DR KALPESH J PATEL ­ Versus STATE OF GUJARAT & 1 ­


SCA/6625/2011 1/98 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 6625 of 2011
with
SPECIAL CIVIL APPLICATION No. 7234 of 2011
For Approval and Signature:
HON’BLE SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4
Whether this case involves a substantial question
of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ? No
5 Whether it is to be circulated to the civil
judge ? No
=========================================================
C_SCA_6625_2011_j_3
=========================================================
Appearance : (In both SCAs)
MR MB GANDHI, MR CHINMAY M GANDHI for Petitioner
MR RASHESH RINDANI, ASSTT.GOVERNMENT PLEADER for Respondent No.1
MR NIKHILESH J SHAH for Respondent No.2
=========================================================
CORAM : HON’BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 19/09/2011
COMMON C.A.V. JUDGMENT
1. As the parties to these petitions and the factual
matrix are the same and the issues involved in
both petitions are overlapping, it is found
appropriate to decide the petitions, which were
SCA/6625/2011 2/98 JUDGMENT
heard together, by a common judgment.
Special Civil Application No.6625/2011:
2. By preferring this petition under Article 226 of
the Constitution of India, the petitioner has
challenged the communication dated 13.05.2011,
whereby the explanation dated 01.05.2011 offered
by the petitioner to the notice dated 24.04.2011,
issued by the Appropriate Authority (District
Ahmedabad), for contraventions of the provisions
of the Pre­Conception and Pre­natal Diagnostic
Techniques (Prohibition of Sex Selection) Act,
1994 (“the PNDT Act” for short) has not been
accepted. The action of the Appropriate Authority
of sealing two Sonography machines in the Clinic
of the petitioner, as per Panchnama dated
13.05.2011, is also the subject­matter of
challenge.
3. Briefly stated, the facts, as stated in the
petition, and discernible from the material on
record, are as follows. The petitioner is a
Radiologist, holding an M.D., D.M.R.E. Degree. It
is stated that the petitioner had been to France
and Germany for about five years and had worked
SCA/6625/2011 3/98 JUDGMENT
as a Radiologist in the King Khalid Hospital at
Saudi Arabia. Thereafter, he had served in a
Government department for five years and had
later started his own independent Clinic in the
year 2003. The petitioner, at one point of time,
had a Sonography machine in a mobile van and his
registration number was 478. On 12.05.2006, the
respondent authority had seized certain documents
leading to the sealing of the Sonography machines
of the petitioner. This led to the filing of a
petition by the petitioner, being Special Civil
Application No.14495 of 2006, which was disposed
of, by order dated 03.08.2006 of this Court,
subject to furnishing of an Undertaking by the
petitioner. The petitioner filed Miscellaneous
Civil Application No.68 of 2007, seeking to
withdraw the Undertaking, which was permitted, by
order dated 05.02.2007. At that point of time,
the petitioner had his Radiology Clinic at
another place. Thereafter, the petitioner shifted
to the present Clinic, which is being run under
the name and style of “Dr.Kalpesh Patel’s Imaging
House”. The petitioner applied, afresh, for
SCA/6625/2011 4/98 JUDGMENT
registration of the said Clinic, which was
granted on 08.04.2009, as Registration No.813.
The Certificate of Registration has been issued
for five years and is valid upto 07.04.2014,
subject to the provisions of the PNDT Act and
Rules framed thereunder. It is stipulated
therein, that any contravention of the PNDT Act
and Rules will result in suspension, or
cancellation, of the Certificate of Registration,
before the expiry of five years, apart from
prosecution.
4. On 13.02.2010, the Appropriate Authority under
the PNDT Act visited the Clinic of the
petitioner and carried out an inspection. Certain
contraventions of the provisions of the PNDT Act
were found, inasmuch as Form­F was not being
filled up by the petitioner, though, as per the
respondents, the PNDT Act requires that it should
be filled up and signed by the concerned
Radiologist or Gynaecologist, who conducts the
Ultrasound procedure on pregnant women. The
Appropriate Authority found that Form­F was being
filled up by the staff of the petitioner which,
SCA/6625/2011 5/98 JUDGMENT
as stated in the said notice, is a serious
contravention. The petitioner replied to the
notice on 19.02.2010, offering his explanation,
and undertaking that he will take care in future,
and that Form­F shall be filled in by him. The
explanation of the petitioner was accepted by the
Appropriate Authority, as communicated to the
petitioner on 20.05.2010. The petitioner was
directed to ensure strict compliance of the
provisions of the PNDT Act. A second inspection
of the Clinic of the petitioner took place on
23.09.2010, and five contraventions of the PNDT
Act and Rules, in respect of filling up Form­F
were found, as detailed in the said notice. The
petitioner, once again, furnished his reply and
explanation to this notice, on 24.09.2010,
stating therein that he would rectify the lapses.
The explanation of the petitioner was accepted by
the District PNDT Advisory Committee and this was
communicated to the petitioner by the Appropriate
Authority, vide letter dated 01.12.2010. Once
again, the petitioner was directed to ensure
that no contraventions of the PNDT Act take place
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at his Clinic in future, and the provisions of
the statute are strictly complied with.
5. The Clinic of the petitioner was inspected for
the third time on 28.04.2011, during which the
following contraventions of the PNDT Act were
found by the District Appropriate Authority:­
“1) Register to be maintained with details
of women (ANC) undergoing USG is not fill up
to date of today. It is filled upto date 23­
2­2011.
2) On inspection of form `F’ of period
January’ 11 to April 2011, in one form there
is no sign of doctor doing sonography and
its doctor’s declaration part. In eight form
`F’, there is no sign of the pregnant woman
in declaration of the woman part of the form
`F’. Totally nine form `F’ were filled with
deficiency or inaccuracy.”
6. The following documents/ materials also came to
be seized:­
“(1) The deficiently filled nine form `F’ as
mentioned above with a referral letter in
eight of them.
(2) The PNDT Register’s last page xerox
copy.”
7. The petitioner gave his explanation by letter
dated 01.05.2011. The said explanation was
considered by the District PNDT Advisory
Committee, but was not found to be satisfactory
SCA/6625/2011 7/98 JUDGMENT
as, by communications dated 20.05.2010 and
01.12.2010, the petitioner had been cautioned to
ensure strict compliance of the provisions of the
PNDT Act, despite which, further contraventions
were committed by him. The Appropriate Authority
informed the petitioner regarding the rejection
of his explanation, by the impugned communication
dated 13.05.2011. It is stated in the said
communication that, during the inspection
conducted on 28.04.2011, the petitioner was found
to have violated the provisions of Sections 4(3),
5(1)(b) of the PNDT Act and Rule 9(1), 9(4) and
10(1A) of the Pre­conception and Pre­natal
Diagnostic Techniques (Prohibition of Sex
Selection) Rules, 1996 (“the Rules” for short).
On 13.05.2011, a detailed Panchnama was drawn at
the Clinic of the petitioner, and two Sonography
machines that were in use by the petitioner, came
to be sealed. Aggrieved by this action of the
District Appropriate Authority, the petitioner
has assailed the same by way of this petition.
Special Civil Application No.7234/2011:
SCA/6625/2011 8/98 JUDGMENT
8. Pursuant to the search and seizure operation
conducted at the Clinic of the petitioner on
28.04.2011, during which two Sonography machines
came to be sealed, notice dated 28.04.2011 (the
extract of which is reproduced hereinabove) was
issued to the petitioner, to which he replied
vide letter dated 01.05.2011. As already stated
above, The explanation of the petitioner was not
found to be satisfactory by the District
Appropriate Authority, resulting in the issuance
of the impugned order dated 13.05.2011. It is
stated in the said order that the petitioner has
contravened the provisions of Sections 4(3), 5(1)
(b) of the PNDT Act and Rules 9(1), 9(4), and
10(1A) of the PNDT Rules, therefore, in exercise
of powers conferred under Sections 20(1) and
20(2) of the PNDT Act, and with regard to
Resolution No.3 of the District PNDT Advisory
Committee issued on 09.05.2011, the PNDT
Registration No.813 allotted to the Clinic of the
petitioner shall stand suspended, till further
orders. Being aggrieved by the suspension of the
registration of his Clinic by the above­mentioned
SCA/6625/2011 9/98 JUDGMENT
order, the petitioner has challenged the same, by
way of this petition.
9. With regard to the action of sealing of the
Sonography machines, Mr.M.B.Gandhi, learned
advocate for the petitioner, has made the
following submissions:­
(I) Though an alternative remedy is provided
under Rule 19 of the Rules, the petitioner is
invoking the jurisdiction of this Court as the
principles of natural justice have been violated
by the respondents, inasmuch as the petitioner
has not been given prior notice before sealing
the machines. Further, the petitioner has not
been made aware of the contraventions of the
provisions of the PNDT Act, for which the action
of sealing has been resorted to. As such, he has
been deprived of an opportunity of hearing and of
offering an explanation. In these circumstances,
the Court may entertain the petition, instead of
relegating the petitioner to the alternative
remedy.
(II) No notice has been issued to the
petitioner before the Panchnama was drawn on
SCA/6625/2011 10/98 JUDGMENT
13.05.2011. On 28.04.2011, the record was seized
from the Clinic of the petitioner. Sealing of the
machines can only be done for the purpose
mentioned in Section 30 of the Act, read with
Rule 12 of the Rules, in order to detect material
that provides evidence of a breach of the
provisions of the Act. No breach of the
provisions of the Act have been mentioned in the
impugned order, so as to justify the action of
sealing of the Sonography machines.
(III) Although there is no specific provision
in the PNDT Act for issuance of notice before
sealing the machines, however, it is a settled
principle of law that where an action, directly
and adversely, affects the fundamental rights of
an individual, the principles of natural justice
are required to be read into the provisions of
law. The petitioner has been deprived of carrying
on his profession, which constitutes a violation
of his fundamental rights under Article 19(1)(g)
of the Constitution of India, therefore, the
action of sealing the machines without following
the principles of natural justice is bad in law.
SCA/6625/2011 11/98 JUDGMENT
(IV) No specific order has been passed for
sealing the Sonography machines and no reasons
have been recorded why such an action has been
taken. The action of sealing has no reasonable
basis, therefore may be set aside.
10. With regard to the suspension of registration,
the submissions made by the learned advocate for
the petitioner are as below:
(i) Though an alternative remedy is provided
under Section 21 of the PNDT Act, the petitioner
is invoking the jurisdiction of this Court, as
the principles of natural justice have been
violated by the respondents while passing the
impugned order, suspending the registration of
the Clinic of the petitioner. In these
circumstances, the Court may entertain the
petition, instead of relegating the petitioner to
the alternative remedy.
(ii) The notice dated 28.04.2011 issued to
the petitioner under the provisions of Section
20(1) of the Act is not a proper notice as it has
not been issued in accordance with the mandate of
the Section. Section 20(1) contemplates that the
SCA/6625/2011 12/98 JUDGMENT
person concerned should be put to notice and
asked to show cause, why the registration should
not be suspended, or cancelled. Section 20(2)
provides for a reasonable opportunity to be
given to the person, to show cause. No
opportunity of hearing, in terms of this
provision of law has been provided to the
petitioner and the impugned order of suspension
has been passed straightaway.
(iii) The impugned order does not mention
the period for which the suspension is to be in
force, as provided in Section 20(2) of the Act.
(iv) The impugned order is an unreasoned and
non­speaking order. There are no reasons in
support of the conclusion arrived at, therefore,
the said order is bad in law.
(v) The Advisory Committee is required to be
consulted before taking action, as mandated in
Section 20(2), however, in the case of the
petitioner, there is no recommendation of the
Advisory Committee to suspend the registration of
the petitioner.
11. In support of his submissions, the learned
SCA/6625/2011 13/98 JUDGMENT
advocate for the petitioner has placed reliance
upon the following judgments:
(1) Naynaben Shantilal Pandya v. State of
Gujarat – 2006(3) GLR 2034
(2) Harbhajan Singh v. Nawanshahar Central CoOperative Bank Ltd. ­ (2004)10 SCC 606
(3) Ins Laljibhai Malhotra Through Power of
Attorney Holder v. Harit Shukla ­ LPA No.1566 of
2009 in SCA No.8678 of 2009 and cognate matters
decided on 26.08.2009.
(4) M.P.State Agro Industries Development
Corporation Ltd. v. Jahan Khan – (2007)10 SCC 88
(5) Oryx Fisheries Private Limited v. Union of
India – JT 2010(12) SC 35
(6) Lifecare Institute of Medical Science and
Research Pvt. Ltd. v. United India Insurance Co.
Ltd. & Ors. ­ 2010(2) GLH 512.*
(7) Satwati Deswal v. State of Haryana – (2010)1
SCC 126
(8) Kilol v. Shelat v. Municipal Corporation of
City of Ahmedabad & Anr. ­ 2009(1) GLH 13
(9) Sudesh Kumar v. State of Haryana – (2005)11
SCC 525.
(10) State of Mysore v. K. Manche Gowda – AIR
1964 SC 506
(11) Cantonment Board Dinapore v. Taramani Devi –
AIR 1992 SC 61
12. On the strength of the above submissions, it is
urged by the learned advocate for the petitioner
that the seals applied on the Sonography machines
SCA/6625/2011 14/98 JUDGMENT
be directed to be removed, and the impugned order
suspending the registration of the Clinic of the
petitioner, be quashed and set aside.
13. The petitions have been strongly opposed by
Mr.Nikhilesh J.Shah, learned advocate for
respondent No.2. Regarding the action of sealing,
Mr.Shah has made the following submissions:
(A) The petitioner has an alternative
statutory remedy available under the Rules, as he
can file an appeal, if aggrieved by the order of
the District Appellate Authority, to the State
Appellate Authority, as provided under Rule 19 of
the Rules, therefore, the petition may not be
entertained.
(B) The petitioner was found to have
contravened the provisions of the PNDT Act and
Rules twice, before the machines were sealed.
Though the explanations rendered by him on those
occasions were accepted, the petitioner had been
directed by the District Appropriate Authority to
strictly ensure that no further contraventions
take place, and had given assurances to that
effect. However, on 28.04.2011, when the team
SCA/6625/2011 15/98 JUDGMENT
visited the Clinic of the petitioner, it was
found that the petitioner had made several
contraventions, and it was thought necessary to
seal the Sonography machines of the petitioner,
in accordance with Section 30 of the PNDT Act,
read with Rule 12 of the Rules, as there is
reason to believe that the machines may furnish
evidence of the commission of an offence
punishable under the Act. A criminal case has
already been registered against the petitioner
for offences under the PNDT Act.
(C) The object of the PNDT Act is to prevent
female foeticide, and it is to achieve that end
that all contraventions of the Act are to be
curbed. The object of sealing the machines is to
provide evidence of the contraventions of the
PNDT Act. If the seals are directed to be
removed, important evidence may be lost that may
be crucial in the criminal case filed against the
petitioner. The action of sealing the machines is
in accordance with law and if aggrieved, the
petitioner may avail of the alternative remedy.
(D) There is no provision in the PNDT Act
SCA/6625/2011 16/98 JUDGMENT
mandating that notice be given before drawing the
Panchnama or sealing the machines. Without
prejudice to the above contention, notice under
Section 20(1) of the PNDT Act was already given
to the petitioner on 28.04.2011, to which the
petitioner has replied, therefore, the petitioner
was well aware of the contraventions of the PNDT
Act and Rules pointed out to him. Considering the
purpose for which sealing of machines is resorted
to, if prior notice of sealing is given, it would
frustrate the very purpose of the Act and render
Rule 12 nugatory.
(E) The submission of the petitioner that
his fundamental rights under Article 19(1)(g)
have been violated by sealing of the Sonography
machines is unfounded and untenable as he has
committed repeated contraventions of the PNDT Act
and Rules. The right to carry on a profession
means that it should be carried on lawfully. The
petitioner has stated in his reply that he is
carrying on a `business’, which discloses the
mindset of the petitioner.
14. Regarding the suspension of registration of the
SCA/6625/2011 17/98 JUDGMENT
petitioner, the learned advocate for respondent
No.2 has submitted that:
(a) The petitioner has an alternative
statutory remedy available under Section 21 of
the PNDT Act, which he can avail of, if aggrieved
by the suspension of registration of his Clinic,
therefore, the petition may not be entertained.
There is no violation of the principles of
natural justice in suspending the registration,
as he has been served with a notice under Section
20(1) of the PNDT Act, to which he has replied on
01.05.2011. It is stated in the notice that it
has been issued under Section 20(1) and (2) of
the Act, therefore, it is obvious that it has
been issued asking the petitioner to show cause
why the registration should not be suspended or
cancelled, as the said provisions deal with these
two contingencies only. The reply of the
petitioner has been considered by the District
Advisory Committee and found to be
unsatisfactory. The said Committee has
recommended suitable action be taken against the
petitioner, therefore, the District Appropriate
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Authority has suspended the licence of the
petitioner, in accordance with the provisions of
the PNDT Act, after affording him an opportunity
of hearing that has been availed by him. The
suspension of registration is till further
orders. If aggrieved, the petitioner can file an
appeal under Section 21 of the PNDT Act, as
provided therein. The judgments cited by the
learned advocate for the petitioner will not be
applicable in the facts of the present case as
the principles of natural justice have not been
violated and the action of respondent No.2 is in
accordance with the provisions of the Act.
15. The learned advocate for respondent No.2 has
placed reliance upon the following judgments:
1) U.P.State Spinning Co. Ltd. v. R.S.Pandey &
Another ­ (2005)8 SCC 264
2) Uttaranchal Forest Development Corporation &
Anr. v. Jabar Singh & Others ­ (2007)2 SCC 112
3) Seth Chand Ratan v. Pandit Durga Prasad (D)
by LRS And Others ­ (2003)5 SCC 399
4) Karnataka Chemical Industries And Others v.
Union of India And Others ­ (2000)10 SCC 13
5) District Panchayat & Another v. Dr.Kaushik
Babulal Shah – Letters Patent Appeal No.1371 of
2009 & cognate matters in Special Civil
Application No.5830 of 2009, decided on
SCA/6625/2011 19/98 JUDGMENT
07.12.2009
6) Appropriate Authority v. H.G.Thakkar Hari XRays, Colour, Doppler Sonography & Ors. ­ Civil
Appeal No.8269 of 2009 arising out of SLP (C)
No.23358 of 2008, decided on 09.12.2009
7) Union of India and another v. Deoki Nandan
Aggarwal – AIR 1992 SC 96
8) Asmita R. Patel v. State of Gujarat and Anr.
­ 2009(1) GLH 584
16. Mr.Rashesh Rindani, learned Assistant Government
Pleader, has adopted the arguments made by the
learned advocate for respondent No.2.
17. It is not disputed by the learned advocate for
the petitioner that an alternative remedy is
available, as provided under Rule 19 of the Rules
against the action of the District Appropriate
Authority in sealing the Sonography machines of
the petitioner and under Section 21 of the PNDT
Act regarding suspension of the registration of
the Clinic of the petitioner. However, it has
been submitted by the learned advocate for the
petitioner that the action of sealing the
Sonography machines has been taken without
issuing a show cause notice or granting the
petitioner an opportunity of hearing, and that
SCA/6625/2011 20/98 JUDGMENT
the notice issued under Section 20(1) and (2) of
the PNDT Act before suspending the registration
of the Clinic of the petitioner, is not in
conformity with the said provision of law. In
this context, it would be appropriate to examine
the judgments relied upon by the learned
advocates for the respective parties.
18. The judgments cited by the learned advocate for
the petitioner may now be discussed:
(1) In Naynaben Shantilal Pandya v. State of
Gujarat (supra) , the challenge was to the order
of the Collector suspending the Resolution of the
Palanpur Nagarpalika, granting two advance
increments to the petitioner therein, in suo­motu
proceedings and to the order of the Deputy
Secretary (Appeals), confirming the order of the
Collector. Notice had been issued to the
Nagarpalika but not to the petitioner. The Court
came to the conclusion that the impugned order
under Section 258 of the Gujarat Municipalities
Act, 1963, passed by the Collector, deserved to
be quashed and set aside, as no notice or
opportunity of hearing was given to the
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petitioner, who was the adversely affected party.
(2) In Harbhajan Singh v. Nawanshahar Central
Co­Operative Bank Ltd. (supra) , the appointments
of the appellants therein in the respondent­Bank
were challenged on the ground that the selection
process was vitiated by irregularities and
malpractices. The respondent­Bank stated before
the Court that certain irregularities were
noticed, and the Bank would take steps to remove
the appellants. The writ petition came to be
disposed of, as infructuous. The appellants were
served with notices for inquiry and obtained a
stay order from the Registrar of Cooperative
Societies. A contempt petition was filed for noncompliance of the order of the High Court. In
this background, the High Court directed removal
of the appellants from service. The Supreme Court
held that the High Court, in contempt
jurisdiction, should not have passed the order of
removal of the appellants in the absence of a
proper inquiry. It was held that as the
appellants were not given a reasonable
SCA/6625/2011 22/98 JUDGMENT
opportunity of being heard, the principles of
natural justice had been violated and the Bank
was directed to conduct a fresh inquiry and pass
appropriate orders.
(3) In Laljibhai Malhotra Through Power of
Attorney Holder v. Harit Shukla (supra) , the
Division Bench set aside the impugned order
cancelling the licence of the petitioner for
running the Cinema and exhibiting uncertified
films in the theater on the ground that the
petitioner had not been given an opportunity for
showing cause. The authorities were directed to
pass appropriate orders.
(4) In M.P.State Agro Industries Development
Corporation Ltd. v. Jahan Khan (supra) , the
issue arose whether the petition was
maintainable, despite an alternative remedy being
available, on the ground of violation of the
principles of natural justice. The Supreme Court
held as below:
“10. Before parting with the case, we may
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also deal with the submission of learned
counsel for the appellants that a remedy by
way of an appeal being available to the
respondent, the High Court ought not to have
entertained his petition filed under Arts.
226/227 of the Constitution. There is no
gainsaying that in a given case, the High
Court may not entertain a writ petition
under Art. 226 of the Constitution on the
ground of availability of an alternative
remedy, but the said rule cannot be said to
be of universal application. The rule of
exclusion of writ jurisdiction due to
availability of an alternative remedy is a
rule of discretion and not one of
compulsion. In an appropriate case, in spite
of the availability of an alternative
remedy, a writ court may still exercise its
discretionary jurisdiction of judicial
review, in at least three contingencies,
namely, (i) where the writ petition seeks
enforcement of any of the fundamental
rights; (ii) where there is failure of
principles of natural justice or (iii) where
the orders or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. In these circumstances, an
alternative remedy does not operate as a
bar. (See: Whirpool Corporation V/s.
Registrar of Trade Marks, Harbanslal Sahnia
& Anr. V/s. Indian Oil Corporation Ltd. &
SCA/6625/2011 24/98 JUDGMENT
Ors., State of H.P. V/s. Gujarat Ambuja
Cement Ltd. and Sanjana M.Wig V/s. Hindustan
Petroleum Corporation Ltd.).”
(5) In Oryx Fisheries Private Limited v. Union
of India (supra) , the show cause notice was
quashed and the cancellation of the registration
certificate of the appellant was set aside on the
ground that no reasons were given in the original
order, and that the show cause notice had been
issued with a pre­determined mind. The Supreme
Court held as below:
“24. It is well settled that a quasijudicial authority, while acting in exercise
of its statutory power must act fairly and
must act with an open mind while initiating
a show cause proceeding. A show cause
proceeding is meant to give the person
proceeded against a reasonable opportunity
of making his objection against the proposed
charges indicated in the notice.
25. Expressions like “a reasonable
opportunity of making objection” or “a
reasonable opportunity of defence” have come
up for consideration before this Court in
the context of several statutes.
26. A Constitution Bench of this Court in
Khem Chand v. Union of India and others,
SCA/6625/2011 25/98 JUDGMENT
reported in AIR 1958 SC 300, of course in
the context of service jurisprudence,
reiterated certain principles which are
applicable in the present case also.
27. Chief Justice S.R. Das speaking for the
unanimous Constitution Bench in Khem Chand
(supra) held that the concept of ‘reasonable
opportunity’ includes various safeguards and
one of them, in the words of
the learned Chief Justice, is:
“(a) An opportunity to deny his guilt
and establish his innocence, which he
can only do if he is told what the
charges leveled against him are and the
allegations on which such charges are
based;”
28. It is no doubt true that at the stage of
show cause, the person proceeded against
must be told the charges against him so that
he can take his defence and prove his
innocence. It is obvious that at that stage
the authority issuing the chargesheet,
cannot, instead of telling him the charges,
confront him with definite conclusions of
his alleged guilt. If that is done, as has
been done in this instant case, the entire
proceeding initiated by the show cause
notice gets vitiated by unfairness and bias
and the subsequent proceeding become an idle
ceremony.
29. Justice is rooted in confidence and
justice is the goal of a quasi­judicial
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proceeding also. If the functioning of a
quasi judicial authority has to inspire
confidence in the minds of those subjected
to its jurisdiction, such authority must act
with utmost fairness. Its fairness is
obviously to be manifested by the language
