of authorized persons was
formed to visit the hospital of applicant and other such hospitals for
inspection of USG and MTP centres. Accordingly, P.W. 1 Dr. Vanita
Gargelwar, P.W. 2 Dr. B. W. Ramteke along with Naib Tahsildar and Head
Constable who were members of the inspection team carried out
inspection in the presence of applicant and submitted their report in
Format B.
7. As per the complaint, the contravention/violation of the
provisions of the PCPNDT Act and the Rules that were noticed by the
appropriate authority are as follows :
(1) That, at the time of inspection, the eligibility or Registration
Certificate was not displayed in the waiting room,
(2) That the USG machine as specified in the Registration Certificate
No. 33 of Logic 202 model was not found available and at its place, USG
i.e. Prosound Aloka Machine was found used.
(3) That the record in respect of sonography centre was not maintained
as FForm Nos. 719, 720, 721 and 722 were incompletely filled.
Accordingly, for above illegalities and deficiencies alleged to be committed
by applicant, complaint came to be filed as aforesaid.
8. Learned counsel for applicant though had contended that
Dr. Vanita Gargelwar was not authorized to file complaint, has not
seriously canvassed this ground, contending that even otherwise applicant
has good case on merits as from the available record, it cannot be said that
applicant has contravened any of the provisions of PCPNDT Act or Rules
thereunder.
9. Learned APP while opposing the application has relied upon its
reply filed to the application on record and has contended that the
grounds raised in the present application can only be considered on trial
and thus, prayed that the application be rejected.
10. It is not disputed that the applicant herself is duly qualified and
authorized to run sonography centre and possesses registration certificate.
Nor it is the case of complainant that applicant has indulged in sex
determination.
11. The complaint is filed on behalf of State through Municipal
Corporation of City of Chandrapur through its authorized Officer Dr. Sou.
Vanita Gargelwar.
12. Section 17 of the PCPNDT Act contemplates appointment of
Appropriate Authority and Advisory Committee by the Central or State
Government by notification.
Subsection (5) of Section 17 reads as follows :
(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.
Subsection (6) of Section 17 reads as follows :
(6) The Advisory Committee shall consist of
(a) three medical experts from amongst
gynaecologists, obstericians, paediatricians and
medical geneticists ;
(b) one legal expert ;
(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 ;
(d) three eminent social workers of whom not less
than one shall be from amongst representatives of
women's organisations.
13. Thus, according to respondent, complainant Dr. Vanita
Gargelwar was competent to file the complaint. With this background,
document, Exhibit 51 is relied by the respondent where from it reveals
that by this letter dated 1162012, Collector, Chandrapur had formed the
team of officers for inspecting MTP and Sonography Centres during the
period from 1162012 to 1862012. Name of Dr. Vanita Gargelwar is
referred in said letter.
14. Similarly, vide Exhibit 52, District Collector, Chandrapur vide
subsequent order dated 1662012 had issued directions to the inspection
team to take necessary steps if they found contravention of any of the
provisions of PCPNDT Act or Rules thereunder.
15. Learned APP Shri Bhoyar during the course of argument had
tendered at the bar Gazette Notification dated 942007, according to
which, initially District Collector was appointed as an appropriate
authority while by subsequent notification, Municipal Commissioner is
appointed as appropriate authority for City area. Accordingly, it appears
that on 1162012, the Commissioner, Municipal Corporation, Chandrapur
issued Exhibit 49 authorizing Dr. Vanita Gargelwar, Medical Officer,
Municipal Hospital, Chandrapur to inspect the Sonologist and Radiologist
and on finding contravention of any of the provisions under the PCPNDT
Act and Rules, to issue notices and also to file complaints.
16. In view of the above notification as well as documents on
record thereby authorization of complainant to file complaint, I do not find
that the complaint filed by Dr. Vanita Gargelwar is without any authority,
though during recording of evidence before charge of complainant, she
has admitted that from the date of inspection on 1262012, till the filing
of complaint, she had not made correspondence with the District Advisory
Committee. Subsection (5) of Section 17 of PCPNDT Act contemplates
that Advisory Committee is required to be appointed by the Central or
State Government as the case may be, to aid and advise to Appropriate
Authority. However, complainant since is duly found authorized by the
appropriate authority to file the complaint as stated aforesaid, the
complaint can said to be tenable as filed by authorized person.
17. The important aspect which needs consideration is whether the
complaint filed for alleged contravention of offences as stated aforesaid
can said to be made out against applicant/accused. While considering the
same, I have dealt with the alleged irregularities as stated in para 5 of the
complaint.
