Wednesday, 9 March 2016

Whether prosecution under PCPNDT Act can be quashed considering defence of accused?

 Keeping   in   view   the   observations   of   the
Hon'ble   Division   Bench   in   the   case   of   "Sujit
Govind   Dange",   mentioned   above,   there   remains   no
doubt   that   deficiencies   or   inaccuracies   in   the
maintaining   of   record   and   Form   F   attract   the
provisions   of   Section   5   or   6   of   the   Act.   I   am
bound   by   the   Judgment   of   the   Division   Bench   of
this Court.
19. When   the   complaint   has   been   filed   under
this Act showing the inaccuracies and deficiencies

in   the   keeping   of   record,   and   complainant   has
documents to support disclosing sufficient grounds
to proceed in the light of provisions of this Act
and   Rules,   this   Court   cannot,   before   holding   of
the   trial,   sit   in   Judgment   whether   or   not   the
Record has been kept properly; or Form F concerned
has been properly filled or improperly filled; or
whether   or   not   the   deficiencies   pointed   out   are
serious or insignificant. When complaint has been
filed   pointing   out   deficiencies   or   inaccuracies,
before trial it would not be proper for this Court
to consider the arguments that what is pointed out
is   no   deficiency   or   no   inaccuracy.   It   would   be
prejudging  the matter.  As per Proviso  of Section
4(3) "any" deficiency or inaccuracy in keeping of
complete record "shall amount to contravention" of
Section   5   or   6   "unless   contrary   is   proved."
Naturally,   the   contrary   can   be   "proved"   only   at
the trial. Appropriate Authority under the Act is
Public   Servant   acting   in   discharge   of   official
duty  and has to act  with  responsibility.  Keeping

in   view   the   Judgments   discussed   above,   in   such
serious   matters,   it   would   be   inappropriate   to
interfere when prima facie case is made out.   
                               
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL WRIT PETITION NO.26 OF 2013
Dr. Radhakrishna s/o Namdeo Zalwar,

       VERSUS             
The State of Maharashtra,   


              CORAM:  A.I.S. CHEEMA, J.
  
   DATE OF PRONOUNCING JUDGMENT: 9TH MAY, 2014.
Citation;2014(3) BomCR(CRI)798

1. The   present   Petition   has   been   filed   to
quash   complaint   filed   by   Appropriate   Authority
(hereafter   referred   as   "complainant")   under   the
provisions   of   Pre­conception   and   Pre­natal
Diagnostic   Techniques   (Prohibition   of   Sex
Selection) Act, 1994 (hereafter referred as "Act")
and   the   Pre­conception   and   Pre­natal   Diagnostic
Techniques   (Prohibition   of   Sex   Selection)   Rules,
1996 (hereafter referred as "Rules").
2. The   Petition   is  Admitted  and   has   been
heard finally. Learned counsel for the Petitioner

as   well   as   learned   Public   Prosecutor   for   the
Respondents   submitted   elaborate   arguments.   With
this  matter  some  other similar  matters  were  also
argued   and   Counsel   for   Petitioners   adopted
arguments of each other on law points to request
for quashment of Criminal Trials against accused.
3. The   Petitioners   claim   that   on   9th   May,
2012,   Respondent   No.2   and   Dr.Madhuri   Thorat   and
Dr.   Madhav   Munde,   Residential   Medical   Officer,
District Civil Hospital, Aurangabad and Divisional
Vigilance   Cell   visited   the   hospital   and   noticed
certain   lacunae,   for   which   notice   was   issued   on
9th   May,   2012   and   reply   was   given   by   the
Petitioners   on   12th   May,   2012   explaining   the
lacunae   pointed   out.   The   Petitioners   claim   that
they   denied   the   allegations   made   in   the   notice
about   Form   F.   On   29th   November,   2012   Deputy
Director of Health Services, informed that lacunae
have been noticed and there was violation of the
Act and Rules. Respondent No.4 filed S.C.C. No.863

