Bombay High Court(Aurangabad Bench)
Dr. Mrs. Uma Shankarrao Rachewad vs Appropriate Authority, Nanded on 19 April, 2012
Bench: A.V. Nirgude
Citation;2012 CRLJ 2634 BomCriminal writ petition No.407/2011
1. This writ petition is filed seeking quashment of Criminal Case bearing R.C.C. No. 421 of 2011, pending in the Court of Chief Judicial Magistrate, Nanded, for offences punishable under sections 4(3),5,23,29 & 30 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection Act), 1994 (for short "the Act"). The petitioner is the accused. It is common ground that the petitioner is a Gynecologist, practicing at Nanded, since 1985 and she has a maternity hospital and ultra-sound clinic at Nanded. It is also common ground that she and her relative one Dr. Veena are registered under the provisions of the said Act. It is also common ground that till 31.03.2011, the Authorities under the Act inspected ultra-sound clinic from time to time and found the same to be in order. On 31.03.2011, the "Appropriate Authority" appointed under (2) crwp407.11
the Act, visited the petitioner's clinic and found following irregularities :-
(i) On number of "F" forms, word "N.A." was used.
(ii) The petitioner did not submit reply to show cause notice dated 22.03.2011, issued by the Medical Officer of Municipal Corporation.
(iii) "F" forms were not filled up of cases which were attended between 08.03.2011 to 26.03.2011.
(iv) Consent/Declaration parts of form "F" were not found of the cases which were examined between April 2009 to 31st March, 2010.
(v) Combined board giving warning to the patients in English and Marathi, that pre-natal sex determination is not made in the clinic, was not found.
2. Because of these irregularities, the Appropriate Authority lodged the complaint. It is not a case where decoy case was sent for collecting evidence.
3. In presence of learned Counsels for the parties, I directed the record seized at the petitioner's clinic to be opened and found a register of form "F". With the help of the learned Counsel and representatives of the parties I perused the record to examine whether the allegations are truthful and if any irregularity would amount to offence under the Act.
4. It is alleged that form "F" of the patients examined after 8th March, 2011, were not properly filled up and that on many forms, word "N.A." is used by the petitioner. I perused the forms in (3) crwp407.11
presence of both the Counsel. Learned Counsel for the petitioner admitted that word "N.A." is used on many forms. If one goes behind the reason, as to why filling up of form "F" is made compulsory, one would understand the importance of the same and the importance of the entries recorded in it. In order to understand this reason, one must read sections 4 & 5 of the Act. Sections 4 & 5 of the said Act read as under :-
4. Regulation of pre-natal 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 pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:-- (i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii)haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;
(3) no pre-natal 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) age of the pregnant woman is above thirty-five years; (ii) the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; (iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the Central Supervisory Board; Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as (4) crwp407.11
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 ultrasonography; (4) no person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2); (5) no person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.
5. Written consent of pregnant woman and prohibition of communicating the sex of foetus.
(1) No person referred to in clause (2) of section 3 shall conduct the pre- natal diagnostic procedures unless--
(a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;
(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.
(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner.
5. One must also see the format of the form which is annexed to the rules. Basic mandates of these provisions can be listed as follows:-
• Pre-natal diagnostic procedure means all gynecology and obstetric procedure, such as ultra-sonography, etc. Pre-natal diagnostic technique includes all pre-natal diagnostic procedures and tests. Pre-natal diagnostic technique shall be used or conducted only by a person qualified to do so.
•Pre-natal diagnostic technique should be conducted only for the purposes of certain abnormalities mentioned in sub-section (2) of section 4. Pre-natal diagnostic technique should be used or conducted only if the qualified person is satisfied as provided in section 3.
•The person conducting ultra-sonography on pregnant women should keep complete record in the clinic in the manner as
prescribed under the rules.
• Any deficiency or any inaccuracy found in such record should amount to contravention of provisions of section 5 or 6 of the Act. Unless contrary is proved by the person conducting such ultra- sonography.
•Relatives or husbands of pregnant women should not seek or encourage conduct of pre-natal diagnostic technique except for the purposes specified in sub-section (2). Relatives or husbands of the pregnant women should not seek or encourage conduct of any sex selection technique on her etc.
•Qualified person before conducting pre-natal diagnostic procedure, such as ultra-sonography, should explain side effects of such procedure to pregnant woman. He/she should obtain her consent in writing in the prescribed form. He/she should give copy of consent so recorded to the pregnant woman.
•The qualified person conducting pre-natal diagnostic procedure should not communicate to the pregnant woman or her relative or any other person the sex of foetus by word, sign or any other manner.
•No Genetic Counselling Center, Genetic Laboratory or Genetic Clinic should conduct pre-natal diagnostic technique for determining sex of the foetus.
6. In addition to this, one should also peruse contents of format of form "F". The form is annexed with "important notes". It provides a representative list of indications for ultrasound during pregnancy. The list is as under:-
1.To diagnose intra-uterine and/or ectopic pregnancy and confirm viability.