in which charges are couched and conveyed to
the person proceeded against. In the instant
case from the underlined portion of the show
cause notice it is clear that the third
respondent has demonstrated a totally closed
mind at the stage of show cause notice
itself. Such a closed mind is inconsistent
with the scheme of Rule 43 which is set out
below. The aforesaid rule has been framed in
exercise of the power conferred under
Section 33 of The Marine Products Export
Development Authority Act,
1972 and as such that Rule is statutory in
nature. ”
(6) In Lifecare Institute of Medical Science and
Research Pvt. Ltd. v. United India Insurance Co.
Ltd. & Ors. (supra) , a Division Bench of this
Court was dealing with a situation where the
petitioner­hospital, which was recognized by the
respondents­Insurance Companies for cashless and
reimbursement claims, was debarred, without
SCA/6625/2011 27/98 JUDGMENT
issuance of a show cause notice, or giving any
form of hearing, before taking the said decision.
In this context, it was held that:
“10. There is nothing on record to suggest
that the respondents had issued any notice
or disclosed any adverse materials to the
petitioners before taking the final
decision. The details of the materials in
possession of the respondents are also not
clearly forthcoming. In fact, as already
noted, in the previous meeting, there was
a view that notice should be issued.
However, to avoid issuance of such notices,
instead of depaneling the hospitals
concerned, they were put “on declined
list of hospitals”. In effect, however,
the result remains the same. Treatment
that the patients would take in these
hospitals would not qualify either for
cashless policy or for reimbursement of the
expenses. There is no outer time limit for
which this order would operate. The effect,
therefore, will be that by the impugned
order, the respondents have virtually,
black­listed the petitioners hospitals and
such blacklisting would continue for an
indefinite period. Such an action cannot be
upheld in absence of any hearing
whatsoever.
SCA/6625/2011 28/98 JUDGMENT
11. In the case of Southern Painters, M/s.
v. Fertilizers and Chemicals Travancore
Ltd. AIR 1994 SC 1277, the Apex Court
observed as under:
“The deletion of the appellant’s name
from the list of approved contractors on
the ground that there were some
vigilance report against it, could only
be done consistent with and after the
compliance of the principles of natural
justice. That not having been done, it
requires to be held that withholding of
the tender form from the appellant was
not justified. In our opinion, the High
Court was not justified in dismissing
the writ petition.”
In the case of Raghunath Thakur v. State of
Bihar, AIR 1989 SC 620, the Apex Court
observed as under:
“Indisputably, no notice had been given
to the appellant of the proposal of
blacklisting the appellant. It was
contended on behalf of the State
Government that there was no
requirement in the rule of giving any
prior notice before blacklisting any
person. In so far as the contention
that there is no requirement
specifically of giving any notice is
concerned, the respondent is right. But
it is an implied principle of the rule
of law that any order having civil
consequence should be passed only after
following the principles of natural
justice. It has to be realised that
blacklisting any person in respect of
business ventures has civil consequence
for the future business of the person
concerned in any event. Even if the
rules do not express so, it is an
SCA/6625/2011 29/98 JUDGMENT
elementary principle of natural justice
that parties affected by any order
should have right of being heard and
making representations against the
order. In that view of the matter, the
last portion of the order in so far as
it directs blacklisting of the
appellant in respect of future
contracts, cannot be sustained in law.”
(7) In Satwati Deswal v. State of Haryana
(supra) , the Supreme Court set aside the impugned
order of the High Court rejecting the petition on
the ground that the order of termination of the
appellant therein had been passed without issuing
a show cause notice, without initiating any
disciplinary proceedings by the authorities and
without affording an opportunity of hearing. The
relevant extract of the judgment is reproduced
hereinbelow:
“5. In our view, the High Court had fallen
in grave error in rejecting the writ
petition on the aforesaid ground. First,
such an order of termination was passed
without issuing any show­cause notice to the
appellant and without initiating any
disciplinary proceedings by the authorities
and without affording any opportunity of
hearing. It is well settled that a writ
petition can be held to be maintainable
SCA/6625/2011 30/98 JUDGMENT
even if an alternative remedy is available
to an aggrieved party where the court or the
tribunal lacks inherent jurisdiction or for
enforcement of a fundamental right; or if
there had been a violation of a principle of
natural justice; or where vires of the act
were in question.
(8) In Kilol v. Shelat v. Municipal Corporation
of City of Ahmedabad & Anr. (supra) , a Division
Bench of this Court was dealing with a challenge
to the prescription of “road line” by the
Commissioner of Ahmedabad Municipal Corporation,
and to the eviction notices issued under Section
213 of the Bombay Provincial Municipal
Corporations Act, 1949 (BPMC Act). The vires of
Section 210(1)(a) of the BPMC Act were also the
subject matter of challenge. While upholding
Section 210(1)(a) of the BPMC Act, the Division
Bench held as below:­
“29. It goes without saying that a citizen
who is being deprived of his valuable right
to property which though may not be
fundamental right continuous to be a
Constitutional right and which, is by now
recognized as a human right has at­least the
minimum right of hearing before such a
SCA/6625/2011 31/98 JUDGMENT
result is brought about. In a given case, he
may be able to point out to the authority
that proposed prescription of the street
line is either arbitrary or unjust or wholly
mala fide. Depriving the citizen of his
right to property without even the minimum
right of hearing cannot be countenanced. In
case of P.T. Munichikkanna Reddy and others
v. Revamma and others reported in (2007) 6
Supreme Court Cases 59, the Apex Court
observed that the right of property is now
considered to be not only a Constitutional
or statutory right but also a human right.
Similar observations were also made in case
of Lachhman Dass v. Jagar Ram and others
reported in (2007) 10 Supreme Court Cases
448.
30. It is by now well settled that without
affording opportunity of being heard, no
order adverse to a person can be passed.
Principles of natural justice require that
before taking action against the citizen, he
must have a right to be heard. Such
requirement of principles of natural
justice can be abridged or even totally shut
out. However, same can be done only by
specific statutory provisions or by
necessary implications. In other words, when
the statute is silent, principles of natural
justice can be read into it and unless a
statutory provision specifically or by
SCA/6625/2011 32/98 JUDGMENT
necessary implications dispenses with the
principles of natural justice, hearing must
be given before passing any adverse orders.
In case of State Govt. Houseless Harijan
Employees’ Association v. State of Karnataka
and others reported in (2001) 1 Supreme
Court Cases 610, the Apex Court observed
that the requirements of natural justice
will be read into statutory provisions
unless excluded expressly or by necessary
implication.”
(9) In Sudesh Kumar v. State of Haryana (supra) ,
the Supreme Court held as below:
“6. A reasonable opportunity of hearing
enshrined in Article 311(2) of the
Constitution would include an opportunity to
defend himself and establish his innocence
by cross­examining the prosecution witnesses
produced against him and by examining the
defence witnesses in his favour, if any.
This he can do only if inquiry is held where
he has been informed of the charges levelled
against him. In the instant case, the
mandate of Article 311(2) of the
Constitution has been violated depriving
reasonable opportunity of being heard to the
appellant.”
(10) In State of Mysore v. K. Manche Gowda
SCA/6625/2011 33/98 JUDGMENT
(supra) , the issue for determination was whether
the respondent had been granted reasonable
opportunity of hearing as per the mandate of
Article 311(2) of the Constitution of India. The
Supreme Court held that:
“7. Under Art. 311(2) of the Constitution,
as interpreted by this Court, a Government
servant must have a reasonable opportunity
not only to prove that he is not guilty of
the charges levelled against him, but also
to establish that the punishment proposed to
be imposed is either not called for or
excessive. The said opportunity is to be a
reasonable opportunity and, therefore, it is
necessary that the Government servant must
be told of the grounds on which it is
proposed to take such action: see the
decision of this Court in the State of Assam
v. Bimal Kumar Pandit, Civil Appeal No.832
of 1962 D/­ 12­2­1963:(AIR 1963 SC 1612). If
the grounds are not given in the notice, it
would be well nigh impossible for him to
predicate what is operating on the mind of
the authority concerned in proposing a
particular punishment: he would not be in a
position to explain why he does not deserve
any punishment at all or that the punishment
proposed is excessive…..”
SCA/6625/2011 34/98 JUDGMENT
(11) In Cantonment Board Dinapore v. Taramani
Devi (supra) , the Supreme Court considered the
scope of Article 14 of the Constitution of India
and upheld the decision of the High Court,
holding that no order which is prejudicial in
nature to him should be passed behind the back of
a person, especially when it entails civil
consequences.
19. The submissions made by the learned advocate for
respondent No.2 are to the effect that the
petitions may not be entertained, as alternative
statutory remedies are available to the
petitioner. The judgments cited on this point are
as under:
1) In U.P.State Spinning Co. Ltd. v. R.S.Pandey
& Another (supra) , the Supreme Court held as
below:
“20. In a catena of decisions it has been
held that writ petition under Article 226 of
the Constitution should not be entertained
when the statutory remedy is available under
the Act, unless exceptional circumstances
are made out.
21. In U.P. State Bridge Corpn. Ltd. v.
U.P. Rajya Setu Nigam S. Karamchari Sangh,
SCA/6625/2011 35/98 JUDGMENT
[2004] 4 SCC 268, it was held that when the
dispute relates to enforcement of a right or
obligation under the statute and specific
remedy is, therefore, provided under the
statute, the High Court should not deviate
from the general view and interfere under
Article 226 except when a very strong case
is made out for making a departure. The
person who insists upon such remedy can
avail of the process as provided under the
statute. To same effect are the decisions in
Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke, [1976] 1 SCC 496, Rajasthan
SRTC v. Krishna Kant, [1995] 5 SCC 75,
Chandrakant Tukaram Nikam v. Municipal
Corpn. of Ahmedabad [2002] 2 SCC 542 and in
Scooters India v. Vijai E. V. Eldred, [1998]
6 SCC 549.
22. In Rajasthan SRTC v. Krishna Kant
(Supra) it was observed as follows:
“A speedy, inexpensive and effective
forum for resolution of disputes arising
between workmen and their employers. The
idea has been to ensure that the workmen
do not get caught in the labyrinth of
civil courts with their layers upon
layers of appeals and revisions and the
elaborate procedural laws, which the
workmen can ill­afford. The procedure
followed by civil courts, it was
thought, would not facilitate a prompt
and effective disposal of these
disputes. As against this, the courts
and tribunals created by the Industrial
Disputes Act are not shackled by these
procedural laws nor is their award
SCA/6625/2011 36/98 JUDGMENT
subject to any appeals or revisions.
Because of their informality, the
workmen and their representatives can
themselves prosecute or defend their
cases. These forums are empowered to
grant such relief as they think just and
appropriate. They can even substitute
the punishment in many cases. They can
make and re­make the contracts,
settlement, wage structures and what
not. Their awards are no doubt amenable
to jurisdiction of the High Court under
Article 226 as also to the jurisdiction
of this Court under Article 32, but they
are extraordinary remedies subject to
several self­imposed constraints. It is,
therefore, always in the interest of the
workmen that disputes concerning them
are adjudicated in the forums created by
the Act and not in a civil court. That
is the entire policy underlying the vast
array of enactments concerning workmen.
This legislative policy and intendment
should necessarily weigh with the courts
in interpreting these enactments and the
disputes arising under them”.
23. In Basant Kumar Sarkar and Ors. v. Eagle
Rolling Mills Ltd. and Ors., [1964] 6 SCR
913 the Constitution Bench of this Court
observed as follows:
“It is true that the powers conferred on
the High Courts under Art. 226 are very
wide, but it is not suggested by Mr.
Chatterjee that even these powers can
take in within their sweep industrial
disputes of the kind which this
contention seeks to raise. Therefore,
without expressing any opinion on the
merits of the contention, we would
confirm the finding of the High Court
that the proper remedy which is
available to the appellants to ventilate
SCA/6625/2011 37/98 JUDGMENT
their grievances in respect of the said
notices and circulars is to take
recourse to Section 10 of the Industrial
Disputes Act, or seek relief, if
possible, under Sections 74 and 75 of
the Act.”
The above position was recently highlighted
in Hindustan Steel Works Construction Ltd.
v. Employees Union, (2005) 6 SCALE 430.
24. Accordingly, the conclusion is
inevitable that the High Court was not
justified in entertaining the writ petition.
Usually when writ petition is entertained
notwithstanding availability of alternative
remedy and issues are decided on merits,
this Court is slow to interfere merely on
the ground of availability of alternative
remedy. But the facts of the present case
have special features, which warrant
interference.”
2) In Uttaranchal Forest Development
Corporation & Anr. v. Jabar Singh & Others
(supra) , the Supreme Court has held as under:
“44. In the instant case, the workmen have
not made out any exceptional circumstances
to knock the door of the High Court
straightaway without availing the effective
alternative remedy available under the
SCA/6625/2011 38/98 JUDGMENT
Industrial Disputes Act. But the dispute
relates to enforcement of a right or
obligation under the statute and a specific
remedy is, therefore, provided under the
statute. The High Court should not deviate
from the general view and interfere under
Article 226 of the Constitution except when
a very strong case is made out for making a
departure. There are several decisions to
the same effect. The respondents have not
made out any strong case for making a
departure. Accordingly, the conclusion is
inevitable that the High Court was not
justified in entertaining the writ petition.
45. We are, therefore, of the opinion that
the writ petitioners (respondents herein)
who have not invoked the jurisdiction of the
Tribunal are not entitled to any relief in
the writ petitions. They are not entitled
for any benefits of reinstatement, backwages and continuity of service. ”
3) In Seth Chand Ratan v. Pandit Durga Prasad
(D) by LRS And Others (supra) , the Supreme Court
has held:
“13. Even otherwise, the view taken by the
Division Bench of the High Court for
repelling the objection of the appellant
regarding the maintainability of the writ
petition that an alternative remedy does not
SCA/6625/2011 39/98 JUDGMENT
divest the High Court of its powers to
entertain petitions under Articles 226 and
227 of the Constitution, has hardly any
application on the facts of the present
case. It has been settled by a long catena
of decisions that when a right or liability
is created by a statute, which itself
prescribes the remedy or procedure for
enforcing the right or liability, resort
must be had to that particular statutory
remedy before seeking the discretionary
remedy under Article 226 of the
Constitution. This rule of exhaustion of
statutory remedies is no doubt a rule of
policy, convenience and discretion and the
Court may in exceptional cases issue a
discretionary writ of certiorari. Where
there is complete lack of jurisdiction for
the officer or authority or Tribunal to take
action or there has been a contravention of
fundamental rights or there has been a
violation of rules of natural justice or
where the Tribunal acted under a provision
of law, which is ultra vires, then
notwithstanding the existence of an
alternative remedy, the High Court can
exercise its jurisdiction to grant relief.
In the present case, the alternative remedy
of challenging the judgment of the Court was
not before some other forum or Tribunal. On
the contrary, by virtue of Sub­section (3)
SCA/6625/2011 40/98 JUDGMENT
of Section 27 of the Act, the order passed
by the Court amounted to a decree against
which an appeal lay to the High Court. When
the party had statutory remedy of assailing
the order passed by the District Court by
filing an appeal to the High Court itself,
he could not bypass the said remedy and take
recourse to proceedings under Articles 226
and 227 of the Constitution. Such a course
of action may enable a litigant to defeat
the provisions of the Statute which may
provide for certain conditions for filing
the appeal, like limitation, payment of
court fee or deposit of some amount or
fulfilment of some other conditions for
entertaining the appeal.
14. For the reasons stated, we are clearly
of the opinion that the High Court committed
manifest error of law in entertaining and
allowing the writ petition filed by Pandit
Durga Prasad and, therefore, orders passed
by the learned Single Judge on 2.9.1994 and
by the Division Bench in letters patent
appeal on 7.3.1995 are liable to be set
aside.”
4) In Karnataka Chemical Industries And Others
v. Union of India And Others (supra) , it was
held that the petitioner ought to have resorted
to the statutory remedy as provided under the
SCA/6625/2011 41/98 JUDGMENT
statute and the appeal was dismissed on this
short ground alone.
5) Regarding the issue of sealing of Sonography
machines, the learned advocate for respondent
No.2 has relied upon District Panchayat &
Another v. Dr.Kaushik Babulal Shah (supra) ,
wherein the Division Bench, declined to accept
the contention raised on behalf of respondent
that no specific reason is recorded, and that the
authority has reason to believe that the
Sonography machine may furnish evidence of
commission of an offence punishable under the
PNDT Act.
6) In Appropriate Authority v. H.G.Thakkar Hari
X­Rays, Colour, Doppler Sonography & Ors.
(supra) , the Supreme Court, by order dated
09.12.2009, set aside the orders of the High
Court, permitting the Sonography machines to be
sold by making the following observations:­
“In this matter, it was clearly the
exclusive jurisdiction of the concerned
Magistrate since the question pertained to
SCA/6625/2011 42/98 JUDGMENT
the custody of the property seized in a
criminal offence investigation. There does
not appear to be any observations by the
High Court regarding its jurisdiction and
the only reason why the high Court seems to
have passed the order, that it did, is that
on earlier two occasions similar orders were
passed. We do not think that the High Court
had jurisdiction to pass any orders under
Article 226 as there appears to be a
criminal offence registered against the writ
petitioner under Sections 4(1), 5(2), 6(a)
and Rule 9(4), 10(1), 18(1), 23(1), and 9(6)
of the Act. It is also reported that a
charge­sheet has been filed on the basis of
investigations made by the Police as well as
the Appropriate Authority. Therefore, it was
a question of the custody, interim or
otherwise by the Appropriate Authority
involved in the Commission of the offence
then the exclusive jurisdiction would be
that of the concerned Magistrate.
The exercise of powers under Article 226
would be out of question. We, therefore,
quash the Appellate Order of the High Court
which has not considered the question of
jurisdiction and further hold that the writ
petition is not maintainable. The same is
accordingly disposed of, however, in the
circumstances, without any costs.”
SCA/6625/2011 43/98 JUDGMENT
7) The learned advocate for respondent No.2 has
also relied upon judgment in the case of Union of
India and another v. Deoki Nandan Aggarwal
(supra) , wherein, it has been held as below:
“It is not the duty of the Court either to
enlarge the scope of the legislation or the
intention of the legislature when the
language of the provision is plain and
unambiguous. The Court cannot rewrite,
recast or reframe the legislation for the
very good reason that it has no power to
legislate. The power to legislate has not
been conferred on the courts. The Court
cannot add words to a statute or read words
into it which are not there. Assuming there
is a defect or an omission in the words used
by the legislature the Court could not go to
its aid to correct or make up the
deficiency. Courts shall decide what the law
is and not what it should be. The Court of
course adopts a construction which will
carry out the obvious intention of the
legislature but could not legislate itself.
But to invoke judicial activism to set at
naught legislative judgment is subversive of
the constitutional harmony and comity of
instrumentalities.”
(Para 14)
8) Reference has also been made to a judgment of
SCA/6625/2011 44/98 JUDGMENT
this Court in Asmita R. Patel v. State of
Gujarat and Anr. (supra) wherein the Court
rejected the applications for quashing the
complaints made against the petitioner therein,
under the provisions of Section 482 of the Code
of Criminal Procedure. The relevant extract of
the judgment is reproduced hereinbelow:
“14. In the complaint it is provided to
punish the accused so as to restrict the
contravention of the provisions of the PNDT
Act/ Rules and ensure the compliance thereof
to meet the noble cause as envisaged by the
PNDT Act. It was sought to be argued on
behalf of the petitioners that alleged
breaches are technical one. It is true that
it might be that alleged breaches may be
seen to be technical one but provisions of
the Act and Rules which are mandatory are
required to be complied with strictly so as
to achieve ultimate goal of the Act. As
stated hereinabove, certain duties are cast
upon the persons conducting
ultrasonography / image scanning on a
pregnant women so as to check female
foeticide.”
20. It is, by now, a settled position of law that the
rule of exclusion of writ jurisdiction under
SCA/6625/2011 45/98 JUDGMENT
Article 226 of the Constitution of India, due to
availability of an alternative remedy, is more a
rule of discretion, rather than that of
compulsion. Normally, the Court would be slow in
entertaining a petition where an alternative
remedy is available. However, the restriction is
a self­imposed one and in certain contingencies,
a writ Court may still exercise its discretionary
jurisdiction, in spite of availability of an
alternative remedy.
21. In Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and others – (1998)8 SCC 1, the
Supreme Court has held as below:
“14. The power to issue prerogative writs
under Article 226 of the Constitution is
plenary in nature and is not limited by any
other provision of the Constitution. This
power can be exercised by the High Court not
only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement
of any of the Fundamental Rights contained
in Part III of the Constitution but also for
“any other purpose”.
15. Under Article 226 of the Constitution,
SCA/6625/2011 46/98 JUDGMENT
the High Court, having regard to the facts
of the case, has a discretion to entertain
or not to entertain a writ petition. But the
High Court has imposed upon itself certain
restrictions one of which is that if an
effective and efficacious remedy is
available, the High Court would not normally
exercise its jurisdiction. But the
alternative remedy has been consistently
held by this Court not to operate as a bar
in at least three contingencies, namely,
where the writ petition has been filed for
the enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or where
the order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case­law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field.”
22. In the present cases, the petitioner claims that
the principles of natural justice have been
violated by the respondents, both while sealing
the Sonography machines, and in suspending the
PNDT registration of his Clinic. On this ground,
SCA/6625/2011 47/98 JUDGMENT
it has been urged that this Court may exercise
its discretionary jurisdiction, in spite of
availability of alternative remedies under Rule
19 of the Rules regarding sealing, and Section 21
of the PNDT Act, regarding suspension of
registration.
23. The issue that arises for consideration by this
Court is whether there has been a violation of
the principles of natural justice while sealing
the Sonography machines of the petitioner, and
while suspending the registration of his Clinic,
and whether this Court should exercise its
discretionary jurisdiction on this ground despite
the availability of alternative remedies.
24. It would be appropriate to first deal with
contention regarding violation of the principles
of natural justice, in the context of sealing of
the Sonography machines. To this end, it would be
necessary to examine the Scheme of the PNDT Act.
25. The Preamble of the PNDT Act states that it is:
“An Act to provide for the prohibition of
sex selection, before or after conception,
and for regulation of pre­natal diagnostic
techniques for the purposes of detecting
SCA/6625/2011 48/98 JUDGMENT
genetic abnormalities or metabolic disorders
or chromosomal abnormalities or certain
congenital malformations or sex­linked
disorders and for the prevention of their
misuse for sex determination leading to
female foeticide and for matters connected
therewith or incidental thereto.”
The Statement of Objects and Reasons reads as
below:­
“It is proposed to prohibit pre­natal
diagnostic techniques for determination of
sex of the foetus leading to female
foeticide. Such abuse of techniques is
discriminatory against the female sex and
affects the dignity and status of women. A
legislation is required to regulate the use
of such techniques and to provide deterrent
punishment to stop such inhuman act.”
In order to provide for:
(i) prohibition of the misuse of prenatal diagnostic techniques for
determination of sex of foetus, leading to
female foeticide;
(ii) prohibition of advertisement of
pre­natal diagnostic techniques for
detection or determination of sex;
(iii) permission and regulation of the
SCA/6625/2011 49/98 JUDGMENT
use of pre­natal diagnostic techniques for
the purpose of detection of specific genetic
abnormalities or disorders;
(iv) permitting the use of such
techniques only under certain conditions by
the registered institutions; and
(v) punishment for violation of the
provisions of the proposed legislation;
The PNDT Act came into force on 01.01.1996. A few
relevant definitions may be referred to.
“Genetic Clinic” has been defined in Section
2(d), as under:
“”Genetic Clinic” means a clinic, institute,
hospital, nursing home or any place, by
whatever name called, which is used for
conducting pre­natal diagnostic procedures;
Explanation­ For the purposes of this
clause, ‘Genetic Clinic’ includes a vehicle,
