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2018 DIGILAW 472 (GUJ)

HASMUKH MOHANBHAI GOSWAMI v. STATE OF GUJARAT

2018-02-09

J.B.PARDIWALA

body2018
JUDGMENT : 1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant, a practicing Gynecologist, seeks to invoke the inherent powers of this Court with a prayer to quash the proceedings of the Criminal Case No.1194 of 2015 in the Court of the Judicial Magistrate First Class at Vijapur, District: Mehsana, arising from a complaint filed by the respondent No.2 herein under the provisions of the Preconception and Prenatal Diagnostic Techniques (Regulations and Prevention of misuse) Act, 1994 (for short, the “PC and PNDT Act”). The complaint is extracted hereunder: “Subject: Complaint under Section 23 of the Act for breach of the provisions contained under Sections 3(1), 3(2), 3(3), 5, 6 and 29 of the PC & PNDT Act and Rules 8(1), 9(1), 9(4), 17(2) and 18(5) of the PC & PNDT Rules, 1994. The complainant most respectfully state that he is the District Health Officer and is lodging this complaint on this 23rd day of August 2013 under the PC & PNDT Act, 1994. He is the appropriate authority under the said Act and has the power to lodge the complaint. The accused Dr. Hasmukh M. Goswami, Jeevandeep Hospital, Opp. Veterinary Hospital, Vijapur, is a Medical Practitioner, the owner and caretaker of the Nursing Home. He is registered under Section 19(1) of the Preconception & Prenatal Diagnostic Techniques (Regulations & Prevention of Misuse) Act, 1994, having license No.GJ10109GCL2003. (2) That the decline in female sex ratio in the society is a matter of concern and the provisions of the PC & PNDT Act, 1994 have been enacted with a view to see that the female sex ratio is maintained and no sex determination of foetus may be done and to stop female foeticide. Under these provisions, no sex determination of foetus is permissible and to stop female foeticide, for which the Act has appointed the appropriate authority at the District level who may be either the District Magistrate or may be the Collector, District Development Officer and Chief Health Officer. Accordingly, at the Taluka level, Sub-District Magistrate and Taluka Health Officer (Block Health Officer) have been declared as the Sub-District Appropriate Authority. Under the PC & PNDT Act, these authorities are directed to find out and supervise the Doctors having ultrasound & sonography clinics which carry out sex determination and foetus feticide. That on 14.09.2013, Dr. Accordingly, at the Taluka level, Sub-District Magistrate and Taluka Health Officer (Block Health Officer) have been declared as the Sub-District Appropriate Authority. Under the PC & PNDT Act, these authorities are directed to find out and supervise the Doctors having ultrasound & sonography clinics which carry out sex determination and foetus feticide. That on 14.09.2013, Dr. T.K. Soni, Appropriate Authority, under the PC & PNDT Act and Chief District Health Officer, Mehsana, Dr. V.S. Patel, District RCH Officer, Mehsana and Dr. R.R. Patel, I/c. SubDistrict Appropriate Authority and Taluka Health Officer, Vijapur, jointly visited the Jeevandeep Hospital owned by Dr. Hasmukh M. Goswami at Vijapur. During the aforesaid visit, since the aforesaid Hospital is registered under the aforesaid Act, upon verification of records, following irregularities were noticed: 1 Despite the time for renewal of the registration under the Act expired on 01.09.2013 and under the provisions, advance notice is to be provided to the appropriate authority prior to 30 days, late renewal application was submitted on 21.08.2013 and though no renewal was granted, sonography services were provided by the hospital in violation of Rule 8(1) of the Act. 2 The ultrasound clinic is obliged to maintain form F, which depicts the printed details where points 9, 12, 13, 16, 18, 19 shows the details of the patients. This Form F which needs to be printed was found to be inaccurate and deficient. The provisions of Sections 5, 6 & 27 of the Act and Rule 9(4) of the Rules have been breached. 3 Under the Act, the renewal registration of the Jeevandeep Hospital expired on 01.09.2013 and yet, the Hospital continued to operate the machines. On 09.09.2013, sonography was performed upon Kanchanba Sajjasinh Rathod residing at Old Devpura, Ranchhodpura, Vijapur, although the registration had expired under the Act and thus, violated the provisions under Sections 3(1), 3(2) and 3(3) of the Act. 4 The pregnant women who have undergone sonography are to be informed under point No.17 and information about the date of result is to be stated. When Form F was inspected, no such details were found and hence, there was inaccuracy and deficiency under Sections 5, 6, 29 of the Act and Rule 9(4) of the Rules. 5 Under the Act, the registered person has to maintain a manual under the Act in his clinic. Upon inquiry of this manual, Dr. When Form F was inspected, no such details were found and hence, there was inaccuracy and deficiency under Sections 5, 6, 29 of the Act and Rule 9(4) of the Rules. 5 Under the Act, the registered person has to maintain a manual under the Act in his clinic. Upon inquiry of this manual, Dr. H.M. Goswami was unable to produce the same and therefore, he violated the provisions of the Act. 6 All the institution are obliged in law to comply with the Sonography Regulations Rules. They are also required to update the said register. The aforesaid register was updated till 17.07.2013 after which no updation was made and therefore Rule 9(1) of the Rules was found to be breached. 7 The registration under the Act has been issued in favour of Dr. Hasmukh Gowami in the name of Jeevandeep Hospital, Vijapur. His registration was not renewed, despite the same he provided services between 25.02.2013 and 25.04.2013 thereby violating Section 3(2) of the Act. Since the provisions of the Act were found to be breached, Dr. H.M. Goswami was issued notice dated 14/9/2013 under Section 20(1) of the Act at the Jeevandeep Hospital calling upon him to show cause as to why the registration of the hospital No.GJ10109GCL/ 2003 should not be cancelled and should be responded within 7 days. The notice was addressed to Dr. Goswami. More so under the Act, why the registration of Jeevandeep Hospital GJ10109GCL2003 should not be suspended with immediate effect. Since the aforesaid hospital has violated the provisions under the Act, the following record of the said hospital have been seized as evidence, for which a receipt has been issued dated 14.09.2013, in which, there is a signature of Dr. Goswami as provider of the record and there is a signature of Dr. Pravin R. Patel, SubDistrict Appropriate Authority and Taluka Health Officer, Vijapur as the receiver of the record. The details of which are as under: One Sonography Register (bound) containing information from January – 2018 to 17.07.2013 where signature of Dr. Goswami is there as Manager of the Hospital. Pravin R. Patel, SubDistrict Appropriate Authority and Taluka Health Officer, Vijapur as the receiver of the record. The details of which are as under: One Sonography Register (bound) containing information from January – 2018 to 17.07.2013 where signature of Dr. Goswami is there as Manager of the Hospital. Form F – Once Booklet wherein no serial number is displated but there are total 26 Form F between 25.02.2013 to 25.04.2013 out of which last Form F shows the name of Gitaben Mukeshbhai Senma, aged 26 years, but no addressed of beneficiary has been recorded and there is no signature of beneficiary or service provider in the Form F. Form F – One Booklet having total Forms 14 during the period from 07.05.2013 to 09.09.2013 wherein some forms contain signatures Dr. Goswami whereas rest contains signature of Dr. B.S. Patel. Since the order is issued to suspend the registration No.GJ10109GCL2003 of the aforesaid Hospital forthwith, the sonography machine has been sealed in the presence of the panchas on 14.09.2013 to see that the said machine may not be used in future. The aforesaid panchnama has been carried out in the presence of Appropriate Authority under the Act and Chief District Health Officer, Mehsana, the details of which are as under: Time of sealing: 17: 45 hours on 14/09/13. Sealing completed timing: 18:30 hours on 14/09/13. Details of panchas: Sr No Name of the panchas Status (Designation / Head quarter) 1 Dr. V.S. Patel District R.C.H. Officer, Mehsana 2 Dr. P.R. Patel I/c Sub-District Appropriate Authority and Taluka Health Officer, Vejapur. 