IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 1498 of 2019
Dr Nitin Batra ……Petitioner
State of Uttarakhand and Another …. Respondents
Present:-Mr. V.B.S. Negi, Sr. Advocate, assisted by Mr. Ayush Negi, Advocate for the
Mr. Pratiroop Pandey, A.G.A for the State of Uttarakhand.
Hon’ble Ravindra Maithani, J.
The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) has been preferred against the order dated 19.09.2018, 24.05.2019 and 18.07.2019 passed in Criminal Case No. 2281 of 2017, State Vs. Dr. Nitin Batra by the court of Learned Chief Judicial Magistrate, Haridwar. (for short ‘the case’).
2. Facts necessary for disposal of the petition are as hereunder:-
2.1 A complaint under Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short ‘PCPNDT Act’) was filed on 17.02.2017 against the petitioner for violation of rule 13 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (‘the Rules’). On the basis of this complaint on 23.02.2017, cognizance under Section 23 of the PCPNDT Act was taken, which is basis of the case.
2.2. After cognizance, an application was filed by the petitioner that for violation of rule 13 of the Rules, cognizance could have been taken under Section 25 of the PCPNDT Act and for that offence, the cognizance is time barred, therefore, proceedings be dropped. This application was rejected on 31.08.2017 and the Court observed that since cognizance had already been taken under Section 23 of the PCPNDT Act, this issue may be examined at the time of framing of the charge. In fact, this order dated 31.08.2017 is impugned, but, in the petition, it is wrongly mentioned as order dated 19.09.2018.
2.3 On 19.09.2018, charge under Section 25 of the PCPNDT Act was framed against the petitioner. Thereafter, on 22.11.2018, he moved an application that since charge under Section 25 of the PCPNDT Act has been framed, it confirms that on the date when the complaint was filed, it was time barred, therefore, proceedings be dropped. This application was again rejected by an order dated 24.05.2019. The Court observed that the question of limitation could have been gone into at the time of cognizance or prior to framing of charge. This order is also impugned. 2.4. Again, an application was filed by the petitioner on 10.06.2019 in the case that order dated 24.05.2019 be reviewed. This application was rejected by the court on 18.07.2019 holding that the Court of Magistrate has no jurisdiction to recall its own order.
3. Heard learned counsel for the parties through Video Conferencing and perused the record.
4. During the course of hearing on 30.06.2020, this Court framed two issues, which arose for consideration.
“Whether violation of rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or section 23 of the PCPNDT Act? This question is not directly involved. But, then it also requires deliberation as to whether in this petition this aspect can be examined. The other issue which is, in fact, raised by the Petitioner is that, if cognizance is taken under Section 23 of PCPNDT Act (for which the time for limitation is different) and subsequently charge under Section 25 of PCPNDT Act is framed, (for which the time for limitation is different), what should be the limitation for cognizance?”
5. Learned counsel for the petitioner would submit that charge has been framed under Section 25 of the PCPNDT Act, for which period of limitation is one year in view of Section 468 of the Code, but, cognizance was taken long thereafter, therefore, cognizance is time barred.
6. In support of his contention, learned Senior Counsel placed reliance on the principles of law, as laid down in the case of State of Punjab vs. Sarwan Singh (1981) 3 SCC 34.
7. A few facts need further exploration;
(i) Complaint under Section 23 of the PCPNDT Act read with rule 13 of the Rules was filed against the petitioner on 17.02.2017 and cognizance was taken on 23.02.2017.
(ii) According to the complaint, which is Annexure No.5 to the petition, Aadiya Medicare is registered under the PCPNDT Act for a period of five years on 30.04.2014 and in the registration form, sinologist Dr. Deepa Sharma was shown, but, subsequently on 25.07.2014, the petitioner sent an e-mail to the appropriate authorities that in place of Dr. Deepa Sharma, now Dr. Manisha Verma is working as sinologist. According to the complaint, such information was required to be sent at least 30 days prior to the change with a request to re-issue the registration certificate. When form ‘F’ were examined it was revealed that, in fact, Dr. Manisha Verma was working as sinologist w.e.f. 09.07.2014.