where ultrasound machine or imaging machine
or scanner or other equipment capable of
determining sex of the foetus or a portable
equipment which has the potential for
detection of sex during pregnancy or
selection of sex before conception, is
used.”
Section 2(i) reads thus:
SCA/6625/2011 50/98 JUDGMENT
“”pre­natal diagnostic procedures” means all
gynaecological or obstetrical or medical
procedures such as ultrasonography,
foetoscopy, taking or removing samples of
amniotic fluid, chorionic villi, embryo,
blood or any other tissue or fluid of a man,
or of a woman before or after conception,
for being sent to a Genetic Laboratory or
Genetic Clinic for conducting any type of
analysis or pre­natal diagnostic tests for
selection of sex before or after
conception.”
Section 2(j) states that:
“”pre­natal diagnostic techniques” includes
all pre­natal diagnostic procedures and prenatal diagnostic tests.”
Section 2(k) defines “pre­natal diagnostic test”
as below:
“”pre­natal diagnostic test” means
ultrasonography or any test or analysis of
amniotic fluid, chorionic villi, blood or
any tissue or fluid of a pregnant woman or
conceptus conducted to detect genetic or
metabolic disorders or chromosomal
abnormalities or congenital anomalies or
haemoglobinopathies or sex­linked diseases;”
SCA/6625/2011 51/98 JUDGMENT
Section 3 of the PNDT Act provides for regulation
of Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics, and reads as
below:
“3. Regulation of Genetic Counselling
Centres, Genetic Laboratories and Genetic
Clinics.­ On and from the commencement of
this Act,­
(1) no Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic unless
registered under this Act, shall conduct or
associate with, or help in, conducting
activities relating to pre­natal diagnostic
techniques;
(2) no Genetic Counselling Centre or Genetic
Laboratory or Genetic Clinic shall employ or
cause to be employed or take services of any
person, whether on honorary basis or on
payment who does not possess the
qualifications as may be prescribed;
(3) no medical geneticist, gynaecologist
paediatrician registered medical
practitioner or any other person shall
conduct or cause to be conducted or aid in
conducting by himself or through any other
person, any pre­natal diagnostic techniques
at a place other than a place registered
under this Act.”
SCA/6625/2011 52/98 JUDGMENT
Section 3A prohibits sex selection and states
thus:
“3A. Prohibition of sex­selection.­ No
person, including a specialist or a team of
specialists in the field of infertility,
shall conduct or cause to be conducted or
aid in conducting by himself or by any other
person, sex selection on a woman or a man or
on both or on any tissue, embryo, conceptus,
fluid or gametes derived from either or both
of them.”
Section 4 is one of the most important provisions
in the PNDT Act, and reads as below:
“4. Regulation of pre­natal diagnostic
techniques.­ On and from the commencement of
this Act,­­
(1) no place including a registered Genetic
Counselling Centre or Genetic Laboratory or
Genetic Clinic shall be used or caused to be
used by any person for conducting pre­natal
diagnostic techniques except for the
purposes specified in clause (2) and after
satisfying any of the conditions specified
in clause (3);
(2) No pre­natal diagnostic techniques shall
be conducted except for the purposes of
detection of any of the following
abnormalities, namely:­­
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(i) Chromosomal abnormalities;
(ii) Genetic metabolic diseases;
(iii) Haemoglobinopathies;
(iv) Sex­linked genetic diseases;
(v) Congenital anomalies;
(vi) Any other abnormalities or diseases as
may be specified by the Central Supervisory
Board;
(3) no pre­natal diagnostic techniques shall
be used or conducted unless the person
qualified to do so is satisfied for reasons
to be recorded in writing that any of the
following conditions are fulfilled,
namely:­­
(i) Age of the pregnant woman is above
thirty­five years;
(ii) The pregnant woman has undergone of two
or more spontaneous abortions or foetal
loss;
(iii) The pregnant woman had been exposed to
potentially teratogenic agents such as
drugs, radiation, infection or chemicals;
(iv) The pregnant woman or her spouse has a
family history of mental retardation or
physical deformities such as, spasticity or
any other genetic disease;
(v) Any other condition as may be specified
by the Board;
Provided that the person conducting
ultrasonography on a pregnant woman shall
keep complete record thereof in the clinic
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in such manner, as may be prescribed, and
any deficiency or inaccuracy found therein
shall amount to contravention of provisions
of section 5 or section 6 unless contrary is
proved by the person conducting such
ultrasonography;
(4) No person including a relative or
husband of the pregnant woman shall seek or
encourage the conduct of any pre­natal
diagnostic techniques on her except for the
purposes specified in clause (2);
(5) No person including a relative or
husband of a woman shall seek or encourage
the conduct of any sex­selection technique
on her or him or both.”
(emphasis supplied)
Section 5 is relevant in the context of the
issues arising in the petition and is reproduced
below:
“5. Written consent of pregnant woman and
prohibition of communicating the sex of
foetus.­ (1) No person referred to in clause
(2) of section 3 shall conduct the pre­natal
diagnostic procedures unless—
(a) He has explained all known side and
after effects of such procedures to the
pregnant woman concerned;
(b) He has obtained in the prescribed form
her written consent to undergo such
procedures in the language which she
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understands; and
(c) A copy of her written consent obtained
under clause (b) is given to the pregnant
woman.
(2) No person including the person
conducting pre­natal diagnostic procedures
shall communicate to the pregnant woman
concerned or her relatives or any other
person the sex of the foetus by words, signs
or in any other manner.”
Section 6 provides that no pre­natal diagnostic
techniques, including Sonography, can be
conducted for the purpose of determining the sex
of the foetus and that no person shall conduct or
cause to be conducted any pre­natal diagnostic
techniques including ultrasonography for the
purpose of determining the sex of a foetus.
Section 17 provides for appointment of
Appropriate Authority and the Advisory Committee
for the State and the Central Government and
Section 17A delineates the powers of the
Appropriate Authorities in the State.
Section 18 pertains to registration of Genetic
SCA/6625/2011 56/98 JUDGMENT
Counselling Centres, Genetic Laboratories or
Genetic Clinics and sub­section (1) of Section
18, which is relevant, is reproduced hereinbelow:
“18. Registration of Genetic Counselling
Centres, Genetic Laboratories or Genetic
Clinics. ­ (1) No person shall open any
Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, including
clinic, laboratory or center having
ultrasound or imaging machine or scanner or
any other technology capable of undertaking
determination of sex of foetus and sex
selection, or render services to any of
them, after the commencement of the Prenatal Diagnostic Techniques (Regulation and
Prevention of Misuse) Amendment Act, 2002
unless such Centre, Laboratory or Clinic is
duly registered under the Act.”
Section 19 provides for grant of Certificate of
registration by the Appropriate Authority after
holding an inquiry and satisfying itself that the
applicant has complied with the requirements of
the PNDT Act and the Rules.
Section 20 pertains to the cancellation or
suspension of registration and reads as below:
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“20. Cancellation or suspension of
registration.­ (1) The Appropriate Authority
may suo­motu, or on complaint, issue a
notice to the Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic to show
cause why its registration should not be
suspended or cancelled for the reasons
mentioned in the notice.
(2) If, after giving a reasonable
opportunity of being heard to the Genetic
Counselling Centre, Genetic Laboratory or
Genetic Clinic and having regard to the
advice of the Advisory Committee, the
Appropriate Authority is satisfied that
there has been a breach of the provisions of
this Act or the rules, it may, without
prejudice to any criminal action that it may
take against such Centre, Laboratory or
Clinic, suspend its registration for such
period as it may think fit or cancel its
registration, as the case may be.
(3) Notwithstanding anything contained in
sub­sections (1) and (2), if the Appropriate
Authority is, of the opinion that it is
necessary or expedient so to do in the
public interest, it may, for reasons to be
recorded in writing, suspend the
registration of any Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic
without issuing any such notice referred to
in sub­section (1). ”
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Section 21 provides for an alternative remedy of
appeal in case of suspension or cancellation of
registration and reads as below:
“21. Appeal. The Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic may,
within thirty days from the date of receipt
of the order of suspension or cancellation
of registration passed by the Appropriate
Authority under section 20, prefer an appeal
against such order to—
(i) The Central Government, where the appeal
is against the order of the Central
Appropriate Authority; and
(ii) the State Government, where the appeal
is against the order of the State
Appropriate Authority,
in the prescribed manner.”
Section 23 provides for offences and penalties
and is reproduced hereinbelow:
“23. Offences and penalties.­ (1) Any
medical geneticist, gynaecologist,
registered medical practitioner or any
person who owns a Genetic Counselling
Centre, a Genetic Laboratory or a Genetic
Clinic or is employed in such a Centre,
Laboratory or Clinic and renders his
professional or technical services to or at
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such a Centre, Laboratory or Clinic, whether
on an honorary basis or otherwise, and who
contravenes any of the provisions of this
Act or rules made thereunder shall be
punishable with imprisonment for a term
which may extend to three years and with
fine which may extend to ten thousand rupees
and on any subsequent conviction, with
imprisonment which may extend to five years
and with fine which may extend to fifty
thousand rupees.
(2) The name of the registered medical
practitioner shall be reported by the
Appropriate Authority to the State Medical
Council concerned for taking necessary
action including suspension of the
registration if the charges are framed by
the court and till the case is disposed of
and on conviction for removal of his name
from the register of the Council for a
period of five years for the first offence
and permanently for the subsequent offence.
(3) Any person who seeks the aid of a
Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic or ultrasound
clinic or imaging clinic or of a medical
geneticist, gynaecologist, sonologist or
imaging specialist or registered medical
practitioner or any other person for sex
selection or for conducting prenatal
diagnostic techniques on any pregnant women
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for the purposes other than those specified
in subsection (2) of section 4, he shall be
punishable with imprisonment for a term
which may extend to three years and with
fine which may extend to fifty thousand
rupees for the first offence and for any
subsequent offence with imprisonment which
may extend to five years and with fine which
may extend to one lakh rupees.
(4) For the removal of doubts, it is hereby
provided, that the provisions of sub­section
(3) shall not apply to the woman who was
compelled to undergo such diagnostic
techniques or such selection.”
Section 29 mandates that all records, charts,
forms, reports, consent letters and all the
documents required to be maintained under the
PNDT Act and Rules shall be preserved for a
period of two years or for such period as may be
prescribed. In case of criminal or other
proceedings, the records and other documents
shall be preserved till the final disposal of
such proceedings.
Section 30 confers power to search and seize
records. It states thus:
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“30. Power to search and seize records, etc.
– (1) If the Appropriate Authority has
reason to believe that an offence under this
Act has been or is being committed at any
Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic or any other
place, such Authority or any officer
authorised in this behalf may, subject to
such rules as may be prescribed, enter and
search at all reasonable times with such
assistance, if any, as such authority or
officer considers necessary, such Genetic
Counselling Centre, Genetic Laboratory or
Genetic Clinic or any other place and
examine any record, register, document,
book, pamphlet, advertisement or any other
material object found therein and seize and
seal the same if such Authority or officer
has reason to believe that it may furnish
evidence of the commission of an office
punishable under this Act.
(2) The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) relating to
searches and seizures shall, so far as may
be, apply to every search or seizure made
under this Act.”
(emphasis supplied)
Section 32 confers upon the State Government,
powers to make rules for carrying out the
SCA/6625/2011 62/98 JUDGMENT
provisions of the Act, including “the manner in
which the seizure of documents, records, objects,
etc., shall be made and the manner in which
seizure list shall be prepared and delivered to
the person from whose custody such documents,
records or objects were seized under sub­section
(1) of section 30”.
26. In exercise of the aforesaid powers under Section
32, the Central Government has framed the Rules.
Rule 9 provides for maintenance and preservation
of records and is extracted hereinbelow:
“9. Maintenance and preservation of
records.­ (1) Every Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic and Imaging Centre shall
maintain a register showing, in serial
order, the names and addresses of the men or
women given genetic counseling, subjected to
pre­natal diagnostic procedures or pre­natal
diagnostic tests, the names of their spouses
or fathers and the date on which they first
reported for such counseling, procedure or
test.
(2) The record to be maintained by every
Genetic Counselling Centre, in respect of
each woman counselled shall be as specified
in Form D.
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(3) The record to be maintained by every
Genetic Laboratory, in respect of each man
or woman subjected to any pre­natal
diagnostic procedure/technique/test, shall
be as specified in Form E.
(4) The record to be maintained by every
Genetic Clinic, in respect of each man or
woman subjected to any pre­natal diagnostic
procedure/technique/test, shall be as
specified in Form F.
(5) The Appropriate Authority shall maintain
a permanent record of applications for grant
or renewal of certificate of registration as
specified in Form H. Letters of intimation
of every change of employee, place, address
and equipment installed shall also be
preserved as permanent records.
(6) All case related records, forms of
consent, laboratory results, microscopic
pictures, sonographic plates or slides,
recommendations and letters shall be
preserved by the Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic or Imaging Centre for a
period of two years from the date of
completion of counseling, prenatal
diagnostic procedure or pre­natal diagnostic
test, as the case may be. In the event of
any legal proceedings, the records shall be
preserved till the final disposal of legal
proceedings, or till the expiry of the said
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period of two years, whichever is later.
(7) In case the Genetic Counselling Centre
or Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic or Imaging Centre
maintains records on computer or other
electronic equipment, a printed copy of the
record shall be taken and preserved after
authentication by a person responsible for
such record.
(8) Every Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic and Imaging Centre shall
send a complete report in respect of all
pre­conception or pregnancy related
procedures/techniques/tests conducted by
them in respect of each month by 5th day of
the following month to the concerned
Appropriate Authority. ”
Sub­rule (1) of Rule 11 provides that every
Genetic Counselling Centre, Genetic Laboratory
and Genetic Clinic, Ultrasound Clinic, Imaging
Centre, nursing home, hospital, institute or any
other place where any of the machines or
equipments capable of performing any procedure,
technique or pre­natal determination of sex or
selection of sex before or after conception is
used, shall afford all reasonable facilities for
SCA/6625/2011 65/98 JUDGMENT
inspection of the place, equipment and records to
the Appropriate Authority or to any other person
authorized by the Appropriate Authority in this
behalf.
Sub­rule (2) of Rule 11 states as below:
“11(2) The Appropriate Authority or the
officer authorized by it may seal and seize
any ultrasound machine, scanner or any other
equipment, capable of detecting sex of
foetus, used by any organization if the
organization has not got itself registered
under the Act. These machines of the
organizations may be released if such
organization pays penalty equal to five
times of the registration fee to the
Appropriate Authority concerned and give an
undertaking that it shall not undertake
detection of sex of foetus or selection of
sex before or after conception”.
Rule 12 lays down the procedure for search and
seizure as under:
“12. Procedure for search and seizure.­ (1)
The Appropriate Authority or any officer
authorized in this behalf may enter and
search at all reasonable times any Genetic
Counselling Centre, Genetic Laboratory,
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Genetic Clinic, Imaging Centre or
Ultrasound Clinic in the presence of two or
more independent witnesses for the purposes
of search and examination of any record,
register, document, book, pamphlet,
advertisement, or any other material object
found therein and seal and seize the same if
there is reason to believe that it may
furnish evidence of commission of an offence
punishable under the Act.
Explanation: ­ In these Rules­
(1) ‘Genetic Laboratory/Genetic
Clinic/Genetic Counselling Centre’ would
include an ultrasound center/ imaging center
/ nursing home/ hospital /institute or any
other place, by whatever name called, where
any of the machines or equipments capable of
selection of sex before or after conception
or performing any procedure, technique or
test for pre­natal detection of sex of
foetus is used;
(2) ‘material object’ would include records,
machines and equipments; and
(3) ‘seize’ and ‘seizure’ would include
‘seal’ and ‘sealing’ respectively. ”
(emphasis supplied)
Rule 19 provides for the remedy of appeal and
reads as below:
“19. Appeals.­ (1) Anybody aggrieved by the
decision of the Appropriate Authority at
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sub­district level may appeal to the
Appropriate Authority at district level
within 30 days of the order of the subdistrict level Appropriate Authority.
(2) Anybody aggrieved by the decision of the
Appropriate Authority at district level may
appeal to the Appropriate Authority at
State/UT level within 30 days of the order
of the District level Appropriate Authority.
(3) Each appeal shall be disposed of by the
District Appropriate Authority or by the
State/Union Territory Appropriate Authority,
as the case may be, within 60 days of its
receipt.
(4) If an appeal is not made within the time
as prescribed under sub­rule (1), (2) or
(3), the Appropriate Authority under that
sub­rule may condone the delay in case he/
she is satisfied that appellant was
prevented for sufficient cause from making
such appeal.”
27. A perusal of the Scheme of the PNDT Act and the
Rules framed thereunder makes it clear that no
pre­natal diagnostic techniques shall be
conducted, except for the purpose of detection of
abnormalities as mentioned in sub­section (2) of
Section 4 of the PNDT Act. A pre­natal diagnostic
technique includes all pre­natal diagnostic
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procedures and pre­natal diagnostic tests as per
section 2(j) of the Act and a pre­natal
diagnostic test would include an ultra­sonography
test as per Section 2(k). The power of search and
seizure is conferred by Section 30 and the
procedure to be followed during search and
seizure is delineated in Rule 12 of the Rules.
Section 30 provides that if the Appropriate
Authority has reason to believe that an offence
under the Act has been, or is being committed, at
any Genetic Counselling Center, Genetic
Laboratory, Genetic Clinic or any other place,
such authority or any officer authorized in this
behalf may, subject to the Rules, enter and
search at all reasonable times, such Genetic
Counselling Centre, Genetic Laboratory, Genetic
Clinic or any other place and examine any record,
register, document, book, pamphlet,
advertisement, or any other material object found
therein and seize and seal the same if such
Authority or officer has reason to believe that
it may furnish evidence of the commission of an
offence punishable under the Act. Explanation
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(1) to Rule 12 states that “material object”
would include records, machines and equipments
and explanation (3) to Rule 12 states that
`seize’ and `seizure’ would include `seal’ and
`sealing’ respectively. A combined reading of
Section 30 of the Act and Rule 12 of the Rules
makes it clear that the machine and equipment
found at the Clinic that is being searched can be
seized and sealed if the Appropriate Authority
has reason to believe that it may furnish
evidence of the commission of an offence
punishable under the PNDT Act. The purpose behind
seizure and sealing of a machine or equipment (in
the present case, Sonography machines of the
petitioner) is to furnish evidence of commission
of an offence punishable under the Act. As per
section 23, any person mentioned therein, who
contravenes any of the provisions of the PNDT Act
or Rules, shall be punishable with imprisonment
for a term which may extend to three years and
with fine, as provided in the Act. There is no
specific provision in the PNDT Act contemplating
the issuance of a show cause notice before
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seizure or sealing of document and other
equipment from the Genetic Clinic, Genetic
Laboratory or Genetic Counselling Centre, as the
case may be. The power of sealing of the
Sonography machine is conferred upon the
Appropriate Authority and is to be exercised if
it believes that the machine may furnish evidence
of the commission of an offence. Sealing is not
stated to be a penalty for contravention of any
provision of the PNDT Act or Rules though it may
be a consequential action. There is no express
provision in the Act or Rules that provides for
issuance of a show cause notice before drawing
the Panchnama or sealing the machines. A
contention has been raised by the learned
advocate for the petitioner that the principles
of natural justice should be read into the
provisions of the Act and Rules, and it would be
obligatory on the part of the Appropriate
Authority to issue a show cause notice to the
petitioner and grant him an opportunity of
hearing, before sealing the Sonography machines.
28. At this stage, reference may fruitfully be made
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to certain decisions of the Supreme Court with
regard to the plea of violation of the principles
of natural justice.
(1) In Union of India v. Col. J.N.Sinha And
Another reported in 1970(2) SCC 458, the issue
before the Supreme Court involved the compulsory
retirement of the petitioner therein under
Fundamental Rule (F.R.) 56(j) which, in terms,
does not require that any opportunity should be
given to the concerned Government servant, to
show cause against his compulsory retirement.
Admittedly, no opportunity was granted to the
said Government servant to show cause against his
compulsory retirement. The High Court held that
this amounted to a contravention of the
principles of natural justice. In this context,
the Supreme Court held that:
“8. Fundamental Rule 56(j) in terms does not
require that any opportunity should be given
to the, concerned government servant ’to
show cause against his compulsory
retirement. A government ­servant serving
under the Union of India holds his office at
the pleasure of the President as provided in
Art. 310 of the Constitution. But this
SCA/6625/2011 72/98 JUDGMENT
“pleasure” doctrine is subject to the rules
or law made under Art. 309 as well as to the
conditions prescribed under Art. 311. Rules
of natural justice are not embodied rules
nor can they be elevated to the position of
fundamental rights. As observed by this
Court in A.K.Kraipak and Ors. v. Union of
India [(1969)2 SCC 262] “the aim of rules of
natural justice is to secure justice or to
put it negatively to prevent miscarriage of
justice. These rules can operate only in
areas not covered by any law validly made.
In other words they do not supplant the law
but supplement it.” It is true that if a
statutory provision can be read consistently
with the principles of natural justice, the
courts should do so because it must be
presumed that the Legislatures and the
statutory authorities intend to act in
accordance with the principles of natural
justice. But if on the other hand a
statutory provision either specifically or
by necessary implication excludes the
application of any or all the principles of
natural justice then the court cannot ignore
the mandate of the Legislature or the
statutory authority and read into the
concerned provision the principles of
natural justice. Whether the exercise of a
power conferred should be made in accordance
with any of the principles of natural
SCA/6625/2011 73/98 JUDGMENT
justice or not depends upon the express
words of the provision conferring the power,
the nature of the power conferred, the
purpose for which it is conferred and the
effect of the exercise of that power. ”
(emphasis supplied)
(2) The above position of law has been reiterated
by the Supreme Court in its recent judgment in
the case of Automotive Tyre Manufacturers
Association v. Designated Authority And Others
reported in (2011)2 SCC 258.
“80. It is thus, well settled that unless a
statutory provision, either specifically or
by necessary implication excludes the
application of principles of natural
justice, because in that event the Court
would not ignore the legislative mandate,
the requirement of giving reasonable
opportunity of being heard before an order
is made, is generally read into the
provisions of a statute, particularly when
the order has adverse civil consequences
which obviously cover infraction of
property, personal rights and material
deprivations for the party affected. The
principle holds good irrespective of whether
the power conferred on a statutory body or
Tribunal is administrative or quasijudicial. It is equally trite that the
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concept of natural justice can neither be
put in a strait­jacket nor is it a general
rule of universal application.
81. Undoubtedly, there can be exceptions to
the said doctrine. As stated above, the
question whether the principle has to be
applied or not is to be considered bearing