18. The first allegation is of not displaying of Registration
Certificate in the waiting room. It is necessary to refer to provisions of
Section 19(4) of the PCPNDT Act, which reads as follow :
(4) The certificate of registration shall be displayed by
the registered Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic in a conspicuous place at its
place of business.
With this reference, learned counsel for applicant has relied upon evidence
of Dr. Vanita Gargelwar, who had admitted that at Brindavani Hospital,
apart from hospital of applicant, her mother Dr. Rajlaxmi is also running a
Hospital, who is also a Gynaecologist, where all kinds of gynaec patients
are treated and it is a maternity home. As such, it appears that Brindavani
Hospital, where the inspection came to be carried out is not exclusively
run by applicant but her mother, who also is a Gynaecologist, has her
hospital. This fact needs to be borne in mind with reference to the
contents of inspection report, which is at Exhibit 53, according to which,
the Registration Certificate was displayed in USG Clinic room. As such, it
is material to note that accused, in fact, finding that clinic room would be
more conspicuous place, had displayed the concerned Registration
Certificate in the clinic room, where the USG machine is also installed than
to display in the waiting room, which is found common waiting room of all
the patients visiting Brindavani Hospital. In that view of the matter and as
it is no case of complainant that no Registration Certificate was at all
displayed, I find no reason to hold on this count that applicant has
committed contravention of subsection (4) of Section 19 of the PCPNDT
Act. On the contrary, applicant is found to have displayed the required
certificate in the clinic room where only those patients, who are required
to undergo examination at USG clinic would visit and in that
circumstances, can have a look to the Registration Certificate, rather than
displaying it in a common waiting hall where patients of all kinds may be
waiting.
19. Second contravention of the PCPNDT Act and Rules alleged is
with reference to use of Prosound Aloka Machine in place of Logic 202
model machine for which Registration Certificate No. 33 is issued. With
reference to above contravention, Rule 13 contemplates that :
13. Intimation of changes in employees, place or
equipment. Every [Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and
Imaging Centre] shall intimate every change of employee,
place address and equipment installed, to the
Appropriate Authority [atleast thirty days in advance of
the expected date of such change, and seek reissuance of
certificate of registration from the Appropriate Authority,
with the changes duly incorporated.]
20. Thus, it is the case of respondent that in spite of change of
machine, no intimation as required above was given by applicant. On this
ground, learned counsel for applicant has rightly relied upon the
correspondence entered into by the Civil Surgeon, District Hospital,
Chandrapur to Dr. Vanita Gargelwar, the letter is on record at Exhibit 66.
On plain reading of contents of this letter, it established that on
3122009, that is prior to the date of inspection, applicant had entered
into correspondence with the competent authority requesting to take note
of new sonography machine installed by her. Said letter of applicant
dated 3122009 is received in the office of Civil Surgeon, Chandrapur as
in Exhibit 66, there is also reference of inward no. 15789 and 15790 and
are further stated to be marked by one Mr. Deshmukh.
21. Learned APP on this count had contended that in fact the said
letter is not available in the office of Civil Surgeon and has relied upon
documents in respect of Departmental Enquiry initiated against
Mr. Deshmukh, contending that enquiry was initiated against
Mr. Deshmukh, employee from the office of Civil Surgeon for committing
forgery establishing of fact of receipt of such letter in the office of Civil
Surgeon. Admittedly, said documents do not form part of record. As such,
even though there was any enquiry initiated against the employee of Civil
Surgeon, this by itself, at this stage, cannot be a ground to reject the claim
of applicant, more particularly, in view of contents of letter Exhibit 66 of
Civil Surgeon which prima facie establish correspondence by applicant.
22. Moreover, it is material to note that order dated 5102012
passed by respondent under subsection (3) of Section 20 of the PCPNDT
Act, 1994 by which registration of Genetic Clinic of applicant was
suspended, is quashed by this Court by its order passed in Writ Petition
No. 4594/2013. As such the order passed by the Appropriate Authority
and the Commissioner of Municipal Corporation, Chandrapur is set aside
and the registration of the Genetic Centre of applicant came to be restored.
Respondent in its reply had raised this as one of its ground while
opposing this application contending that order cancelling registration of
applicant's Genetic Centre is also issued by the Appropriate Authority.
