hold that the learned Magistrate who issued process to
the applicant did not take proper care before passing the
order of issuance of process. In order to examine the
case I first perused the photostat copy of the complaint.
On the face of it the complaint is not properly drafted,
neither it is properly typed. Even prayer clause is
conspicuously absent. The complainant did not mention as
to under what provision of the Act, the offence is
committed by the applicant. The complaint only mentions
section 23 and 25 of the Act for asserting that the
applicant should be convicted under these provisions.
But, if at all, the applicant had not filled up form “F”
properly in the three cases, it would amount of offence
punishable under section 4(3) proviso, read with, section
5 & 6, read with, section 23 & 25 of the Act. The
complainant clearly mentioned in the complaint that in
three forms of the patients, who are named above, he
found the forms incomplete. If such is the complaint,
learned Magistrate before issuance of process ought to
have perused the three forms and ought to have formed his
opinion as to whether a case is made out for issuance of
process. Instead of he doing that chore, I did it today
and I found for the reasons mentioned above that the
forms were not incompletely filled up.
Learned Magistrate committed another blunder
when he did not realize that this was a warrant case, in
which, evidence before framing of charge was required to
be recorded. The applicant/accused and the complainant
are present before the Court who told me that the
Magistrate has so far not recorded any evidence in this
case and yet as mentioned above on 13.12.2011, learned
Magistrate framed charge against the applicant. This is
certainly unpardonable and absolutely illegal.
Unfortunately, a copy of charge is also annexed with the
application and after I went through the same I found
that the drafting of the charge is incorrect, unnecessary
and unconnected to the complaint. Even the spelling
mistakes and grammar mistakes are not corrected by the
Magistrate before putting signature on it. I am very
sorry to note that despite laudable object of the Act and
Rules made thereunder, the Authorities under this Act are
not taking proper care before filing cases against
medical professionals. The provisions of the Act are
quite strict to the accused and in order to balance such
strictness in the provisions of the Act,
prosecutors/complainants are expected to take utmost care
while taking action against the accused. They must
follow the procedure prescribed under the Act
meticulously as following such procedure meticulously is
mandatory.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 757 OF 2012
Dr. Ravindra s/o. Shivappa Karmudi
Versus
The State of Maharashtra .
CORAM : A.V. NIRGUDE,J.
DATED : 03.05.2012
1. This application made under section 482 of the
Cr.P.C. seeks quashment of Criminal Case bearing R.C.C.
No.99 of 2011, which is pending in the court of J.M.F.C.,
Ausa, Dist. Latur.
2. The applicant is the accused. The complainant is
Dr. Vasant Wattamwar, who is Taluka Appropriate Authority
appointed under the provisions of the Preconception and
Prenatal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 read with Rules, 1996 (henceforth it
is referred to as “the Act” and “the Rules”). It is
common ground that the applicant/accused is running a
diagnostic center at Ausa since prior to 2007. It is
also common ground that he has obtained registration from
the Appropriate Authority to establish and run such
center. The complainant – Dr. Wattamwar visited the
applicant’s center on 16th May, 2011 and found that the
applicant has not kept record in respect of Sonography
examination on pregnant women. He, therefore, took
certain record found in the center in his possession and
recorded a panchanama. He also sent Show Cause Notice to
the applicant to which the applicant immediately
submitted a reply. In the Show Cause Notice, the
complainant alleged that the applicant had not filled up
“F” forms completely. Within two days, the applicant
submitted a reply saying that the shortcoming found in
form “F” at his center were inadvertent and he would take
care in future. Despite this, on 06.06.2011, Dr.
Wattamwar filed complaint against the applicant for
offences punishable under section 23 read with section 25
of the Act. Learned Magistrate then issued process
against the applicant for offence punishable under
sections 23 and 25 of the Act. The applicant appeared
before the learned Magistrate and it appears, the learned
Magistrate immediately without recording evidence before
charge, framed charge against the applicant on
13.12.2011. The application is moved thereafter on
10.02.2012 alleging that there is no case made out in the
complaint against the applicant and the entire case
should be quashed.
3. The question, therefore, is whether the
complainant makes out a case against the applicant. In
the complaint the allegation made against the applicant
is that in three forms of patients, by name, Smt. Dipali,
Smt. Asha and Smt. Suvarna, the applicant failed to
mention in form “F”, how many children they have previous
to the date of examination. The register of the forms
was seized and is now produced before me. Therefore, I
am inclined to examine as to whether the allegation is
truthful. At the direction of this Court, the sealed
record is allowed to be opened in the Court. I perused
the register and found three forms of above mentioned
patients and I also found that the applicant did not
mention in those forms in the register the number of
children of these patients.