in mind the express language and the basic
scheme of the provision conferring the
power; the nature of the power conferred and
the purpose for which the power is conferred
and the final effect of the exercise of that
power. It is only upon a consideration of
these matters that the question of
application of the said principle can be
properly determined. (See: Union of India
v. Col.J.N. Sinha [(1970)2 SCC 458] ”
(3) It is well­settled that the principles of
natural justice cannot be put in a straitjacket,
and their applicability would depend upon the
context and facts and circumstances of each case.
In this regard, the Supreme Court has held, in
Bar Council of Kerala v. High Court of Kerala
reported in (2004)6 SCC 311, thus:
“45. Principles of natural justice are
required to be observed by a court or
tribunal before a decision is rendered
involving civil consequences. They may only
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in certain situations be read into Article
14 of the Constitution of India when an
order is made in violation of the rules of
natural justice. Principles of natural
justice, however, cannot be stretched too
far. Their application may be subject to the
provisions of a statute or statutory rule.”
(emphasis supplied)
(4) In Divisional Manager, Plantation Division,
Andaman & Nicobar Islands v. Munnu Barrick And
Others reported in (2005)2 SCC 237, the Supreme
Court has held as below:
“17. The principles of natural justice cannot
be put in a strait­jacket formula. It must
be viewed with flexibility. In a given case,
where a deviation takes place as regard
compliance of the principles of natural
justice, the Court may insist upon proof of
prejudice before setting aside the order
impugned before it. [See Bar Council of
India v. High Court of Kerala, (2004) 6 SCC
311].
18. The Presiding Officer, Labour Court, as
noticed hereinbefore, committed a manifest
error in invoking Article 311 of the
Constitution of India in the instant case.
19. In Karunakar [(1993)4 SCC 727], this
Court has clearly held that the employee
must show sufferance of prejudice by non
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obtaining a copy of the enquiry report.
20. This Court in Canara Bank [(2003)4 SCC
557] while following Karunakar (supra) held:
(SCC p.572, para 19)
“19. Concept of natural justice has
undergone a great deal of change in
recent years. Rules of natural justice
are not rules embodied always expressly
in a statute or in rules framed
thereunder. They may be implied from the
nature of the duty to be performed under
a statute. What particular rule of
natural justice should be implied and
what its context should be in a given
case must depend to a great extent on
the fact and circumstances of that case,
the frame­work of the statute under
which the enquiry is held. The old
distinction between a judicial act and
an administrative act has withered away.
Even an administrative order which
involves civil consequences must be
consistent with the rules of natural
justice. The expression “civil
consequences” encompasses infraction of
not merely property or personal rights
but of civil liberties, material
deprivations, and non­pecuniary damages.
In its wide umbrella comes everything
that affects a citizen in his civil
life.””
(emphasis supplied)
(5) In Ganesh Santa Ram Sirur v. State Bank of
India And Another reported in (2005)1 SCC 13,
the Supreme Court has held as below:
“31. Mr. Salve invited our attention to Para
17 of the Judgment in State Bank of Patiala
v. S.K. Sharma, 1996(3) SCC 364, which deals
with the opinion of the House of Lords in
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the United Kingdom. He also drew our
attention to S.L. Kapoor v. Jagmohan,
(1980)4 SCC 379 and Managing Director ECIL
vs B. Karunakar, 1993 (4) SCC 727 in SCC
para 25, 26 and 28. The decisions relied on
and cited above make one thing clear,
namely, principles of natural justice cannot
be reduced to any hard and fast formulae and
as said in Russel v. Duke of Norfold (1949)
1 All ER 109 (CA), these principles cannot
be put in a strait jacket. Their
applicability depends upon the context and
the facts and circumstances of each case.
The objective is to ensure a fair hearing, a
fair deal to a person whose rights are going
to be affected. In our opinion, the approach
and test adopted in Karunakar case should
govern all cases where the complaint is not
that there was no hearing, no notice, no
opportunity and no hearing but one of not
affording a proper hearing that is adequate
or a full hearing or violation of a
procedural rule or requirement governing the
enquiry. ”
29. From the above decisions, it emerges that where
there is no express provision for grant of an
opportunity of hearing, the applicability of the
principles of natural justice would depend upon
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the express language of the statute, its basic
scheme, nature of power, the purpose for which
the power is conferred and the effect of the
exercise of such power. The language of the
statute may expressly or, by necessary
implication, bar the applicability of the
principles of natural justice. In short, the
principles of natural justice cannot be stretched
too far, and their application may be subject to
the particular provisions of the statute and the
object for which the statute has been enacted.
30. As has been discussed hereinabove, there is no
express provision in the PNDT Act or the Rules
for issuance of a show cause notice before making
a Panchnama and sealing the Sonography machines
or seizing documents or other equipment from the
Genetic Clinic concerned. Section 30 makes it
clear that the power to seize any document,
record, register, book, pamphlet, advertisement
or any other material object which has been found
( including machines) is to be exercised if the
Appropriate Authority has a reason to believe
that it may furnish evidence of a commission of
SCA/6625/2011 79/98 JUDGMENT
an offence under the PNDT Act. The Sonography
machines of the petitioner have been sealed, and
a criminal case has been registered against him.
It would, therefore, mean that the Appropriate
Authority had reason to believe that the said
machines may furnish evidence of commission of an
offence under the PNDT Act. In such
circumstances, when the sealing of the machines
has been carried out with a view to collect
evidence, the submission made by the learned
advocate for the petitioner that an opportunity
to show cause should have been afforded to the
petitioner before drawing the Panchnama or
sealing the machines, is not acceptable.
31. Sub­section (2) of Section 30 stipulates that the
provisions of the Code of Criminal Procedure,
1973, relating to searches and seizures shall
apply to every search and seizure made under the
PNDT Act. The object and scope of Section 100 of
the Code is that it provides for the right of
free ingress in case of closed premises, on
production of a warrant of search by the Police
officer and it seeks to ensure that searches are
SCA/6625/2011 80/98 JUDGMENT
conducted fairly. For the said purpose, two
independent and respectable witnesses of the
locality should be present. When a search is
conducted under this provision, evidence can be
given regarding the thing seized in the course of
the search. The same principles would apply to
the power to search and seizure of records,
vested upon the Appropriate Authority under
Section 30 of the PNDT Act, and Rule 12 of the
Rules. Taking into consideration the object and
scope of section 30 of the Act read with Rule 12
of the Rules, which is to exercise the power of
sealing and seizure in order to furnish evidence
of commission of an offence, it cannot be said
that a prior show cause notice should be given
before conducting such search and seizure in
order to comply with the principles of natural
justice, as to do so would not be in consonance
with the object and purpose for which the said
provisions have been enacted. It was open to the
Legislature to have provided for an opportunity
of hearing before sealing the machines or seizing
documents and other equipment, had this been the
SCA/6625/2011 81/98 JUDGMENT
intention. There is a provision for issuance of a
show cause notice under Section 20(1) and (2) of
the Act before suspending or cancellation of the
registration of the Clinic, but there is no such
provision regarding sealing of machines. The
omission appears to be a conscious legislative
intention, considering that sealing of machines
is to be carried out if the Appropriate Authority
considers that it may furnish evidence of the
commission of an offence. Keeping in view the
Scheme of the PNDT Act, the purpose for which the
Sonography machines are sealed and the fact that
there is no express provision contemplating the
issuance of a prior show cause notice, it is
clear that the applicability of principles of
natural justice has been barred by necessary
implication. In view of the above, in my
considered view, there has been no violation of
the principles of natural justice while drawing
the Panchnama and sealing the Sonography machines
of the petitioner.
32. Insofar as the submission regarding violation of
the fundamental rights of the petitioner under
SCA/6625/2011 82/98 JUDGMENT
Article 19(1)(g) of the Constitution is
concerned, it has to be kept in mind that the
Sonography machines have been sealed in order to
furnish evidence in the criminal case filed
against the petitioner. It, therefore, cannot be
said that the petitioner has been deprived of his
right to carry on his profession, as the
petitioner is bound to conduct his profession in
accordance with the provisions of the PNDT Act.
Any consequences arising out of the alleged
violations of the said statute would not amount
to violation of the fundamental rights of the
petitioner under Article 19(1)(g) of the
Constitution.
33. Regarding the submission that no reasoned order
has been passed before sealing the Sonography
machines, it can only be said, at the cost of
repetition, that it has been resorted to in order
to furnish evidence of commission of an offence
in the criminal case filed against the
petitioner. There is no requirement of passing a
reasoned order before taking such action, in the
context of the provisions of Section 30 of the
SCA/6625/2011 83/98 JUDGMENT
PNDT Act and Rule 12 of the Rules.
34. It is not disputed that an alternative remedy is
available to the petitioner, to agitate his
grievance regarding sealing of the machines, as
provided under Rule 19 of the Rules. Sub­rule (4)
of Rule 19 empowers the Appropriate Authority to
condone the delay in case he/ she is satisfied
that the appellant was prevented by sufficient
cause from making such appeal within time.
35. As already noted hereinabove, in Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai
and others (supra) , the Supreme Court has
considered three contingencies which would not
operate as a bar in the exercise of jurisdiction
by the High Court under Article 226 of the
Constitution of India in spite of availability of
an alternative remedy. The relevant extract of
the judgment has already been reproduced earlier.
36. In view of the detailed discussion and conclusion
arrived at by this Court that there is no
provision in the PNDT Act requiring prior
issuance of a show cause notice before sealing
the Sonography machines in exercise of power
SCA/6625/2011 84/98 JUDGMENT
conferred under Section 30 of the PNDT Act read
with Rule 12 of the Rules, and that the
application of the principles of natural justice
is impliedly barred, considering the object and
purpose of the Act, and nature of power and
intention of the Legislature, as reflected in the
Scheme of the Act, in my considered view, the
contingency regarding violation of the principles
of natural justice does not arise, as stated in
Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and others (supra), so as to
persuade this Court to exercise jurisdiction in
spite of availability of an alternative remedy.
37. It is relevant to note that the nature and object
of exercise of power under Section 30 and Rule 12
is for furnishing evidence of commission of an
offence under the PNDT Act. Keeping this purpose
in view, the prior issuance of a show cause
notice would defeat the very purpose for which
the power is to be exercised, and may result in
prejudice in the criminal proceedings.
38. In this regard, reference may be made to the
observations of the Supreme Court in Appropriate
SCA/6625/2011 85/98 JUDGMENT
Authority v. H.G.Thakkar Hari X­Rays, Colour,
Doppler Sonography & Ors. (supra) that have been
reproduced hereinabove, regarding custody of the
property seized in a criminal offence, wherein it
has been held by the Supreme Court that the High
Court ought not to have exercised jurisdiction
under Article 226 of the Constitution of India as
a criminal offence under the PNDT Act had been
registered against the petitioner therein,
regarding the Sonography machines seized therein.
A criminal case has been registered against the
petitioner and the above observations would have
a bearing on the present case.
39. As a result of the above discussion, the prayer
made by the petitioner to direct the respondents
to remove the seals from the Sonography machines
of the petitioner cannot be granted.
40. With regard to suspension of the certificate of
registration of the Clinic of the petitioner, the
record reveals that the “Imaging House” of the
petitioner has been granted a certificate of
registration for a period of five years, ending
on 07.04.2014. The registration has been granted
SCA/6625/2011 86/98 JUDGMENT
subject to the PNDT Act and Rules. It is clearly
stated in the Certificate that any contravention
of the PNDT Act and Rules shall result in
suspension, or cancellation, of the Certificate
of Registration, before the expiry of the period
of five years, apart from inviting prosecution.
41. It is not in dispute that on 13.02.2010, the
Appropriate authority under the PNDT Act visited
the Clinic of the petitioner and carried out an
inspection. It was found that Form­F is not being
filled up by the petitioner though, as per the
case of the respondent – Authority, the PNDT Act
requires that Form­F should be filled up and
signed by the concerned Radiologist /
Gynaecologist, who has conducted the ultrasound
test on the pregnant woman. The Appropriate
Authority found that Form­F was being filled up
by the staff of the petitioner which, as per the
said notice, amounts to a serious contravention
of the provisions of the PNDT Act. The petitioner
replied to the said notice on 19.02.2010,
undertaking that he shall personally fill up
Form­F in future, and take care. This explanation
SCA/6625/2011 87/98 JUDGMENT
was accepted by the Appropriate Authority. By
communication dated 20.05.2010, the Appropriate
Authority, while informing the petitioner
regarding acceptance of his explanation, directed
him to ensure strict compliance of the provisions
of the PNDT Act. A second inspection of the
Clinic of the petitioner took place on
23.09.2010, and five contraventions of the PNDT
Act and Rules, as detailed in the notice,
regarding filling up of Form­F were found. The
petitioner gave his explanation vide reply dated
24.09.2010, stating that he would rectify the
said lapses. This explanation was also accepted
by the District PNDT Advisory Committee and the
petitioner was so informed, by communication
dated 01.12.2010. Once again, the petitioner was
directed to ensure that no contraventions of the
provisions of the PNDT Act and the Rules take
place at his Clinic, in future. The Clinic of the
petitioner was inspected for the third time on
28.04.2011, and two contraventions of the PNDT
Act were found. The contents of the notice dated
28.04.2011, have already been reproduced
SCA/6625/2011 88/98 JUDGMENT
hereinabove. The explanation rendered by the
petitioner, vide letter dated 01.05.2011, was not
found to be satisfactory by the District PNDT
Advisory Committee. The petitioner was so
informed, by communication dated 20.05.2010,
stating that in spite of earlier warnings,
contraventions of the provisions of the PNDT Act
have continued to be made in the Clinic of the
petitioner. Resultantly, the impugned order dated
13.05.2011 came to be passed, suspending the
registration of the petitioner’s Clinic, till
further orders.
42. The main contention raised by the learned
advocate for the petitioner is that the notice
dated 28.04.2011, is stated to be issued under
Section 20(1) and (2) of the PNDT Act, but is not
in consonance with the said provisions of law, as
it is not stated that it is a show cause notice,
or why the registration of the petitioner should
be suspended or cancelled. It has also been
contended that the period for which the
registration has been suspended is not mentioned,
as stated in sub­section (2) of Section 20 of the
SCA/6625/2011 89/98 JUDGMENT
PNDT Act, and no proper opportunity of hearing
has been afforded to the petitioner. In short,
the contention is that due to the above­mentioned
shortcomings in the notice dated 28.04.2011,
there has been a violation of the principles of
natural justice.
43. It is not disputed that an alternative, statutory
remedy is available to the petitioner under
Section 21 of the PNDT Act against suspension of
the registration. The said remedy has not been
availed, and the jurisdiction of this Court under
Article 226 of the Constitution has been invoked,
on the ground of violation of the principles of
natural justice.
44. In order to examine the above contentions, it
would be pertinent to revert to the contents of
the notice dated 28.04.2011, which is reproduced
hereinbelow:
“OFFICE OF THE DISTRICT APPROPRIATE
AUTHORITY (UNDER PNDT ACT 1994)
The premises of Dr.Kalpesh Patel’s Imaging
House, has been inspected by the A.A. & CDHO
Ahmedabad Dr.N.J.Patel today i.e. on
28.04.2011 and found the following
deficiencies:
1) Register to be maintained with details
SCA/6625/2011 90/98 JUDGMENT
of women (ANC) undergoing USG is not fill up
to date of today. It is filled up to dated
23.02.2011.
2) on inspection of form “F” of period
January 11 to April, 2011, in one form there
is no sign doctor doing sonography & its
doctors declaration part. In eight form “F”
there is no sign. of the pregnant women
in declaration of the woman part of the form
“F” Totally nine form “F” were filled with
deficiency of inaccuracy.
In view of above contraventions of the also
under PC & PNDT Act, 1994 it is the public
interest that in exercise of the provision
under section 20(1) & (2) of the PC & PNDT
Act, I also order for issuing show cause
notice for complying the aforesaid
contravention within three days. The
following documents/ materials are also
being seized.
1) The deficiently filled nine form “F” as
mentioned above with a referal letter in
eight of them.
The PNDT Register’s last page Xerox copy.
Sd/­
(District Appropriate Authority)
28.04.2011
Appropriate Authority,
Pre­natal Diagnostic
Technique Act, 1994
of Ahmedabad District
And C.D.H.O.”
45. The said notice may not be very happily worded
but it is evident from a perusal thereof that it
has been issued under sub­sections (1) and (2) of
Section 20 of the PNDT Act, and that the
SCA/6625/2011 91/98 JUDGMENT
petitioner has been given three days in which to
reply. Though the word `reply’ has not been
specifically stated, and the language used is
“for complying the above said contravention
within three days”, it has been understood by the
petitioner that he is to reply within three days.
The petitioner has, in fact, furnished a reply
within the specified period of time, on
01.05.2011. The earlier notices issued to the
petitioner on 13.02.2010 and 23.09.2010, are
similarly worded, and on both occasions, the
petitioner has rendered his explanations within
the period of time stipulated therein. Those
explanations have been accepted by the
Appropriate Authority. The petitioner has not
raised any such contention as is being raised
regarding the impugned notice. So far as those
two notices are concerned, it has not been stated
by him that those notices were not in consonance
with the provisions of Section 20(1) and (2) of
the PNDT Act. The petitioner is well aware of the
fact that the notice dated 28.04.2011 has been
issued under Section 20(1) and (2) of the PNDT
SCA/6625/2011 92/98 JUDGMENT
Act and has, accordingly, rendered his
explanation, which has not been accepted.
46. An opportunity of hearing and putting up his
defence has been afforded to the petitioner and
he has availed of the same by offering his
explanation. It, therefore, cannot be said that
as the impugned notice has not been properly
worded, the petitioner has been deprived of a
proper opportunity of hearing. Such a contention
has never been raised by the petitioner in the
reply dated 01.05.2011, while furnishing his
explanation pursuant to the said notice.
47. The object of the principles of natural justice
which is now understood as being synonymous with
the obligation to provide a fair hearing, is to
ensure that there is no failure of justice and
that justice is done equally between the parties.
48. In this regard, the observations of the Supreme
Court in State Bank of Patiala And Others v.
S.K.Sharma (supra), are pertinent:
“32. Now, coming back to the illustration
given by us in the preceding paragraph,
would setting aside the punishment and the
entire enquiry on the ground of aforesaid
SCA/6625/2011 93/98 JUDGMENT
violation of sub­clause (iii) be in the
interests of justice or would it be its
negation? In our respectful opinion, it
would be the latter. Justice means justice
between both the parties. The interests of
justice equally demand that the guilty
should be punished and that technicalities
and irregularities which do not occasion
failure of justice are not allowed to defeat
the ends of justice. Principles of natural
justice are but the means to achieve the
ends of justice. They cannot be perverted
to achieve the very opposite end. That would
be a counter­productive exercise. ”
(emphasis supplied)
49. As stated by the Supreme Court in the abovequoted judgment, technicalities and
irregularities which do not occasion a failure of
justice should not be allowed to defeat the ends
of justice. The petitioner has been afforded a
reasonable opportunity of hearing, which he has
availed, by offering his explanation. The
petitioner was aware that he was required to meet
the allegations levelled against him in the
impugned notice, and has given his reply. It
should be borne in mind that this is not the
SCA/6625/2011 94/98 JUDGMENT
first notice under Section 20(1) and (2) received
by the petitioner, but the third one. The
petitioner has replied to all the notices which
are similarly worded, each time, and it is only
when his explanation to the last notice has not
been accepted that a grievance has been raised
regarding violation of the principles of natural
justice. In these circumstances, the contention
that the principles of natural justice have been
violated on the technical ground that the
impugned notice is not properly worded, as
envisaged in sub­section (1) of Section 20, is
neither plausible nor convincing. What is
necessary is that a reasonable opportunity of
hearing should be granted, which has been done in
the present case. In the reply dated 01.05.2011,
the petitioner has not complained that he has not
been granted an adequate opportunity of hearing,
or that he would like to offer a further
explanation. On the contrary, the petitioner has
given an assurance that he would rectify the
contraventions of the PNDT Act, alleged to have
been committed by him.
SCA/6625/2011 95/98 JUDGMENT
50. The cumulative effect of the above discussion is
that, keeping in mind the Scheme, object and
purpose of the PNDT Act, and the Rules framed
thereunder, and considering that there is no
specific provision requiring a show cause notice
to be issued before sealing the Sonography
machines under Section 30 of the PNDT Act read
with Rule 12 of the Rules, there has been no
violation of the principles of natural justice at
the hands of the respondent – Appropriate
Authority while sealing the machines. The nature
of power vested under Section 30 of the PNDT Act
read with Rule 12 of the Rules, which empowers
the Appropriate Authority to exercise the power
for the purposes of search, seizure or sealing,
if it has reason to believe that such action is
necessary in order to furnish evidence of
commission of an offence under the PNDT Act,
makes the intention of the Legislature abundantly
clear. The very purpose and object for which the
Section and Rule have been enacted would be
defeated if prior notice of sealing is given. To
do so may result in important evidence being
SCA/6625/2011 96/98 JUDGMENT
lost. It can, therefore, be said that the
intention of the Legislature that can be gathered
from the Scheme of the Act is to bar the
applicability of the principles of natural
justice by necessary implication with regard to
the provisions of Section 30 of the PNDT Act,
read with Rule 12 of the Rules. The judgments
relied upon by the learned advocate for the
petitioner would, therefore, not be applicable in
the context of the object, purpose, and Scheme of
the PNDT Act with regard to sealing of the
Sonography machines. Reference can be made to
Kilol v. Shelat v. Municipal Corporation of City
of Ahmedabad & Anr. (supra), relied upon by the
learned advocate for the petitioner, wherein a
Division Bench of this Court has held that the
principles of natural justice would have to be
read into the provisions of Section 210 of the
BPMC Act. There, the Court was dealing with the
right to property, which is quite distinct and
distinguishable obligation of the petitioner to
conduct his profession in accordance with the
provisions of the PNDT Act. In the present case,
SCA/6625/2011 97/98 JUDGMENT
the Sonography machines have been sealed so as to
furnish evidence of the commission of an offence
under the PNDT Act. The BPMC Act cannot be
equated with the PNDT Act and the circumstances
and factual matrix, as obtaining in the judgment
of the Division Bench and in the present case,
are entirely on a different premise, therefore,
the principle of law enunciated in the said
judgment would not be applicable to the present
case.
51. As already discussed hereinabove, there has been
no violation of the principles of natural justice
insofar as the suspension of the registration of
the Clinic of the petitioner is concerned. The
impugned notice dated 28.04.2011 cannot be said
to be bad merely on technical considerations as
there has been a substantial compliance with the
provisions of Section 20(1) and (2) of the PNDT
Act. An opportunity of hearing has been granted
to the petitioner, which has been availed of, by
rendering his explanation.
52. In my considered view, as alternative statutory
remedies are available to the petitioner under
SCA/6625/2011 98/98 JUDGMENT
Rule 19 of the Rules and Section 21 of the PNDT
Act, with regard to sealing of Sonography
machines and suspension of registration of his
Clinic, no such contingency exists justifying the
invocation of the jurisdiction of this Court
under Article 226 of the Constitution of India,
by by­passing the statutory remedies.
53. Resultantly, both Special Civil Application
No.6625 of 2011, and Special Civil Application
No.7234 of 2011, stand rejected.
54. It is clarified that the Court has not entered
into the merits of both petitions, and it is open
to the petitioner to invoke the alternative
remedies as provided under the PNDT Act and
Rules, if so desired. In that event, the
Appellate Authority may not be influenced by any
observation made in this judgment.
55. Rule is discharged in both the petitions. There
shall be no orders as to costs.
(Smt. Abhilasha Kumari, J.)
(sunil)
.