of   2012   before   Judicial   Magistrate,   First   Class,
Sillod,   Dist­Aurangabad   for   violation   of
provisions under the Act, referring to Section 23
and   29   of   the   Act.   Petitioners   claim   that   the
criminal   proceeding   is   manifest   with   mala   fides
and   there   is   no   offence   made   out   as   claimed.
Petitioners want the S.C.C. No.863 of 2012 to be
quashed and set aside.
4. On   behalf   of   the   Respondents,   affidavit
in   reply   has   been   filed   by   the   Medical
Superintendent, denying averments in the Petition
and claiming that provisions of the Act and Rules
have been violated and the Petition deserves to be
rejected.  Copies  of documents  have been  filed  in
support.
5. Petitioner   No.1   has   filed   Rejoinder   to
the Affidavit­in­reply.
6. I   have   heard   learned   counsel   for   the

Petitioners   as   well   as   learned   Public   Prosecutor
for the Respondents.
7. Learned   counsel   for   the   Petitioners
referred   to   copy   of   the   complaint   where   5
deficiencies and inaccuracies have been enlisted.
It   was   argued   that   defect   No.1   pointed   out   is
claimed  to   be   with   reference   to  Form   F  that  the
Form   being   used   was   not   as   per   the   Act.   It   was
argued   that   this   was   only   regarding   missing   of
words   "Non   invasive"   of   the   format.   Counsel
submitted that the defect No.2 pointed out was of
not   taking   steps   to   get   entry   made   in   the
certificate   of   registration,   of   portable   ALOKA
sonography   machine   kept   in   the   store.   With   this
regard, counsel submitted that the Petitioner No.1
had informed regarding the portable machine to the
Authorities before the incident and subsequent to
the incident entry regarding the said machine has
been taken in the certificate of registration.

. It   was   further   argued   that   Defect   No.3
pointed out in the complaint is that time is not
specified regarding sonologist in the certificate.
It was argued that no rule requires specifying of
such time. The counsel further argued that Defect
No.4   pointed   out   in   the   complaint   claims   that
signatures   of   Dr.   Zalwar   in   the   forms   are
different.   According   to   the   learned   counsel   in
reply dated 12th May, 2012 the Petitioner No.1 had
informed   that   it   appeared   to   be   so   due   to   poor
print of carbon copy.
. It   was   argued   for   the   Petitioners   that
Defect  No.5  relates  to non mentioning  of reasons
for abortion in the records. The argument is that
this   does   not   relate   to   the   present   Act   and   it
would  be matter  under  the Medical  Termination  of
Pregnancy Act, which is different.
. Learned   counsel   for   Petitioners   further
argued   that   in   the   present   matter,   both   the

Petitioners  have  been made accused,  which  is not
correct   and   that   the   registration   of   the   Clinic
was standing only in the name of Petitioner No.1
and   so   Petitioner   No.2   could   not   be   proceeded
against.
8. After referring to the various provisions
of the Act, reference was made to the case of Dr.
Pratidnya   Jayesh   Shinde   and   another   vs.   Dr.
Rameshchandra Kisan Savkare and another, reported
in   2014   ALL   M.R.(Cri)   681.   In   that   matter,
proceeding was quashed as the complaint was silent
as   to   how   responsibility   of   maintaining   records
was   cast   upon   the   concerned   Applicants   as   were
before the Court. Reliance is also placed on the
Judgment   in  the  case   of  Dr.   Alka   w/o   Anant   Gite
and   another   vs.   The   State   of   Maharashtra   in
Criminal   Application   No.3500   of   2011   decided   on
11th   May,   2012.  Referring   to   that   Judgment,
submission   is   that   inadvertently   if   a   column   is
blank,  it cannot  attract  offence.  Relying  on the

case   of   "Dr.   Mrs.   Uma   Shankar   Rachewad   vs.
Appropriate Authority"­ Criminal Writ Petition No.
407  of   2011,   decided   on  19th   April,  2012,  it   is
submitted   that   writing   of   "N.A."   i.e.   NonApplicable
  does   not   amount   to   incomplete   filling
of Form. Judgment in the case of Dr. Ravindra s/o
Shivappa  Karmudi  vs. The State of Maharashtra  in
Criminal Application No.757 of 2012 decided on 3rd
May, 2012, was referred to submit that F Form was
incomplete   does   not   mean   criminal   offence   is
there. Reliance was also placed on the    Judgment
in   the   matter   of   Dr.   Tushar   Rangrao   Patil   vs.
Appropriate   Authority   in   Criminal   Writ   Petition
No.406 of 2011 decided on 2nd May, 2012. These are
matters   decided   by   learned   Single   Judge   of   this
Court.   The   submission   is   that   in   those   matters
also although there were defects in maintaining of
Form F, the Petitioners therein were given benefit
and the concerned cases against those Petitioners
were quashed. Thus it is argued that the Petition

