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2012 Supreme(Bom) 921
In the High Court of Bombay at Aurangabad
A.V. NIRGUDE, J.
Anant s/o. Trimbakrao Gitte
Versus
State of Maharashtra & Another
Criminal Application No.2577 of 2011
Decided on : 03-05-2012
For the Applicant:S.G. Chapalgaonkar, Advocate.
For the Respondents: R1, G.R. Ingole, A.P.P.
An employee's responsibility under the Act and Rules is determined by the code of conduct, and the complainant must carefully consider the facts before filing a case against medical practitioners.
Headnote:
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act - Accused alleged to have violated provisions of the Act - Sections 6, 23
Fact of the Case:
The applicant, accused No.1, is alleged to have allowed the conduct of Sonography to determine the sex of a foetus at a genetic counseling center, leading to a complaint under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
Finding of the Court:
The court found that the applicant, as an employee of the center, did not violate the code of conduct required by the Act and Rules, and was not present at the time of the incident. The court also criticized the complainant for hastily making the applicant an accused without proper consideration of the facts.
Issues: The issue revolved around whether the applicant, as an employee of the center, violated the provisions of the Act by allowing the conduct of Sonography to determine the sex of a foetus.
Ratio Decidendi: The court held that the applicant, as a consulting radiologist and not the owner or regular employee of the center, was not obligated to be present at the time of the incident and did not violate the code of conduct. The court also criticized the complainant for hastily making the applicant an accused without proper consideration of the facts.
Final Decision: The criminal application was allowed, and the case against the applicant was quashed.
The applicant is accused No.1 in R.C.C. No.302 of 2010, which is pending in the Court of Judicial Magistrate, First Class, Parali Vaijnath, Dist. Beed. One Dr.Kailas Shiraman Dudhal, Medical Superintendent, Sub-District Hospital, Parali Vaijnath, is the complainant. He alleged that the applicant and other two accused have committed various offences punishable under provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
2. The facts leading to this complaint are as under.
Other two accused are husband and wife and are medical practitioners of Parali Vaijnath. They established genetic counseling center cum Sonography clinic at Parali Vaijnath. Prior to April, 2007, Accused No.2 Dr. Mundhe made an application for registration of such center under the provisions of the Act. While providing information in form "A" for registration of the center, accused No.2 mentioned that the applicant has agreed to work as consulting radiologist in the center and mentioned his name in the application. The Civil Surgeon, District Hospital, Beed after following due procedure issued certificate of registration of accused No.2 on 19th April, 2007. The registration was made valid for five years from the date of registration. The complainant in his complaint narrated the incident in following manner.
He said that on 19th September, 2010, at about 11.30 a.m. one Smt. Prerna a pregnant woman and her relatives went to the center and met accused Nos.2 & 3 (Dr. Mundhe and his wife Dr. S. Mundhe). She told them that she wanted to know sex of her foetus. Her relatives too supported her request. Accused Nos.2 & 3 then took Smt. Prerna to Sonography room and accused No.3 examined Smt. Prerna Sonographically and told her that she was carrying a male child. Accordingly, accused No.3 prepared a report and handed it over to Smt. Prerna and her relatives. Smt. Prerna then informed this incident on the same day to one Adv. Varsha Deshpande, who then reported the same to Civil Surgeon and Collector of Beed. The Collector and the Civil Surgeon directed the complainant to record statements of Smt. Prerna and her relatives and also inspect the center. Accordingly, on 21.09.2010 at around 4.00 p.m. the complainant and others visited the center. Here they recorded statement of the applicant and other two accused. The complainant asserted that as per his office record the center was registered in the name of applicant and it was he who was authorized to operate the Sonography machine at the center. He asserted that during the incident described above, the applicant did not conduct Sonography and thereby allowed accused No.3 to conduct Sonography and thereby helped her in disclosing sex of foetus of Smt. Prerna. The applicant moved this application after he received summons of the Court. He asserted that though he had given consent to accused No.2 for visiting the center as consulting radiologist, he had no occasion to visit the center. He also stated that he had nothing to do with the center and had no involvement in the incident. He also said that the consent he had given to accused No.2 was withdrawn etc.
3. The question is -whether the applicant by remaining absent from the center on the date of incident allowed accused No.3 to conduct Sonography on the decoy patient and thereby helped her in finding sex of foetus? The answer is in the NEGATIVE.
4. In order to appreciate the submissions made, one must note the provisions of the Act and Rules. The relevant provisions of the Act are Sections 6 and 23. They read as under :-
"6. Determination of sex prohibited.-On and from the commencement of this Act,-
(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, prenatal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;
(b) no person shall conduct or cause to be conducted a