Dr K.P.Singh versus state


MM orders

judis.nic.in_causelists_DO_Retrieved

District & Sessions Judge  South East : Saket Courts orders

Dr KPSingh

SABU MATHEW GEORGE VS UNION OF INDIA & ORS.


wc34108

WP(C) 341/20081
ITEM NO.23 COURT NO.5 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Writ Petition (Civil) No.341 of 2008
SABU MATHEW GEORGE Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date : 04/12/2014 This petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE DIPAK MISRA
HON’BLE MR. JUSTICE UDAY UMESH LALIT

For Petitioner(s) Mr. Sanjay Parikh, Adv.
Mr. Ritwik Parikh, Adv.
Mr. A.N. Singh, Adv.
Ms. Manjula Gupta, AOR

For Respondent(s) Mr. Shyam Divan, Sr. Adv.
No.3 Mr. Sajan Poovayya, Sr. Adv.
Mr. Sumit Attri, Adv.
Mr. Praveen Sehrawat, Adv.
Mr. Pratyush Panjwani, Adv.
Mr. Mahesh Agarwal, Adv.
Mr. Rishi Agrawala, Adv.
Ms. Priyadarshi Banerjee, Adv.
Mr. E. C. Agrawala, AOR
For R-4 Mr. Anupam Lal Das, AOR
For R-5 Mr. K.V. Vishwanathan, Sr. Adv.
Mr. Anuj Berry, Adv.
Mr. Tanuj Bhushan, Adv.
for M/s Suresh A. Shroff & Co.
For R-2 Mr. Arvind Kumar Sharma, AOR
For R-1 Ms. Binu Tamta, Adv.
Ms. Gunwant Dar, Adv.
Mr. D. S. Mahra, AORWP(C) 341/2008

UPON hearing the counsel the Court made the following
O R D E R
It is submitted by Mr. Sanjay Parikh, learned
counsel appearing for the petitioner that despite the legal
prohibition, the respondents, namely, Google India, Yahoo
India and Mocrosoft Corporation (I) Pvt. Ltd., are still
getting things advertised in violation of the legal
provisions contained in the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994, as amended from time to time. Learned counsel would
submit that the Department of Information Technology,
Ministry of Communication and Information and the competent
authority of Department of Health and Family Welfare are
required to work harmoniously to see to it that the
provisions of the 1994 Act are not violated, for that gravely
affects the sex ratio in the country which has been seriously
viewed by the legislature, as well as by this Court on the
basis of legislation made by the Parliament.
Mr. Shyam Divan, learned senior counsel appearing
for the respondent No3, Mr. Anupam Lal Das, learned counsel
appearing for the respondent No.4 and Mr. K.V. Vishwanathan,
learned senior counsel appearing for the respondent No.5,
pray for some time to file their respective replies to the
rejoinder affidavit filed by the petitioner. WP(C) 341/2008
3

Before we proceed to deal with the prayer for grant
of time, we think it is obligatory to take note of one
aspect. The Group Coordinator, Cyber Laws Formulation and
Enforcement Division, Government of India, Department of
Information Technology, had filed a counter affidavit on
16th August, 2010. We are compelled to reproduce a part of
the said affidavit:
“3(e) While submitting this, it is further
to submit that technological limitations pose a
difficult task for providers of search engines
to filter out/block the information violating
the law. It is important to distinguish
between two types of results that show up on a
search engine.
(i) Organic Search results –
When a user enters a query in the search box a
list of results that are most relevant to the
users query are shown. In generating these
results the search engine nearly indexes the
information that is publicly available and
accessible on the Internet in a purely
authomated manner. These search results are
merely a list of third party independent
website that are beyond the control and
management of search engines themselves.
(ii) Sponsored links –
Sponsored links referred to the advertisements
placed by advertisers after accepting the terms
and conditions of use. These links advertise
the goods and services offered by any WP(C) 341/2008
4
advertiser and upon clicking on the URL, take
the user to the parent website of the
advertiser where the user can find more
information on the particular product or
service that he/she is interested in.
(f) The service provider/search engines only
provide the carriage, technology for indexing
information. The content information is
provided by others. Wherever the service
provider is providing only the carriage and
transmission mechanism and not the
contents/information, it is necessary that the
distinction needs to be made between a service
provider and a content provider. The service
provider can only be liable to the extent
service provided by him. Wherever the service
provider/search engines are providing both
carriage as well as contents, it should be
their absolute responsibility to filter
out/block the violated information and
sponsored links.
X X X X X

(s) The pre-natal sex determination is an
offence in India under PC & PNDT Act. However,
it may not be an offence in other countries.
The information published on the websites is
generally aimed at for wider, world wide
dissemination and caters to the needs to many
countries and may not be for the Indian
citizens. Also, most of these websites are
hosted outside the country. Blocking of such
sites advertising pre-natal sex determinaton
may not be feasible due to their hosting WP(C) 341/2008
5
outside the country. Moreover, some of the
websites provide good content for medical
education and therefore blocking of such
websites may not be desirable.”
As we understand from the affidavit, it reflects a
kind of helplessness by the said deponent. That apart, we do
not appreciate the manner in which the stand has been
expressed in paragraph (s) of the counter affidavit, that has
been reproduced hereinabove.
Mr. Parikh, learned counsel for the petitioner, in
his turn, has submitted that other countries have been able
to control such advertisements, which violate the laws of
their countries by way of entering into certain kind of
agreement, developing technical tools and issuing appropriate
directions.
In our considered opinion, an effort has to be made
to see that nothing contrary to laws of this country are
advertised or shown on these websites. However, for the said
purpose, we would like to have the assistance from the
competent authority from the Department of Information and
Technology. We would request Mr. Ranjit Kumar, learned
Solicitor General to assist us on the next date, being
assisted by a competent officer, as it involves technical
issues.
Learned counsel for the respondent Nos.3 to 5 have
submitted that the websites do not violate the laws of India, WP(C) 341/2008
6
but as they provide a corridor, they do not have any control.
Be that as it may, a legal solution has to be arrived at.
List the matter on 15th December, 2014. As agreed
to by the learned counsel appearing for the parties, let the
matter be taken up at 2.00 p.m.
Liberty to file reply, as prayed for by learned
counsel appearing for the respondent Nos.3 to 5, within a
week hence.
Call on date fixed.

(Chetan Kumar)
Court Master
(H.S. Parasher)
Court Master

Dr.Shubash Singh, vs Maharashtra Medical Council,


ordjud (3)

Bombay High Court
Pvr1/13 wp7560-14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7560 OF 2014
Dr.Shubash Singh, )
Sanskar Plot No.101/4, )
Swami Nityanand Marg, )
Near Garden Hotel, Panvel-410206 )…Petitioner.
Vs.
Maharashtra Medical Council, )
189-A, Anand Complex, )
2nd Floor, Sane Guruji Marg, )
Arthur Road Naka, Chinchpokali (West) )
Mumbai-400011. )…Respondent
…..
Mr.S.C.Naidu I/b. M/s.C.R.Naidu & Co., for the Petitioner.
Mr.Rahul Nerlekar, for the Respondent.
……
CORAM: A. S. OKA &
G. S. KULKARNI, JJ.
RESERVED ON: 15st September, 2014
PRONOUNCED ON : 7th October,2014.