8. Section 25 of the PCPNDT Act is as hereunder;
“25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.- Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.”
9. Section 468 of the Code is as hereunder;
“468. Bar to taking cognizance after lapse of the period of limitation.–(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. (2) The period of limitation shall be–
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”
10. In view of the above quoted provisions, it is abundantly clear that for the offence under Section 25 of the PCPNDT Act, definitely the period of limitation, is one year from the date of commission of the offence. The question in the instant petition is different, because, initially cognizance was taken against the petitioner under Section 23 of the Act, which is hereunder;
“23. Offences and penalties.- (1) Any medical geneticist, gynecologist, 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 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 who has been convicted by the court under subsection (1), shall be reported by the Appropriate Authority to the respective State Medical Council for taking necessary action including the removal of his name from the register of the Council for a period of two 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 or Genetic Clinic or of a medical geneticist, gynaecologist or registered medical practitioner for conducting prenatal diagnostic techniques on any pregnant woman (including such woman unless she was compelled to undergo such diagnostic techniques) for purposes other than those specified in clause (2) of section 4, 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.”
11. The punishment prescribed under Section 23 of the PCPNDT Act is three years for the first offence and for it the period of limitation is three years under Section 468 of the Code. The question for consideration is as to what would be the period of limitation now. Whether the period of limitation would be the period which is prescribed for the offence under Section 25 of the PCPNDT Act, under which, the petitioner has been charged or under Section 23 of the PCPNDT Act, under which cognizance was taken.
12. In fact, the object of limitation has been discussed in various cases by the Hon’ble Supreme Court. In the case of Sarah Mathew Vs. Institute of Cardiovascular Diseases, (2014) 2 SCC 62, the Hon’ble Supreme Court observed that “Read in the background of the Law Commission’s Report and the Report of the JPC, it is clear that the object of Chapter XXXVI inserted in the Cr.P.C. was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences.” (Para 24)
13. The opening sentence of Section 468 of the Code in itself makes it abundantly clear that the limitation is applicable at the time of taking cognizance, not consequent thereupon. There may be situation where cognizance is taken of an offence and charge is framed of different offence and again conviction is held under different section. So can it be said that the subsequent offence(s) would be determining factors for counting the period of limitation? The answer is in NEGATIVE.
14. In the case of State of Himachal Pradesh Vs. Tara Dutt and Another (2000) 1 SCC 230, the Hon’ble Supreme Court discussed this issue. In fact, the Hon’ble Court held that the principles of law laid down in the case of Sarwan Singh (supra) is no more good law because subsequent to the judgment in the case of Sarwan Singh (supra), sub-section 3 to Section 468 of the Code was inserted. In the case of Tara Dutt (supra), charges were framed under Sections 468, 420, 120-B IPC and Section 5(2) of the Prevention of Corruption Act, but, conviction was recorded under Sections 417 and 465 r/w Section 109 IPC. On appeal, the High Court held that since conviction is under Section 417 and 465 IPC, the cognizance taken was barred by limitation and recorded a finding of acquittal. In appeal, Hon’ble Supreme Court set aside the finding of acquittal and directed that the appeal in question be disposed of by the High Court on merits. The Court observed as hereunder:-
“7. …………. But the provisions are of no application to the case in hand since for the offences charged, no period of limitation has been provided in view of the imposable punishment thereunder. In this view of the matter we have no hesitation to come to the conclusion that the High Court committed serious error in holding that the conviction of the two respondents under Section 417 would be barred as on the date of taking cognizance the Court could not have taken cognizance for the said offence. Needless to mention, it is well settled by a catena of decisions of this Court that if an accused is charged with a major offence but is not found guilty thereunder, he can be convicted of a minor offence if the facts established indicate that such minor offence has been committed.”