needs to be allowed.
9. Learned Public Prosecutor pointed out to
the copies of documents filed with the affidavitin­reply
 to show  that the concerned  records  were
not  kept  properly  and there  are  various  defects.
The Public Prosecutor submitted that Form F itself
provides   whether   M.T.P.   i.e.   Medical   Termination
of Pregnancy was advised or conducted and thus non
mentioning of reasons for termination of pregnancy
would  amount  to defect  and deficiency  in keeping
of the record.
10. The learned Public Prosecutor referred to
the   contents   of   the   complaint   and   the   documents
relied on and the letter dated 12th May, 2012 sent
by Petitioner No.1 as reply to the notice calling
explanation.   According   to   the   Public   Prosecutor,
the   reply   itself   shows   that   the   Petitioners
admitted that there were defects in maintaining of
the records. The Public Prosecutor submitted that

both   the   Petitioners   were   managing   the   hospital
and   both   the   Petitioners   are   liable   for
prosecution.
11. To   appreciate   the   controversy,   it   would
be appropriate to keep in view certain provisions
of the Act.
. Portions   relevant   from   Section   4   of   the
Act are as under:­
"4.   Regulation   of   pre­natal
diagnostic techniques.­ On and from
the commencement of this Act,­
(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   prenatal
  diagnostic   techniques   except
for the purposes specified in clause
(2) and after satisfying any of the
conditions specified in clause (3);

(2)   no   pre­natal   diagnostic
techniques shall be conducted except
for the purposes of detection of any
of   the   following   abnormalities,
namely:­
(i) ........  (iv).........
(ii)........  (v)..........
(iii).......  (vi).........
(3)   no   prenatal   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:­
(i)   ........ (ii).........
(iii) ........ (iv).........
(v)   ........ 
Provided that the person conducting
ultra sonography 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
provisions of section 5 or section 6
unless   contrary   is   proved   by   the
person   conducting   such   ultra
sonography;
(4).............
(5)............."
. With   reference   to   the   above   proviso   as
regards   keeping   of   records,   relevant   portions   of
Rule 9 are as under:­
"9. Maintenance and preservation of
records.­   (1)   Every   Genetic
Counselling   Centre,   Genetic
Laboratory, Genetic Clinic including
a Mobile Genetic Clinic, Ultrasound
Clinic   and   Imaging   Centres   shall
maintain   a   register   showing,   in
serial   order,   the   names   and
addresses of the men or women given
genetic   counselling,   subjected   to
pre­natal   diagnostic   procedures   or
pre­natal   diagnostic   tests,   the
names of their spouse or father and
the   date   on   which   they   first

reported   for   such   counselling,
procedure or test.
(2)   The   record   to   be   maintained   by
every Genetic Counselling Centre, in
respect   of   each   woman   counselled
shall be as specified in Form D.
(3)   The   record   to   be   maintained   by
every Genetic Laboratory, in respect
of   each   man   or   woman   subjected   to
any   pre­natal   diagnostic
procedure/technique/test shall be as
specified in Form E,
(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.
(5)..........
(6)..........
(7)..........
(8).........."