3 Shri S.M. Chauhan M.P.H.S. Central Falu, Vijapur. 4 Shri Rajendrasinh P. Rathod Compounder, Jeevandeep Hospital, Vijapur. 5 Shri Champaksinh M. Chauhan Compounder, Jeevandeep Hospital, Vijapur. Details of the sealed sonography machine: 1. Sonography machine company – Blue star 2. Sonography machine model No. MUS 602 3. Sonography machine probe – (1) TVS Probe Model – E6111 Sr. No.00834A0, (2) Convex Prob Model – C3611 Sr. No.03926A0 The aforesaid sealed items of Jeevandeep Hospital has been kept on a wooden rack in a room in Jeevandeep Hospital. The said wooden rack has also been sealed in the presence of the panchas. The aforesaid sonography machine was sealed in the presence of the panchas and also in the presence of the registered owner Dr. Hasmukh M. Goswami. No.03926A0 The aforesaid sealed items of Jeevandeep Hospital has been kept on a wooden rack in a room in Jeevandeep Hospital. The said wooden rack has also been sealed in the presence of the panchas. The aforesaid sonography machine was sealed in the presence of the panchas and also in the presence of the registered owner Dr. Hasmukh M. Goswami. The said sealed sonography machines will be in the hospital and seal should not be opened without the permission. This is informed to Dr. H.M. Goswami before the panchas. Our notice dated 14.09.2013 has been replied by Dr. Goswami in details vide letter dated 26.09.2013. This letter was received by District Panchayat, Mehsana Health Office on 30.09.2013 where he has accepted the irregularity and procedural lapse. He has also accepted that there has been irregularity in maintenance of statutory requirements. Dr. Hasmukh Goswami in his defence has stated before about the legal notice dated 18.10.2013 where he has stated that necessary documents be placed on record for points no.1 to 7 and it is stated that he remain present before the appropriate authority PC & PNDT Act, on 24.10.13 at 15:00 hours. The acknowledge of the delivery of the notice has been placed on record. Dr. Hasmukh Goswami was present in the Health Office, District Panchayat on 24.10.2013 at 15:00 hours. He has replied to the notice sent to him and has also recorded in the rojkam. The said rojkam is also signed by Dr. Vijay Patel, SubDistrict Appropriate Authority and Taluka Health Officer, Vijapur and Dr. H.M. Goswami has also signed and presented documents attached to his reply. The reply of Dr. Goswami was received on 19.11.13 which was presented on the day of meeting of the District Advisory Committee. As per the resolution No.4 of the meeting, Dr. H.M. Goswami had violated the PC & PNDT Act for which the registration of the Jeevandeep Hospital, Vijapur should be cancelled and appropriate decisions should be taken by appropriate authority under the Act. The abovesaid suspension was revoked and the registration was not suspended till 31.12.13. Order dt. 21.12.13 No____/sono.machineryg.suspend/3737/13 dated 21.12.13 necessary____ action done. Under the P.C. & P.N.D.T. Act details of the violations were mentioned in the speaking order where Jeevandeep Hospital, Vijapur registration No.GJ10109GCL2003 was suspended from 14.09.2013 to 31.12.2013. The abovesaid suspension was revoked and the registration was not suspended till 31.12.13. Order dt. 21.12.13 No____/sono.machineryg.suspend/3737/13 dated 21.12.13 necessary____ action done. Under the P.C. & P.N.D.T. Act details of the violations were mentioned in the speaking order where Jeevandeep Hospital, Vijapur registration No.GJ10109GCL2003 was suspended from 14.09.2013 to 31.12.2013. The Appropriate Authority vide order dated 31.12.2013 stated that actions under the Act may be taken before Dr. H.M. Goswami and the Jeevandeep Hospital and renewal was given after taking necessary undertaking under the Act to the Jeevandeep Hospital vide registration No.GJ10109GCL2003 from 01.01.2014 to 31.12.2016. Dr. H.M. Gowami has written a letter dated 02.01.14 where he has stated that his organization has no Gynecologist for which he cannot give the undertaking and has agreed to keep the sonography machine sealed in the condition in which it was sealed, the authority has ordered to keep the machine sealed and no order to open the seal is done. Dr. Hasmukh Goswami, Jeevandeep Hospital, Vijapur has violated P.C. & P.N.D.T., 1994 Act and Amendment Act Sections 3(1), 3(2), 3(3), 5, 6, 29 and Rules 8(1), 9(1), 9(4), 17(2), 18(5) and has committed an offence under 23 of the Act. Additionally under the P.C. & P.N.D.T., 1994 Section 27 states “every offence under this Act shall be cognizable, non-bailable, and non-compoundable.” Necessary documents are placed against the accused under the P.C. & P.N.D.T., 1994 and amendment under Sections 3(1), 3(2), 3(3), 5, 6, 29 and Rules 8(1), (1), 9(4), 17(2), 18(5) for lodging of the complaint. Necessary documents placed along with the list should be considered a part of the complaint. Along with the documents and with necessary reasoning's taken under consideration it is necessary that process be issued against accused Dr. Hasmukh Goswami for violation of Sections 3(1), 3(2), 3(3), 5, 6, 29 and Rules 8(1), 9(1), 9(4), 17(2), 18(5) of the P.C. & P.N.D.T. Act. Details enclosed: (1) Complaint (2) Dr. V.A. Patel, District R.C.H. Officer, Mehsana. (3) Dr. P.R. Patel, I/c. Sub District Appropriate Authority, P.C. & P.N.D.T. Act and Taluka Health Officer, Vijapur. (4) Additional documents will be provided if necessary. Details enclosed: (1) Complaint (2) Dr. V.A. Patel, District R.C.H. Officer, Mehsana. (3) Dr. P.R. Patel, I/c. Sub District Appropriate Authority, P.C. & P.N.D.T. Act and Taluka Health Officer, Vijapur. (4) Additional documents will be provided if necessary. Place: Vijapur sign of complainant Date: 26/11/15.” 2 The Judicial Magistrate First Class, Vijapur, by his order dated 4th December 2015 took cognizance upon the complaint referred to above and issued process to the applicant accused under Section 204 of the Cr.P.C. for the offence punishable under Sections 3(1), 3(2), 3(3), 5, 6 and 29 of the PC and PNDT Act and Rules 8(1), 9(1), 9(4), 17(2) and 18(5) of the PC and PNDT Act, 1994. 3 Being dissatisfied with the order passed by the J.M.F.C., Vijapur, taking cognizance upon the complaint referred to above, the applicant is here before this Court praying for quashing of the order of process. 4 Mr. Parikh, the learned counsel appearing for the applicant submitted that even if the entire case of the complainant, as put up in the complaint, is believed or accepted to be true, none of the ingredients to constitute the offence under the PC and PNDT Act are spelt out. The counsel would submit that the order of issue of process could be termed as one without any application of mind. It is further submitted that whatever has been alleged in the complaint is in the form of technical irregularities and such technical irregularities would not constitute any offence under the PC and PNDT Act. It is further submitted that there are no allegations against the applicant that he indulged into an illegal act of disclosing the sex of the foetus to any patient. 