Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 303 (HP)

R. D. Sharma v. V. K. Chaudhary

2018-03-12

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Section 482 of the Code of Criminal Procedure, is maintained by the petitioner for quashing the complaint filed by the complainant, under Sections 23 & 25, read with Section 28 of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter to be called as “PC and PNDT Act, 1994) and Sections 120-B & 201 of Indian Penal Code, being complaint No. 34-3 of 2015, as well as order dated 05.05.2017, passed by learned Judicial Magistrate 1st Class, Court No. 2, Ghumarwin, District Bilaspur, H.P., whereby the charge, under Section 23 of the PC and PNDT Act, 1994, has been framed against the petitioner. 2. Briefly stating the facts giving rise to the present petition as per the prosecution are that on 30.05.2014, the petitioner had conducted Pre-natal Diagnostic Test on one Smt. Priyanka Kapoor (hereinafter to be called as “the victim”) in connivance with her husband and mother-in-law and disclosed the sex of foetus to them as girl child. The further allegations against the petitioner are that he has violated Rule 9(4) and Rule 10(1A) of PC and PNDT Rule, 1996. 3. The complaint made by the victim to the Police Station, Barmana on 11.05.2014 is as under: “Respected Sir, Today I am going to Hospital but first I want to see what happened to me then I want to take action against them. Please its my request take care of my decision. Sir after compromise he didn’t talk to me even didn’t ask me for food not even my kids. Sir please take action against them if something with happened to me. They were very cruel persons. Please sir it’s a request help me out from this problem & neglected that compromise which I have done yesterday. It was just because I had seen my two daughters future and my future too. So once again help me out from this matter. Today 11th May, 2014 at 11:30 p.m. I write now I want to go to hospital. I want legal protection M/s Chet Ram & Co. Sd. Priyanka 11/5/2014.” On the basis of the complaint made by the victim, F.I.R. No. 70 of 2014, dated 16.05.2014, under Sections 314(2), 498-A, 325 and 34 of IPC was registered against the petitioner and on receipt of intimation from the Superintendent of Police Bilaspur, the then CMO-cum-DAA, Bilaspur, Dr. I want legal protection M/s Chet Ram & Co. Sd. Priyanka 11/5/2014.” On the basis of the complaint made by the victim, F.I.R. No. 70 of 2014, dated 16.05.2014, under Sections 314(2), 498-A, 325 and 34 of IPC was registered against the petitioner and on receipt of intimation from the Superintendent of Police Bilaspur, the then CMO-cum-DAA, Bilaspur, Dr. M.L. Kaushal alongwith Deputy Superintendent of Police, Ghumarwin and Tehsildar Ghumarwin searched the Leelavati Hospital, Indira Market Ghumarwin on 07.07.2014 and sealed the Ultrasound Machine of Make and Model Shimadzu, SDU 350XL in presence of the witnesses and the petitioner with 11 seals of “Himachal Pradesh Kashetrie Perished Jantav Janardan”. The record, i.e. register, Form “F” register, ultrasound register, bill/receipt book and Form “F” (in duplicate) four in number were also seized. The seizure memo of ultrasonography machine was duly signed by Dr. M.L. Kaushal, the then CMO-cum-DAA, Bilaspur, Sh. Anjani Jaiswal, Deputy Superintendent of Police, Ghumarwin, Sh. Kuldeep Patial, Tehsildar, Ghumarwin and present petitioner. The separate seal of “Himachal Pradesh Kashetrie Perished Jantav Janardan” was also taken on piece of cloth. On 21.08.2014, the meeting of District Level Advisory Committee constituted under PC and PNDT Act, 1994 was conducted and the Committee resolved to cancel the registration of USG clinic of the petitioner, under the PC and PNDT Act, 1994, for further investigation in the matter. On 04.10.2014, on request of Dr. M.L. Kaushal, the then CMO-cum-DAA Bilaspur, another F.I.R. No. 206/14, under Section 23 of PC and PNDT Act, 1994 was registered against the petitioner. After registration of F.I.R. No. 206 of 2014, the case was investigated by SHO Mukesh, who visited the spot on 11.10.2014 and sealed USG Machine in presence of the witnesses alongwith the record seized by Dr. M.L. Kaushal, the then CMO-cum-DAA, Bilaspur for further investigation, vide separate seizure memo, dated 11.10.2014. The USG Machine of Make and Model Shimadzu, SDU 350XL was kept sealed by the CMO-cum-DAA, Bilaspur w.e.f. 07.07.2014 to 11.10.2014 in the premises of Leelavati Hospital, Ghumarwin, was kept by SHO Ghumarwin in the Police station, Ghumarwin for safe custody, which was later on, vide road certificate No. 195/14, dated 15.10.2014, was sent through Constable Amit No. 470 and Constable Ajit Kumar, No. 194 to State Forensic Science Laboratory, Junga. During the course of investigation statements of the witnesses were recorded and challan was presented before the learned trial Court and learned trial Court, vide order dated 05.05.2017, framed charge against the present petitioner. Hence the present petition. 