. In Rule 10 conditions for conducting prenatal
diagnostic procedures are prescribed, which
includes   obtaining   written   consent   as   prescribed
in Form G in a language the person undergoing the
procedure understands.
. Section   20   of   the   Act   deals   with
cancellation   or   suspension   of   the   registration.
Sub­section (1) and (2) deal with giving of notice
and   reasonable   opportunity   before   suspending   or
cancelling registration of the Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic. Subsection
(3) of Section 20 reads as under:­
"(3)   Notwithstanding   anything
contained   in   sub­sections   (1)   and
(2), if the Appropriate Authority is
of the opinion that it is necessary
or expedient so to do in the public
interest, it may, for reasons to be
recorded   in   writing,   suspend   the
registration   of   any   Genetic
Counselling   Centre,   Genetic

Laboratory or Genetic Clinic without
issuing any such notice referred to
in sub­section (1).”
12. The   learned   Public   Prosecutor   submitted
that   the   cases   under   the   Act   are   treated   as
warrant cases instituted otherwise than on police
report.   It   has   been   argued   that   major   or   minor
violation in the keeping of records is immaterial.
13. Scheme   of   the   Act   and   Rules   need   to   be
appreciated:
(A). Proviso   below   Section   4(3)   of   the   Act
shows that persons conducting ultra sonography on
a   pregnant   woman   are   required   to   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
provisions   of   Section   5  or   Section   6   of  the  Act
unless contrary is proved by the person conducting
such   ultra   sonography.   Section   5   of   the   Act

relates   to   taking   written   consent   of   pregnant
woman and prohibition of communicating the sex of
foetus.   Section   6   of   the   Act   prohibits
determination of sex by Genetic Counselling Centre
or   Genetic   Laboratory   or   Genetic   Clinic   or   any
person.   Rule   9   relates   to   maintenance   and
preservation   of   records   and   this   inter­alia
includes keeping record in respect of each man or
woman   subjected   to   any   pre­natal   diagnostic
procedure/technique/test   in   specified   Form   F.
Although sub­rule (4) of Rule 9 refers to Genetic
Clinic,   definition   of   "Genetic   Clinic"   as   in
Section   2(d)   of   the   Act   specifies   that   Genetic
Clinic   means   a   clinic,   institute,   hospital,
nursing   home   or   any   place,   by   whatever   name
called,   which   is   used   for   conducting   pre­natal
diagnostic   procedures.   Thus,   all   such   places   are
covered where pre­natal diagnostic procedures are
being conducted and all persons doing the same are
also covered, and as per the statute, maintaining
of   proper   records   and   Form   F   as   prescribed,   is

mandatory.
(B). Section 5 requires taking written consent
of the pregnant woman and prohibits communication
of   sex   of   foetus.   In   this   regard   Form   G   is
prescribed   in   Rule   10.   (According   to   the   Public
Prosecutor   Section   5(2)   of   the   Act   prohibits
communicating   of   sex   of   the   foetus   by   words,
signs, or in any other manner and thus according
to him displaying of  even photographs of Gods and
Goddess where pre­natal diagnostic procedures are
conducted,  is not permissible,  as the same gives
opportunity to convey sex of foetus by signs or in
other manners.)
(C). Section 23 of the Act shows that medical
geneticist,   gynecologist,   registered   medical
practitioner  or   any   person   who   owns  a   Genetic
Counselling   Centre,   a   Genetic   Laboratory   or   a
Genetic   Clinic   or   is   employed   in   such   a   Centre,
Laboratory or Clinic and renders his professional

or   technical   services   to   or   at   such   a   Centre,
Laboratory or Clinic, whether on an honorary basis
or   otherwise,   and   who   contravenes   any   of   the
provisions of the Act or rules made thereunder is
also   liable   for   punishment.   Under   Section   23   of
the  Act,  the owner of Centre,  Laboratory,  Clinic
who takes professional services to run the Centre
where   pre­natal   diagnostic   techniques   are
conducted,   is   also   liable,   if   any   provisions   of
the Act or Rules are contravened. 
(D). Under   Section   26   of   the   Act,   with
reference   to   companies,   the   word   "company"   means
any body corporate and includes a firm and other
association   of   individuals   and   such   persons   are
also liable, when offences by Companies are there.
(E). In view of Section 3(3) of the Act, prenatal
diagnostic techniques can be conducted only
at   place   registered   and   any   change   has   to   be
reported. Under Rule 13 every change of employee,