JUDGMENT:- (PER G.S.KULKARNI, J.)
1. Rule returnable forthwith. Heard finally by consent of the learned
Counsel appearing for the parties.
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Pvr2/13 wp7560-14.doc 2. By this Writ Petition filed under Article 226 of the Constitution of
India, the petitioner who is a Medical Practitioner challenges the order passed by
the respondent – Maharashtra Medical Council, dated 9th July,2014 which was
received by the petitioner on 17th July,2014, suspending the petitioner’s
registration.
3. It is the petitioner’s case that he is a qualified and experienced
orthopedic surgeon practising at Panvel since the year 1992. The petitioner
claims to be a Director of Panvel Medical Research Centre, a company registered
under Section 25 of the Companies Act,1956 and managing Peneacea Hospital
(for short ‘the hospital’). It is the petitioner’s case that in December,2002, the
hospital had purchased a sonography machine when the said hospital had full
fledged Gynecologist. The Gynecologist was working in the said hospital till the
year 2005 and after the Gynecologist left the hospital, the hospital only had an
orthopedic department. On account of this, since 2006 the sonography machine
had become non functional and also has become non repairable.
4. It is the petitioner’s case that the sonography machine was duly
registered under the provisions of the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act,1994 (for short ‘the PCPNDT
Act’). It is the petitioner’s case that the said sonography machine was completely
redundant in orthopedic practice and therefore, lying idle in the premises of the
hospital. That one Dr.Bhavna Narayanrao Telang, Medical Superintendent,
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Panvel Rural Hospital was appointed by a notification in the official gazette as an
appropriate authority from 24th March,2010 to inspect all the clinics and
sonography centres as per the provisions of the PCPNDT Act. As per the
directions of Civil Surgeon, Alibag, Dr.Bhavna N.Telang alongwith
representatives of the Tahasildar, Panvel Municipal Council and others visited
the hospital on 23rd June,2011 and on 24th June,2011 for inspection of records. In
the said inspection, it was informed that the sonography machine was not in use
and was non repairable. The petitioner produced a certificate to that effect of
M/s.GEC, the manufacturer of the machine.
5. The inspection team submitted a report that the petitioner had
violated the provisions of PCPNDT Act and on a complaint made in that regard a
Criminal Case No.810 of 2011 was filed against the petitioner before the Court
of Judicial Magistrate, First Class at Panvel. The Court of Judicial Magistrate,
First Class, by its judgment and order dated 24th December,2013 convicted the
petitioner under Sections 19, 29 read with Section 23 of the PCPNDT Act and
was sentenced to suffer simple imprisonment for one month and to pay a fine of
Rs.1000/-.
6. The petitioner being aggrieved by the order of conviction passed by
the Court of Judicial Magistrate First Class, Panvel, approached the Sessions
Court at Alibag by filing Appeal no.3 of 2014. Alongwith the appeal, the
petitioner filed an application seeking suspension of the order of conviction and
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the sentence passed against the petitioner. Initially an order came to be passed by
the learned Sessions Judge, Raigad on 4th January,2014 suspending the sentence
as awarded by the learned J.M.F.C. pending the hearing of the appeal.
7. The Additional Director, Medical Services, Family Welfare
Department becoming aware of the conviction of the petitioner by the Court of
JMFC, Panvel, informed the respondent of the same by its letter dated 28 th
March,2014. The respondent taking cognizance of a letter dated 28 th March,2014
addressed by the Additional Director, Medical Services, Family Welfare
Department called upon the petitioner by its letter dated 21 st April,2014 as to why
the respondent should not take action against the petitioner under the PCPNDT
Act,2003 and the Maharashtra Medical Council Act,1965. The petitioner replied
to this letter of the respondent by its letter dated 26th April,2014 informing that
the petitioner had preferred an appeal and that the sentence was suspended during
the pendency of the appeal. The respondent, thereafter, issued notice dated 4 th
June,2014 inter alia stating that the respondent would held an inquiry into the
complaint received by it and called upon the petitioner to remain present
alongwith the relevant papers on 11 th June,2014. At the hearing held on 11 th
June,2014, the petitioner was informed by the respondent that as the order of
conviction passed against him was not stayed, his registration with the
respondent was suspended. On 11 th June,2014 itself the petitioner preferred an
application before the Sessions Court in the pending criminal appeal stating that
an action is being resorted by the Maharashtra Medical Council against him in
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view of the conviction and prayed that the order of conviction passed by the
learned J.M.F.C., Panvel, be stayed/suspended. By a letter dated 11 th / 12th
June,2014 passed by the learned Sessions Judge, Raigad, Alibag, the order of
conviction dated 24th December,2013 passed by the learned J.M.F.C., Panvel was
suspended during the pendency of the appeal. On 12 th June,2014, the petitioner
by his letter addressed to the Chairman of the respondent informed of this order
dated 12th June,2014 passed by the Sessions Court suspending the conviction.
The respondent however issued a letter dated 9 th July, 2014 to the petitioner
informing him that his registration with the respondent was suspended from 11 th
July,2014 and the petitioner is refrained from medical practice during the period
of suspension.
8. The respondent issued order dated 9th July, 2014 suspending the
registration of the petitioner on the ground that the petitioner was convicted by
the Court of Judicial Magistrate, First Class, Panvel, under the PCPNDT Act and
the petitioner was ordered to refrain from medical practice or profession of any
nature during the period of suspension. The petitioner in the present petition
impugns this order suspending the petitioner’s registration and prohibiting the
petitioner from undertaking medical practice/ profession during the period of
suspension.
9. Mr.Naidu, learned Counsel appearing for the petitioner submits that
the respondent could not have passed the impugned order when the order of
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conviction as passed by the learned J.M.F.C., Panvel, was suspended by an order
dated 12th June,2014 passed by the learned Sessions Judge in the criminal appeal
filed by the petitioner. He submits that the respondent could not have proceeded
to pass the impugned order when the petitioner had duly informed the respondent
of the order dated 12 th June,2014 passed by the learned Sessions Judge, Raigad,
suspending the sentence as awarded by the learned JMFC. He submits that the
respondent has shown undue haste in passing the impugned order inasmuch as
there were about 90 patients who were taking orthopedic treatment at the
petitioner’s hospital and that grave and irreparable prejudice would be caused to
the petitioner as also to the patients under the treatment by the impugned order
passed by the respondent. He submits that in the teeth of the order dated 12 th
June,2014 passed by the learned Sessions Judge, suspending the conviction, the
impugned order dated 9th July,2014 passed by the respondent is rendered illegal.
10. Mr.Rahul Nerlekar, learned Counsel appearing for the respondent
has supported the order dated 9th July,2014 passed by the respondent. It is
submitted that the respondent is justified in passing the impugned order on
account of the petitioner’s conviction under the PCPNDT Act by the Court of
learned JMFC, Panvel.
11. Having considered the rival submissions, it can be seen that there is
no dispute that the Sessions Court by its order dated 12 th June,2014 had
suspended the order of petitioner’s conviction as passed by the learned J.M.F.C..
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A perusal of the impugned order dated 9 th July,2014 passed by the respondent do
not reflect any consideration to the said order passed by the learned Sessions
Court suspending the petitioner’s conviction. The effect of the order dated 12 th
June,2014 passed by the learned Sessions Court was that during the subsistence
of the said order the conviction and the sentence remained suspended and that the
petitioner could not have been categorised as a person against who, a conviction
order is in operation so as to pass an order of suspension of his medical practice
as sought to be done by the respondent. In any event, the respondent could not
have proceeded to pass the impugned order disregarding the order dated 12 th
June,2014 passed by the learned Sessions Court.
12. In this context it would be useful to make a reference to the law
laid down by the Supreme Court in the case of “Rama Narang Vs. Ramesh
Narang and others; (1995)2 Supreme Court Cases 513”, which arose in the
context of an order passed by the Delhi High Court in exercise of power under
Section 389(1) of Code of Criminal Procedure granting stay to an order of
conviction so as to not result in a disqualification envisaged under Section 267 of
the Companies Act. The Supreme Court in considering the effect of an order
passed under Section 389(1) of Code of Criminal Procedure qua a
disqualification as would arise under Section 267 of the Companies Act has held
thus:-
19. That takes us to the question whether the
scope of Section 389(1) of the Code extends to
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conferring power on the Appellate Court to stay the
operation of the order of conviction. As stated earlier,
if the order of conviction is to result in some
disqualification of the type mentioned in Section 267
of the Companies Act, we see no reason why we
should give a narrow meaning to Section 389(1) of
the Code to debar the court from granting an order to
that effect in a fit case. The appeal under Section 374
is essentially against the order of conviction because
the order of sentence is merely consequential thereto;
albeit even the order of sentence can be independently
challenged if it is harsh and disproportionate to the
established guilt. Therefore, when an appeal is
preferred under Section 374 of the Code the appeal is
against both the conviction and sentence and
therefore, we wee no reason to place a narrow
interpretation on Section 389(1) of the Code not to
extend it to an order of conviction, although that issue
in the instant case recedes to the background because
High Courts can exercise inherent jurisdiction under
Section 482 of the Code if the power was not to be
found in Section 389(1) of the Code………………….” 13. In a recent judgment of the Supreme Court in the case of “Lily Thomas
Vs. Union of India & Ors.; ((2003) 7 Supreme Court Cases 653)”, in dealing with an issue arising under Section 8 of the Representation of the People Act,1951 and the provisions of Article 102(2) and Article 191 of the Constitution of India, concerning a disqualification for membership of either House of Parliament or a Legislative Assembly or a Legislative Council of the State, the Supreme Court referring to its
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others” (supra) has observed thus:
“34. We do not also find merit in the
submission of Mr.Luthra and Mr.Kuhad that if a
sitting Member of Parliament or the State Legislature
suffers from a frivolous conviction by the trial court
for an offence given under sub-sections (1), (2) or (3)
of Section 8 of the Act, he will be remediless and he
will suffer immense hardship as he would stand
disqualified on account of such conviction in the
absence of sub-section (4) of Section 8 of the Act. A
three-Judge Bench of this Court in Rama Narang V.
Ramesh Narang has held that when an appeal is
preferred under Section 374 of the Code of Criminal
Procedure (for short “the Code”) the appeal is
against both the conviction and sentence and,
therefore, the appellate court in exercise of its power
under Section 389(1) of the Code can also stay the
order of conviction and the High Court in exercise of
its inherent jurisdiction under Section 482 of the Code
can also stay the conviction if the power was not to be
found in Sectin 389(1) of the Code.
35. In Ravikant S.Patil Vs. Sarvabhouma
S.Bagah a three-Judg Bench of this Court, however,
observed: (SCC p.679, para 15)
“15. It deserves to be clarified that an order
granting stay of conviction is not the rule but is
an exception to be resorted to in rare cases
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pending upon the facts of a case. Where the
execution of the sentence is stayed, the
conviction continues to operate. But where the
conviction itself is stayed, the effect is that the
conviction will not be operative from the date of
stay. An order of stay, of course, does not
render the conviction non-existent, but only nonoperative. Be that as it may. Insofar as the
present case is concerned, an application was
filed specifically seeking stay of the order of
conviction specifying the consequences if
conviction was not stayed, that is, the appellant
would incur disqualification to contest the
election. The High Court after considering the
special reason, granted the order staying the
conviction. As the conviction itself is stayed in
contrast to a stay of execution of the sentence, it
is not possible to accept the contention of the
respondent that the disqualification arising out
of conviction continues to operate even after
stay of conviction.
In the aforesaid case, a contention was raised by the
respondents that the appellant was disqualified from
contesting the election to the Legislative Assembly
under sub-section (3) of Section 8 of the Act as he had
been convicted for an offence punishable under
Section 366 and 376 of the Penal Code and it was
held by the three-Judge Bench that as the High Court
for special reasons had passed an order staying the
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conviction, the disqualification arising out of the
conviction ceased to operate after the stay of
conviction. Therefore, the disqualification under subsection (1), (2) or (3) of Section 8 of the Act will not
operate from the date of order of stay of conviction
passed by the appellate court under Section 389 of the
Code or the High Court under Section 482 of the
Code.” (emphasis supplied)
14. The order dated 12th June,2014 passed by the learned Sessions
Judge whereby the conviction of the petitioner has been suspended is in exercise
of the powers under Section 389(1) of Cr.P.C. The petitioner had appropriately
moved an application before the Sessions Court invoking the powers under
Section 389(1) of Cr.P.C. by pointing out that the order of conviction if was
permitted to remain in operation, the same would seriously prejudice and
adversely affect the livelihood of the petitioner inasmuch as the petitioner would
be suspended from the medical practice by the respondents. It is on complete
satisfaction of all these facts by a detailed order, the learned Sessions Judge has
suspended the conviction of the petitioner. We have already taken into
considering as to what would be the effect of an order passed under Section
389(1) of Cr.P.C. by which the conviction is suspended. The order passed by the
Sessions Court under Section 389(1) of Cr.P.C. could not have been overlooked
by the respondent.
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15. Hence, there is much substance in the submissions of the learned
Counsel for the petitioner in assailing the impugned order passed by the
respondent. The order of suspension of the petitioner’s medical practice as
passed by the respondent undoubtedly has severe consequences and a drastic
effect, inasmuch as the petitioner’s livelihood stands directly affected. We are,
therefore, of the considered opinion that the impugned order deserves to be
stayed during the subsistence of the order dated 12 th June,2014 passed below
Exhibit 12 by the Court of learned Sessions Judge, Raigad in Criminal Appeal
no.3 of 2014. We, therefore, pass the following order:-
ORDER
(i) The impugned order dated 9th July,2014 passed by the respondent
shall remain stayed till the subsistence of the order dated 12 th June,2014 passed
below Exhibit 12 by the learned Sessions Court in Criminal Appeal no.3 of 2014.
(ii) In the event, the order dated 12 th June,2014 stands vacated for any
reason or the Criminal Appeal no.3 of 2014 filed by the petitioner is dismissed by
the learned Sessions Judge, Raigad, the impugned order dated 9 th July,2014
passed by the respondent shall forthwith come into operation. The petitioner
undertakes to forthwith give intimation of such order to the respondent. The
undertaking of the petitioner is accepted. If the appeal of the petitioner is
allowed by the Sessions Court and the petitioner is acquitted, in that case the
impugned order dated 9th July,2014 passed by the respondent shall stand set
aside.
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(iii) The Writ Petition is allowed in the aforesaid terms.
(iv) No order as to costs.
(G. S. KULKARNI, J.) (A.S.OKA, J.)
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Dr. Kalpana Pundlik Jamdade Versus The State of Maharashtra And Another


ordjud (2)

Bombay High Court
1 crwp 406/2012 group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.406 of 2012
Dr. Kalpana Pundlik Jamdade. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–
With
Criminal Writ Petition No.407 of 2012
Dr. Sheela W/o Subhash Rachewad. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–

Criminal Writ Petition No.408 of 2012
Dr. Quamar Sultana W/o Mohd. Khursheed
Ahmed. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. S.K.Tambe, Additional Public Prosecutor, for
respondents.
——–
Criminal Writ Petition No.409 of 2011
Dr. Sudhir Mahadeorao Nimkar. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. R.N. Dhorde, Senior Advocate, holding for Shri. V.S.
Kadam, Advocate, for petitioner.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–
CORAM: T.V. NALAWADE, J.
DATE : 18th NOVEMBER 2014

ORDER:
1) All the petitions are filed under the provisions
of Articles 226 and 227 of the Constitution of India and
section 482 of the Code of Criminal Procedure. The
proceedings are in respect of action taken of filing
complaint by the authority created under the provisions of
the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (hereinafter
referred to as “the Act”) and so all the proceedings are
being decided by common order.
2) Complaints are filed against the petitioners by
an officer to whom the authority under the Act has been
given to take action and file complaint for the breach of
the provisions of the Act and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996
framed under the Act (for short, “the Rules”). The matters
are relating to the provisions of Sections 4 (3), 5,6, 23, 29
and 30 of the Act. The learned Judicial Magistrate has
made order of issue process in all the complaints. Prayers
are made for setting aside the order of issue process and
also for quashing the proceeding itself. Only one
proceeding i.e. the petitioner in Criminal Writ Petition
No.408/2012 had filed revision against the order of issue
process and the petitioners in other three proceedings
have directly come to this Court.
3) Against the petitioner of first proceeding,
Regular Criminal Case No.636/2011 is pending in the
Court of the Judicial Magistrate, First Class, Nanded. The
petitioner, Dr. Kalpana Jamdade was running Ultra Sound
Clinic and Hospital under the name and style as “Jamdade
Maternity Home at Nanded”. She had registered her Ultra
Sound Clinic under the Act and she was conducting
ultrasonograpghy on pregnant women. There was
information received by the authority that she was
misusing the techniques for determining sex of the foetus.
Inspection was done by the complainant in the presence
of other officers and witnesses of the Sonography Centre.
4) In the hospital of Smt. Jamdade many
discrepancies and irregularities were found and there was
breach of the provisions of the Act and the Rules.
Following discrepancies and irregularities were noticed :-

(i) Record of Form “F” was not available for the period
from June 2009 to September 2010. Attempt was made to
create record of the names of the parties in diary but that
was also not the complete information;
(ii) monthly reports with regard to the cases of the
patients who had come to the Centre were not submitted
to the authority for the period from June 2009 to August
2010;
(iii) declarations of pregnant women were not taken for
the period from July 2009 to September 2010;
Some false reports were submitted and they were for
the months of October 2010, November 2010, April, 2011,
May 2011 and June 2011. For instance when 13 patients
had come there were 10 Forms “F” and there were less
declarations for the month of May 2011. For June there
were 21 declarations but 20 Forms “F”. Many other
discrepancies of serious nature were noticed and they are
mentioned in the complaint. They are not being quoted as
the challenge is not on any ground relating to such
discrepancies. In the petition, it is contended that there
was time till 5th of next month to send the report and in
some cases the discrepancies could have been removed.
It is also contended that some times illiterate women do
not make declaration. In respect of these contentions it
can be said that if the period is considered, the first
contention is not at all acceptable. Further in law such
contention is not acceptable as report is required to be
sent and not any record of Form “F” or declaration. It is
also contention that some columns of Form “F” are
relating to use to invasive technique and as no invasive
technique was used, those columns were not filled. This
contention was also not raised during the arguments but
this Court is considering that point.
5) The main contention in the first proceeding on
which argument was advanced is that the complaint is
not filed by appropriate authority created under the Act
[under section 17(2)] and so the learned Magistrate ought
not to have taken cognizance of the offence. In this regard
there is copy of State Government Notification dated 16-
10-2007. In this Notification some officers are appointed
as Appropriate Authorities for working under the Act for
different areas and the Notification is as under : “PUBLIC HEALTH DEPARTMENT Mantralaya, Mumbai 400 032, dated the 16th October 2007. NOTIFICATION The Pre-conception and Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. No. Prachini, 2007/525/C.R. 133 (Part-Ii)/FW-II,–In exercise of the powers conferred by sub-section (2) of section 17 of the Pre-conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (57 of 1994) and of all other power enabling it in that behalf, the Government Maharashtra hereby appoints the Additional Collectors, Sub-Divisional Officers, Tahsildars, Nayab Tahsildars, Commissioners, Deputy Commissioners and Ward Officers of Municipal Corporations and Chief Officer of Municipal Councils, to be the Appropriate Authorities for the purposes of the said Act, for the areas within their jurisdiction. By order and in the name of the Governor of Maharashtra. SHOMITA BISWAS, Joint Secretary (Family Welfare) to Government.”

6) In the aforesaid regard the respondent is
placing reliance on the order made by the Commissioner
of Nanded Municipal Corporation, copy of which is at
Exhibit “G”.
The order shows that the Assistant Commissioners of the
Corporation were working as Ward Officers of respective
areas of the Corporation. This order was issued on 17th
June 2011 and the action was taken subsequent to the
date of the order by the Assistant Commissioner in all the
first three proceedings. In the first proceeding complaint
was filed on 4-8-2011 and the order of issue process was
also made on the same date.
7) The particulars of breach of the provisions of
the Act and the Rules are given in the reply affidavit by
the complainant. It is the contention the complainant that
his initial appointment was as Tahsildar and he came to
be sent on deputation basis to Corporation and he is
working there as Assistant Commissioner. It is also
contended that, he has been working in the capacity of
Prabhag Adhikari/Ward Officer in the Corporation. It is
contention that there is no separate cadre of Prabhag
Adhikari/Ward officer in this Corporation and so the
Assistant Commissioners are working as Prabhag
Adhikari.
8) In the reply affidavit the respondent has placed
reliance on the cases reported as :
(i) (2008 4 SCC 471 (CBI v. K.M. Sharan);
(ii) (2010) 11 SCC 226 (State of A.P. v. Gourishetty
Mahesh).
This court is discussing the observations made by the
Apex Court in the reported cases at appropriate place. It
is further contended by the complainant that after 10
months of the order of issue process the order is
challenged in the present proceedings and revision ought
to have been filed within the prescribed period of
limitation. It is contended that only to protract the things
such tactics are being played by the petitioners.
9) Criminal Writ Petition No.407/2012 is filed by
Dr. Sheela Rachewad. She runs Ultra Sound Clinic and
Hospital in the name and style as “Shiva Hospital, at
Nanded”. The petitioner has registered ultra sonography
machine. The inspection of the record for the period from
21-5-2010 to 4-8-2011 was done by paying visit on 4-8-
2011 by the complainant. The irregularities which were
found in the first proceeding were also found in the
present case and similar contentions are made in the
petition by this doctor also. Similar reply is given by the
complainant in the reply affidavit. In this proceeding also
cognizance is challenged only on the ground, contention
that the complainant had no power to file the complaint
and the cognizance is bad in law. Against this petitioner
Regular Criminal Case No.660/2011 is pending in the
Court of learned Judicial Magistrate, First Class, Nanded.
10) Criminal Writ Petition No.408/2012 is filed by
Dr. Quamar Sultana who owns and runs ultra sound clinic
and hospital in the name and style as “Neelofar
Sonograph6y Centre, Nanded”. The record of this Centre
for the period of two years ending on 30th June 2011 was
examined by the complainant on 30th June 2011. Similar
irregularities were found. The petitioner had challenged
the order of issue process by filing Criminal Revision
No.106/2011 in the Sessions Court Nanded. The revision
is dismissed. The learned Senior Counsel argued only on
the ground which was argued in the first two proceedings
to challenge the cognizance. One more contention was
made that there is possibility of creation of record of the
authority subsequent to the taking of action. But
apparently there is no force as the order was issued by the
authority on 17-6-2011 and the action was taken on 30-6-
2011.
11) Dr. Sudhir Nimkar has filed Criminal Writ
Petition No.409 of 2011 to challenge the cognizance of the
offence taken against him by the Judicial Magistrate in
Regular Criminal Case No.420/2011. This complaint is
filed by the Tahsildar Nanded. This proceeding is filed on
different grounds and it is contended that there were no
material discrepancies and irregularities in the record.
This doctor owns and runs “Saket Diagnostic Center, at
Nanded”. The record of the period of two years ending on
31-1-2011 was inspected by paying visit on 31-1-2011 by
the authority. In Regular Criminal Case No.420/2011
allegations are made that Dr. Nimkar did not maintain
the record as required under the provisions of the Act
and the Rules. Following irregularities were found which
are mentioned in the complaint :
(i) Forms “F” were not complete and some portion of
the Form F was wrongly filled;
(ii) declaration of pregnant women were not taken.
Form “G” (consent forms) were not maintained in
prescribed format and that way the illegal activities were
concealed;
(iii) copy of the Act and the Rules was not available in
the premises of ultra sound clinic;
(iv) there was non compliance of the provisions of the
Act and the Rules for which action needs to be taken
under the provisions of Section 4(3) and other provisions
as mentioned in the first three proceedings.
12) This Court has gone through the record like
panchanama under which the sonography machine of Dr.
Nimkar was taken over and also the relevant “F” Forms.
There is force in the contentions made in the complaint. In
the reply affidavit there is contention of the complainant
that even complete record was not made available in
respect of two years for which the inspection was made.
13) In all the proceedings submissions were made
by the learned Senior Counsel for the petitioners that the
orders suspending the registration made against them by
the so called Appropriate Authority created under the Act
are set aside either by this Court or the Appellate
Authority and so there was no room for taking cognizance
of the aforesaid offences.
14) In view of the contentions/arguments advanced
by the learned Senior Counsel in the first three
proceedings that the Assistant Commissioner who has
filed the complaint has no power to file the complaint and
the Magistrate has committed error in taking cognizance
of the matter, relevant provisions need to be seen and the
case law developed on these provisions also needs to be
seen. Both the sides have placed reliance on some
reported and unreported cases.
15) To ascertain as to who can file complaint for
offences committed under the Act, the scheme of the Act
needs to be seen. The petitioners want to show that the
order suspending the registration could not sustain in
law and so cognizance of the offence is bad in law and due
to this contention also, it needs to be seen as to whether
there is similarity in the provision made with regard to
the registration of the Centre and with regard to the
taking cognizance of the matter by the Judicial
Magistrate.
16) Statement of Objects and Reasons in respect of
the Act (as amended in 2003) shows that, the Act seeks to
prohibit pre-natal diagnostic techniques for determination
of sex of the foetus leading to female foeticide. The Act is
Central Legislation. In Chapter I of the Act definitions are
given. Central Supervisory Board is created and it is
required to be constituted under the Act by the Central
Government. The rule making power is also kept with the
Central Government. It is the Central Board which is
given power to review and monitor the implementation of
the Act and the Rules and it is also expected to oversee
the performance of the various bodies constituted under
the Act. The State is expected to constitute State Advisory
Board. The State Advisory Board is given power to review
the activities of the Appropriate Authorities functioning in
the State. It is expected to monitor the implementation of
the provisions of the Act and the Rules and it is also
expected to make suitable recommendation to the Central
Board.
17) In Section 2(a) the definition of “Appropriate
Authority” is given and it is as under :- “Appropriate Authority” means the Appropriate Authority appointed under section 17.”
In Section 17(2) and (3) of the Act power of the State
Government to appoint Appropriate Authorities is given
and this portion runs as under :– “17. Appropriate Authority and Advisory Committee: (1) …… (2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide. (3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be, — (a) when appointed for the whole of the State or the Union territory, consisting of the following three members – (i) an officer of or above the rank of the Joint Director of Health and Family Welfare – Chairperson; (ii) an eminent woman representing women’s organization; and, (iii) an officer of Law Department of the State or the Union territory concerned: Provided that it shall be the duty of the State or the Union territory concerned to constitute multimember State or Union territory level appropriate authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prohibition of Misuse) Amendment Act, 2002; Provided further that any vacancy occurring therein shall be filled within three months of the occurrence; (b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be may deem fit. ”
18) The power regarding appointment of
Appropriate Authority given to the State shows that only if
the authority is to work for the whole of the State, the
authority shall be multi-member authority constituted as
per section 17(3) of the Act. If the authorities are created
for different areas, any officer of the State also can be
appointed as Appropriate Authority.
19) The provision of section 17(4) of the Act shows
that the Appropriate Authority has the functions like grant
registration in respect of bodies like Genetic Clinic
(Sonography Centre), investigate complaint against such
centres, to take action for breach of the provisions of the
Act and the Rules against the bodies and this action
includes the action of suspending or cancelling the
registration. Suspension or cancellation of the registration
can be done on the recommendations of the Advisory
Board created under the Act. The Advisory Board consists
of experts and it is also created under section 17 of the
Act.
20) In Section 17-A some other powers of
Appropriate Authority are given and the powers are as
under :– “17-A, Powers of Appropriate Authorities.– The Appropriate Authority shall have the powers in respect of the following matter, namely:- (a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder; (b) production of any document or material object relating to clause (a); (c) issuing search warrant for any place suspected to the indulging in sex selection techniques or pre-natal sex determination; and (d) any other matter which may be prescribed.”
21) In Chapter VI of the Act, procedure for
registration of bodies like Genetic Clinic (sonography
Centres) is given. Procedure for cancellation registration
certificate is also given. It is provided that appeal against
the order of State Appropriate Authorities lies to the
State Government. Thus the functions and powers of the
State Board, the Appropriate Authorities are mentioned
in the Act and it can be said that the Appropriate
Authority has the power to grant registration to such
centre and it can cancel the registration. However, the
Appropriate Authority has other powers like the powers
mentioned in sections 17and 17-A of the Act.
22) In Chapter VII of the act there are provisions
with regard to offences and penalties. Relevant provisions
are sections 27 and 28. Sections 27 and 28 run as under :- “27. Offence to be cognizable, non-bailable and
non-compoundable:- Every offence under this Act shall be cognizable, non-bailable and noncompoundable. “28. Cognizance of offences.– (1) No Court shall take cognizance of an offence under this Act except on a complaint made by – (a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court.
Explanation.– For the purpose of this clause, “person” included a social organization. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section (1), the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant record in its possession to such person.”
23) Provisions of Sections 27 and 28 need to be
read together. The two sections need to be read together
as care needs to be take by the Court to see that the
Appropriate Authority is discharging its functions. So
opportunity needs to be given first to the Appropriate
Authority as provided in the aforesaid sections as the
Appropriate Authority needs to file complaint. These
provisions also show that criminal Court is not bound by
the opinion which may be formed by the Appropriate
Authority in this regard. Even if the Appropriate Authority
has refused to take legal action, filing complaint, the
Court can take cognizance of the offence on the
complaint made by any private person provided that the
private party has followed the procedure given under
section 28(1)(b) of the Act. Further, it is not only the
Appropriate Authority who can file complaint, in view of
the wording of these sections. The provisions show that
any officer authorized in this behalf by the Central or the
State Government as the case may be or any officer
authorised by the Appropriate Authority can file
complaint. Thus, the provision is not that rigid. The
Central or the State Government, as the case may be can
appoint any officer or class of officers to file complaint
and even the Appropriate Authority can authorise any
officer or officers for filing complaint.
24) The provision of section 30(1) of the Act is also
relevant for the present purpose and it runs as under :- “30(1) Power to search and seize records, etc. — (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.”
The aforesaid provisions show that Appropriate Authority
appointed by the State Government can authorise other
officer to make the investigation of the case, to take action
like search and seizure of the record and to file complaint.
From this angle also it can be said that there is no force in
the ground taken by the petitioners. Further, the
complainant was originally appointed as Tahsildar, he was
working on deputation in the Corporation and he was
discharging the duties as Prabhag Adhikari / Ward Officer
(officer mentioned in State Notification) and this
circumstance also cannot be ignored. It will be a matter of
evidence, to prove this contention.

