Address by a Preacher: Techniques for Conceiving a Male Child – Does It Constitute Advertisement under the PCPNDT Act, and Can the Preacher Be Prosecuted?

Facts giving rise to the petitions in short are that respondent No. 1 happens to be a public speaker (Kirankar). Kirtankar is person who normally gives speeches in lucid manner before the gathering and people at large assembled for discourse. Kirtankars have influence over people in rural and semi-urban areas. Respondent as per the allegations in his Kirtans had addressed gathering about so called techniques as to how to conceive a male child by giving certain extracts from the religious and also from some books on Ayurveda. Said speech was given on 04-01-2020 and on the same day it was also uploaded on the 'youtube' channel. It is stated in the said speech that if husband and wife come in contact on the even-dates then wife conceives a male child if it is on the odd dates then it would be a female child. If the contact takes place at inauspicious time then child born spoils the name of family. He also further stated that even after six months if a fetus in womb takes a round on right side it turns to be a male child and takes round of left side then it turns to be a female child by giving some examples.

{Para 9}

20. This definition clearly speaks as to what amounts to sex selection. Considering definition under Section 2(O) we need to consider whether section 6(c) is attracted prima-facie. Section 6(c) clearly speaks that such propagation whether before or after conception. In this case if the words are taken as it is certainly may appear to be advertisement or propagating technique of sex selection. The words advertisement propagation are used in wide sense and needs to be taken in their wide meaning. It cannot be restricted only to the extent of diagnostic centre, clinic but anything that propagates or tries to impose upon the message that by use of certain techniques sex of foetus can be selected. Learned Sessions Court further erred in that there has to be clinic diagnostic centre or modern technique of which advertisement is made. In this case the respondent has not only advertised but has claimed the information about the techniques to be correct and having scientific base. He also supports that such texts has religious sanctity which make it more serious looking to the people before whom speeches are made.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 546 of 2021, 

Decided On: 16.06.2023

Ranjana Pagar Gawande  Vs.  Nivrutti Kashinath Deshmukh and Ors.

Hon'ble Judges/Coram:

Kishore C. Sant, J.

Citation: MANU/MH/2147/2023.

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When prosecution under PCPNDT Act is liable to be quashed?

So far as Rule 9 of said Rules is concerned, it provides that before
conducting   pre­natal   diagnostic   techniques/test/procedure,   the   written
consent   as   specified   in   the   Form   and   in   a   language   known   to   person
undergoing such procedure shall be obtained from such person.  As discussed,
the Committee has found that though the petitioner was found to following
the procedure to obtain the consent of woman in the prescribed proforma but
certain information found to be not recorded.  What has been observed by the
Committee   that   while   filling   up   the   Form   G   certain   information   such   as
complete address, mobile number was not recorded.  Not obtaining consent in
prescribed proforma invites violation of Section 5 as well as Rule 9 of the said
Act & Rules.  However, unintentional & inadvertent mistakes in not recording
certain details as discussed above itself not amounts to violation of Section 5
r/w Rule 9 of the said Act & Rules framed thereunder.  
22. In the light of discussion made herein above, we are of the view
the prosecution initiated against the petitioner is not sustainable in law and
the   complaint   filed   against   the   petitioner   is   liable   to   be   quashed   as   the
allegations made in the complaint together with documents filed therein taken
at its face value and accepted in their entirety do not constitute any offence as
alleged.  The allegations made are so absurd that no prudent person can ever

reach to conclusion that there are sufficient grounds to proceed against the
petitioner.  We are, therefore, inclined to invoke powers u/s 482 of the Code
of Criminal Procedure to quash the complaint filed against the petitioner.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1381 OF 2015
Dr. Sai W/o Santosh Shiradkar,

V
 State of Maharashtra,

CORAM :  A. V. NIRGUDE  & 
V.L. ACHLIYA, J.

DATED   :  27.09.2016. 

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Whether doctors can be prosecuted for minor errors in record keeping under PCPNDT Act?