5 Mr. Parikh, the learned counsel placed reliance on two decisions: One of this Court and the another of the Bombay High Court. This Court, in the case of Dr. Ashok L. Sadhu vs. Dr. T.K. Soni, appropriate authority under PNDT Act and another [Criminal Miscellaneous Application No.14744 of 2006 decided on 7th February 2007], observed as under: “8. According to the aforesaid proviso to subsection (3) of section 4, the Act and the relevant rules the petitioners are required to fill in Form No. 133 and 134. The criminal complaints are based on the alleged infirmities found in filling up FormF. According to the aforesaid proviso to subsection (3) of section 4, the Act and the relevant rules the petitioners are required to fill in Form No. 133 and 134. The criminal complaints are based on the alleged infirmities found in filling up FormF. Therefore, this court is required to consider whether, by the socalled alleged infirmities, any offence has been committed by the petitioners. The language of the proviso is to the effect that “any deficiency or inaccuracy” found therein shall amount to contravention of the provisions of Sec.5 or Sec.6 unless contrary is proved by the person conducting such ultrasonography. The phrase “unless contrary is proved by the person conducting such ultrasonography” connotes that if there is any allegation the person conducting can prove otherwise. In the present case, there is no allegation by the respondent authority that provisions of sections 5 and 6 of the Act are attracted and hence there is no question of proving otherwise. 9. Further, if the alleged infirmities are proved, then it would amount to contravention of the provisions of section 5 or section 6 of the Act. The said sections read as under: “5. Written consent of pregnant woman and prohibition of communicating the sex of foetus ? (1) No person referred to Cl.(2) of Sec.3 shall conduct the prenatal diagnostic procedures unless ? [a] he has explained all known side and after effects of such procedures to the pregnant woman concerned; [b] he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and [c] a copy of her written consent obtained under Cl(b) is given to the pregnant woman. (2) No person including the person conducting prenatal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner. 6. Determination of sex prohibited? On and from the commencement of this Act ? [a] no Genetic Counseling 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 prenatal 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.? 10. A reading of the aforesaid provisions would show that no person should be communicated the sex of foetus, the test should not be conducted for the purpose of determining the sex of a foetus nor can there be a test for selection of sex before conception. If the test is done for the aforesaid purpose there is a contravention of the provisions of the Act. 11. From a bare perusal of the complaints it is apparent that it is not the case of the authority that provisions of section 5 or 6 are applicable inasmuch as the authority has not been able to show or even alleged that (i) any pregnant woman or her relative or any other person has been communicated the sex of foetus by the petitioners or (ii) at any place and by any person, including the person conducting ultrasonography, there has been either sex determination or sex selection. In absence of such specific allegations in the complaint it cannot be said that provisions of sections 5 and 6 of the Act would be attracted. 12. Reading the proviso to section (3) it is to be presumed that the deficiency or inaccuracy in the record would amount to contraventions of the provisions of Section 5 or section 6 of the Act. As a natural consequence, in view of such deficiency or inaccuracy, there should be allegation of contravention of provisions of 5 and 6 of the said Act. In the present case there are no specific allegations in the complaint pertaining to the provisions of section 5 and 6. Apart from that the language of sections 5 and 6 is prohibitory in nature and therefore the burden of proof will be on the authority to prove that there was contravention and thereupon to rely on the provisions of Statutory Form for filing criminal complaint. In the present case, without alleging the contravention to provisions of section 5 and 6, the complaint has been filed merely on the alleged deficiency or inaccuracy. In short, when there is an allegation of the alleged deficiency or inaccuracy, it should follow contravention of provisions of sections 5 and 6. Such is not the case in the complaints in question. 13. In short, when there is an allegation of the alleged deficiency or inaccuracy, it should follow contravention of provisions of sections 5 and 6. Such is not the case in the complaints in question. 13. As far as section 4(3) is concerned, it is the case of the petitioners that the register is maintained with all the columns which fall within the four corners of the duties and functions of the petitioners. Apart from that no opportunity is afforded to the petitioners to prove contrary and put up their case. Further, such deficiency or inaccuracy, at least so far as the present proceedings are concerned, is merely a procedural lapse, which do not in any manner contravene the provisions of sections 5 and 6 of the Act. 14. In view of the above, when it is not established that there is contravention of the provisions of section 5 or 6, the contention regarding any inaccuracy or deficiency in FormF will not be applicable and therefore the complaints themselves are not maintainable. I am therefore of the view that the complaints do not prima facie establish any alleged offence against the petitioners. The complaint is not filed and also nothing is mentioned in the complaint and therefore deserve to be quashed.” 6 In the case of Dr. Sai wife of Santosh Shiradkar vs. The State of Maharasthra [Criminal Writ Petition No.1381 of 2015 decided on 27th September 2016], a Division Bench of the Bombay High Court held as under: “10. Thus, if we consider the provisions of Section 4(3) of the said Act, then it prohibits use of Prenatal Diagnostic Techniques by the qualified persons unless such person is satisfied with the reasons to be recorded in writing that any of the conditions enumerated in clauses (i) to (v) of said Section 4, are fulfilled. Proviso to subsection 3 of Section 4 creates a statutory obligation on the person conducting ultrasonography on a pregnant woman to keep complete record thereof in the clinic in such a 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 ultrasonography. Section 5 provides that the written consent of the pregnant woman must be obtained by the person before conducting the prenatal diagnostic procedure for conducting such diagnostic procedure. Section 5 provides that the written consent of the pregnant woman must be obtained by the person before conducting the prenatal diagnostic procedure for conducting such diagnostic procedure. The consent to be obtained must be in writing and in a form prescribed and the language which she understands. The copy of same to be given to such pregnant woman and further she be explained and made known side and after effects of such procedure. Section 6 of the said Act prohibits determination of sex of foetus by use of prenatal dignostic techniques including the ultrasonography. Section 29 provides an obligation of maintenance of record as required to be maintained under the provisions of said Act for a period of two years and such record be made available at all reasonable times for inspection by the Appropriate Authority or to any other person authorized by the Appropriate Authority in their behalf. Rule 9 of the said Rules provides for maintenance and preservation of record by every Genetic Counselling Centre, Genetic Laboratory, Ultrasound Clinic and Imaging Centre in the form of register showing, serial number, the names and addresses of the men or women given genetic counseling or subjected to prenatal diagnostic procedures or prenatal diagnostic tests. Subrule 2 of Rule 9 provides that, the record to be maintained by every Genetic Counselling Centre, in respect of each woman counselled shall be as specified in Form 'D'. Subrule 3 of Rule 9 provides that, the record to be maintained by every Genetic Laboratory, in respect of each man or woman subjected to any prenatal diagnostic procedure/technique/test, shall be as specified in Form 'E'. Subrule 4 of Rule 9 provides that the record to be maintained by every Genetic Clinic in respect