4. Learned Senior Counsel appearing on behalf of the petitioner has argued that as per the record, the pregnancy of the victim was only three and half months and as per the evidence on record no sex determination test could be carried out before the foetus is 25 weeks old. He has further argued that there is no evidence against the petitioner except the mere statement of the victim. He has argued that the present case is based on the scientific evidence and there is no scientific evidence against the petitioner. He has further argued that the prosecution has otherwise failed to prove whether the foetus was male or female. Learned Senior Counsel in support of his arguments has placed reliance upon the decision of Hon’ble Supreme Court in Bobbili Ramakrishna Raja Yadad and others vs. State of Andhra Pradesh, (2016) 3 SCC 309 . The relevant extracts of the judgment are reproduced hereinbelow: “11. It is well settled that power under Section 482 Cr.PC should be sparingly exercised in rare cases. As has been laid down by this Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, that when a prosecution at the initial stage was asked to be quashed, the test to be applied by the Court was as to whether the uncontroverted allegations as made in the complaint prime facie establish the offence. It was also for the Court to take into consideration any special feature which appears in a particular case to consider whether it was expedient and in the interest of justice to permit a prosecution to continue. This was so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose was likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage.” Learned Senior Counsel also placed reliance upon the decision of Hon’ble Supreme Court in Parbatbhai Aahir vs. State of Gujarat, (2017) 9 SCC 641 . The relevant extracts of the judgment are reproduced hereinbelow: “11. Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court, or (ii) otherwise to secure the ends of justice.” 5. On the other hand, learned Additional Advocate General has argued that legislative intend behind the enactment of the Act is to curb the sex determination in the Country, as numerous cases of sex determination and thereafter abortion of female foetus are coming into existence. He has further argued that the statement of the victim is reliable and trustworthy and made during the course of investigation, further the complainant was not having any enmity with the petitioner. He has argued that as per of the FSL report, the Ultrasound Machine seized/recovered is capable to perform Sex Determination Test. Further the Machine was without storage disk, thus it cannot be said that prior to seize the Machine, how many Ultrasounds were already performed. Learned Additional Advocate General in support of his arguments has placed reliance upon Section 3(a) of PC and PNDT Act, 1994, which provides as under: “3A. Prohibition of sex-selection – 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.” Learned Additional Advocate General has further argued that no record regarding conducting of ultrasonography on a pregnant woman was kept by the petitioner in his clinic, as provided, under Section 4(3) of PC and PNDT Act, 1994. Lastly, learned Additional Advocate General has argued that as prime facie case is against the petitioner, the present is not a fit case where inherent power, under Section 482 Cr.PC, is required to be exercised in his favour and the present petition deserves to be dismissed. 6. Lastly, learned Additional Advocate General has argued that as prime facie case is against the petitioner, the present is not a fit case where inherent power, under Section 482 Cr.PC, is required to be exercised in his favour and the present petition deserves to be dismissed. 6. In rebuttal, learned Senior Counsel has argued that the inspection of the clinic of the petitioner was being conducted by the expert every month and further record shows that no Sex Determination Test was carried out by the petitioner, so the present petition deserves to be allowed and the charge framed against the petitioner may be quashed and set aside. 7. I have heard the learned counsel for the parties and gone the record carefully. 8. At the very outset, it is seen that on 11.05.2014, the victim has made a complainant to the Police, on the basis of which, the case was registered against her husband and mother-in-law, thereafter the complainant made a statement before the learned Magistrate, under Section 164 Cr.PC, wherein she has stated that her marriage was solemnized with Susheel Kumar on 26.11.2004 and when she conceived first girl child, instantaneously thereafter, her mother-in-law started torturing her physically and mentally, even her husband started maltreating her. When second girl child was born to the victim, her husband and mother-in-law started pressurizing her to conceive pregnancy again, so that male child can born and when she was two and half months pregnant, they took her to a “Daai”, who after giving massage to her disclosed that the foetus is male. Thereafter, when the victim was three months pregnant, her husband and mother-in-law took her to the clinic of Dr. R.D. Sharma/petitioner, who