 If   we   consider   the   discrepancies   as   noted   above,   then   it   is
nowhere the case of respondent No. 2 that, the petitioner has not maintained
the record as mandatorily required under the provisions of the said Act &
Rules thereunder.   What has been alleged is certain omissions, mistakes or
lacunae on the part of petitioner in maintaining the record as envisaged under
the provisions of the said Act & Rules. The discrepancies as noted are mainly
refers to omission to mention full address, mobile number etc. of patients
underwent sonography.  If we consider the over all discrepancies noted by the
Vigilance Committee, then same cannot be termed as act committed with
intention to violate the provisions of the said Act & Rules made thereunder.  In
fact, there are no allegations against the petitioner that the discrepancies
noted were made with ulterior motive or with a view to suppress certain
information  about  patients or to misuse  the  ultrasonography machine  for
determination of sex of foetus.  
15. The   petitioner   has   started   ultrasonography   centre   in   the   year
2013.   It   is   nowhere   the   case   of   the   respondent   No.2   that   she   has   not
maintained   the   record.   The   allegations   made   against   the   petitioner   that,

certain information which was to be recorded in the particular manner has not
been recorded.  The omissions of a nature not to mention the mobile number
of the patient, full address of the patient with mobile number, difference in
signature of the Doctor & other inadvertent mistakes cannot be termed as a
discrepancy or act of inaccuracy amounting to violation of the Sections 4, 5 or
6   or   29   of   the   PCPNDT   Act.     The   petitioner   has   offered   satisfactory
explanation to each & every deficiency in Inspection Report. 
Thus, if we read the provisions of sections 17, 17­A and 28 of the
said Act together, then the role of the Appropriate Authority is very important.

The Appropriate Authority has to act as an investigator to inquire into the
allegations of violation of the PCPNDT Act and Rules thereunder either on the
basis of complaint received as well as to act  suo motu.   The role of the
Appropriate   Authority   is   not   just   to   receive   the   complaint   and   file   the
proceeding in the Court of law.   Section 17(4)(c) specifically provides that,
one   of   the   function   of   the   Appropriate   Authority   is   to   investigate   the
complaints of breach of provisions of the act and the rules made thereunder
and   take   legal   action.     Section   17(4)(e)   provides   that,   the   Appropriate
Authority  to take legal action against the use of any sex selection technique
by any person at any place, suo motu or brought to to its notice or also to
initiate independent investigation in such matter.   Thus, to investigate the
complaints received against the persons violating the provisions of PCPNDT
Act   is   the   job   of   Appropriate   Authority.     Outcome   of   such   investigation
provides   basis   either   to   drop   the   proceeding   or   to   initiate   appropriate
proceeding   which   includes   initiation   of   criminal   prosecution   by   filing
complaint u/s 28 of PCPNDT Act.  Mere report or complaint or information
received cannot be sole basis to prosecute the person.   If the complaint is
inquired   and   investigated   results   into   collection   of   evidence   sufficient   to
prosecute the person for violation of the provisions of PCPNDT Act, then only
criminal proceeding is expected to be filed u/s 28 of the PCPNDT Act.  There
appears to be specific legislative intent behind introducing Section 17­A in the
PCPNDT   Act   (incorporated   by   amended   act   of   2003)   to   vest   full­fledged
powers of inquiry and Appropriate Authority to investigate the matter.   Thus,
the role of the Appropriate Authority is much more than the authority to file
complaint.  

18. In the light of role of the  Appropriate Authority discussed as
above, it was expected on the part of the Appropriate Authority to have
investigated the information received in the form of inspection report from the
Vigilance Squad to find out there was any violation of provisions of PCPNDT
Act on the part of the petitioner.  It was expected on the part of Appropriate
Authority to have summoned the persons referred in the inspection report to
verify as to whether the petitioner had complied with the requirement of
obtaining written consent as contemplated under Section 5 r/w Rule 9 of the
PCPNDT   Act   and   there   was   any   violation   in   observing   the   mandatory
conditions.   Simply certain lacunae, omission detected in the consent form
could not be the basis to prosecute the person.  By exercising the powers u/s
17­A,   certainly   the   Appropriate   Authority   could   have   summoned   those
persons,   recorded   their   statement   and   conducted   further   investigation   as
deemed fit and proper to collect the evidence to sustain the prosecution in the
Court   of   law.     However,   in   the   instant   case,   it   appears   that   Appropriate
Authority has failed to discharge its statutory obligations as contemplated u/s
17(4) of PCPNDT Act i.e. to investigate the report of inspection received from
Vigilance Squad which restricts to noting of certain lacunae, omission and
certain mistakes in maintenance of record.   The report of inspection itself
could not be the basis to arrive at the conclusion that such lacunae, omission
and mistake were deliberate and acts of omission and commission committed
on the part of the petitioner with an intention to violate the provisions of
PCPNDT Act.   It was also expected on the part of Appropriate Authority to
look into explanation given by the petitioner vide reply dt. 09.03.2015 and
opportunity of personal hearing and then to arrive at just decision.   The