of each man or woman subjected to any prenatal diagnostic procedure/technique/test, shall be as specified in Form F. Subrule 5 of said Rules provides obligation on Appropriate Authority to maintain permanent record regarding grant or renewal etc. Subrule 6 of Rule 9 provides for maintenance and preservation of records related to forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters for a period of two years from the date of completion of counselling, prenatal diagnostic procedure or prenatal diagnostic test, as the case may be. In case such legal proceedings initiated against such centre or till expiry of period of two years whichever is later. In case such legal proceedings initiated against such centre or till expiry of period of two years whichever is later. Subrule 7 of Rule 9 prescribes that Genetic Counseling Centre or Genetic Laboratory or Genetic Clinic or Ultrasound Clinic or Imaging Centre it 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. Subrule 8 of said Rue provides that, such such Genetic Counseling Centre, Gentic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall send a complete report in respect of all preconception or pregnancy related procedures/technique/tests conducted by them in each month by 5th day of the following month to the concerned Appropriate Authority. Rule 10 (1A) provides that, any person conducting ultrasonography/image scanning on a pregnant woman shall give a declaration on each report on ultrasonography / image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to anybody. The pregnant woman shall, before undergoing ultrasonography/ image scanning, declare that she does not want to know the sex of foetus. Rule 18 of the said Rules provides for code of conduct to be observed by the persons working at Genetic Counselling Centre, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centres etc.” “13. The communication made by respondent No. 2 vide letter/order dt. 15.4.2015 reflects that, the Advisory Committee has considered the reply filed by the petitioner and then found that the petitioner has violated the provisions of Sections 5, 29 and Rule 9 of the said Act & Rules. Thus, if we consider the showcause notice, reply filed by the petitioner and the order dt. 15.4.2015 then the Advisory Committee itself recorded that the violation of Sections 5, 29 and Rule 9 of the said Act & Rules committed on the part of petitioner for taking action against her. However, the complaint filed by respondent No. 2 alleges breach of Sections 4, 5, 6, 29 and Rules 9, 10(1A) and 18 of the said Act & Rules. Therefore, the complaint filed alleging offence under Sections 4, 6 of PCPNDT Act and violation of Rule 10(1A) and 18 itself contrary to the decision of the Advisory Committee taken in its meeting dt. 01.04.2015. 14. Therefore, the complaint filed alleging offence under Sections 4, 6 of PCPNDT Act and violation of Rule 10(1A) and 18 itself contrary to the decision of the Advisory Committee taken in its meeting dt. 01.04.2015. 14. If we consider the discrepancies as noted above, then it is nowhere the case of respondent No. 2 that, the petitioner has not maintained the record as mandatorily required under the provisions of the said Act & Rules thereunder. What has been alleged is certain omissions, mistakes or lacunae on the part of petitioner in maintaining the record as envisaged under the provisions of the said Act & Rules. The discrepancies as noted are mainly refers to omission to mention full address, mobile number etc. of patients underwent sonography. If we consider the over all discrepancies noted by the Vigilance Committee, then same cannot be termed as act committed with intention to violate the provisions of the said Act & Rules made thereunder. In fact, there are no allegations against the petitioner that the discrepancies noted were made with ulterior motive or with a view to suppress certain information about patients or to misuse the ultrasonography machine for determination of sex of foetus. The PCPNDT Act has been enacted with an object to prohibit the misuse of Prenatal Diagnostic Techniques for determination of sex of foetus, leading to female foeticide, prohibition of advertisement of prenatal diagnostic techniques for detection or determination of the sex, permission and regulation of the use of prenatal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders, permitting the use of such techniques only under certain conditions by the registered institutions and to provide for stringent punishment for violation of the provisions of the proposed legislation. In order to regulate the working of the genetic counseling centre, laboratory, ultrasound centre, the detail procedure has been provided for maintenance of the record, inspection of record and penal consequences for violating such regulatory mechanism by the genetic centre laboratory, sonography centre, imagining centre for determination of sex of foetus leading to female foeticide and creating imbalance in the male and female child. The provisions of Sections 4, 5, 6 and 29 are primarily lay down obligation on the part of the persons permitted to run such centers, laboratory, sonography machine, imagining machine, etc. The provisions of Sections 4, 5, 6 and 29 are primarily lay down obligation on the part of the persons permitted to run such centers, laboratory, sonography machine, imagining machine, etc. to obtain the licence and to conduct their activities strictly in accordance with the conditions of the licence and statutory provisions of PCPNDT Act & Rules framed thereunder. The discrepancies of a nature as referred above cannot be treated as an act made with an intention to violate the provisions of PCPNDT Act and particularly Sections 4, 5, 6, 29 and Rules 9, 10(1A) and 18 of the said Act & Rules. 15. The petitioner has started ultrasonography centre in the year 2013. It is nowhere the case of the respondent No.2 that she has not maintained the record. The allegations made against the petitioner that, certain information which was to be recorded in the particular manner has not been recorded. The omissions of a nature not to mention the mobile number of the patient, full address of the patient with mobile number, difference in signature of the Doctor & other inadvertent mistakes cannot be termed as a discrepancy or act of inaccuracy amounting to violation of the Sections 4, 5 or 6 or 29 of the PCPNDT Act. The petitioner has offered satisfactory explanation to each & every deficiency in Inspection Report. 16. If we look into the provisions of PCPNDT Act, then u/s 28(1)(a) of the said Act it is specifically provided that no Court shall take cognizance of an offence under the PCPNDT Act except on a complaint made by an Appropriate Authority i.e. the Authority notified u/s 17 of PCPNDT Act. The provision has been engrafted with an object that the provisions of the Said Act may not be misused and police have been deliberately kept out of the purview of initiating prosecution though the offences are made cognizable, non-bailable and non-compoundable by virtue of Section 27 of the said Act. The entire process of taking legal action against the person violating the provisions of PCPNDT Act which includes investigation of complaint has been entrusted to Appropriate Authority. The entire process of taking legal action against the person violating the provisions of PCPNDT Act which includes investigation of complaint has been entrusted to Appropriate Authority. In order to empower the Appropriate Authority the powers to summon any person who is in possession of any information relating to violation of provisions of the Act and Rules made thereunder, production of any document or material object relating to possession of information relating to such violation including the powers of issuance of search warrant etc. are entrusted and conferred upon Appropriate Authority. In general, the high ranking officer from the field of Medical have been notified as an Appropriate Authority to file such complaint. Section 17(4) of the said