4. Learned Counsel for the applicant brought to my
notice the consents cum declarations of above mentioned
three patients. These consents cum declarations of the
patients were admittedly perused and verified by the
complainant at the time of inspection. The consent cum
declarations of the above mentioned patients are found
properly filled up. Fortunately for the applicant, in
those forms, the information regarding number of children
of these patients was also required to be filled up and
such information was properly filled up. The question is
– whether form “F” of these patients were still
incompletely filled up? The answer is in the NEGATIVE.
5. As said above, form “F” includes consent cum
declaration of the patients while filling up form “F”.
The doctor is supposed to fill up consent cum declaration
form and obtain signature of the patients. Considering
the nature of consent/declaration form, it is clear that
this part of form “F” is required to fill up first.
Unless the patient consents for conducting Sonography
test, the doctor will not be able to fill up remaining
part of form. As said above, the consent cum declaration
form of these three patients are found in order. On the
other hand, main form “F” which are maintained in a
register were also found properly filled up except the
information regarding number of children of the patient.
If one reads and the complainant ought to have read these
two parts of form “F” together to form opinion as to
whether the record is maintained or not maintained
properly. The complainant probably entertained belief
that form “F” should be filled up in such a manner that
even if certain information is required to be filled in
at two places, it must be filled up at both the places
and if it is not filled, it would amount to incomplete
filling up of the form. I am afraid, this belief was
apparently and patently incorrect. The complainant
himself is a doctor. He should have realized that if the
doctor has filled up necessary information at some place,
in the form, he should and he ought to have assumed that
the form was properly filled. I think the complainant
made this complaint out of either over enthusiasm or due
to pressure from his superiors. The application should,
therefore, succeed.
6. Before I conclude this judgment, I must also
hold that the learned Magistrate who issued process to
the applicant did not take proper care before passing the
order of issuance of process. In order to examine the
case I first perused the photostat copy of the complaint.
On the face of it the complaint is not properly drafted,
neither it is properly typed. Even prayer clause is
conspicuously absent. The complainant did not mention as
to under what provision of the Act, the offence is
committed by the applicant. The complaint only mentions
section 23 and 25 of the Act for asserting that the
applicant should be convicted under these provisions.
But, if at all, the applicant had not filled up form “F”
properly in the three cases, it would amount of offence
punishable under section 4(3) proviso, read with, section
5 & 6, read with, section 23 & 25 of the Act. The
complainant clearly mentioned in the complaint that in
three forms of the patients, who are named above, he
found the forms incomplete. If such is the complaint,
learned Magistrate before issuance of process ought to
have perused the three forms and ought to have formed his
opinion as to whether a case is made out for issuance of
process. Instead of he doing that chore, I did it today
and I found for the reasons mentioned above that the
forms were not incompletely filled up.
7. Learned Magistrate committed another blunder
when he did not realize that this was a warrant case, in
which, evidence before framing of charge was required to
be recorded. The applicant/accused and the complainant
are present before the Court who told me that the
Magistrate has so far not recorded any evidence in this
case and yet as mentioned above on 13.12.2011, learned
Magistrate framed charge against the applicant. This is
certainly unpardonable and absolutely illegal.
Unfortunately, a copy of charge is also annexed with the
application and after I went through the same I found
that the drafting of the charge is incorrect, unnecessary
and unconnected to the complaint. Even the spelling
mistakes and grammar mistakes are not corrected by the
Magistrate before putting signature on it. I am very
sorry to note that despite laudable object of the Act and
Rules made thereunder, the Authorities under this Act are
not taking proper care before filing cases against
medical professionals. The provisions of the Act are
quite strict to the accused and in order to balance such
strictness in the provisions of the Act,
prosecutors/complainants are expected to take utmost care
while taking action against the accused. They must
follow the procedure prescribed under the Act
meticulously as following such procedure meticulously is
mandatory.
8. Learned A.P.P. despite glaring anomalies in the
case and the record of the case, insisted that I should
refer to two judgments of the Supreme Court in the case
of Central Bureau of Investigation Vs. K.M. Sharan, 2008
4 (SCC) 471 and in the case of State of A.P. Vs.
Gourishetty Mahesh, 2010 (11) SCC 226. In both these
cases, the Supreme Court has held that quashing of cases
at threshold should as far as possible be avoided. The
acceptability of the material to fasten culpability on
the accused person is the matter of trial. At threshold
level detail and minute examination of the prosecution
case is not warranted. Learned A.P.P. is thus suggesting
that what I did in this case was unnecessary. He
suggested that I ought not to have gone into merits of
the case and should have been satisfied with the
complaint and the statements made in the complaint. I am
afraid, this in my view, is an exceptional case, where on
the face of it and even on casual perusal of the
prosecution material, I noticed that it does not make out
case against the applicant.
9. The case filed against the applicant should,
therefore, fail. Same stands quashed. The Criminal
Application is accordingly allowed and disposed of.
[A.V. NIRGUDE,J.]
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