15. The position of law has now been well settled by the Hon’ble Supreme Court in the case of Tara Dutt (supra) that it is the offence of which the cognizance has been taken, which determines the period of limitation and not the offence under which the person is convicted and its natural corollary is that for the purpose of determining period of limitation, the offence charged is also not relevant. What is relevant is the offence(s) under which cognizance has been taken.
16. In the instant case, the cognizance is stated to have been taken on 23.02.2017 under Section 23 of the PCPNDT Act for violation of rule 13 of the Rules. The violation was done in the year 2014. According to the petitioner change of sinologist was done w.e.f. 10.07.2014 (Para 5 of the petition). Although as per the complaint the changed sinologist had been working since 09.07.2014. Rule 13 of the Rules mandates that the information of the change should be given at least thirty days in advance seeking re-issuance of the certificate. It was not done. The violation was done finally on 09.07.2014, when the changed sinologist started functioning without information and without re-issuance of the registration certificate. In the case cognizance was taken on 23.02.2017. It is within three years from the date when the offence was committed. It is within limitation. Therefore, this Court is of the view that, in fact, the cognizance in the case is not barred. The learned court below, on different grounds, but, rightly dismissed the applications filed by the petitioner for dropping the proceedings on the ground that the cognizance was time barred. The impugned orders dated 31.08.2017, 24.05.2019 and 18.07.2019 do not require any interference.
17. There is another issue, which the Court posed on 30.06.2020 for consideration, which is as hereunder;
“Whether violation of rule 13 of the Rules under the Act would attract the provisions of Section 25 of the PCPNDT Act or section 23 of the PCPNDT Act?”
This question is not involved. State has not questioned the framing of charge under Section 25 of the PCPNDT Act, but, the Court has further posed a question that as to whether in this petition, this aspect can be examined?
18. Learned Senior counsel appearing for the petitioner would argue that this Court may examine the validity of order framing charge dated 19.09.2018 and remand the matter to the learned court below, for framing the charge, after affording an opportunity of hearing to the parties.
19. This is a petition under Section 482 of the Code, which deals with inherent powers of the High Court. The Section reads as hereunder;
“482. Saving of inherent powers of High Court.–Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
20. The jurisdiction is of much larger magnitude. Though, there are guidelines to exercise this jurisdiction under this Section, but, still the basic purpose of Section 482 of the Code is to do real and substantive justice for the administration of which, it exists. In the case of Dinesh Datt Joshi Vs. State Rajasthan and Another, (2001) 8 SCC 570. The Hon’ble Supreme Court observed as hereunder;
“6. Section 482 of the Code of Criminal Procedure confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is well established principle of law that every Court has inherent power to act ex debito justitiae – to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. The principle embodied in the Section is based upon the maxim: Quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. The Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedural law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, for extraordinary cases.”
21. In the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, Hon’ble Supreme Court observed “…….On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.” (Para 20)
22. In the case, the petitioner’s first application for termination of proceedings due to being time barred was rejected on 31.08.2017. Charge was framed in the case on 19.09.2018. Before framing charge, an order was passed on 19.09.2018, which is annexure 1 to this petition. Sri R.K. Srivastava, Learned Chief Judicial Magistrate, Haridwar, writes that the petitioner violated the provision of rule 13 of the Rules, which is punishable under Section 25 of the PCPNDT Act. The Learned Chief Magistrate did not write even a word as to why violation of rule 13 of the Rules does not attract the provision of Section 23 of the PCPNDT Act. It was so required because cognizance was taken under Section 23 of the PCPNDT Act and, an application for termination of the proceedings, on the ground of cognizance being time barred had been filed by the petitioner, which after a detailed discussion was rejected by the Court on 31.08.2017. In paragraph 8 of it, the court had observed that the question as to under which section of the PCPNDT Act, the case falls, would be examined at the stage of framing of charge. But, it was not examined on 19.09.2018 when the charge was framed.