Act lays down the functions of the Appropriate Authority which reads as under: “S. 17(4) The Appropriate Authority shall have the following functions, namely : (a) to grant, suspend or cancel registration of a Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic; (b) to enforce standards prescribed for the Genetic Counseling Centre, Genetic Laboratory and Genetic Clinic; (c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action; (d) to seek and consider the advice of the Advisory Committee, constituted under subsection (5), on application for registration and on complaints for suspension or cancellation of registration; (e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or bought to its notice and also to initiate independent investigations in such matter; (f) to create public awareness against the practice of sex selection or prenatal determination of sex; (g) to supervise the implementation of the provisions of the Act and rules; (h) to recommend to the Board CSB and State Boards modifications required in the rules in accordance with changes in technology or social conditions; (i) to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of registration. Section 17(a) lays down the powers of Appropriate Authority which reads as under: “17A when appointed for the whole of the State or the Union Territory, consisting of the following three members (i) an officer of or above the rank of the Joint Director of Health and Family Welfare Chairperson; (ii) an eminent woman representing women's organization; and (iii) an officer of Law Department of the State or the Union Territory concerned:” 17. Thus, if we read the provisions of Sections 17, 17A and 28 of the said Act together, then the role of the Appropriate Authority is very important. The Appropriate Authority has to act as an investigator to inquire into the allegations of violation of the PCPNDT Act and Rules thereunder either on the basis of complaint received as well as to act suo motu. The role of the Appropriate Authority is not just to receive the complaint and file the proceeding in the Court of law. Section 17(4)(c) specifically provides that, one of the function of the Appropriate Authority is to investigate the complaints of breach of provisions of the act and the rules made thereunder and take legal action. Section 17(4)(e) provides that, the Appropriate Authority to take legal action against the use of any sex selection technique by any person at any place, suo motu or brought to to its notice or also to initiate independent investigation in such matter. Thus, to investigate the complaints received against the persons violating the provisions of PCPNDT Act is the job of Appropriate Authority. Outcome of such investigation provides basis either to drop the proceeding or to initiate appropriate proceeding which includes initiation of criminal prosecution by filing complaint u/s 28 of PCPNDT Act. Mere report or complaint or information received cannot be sole basis to prosecute the person. If the complaint is inquired and investigated results into collection of evidence sufficient to prosecute the person for violation of the provisions of PCPNDT Act, then only criminal proceeding is expected to be filed u/s 28 of the PCPNDT Act. There appears to be specific legislative intent behind introducing Section 17A in the PCPNDT Act (incorporated by amended act of 2003) to vest fullfledged powers of inquiry and Appropriate Authority to investigate the matter. Thus, the role of the Appropriate Authority is much more than the authority to file complaint. 18. There appears to be specific legislative intent behind introducing Section 17A in the PCPNDT Act (incorporated by amended act of 2003) to vest fullfledged powers of inquiry and Appropriate Authority to investigate the matter. Thus, the role of the Appropriate Authority is much more than the authority to file complaint. 18. In the light of role of the Appropriate Authority discussed as above, it was expected on the part of the Appropriate Authority to have investigated the information received in the form of inspection report from the Vigilance Squad to find out there was any violation of provisions of PCPNDT Act on the part of the petitioner. It was expected on the part of Appropriate Authority to have summoned the persons referred in the inspection report to verify as to whether the petitioner had complied with the requirement of obtaining written consent as contemplated under Section 5 r/w Rule 9 of the PCPNDT Act and there was any violation in observing the mandatory conditions. Simply certain lacunae, omission detected in the consent form could not be the basis to prosecute the person. By exercising the powers u/s 17A, certainly the Appropriate Authority could have summoned those persons, recorded their statement and conducted further investigation as deemed fit and proper to collect the evidence to sustain the prosecution in the Court of law. However, in the instant case, it appears that Appropriate Authority has failed to discharge its statutory obligations as contemplated u/s 17(4) of PCPNDT Act i.e. to investigate the report of inspection received from Vigilance Squad which restricts to noting of certain lacunae, omission and certain mistakes in maintenance of record. The report of inspection itself could not be the basis to arrive at the conclusion that such lacunae, omission and mistake were deliberate and acts of omission and commission committed on the part of the petitioner with an intention to violate the provisions of PCPNDT Act. It was also expected on the part of Appropriate Authority to look into explanation given by the petitioner vide reply dt. 09.03.2015 and opportunity of personal hearing and then to arrive at just decision. The communication dt. 15.04.2015 which, in fact is an order communicated to the petitioner as to suspension of sonography centre finds no reasons for taking such action. 09.03.2015 and opportunity of personal hearing and then to arrive at just decision. The communication dt. 15.04.2015 which, in fact is an order communicated to the petitioner as to suspension of sonography centre finds no reasons for taking such action. The expected role of Appropriate Authority u/s 17(4) of PCPNDT Act is to probe the matter and then to arrive at a proper decision as to whether prima facie case of violation of the provisions of the PCPNDT Act and Rules framed thereunder is made out or not. In the case of Dr. Uma Shankarrao Rachewad Vs. Appropriate Authority reported in 2012 Cri.L.J. 2634 decided by one of us (Coram : A. V. Nirgude, J.), dealing with the case more or less identical to the facts of the case, has observed in para 14 as under: "14. In view of the discussion above, the case filed against the petitioner does not disclose prima facie case and therefore should fail. Before I conclude this judgment, I think I must also hold that when the Competent Authority visits a clinic for inspection, after inspection he should record statement of the person against whom he intends to file the case. In such statement, such person would get ample opportunity to putforward his or her explanation. The Competent Authority under this Act, in my view, should consider each case on its merits, examine it meticulously, preferably with the help of a Legal Advisor and then file complaint in the Court. At least in this case, it appears that the necessary care was not taken and the case was filed hurriedly, without examining its strength." It appears that in the instant case what has been observed as above, not followed. The case has been instituted solely on the basis of report of the Vigilance Committee without investigating the matter and collecting the requisite material to prosecute the petitioner. The Appropriate Authority has failed to discharge its obligation as contemplated u/s 17(4) of PCPNDT Act before lodging the complaint against the petitioner. It is not out of place to observe that sometime such casual approach of the Authority to invariably file complaints without proper inquiry, investigation & due