Judgment : The applicant is accused No.1 in R.C.C. No.302 of 2010, which is pending in the Court of Judicial Magistrate, First Class, Parali Vaijnath, Dist. Beed. One Dr.Kailas Shiraman Dudhal, Medical Superintendent, Sub-District Hospital, Parali Vaijnath, is the complainant. He alleged that the applicant and other two accused have committed various offences punishable under provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. 2. The facts leading to this complaint are as under. Other two accused are husband and wife and are medical practitioners of Parali Vaijnath. They established genetic counseling center cum Sonography clinic at Parali Vaijnath. Prior to April, 2007, Accused No.2 Dr. Mundhe made an application for registration of such center under the provisions of the Act. While providing information in form "A" for registration of the center, accused No.2 mentioned that the applicant has agreed to work as consulting radiologist in the center and mentioned his name in the application. The Civil Surgeon, District Hospital, Beed after following due procedure issued certificate of registration of accused No.2 on 19th April, 2007. The registration was made valid for five years from the date of registration. The complainant in his complaint narrated the incident in following manner. He said that on 19th September, 2010, at about 11.30 a.m. one Smt. Prerna a pregnant woman and her relatives went to the center and met accused Nos.2 & 3 (Dr. Mundhe and his wife Dr. S. Mundhe). She told them that she wanted to know sex of her foetus. Her relatives too supported her request. Accused Nos.2 & 3 then took Smt. Prerna to Sonography room and accused No.3 examined Smt. Prerna Sonographically and told her that she was carrying a male child. Accordingly, accused No.3 prepared a report and handed it over to Smt. Prerna and her relatives. Smt. Prerna then informed this incident on the same day to one Adv. Varsha Deshpande, who then reported the same to Civil Surgeon and Collector of Beed. The Collector and the Civil Surgeon directed the complainant to record statements of Smt. Prerna and her relatives and also inspect the center. Accordingly, on 21.09.2010 at around 4.00 p.m. the complainant and others visited the center. Here they recorded statement of the applicant and other two accused. The Collector and the Civil Surgeon directed the complainant to record statements of Smt. Prerna and her relatives and also inspect the center. Accordingly, on 21.09.2010 at around 4.00 p.m. the complainant and others visited the center. Here they recorded statement of the applicant and other two accused. The complainant asserted that as per his office record the center was registered in the name of applicant and it was he who was authorized to operate the Sonography machine at the center. He asserted that during the incident described above, the applicant did not conduct Sonography and thereby allowed accused No.3 to conduct Sonography and thereby helped her in disclosing sex of foetus of Smt. Prerna. The applicant moved this application after he received summons of the Court. He asserted that though he had given consent to accused No.2 for visiting the center as consulting radiologist, he had no occasion to visit the center. He also stated that he had nothing to do with the center and had no involvement in the incident. He also said that the consent he had given to accused No.2 was withdrawn etc. 3. The question is -whether the applicant by remaining absent from the center on the date of incident allowed accused No.3 to conduct Sonography on the decoy patient and thereby helped her in finding sex of foetus? The answer is in the NEGATIVE. 4. In order to appreciate the submissions made, one must note the provisions of the Act and Rules. The relevant provisions of the Act are Sections 6 and 23. They read as under :- "6. Determination of sex prohibited.-On and from the commencement of this Act,- (a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, prenatal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus; (b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus; (c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception." "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 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 for the purposes other than those specified in sub-section (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 sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection." 5. The complainant in his complaint apparently made erroneous statement that the center is registered in the name of applicant. (4) For the removal of doubts, it is hereby provided, that the provisions of sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection." 5. The complainant in his complaint apparently made erroneous statement that the center is registered in the name of applicant. In the affidavit in reply, the State has clarified that the center is registered in the name of accused No.2 and that the applicant was named as one of the employee of the center. The applicant at least at this stage cannot deny that he was an employee of the center as defined by the rules made under this Act. Rule 2(b) reads as under:- "(b) "Employee" means a person working in or employed by a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic, and includes those working on parttime, contractual, consultancy, honorary or on any other basis; " 6. Since the applicant admitted that he had given his consent to accused No.2 to help him running this center, he is trying to suggest that he has withdrawn his consent subsequently in 2010 but that is of no avail. At least this could be his defence if he remains an accused at the time of trial. On the date of incident, thus, I have no hesitation to hold that the applicant was employee of the center. As an employee of the center, what was responsibility and liability of the applicant is a question. The answer is provided in rule 18 of the rules. Rule 18 reads as under :- "18. Code of Conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centres etc.