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2012 DIGILAW 997 (BOM)

Shalini Balasaheb Karad v. State of Maharashtra

2012-05-11

A.V.NIRGUDE

body2012
Judgment : This writ petition filed under Articles 226, 227 of the Constitution of India and under Section 482 of Cr.P.C. is challenging order dated 14th July, 2011, passed by the learned Judicial Magistrate, First Class, parali-Vaijinath, District Beed and for quashment of Regular Criminal Case No.187 of 2011, in which the impugned order is passed. 2. The applicant is a Gynaecologist and running a Hospital as well as Sonography Centre at Parali-Vaijinath since 2001. She has registered the Sonography Centre under the provisions of Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, 'the Act'). 3. The appropriate authority appointed under the Act visited the Sonography Centre of the petitioner on 14th June, 2011, at about 05.00 p.m. and found that she had not filled-up completely Form-F of 13 patients which were examined by her during the month of June, 2011. The appropriate authority seized the record alongwith forms and sealed the sonography machine. He then gave show-cause-notice to the petitioner and despite her explanation he filed complaint against her on 14th July, 2011. On the same day, the learned Magistrate passed the impugned order issuing process against the petitioner. The learned Magistrate held that the record prima facie discloses commission of offence punishable under Section 23(1) and 25 of the Act and Rule 9(4) of the Rules. He also held that there is sufficient ground to proceed against the petitioner. This order as well as propriety of the action initiated by the appropriate authority is challenged in this petition. 4. The main objection recorded by the appropriate authority against the petitioner is that she did not fill-up Form-F of the patients properly. In order to verify this, I perused said forms. All the forms that were seized at the time of inspection are of patients who were admittedly examined during June, 2011. As said above, on 14th June, the inspection took place. The question is, whether the incompleteness of the forms would amount to contravention in the facts and circumstances. The answer is in the negative. In order to examine this aspect, one must read Section 4 and Rule 9, which reads as under :- "4. As said above, on 14th June, the inspection took place. The question is, whether the incompleteness of the forms would amount to contravention in the facts and circumstances. The answer is in the negative. In order to examine this aspect, one must read Section 4 and Rule 9, which reads as under :- "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 prenatal 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) haemoglobinopathies; (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 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 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 Central Supervisory 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." Rule 9 : "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 counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouses or fathers and the date on which they first reported for such counselling, procedure or test. (2) The record to be maintained by every Genetic Counselling Centre, in respect of each woman counseled shall be as specified in Form D. (3) The record to be maintained by every Genetic Laboratory, in respect of each man or woman subjected to any pre-natal 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 pre-natal 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 counselling, prenatal 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. (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 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." 5. (8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre 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." 5. On perusal of these provisions, following conclusions can be drawn (i) the person conducting ultra sonography of pregnant woman should maintain complete record in Clinic; (ii) he/she should maintain the record in Form-F; and (iii) he/she should sent monthly report of cases conducted by him/her on or before fifth day of the following month. In view of this, the petitioner was required to sent monthly report for the month of June, 2011, by 5th July, 2011. The record maintained by her in form-F of the patients who were examined by her during that month ought to have been made ready and complete latest by 5th July, 2011. The inspection however took place on 14th June, 2011. So, the petitioner was deprived of an opportunity to complete the forms (record) till the appropriate date i. e. 5th July, 2011. The appropriate authority in this case ought to have ignored the forms in question of the patients examined in June, 2011. He ought to have examined the forms of the patients who were examined in earlier months such as March, April, May of 2011. In view of this, the allegation against her even if are truthful would not amount to contravention of Section 5 of the Act. The learned Magistrate ought to have noticed obvious error committed by the appropriate authority and ought to have held that this case was not good enough for issuance of process. The petition should therefore succeed. Rule is made absolute in view of following order: The petition is allowed. The proceedings bearing Regular Criminal Case No.187 of 2011 pending before the Court of Judicial Magistrate, First Class, Parli-Vaijinath, District Beed stands quashed and the impugned order stands set aside. In view of this, machines be released from seal. At the request of learned A.P.P., the effect of this order is kept in abeyance for eight weeks.