application of mind leads to unnecessary criticism of the provisions of PCPNDT Act & Rules framed thereunder by the persons from the field of Medical profession. It is not out of place to observe that sometime such casual approach of the Authority to invariably file complaints without proper inquiry, investigation & due application of mind leads to unnecessary criticism of the provisions of PCPNDT Act & Rules framed thereunder by the persons from the field of Medical profession. It is expected that the legal action must follow based upon sufficient material to establish that there was a violation of provisions of PCPNDT Act and Rules thereunder. Inadvertent mistakes committed during the course of maintaining record, lacunae and omission in filling up certain information in detail in the requisite forms needs to be considered in a proper perspective. Only after holding inquiry, if it is found that such lapses have been committed with any intent or motive to misuse the techniques and such professioner indulges into acts prohibited under the law, then stringent provisions of such act must be invoked and Appropriate Authority shall ensure that such persons are punished. Mistakes committed without any criminal intent and merely in the nature of procedural lapses needs to be properly understood before taking drastic action of initiating criminal prosecution against a person in the field of Medical profession. In an appropriate case, if the authority is satisfied that the mistakes were inadvertent and there was no criminal intent behind such procedural mistakes then such person be asked to rectify the mistakes and if necessary, such person be appropriately given understanding not to commit such procedural lapse. If there is persistent defaults and lapses on the part of such person, then recourse to stringent provision to prosecute such person may be taken. If such precautions are taken before lodging the prosecution against a person in the field of Medical profession, it would help to remove the fear in the mind of medical profession doing their work with utmost honesty, sincerity and due observance of medical ethics and code of conduct laid down under the PCPNDT Act being subjected to face unnecessary humiliation, harassment and criminal prosecution. 19. In this view, we proceed to examine as to whether the complaint discloses the commission of offence u/s 5, 29 and Rule 9 of the PCPNDT Act. Section 5 provides that, the written consent of the pregnant woman to be obtained before conducting the prenatal diagnostic procedure as well as the manner in which the consent to be obtained. 19. In this view, we proceed to examine as to whether the complaint discloses the commission of offence u/s 5, 29 and Rule 9 of the PCPNDT Act. Section 5 provides that, the written consent of the pregnant woman to be obtained before conducting the prenatal diagnostic procedure as well as the manner in which the consent to be obtained. Section 5(1)(a) provides that, person conducting prenatal diagnostic techniques shall not conduct the said procedure unless such pregnant woman explained of known side and after effects of such procedure. In the case in hand, there are no such allegations against the petitioner nor there was any complaint to that effect against the petitioner. Section 5(1)(b) provides that, the person conducting the prenatal diagnostic technique shall not conduct the procedure unless he has obtained the consent of such woman to undergo such procedure in the language which she understands and copy of her written consent is given to such woman. In the case in hand, there are no allegations that the written consent was not obtained before conducting the procedure. The allegations made against the petitioner confines to certain omissions in the consent forms filled in & obtain from such woman in which it was found that mobile number was not mentioned and in one case thumb impression was not attested. It is nowhere the case of the respondents that there were complaints against petitioner of conducting the procedure without obtaining the consent and not giving copy of the consent form to such woman. Though the petitioner was found to be following the prescribed procedure and obtaining the written consent but, proper care was not taken to fill in the complete information in the form such as full address, mobile number and attestation. It is also not the case that Appropriate Authority had investigated any complaint received or conducted inquiry on its own wherein the petitioner was found violating the provisions of Section 5 and 29 & Rule 9 of the said Act & Rules. What has been observed by the Vigilance Committee that, some information which was required to have been mentioned in detail in respect of the patient has not been recorded. In this view the contravention of Rule 5 of the said Rules is not attracted on the face of the allegations made in complaint filed against the petitioner. What has been observed by the Vigilance Committee that, some information which was required to have been mentioned in detail in respect of the patient has not been recorded. In this view the contravention of Rule 5 of the said Rules is not attracted on the face of the allegations made in complaint filed against the petitioner. On the contrary it transpires from report of Vigilance Squad that, the petitioner was following the procedure to obtain the consent in a prescribed proforma of the pregnant woman undergoing diagnostic techniques. Therefore, the violation of Section 5 of the said Act cannot be inferred on the face of the allegations made in the complaint. Similarly the allegations made in the complaint nowhere discloses the commission of offence u/s 6 of said Act to the effect that the petitioner has conducted any prenatal diagnostic procedure for determining the sex of the foetus before or after conception & violated the provision. 20. Section 29 of the PCPNDT Act provides that the record as required to be maintained or to be preserved for two years or such period and such record is to be made available for such inspection at all reasonable times, for the inspection of the Appropriate Authority or person authorized by the Appropriate Authority. The allegations made in the complaint nowhere discloses that the petitioner was found to be acted in violation of Section 29 and destroyed the record before the period prescribed under the said provisions. As discussed, the allegations as made against the petitioner are that, certain mistakes found in maintenance of record for which the petitioner has given detailed explanation. Therefore, on the face of the allegations made in the complaint the violation of Section 29 of the said Act is not attracted. 21. So far as Rule 9 of said Rules is concerned, it provides that before conducting prenatal diagnostic techniques/test/procedure, the written consent as specified in the Form and in a language known to person undergoing such procedure shall be obtained from such person. As discussed, the Committee has found that though the petitioner was found to following the procedure to obtain the consent of woman in the prescribed proforma but certain information found to be not recorded. What has been observed by the Committee that while filling up the Form G certain information such as complete address, mobile number was not recorded. As discussed, the Committee has found that though the petitioner was found to following the procedure to obtain the consent of woman in the prescribed proforma but certain information found to be not recorded. What has been observed by the Committee that while filling up the Form G certain information such as complete address, mobile number was not recorded. Not obtaining consent in prescribed proforma invites violation of Section 5 as well as Rule 9 of the said Act & Rules. However, unintentional & inadvertent mistakes in not recording certain details as discussed above itself not amounts to violation of Section 5 r/w Rule 9 of the said Act & Rules framed thereunder.” 