23. The issue as to under which Section of the PCPNDT Act this case falls was contentious in the case. But, Sri R.K. Srivastava, Learned Chief Judicial Magistrate, on 19.09.2018 did not address it at all. He merely recorded that the case of the petitioner falls under Section 25 of the PCPNDT Act. Whether the order is valid or not, it is a different question, but one thing is clear that the order dated 19.09.2018, passed in the case is without any reasoning. It is not based on any discussion. It is not passed in accordance with the principles of Judicial Decision Making.
24. The matter relates to great social importance. The order dated 19.09.2018 is not challenged by any of the parties, but, the issue has been raised by the court suo-motu.
25. The proceedings are under Section 482 of the Code. It is the inherent jurisdiction of the Court to do complete and substantial justice. Arguments have already been advanced by both the parties on the point as to which section of the PCPNDT Act is attracted in this case. Therefore, under the facts and circumstances of this case, this Court is of the view that validity of the order dated 19.09.2018 may be examined in this proceedings. This Court now proposes to examine the validity of order dated 19.09.2018 and charge framed consequent to it on 19.09.2018.
26. The statement of objects and reasons and preamble of an Act reflects the legislative intent to frame the law. The statement of objects and reasons of PCPNDT Act is as hereunder:-
Statement of objects and reasons.- It is proposed to prohibit pre-natal 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.
2. The Bill, inter alia, provides for:-
“(i) prohibition of the misuse of pre-natal diagnostic techniques for determination of sex of foetus, leading to female foeticide;
(ii) prohibition of advertisement of pre-natal diagnostic techniques for detection or determination of sex;
(iii) permission and regulation of the use of pre-natal 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.” And further the Preamble is as hereunder:-
“An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto.”
27. In fact, in view of the rampant practice of female infanticides for innumerable reasons, the PCPNDT Act was passed in the year 1994 by the Parliament, but it was not implemented, until a petition was filed before the Hon’ble Supreme Court. In the case of Centre for Enquiry Into Health And Allied Themes (CEHAT) & Others Vs. Union of India and Others, (2001) 5 SCC 577, the Hon’ble Supreme Court noted the evil of female infanticide in as hereunder:-
“1. It is unfortunate that for one reason or the other, the practice of female infanticide still prevails despite the fact that gentle touch of a daughter and her voice has soothing effect on the parents. One of the reasons may be the marriage problems faced by the parents coupled with the dowry demand by the so-called educated and/or rich persons who are well placed in the society. The traditional system of female infanticide whereby female baby was done away with after birth by poisoning or letting her choke on husk continues in a different form by taking advantage of advance medical techniques. Unfortunately, developed medical science is misused to get rid of a girl child before birth. Knowing full well that it is immoral and unethical as well as it may amount to an offence, foetus of a girl child is aborted by qualified and unqualified doctors or compounders. This has affected overall sex ratio in various States where female infanticide is prevailing without any hindrance.”
28. In the case of (CEHAT) (supra), the Hon’ble Supreme Court gave directions to the Central Government to implement with all vigour and zeal the PCPNDT Act and Rules framed in the year 1996. Other directions were also issued.
29. In the case of Federation of Obstetrics and Gynecological Societies of India (FOGSI) Vs. Union of India and others, (2019) 6 SCC 283, in paragraph 36 of the judgment, the Hon’ble Supreme Court observed as to what is the purpose of the Act and held that “The main purpose of the Act is to ban the use of sex selection and misuse of prenatal diagnostic technique for sex selective abortions and to regulate such techniques. The amendments have brought techniques of preconception sex selection within the ambit of the Act and have also brought use of ultrasound machines under its umbrella. It has further provided for constitution of Central and State Level Supervisory Board. More stringent punishments have been provided. The Appropriate Authorities have been given powers of civil court for search, seizure and sealing. The maintenance of record has been made mandatory in respect of use of ultrasound machines.”
30. The Government of India under the ‘Save the Girl Child Programme’ has given a vision 1, which is as hereunder;
1. To ensure efficient implementation of the PCPNDT Act.
2. To reduce pre-conception and pre-natal mortality of the girl child and hence improve the sex ratio at birth.
31. What is important is the strategy for this. One of which is identifying violators of the Act through conducting detailed audits of Form ‘F’ filled in for the pregnant woman in the clinic.