communication dt. 15.04.2015 which, in fact is an order communicated to the
petitioner  as to suspension of sonography centre finds no reasons for taking
such action.  The expected role of Appropriate Authority u/s 17(4) of PCPNDT
Act is to probe the matter and then to arrive at a proper decision as to
whether prima facie case of violation of the provisions of the PCPNDT Act and
Rules   framed   thereunder   is   made   out   or   not.     In   the   case   of  Dr.   Uma
Shankarrao Rachewad Vs. Appropriate Authority reported in 2012 Cri.L.J.
2634 decided by one of us (Coram : A. V. Nirgude, J.), dealing with the case
more or less identical to the facts of the case, has observed in para 14 as
under: 
“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 put­forward 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.” 
. It appears that in the instant case what has been observed as
above, not followed.  The case has been instituted solely on the basis of report
of the Vigilance Committee without investigating the matter and collecting the
requisite material to prosecute the petitioner.  The Appropriate Authority has
failed to discharge its obligation as contemplated u/s 17(4) of PCPNDT Act
before lodging the complaint against the petitioner.  It is not out of place to
observe that sometime such casual approach of the Authority to invariably file

complaints without proper inquiry, investigation & due application of mind
leads to unnecessary criticism of the provisions of PCPNDT Act & Rules framed
thereunder by the persons from the field of Medical profession.  It is expected
that the legal action must follow based upon sufficient material to establish
that there was a violation of provisions of PCPNDT Act and Rules thereunder.
Inadvertent   mistakes   committed   during   the   course   of   maintaining   record,
lacunae and omission in filling up certain information in detail in the requisite
forms needs to be considered in a proper perspective.   Only after holding
inquiry, if it is found that such lapses have been committed with any intent or
motive to misuse the  techniques and such professioner indulges into acts
prohibited   under   the   law,   then   stringent   provisions   of   such   act   must   be
invoked   and   Appropriate   Authority   shall   ensure   that   such   persons   are
punished.  Mistakes committed without any criminal intent and merely in the
nature of procedural lapses needs to be properly understood before taking
drastic action of initiating criminal prosecution against a person in the field of
Medical profession.  In an appropriate case, if the authority is satisfied that the
mistakes  were   inadvertent   and  there  was  no  criminal   intent  behind  such
procedural mistakes then such person be asked to rectify the mistakes and if
necessary, such person be appropriately given understanding not to commit
such procedural lapse. If there is persistent defaults and lapses on the part of
such person, then recourse to stringent provision to prosecute such person
may be taken.  If such precautions are taken before lodging the prosecution
against a person in the field of Medical profession, it would help to remove
the fear in the mind of medical profession doing their work with utmost
honesty, sincerity and due observance of medical ethics and code of conduct

laid   down   under   the   PCPNDT   Act   being   subjected   to   face   unnecessary
humiliation, harassment and criminal prosecution. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1381 OF 2015
Dr. Sai W/o Santosh Shiradkar,

V
 The State of Maharashtra,
through the Appropriate Authority
Under PCPNDT Act,
CORAM :  A. V. NIRGUDE  & 
V.L. ACHLIYA, J.

DATED  :  27.09.2016. 

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When prosecution under PCPNDT Act should not be quashed?

 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.
16. 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.   
17. 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.                                  
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL APPLICATION NO.3966 OF 2013
Dr. Sau. Nirmala w/o Ramprasad Bajaj,

       VERSUS             
 The State of Maharashtra,
  
              CORAM:  A.I.S. CHEEMA, J.
  
   DATE OF PRONOUNCING JUDGMENT: 9TH MAY, 2014.
Citation:2016 ALLMR(CRI)1034

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When Complaint filed under PCPNDT Act can be dismissed?

In the result, I find that the complaint, having not been filed
either by the appropriate Authority or an officer authorized by the
appropriate Authority, ought to have been dismissed by the learned
Magistrate.     Both   the   Courts   below   have   not   considered   these
essential requirements of the Act, 1994 and passed the orders which
are not sustainable in law.
13] In the circumstances, I am of the view, that the application
deserves   to   be   allowed.     Accordingly,   the   complaint   filed   by   Dr.
Ramteke  against the present applicant stands rejected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Application (APL) No.520 of 2013.
Dr. Sandhya Arun Kulkarni,

Versus
The State of Maharashtra

Coram :  S.B. Shukre, J.
    Dated  : 26th February, 2015.
Citation; 2016 ALLMR(CRI)963

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When prosecution under PCPNDT Act should not quashed under S 482 of CRPC?