7 In such circumstances referred to above, Mr. Parikh prays that there being merit in this application, the same be allowed and the complaint be quashed. 8 On the other hand, this application has been vehemently opposed by Ms. Rohini Acharya, the learned counsel appearing for the respondent No.2 – original complainant as well as by the learned A.P.P. appearing for the respondent No.1 – State of Gujarat. Both the learned counsel submitted that no case worth the name is made out to quash the complaint at this stage. It is submitted that a prima facie case could be said to have been made out to put the applicant accused on trial. It is submitted that the Magistrate cannot be said to have committed any error in taking cognizance upon the complaint. 9 Ms. Acharya, the learned counsel appearing for the respondent No.2 – original complainant placed reliance on the following averments made in the affidavitinreply duly affirmed by the respondent No.2 for the purpose of opposing this application. The averments made in the reply filed by the respondent No.2 are extracted hereunder: “I, Dr. Trushar Kiritkumar Soni, aged 54 yrs working as District Appropriate Authority, Mehsana do hereby solemnly affirm and state on oath as under: 1 I have read the copy of the application along with its annexures. I am conversant with the facts of this case. I am competent and authorised to file this affidavit in reply. Hence, I am filing the same as under: 2 I deny all the allegations, averments and submission made and the contentions raised in the application, save and except those which are specifically admitted by me hereinafter. I am conversant with the facts of this case. I am competent and authorised to file this affidavit in reply. Hence, I am filing the same as under: 2 I deny all the allegations, averments and submission made and the contentions raised in the application, save and except those which are specifically admitted by me hereinafter. 3 At present I am not dealing with the application parawise, hence my nondealing with the petition parawise may not be construed as an admission on my part. I reserve my right to file further affidavit as and when necessary so arises. 4 I say and submit that the petitioner is running a Nursing Home namely Jeevandeep Hospital at Vijapur, District: Mehsana. That upon a visit made by the respondent on 14/9/2013 herein it was found that there were several irregularities committed by the petitioner herein. It was found by the authority that even though the licence of the Sonography machine of the petitioner had expired on 1/9/2013 the petitioner had continued performing Sonography and was also submitting form “F” before the authority. It is submitted that without obtaining previous sanction of the authority of the service of Sonography were continued by the petitioner and therefore had committed offence U/s 3(1), 3(2) and 3(3) of the Act. 5 I say and submit that it was also further found that in column No.17 of Form “F” there were information which was printed, which in fact is required to be filled up by the petitioner. The petitioner had printed n column No.9, 12, 13, 16, 18 and 19 before examining the patient. It is submitted that the said columns are to be filled up after examining the patient, wherein in the present case the petitioner had printed the said column before examining the patient. It is submitted that it is an grave inaccuracy and deficiency in filing up from “F” which is an offence U/s. 5, 6 and 29 of the Act as well as, which also violates Rule (4) of the Act. It is submitted that the petitioner had also not filled up column no.17 of the Form “F”. 6 I say and submit that though the registration of the Sonography had expired on 1/9/2013 the petitioner on 9/9/2013 had performed Sonography on one lady called Kanchanba Sajjansinh Dilipsinh Rathod of Juna Devpura. It is submitted that the petitioner had also not filled up column no.17 of the Form “F”. 6 I say and submit that though the registration of the Sonography had expired on 1/9/2013 the petitioner on 9/9/2013 had performed Sonography on one lady called Kanchanba Sajjansinh Dilipsinh Rathod of Juna Devpura. The petitioner had therefore, violated Sec. 3(1), 3(2) and 3(3) of PC & PNDT Act. 7 I say and submit that the petitioner as required under the Act is required to have a PC & PNDT Manual at his clinic. Upon the visit made by the respondent the same was not found at his clinic. There were other irregularities also found in the clinic of the petitioner pursuant to which the District Appropriate Authority had filed the present criminal complaint against the petitioner for violating the various provisions of the PC & PNDT Act. 8 I say and submit that the petitioner was also issued a show cause notice pursuant to the said irregularities wherein the petitioner has admitted that it was a lapse on his part to fill up the Form “F” personally instead of it was printed in certain columns. Meaning thereby the petitioner has admitted his offence and has submitted that the said was done due to oversight which cannot be accepted. 9 I say and submit that after obtaining the advice from the Advisory Committee on 19/11/2013 the present complaint has been filed by the respondent herein. It is submitted that the petitioner has violated Sec. 3(1), 3(2), 3(3), 5, 6, 29 and Rules 8(1), 9(1), 9(4), 17(2) and 18(5) of the Act. 10 I say and submit that as alleged by the petitioner, that the present complaint is a sheer abuse of law is far away from truth as pursuant to the show cause notice the petitioner has admitted his mistakes and therefore, no beneficiary can be shown against the petitioner. It is submitted that it is not the case of the respondent herein that the petitioner was guilty of disclosing sex of the foetus to any patient. The petitioner by stating the said fact is trying to mislead the Hon'ble Court as the case against the petitioner is of maintaining inaccurate records and using the Sonography machine without renewing the registration. The petitioner by stating the said fact is trying to mislead the Hon'ble Court as the case against the petitioner is of maintaining inaccurate records and using the Sonography machine without renewing the registration. 11 I say and submit that as per the Sections of the PC & PNDT Act a prima facie case is made out against the petitioner and therefore, the same is not required to be quashed at this stage.” 10 Ms. Acharya, thereafter, invited the attention of this Court to the reply filed by the applicant accused to the show cause notice issued by the respondent No.2 as regards the various illegalities and irregularities in running the clinic. The reply is extracted hereunder: “Appellate Authority, Chief District Health Officer, District Panchayat, Mahesana. Sub : Regarding contravention of act under the PC and PNDT Act – 1994. Ref: Letter No.PNDT/Vashi/Notice/3535/13, dated 18/10/2013 of Health Branch, District Panchayat, Mahesana. Respected Sir, With reference to the subject noted above, it is respectfully informed that the explanation of your notice of sudden checking dated 14/09/2013. The letter No.PNDT/Vashi/Notice/3535/13, dated 18/10/2013 was handed over on 21/10/2013 in person by Dr. Vijaybhai Patel, Sub Appellate Authority, PC and PNDT Act, Taluka Health Officer, Vijapur. Before giving reply of the said notice, it is a request to your honour that it is only the irregularity on the part of method of work, it is my humble submission that there is neither and willfull irregularity or malafide intention. Point No.1: It is stated with reference to the same that the time period of registration of my firm was completing on 01/09/2013. It this connection, I have sent one application dated 20/09/2013 through Tirupati Courier, Vijapur for the renewal. The copy thereof is enclosed. It is stated through the condition no.6 of the letter of your office vide No.PNDT/VAshi/385/86/12, dated 15/02/2012 of the Health Branch, Mahesana that upon completion of the duration of registration certificate, the renewal application shall have to be sent in two copies, to this office within 15 