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2012 DIGILAW 923 (BOM)

Ravindra v. State of Maharashtra

2012-05-03

A.V.NIRGUDE

body2012
Judgment : This application made under section 482 of the Cr.P.C. seeks quashment of Criminal Case bearing R.C.C. No.99 of 2011, which is pending in the court of J.M.F.C., Ausa, Dist. Latur. 2. The applicant is the accused. The complainant is Dr. Vasant Wattamwar, who is Taluka Appropriate Authority appointed under the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 read with Rules, 1996 (henceforth it is referred to as "the Act" and "the Rules"). It is common ground that the applicant/accused is running a diagnostic center at Ausa since prior to 2007. It is also common ground that he has obtained registration from the Appropriate Authority to establish and run such center. The complainant -Dr. Wattamwar visited the applicant's center on 16th May, 2011 and found that the applicant has not kept record in respect of Sonography examination on pregnant women. He, therefore, took certain record found in the center in his possession and recorded a panchanama. He also sent Show Cause Notice to the applicant to which the applicant immediately submitted a reply. In the Show Cause Notice, the complainant alleged that the applicant had not filled up "F" forms completely. Within two days, the applicant submitted a reply saying that the shortcoming found in form "F" at his center were inadvertent and he would take care in future. Despite this, on 06.06.2011, Dr. Wattamwar filed complaint against the applicant for offences punishable under section 23 read with section 25 of the Act. Learned Magistrate then issued process against the applicant for offence punishable under sections 23 and 25 of the Act. The applicant appeared before the learned Magistrate and it appears, the learned Magistrate immediately without recording evidence before charge, framed charge against the applicant on 13.12.2011. The application is moved thereafter on 10.02.2012 alleging that there is no case made out in the complaint against the applicant and the entire case should be quashed. 3. The question, therefore, is -whether the complainant makes out a case against the applicant. In the complaint the allegation made against the applicant is that in three forms of patients, by name, Smt. Dipali, Smt. Asha and Smt. Suvarna, the applicant failed to mention in form "F", how many children they have previous to the date of examination. The register of the forms was seized and is now produced before me. In the complaint the allegation made against the applicant is that in three forms of patients, by name, Smt. Dipali, Smt. Asha and Smt. Suvarna, the applicant failed to mention in form "F", how many children they have previous to the date of examination. The register of the forms was seized and is now produced before me. Therefore, I am inclined to examine as to whether the allegation is truthful. At the direction of this Court, the sealed record is allowed to be opened in the Court. I perused the register and found three forms of above mentioned patients and I also found that the applicant did not mention in those forms in the register the number of children of these patients. 4. Learned Counsel for the applicant brought to my notice the consents cum declarations of above mentioned three patients. These consents cum declarations of the patients were admittedly perused and verified by the complainant at the time of inspection. The consent cum declarations of the above mentioned patients are found properly filled up. Fortunately for the applicant, in those forms, the information regarding number of children of these patients was also required to be filled up and such information was properly filled up. The question is -whether form "F" of these patients were still incompletely filled up? The answer is in the NEGATIVE. 5. As said above, form "F" includes consent cum declaration of the patients while filling up form "F". The doctor is supposed to fill up consent cum declaration form and obtain signature of the patients. Considering the nature of consent/declaration form, it is clear that this part of form "F" is required to fill up first. Unless the patient consents for conducting Sonography test, the doctor will not be able to fill up remaining part of form. As said above, the consent cum declaration form of these three patients are found in order. On the other hand, main form "F" which are maintained in a register were also found properly filled up except the information regarding number of children of the patient. If one reads and the complainant ought to have read these two parts of form "F" together to form opinion as to whether the record is maintained or not maintained properly. On the other hand, main form "F" which are maintained in a register were also found properly filled up except the information regarding number of children of the patient. If one reads and the complainant ought to have read these two parts of form "F" together to form opinion as to whether the record is maintained or not maintained properly. The complainant probably entertained belief that form "F" should be filled up in such a manner that even if certain information is required to be filled in at two places, it must be filled up at both the places and if it is not filled, it would amount to incomplete filling up of the form. I am afraid, this belief was apparently and patently incorrect. The complainant himself is a doctor. He should have realized that if the doctor has filled up necessary information at some place, in the form, he should and he ought to have assumed that the form was properly filled. I think the complainant made this complaint out of either over enthusiasm or due to pressure from his superiors. The application should, therefore, succeed. 