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JHARKHAND HIGH COURT
Justice Subhash Chand J.
Kusum Prasad & Ors. – Petitioners
versus
State of Jharkhand & Anr. – Opp. Parties
Criminal Revision No. 1495 of 2022
(Against the order dated 28.11.2022 passed by the learned Addl. Chief Judicial Magistrate, Ranci in Complaint Case No. 6046 of 2019)
Decided on 11.10.2023
(A) Criminal Procedure Code, 1973 – Sections 239 and 240 – While framing charge or disposing discharge application of accused, court concerned has to go through allegations made in F.I.R. or in complaint – In case of a complaint while going through allegations made therein court concerned has to go through documentary evidence in support of allegations made in complaint under Section 200 of Cr.P.C. and also enquiry made under Section 202 of Cr.P.C. as well and also evidence adduced on behalf of complainant under Section 244 of Cr.P.C. – While framing charge, court concerned cannot scrutinize evidence on record and marshalling of evidence and appreciation of evidence is not permissible – Court cannot conduct mini trial at the time of framing charge – Only sufficient material is to be seen to proceed against accused persons, for offence alleged to proceed with trial. (Paras 14 and 16)
(B) Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 – Sections 17 and 23 – Indian Penal Code, 1860 – Sections 312, 315 and 511 – Criminal Procedure Code, 1973 – Sections 239 and 240 – Doing prohibited sex determination test – Rejection of discharge petition – Plea that complaint was not lodged by competent Authority was not raised before trial court and trial court concerned did not give any finding to this effect while passing impugned order – Court below has given finding that examining women patient through ultrasound procedure and not maintaining record in prescribed format create strong presumption regarding pre-natal diagnostic test by accused persons – Impugned order passed by court below affirmed. (Paras 26, 29, 33 and 34)
Result: Criminal revision petition dismissed.
JUDGMENT
The instant Cr. Revision is against the order dated 28.11.2022 passed by the learned Addl. Chief Judicial Magistrate, Ranchi in Complaint Case No. 6046 of 2019 whereunder the discharge application of the petitioners has been rejected.
2. The brief facts leading to this Cr. Revision are that the Complaint was filed on behalf of State represented through Dr. Vijay Bihari Prasad, Civil Surgeon cum Chief Medical Officer cum Nodal Officer, PC & PNDT, Ranchi against Dr. Kusum Prasad, Dr. Poonam Pandey, Sri Ravindra Kumar Singh, Staff/Incharge, Smt. Saloni Tudu, Staff/Incharge of R. Jeevan Jyoti Nursing Home, Upper Bazar, Maicky Road, Ranchi wherein the allegations are made that the Complainant Dr. Vijay Bihari Prasad, Civil Surgeon cum Chief Medical Officer, Ranchi is designated as authorized representative District Appropriate Authority, Ranchi under PC & PNDT Act, 1994 vide order No. 1308 dated 02.12.2019. The National Inspection and Monitoring Committee (NIMC) visited Ranchi on 20th September, 2019 for inspection of Ultrasound Clinic, Nursing Home. On 20.09.2019 at 10:10 a.m. the National Inspection and Monitoring Committee (NIMC) comprising therein Dr. Sabu M George, Dr. Sudesh Doshi, Dr. Binod Rath and Mr. Lakshay Malik along with Smt. Mary Markey (Executive Magistrate, Ranchi), Authorized representative of District Appropriate Authority PC & PNDT, Dr. Sudakshana Lala (State Nodal Officer PC & PNDT), Mrs. Rafat Farzama (State PC & PNDT Coordinator), Mr. Diwakar Kumar (State Monitoring and evaluation Coordinator), and Dr. Vijay Bihari Prasad, Civil Surgeon cum Chief Medical Officer, Ranchi had visited the premises of R. Jeevan Jyoti Nursing Home, Upper Bazar, Maicky Road, Ranchi.
3. Smt. Mary Markey, Executive Magistrate, Ranchi (the Authorized representative of the District Appropriate Authority PC & PNDT vide order No. 1055 dated 20.09.2019 for inspection of the premises and NIMC had found following violations of PC& PNDT Act, 1994 & PC & PNDT Rules, 1996 at R. Jeevan Jyoti Nursing Home as under:
(a) ANC register-
In ANC register, total 21 entries were found in the month of August 2019; but Form F’s maintained in the clinic was only 20 for the August 2019 which is violation of Rule 9 & Sec 4(3) (V) of the Act and also on offence U/s 312, 315 and 511 of I.P.C.
(b) Ultrasound Machine Data-
i. On examining the data of the Ultrasound machine, it was found that total 05 obsteric patients record and image were in the Ultrasound machine of the patients. In ANC register only name of patient Richa Arora was entered and rest of the names of the 4 patients were not shown, which is also violation of Rule 9 (1), (4) & Section 4 (3) (V), 5 and 6 of the PC & PNDT Act and also an offence U/s 312, 315 and 511 of I.P.C.
ii. Similarly, on 14.09.2019 out of 8 obstetrics records the images of the patients, namely, Sanjana, Khusboo, G. Kamya, Khusboo, Sabita, Pratibha Kumari and Negaris were in Ultrasound machine. But in Form F only Pratibha Kumari was maintained and in ANC register only one entry of Pratibha Kumari was dated 14.09.2019. No entry of the Form F of remaining 07 patients were found which is violation of Rule 9 (1), (4) & Sec 4(3) (V) of the PC & PNDT Act and also an offence U/s 312, 315 and 511 of I.P.C.
iii. On 11.08.2019 they found the total 10 obstetrics records and images for the patients. But no Form F or no entry in ANC register was found for these 10 patients. The same is in violation of Rule 9 (1), (4) & Sec 4(3) (V), 5 & 6 of the PC & PNDT Act and also an offence U/s 312, 315 and 511 of I.P.C.
iv In the month of September 2019, from 1st to 19th September, there were total 67 obstetric case records with image in the ultrasound machine but only 15 were entered in the Form F. Moreover, on the scrutiny of Ultrasound machine data for 01.09.2019 was found obstetric record and images of 06 other patients but no entry was of any patient in the Form F or ANC register. The same is in violation of Rule 9 (1), (4) & sec 4(3) (V
Important Points – (1) Court cannot conduct mini trial at the time of framing charge.(2) Doing prohibited sex determination test – Examining women patient through ultrasound procedure and not maintai....
The court affirmed that complaints under the PC & PNDT Act must be filed by designated authorities and that sufficient grounds are required for trial without conducting a full evidentiary examination....
Complaints under PNDT Act invalid if not filed by a required three-member authority.
The Pre-Conception and Pre-Natal Diagnostic Techniques Act permits complaints by authorized officers; complaints are valid if the appropriate authority delegates power according to statute without ne....
(1) Sex determination test – Summoning order – It is mandatory for person conducting Ultrasonography on a pregnant woman to keep complete record relating to Ultrasonography in clinic – Determination ....
Seizer of Sonography machine - Civil Surgeon is appropriate authority. Now, as per the amendment, Civil Surgeon can authorize any surgeon to carry out inspection.
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