2.Estimation of gestational age (dating).
3.Detection of number of foetuses and their chorionicity.
4.Suspected pregnancy with IUCD in-situ or suspected pregnancy following contraceptive failure/MTP failure.
5.Vaginal bleeding / leaking.
6.Follow-up of cases of abortion.
7.Assessment of cervical canal and diameter of internal os. (6) crwp407.11
8.Discrepancy between uterine size and period of amenorrhoea.
9.Any suspected adenexal or uterine pathology / abnormality.
10.Detection of chromosomal abnormalities, foetal structural defects and other abnormalities and their follow-up.
11.To evaluate foetal presentation and position.
12.Assessment of liquor amnii.
13.Preterm labour / preterm premature rupture of membranes.
14.Evaluation of placental position, thickness, grading and abnormalities (placenta praevia, retroplacental haemorrhage, abnormal adherence etc.).
15.Evaluation of umbilical cord - presentation, insertion, nuchal encirclement, number of vessels and presence of true knot.
16.Evaluation of previous Caesarean Section scars.
17.Evaluation of foetal growth parameters, foetal weight and foetal well being.
18.Colour flow mapping and duplex Doppler studies.
19.Ultrasound guided procedures such as medical termination of pregnancy, external cephalic version etc. and their follow-up.
20.Adjunct to diagnostic and therapeutic invasive interventions such as chorionic villus sampling (CVS), amniocenteses, foetal blood sampling, foetal skin biopsy, amnioinfusion, intrauterine infusion, placement of shunts etc.
21.Observation of intra-partum events.
22.Medical/surgical conditions complicating pregnancy.
23.Research/scientific studies in recognised institutions.
7. On perusal of the form including the the important note quoted above, it becomes clear that the petitioner was under obligation to mention in the form as to why she decided to examine the pregnant women patients with ultrasound technique. While filling up the form, there are number of items which are required to be stricken off and for saying that they are not applicable to the case, word N.A. is conveniently used. It is common knowledge that the word N.A. Is synonym or abbreviation for "Not Applicable". So, (7) crwp407.11
while filling the form "F" on number of occasion, the work "N.A." is required to be used whenever the Doctor finds certain case as not applicable. Using of word "N.A." in the forms, thus does not amount to incomplete filling of the form. Besides this, form "F" is prescribed for genetic clinic, ultrasound center and genetic center. Therefore, some of the information required to be filled up, would be irrelevant for clinic from that of the centers. So, word "N.A." would be used for filling up such form. Apparently, therefore, using the word "N.A." while filling up the forms would not amount to maintaining incomplete record or would not amount to deficiency or inaccuracy in the information filled in the form.
8. Second allegation is that the petitioner did not fill up form "F" of the cases which she examined between 08.03.2011 to 26.03.2011. This in my view cannot be said to be a lapse or contravention on the part of the petitioner. The inspection was taken on 31.03.2011 and the record is required to be maintained and report of such maintained record should be made on or before 5th of every month. The cases, which are examined between 08.03.2011 to 26.03.2011, were thus the cases which were examined few days prior to the date of inspection. The report of the cases examined during the month of March, 2011 was supposed to be sent by 5th April, 2011. So, by that date, the petitioner was supposed to prepare the record of the cases which she examined during the month. In-deed, form "F" of the patients examined between 08.03.2011 to 26.03.2011 are not completely filled up. Only names of the patients were mentioned on them. Other
particulars are not mentioned. Nonetheless, latter part of form "F", namely, consent and declaration form, was properly filled up. It is, thus, seen that the information and diagnosis part of the form has remained incomplete. As said above, these particulars in the form could have been certainly filled up by 5th April, 2011, when the petitioner was supposed to send monthly report of the cases she attended during the month of April, 2011. As said above, in all the previous cases, the petitioner filled up the form.
9. The next allegation is that the petitioner did not keep consent/declaration form of the cases which she examined between April 2009 till 30.04.2010. The main part of form "F" of these cases, are available and were found in the clinic. It appears that the petitioner and many doctors are following a peculiar practice while filling up of form "F". Form "F" has two parts. The first part is particulars of patient and notes of diagnosis etc. and the second part is consent/declaration of the pregnant woman. These two parts are kept separately as a practice. The first part of the form is maintained as a Register. This consent/declaration is separately kept and maintained on loose sheet, though, it is integral part of form "F". It appears that this practice is followed because a copy of the consent/declaration of the pregnant woman is required to be given to her. Office copies of such consent/declaration are kept in a file separately. In this background one must appreciate what happened to the cases examined by the petitioner during 01.04.2009 till 30.04.2010, form "F" of such cases were found in the clinic, but consents/declarations were not found there. In view
of this, apparently there appears contravention of section 4 at the hands of the petitioner. Section 4 is quoted above and if one peruses the proviso to sub-section (3), it is seen that the Doctor is supposed to keep complete record in his clinic in the prescribed manner. The prescribed manner is, in case of ultrasound clinic the Doctor should keep the record (form "F") in the clinic. As said above, the consent/declaration of the pregnant women is part of form "F" and this part of form "F" of the cases examined during April 2009 to April 2010 was not found in the clinic. So, the petitioner apparently did not keep that part of record in her clinic. But the proviso further provides that such lapse on the part of the Doctor would amount to contravention of provisions of sections 5 & 6, unless the contrary is proved by the accused. Now, when the Competent Authority and his staff went for inspection of the petitioner's clinic on 31.03.2011 and when they did not find the record of the cases between April 2009 to April 2010, at such situation what is expected of the Competent Authority? What was required to be done at that stage in view this rather insignificant contravention? I think, in view of the proviso specially the term "unless contrary is proved", the Competent Authority or the staff assigned for the inspection must ask the Doctor who is likely to be made accused in a proposed case, as to what had happened to that part of the record. The petitioner could have certainly answered this question. If such answer is not found satisfactory, then alone the Doctor and in this case the petitioner could have been the accused of committing contravention of the provisions of the law.