place,  address  and equipment  installed  has to be
informed to the Appropriate Authority.
14. I   have   heard   learned   counsel   for   the
Petitioner   as   well   as   learned   Public   Prosecutor.
Record  has been  perused.  The criminal  case filed
by   the   Appropriate   Authority   in   the   lower   Court
supported by documents shows the deficiencies and
inaccuracies   found   and   necessary   particulars   are
there.   Counsel   for   Petitioner   has   strenuously
tried   to   demonstrate   that   either   the   defects
alleged are not there or even if they are there,
they   are   insignificant.   The   Petitioner   is   trying
to give reasons as to how the Form was maintained
and if there are lacunae, what is the explanation.
15. The Full Bench of High Court of Gujarat
in Suo Motu vs. State of Gujarat, reported in 2009
CRI.L.J.   721,   considered   effects   of   non
maintaining   records   properly   under   this   Act.   It
was held that criminal consequences are attracted

and   there   can   also   be     suspension   of   the
registration.   Para   8   of   the   Judgment   reads   as
under:­
"8. It needs to be noted that improper
maintenance   of   the   record   has   also
consequences     other   than   prosecution
for   deemed violation of section 5 or
6. Section 20 of the Act provides for
cancellation   or   suspension   of
registration   of   Genetic   Counselling
Centre,  Genetic  Laboratory   or   Genetic
Clinic   in   case   of   breach   of   the
provisions   of   the   Act   or   the   Rules.
Therefore, inaccuracy or deficiency in
maintaining   the   prescribed   record
shall also amount to violation of the
prohibition   imposed   by   section   6
against   the   Genetic   Councelling
Centre,  Genetic  Laboratory   or   Genetic
Clinic   and   expose   such   clinic   to
proceedings   under   section   20   of   the
Act. Where, by virtue of   the deeming
provisions   of   the   proviso   to   subsection
  (3)   of   section   4,
contravention   of   the     provisions     of

section   5   or     6   is   legally   presumed
and   actions   are   proposed   to   be   taken
under   section   20,   the   person
conducting   ultrasonography   on   a
pregnant   woman   shall   also   have   to   be
given an opportunity to prove that the
provisions of section 5 or 6 were not
violated   by   him   in   conducting   the
procedure"
..................................... 
"It     would   also   be   improper   and
premature   to   expect   or     allow   the
person   accused   of   inaccuracy   or
deficiency   in   maintenance   of   the
relevant record to show or prove that
provisions of section 5 or 6 were not
violated by him, before the deficiency
or   inaccuracy   were   established   in
court   by   the   prosecuting   agency   or
before   the   authority   concerned   in
other proceedings.”
. In   that   Judgment   of   Full   Bench,
mentioned   above,   opinion   (iv)   recorded   in
Para 9, is as under:­

"(iv).       Deficiency   or   inaccuracy   in
filling Form F prescribed under Rule 9
of the Rules made under the PNDT Act,
being   a   deficiency   or     inaccuracy   in
keeping   record   in   the   prescribed
manner,   it   is   not   a   procedural   lapse
but an independent offence amounting to
contravention   of   the   provisions   of
section 5 or 6  of the PNDT Act and has
to   be   treated   and   tried   accordingly.
It   does   not,   however,   mean   that   each
inaccuracy or deficiency in maintaining
the requisite record may be as serious
as   violation   of   the   provisions   of
section 5 or 6 of the Act and the Court
would   be   justified,   while   imposing
punishment upon conviction, in taking a
lenient   view   in   cases   of   only
technical,   formal   or   insignificant
lapses   in   filling   up   the   forms.     For
example, not maintaining the record of
conducting   ultrasonography   on   a
pregnant   woman   at   all   or   filling   up
incorrect   particulars   may   be   taken   in
all seriousness as if the provisions of
section   5   or   6   were   violated,   but

incomplete details of the full name and
address of the   pregnant woman may be
treated   leniently if her identity and
address   were otherwise mentioned in a
manner sufficient to identify and trace
her.”
16. It is clear that it would be premature to
accept   explanations   regarding   inaccuracies   or
deficiencies   before   trial   takes   place.   It   is
further   apparent   that   if   the   lapse   is
insignificant, the benefit would go to the accused
at   the   time   of   sentence,   but   claiming   that
deficiencies   in   Form   F   and   keeping   Records   are
insignificant,  cannot  be reason  to claim  that no
offence is there and to discharge the accused.
17 (A). Reference   needs   to   be   made   to   the
case of  Sujit Govind Dange (Dr.) and another vs.
State   of   Maharashtra   and   others,   reported   in
2013(2)   Bom.C.R.   351.  In   that   matter   Division
Bench   of   this   Court   held   that   any   deficiencies
noticed   in   maintaining   the   record,   in   specially