-All persons including the owner, employee or any other person associated with Genetic Counselling Centres, Genetic Laboratories, Genetic Clinic, Ultrasound Clinics, Imaging Centres registered under the Act/these Rules shall i. not conduct or associate with, or help in carrying out detection or disclosure of sex of foetus in any manner; ii. not employ or cause to be employed any person not possessing qualifications necessary for carrying out prenatal diagnostic techniques/procedures and tests including ultrasonography; iii. not employ or cause to be employed any person not possessing qualifications necessary for carrying out prenatal diagnostic techniques/procedures and tests including ultrasonography; iii. not conduct or cause to be conducted or aid in conducting by himself or through any other person any techniques or procedure for selection of sex before or after conception or for detection of sex of foetus except for the purposes specified in sub-section (2) of section 4 of the Act; iv. not conduct or cause to be conducted or aid in conducting by himself or through any other person any techniques or test or procedure under the Act at a place other than a place registered under the Act/the Rules; v. ensure that no provision of the Act and these Rules are violated in any manner; vi. ensure that the person conducting any techniques, test or procedure leading to detection of sex of foetus for purposes not covered under section 4(2) of the Act or selection of sex before or after conception, is informed that such procedures lead to violation of the Act and the Rules which are punishable offences; vii. help the law enforcing agencies in bringing to book the violators of the provisions of the Act and the Rules; viii. display his/her name and designation prominently on the dress worn by him/her; ix. write his/her name and designation in full under his/her signature; x. on no account conduct or allow/cause to be conducted female foeticide; xi. not commit any other act of professional misconduct. " 7. The facts mentioned above admit that on the date of incident the applicant was not seen in the center, he did not conduct any test on the decoy patient nor he issued any opinion. The question is despite his absence whether he can be said to have violated the code of conduct required to be observed by an employee of the center. If one carefully reads rule 18, one would find that sub-rule (i) to (iv) are prohibitive in nature. The employee is prohibited from doing so many things which are mentioned in clause Nos.(i) to (iv). Admittedly, the applicant has not violated the code of conduct, at least in terms of sub-rule (i) to (iv). Sub-rule (v), (vi) & (vii) impose certain responsibility on employee of a center. The employee is prohibited from doing so many things which are mentioned in clause Nos.(i) to (iv). Admittedly, the applicant has not violated the code of conduct, at least in terms of sub-rule (i) to (iv). Sub-rule (v), (vi) & (vii) impose certain responsibility on employee of a center. As an employee, the applicant, thus, was under obligation to ensure that no provision of the Act and Rules should be violated in any manner and to ensure that the person conducting any technique in the center should not detect sex of foetus etc. It is further provided that the applicant should help the law enforcing agencies in bringing to book the violators of the provisions of the Act and the Rules etc. Learned A.P.P. asserted that by remaining absent from the center at the time of incident, the applicant failed to ensure that in his absence other person would conduct Sonography examination on the decoy patient leading to detection of sex of foetus. No doubt, the applicant was not present when the incident took place, though he was an employee and more so a consulting radiologist. The question is whether it was his duty to remain present at the time of incident. The answer has to be in the negative, because admittedly, the applicant is not owner of the center and not regular employee of the center. He had agreed to attend the center as a consultant as and when called. When the decoy patient visited the center, other accused admittedly did not give any call to the applicant to attend and conduct radiological examination of the patient. It is not case of the prosecution that even after giving such calls, the applicant purposefully did not attend the case and thereby allowed accused No.3 to conduct Sonography of the patient. It is clear from the narration of the complaint that Smt. Prerna, the decoy patient and her relative approached accused No.2 first and then he allowed accused No.3 to examine the decoy patient radiologically/Sonographically. As said above, accused No.2 is owner of the center and no one can enter the center without his consent. I did not find any provision in the Act and Rules that the consulting radiologist is under obligation to attend each case of sonography of pregnant woman. As said above, accused No.2 is owner of the center and no one can enter the center without his consent. I did not find any provision in the Act and Rules that the consulting radiologist is under obligation to attend each case of sonography of pregnant woman. So, the applicant was not able to ensure that in his absence such tests for determination of sex of foetus is not conducted. This factual position ought to have appreciated by the complainant, who is also a senior Government Officer and a medical practitioner himself. Only because the name of the applicant was given as consulting radiologist of the center at the time of registration, the complainant thought it fit to file this complaint against the applicant. 8. On the face of it, the applicant has not committed any offence whatsoever punishable under any of the provisions of the Act or the Rules. I am not sure whether the complainant has purposely made false statement in the complaint that the center is registered in the name of the applicant, but the complainant can be accused of making such false statement to ensure that the case against the applicant is made plausible. In absence of this statement, probably the learned Magistrate would not have issued process against the applicant. However, I am not deciding the question as to whether the complainant made a false statement on purpose in the complaint. All that I am trying to suggest is that the complainant did not apply his mind to the facts of the case before drafting the complaint. He rather hurriedly or over-jealously made the applicant as accused in this case. 9. I am aware that the Act and the Rules are made to provide prohibition of sex selection before and after conception and for regulating pre-natal diagnostic technique. I am also aware that because of such techniques, female foetus are being aborted and this has led to imbalance of sex ratio. I am also aware that provisions of this Act and Rules should be utilized to bring erring practitioners to book. I am also aware that the Government has taken lot of initiative in this area for not only implementing provisions of this Act and Rules but also to file cases against the violators of the provisions of the Act and the Rules. I am also aware that the Government has taken lot of initiative in this area for not only implementing provisions of this Act and Rules but also to file cases against the violators of the provisions of the Act and the Rules. This initiative is certainly welcome and would certainly help the society to bring back the sex ratio to normalcy. But at the same time, since the provisions of this Act are quite strict to accused, utmost care is required to be taken while filing cases against the medical practitioners. The applicant in this case has suffered unnecessarily due to filing of this case in September, 2010. The case against the applicant deserves to be quashed. 10. The criminal application is allowed. Criminal Case bearing R.C.C. No.302 of 2010 stands quashed as against applicant alone. It is made clear that the case against accused Nos.2 & 3 should continue as per law.