25) Copy of judgment delivered in Writ Petition
No.1637/2013 which was filed by Dr. Smt. Kaplana
Jamdade, petitioner from Criminal Writ Petition
No.406/2012, is produced. This record shows that order
suspending the registration was challenged and this Court
allowed the petition filed by Dr. Smt. Kalpana Jamdade
and held that the Assistant Commissioner was not
Appropriate Authority for taking such action. However,
the Court also observed that the Appropriate Authority
was at liberty to take action in accordance with the
provisions of the Act and the Rules. Special Leave
Petition filed by the complainant against the order made
by this Court is dismissed by the Hon’ble Apex Court.
Similar decision is given in favour of Dr. Smt. Sheela,
petitioner from Criminal Writ Petition No.407/2012 and
Dr. Quamar, petitioner from Criminal Writ petition
No.408/2012. In view of the discussion made about the
provisions of the Act this Court has no hesitation to
observe that the decision given by this Court in favour of
the accused, petitioners, in respect of the action taken of
suspending the registration cannot help them in criminal
cases. This Court has no hesitation to observe that the
complainant from these cases was authorised to take
action under section 30 and also to file complaint under
section 28 of the Act. Thus, no error is committed by the
leaned Magistrate in taking cognizance of the matter and
in issuing process against these accused.

26) In support of the contentions made for the
petitioner from Criminal Writ Petition No.409/2012, a copy
of decision delivered by this Court in Criminal Writ
Petition No.406/2011 is produced. In the said proceeding
this Court (presided over by other Hon’ble Judge) quashed
one criminal case in view of the facts of that case. The
reasoning is given on the basis of the facts of that case
and due to the provisions of the Act, this Court is avoiding
to discuss the reasons given in that proceeding. Similarly,
the facts of other case,Criminal Writ Petition No.206/2013,
decided by other Hon’ble Judge of this Court were
different.
27) So far as the contentions made by the
petitioner from Criminal Writ Petition No.409/2012 are
concerned, similar stand was taken by the petitioner from
Criminal Writ Petition No.680/2012 which is decided by
this Court. Relevant observations at paragraphs 13 to 26
are as under :– “13) For ascertaining as to which record needs to be created and maintained and which columns of the form need to be filled by the owner of the Ultra Sound Clinic and by the persons conducting the procedure, the relevant provisions of the Act and the Rules need to be seen. The relevant provisions of the Act are Section 2(d), (i), (k), Sections 4 and 5. they are as under :-
“2. Definitions.– In this Act, unless the context
otherwise requires, –

(d) “Genetic Clinic” means a clinic, institute,
hospital, nursing home or any place, by
whatever name called, which is used for
conducting pre-natal diagnostic procedures.
Explanation.– For the purposes of this clause,
“Genetic Clinic” includes a vehicle, where
ultrasound machine or imaging machine or
scanner or other equipment capable of
determining sex of the foetus or a portable
equipment which has the potential for
detection of sex during pregnancy or selection
of sex before conception, is used.”
“(i) “pre-natal diagnostic procedures” means
all gyneacological or obstetrical or medical
procedures such as ultrasonography, foetoscopy,
taking or removing samples of amniotic fluid,
chorionic villi, embryo blood or any other tissue
or fluid of a man, or of a woman before or after
conception, for being sent to a Genetic
Laboratory or Genetic Clinic for conducting any
type of analysis or pre-natal diagnostic tests for
selection of sex before or after conception.”
“(k) “pre-natal diagnostic test” means
ultrasonography or any test or analysis of
amniotic fluid, chorionic villi, blood or any tissue
or fluid of a pregnant woman or conceptus
conducted to detect genetic or metabolic
disorders or chromosomal abnormalities or
congenital anomalies or haemoglobinopathies or
sex-linked diseases.”
“4. Regulation of pre-natal diagnostic
techniques.– On and from the commencement
of this Act–
(1) no place including a registered Genetic
Counselling Centre or Genetic Laboratory or
Genetic Clinic shall be used or caused to be
used by any person for conducting pre-natal
diagnostic techniques except for the purposes
specified in clause (2) and after satisfying any
of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall
be conducted except for the purposes of
detection of any of the following abnormalities,
namely:-

(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) heamoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases
as may be specified by the Central
Supervisory Board;
(3) no pre-natal diagnostic technique shall be
used or conducted unless the person qualified to
do so is satisfied for reasons to be recorded in
writing that any of the following conditions are
fulfilled, namely:-
(i) age of the pregnant woman is above
thirty-five years;
(ii) the pregnant woman has undergone two
or more spontaneous abortions or foetal
loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as, drugs,
radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a
family history of mental retardation or physical
deformities such as, spasticity or any other
genetic disease;
(v) any other condition as may be specified by
the Board:
Provided that the person conducting
ultrasonography on a pregnant woman shall
keep complete record thereof in the clinic in
such manner, as may be prescribed, and any
deficiency or inaccuracy found therein shall
amount to contravention of provisions of section
5 or section 6 unless contrary is proved by the
person conducting such ultrasonography;
(4) no person including a relative or husband
of the pregnant woman shall seek or encourage
the conduct of any pre-natal diagnostic
techniques on her except for the purposes
specified in clause (2);
(5) no person including a relative or
husband of a woman shall seek or encourage the
conduct of any sex-selection technique on her or
him or both.”
“5. Written consent of pregnant woman
and prohibition of communicating the sex
of foetus.– (1) No person referred to in clause
(2) of section 3 shall conduct the pre-natal
diagnostic procedures unless–
(a) he has explained all known side and after
effects of such procedures to the pregnant
woman concerned;
(b) he has obtained in the prescribed form
her written consent to undergo such procedures
in the language which she understands; and
(c) a copy of her written consent obtained
under clause (b) is given to the pregnant woman.
(2) No person including the person
conducting pre-natal diagnostic procedures shall
communicate to the pregnant woman concerned
or her relatives or any other person the sex of
the foetus by words, signs, or in any other
manner.” 14) The learned counsel for petitioner No.2 of first proceeding submitted that as he is not the owner of the ultrasound clinic, the provisions with regard to creation and maintenance of the aforesaid record cannot be used against him. For considering this defence, the aforesaid provisions [viz. section 5(1)(a)] and some more rules need to be considered. In rule 2(b) of the Rules, definition of “employee” is given as under :-
“(b) “employee” means a person working in or
employed by a Genetic Counseling Centre, a
Genetic Laboratory or a Genetic Clinic or an
Ultra Sound Clinic or Imaging Centre, and
includes those working on part-time,
contractual, consultancy, honorary or on any
other basis.”. In rule 4 nature of undertaking required to be given by the person applying for registration is given. Reading of this rule shows that such certificate is to be used only as per the contents of the certificate. Rule 9 provides for maintenance and preservation of record in respect of persons who come for diagnosis and this record is to be created to enable to identify the person who had come to the centre for sonography. Rule 9(4) shows that Form “F” need to be filled and it runs as under :-
“9. Maintenance and preservation of
records.–
(4) The record to be maintained by every
Genetic Clinic including a Mobile Genetic Clinic,
in respect of each man or woman subjected to any
pre-natal diagnostic procedure/technique/test,
shall be as specified in Form F.” Rule 9 (6) runs as under :–
“(6) All case-related records, forms of
consent, laboratory results, microscopic
pictures, sonographic plates or slides,
recommendations and letters shall be
preserved by the Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic, Ultra
Sound Clinic or Imaging Centre for a period of
two years from the date of completion of
counselling, pre-natal diagnostic procedure or
pre-natal diagnostic test, as the case may be. In
the event of any legal proceedings, the records
shall be preserved till the final disposal of legal
proceedings, or till the expiry of the said period
of two years, whichever is later.” Rule 9 (8) runs as under :-
“(8) Every Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic, Ultrasound
Clinic and Imaging Centres shall send a
complete report in respect of all preconception or pregnancy related procedures /
techniques / tests conducted by them in
respect of each month by 5 th day of the
following month to the concerned Appropriate
Authority.”

15) Submission was made that record can be created before 5th of next month as report needs to be sent during this period and so there was time to correct the things. In view of the aforesaid sections and rules the record needs to be created immediately at Ultra Sound Clinic and it needs to be completed before leaving of the patient with the report regarding diagnosis though report to authority needs to be sent before 5th of next month. Thus, the provision of Rule 9(8) of the Rules cannot be used as the defence in such a case.

16) Another submission is made that as computerized record was maintained, rule 9 (7) needs to be used. This rule shows that when there is computerized record, printed copy is to be taken and preserved after authentication by the person responsible for such record. Such authentication and signature are missing.

17) Rule 10(1) and 10(1-A) are as under :-
“10. Conditions for conducting pre-natal
diagnostic procedure.– (1) Before conducting
preimplanatation genetic diagnosis, or any prenatal diagnostic technique/test/procedure such
as amniocentesis, chorionic villi biopsy,
foetoscopy, foetal skin or organ biopsy or
cordocentesis, a written consent, as specified in
Form G, in a language the person undergoing
such procedure understands, shall be obtained
from her/him.
“(10-A) Any person conducting ultrasonography/
image scanning on a pregnant woman shall give
a declaration on each report on
ultrasonography / image scanning that he/she has neither detected nor disclosed the sex of
foetus of the pregnant woman to any body. The
pregnant woman shall before undergoing
ultrsonography/ image scanning declare that she
does not want to know the sex of her foetus.”

18) These two rules show that declaration form needs to be obtained if pre-natal diagnostic technique, procedure is to be conducted. The taking of such declaration is necessary when there is no invasive procedure. In the present case Form “F” is shown to be prepared by accused as per section 4(3) and rule 9(4) and Rule 10(1-A). In this form there is no printed declaration of pregnant woman as required by Rule 10(1-A). It appears that separate declaration and consent form which is also titled as Form “F” is maintained. A book of the form is seen by this Court. Even if this record is considered and accepted as annexure to the Form “F” maintained in the register, they need to be complete in every respect including for the purpose of declaration. Under the law, such declaration needs to be made in Form “F” itself.

19) The wording of section 5 shows the procedure that needs to be followed for conducting of pre-natal diagnosis. However in section 5(1)(b) the term “prescribed” is used in respect of consent form of pregnant woman. In rule 10 and in Form “G” prepared under rule 10 it is made clear that this form is applicable to invasive techniques. In view of clause (c) of section 5 it needs to be presumed that written consent of pregnant woman is necessary when invasive procedure needs to be used. When no invasive procedure is to be used and when it is to be done without invasive procedure by using ultra sound machine, only declaration as required in rule 10(1-A) as mentioned in Form “F” of section 4(3) needs to be obtained from the pregnant woman. Submissions made in this regard by the learned counsel need to be accepted. However, the record needs to be seen to ascertain as to whether at least the declaration was complete as per the requirement. These provisions also show that person using the procedure needs to give declaration and so he is also involved in creation and maintenance of record.
For interpretation of the provisions of the Act and the Rules, learned counsel for the petitioners has placed reliance on following four cases decided by this Court (Aurangabad Bench) :–
(1) Criminal Writ Petition No.232/2012
(Satyaprem v. the State of Maharashtra),
decided on 11 th September 2014;
(2) Criminal Application No.3500/2011 (Dr.
Alka Gite v. The State of Maharashtra),
decided on 11 th May 2012;
(3) Criminal Application No.3044/2012 (Dr.
Pratidnya Jayesh Shinde v. Appropriate
Authority), decided on 4th December 2013;
and,
(4) Criminal Application No.2065/2012 (Dr.
Pradip Prabhuappa Dama v. The State of
Maharashtra), decided on 28th January 2014.

21) In the first case, the Court considered Form “F” which needs to be used from 31 st January 2014 and observed that there are separate requirements in respect of maintenance of record for Ultrasound Clinic not using invasive technique and genetic test using invasive procedure. The Court further found that the allegations were very vague in nature and gave relief to the accused. In the second case there were referral letters. This Court held that flimsy mistakes can be ignored and relief was given to the accused in the second case also. In the third case there was allegation that the record was not properly maintained. As the allegations were found baseless, relief was given to the accused. In the last case, this Court held that there was no allegation against the applicant and the shortcoming or deficiency in maintaining the record could not be attributed to him. This Court is avoiding to discuss more the reasons given. The relevant provisions which are quoted above, were not considered and discussed.
For the State, the learned Additional Public Prosecutor has placed reliance on the following cases :–
(1) 2013(2) Bom. C.R. 351 (Sujit Govind Dange
v. State of Maharashtra);
(2) 2009 Cri.L.J. 721 (Suo Motu v. State of
Gujarat);
(3) Criminal Application No.4513/2012 (Dr. Harsha
Patil v. The State of Maharashtra) decided by
this Court (Aurangabad Bench) on 4 th
December 2013;
(4) 2011 (4) Bom. C.R. 293 (Suhasini Umesh
Karanjkar v. Kolhapur Municipal
Corporation);
(5) Criminal Application No.3966/2013 (Dr.
Nirmala Bajaj v. The State of
Maharashtra), decided by this Court
(Aurangabad Bench) on 9th Mary 2014; and,
(6) Criminal Writ Petition No.5 of 2013 (Dr.
Vinayak Khedkar v. The State of
Maharashtra), decided by this Court
(Aurangabad Bench) on 9th May 2014. 23) In the first case, the Division Bench of this Court has discussed the provisions of sections 4,5,6 and 20 of the Act and it is laid own that if there is deficiency or inaccuracy in the record, that amounts to contravention of sections 5 and 6 unless contrary is proved by the doctor / person conducting ultrasonography. Thus the defence of the accused in such case can be considered during trial. The Court has made it clear that the Act does not distinguish discrepancy as minor or major and in view of the object behind the provisions they need to be strictly complied with. In the second case, the Full Bench of Gujarat High Court has made similar observations and has laid down that such defence can be considered only during trial. In the fourth case the Full Bench of the Bombay High Court at paragraphs 14 and 24 has made similar observations. It is made clear by the Full Bench that if there is contravention in respect of maintenance of record and the persons conducting the process do not maintain necessary record complete in every respect that contravention amounts to offence. Though different point was involved in the matter pending before the Full Bench, the relevant provisions are discussed by the Full Bench even from the angle of commission of offence. In the last two proceedings, this Court refused to quash the proceeding by relying on the observations made by the Division Bench of this Court and the Full Bench of the Gujarat High Court, cited supra.

24) While interpreting the provisions and considering the prayers made in the proceedings like present one, the object behind the special legislature needs to be kept in mind. The object is to prohibit use of pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. Pre-natal diagnostics techniques like sonography are useful for detection of sex. They can be used also for detecting disorders in the foetus. In view of the possibility of use of this technique for determination of sex and then for termination of pregnancy of unborn child, the aforesaid provisions are made. Sale of ultrasound machines to persons not registered under the Act (rule 3-A of the Rules) is prohibited. The study made by Population Research Centre Pune (PRC) shows that most of the bodies like Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic, Imaging Centre are registered in Maharashtra and there are maximum number of sonography Centers in Maharashtra. More than 60% of such bodies are ultrasound clinics. The studies have revealed that the pre-natal diagnostic techniques are easily available in sonography centres for sex determination. The cases registered in Maharashtra show that these centers are being misused. Due to misuse of the centres the sex ratio has come down alarmingly in Marathwada region and by the end of year 2012 the ratio of female child birth had got down below 800 in most of the Districts of Marathwada. Only when the authority started making inspection and the cases were registered for causing illegal abortion, the female birth ratio improved and it has now crossed 900 in this region.
When there is object like the object behind the present Act, the provisions need to be strictly implemented. It can be said that no sufficient powers are with the authority and powers need to be given to the authority to do sample checking of such cases to ascertain as to whether pregnant woman opted to undergo abortion and then, the Act will become more effective.

