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SUPREME COURT OF INDIA
Mohan M. Shantanagoudar, Vineet Saran, Ajay Rastogi, JJ.
Rekha Sengar – Petitioner
Versus
State Of Madhya Pradesh – Respondent
Special Leave Petition (Criminal) No. 380 of 2021
Decided On : 21-01-2021
Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 – Sections 6, 23 and 27 – Criminal Procedure Code, 1973 – Section 439 – Bail application – Rejection – In non-bailable cases, primary factors court must consider while exercising discretion to grant bail are nature and gravity of offence, its impact on society and whether there is a prima facie case against accused – Charge-sheet prima facie demonstrates presence of a case against petitioner – Sting operation was conducted upon order of Collector, by member of PC&PNDT Advisory Committee, Gwalior; Nodal Officer, PC&PNDNT and lady police Officers – From residence, an ultrasound machine with no registration or license, adopter and gel used in sex-determination, and other medical instruments used during abortion and sex-determination were seized – This constitutes sufficient evidence to hold that there is a prima facie case against petitioner – Prevalence of prenatal sex selection and feticide has also attracted international censure and provoked calls for strict regulation – Unrelenting continuation of this immoral practice, globally shared understanding that it constitutes a form of violence against women, and its potential to damage very fabric of gender equality and dignity that forms bedrock of our Constitution are all factors that categorically establish prenatal sex-determination as a grave offence with serious consequences for society as a whole – In present case, contrary to prevailing practice, investigative team has seized sonography machine and made out a strong prima facie case against petitioner – No leniency should be granted at this stage as same may reinforce notion that PC&PNDT Act is only a paper tiger and that clinics and laboratories can carry out sex-determination and feticide with impunity – Strict approach has to be adopted if we are to eliminate scourge of female feticide and iniquity towards girl children from our society – Petitioner can disprove merits of these allegations at stage of trial – Allegations in FIR and charge-sheet, as well disclosure statements made by petitioner and co-accused under Section 27 of Indian Evidence Act, 1872, reveal that prima facie, petitioner had a more active role in conducting alleged illegal medical practices of sex determination and sex-selective abortion – It is open for petitioner to request Trial Court to expedite her trial and decide it within a period of 1 year – Special Leave Petition dismissed. (Paras 2, 4, 5, 6, 7 and 8)
Facts of the case:
By impugned order passed by the Madhya Pradesh High Court on 7.12.2020 in MCRC No. 48262 of 2020, Petitioner’s application for bail under Section 439 of the Code of Criminal Procedure, 1973 has been rejected. gravamen of allegations against the petitioner pertain to violation of the provisions of the PC&PNDT Act. Section 6 prohibits use of pre-natal diagnostic techniques, including ultra sonography, for determining the sex of a foetus. Section 23 provides that any violation of the provisions of the Act constitutes a penal offence. Additionally, Section 27 stipulates that all offences under the said Act are to be non-bailable, non-compoundable and cognizable.
Findings of Court:
Observations on facts are made only to decide the present petition. Any of the observations made on facts will not come in the way of the Trial Court to complete the trial and decide the matter. The matter shall be decided by the Trial Court on its own merits based on facts.
Result : Special Leave Petition dismissed.
JUDGMENT :
Mohan M. Shantanagoudar, J.
1. By the impugned order passed by the Madhya Pradesh High Court on 7.12.2020 in MCRC No. 48262 of 2020, the Petitioner’s application for bail under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been rejected.
The record shows that an FIR was registered against the Petitioner and another person on 26.9.2020 in PS City Kotwali Morena, Madhya Pradesh alleging their involvement in pre-natal sex determination and abortion of female fetuses at their residence, without the required registration or license under law. The petitioner has been in custody since September 2020. Her first application for bail (Bail Application No. 1203/2020) was rejected by the learned IV Addnl. Sessions Judge, Morena on 01.10.2020, and her subsequent bail application before the High Court (MCRC-39649-2020) was dismissed as withdrawn on 14.10.2020. Charge-sheet was filed against the petitioner and the co-accused on 6.11.2020, for offences under the certain relevant provisions of Indian Penal Code, Medical Termination of Pregnancy Act, 1971 and under the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (‘PC&PNDT Act’). Trial is pending.
In the meanwhile, the petitioner again approached the High Court for grant of bail under Section 439, Cr.P.C. The High Court, vide impugned order dated 7.12.2020, has denied bail on facts. Aggrieved, the petitioner has approached this Court seeking bail.
2. The gravamen of the allegations against the petitioner pertain to violation of the provisions of the PC&PNDT Act. Section 6 prohibits the use of pre-natal diagnostic techniques, including ultrasonography, for determining the sex of a fetus. Section 23 provides that any violation of the provisions of the Act constitutes a penal offence. Additionally, Section 27 stipulates that all offences under the said Act are to be non-bailable, non-compoundable and cognizable.
It is well settled that in non-bailable cases, the primary factors the court must consider while exercising the discretion to grant bail are the nature and gravity of the offence, its impact on society, and whether there is a prima facie case against the accused.
3. The charge sheet prima facie demonstrates the presence of a case against the petitioner. A sting operation was conducted upon the order of the Collector, by the member of the PC&PNDT Advisory Committee, Gwalior; the Nodal Officer, PC&PNDNT; and lady police officers. The team used the services of an anonymous pregnant woman, who approached the petitioner seeking sex-determination of the fetus and sex-selective abortion. The petitioner accepted Rs 7,000 for the same whereupon the team searched her residence. From the residence, an ultrasound machine with no registration or license, adopter and gel used in sex-determination, and other medical instruments used during abortion and sex-determination were seized. This constitutes sufficient evidence to hold that there is a prima facie case against the petitioner.
4. To understand the severity of the offence, it is imperative to note the legislative history of the PC & PNDT Act. Reference may be had to the Preamble; which states as follows:
“An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.”
(emphasis supplied)
The passage of this Act was compelled by a cultural history of preference for the male child in India, rooted in a patriarchal web of religious, economic and social factors. This has birthed numerous social evils such as female infanticide, trafficking of young girls, and bride buying and
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