 As analyzed, the trial Court has not taken
cognizance on mere perusal of complaint and statements
of two witnesses. It has applied mind on relevant record
also. Hence, the judgment of Pepso Foods Ltd. (supra) is of no
assistance to the petitioner in the present case.
 In Sharad Kumar Sanghi (supra), the Apex Court
considered the words "sufficient ground for proceeding".
It means that grounds should be made out in the
complaint for proceeding against the respondent. In my
view, neither the allegations in the complaint are vague
nor it can be said that it does not constitute an offence
under the Act. There were sufficient grounds for
proceeding against the petitioner and, therefore, this
judgment has no application. Same is the view about the
judgment of Monju Roy (supra). The said matter also deals
with omnibus statement. In the present case, there are
specific allegations against the petitioner in the
complaint. Hence, this judgment is of no help to the
petitioner. In D.P. Gulati (supra), the Apex Court was dealing
with vexatious complaint. At this stage, it cannot be said
that the complaint is vexatious. In Rishipal Singh (supra), the
Supreme Court dealt with the scope of Section 482 CrPC.
No doubt, powers under Section 482 CrPC are wide and
proceedings can be quashed if certain parameters are
satisfied. However, it is noteworthy that the Apex Court
in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another),
laid down broad principles for exercise the jurisdiction
under Section 397/482 CrPC. It is held that the principles
to be considered for proper exercise of jurisdiction,
particularly with regard to quashing of a charge either in
exercise of jurisdiction under Section 397 or Section 482
CrPC or together, as the case may be, can be
summarised. Though there are no limits of the powers of
the Court under Section 482 CrPC but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 CrPC should be exercised very sparingly and
with circumspection and that too in the rarest of rare
cases. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, as it an abuse of
the process of court leading to injustice. It is neither
necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case
of acquittal or conviction. In exercise of its jurisdiction
under Section 228 and/or under Section 482, the court
cannot take into consideration external materials given
by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his
acquittal. The court has to consider the record and
documents annexed with by the prosecution. Quashing of
a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied,
the court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial
stage. The court is not expected to marshal the records
with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima
facie.
27. If the litmus test of the judgment in Amit Kapoor
(supra) is applied in the factual matrix of the present
matter, it cannot be said that the court below has
committed any legal error in taking cognizance of the
matter. Thus, no interference is required by this Court at
this stage.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Criminal Case No. 5967/09
Dr.(Smt) Pooja Agrawal
Vs.
Shivbhan Singh Rathore & Anr.

 O R D E R
 (14/ 10 /2015)

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When prosecution under PCPNDT Act should not be quashed?

 In view of the discussion made above, this
Court has no hesitation to observe that for ensuring
effective implementation of the aforesaid provisions strict
compliance of the aforesaid provisions needs to be made.
Thumb impressions need to be attested as it involves
identification of pregnant women. The declaration form
needs to be signed by the doctor conducting procedure
also as the things are required to be explained to
pregnant woman by the doctor. Referral slips need to be
maintained and preserved and unless it is self referred
case the person conducting processes and the persons
who own the Centre need to insist for production of
referral slip and if it not done it needs to be presumed
that there is contravention of the provisions. Blank pages
of forms cannot be kept in the book as it gives opportunity
for creation of record subsequently. If record is not
created and maintained as per aforesaid provisions, the

Court has to go with the presumption that there is
contravention of the provisions and the offence is
committed unless the accused rebuts the presumption. In
view of the facts of both the cases this Court has no
hesitation to hold that the Magistrate has not committed
error in ordering issuance of process. Thus there is no
possibility of quashing of the proceedings filed against the
applicants. As the offence is committed, there is no
question of release of sonography machine in the first
case. It is up to the authority to take decision on the
permission given for the use of the machine and unless
there is permission, the accused cannot be allowed to get
the custody of the machine. It is open to the authority to
make appropriate order in that regard.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.680 of 2012

Dr. Prabhakar s/o Ganpatrao Tawshikar

Versus
The State of Maharashtra


 CORAM: T.V. NALAWADE, J.

 DATE : 5th NOVEMBER 2014
Citation;2014(4)BOMCR(CRI)700

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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.
  
   DATED: 9TH MAY, 2014.
Citation;2014(3) BomCR(CRI)798

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When prosecution under PCPNDT Act should not be quashed?