26) 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.”
28) In view of the facts of the present case and the
observations which are quoted above, this Court has no
hesitation to hold that the learned Judicial Magistrate has
not committed any error in making order of issue process
against the petitioner from Criminal Writ Petition No.409
of 2012 also. The other submissions made by the learned
Senior Counsel for the petitioners that the order of issue
process does not contain reasons cannot be accepted in
matters like the present one. Reliance was placed on
some observations made by the apex Court in the case
reported as (2013) 4 SCC 505 (GHCL Employees Stock
Option Trust v. India Infoline Ltd.). The facts of this case
were different and it was necessary to ascertain as to
whether dispute was of civil nature. In the present case
the complaints are filed by public servant under the Act
which has specific object behind the provisions. In the
order of issue process relevant provisions of the Act are
mentioned. The allegations made in the complaint and the
record discussed shows that no error is committed in
making order of issue process.
29) Learned Additional Public Prosecutor has
placed reliance on reported cases as (2008) 4 SCC 471 (CBI v. K.M. Sharan) and (2010) 11 SCC 226 (State of A.P. v. Gourishetty Mahesh), cited supra. In these cases the Apex
Court has discussed the scope of powers of this Court
under section 482 of the Criminal Procedure Code. It
cannot be disputed that the acceptability of the material
to fasten culpability on accused is a matter of trial and
whether the matter in existence would be sufficient for
holding accused guilty or not also needs to be considered
only at the time of trial. If the material allegations on their
face value would prima facie constitute an offence, for
making out a case against the accused, the matter needs
to be left with the trial Court and this Court is not
expected to use the powers given under Section 482 of the
Cr.P.C. This Court is also not expected to use/exercise
extraordinary powers.
30) In the result, all the writ petitions stand
dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
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Dr. Prabhakar s/o Ganpatrao Tawshikar & othrs vs The State of Maharashtra &othrs


ordjud (1)

Bombay High Court
1 Cr WP 680/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.680 of 2012

Dr. Prabhakar s/o Ganpatrao Tawshikar
And Another. .. Petitioners.
Versus
The State of Maharashtra
And Another. .. Respondents.
——–
Shri. S.B. Talekar, Advocate, for petitioners.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondents.
——–
With
Criminal Application No.2541 of 2013
Dr. Kamla w/o Jugalkishor Toshniwal .. Applicant.
Versus
The State of Maharashtra. .. Respondent.
——–
Shri. S.S. Rathi, Advocate, for applicant.
Shri. A.S. Shinde, Additional Public Prosecutor, for
respondent.
——–
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Bombay High Court
2 Cr WP 680/2012
CORAM: T.V. NALAWADE, J.
DATE : 5th NOVEMBER 2014
ORDER:
1) The first proceeding is filed under Section 482
of the Code of Criminal Procedure and under Article 227
of the Constitution of India. Relief to set aside the order of
issue process made in Regular Criminal Case No.73/2011
is claimed and the relief of quashing of the proceeding
filed as a complaint by the public servant, authority under
the provisions of the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 (hereinafter referred to as “the Act”) is claimed. The
proceeding is pending before the Judicial Magistrate, First
Class, Omerga, District Osmanabad and it is filed under
sections 23, 25, 29 of the Act and under Rule 9(4), (6) and
(8) of the The Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996
(hereafter referred to as “the Rules”). Criminal Revision
Application No.9/2011 was filed against the order of issue
process by the petitioners in Sessions Court but the
revision is dismissed by the Sessions Court and so that
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3 Cr WP 680/2012
decision is also challenged. Relief of getting custody of
sonography machine seized by the authority is also
claimed as a consequential relief. No interim custody was
claimed before the Judicial Magistrate by the petitioners.
Both the sides are heard.
2) Petitioner No.1 owns and runs one hospital at
Omerga and the petitioner No.2 works as a Radiologist in
the hospital. The hospital has a registered sonography
centre. On 19-6-2011 the authority created under the Act
visited the hospital for inspection and the sonography
center was also visited and inspection was done. After
finding discrepancies and irregularities in the record
which is required to be prepared and maintained in
Sonography Centre, the sonography machine came to be
seized. Complaint then came to be filed for the aforesaid
offences.
3) It is the case of the complainant that Forms “F”
which are required to be prepared and maintained by the
Sonography Centre were not complete. It is contended
that consent forms which are required to be obtained
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from the pregnant women were also not complete. It is
contended that even when no pregnant woman was
subjected to diagnosis by the hospital, when there was no
record of reference, sonography of many pregnant
women was done at this centre. It is contended that Dr.
Prabhakar Tawshikar who was in-charge of the hospital
had not referred the patient and he denied that patients
were referred by him to the centre. On many forms his
name was mentioned as the doctor who had referred the
patient. Some forms were found blank and they were not
having paging number. More particulars of the
irregularities and discrepancies are given in the affidavit
filed by the complainant in reply to the present
proceeding.
4) In reply it is contended by the authority that in
Forms “F” which are at Sr. Nos.1 to 74, the name of the
doctor who referred the patient to the centre was
subsequently added as the record collected was virtually
filled subsequently and different ink was used. It is
contended that column 13 of Form “F” was not complete
and the centre ought to have mentioned that this column
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was not applicable if it was not applicable. It is contended
that column Nos.5 and 6 were not filled. It is contended
that in the forms at Sr. Nos.1 to 75 column Nos.14 and 19
were not filled. Model form dully filled, is attached with
the affidavit by the complainant. It is specifically
contended that the form Nos.75 to 408 were filled without
examining the patients in the hospital. It is contended that
in respect of Form Nos.75 to 408 there were no referral
slips. It is contended that computerized record of the
patients shown in Form “F” at Sr. Nos.1 to 75 were not
authenticated by the doctor when such authentication
needs to be done as per the rules. It is contended that
consent form No.153 which is in respect of the period 17-
1-2011 to 30-1-2011 is blank. It is contended that consent
form at Sr. Nos.154 bears thumb impression but the
thumb impression is not attested. This Court has seen the
copy of form which needs to be supplied to the patient
which is at Sr. No.154 in respect of Usha Pahune. It is still
present in the form book and it was not supplied to the
patient as required by law. It is contended that thumb
impression of Mangal Pujari, patient from Form No.194 is
also not attested. It is contended that similarly thumb
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impressions appearing on Form “F” at Sr. No.11 and 71
which are for the period from 1-4-2011 to 18-6-2011 are
not attested. Similar contentions are made in respect of
forms at Sr. Nos.8, 16, 18, 21, 22, 25, 28, 33, 38 and 45
and they are in respect of the period from 2-1-2011 to 17-
1-2011.
5) It is the case of the complainant that attestation
is compulsory as form needs to be complete in every
respect. There is allegation in respect of Form No.60
which is for the period from 1-4-2011 to 18-6-2011 that it
does not bear date. It is the contention of the complainant
that column Nos.12, 14, 15, 17 to 19 need to be filled as
they involve future outcome, the result of diagnosis.
6) It is the case of the petitioners that no show
cause notice was issued under section 20 of the Act and as
no opportunity was given to explain the things, the
complaint could not have been filed. It is contended that
the order of issue process is not reasoned order and on
that ground also it is liable to be set aside. It is contended
that the petitioners have complied with the provisions of
the Act and the Rules and no form was incomplete. It is
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contended that the centre was used as sonography centre
only and no invasive procedure was involved and so other
columns of the relevant forms were not filled. It is
contended that there was no specific direction from the
authority to attest the thumb impressions. It is contended
that as the record was computerized there was no
signature of the doctor and so on some forms there was no
such signature. It is contended that the sonography centre
was under the roof of one hospital and both these
institutions were being run by the members of the same
family and so referral slips were not maintained. It is
denied that Dr. Tawshikar had denied that he had referred
the patients to the sonography centre. It is contended
that due to over sight there were some blank pages of
consent forms and that does not amount to commission of
offence.
7) It is the case of the petitioners that as the
registration of the centre cannot be cancelled without
giving notice under section 20 of the Act, the prosecution
could not have been launched without giving such notice
and without seeking explanation. It is the contention that
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the complainant himself was trapped subsequently in a
corruption case and his action was mala fide and there is
professional rivalry behind the complaint. It is also
contended that subsequent to the inspection, new Form
“F” was created with effect from 1-1-2014 and separate
portion like portion C is created for invasive procedure
and that shows that other columns of Form “F” need not
be filled by the Sonography Centre, Ultra Sound Clinic.
8) This Court has gone through the original
record of the forms and register. The contentions made in
the complaint and the reply given by the complainant in
this proceeding are apparently correct and there are such
discrepancies in the record.
9) The second proceeding is filed under provision
of Section 482 of the Code of Criminal Procedure for
quashing of the proceeding bearing Regular Criminal
Case No.573/2012 filed by the authority under the Act for
offences punishable under section 23,25 and 29 of the Act
and the relief of setting aside the order of issue process
made by the learned Judicial Magistrate First Class is also
claimed. Criminal Revision No.8/2013 was filed by the
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9 Cr WP 680/2012
applicant to challenge the order of issue process in
Sessions Court Latur and the revision is dismissed. Said
decision is also challenged in the present proceeding.
10) In Regular Criminal Case No.573/2012 it is
contended by the authority that accused – Dr. Smt. Kamla
owns Toshniwal Hospital at Latur and there she has the
sonography centre. Information was received by the
authority that some record was burnt by the hospital and
then the authority paid visit to the centre on 14-6-2012.
The authority found discrepancies in the record like Form
“F”. Form dated 7-6-2012 was not signed by the doctor.
There was over writing on the dates mentioned in the
Form “F” at Sr. Nos.42, 45, 110, 113, 114 and 117 and the
consent forms and declarations were not complete and
many columns were kept blank. The declarations were
also not bearing signatures of the doctor. In the affidavit
filed by the complainant, particulars regarding
contraventions of the provisions of the Act are given. It is
contended that, information was received that one illegal
abortion was caused as the lady who was having three
daughters had again conceived and she was having
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female foetus. The case of termination of pregnancy is
also registered against this accused / applicant. In this
case submissions were made which were similar to the
submissions made in the first proceeding and it was also
submitted that on consent forms, declarations, the doctor
had signed but those forms were handed over to the
pregnant women and only on the forms which remained
with the centre the doctor did not sign due to over sight.
The argument was advanced that till 5 th day of next month
report needs to be sent to the authority and so there was
some time with the accused but before that, action was
taken. This Court has perused copies of aforesaid forms
and record. The record shows that there is substance in
the contentions made by the authority. There is one more
additional circumstance like detection of case of illegal
abortion against this accused.
11) The submissions made by the learned counsel
for the petitioners that in such case prosecution cannot be
launched without issuing notice under section 20 of the
Act is not at all acceptable.
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12) This Court has carefully gone through the
scheme of the Act. The provisions of Sections 18 to 20 are
for different purpose and they relate to exercise of the
powers by the authority to issue registration certificate or
to cancel registration certificate. The power to inspect
Ultra Sound Clinic is given under section 30 to the
Appropriate Authority and it is a separate power. Action
like the present action is taken by exercising the power
under section 30 of the Act and under Rule 12 of the
Rules. These provisions do not show necessity of issuing
notice under section 20 of the Act. This Court holds that
there was no need of issuing notice under section 20 of
the Act before launching of the prosecution for the
aforesaid offences.
13) For ascertaining as to which record needs to be
created and maintained and which columns of the form
need to be filled by the owner of the Ultra Sound Clinic
and by the persons conducting the procedure, the relevant
provisions of the Act and the Rules need to be seen. The
relevant provisions of the Act are Section 2(d), (i), (k),
Sections 4 and 5. they are as under :-
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12 Cr WP 680/2012 “2. Definitions.– In this Act, unless the context otherwise requires, –
(d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures.
Explanation.– For the purposes of this clause, “Genetic Clinic” includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.”
“(i) “pre-natal diagnostic procedures” means all gyneacological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo blood or any other tissue or fluid of a man, or of a woman before or after conception, for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception.” “(k) “pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases.” “4. Regulation of pre-natal diagnostic
techniques.– On and from the commencement of this Act– (1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in
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13 Cr WP 680/2012 clause (2) and after satisfying any of the conditions specified in clause (3); (2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:- (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) heamoglobinopathies; (iv) sex-linked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board; (3) no pre-natal diagnostic technique shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:- (i) age of the pregnant woman is above thirty-five years; (ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss; (iii) the pregnant woman had been exposed to potentially teratogenic agents such as, drugs, radiation, infection or chemicals; (iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease; (v) any other condition as may be specified by the Board: Provided that the person conducting ultrasonography on a pregnant woman shall keep
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14 Cr WP 680/2012 complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography; (4) no person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2); (5) no person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.”
“5. Written consent of pregnant woman and
prohibition of communicating the sex of foetus.– (1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless– (a) he has explained all known side and after effects of such procedures to the pregnant woman concerned; (b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman. (2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner.”
14) The learned counsel for petitioner No.2 of first
proceeding submitted that as he is not the owner of the
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15 Cr WP 680/2012
ultrasound clinic, the provisions with regard to creation
and maintenance of the aforesaid record cannot be used
against him. For considering this defence, the aforesaid
provisions [viz. section 5(1)(a)] and some more rules need
to be considered. In rule 2(b) of the Rules, definition of
“employee” is given as under :- “(b) “employee” means a person working in or employed by a Genetic Counseling Centre, a Genetic Laboratory or a Genetic Clinic or an Ultra Sound Clinic or Imaging Centre, and includes those working on part-time, contractual, consultancy, honorary or on any other basis.”.
In rule 4 nature of undertaking required to be given
by the person applying for registration is given. Reading
of this rule shows that such certificate is to be used only
as per the contents of the certificate. Rule 9 provides for
maintenance and preservation of record in respect of
persons who come for diagnosis and this record is to be
created to enable to identify the person who had come to
the centre for sonography. Rule 9(4) shows that Form “F”
need to be filled and it runs as under :-
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16 Cr WP 680/2012 “9. Maintenance and preservation of records.– (4) The record to be maintained by every Genetic Clinic including a Mobile Genetic Clinic, in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form F.”
Rule 9 (6) runs as under :– “(6) All case-related records, forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, Ultra Sound Clinic or Imaging Centre for a period of two years from the date of completion of counselling, pre-natal diagnostic procedure or prenatal diagnostic test, as the case may be. In the event of any legal proceedings, the records shall be preserved till the final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is later.”
Rule 9 (8) runs as under :- “(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centres shall send a complete report in respect of all pre-conception or pregnancy related procedures / techniques / tests conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority.”
15) Submission was made that record can be
created before 5th of next month as report needs to be
sent during this period and so there was time to correct
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the things. In view of the aforesaid sections and rules the
record needs to be created immediately at Ultra Sound
Clinic and it needs to be completed before leaving of the
patient with the report regarding diagnosis though report
to authority needs to be sent before 5th of next month.
Thus, the provision of Rule 9(8) of the Rules cannot be
used as the defence in such a case.
16) Another submission is made that as
computerized record was maintained, rule 9 (7) needs to
be used. This rule shows that when there is computerized
record, printed copy is to be taken and preserved after
authentication by the person responsible for such record.
Such authentication and signature are missing.
17) Rule 10(1) and 10(1-A) are as under :- “10. Conditions for conducting pre-natal
diagnostic procedure.– (1) Before conducting preimplanatation genetic diagnosis, or any prenatal diagnostic technique/test/procedure such as amniocentesis, chorionic villi biopsy, foetoscopy, foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him. “(10-A) Any person conducting ultrasonography/ image scanning on a pregnant woman shall give a declaration on each report on ultrasonography / image scanning that he/she has neither detected
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18 Cr WP 680/2012 nor disclosed the sex of foetus of the pregnant woman to any body. The pregnant woman shall before undergoing ultrsonography/ image scanning declare that she does not want to know the sex of her foetus.”
18) These two rules show that declaration form
needs to be obtained if pre-natal diagnostic technique,
procedure is to be conducted. The taking of such
declaration is necessary when there is no invasive
procedure. In the present case Form “F” is shown to be
prepared by accused as per section 4(3) and rule 9(4) and
Rule 10(1-A). In this form there is no printed declaration
of pregnant woman as required by Rule 10(1-A). It
appears that separate declaration and consent form which
is also titled as Form “F” is maintained. A book of the form
is seen by this Court. Even if this record is considered and
accepted as annexure to the Form “F” maintained in the
register, they need to be complete in every respect
including for the purpose of declaration. Under the law,
such declaration needs to be made in Form “F” itself.
19) The wording of section 5 shows the procedure
that needs to be followed for conducting of pre-natal
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diagnosis. However in section 5(1)(b) the term
“prescribed” is used in respect of consent form of
pregnant woman. In rule 10 and in Form “G” prepared
under rule 10 it is made clear that this form is applicable
to invasive techniques. In view of clause (c) of section 5 it
needs to be presumed that written consent of pregnant
woman is necessary when invasive procedure needs to be
used. When no invasive procedure is to be used and
when it is to be done without invasive procedure by
using ultra sound machine, only declaration as required
in rule 10(1-A) as mentioned in Form “F” of section 4(3)
needs to be obtained from the pregnant woman.
Submissions made in this regard by the learned counsel
need to be accepted. However, the record needs to be
seen to ascertain as to whether at least the declaration
was complete as per the requirement. These provisions
also show that person using the procedure needs to give
declaration and so he is also involved in creation and
maintenance of record.
20) For interpretation of the provisions of the Act
and the Rules, learned counsel for the petitioners has
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20 Cr WP 680/2012
placed reliance on following four cases decided by this
Court (Aurangabad Bench) :–
(1) Criminal Writ Petition No.232/2012 (Satyaprem v.
the State of Maharashtra), decided on 11 th
September 2014;
(2) Criminal Application No.3500/2011 (Dr. Alka Gite v.
The State of Maharashtra), decided on 11 th May
2012;
(3) Criminal Application No.3044/2012 (Dr. Pratidnya
Jayesh Shinde v. Appropriate Authority), decided on
4th December 2013; and,
(4) Criminal Application No.2065/2012 (Dr. Pradip
Prabhuappa Dama v. The State of Maharashtra),
decided on 28th January 2014.
21) In the first case, the Court considered Form “F”
which needs to be used from 31 st January 2014 and
observed that there are separate requirements in respect
of maintenance of record for Ultrasound Clinic not using
invasive technique and genetic test using invasive
procedure. The Court further found that the allegations
were very vague in nature and gave relief to the accused.
In the second case there were referral letters. This Court
held that flimsy mistakes can be ignored and relief was
given to the accused in the second case also. In the third
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case there was allegation that the record was not
properly maintained. As the allegations were found
baseless, relief was given to the accused. In the last case,
this Court held that there was no allegation against
the applicant and the shortcoming or deficiency in
maintaining the record could not be attributed to him.
This Court is avoiding to discuss more the reasons
given. The relevant provisions which are quoted above,
were not considered and discussed.
22) For the State, the learned Additional Public
Prosecutor has placed reliance on the following cases :–
(1) 2013(2) Bom. C.R. 351 (Sujit Govind Dange v. State
of Maharashtra);
(2) 2009 Cri.L.J. 721 (Suo Motu v. State of Gujarat);
(3) Criminal Application No.4513/2012 (Dr. Harsha
Patil v. The State of Maharashtra) decided by this
Court (Aurangabad Bench) on 4th December 2013;
(4) 2011 (4) Bom. C.R. 293 (Suhasini Umesh Karanjkar
v. Kolhapur Municipal Corporation);
(5) Criminal Application No.3966/2013 (Dr. Nirmala
Bajaj v. The State of Maharashtra), decided by this
Court (Aurangabad Bench) on 9th Mary 2014; and,
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(6) Criminal Writ Petition No.5 of 2013 (Dr. Vinayak
Khedkar v. The State of Maharashtra), decided by
this Court (Aurangabad Bench) on 9th May 2014.
23) In the first case, the Division Bench of this
Court has discussed the provisions of sections 4,5,6 and
20 of the Act and it is laid own that if there is deficiency or
inaccuracy in the record, that amounts to contravention of
sections 5 and 6 unless contrary is proved by the doctor /
person conducting ultrasonography. Thus the defence of
the accused in such case can be considered during trial.
The Court has made it clear that the Act does not
distinguish discrepancy as minor or major and in view of
the object behind the provisions they need to be strictly
complied with. In the second case, the Full Bench of
Gujarat High Court has made similar observations and has
laid down that such defence can be considered only
during trial. In the fourth case the Full Bench of the
Bombay High Court at paragraphs 14 and 24 has made
similar observations. It is made clear by the Full Bench
that if there is contravention in respect of maintenance of
record and the persons conducting the process do not
maintain necessary record complete in every respect that
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23 Cr WP 680/2012
contravention amounts to offence. Though different point
was involved in the matter pending before the Full Bench,
the relevant provisions are discussed by the Full Bench
even from the angle of commission of offence. In the last
two proceedings, this Court refused to quash the
proceeding by relying on the observations made by the
Division Bench of this Court and the Full Bench of the
Gujarat High Court, cited supra.
24) While interpreting the provisions and
considering the prayers made in the proceedings like
present one, the object behind the special legislature
needs to be kept in mind. The object is to prohibit use of
pre-natal diagnostic techniques for determination of sex
of the foetus leading to female foeticide. Pre-natal
diagnostics techniques like sonography are useful for
detection of sex. They can be used also for detecting
disorders in the foetus. In view of the possibility of use of
this technique for determination of sex and then for
termination of pregnancy of unborn child, the aforesaid
provisions are made. Sale of ultrasound machines to
persons not registered under the Act (rule 3-A of the
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Rules) is prohibited. The study made by Population
Research Centre Pune (PRC) shows that most of the
bodies like Genetic Counseling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic, Imaging
Centre are registered in Maharashtra and there are
maximum number of sonography Centers in Maharashtra.
More than 60% of such bodies are ultrasound clinics. The
studies have revealed that the pre-natal diagnostic
techniques are easily available in sonography centres for
sex determination. The cases registered in Maharashtra
show that these centers are being misused. Due to misuse
of the centres the sex ratio has come down alarmingly in
Marathwada region and by the end of year 2012 the ratio
of female child birth had got down below 800 in most of
the Districts of Marathwada. Only when the authority
started making inspection and the cases were registered
for causing illegal abortion, the female birth ratio
improved and it has now crossed 900 in this region.
25) When there is object like the object behind the
present Act, the provisions need to be strictly
implemented. It can be said that no sufficient powers are
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with the authority and powers need to be given to the
authority to do sample checking of such cases to ascertain
as to whether pregnant woman opted to undergo abortion
and then, the Act will become more effective.
26) 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
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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.
27) In the result, both the proceedings stand
dismissed. Sd/-
(T.V. NALAWADE, J. )
rsl
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Saksham Foundation Charitable Society Thru. G.S. [P.I.L.] vs Union Of India, Thru. Secretary Ministry Of Health & Family


Saksham Foundation Charitable Society Thru. G.S. [P.I.L.] vs Union Of India, Thru. Secretary Ministry Of Health & Family
MISB(L)_3517_2014

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