32. The sex ratio in Uttarakhand has not been encouraging. In the year 2013-15, it was 844 females per thousand males, whereas, in the year 2012-14, it was 871 females per thousand males (Niti Aayog document)2. Not only this, there have been discouraging reports, in one of which, it was noted that in 132 villages in one of the Districts of Uttarakhand, no girl was born in three months. These facts have been detailed just to understand as to what this law is all about. In view of decreasing sex ratio, the PCPNDT Act is framed. To get an offender is not easy task because the offences are done in secrecy and in collusion. One of the ways to trace the offender is by way of checking or examining the records. The importance of these records has been further interpreted in the case of FOGSI (supra). http://pndt.gov.in/index4.php?lang=1&level=0&linkid=25&lid=29 https://niti.gov.in/content/sex-ratio-females-1000-males
33. In fact, learned Senior Counsel for the petitioner, at one stage of the proceedings, has very extensively argued to impress upon the fact that in this case, offence under Section 25 of the PCPNDT Act is made out and not offence under Section 23 of the PCPNDT Act.
34. Learned Senior Counsel would argue that the petitioner does not run any facility as given under Section 23 of the Act; violation of rule 13 does not relate to maintenance of record; it has nothing to do with sex determination; rule 13 of the Rules does not require maintenance of any form. Learned Senior Counsel referred to paragraph 1, 39 and 65 of the FOGSI case (supra), especially paragraph 65 of it, which is as hereunder;
“65. It is rightly contended on behalf of the respondents that there are different forms for record keeping prescribed under the Act and the Rules, they are important and interlinked, operate in tandem with one another. These records have to be maintained only when the procedure or tests are conducted on pregnant woman or when patient may have been advised to use preconception diagnostic tools to conceive a child. It is required for Genetic Counselling Centre advising the procedure/test with a potential of detecting or determining the sex of the foetus and referring a person to a Genetic Clinic/Imaging Centre/Ultrasound Clinic to record the details of Genetic Clinic to which patient is referred at Point 15 of Form D along with the details of the diagnosis and relevant medical details of the person. Accordingly, Genetic Clinic/Imaging Centre/Ultrasound Clinic conducting the aforesaid referred procedure has to record the name and address of Genetic Counselling Centre with the referral slip along with the relevant medical record of the person on whom procedure/test/technique is conducted. The aforesaid record keeping procedure shall be followed by Genetic Laboratories also. The scheme of the Act makes it evident that record keeping is meant to track/monitor and regulate the use of technology that has potential of sex selection and sex determination. Section 23 is not stand-alone section. It is rather used in the enforcement of other provisions of the Act and violations of Section 23 are often accompanied by violations of the provisions of Sections 4, 5, 6 and 18 of the Act. It is submitted that non-maintenance of record in the context of sex determination is not merely a technical or procedural lapse. It is most significant piece of evidence for identifying offence and the accused. The inspection of records is crucial to identify wrongdoers as the crime of sex determination being a collusive crime given the nexus between the patients and the doctors. Accordingly, punishment is provided in Section 23 for not maintaining the records.”
35. Learned counsel would argue that Section 23 of the PCPNDT Act is not a standalone section. It is used to enforce other provisions of the Act namely section 4, 5, 6 and 18 of the PCPNDT Act. It is argued that violation of rule 13 is nowhere connected with these Sections, hence, there are no reasons to frame charge under Section 23 of the PCPNDT Act.
36. On the other hand, learned State Counsel would submit that rule 13 relates to maintenance of permanent record.
37. The allegations against the petitioner are that he did not inform the appropriate authorities about the change of sinologist and also he did not seek re-issuance of the certificate of registration as required under rule 13 of the Rules. This rule is as hereunder;
“13. Intimation of changes in employees, place or equipment Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall intimate every change of employee, place, address and equipment installed, to the Appropriate Authority at least thirty days in advance of the expected date of such change, and seek re-issuance of certificate of registration from the Appropriate Authority, with the changes duly incorporated.”