Form F, attracts the provisions of the Act.
(B). The   Division   Bench   of   this   Court
considered the objects and reasons of the Act and
as to how the Act was necessary to control menace
of female foeticide. In Para 29, while considering
Section   4   of   the   Act,   it   was   observed   with
reference to Rule 9, as under:­
"29.   Considering   the   object   of   the
Act,   the   maintenance   and   preservation
of   records   as   per   rule   9   is   an
important statutory duty cast upon the
person   (Doctor)   conducting   ultra
sonography   on   a   pregnant   woman   and,
therefore,   any   deficiency   or
inaccuracy   found   in   this   regard
amounts   to   contravention   of   the
provisions   of   section   5   or   6   of   the
Act   unless   contrary   is   proved   by   the
person   (Doctor)   conducting   such   ultra
sonography".
(C). In that matter also arguments were raised

that   the   discrepancies   were   minor   in   nature   or
that   they   were   only   inaccuracies.   The   Hon'ble
Division Bench in Para 30 held as under:­. 
"30.   It   is   important   to   note   that   in
order   to   prohibit   abuse   of   these
prenatal   diagnostic   techniques,   the
Legislature has incorporated a proviso
to sub­section (3) of section 4 of the
Act   which   stipulates   that   any
deficiency   or   inaccuracy   found   in
maintaining   and   preserving   complete
record   in   a   manner   prescribed   by   the
person conducting ultrasonography on a
pregnant   woman   shall   amount   to
contravention   of   the   provisions   of
section 5 or section 6 unless contrary
is   proved   by   the   person   conducting
such   ultrasonography.   This   provision,
in  our  view,  is  completely   consistent
with the objectives of the Act and has
been introduced to   prohibit abuse of
the pre­natal diagnostic techniques by
the person conducting ultra sonography
on a pregnant woman".  
......................................

"The contention of the petitioner that
the discrepancy was of a minor nature
is   wholly   misconceived.   Neither   the
provisions of the Act nor that of the
Rules   provide     or     define     minor   or
major     deficiencies   or   inaccuracies.
On the other hand, it requires strict
compliance   of   every   provision   of   the
Act   and   the   Rules.   Considering   the
objectives   to   be       achieved,   strict
punishment   is   provided   for   violating
the   conditions   prescribed   under   the
Act.  The  contentions  canvassed   by the
petitioner, in this regard, therefore,
are   devoid   of   substance   and   are
rejected".
(D). With   reference   to   Sub­section   (3)   of
Section 20 of the Act, the Hon’ble Division Bench
recorded in Para 39, as under:­
“The   observations   made   by   the
Division   Bench   in   (Malpani
Infertility   Clinic   Pvt.   Ltd.   &
others   Vs.   Appropriate   Authority

PNDT   Act   &   others),   reported   in
2005(1) Bom.C.R. 595 (supra) clearly
show that the Division Bench in view
of   the   fact   that   prosecution   was
launched   against   the   petitioner   in
the   said   case,   it   was   held   to   be
sufficient   reason   for   the
authorities to take recourse to subsection
  (3)   of   Section   20   of   the
Act.   In   the   instant   case,   the
Petitioner   having   admitted   the
existence   of   deficiency   and
inaccuracy   in   keeping   and
maintaining   the   record   including
form   ’F’   has   resulted   in
contravention   of   the   provisions
contained   in   section   5   or   6   and,
therefore,   would   amount   to   an
offence   and   can   be   treated   to   be
sufficient   reason   for   the
Appropriate   Authority   to   invoke   the
provisions   of   sub­section   (3)   of
section 20 of the Act, in the larger
public   interest   and,   therefore,   the
action of suspension of registration
of   the   Genetic   Centre   of   the
petitioner   is   sustainable   in   law