6. Before I conclude this judgment, I must also hold that the learned Magistrate who issued process to the applicant did not take proper care before passing the order of issuance of process. In order to examine the case I first perused the photostat copy of the complaint. On the face of it the complaint is not properly drafted, neither it is properly typed. Even prayer clause is conspicuously absent. The complainant did not mention as to under what provision of the Act, the offence is committed by the applicant. The complaint only mentions section 23 and 25 of the Act for asserting that the applicant should be convicted under these provisions. But, if at all, the applicant had not filled up form "F" properly in the three cases, it would amount of offence punishable under section 4(3) proviso, read with, section 5 & 6, read with, section 23 & 25 of the Act. The complainant clearly mentioned in the complaint that in three forms of the patients, who are named above, he found the forms incomplete. The complainant clearly mentioned in the complaint that in three forms of the patients, who are named above, he found the forms incomplete. If such is the complaint, learned Magistrate before issuance of process ought to have perused the three forms and ought to have formed his opinion as to whether a case is made out for issuance of process. Instead of he doing that chore, I did it today and I found for the reasons mentioned above that the forms were not incompletely filled up. 7. Learned Magistrate committed another blunder when he did not realize that this was a warrant case, in which, evidence before framing of charge was required to be recorded. The applicant/accused and the complainant are present before the Court who told me that the Magistrate has so far not recorded any evidence in this case and yet as mentioned above on 13.12.2011, learned Magistrate framed charge against the applicant. This is certainly unpardonable and absolutely illegal. Unfortunately, a copy of charge is also annexed with the application and after I went through the same I found that the drafting of the charge is incorrect, unnecessary and unconnected to the complaint. Even the spelling mistakes and grammar mistakes are not corrected by the Magistrate before putting signature on it. I am very sorry to note that despite laudable object of the Act and Rules made thereunder, the Authorities under this Act are not taking proper care before filing cases against medical professionals. The provisions of the Act are quite strict to the accused and in order to balance such strictness in the provisions of the Act, prosecutors/complainants are expected to take utmost care while taking action against the accused. They must follow the procedure prescribed under the Act meticulously as following such procedure meticulously is mandatory. 8. Learned A.P.P. despite glaring anomalies in the case and the record of the case, insisted that I should refer to two judgments of the Supreme Court in the case of Central Bureau of Investigation Vs. K.M. Sharan, 2008 4 (SCC) 471 and in the case of State of A.P. Vs. Gourishetty Mahesh, 2010 (11) SCC 226 . In both these cases, the Supreme Court has held that quashing of cases at threshold should as far as possible be avoided. The acceptability of the material to fasten culpability on the accused person is the matter of trial. Gourishetty Mahesh, 2010 (11) SCC 226 . In both these cases, the Supreme Court has held that quashing of cases at threshold should as far as possible be avoided. The acceptability of the material to fasten culpability on the accused person is the matter of trial. At threshold level detail and minute examination of the prosecution case is not warranted. Learned A.P.P. is thus suggesting that what I did in this case was unnecessary. He suggested that I ought not to have gone into merits of the case and should have been satisfied with the complaint and the statements made in the complaint. I am afraid, this in my view, is an exceptional case, where on the face of it and even on casual perusal of the prosecution material, I noticed that it does not make out case against the applicant. 9. The case filed against the applicant should, therefore, fail. Same stands quashed. The Criminal Application is accordingly allowed and disposed of.