38. Is this rule all-alone? No, it is not. rule 9 of the Rules deals with maintenance and preservation of record. Sub-rule 5 to rule 9 deals with keeping record of every change of employee as permanent record. This sub- rule 5 is as hereunder;
“(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.”
39. The above sub-rule makes it clear that the appropriate authority has to maintain a permanent record of all the applications for grant of registration and sub-rule 5 requires that every letter of intimation of every change of employee etc. shall be preserved as permanent record. Now, rule 13 of the Rules requires that change of employee is to be given at least 30 days in advance and certification of registration has to be re-issued. In fact, according to the complainant, the petitioner changed the radiologist/sinologist. In para 3 of its petition, the petitioner has written that his center was registered under the PCPNDT Act on 30.04.2014 for five years and the ultrasound machine was registered in the name of Radiologist Dr. Deepa Sharma. According to the complaint, it was found that the form ‘F’ was filled not by the Dr. Deepa Sharma but by a Dr. Manisha Verma since 09.07.2014.
40. Sinologist is defined under Section 2(p) of the Act, which means “a person who possesses any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology.” Section 2(e) of the PCPNDT Act defines Genetic Laboratory. It is as hereunder;
2. (e) “Genetic Laboratory” means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test;
Explanation.- For the purposes of this clause, “Genetic Laboratory” includes a place 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;
41. In the context to rule 9(5), rule 13 of the Rules and in view of the definition of Genetic Laboratory and sinologist as defined under Section 2(e) and 2(p) of the PCPNDT Act, respectively, now, there is one more very important section, which is 4(3) of the PCPNDT Act. It is as hereunder;
(3) no pre-natal 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 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 teratogerric agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant women 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 the provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography.”
42. A bare perusal of above sub-section 3 to Section 4 of the PCPNDT Act reveals that no pre-natal diagnostic technique can be conducted unless the person qualified to do so is satisfied for conducting such techniques. There are grounds also given as to under what circumstances, it may be done. The proviso to sub-section 3 is most important. It mandates that the person who conducts ultrasonography on a pregnant woman shall keep complete record and any deficiency or inaccuracy shall amount contravention of provision of Section 5 or Section 6, unless contrary is proved.
43. Petitioner keeps ultrasonography machine. Accordingly, his centre is a Genetic Laboratory which is registered under the PCPNDT Act. rule 9, sub-rule (5) of the Rules requires that the records of all the employees shall be permanently preserved. The position of sinologist is very important because it is he who conducts pre-natal diagnostic techniques. It is he who has to fill form of the women on which this technique is conducted and this is form ‘F’, which is most important, which has been discussed much in the case of FOGSI (supra). In paragraph 64, the Hon’ble Supreme Court observed that filling of form ‘F’ is not mere clerical requirement. Instead, it is condition precedent for undertaking tests/procedure. In the absence of form ‘F’, appropriate authorities will have no tool to supervise the uses of ultrasound machine. The Hon’ble Court observed as hereunder;
“64. …………….. Thus, though the submission that Form ‘F’ is clerical requirement urged by learned counsel appearing for the petitioner Society appears at the first blush to be worth examination, but on close scrutiny it is found that in case any information in the Form is avoided, it will result in the blatant violation of the provisions of Section 4 and may lead to result which is prohibited under Section 6. It cannot be said to be a case of clerical error as doctor has to fulfil pre requisites for undertaking the procedure in case the conditions precedent for undertaking prenatal diagnostic test is not specifically mentioned, it would be violative of provisions contained in Section 4. Form ‘F’ has to be prepared and signed by either Gynaecologist/Medical Geneticist / Radiologist / Paediatrician / Director of the Clinic/Centre/Laboratory. In case the indications and the information are not furnished as provided in Form ‘F’ it would amount that condition precedent to undertake the test/procedure is absent. There