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2013 Supreme(Bom) 1805
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
T.V. NALAWADE, J.
Dr. Saraswati w/o. Sudam Munde & Others
Versus
The State of Maharashtra & Others
Criminal Application No. 3350 of 2013, 4774 of 2012 & 1055 of 2013
Decided on: 11-09-2013
Advocate Appeared:
For the Applicants:R.G. Hange, P.S. Paranjpe, Advocate.
For the Respondents:D.R. Kale, APP, R2, R.A. Tambe, Advocate.
The judgment establishes the seriousness of offenses under the PCPNDT Act and the MTP Act, emphasizing the prohibition of sex selection and illegal abortion, and the impact on the female birth rate.
Headnote:
PCPNDT Act - Offences under PCPNDT Act, 1994 - Sections 3-A, 4(5), 5, 6, 8, 19 - MTP Act, 1971 - Sections 3, 4-B, 6 - R.C.C. No. 163/2012, C.R. No. 42/2012 - Summary of Acts and Sections
Fact of the Case:
Dr. Smt. Mundhe and Dr. Shri. Mundhe, practicing in Mundhe Hospital, were accused of illegal sex determination and abortion resulting in the death of a woman. The cases arose from the same incident, and both accused were involved in the offenses.
Finding of the Court:
The court found strong prima facie evidence of the accused's involvement in illegal sex determination and abortion, leading to the death of the woman. The court also noted the decline in the female birth rate in the district due to female foeticide.
Issues: The court considered the cancellation of bail, the involvement of the accused in the offenses, and the decline in the female birth rate in the district.
Ratio Decidendi: The court held that the accused's actions violated the provisions of the PCPNDT Act and the MTP Act, leading to a strong prima facie case for the offenses. The decline in the female birth rate further supported the seriousness of the offenses.
Final Decision: The court rejected the bail applications, canceled the bail granted to Dr. Smt. Mundhe, and ordered her arrest. The court held that no bail could be granted to the accused due to their involvement in the offenses and the impact on the female birth rate in the district.
1. Rule. Rule made returnable forthwith. Heard all the sides by consent for final disposal.
2. The first application is filed by Dr. Smt. Mundhe in R.C.C. No. 163/2012, which is filed by Appropriate Authority for offences punishable under sections 3-A, 4(5), 5, 6, 8 and 19 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'PCPNDT Act' for short) and also under the Rules framed under this Special Act. The second application is filed by the State against Dr. Smt. Mundhe, for cancellation of bail, granted to her by Additional Sessions Judge, Ambajogai, District Beed in C.R. No. 42/2012 registered in Parli City Police Station. The chargesheet is filed in this crime for offences punishable under section 304, 312, 314, 315, 316 and 201 r/w. 34 of Indian Penal Code and also for offences punishable under section 3, 4-B and 6 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'MTP Act' for short). The chargesheet is also filed for the offences punishable under the provisions of PCPNDT Act. The third application is filed for bail by Dr. Shri. Sudam Mundhe in C.R. No. 42/2012 registered in Parli City Police Station for aforesaid offences, in which chargesheet is filed against this applicant also.
3. Dr. Smt. Mundhe and Dr. Shri. Mundhe were together practicing in their Mundhe Hospital from Parli as doctors. R.C.C. No. 163/2012 and C.R. No. 42/2012 have arisen out of the same incident. In both the matters Smt. Mundhe and Shri. Mundhe are accused and so, all the three applications are being decided together.
4. Dr. Shri. Mundhe is General Orthopedic Surgeon. Dr. Smt. Mundhe is Obst. and Gynecologist. At the relevant time, they owned and run Mundhe Hospital in Parli. In R.C.C. No. 302/2010, which was filed under the provisions of PCPNDT Act prior to the incident in question, the sonography machine of this hospital was seized by Appropriate Authority and they were prevented from using pre-conception and pre-natal diagnostic techniques. The permission given to this hospital for termination of pregnancy was also cancelled by Appropriate Authority by order dated 6.9.2011. One more case of illegal termination of pregnancy, abortion was filed against them in the past.
5. On 17.5.2012 one Smt. Vijaymala Patekar, a married woman, was brought to this hospital by her husband, accused No. 3 from C.R. No. 42/2012. She was having four daughters and she was again pregnant. This couple wanted to determine sex of the foetus. After clinical examination of this lady, Dr. Shri. Mundhe referred this lady to Padmawati Hospital from Jalgaon of Dr. Kolhe for sex determination. Dr. Kolhe is also made an accused in C.R. No. 42/2012. In Mundhe Hospital, there was arrangement for taking such patients from Parli to Jalgaon and then brining them back to Mundhe Hospital for abortion. Case Nos. 473/2011 and 505/2011 were already filed against Dr. Shri. Kolhe in Jalgaon by the Appropriate Authority under PCPNDT Act. His sonography machine was seized. He was also prevented from using such diagnostic techniques. In spite of these circumstances, Dr. Kolhe was using one sonography machine and in the present case, he determined the sex of foetus of Vijaymala. It was female foetus and it's age was around 18 to 20 weeks.
6. When Smt. Vijaymala was brought back to Mundhe Hospital after sex determination, medicines were given and operation was performed for abortion on 18.5.2011. The foetus was destroyed by burning it in the field of Dr. Shri. Mundhe by his employees. Smt. Vijaymala died due to this operation on 18.5.2011 itself. Dr. Shri. Mundhe informed to Parli City Police that Vijaymala had come to the hospital as she had bleeding (PV) and she died in his hospital. Neither in the hospital of Dr. Kolhe, nor in the hospital of Shri. Mundhe, complete and correct record in respect of Smt. Vijaymala was created. Dr. Mundhe informed to police that the pieces of foetus were