till such time contrary is proved by
the petitioner.”
(E). Para 38 of the Judgment of the Division
Bench recorded that:­ 
"38.   Rule   9(1)   requires   that   every
Genetic   Counselling   Centre,   Genetic
laboratory,   Genetic   Clinic,   etc.,
shall  maintain   a register  showing,   in
serial   order,  the  names  and  addresses
of   the   men   or   women   given   genetic
counselling,   subjected   to   pre­natal
diagnostic   procedure   or   pre­natal
diagnostic   tests,   the   names   of   their
spouse or father and the date on which
they   first   reported   for   such
counselling,   procedure   or   test.   Subrule
  (4)   of     rule   9   stipulates   the
record   to   be   maintained   by   every
Genetic Clinic, in respect of each man
or   woman   subjected   to   any   pre­natal
diagnostic   procedure/technique/test,
shall be as specified in Form 'F'. In
the   instant   case,   the   petitioner   has
admitted   existence   of   discrepancies,

irregularities   in   maintenance   of   Form
'F'  which  has  undoubtedly  resulted   in
causing     deficiency   or   inaccuracy   in
maintaining   and   preserving   the   record
and, therefore, as per proviso to subsection
  (3)   of   section   4   of   the   Act,
resulted   in   contravention   the
provisions   of   section   5   or   6   of   the
Act and     would amount to an offence,
unless   contrary   is   proved   by   the
petitioner   who   has   conducted   such
ultrasonography test."
18. Keeping   in   view   the   observations   of   the
Hon'ble   Division   Bench   in   the   case   of   "Sujit
Govind   Dange",   mentioned   above,   there   remains   no
doubt   that   deficiencies   or   inaccuracies   in   the
maintaining   of   record   and   Form   F   attract   the
provisions   of   Section   5   or   6   of   the   Act.   I   am
bound   by   the   Judgment   of   the   Division   Bench   of
this Court.
19. When   the   complaint   has   been   filed   under
this Act showing the inaccuracies and deficiencies

in   the   keeping   of   record,   and   complainant   has
documents to support disclosing sufficient grounds
to proceed in the light of provisions of this Act
and   Rules,   this   Court   cannot,   before   holding   of
the   trial,   sit   in   Judgment   whether   or   not   the
Record has been kept properly; or Form F concerned
has been properly filled or improperly filled; or
whether   or   not   the   deficiencies   pointed   out   are
serious or insignificant. When complaint has been
filed   pointing   out   deficiencies   or   inaccuracies,
before trial it would not be proper for this Court
to consider the arguments that what is pointed out
is   no   deficiency   or   no   inaccuracy.   It   would   be
prejudging  the matter.  As per Proviso  of Section
4(3) "any" deficiency or inaccuracy in keeping of
complete record "shall amount to contravention" of
Section   5   or   6   "unless   contrary   is   proved."
Naturally,   the   contrary   can   be   "proved"   only   at
the trial. Appropriate Authority under the Act is
Public   Servant   acting   in   discharge   of   official
duty  and has to act  with  responsibility.  Keeping

in   view   the   Judgments   discussed   above,   in   such
serious   matters,   it   would   be   inappropriate   to
interfere when prima facie case is made out.   
20. It cannot be said, at present, that there
is no sufficient ground for proceeding. Keeping in
view Aims and Objects of the Act and Scheme of the
Act   and   Rules   referred   above   and   stringent   and
specific   provisions   not   tolerating   any   (meansany)
deficiency or inaccuracy in keeping complete
records,   I   am   unable   to   accept   the   explanatory
arguments   in   defence   or   to   invoke   writ
jurisdiction,   inherent   power   or   revisional
jurisdiction   to   quash   the   proceedings   at   the
threshold   when   sufficient   grounds   to   proceed   are
made out in the complaint.
. For   reasons   mentioned,   arguments   in
favour  of   State  have substance,  and submissions
for Petitioner to quash process or Complaint need
to   be   discarded.   Defences   being   raised,   can   be

considered   at   the   time   of   trial.   The     Petition
stands rejected. 
                               [A.I.S. CHEEMA, J.]

        After the pronouncement of the Judgment,
counsel   for   Petitioners   seeks   stay.   There   is   no
justification. The request is rejected.
                               [A.I.S. CHEEMA, J.]
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