is no other barometer except Form ‘F’ to find out why the diagnostic test/procedure was performed. In case such an important information besides others is kept vague or missing from the Form, it would defeat the very purpose of the Act and the safeguards provided thereunder and it would become impossible to check violation of provisions of the Act. It is not the clerical job to fill the form, it is condition precedent for undertaking test/procedure. With all due regards to the submission advanced on behalf of petitioner Society that it is a clerical job, is wholly without substance but it is a responsible job of the person who is undertaking such a test i.e., the Gynaecologist/ Medical Geneticist/ Radiologist / Paediatrician / Director of the Clinic/Centre/Laboratory to fill the requisite information. In case he keeps it vague, he knows fully well that he is violating the provisions of the Act and undertaking the test without existence of the conditions precedent which are mandatory to exist, he cannot undertake test/procedure without filling such information in the form. There is no other way to ensure that test is undertaken on fulfilment of the prescribed conditions. There is nothing else but the record which required to be maintained and on the basis of which countercheck can be made. There is no other barometer or criteria to find out the violation of the provisions of the Act. Rule 9(4) also requires every Genetic Clinic to fill Form ‘F’ wherein information with regard to details of the patient, referral notes with indication and case papers of the patient are required to be filled and preserved. Form ‘F’ lays down the indicative list for conducting ultrasonography during pregnancy. Form ‘F’ being technical in nature gives the insight into the reasons for conducting ultrasonography and incomplete Form ‘F’ raises the presumption of doubt against the medical practitioner. In the absence of Form ‘F’, Appropriate Authorities will have no tool to supervise the usage of ultrasound machine and shall not be able to regulate the use of the technique which is the object of the Act.”
44. There is another aspect of the matter. Rule 13 does not only require that the information about the change of employee(s) is to be given thirty days prior to said change, but, it also requires that a request shall also be made seeking re-issuance of the certificate of registration. It was also not done by the petitioner. In fact, change of sinologist is very crucial. It is the person who has to fill Form ‘F’ after having been satisfied that such test/ procedures are to be conducted. Non filling or inaccuracy in the form ‘F’, in view of Section 4(3) of the PCPNDT Act attracts the provisions of Section 5 and 6 unless contrary is proved. Therefore, violation of rule 13 is not a violation of some formal directions. The question is where it would fall, under Section 23 or under Section 25 of the PCPNDT Act?
45. Section 25 of the PCPNDT Act prescribes punishment for contravention of any provision of the Act or rule made there under for which no penalty elsewhere has been provided in the Act. It simply means that if punishment is provided elsewhere in the Act, the provision of Section 25 will not come into play. It is a residual section. May be, violation of any office order, instructions or directions issued under the Act or under the Rules by any authorities there under, may fall under Section 25 of the PCPNDT Act. Section 23 of the PCPNDT Act provides punishment for contravention of any of the provision of the Act or rules made there under. In the instant case, the petitioner has violated rule 13 of the Rules. In view of what is discussed hereinbefore, this Court is of the view that violation of rule 13 of the Rules would attract the provision of Section 23 of the PCPNDT Act and not section 25 of the PCPNDT Act. The order dated 19.09.2018 passed in the case for framing charge under Section 25 of the PCPNDT Act against the petitioner as well as charge under Section 25 of PCPNDT Act framed against the petitioner on 19.09.2020 are not in accordance with law. The order as well as charge deserve to be quashed.
46. The Petition is dismissed. But, the order framing charge dated 19.09.2018, passed in the case, and the charge under Section 25 of the Act framed on 19.09.2018, are quashed.
47. The petitioner shall be charged under Section 23 of the PCPNDT Act for violation of rule 13 of the Rules. The Learned trial Court is directed to frame the charge under Section 23 of the PCPNDT Act against the petitioner for violation of rule 13 of the Rules and proceed to decide the case in accordance with law, expeditiously.
48. Let a copy of this judgment be forwarded to the concerned Court.
(Ravindra Maithani, J.) 20.07.2020