23. In that view of the matter and further considering the
admission given by complainant Dr. Vanita Gargelwar that on 2572012,
she received Exhibit 66 from the office of Civil Surgeon, Chandrapur, it is
prima facily established by applicant that she had duly informed about the
change of machine to the office of Civil Surgeon at the material time and
who was the appropriate authority. In the background of above,
complaint fails on this count also.
24. Lastly, it is the case of complainant that four numbers of forms
being FForm Nos. 719, 720, 721 and 722 are incompletely filled, it is
alleged that :
columns no. 3 pertaining to name, age of the patient,
column no. 4 pertaining to number of children with their sex,
column no. 5 pertaining to husband's/father's name,
column no. 6 pertaining to full address and telephone number of patient
and
column no. 15 pertaining to date on which CSJ procedure was carried out
are alleged to be not filled.
In the background of above alleged contravention, subrule (4) of Rule 9 is
necessary to be considered. It contemplates :
(4) The record to be maintained by every [Genetic Clinic
including a mobile Genetic Clinic], in respect of each man
or woman subjected to any prenatal diagnostic
procedure/technique/test, shall be as specified in Form F.
Before considering this aspect, it is necessary to note that admittedly, there
are no allegation nor even it is the case of complainant that applicant has
contravened or is indulged into act of sex determination. Coming back to
the issue of incomplete FForm Nos. 719 to 722, learned counsel for
applicant has relied upon the evidence of Dr. Ramteke, who was Member
of the inspection team authorized by Appropriate Authority and has
admitted that FForm Nos. 719 to 722 are on record at Exhibit 78 to 81
and that there were many patients outside the chamber as well as in the
waiting hall of whose names were not recorded by any of the Members of
the inspection team. It is further admitted that no enquiry was made as to
whom FForm Nos. 719 to 722 belong. Dr. Ramteke further admitted that
there was one assistant in the chamber of applicant and had enquired from
applicant about said forms to which applicant replied that they were in
respect of patients who were in the waiting. In a specific query put to
Dr. Ramteke about the procedure to be carried out while conducting
sonography, it is replied that on obtaining consent, sonography is
performed and thereafter FForm is prepared along with sonography
report on reading sonography printout. Considering above procedure
which is necessary to be followed and having considering the fact that four
patients were in the waiting of whom FForm Nos. 719 to 722 were found
during the course of inspection alleged to be incomplete do not make out
any case against applicant as according to the case of applicant, the
process of examination of patients was yet to be complete and as such,
there was no reason for completing those forms even prior conducting the
required medical examination.
25. Learned counsel for applicant, in the background of above
facts, has relied upon provisions of subrule (8) of Rule 9 which is
reproduced below.
(8) Every Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging
Centre shall send a complete report in respect of all preconception
or pregnancy related
procedures/techniques/tests conducted by them in respect
of each month by 5th day of the following month to the
concerned Appropriate Authority.
So on considering above, it is necessary for applicant to prepare the record
of the cases attended by her during a particular month of which FormF
are to be submitted along with all necessary particulars up to 5th day of
following month along with monthly report of cases attended by the
concerned Doctor. In that view of the matter and particularly, when the
inspection came to be carried out since four patients of which forms are
alleged to be incomplete were to be examined, it cannot be said that
applicant, with any bias intention, had kept forms incomplete as the
procedure as well as diagnosis of four patients is found to be incomplete
when the inspection came to be carried out.
26. On considering above discussed facts, I find no substance in the
complaint in respect of any of the alleged contraventions of provisions of
the PCPNDT Act and Rules. In fact, in the background of above facts,
reliance can be usefully placed upon the ratio laid down in the case of
Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao
reported in (2012) 9 SCC 512, where in para 15 of the judgment, it is
observed that while considering applications for grant of discharge, “if the
Magistrate finds that there is no prima facie evidence or the evidence
placed is totally unworthy of credit, it is his duty to discharge the accused
at once. It is also settled law that while exercising jurisdiction under
Section 227 of the Code, the Magistrate should not make a roving enquiry
into the pros and cons of the matter and weigh the evidence as if he was
conducting a trial. This provision was introduced in the Code to avoid
wastage of public time and to save the accused from unavoidable
harassment and expenditure.” While analysing the role of the applicant
herein from the complaint and the materials supplied along with it, the
above principles have to be kept in mind.
27. Having considering above facts, I am thus of the opinion that
there is no sufficient ground to proceed against applicant. As continuation
of proceedings against applicant would certainly amount to abuse of
process of law. In the circumstances, application is liable to be allowed.
In the result, application is allowed in terms of prayer clause
[a] of the application.
Rule is made absolute accordingly.
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