There is nothing on record to show that the competent authority demanded production of this record and the petitioner or her staff did not provide the same. The petitioner ought to have been given an opportunity to produce the record. Since the record that was not found in the clinic was quite old there was possibility that it was kept at some other place. The reason why I expect meticulousness on the part of the Competent Authority and his staff is that the legislature has made provisions of this Act quite stringent for the accused. The Supreme Court in similar case in the judgment of Karnail Singh Vs State of Haryana (2009)8 SCC 539, observed as under:- "The law under the aforesaid Act (N.D.P.S. Act) being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory."
. In the light of this, I am inclined to hold that there is no prima facie case of contravention of Proviso to ss.3 of S.4 of the Act.
10. The last and the indeed least allegation against the petitioner is that she did not display a board in her clinic that pre- natal sex determination is not done in her clinic. The complainant admitted that such boards were found at two places. At the entrance of the clinic one board in Marathi was found. One more in English was found affixed on the door of ultra-sonography room. These boards were sufficient compliance of Rule 17, which provides that the ultrasound clinic should permanently display on board a notice in English and local language. The complainant somehow assumed that such board should be in English and in Marathi at one place. In view of this, there is no prima facie case seen on this
point in the complaint. It is not that the material that is produced on record would get enhanced during the trial, so that I should wait for the trial is over for recording the findings on the complaint.
11. Learned Public Prosecutor asserted that it is not proper for this Court to go into details of the material, which is collected so far for examining as to whether there is any case prima facie or otherwise against the petitioner. He placed reliance on the judgment of the Supreme Case in the case of State of Haryana & Ors. Vs. Ch. Bhajanlal & Ors., AIR 1992 S.C.604. He placed reliance on para 108 of the said judgment and I am inclined to quote the same as under :-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and produced above, we give the following categories of case by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
I Where the allegations made in the First Information Report or the complaint, even if, they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
II Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officer under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
III Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
IV Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
V Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused.
VI Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
VII Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
12. Learned Public Prosecutor asserted that in this case the Court should see the contents of the complaint and if the complaint discloses prima facie case, the same should be sufficient and the Court should not quash such complaint. However, sub-para No.I and III of para 108 counters this assertion. It is the case where uncontroverted allegations made and sufficient evidence collected in support of the same do not disclose commission of the offence.
13. Learned Public Prosecutor also placed reliance on the judgment of the Allahabad High Court in the case of Dr. Varsha
Guatam Vs. State of U.P. and others, in Criminal Misc. Writ Petition No. 5086 of 2006. He placed reliance para 25 of said judgment, which reads as under :-
"It has further been mentioned in paragraph 22 of the aforesaid law report that the mere mention or non-mention of a particular section in the FIR is not conclusive, and it is for the Court to determine at the appropriate stage as to the offence for which the charge may be framed. The relevant lines read as under :-
Similarly, the mentioning of a particular section in the FIR is not by itself conclusive as it is for the Court to frame charges having regard, to the material on record. Even if a wrong section is mentioned in the FIR, that does not prevent the Court from framing appropriate charges."
By no stretch of imagination, this judgment has nothing to do with the case in hand.
14. In view of the discussion above, the case filed against the petitioner does not disclose prima facie case and therefore should fail. Before I conclude this judgment, I think I must also hold that when the Competent Authority visits a clinic for inspection, after inspection he should record statement of the person against whom he intends to file the case. In such statement, such person would get ample opportunity to put-forward his or her explanation. The Competent Authority under this Act, in my view, should consider each case on its merits, examine it meticulously, preferably with the help of a Legal Advisor and then file complaint in the Court. At least in this case, it appears that the necessary care was not taken and the case was filed hurriedly, without examining its strength.
15. Hence, the Criminal Writ Petition is allowed in terms of prayer clause (B) and disposed of.
16. The sealed record, which was opened on the direction of this Court, shall be re-sealed in the presence of Shirastedar of this Court.
[A.V. NIRGUDE,J.]
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