got conducted Sex Determination Test of her foetus and disclosed that the foetus is girl. When her mother-in-law came to know that the child is girl child, she forced her to abort the foetus. As per the victim, on 9th May, 2014, her husband and mother-in-law gave leg blows to her on her stomach, due to which she got unconscious and fell down on the floor. After regaining conscious, when she asked them to take her to the hospital, no person of her family took her to the hospital. As per the victim, on 9th May, 2014, her husband and mother-in-law gave leg blows to her on her stomach, due to which she got unconscious and fell down on the floor. After regaining conscious, when she asked them to take her to the hospital, no person of her family took her to the hospital. Thereafter, she made a telephonic call to Barmana Police, who took her to the Government Hospital, where her ultrasound was conducted and it was opined that the foetus has died. It is further submitted by the victim in her statement that on 10th May, 2014, on assurance of the Police, she has entered into a compromise with her husband and in the morning of 12.05.2014, she went to private Hospital for ultrasound, whereby it was disclosed that the foetus has died due to beatings. Thereafter, her in laws took her to PGI, Chandigarh for abortion, wherefrom she was taken to Panchkula and her abortion was got conducted and after taking all reports with them, they left the victim to her mother’s house. 9. From the above statement of the victim, it is clear that when she was three months pregnant, her husband and mother-in-law took her to the clinic of Dr. R.D. Sharma (petitioner) where they forcibly got conducted her Sex Determination Test and the Doctor disclosed them that the foetus is girl. This clear statement of the victim, coupled with the other evidence which has come on record that thereafter husband and mother-in-law of the victim gave beatings to her on the lower portion of the stomach, due to which foetus has died. To this aspect the report of Regional Hospital, Bilaspur is very clear. The above mentioned act shows that the husband and mother-in-law of the victim were not wanted third girl child and for this purpose they gave beatings to the victim, so that the third girl child cannot take birth and all that has happened after the petitioner got conducted the Sex Determination Test of the victim and opined the foetus to be girl child. 10. 10. This Court has also seen the literature enclosed by the petitioner alongwith his petition and gone through the arguments of learned Senior Counsel “that nothing can be said with 100% precision even after 25 weeks of pregnancy about the sex of foetus,” but the arguments of the learned Senior Counsel are without any significance when the petitioner after three months disclosed the husband and mother-in-law of the victim that the foetus is girl and that too after conducting sonography test. Figure (E) of the literature, Annexure P-13, enclosed with the petition, provides that “the fetal scrotum and penis are noted at 18 weeks of gestation”. Meaning thereby that after 18 weeks even penis of the foetus can be detected and there is nothing in the literature to show that after 13 weeks sex cannot be determined. So, this Court finds that the petitioner after determining the Sex Determination Test of the victim, informed her husband and mother-in-law about the foetus. Therefore, the petitioner has prime facie committed an offence, under Section he is charged with. 11. Now coming to the law as cited by the learned Senior Counsel, this Court finds that at this moment, there is prime facie case against the petitioner and it cannot be said that chances of ultimate conviction of the petitioner are bleak. So, the law laid down by the Hon’ble Supreme Court in Bobbili Ramakrishna Raja Yadad and others vs. State of Andhra Pradesh, (2016) 3 SCC 309 , is not applicable to the facts of the present case. Further the proceedings against the petitioner are in order to secure the ends of justice, as the statement of the victim is unequivocal, therefore, it cannot be said that there is any abuse of the process of the Court. Thus, the law laid down of the Hon’ble Supreme Court in Parbatbhai Aahir vs. State of Gugarat, (2017) 9 SCC 641 , cited by the learned Senior Counsel (supra), is also not applicable to the facts of the present case. 12. In view of the aforesaid discussions, this Court finds that prime facie case at this moment is against the petitioner and the charge framed by the learned trial Court is in accordance with law and present case is not a fit case where powers under Section 482 of the Code of Criminal Procedure are required to be exercised in favour of the petitioner. 13. 13. The net result of the above discussion is that the present petition is devoid of any merits, deserves dismissal and is accordingly dismissed. Registry is directed to send the records of the present case henceforth. Parties to appear before the learned trial Court on 20th March, 2018. 14. The petition is accordingly disposed of alongwith pending applications, if any.