The learned Public Prosecutor referred to the copy of the complaint, Para 4, to submit that the F Forms which were maintained by the Petitioner were found to be incomplete and in column Nos. 12 to 15 in advance "Nil" was typed, which creates suspicion. Reference was made to the copies of F Forms which are available in the Petition and which when read with copy of the complaint, clearly show that material information regarding number of children, age, last menstrual period, had not been filled. As per the complaint, one Rekha Pramod Borse was examined under sonography machine but in her F Form, column Nos. 12 to 15 were shown as "Nil". Full address of the patient was also not given. Referring to the complaint and copies of Forms available on record, Public Prosecutor submitted that there were incorrect filling up of the columns and the material information like number of children was left blank and clearly penal provisions of the Act are applicable.

 In the present matter, the record shows that the evidence before the charge was recorded by the J.M.F.C. who then passed orders on 19th September, 2013 directing framing of charge and on same day the charge was framed. Record also shows that after framing of charge, further evidence has also been recorded. The learned Public Prosecutor referred to the case of Sujit Govind Dange (Dr.) and another vs. State of Maharashtra and others, reported in MANU/MH/1266/2012 : 2013(2) Bom.C.R. 351, to submit that Act and Rules require maintaining of complete records and it is irrelevant whether the deficiencies are minor or major and if deficiencies are there, penal provisions are attracted.

 Considering the rival submissions and the Aims and Objects of the Act and the scheme, as is evident from the Act and Rules, and the Judgment of the Division Bench referred by the Public Prosecutor, I find no substance in the arguments for Petitioner. I find that when in this matter evidence after charge has already been recorded, it would not be appropriate for this Court to interfere and quash the proceedings. Considering the Complaint and documents in support of the Complaint, Proviso of Section 4(3) and other provisions of the Act are clearly attracted. When evidence after charge has also been recorded, no question of discharge as claimed arises.

Equivalent Citation: 2014ALLMR(Cri)3466, 2014(3)BomCR(Cri)728

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 985 of 2013

Decided On: 09.05.2014

Appellants: Ravindra
Vs.
Respondent: The State of Maharashtra

Hon'ble Judges/Coram:A.I.S. Cheema, J.

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Procedure to be followed by magistrate in complaint under PCPNDT Act

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.
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

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When prosecution under PCPNDT Act should not be quashed?

Justice A.I.S. Cheema, dismissing the petition for quashing of the allegations, said 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.”

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. 

The Court dismissed the petition on the grounds that in such serious matters, it would be inappropriate to interfere when prima facie case is made out. 

The Judge rightfully considered the aim and objectives of the Act which pertained to prohibition of abuse of these prenatal diagnostic techniques. Strict compliance of every provision of the Act and the Rules is required and the Court fairly reiterated the same.

BENCH AT AURANGABAD
                                       
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
   CRIMINAL WRIT PETITION NO.198 OF 2013

Dr. Dattatraya s/o Keshav Kanade,

                                ...PETITIONER 
       VERSUS             
1) The State of Maharashtra,   

              CORAM:  A.I.S. CHEEMA, J.
  
   DATE OF PRONOUNCING JUDGMENT: 9TH MAY, 2014.
    Citation: 2014ALLMR(Cri)3977                             

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Guidelines for health Authorities prior to filing of cases against doctors under PCPNDT ACT

Herewith  please  find  enclosed  a  model  Form  fully
filled as per the Pre Conception and Pre Natal Diagnostic
Techniques  (Prohibition  of  Sex  Selection  Act)  1994  for
information  and  guidance  of  all  appropriate  Authorities.
The  same  may  please  be  circulated  amongst  the
concerned  owners/radiologists/Medical  geneticists  etc
working under your jurisdiction.”
A   copy   of   above   instructions   is   placed   on   record
which is marked ‘A’ and is also quoted above for ready
reference. It is thus clear that the Additional Director
Health   Service   and   State   Appropriate   Authority   of   the
State Government has already noticed that in some cases                                                                 
even   if   flimsy   mistakes   were   committed   by   doctors,
owners of clinics, the local appropriate authorities are
sealing   machines   and   prosecuting   them.   It   is   also
recognized   that   this   kind   of   action   amounts   to
harassment   of   medical   practitioners.   In   my   earlier
orders   I   have   very   specifically   opined   that   since   the
provisions of this Act are very strict, the appropriate
authority   before   taking   action   against   the   medical
practitioner must act meticulously.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  BENCH AT AURANGABAD
 CRIMINAL APPLICATION NO.3500 OF 2011
 Dr.   Alka   w/o   Anant   Gite,  
V 
 State of Maharashtra 
CORAM  : A.V.NIRGUDE, J.
DATE   : 11th May 2012

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Procedure to be followed for inspection of clinic under PCPNDT Act

 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.

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 Bom
Criminal writ petition No.407/2011

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