These allegations have been taken into consideration by
discharge.
Clearly, for the alleged non-maintenance of the record and
the Magistrate, against the applicants, for rejecting their application for
contravention of the Rules, the applicants cannot be held responsible. At
the cost of repetition, it may be observed that, the complaint is silent as to
on what basis this responsibility is cast upon the applicants or any of them.
Moreover, a perusal of the complaint itself indicates that, actually the
allegations are levelled only against the accused no.1.
There are
averments in the complaint, wherein there is reference simpliciter to
'accused', without qualifying the reference by any accused number. The
complaint speaks of 'hospital of the accused' where 'he' is running 'his'
Sonography Centre, etc. The complaint also speaks of the complainant
and his team having inquired with the accused that, 'he' is conducting
ultrasound sonography. Thus, the use of singular expression makes it clear
that, the allegation is only against Dr. Jayesh Shinde, who has now been
referred as the accused no.1 in the complaint.
Dr. Pratidnya Jayesh Shinde,
Criminal Application No. 3044 of 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
V
1. Appropriate Authority,
CORAM : ABHAY M. THIPSAY, J.
DATE : 4TH DECEMBER 2013
Citation; 2014 ALLMR (cri) 681
Prosecutor, for the respondent no.2.
Since it was mentioned to me that, Mrs. Mantri appears for
the respondent no.1 i.e. the appropriate authority, the matter was kept back
repeatedly, for enabling her to remain present and make submissions,
opposing the Application. However, inspite of keeping the matter back
repeatedly, and even after it is called out in the afternoon session, Mrs.
Mantri is absent. As such, the Application is being decided after going
through the same, the annexures thereto, and after hearing Mr. Warma, the
learned Counsel for the applicants, and Mr. Palnitkar, the learned APP for
the respondent no.2.
3.
Rule. By consent, Rule is made returnable forthwith. By
consent, heard finally.
4.
The applicants are the accused nos.2 and 3, respectively, in
Regular Criminal Case No. 7 of 2012, pending before the Judicial
The allegation
Magistrate (First Class), Amalner [District : Jalgaon].
against them is that, they have committed offences under Sections 4(3), 5,
6, 29, read with Section 28 of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 [hereinafter referred
to as "the PCPNDT Act"], and Rules 9(1)(4), 10(1-A) of the Rules
framed thereunder, read with Sections 23 and 25 of the PCPNDT Act.
There are totally three accused in the said case, and the accused no.1 is Dr.
Jayesh @ Gulab Sukdevrao Shinde, husband of the applicant no.1 herein.
The applicants contended before the Magistrate that, the accusation
levelled against them was groundless, and prayed for discharge as
contemplated under Section 245(2) of the Code of Criminal Procedure,
1973. The said application was rejected by the learned Magistrate, by his
order dated 15-6-2012.
Being aggrieved thereby, the applicants have approached this Court,
invoking its inherent powers, praying that, the prosecution against them be
quashed.
5.
I have carefully gone through the complaint and other
annexures to the Application.
6.
Admittedly, the hospital known as 'Sukhanjani Hospital' is
run and owned by the accused no.1 - Dr. Jayesh Shinde. The said hospital
is having a Sonography Centre registered under the provisions of the
PCPNDT Act. It is not in dispute that, all the accused, including the
applicants, are medical practitioners.
If the complaint is seen, the allegations against the applicants
7.
are as follows :-
(a) That, the applicant no.1 is not a qualified
medical practitioner to handle sonography machine.
The applicant no.2 is also not qualified or
authorized to handle sonography machine. However,
inspite of that, the applicants used to handle
sonography machine and conduct sonography on
patients.
(b) That, the record, as required under the
provisions of the PCPNDT Act, and the Rules framed
thereunder, was not properly maintained. That, the
reports in respect of medical termination of
pregnancy and sonography were found to be not
tallying with each other and there were some
differences.
(c) That, in one "F" form, certain relevant details
were not filled in, and the portion was left blank.
8.
As regards the lack of qualifications on the part of the
applicants, to handle sonography machine, Mr. Warma, the learned
Counsel for the applicants, submitted that, this allegation is baseless, and
that, that it is baseless, is borne out from the record maintained by the
appropriate authority itself. He has drawn my attention to a copy of the
letter issued by the District Civil Surgeon, Jalgaon, to the Medical
Superintendent, Rural Hospital, Amalner, clarifying that, the applicants
have been authorized to handle the sonography machine. A copy of this
letter is annexed to the petition as Exhibit "D". The existence and/or
genuineness of this letter is not in question or under challenge. As a
matter of fact, even in the application for discharge preferred by the
applicants before the Magistrate, this point was taken, and the Additional
Public Prosecutor, while opposing the said application, had conceded that,
the Advisory Committee headed by the Civil Surgeon had taken the
decision to permit the applicants to operate sonography machine held by
the accused no.1 in his hospital. Mr. Warma has drawn my attention to the
say filed by the Additional Public Prosecutor, while opposing the
application for discharge made by the accused persons, wherein the
learned Additional Public Prosecutor, after conceding on this point,
strangely added as follows :
"
However,
seriousness
of
considering
the
the
offence,
application is objected and obliged."
9.
Even in the order dated 15-6-2012, passed by the Magistrate,
the Magistrate clearly accepted the position that, that the the applicants
were not authorized or qualified to handle sonography machine, was not
correct. The Magistrte, however, was of the view that, there were certain
other allegations against them, also. Holding so, he rejected the discharge
application.
The fact, however, remains that the allegation about the
applicants being not authorized or qualified to handle sonography
record available with the appropriate authority itself.
The second allegation is, in substance, about non-maintaining
10.
machine, is clearly erroneous, and that, that it is so, is borne out from the
of the records in the required forms. Admittedly, the hospital and the
sonography centre is owned and run by the accused no.1 - Dr. Jayesh
Shinde. Obviously, the responsibility of maintaining the record would be
cast upon him.
The complaint is silent, as to on what basis the
responsibility of maintaining the requisite records in a hospital and
sonography centre run and owned by the accused no.1 had fallen on the
applicants herein. These allegations have been taken into consideration by
discharge.
Clearly, for the alleged non-maintenance of the record and
11.
the Magistrate, against the applicants, for rejecting their application for
contravention of the Rules, the applicants cannot be held responsible. At
the cost of repetition, it may be observed that, the complaint is silent as to
on what basis this responsibility is cast upon the applicants or any of them.
Moreover, a perusal of the complaint itself indicates that, actually the
allegations are levelled only against the accused no.1.
There are
averments in the complaint, wherein there is reference simpliciter to
'accused', without qualifying the reference by any accused number. The
complaint speaks of 'hospital of the accused' where 'he' is running 'his'
Sonography Centre, etc. The complaint also speaks of the complainant
and his team having inquired with the accused that, 'he' is conducting
ultrasound sonography. Thus, the use of singular expression makes it clear
that, the allegation is only against Dr. Jayesh Shinde, who has now been
referred as the accused no.1 in the complaint.
12.
The allegation against the applicants is baseless and without
any substance. When such is the position, the prosecution against them
cannot be permitted to be continued. It would be in the interest of justice,
to quash the prosecution of the applicants.
13.
The Criminal Application is allowed in terms of prayer clause
ig
"B". Rule is made absolute accordingly.
( ABHAY M. THIPSAY )
JUDGE
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