days. Copy of the said letter is enclosed. But, as during the said time period, my mother had fallen down, and sustained fracture on right leg, the operation was performed to her on 20/07/2013 in Shri Rang Hospital, Ahmedabad. Copy of the said letter is enclosed. But, as during the said time period, my mother had fallen down, and sustained fracture on right leg, the operation was performed to her on 20/07/2013 in Shri Rang Hospital, Ahmedabad. Due to the heart problem, as I was busy and tensed during her treatment, I had made an application 11 days prior instead of 15 days. As I did not know, I have not sent the original certificate, I have not sent the original certificate, thus it is a request to forgive this error and grant opportunity to overcome the same. Point No.2: It is stated with reference to the same that I am the forwarding the Form F of the Sonography within the prescribed time period to your office. The details of serial number 9, 12, 13, 16, 18, 19 have been printed in the form itself, instead of writing them. I had got the said from printed by taking the same from my friend Radiologist before three months, due to which there has been above error. Upon requirement, as per condition of the patient, we erase the words nil or not applicable, and write the details of the patient whichever are applicable. But, I assure that no such error shall be repeated in future, and I shall get the form F printed with blank details, without having printed details therein. Point No.3: It is stated with reference to the same that as the Sonography registration of our firm is getting over on 01/09/2013, I had sent the renewal application on 20/08/2013, I had sent the renewal application on 20/08/2013. As mentioned in your letter, as there had been emergency condition, I had got the sonography of Kanchan ba Sajjansinh Dilipsinh Solanki, resident of Juna Devpura, Ta. Vijapur through the authorized doctor Shri B.S. Patel (MBBS, DGO). Thus, I did not have any malafide intention in this regard. As I had sent the certificate for the renewal, and with the expectation that after completion of the said time period, the said certificate may be renewed within short period of time, the said sonography machine was used. I hereby assure that the same mistake shall not be repeated in future, it is a humble request to forgive such mistake. As I had sent the certificate for the renewal, and with the expectation that after completion of the said time period, the said certificate may be renewed within short period of time, the said sonography machine was used. I hereby assure that the same mistake shall not be repeated in future, it is a humble request to forgive such mistake. Point No.4: It is stated with reference to serial number 17 of the Form F that copy of the Form F was furnished to the patient, and he was apprised in details of the report thereof. I hereby assure that I will enter the date in the said point no.17 of furnishing the report to the patient, and that the said error shall not be repeated in future, it is required to forgive the said error. Point No.5: During your sudden checking on 14/09/2013, I could not produce immediately the English Manual of the PNDT Act, as I was tensed due to death of the patient in my clinic. I was mentally disturbed, and the said manual was kept somewhere else due to error on the part of peon, but later on the same was produced before the Appropriate Authority, PC and PNDT Officer. Further, during cleaning on the occasion of Diwali, as the Gujarati Manual was misplaced by the peon, it was not produced before your honour, it is a humble request to forgive the same. Point No.6: The reasons of not making entries of sonography in the register after 17/07/2013 are as under: (1) As my mother had a heart problem, and she had fallen down and sustained fracture on right leg, the operation was performed to her in Shri Rang Hospital, Ahmedabad on 20/07/2013, I had been busy and tensed during the said period in connection with treatment of my mother, there had been error in making entry of the sonography in the register. It is requested to forgive the said error, and I assure that the same shall not be repeated in future, the copy of its medical certificate is enclosed. Point No.7: It is stated with reference to the same that, first sonography registration of my firm under the PC and PNDT Act in the name of Jivandeep Hospital, Vijapur was issued by your office on 03/09/2003, vide its registration number GJ10109GCL2003, the permission has been granted to my firm for the sonography. Point No.7: It is stated with reference to the same that, first sonography registration of my firm under the PC and PNDT Act in the name of Jivandeep Hospital, Vijapur was issued by your office on 03/09/2003, vide its registration number GJ10109GCL2003, the permission has been granted to my firm for the sonography. Thereafter, on renewing the said registration, the same was renewed on 02/09/2008 in my name of Dr. Hasmukh M. Goswami. Thus, as I was approved to be qualified for the same, your office had granted me the permission by renewing the registration number GJ10109GCL2003, the duration thereof is from 02/09/2008 to 01/09/2013, copy thereof is enclosed. The permission vide your office registration number GJ10109GCL2003 has been granted in my name on 02/09/2008. In that connection, I had been performing Sonography during the period from 02/09/2008 to 25/04/2013 in my hospital. Thus as I have been having the experience of sonography for more 4 years with effect from the date of granting permission from your office, as per Section – 3(B) of the PC and PNDT Act 1994, thus the provision of Section 3(2) of the PC and PNDT Act are not violated. Be pleased to accept my above explanations. I assure your honour that no any of the above facts shall be repeated in future. I further assure you that the above mistakes shall not be repeated in future. It is a humble request to your honour to renew the registration of my firm under the PC and PNDT Act. Expecting for the cooperation, Yours faithfully, sd/ (Dr. Hasmukh M. Goswami)” 11 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Magistrate committed any error in issuing process to the applicant accused after taking cognizance upon the complaint. 12 It is an accepted principal that for the purpose of quashing the proceedings, the Court will not be justified in shifting the evidence, as the same would amount to exercising powers of the Trial Court and interference with the order of taking cognizance. The power is to be exercised sparingly and only on consideration of the material that it is put forth. The power is to be exercised sparingly and only on consideration of the material that it is put forth. The normal rule is not to interfere with the criminal proceedings, except when the complaint or F.I.R. broadly read does not disclose any offence and can be termed as an abuse of the process of law. It is pointed out by the Supreme Court in the case of Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors. [ (1998) 5 SCC 749 : (AIR 1998 SC 128)] that no doubt that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the constitution to have the proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It is pointed out by the Supreme Court that summoning of an accused in a criminal case is a serious matter. The criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring few witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Bearing in mind this legal position, it is necessary to examine the rival contentions canvassed on either side. 13 The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) has been dealt with by the Supreme Court in Rajiv Thapar and Others vs. Madan Lal Kapoor (Criminal Appeal No.174 of 2013, arising out of the S.L.P. (Crl.) No.4883 of 2008, decided on 23rd January 2013), wherein the Supreme Court inter alia held as under: “22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.c. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 23. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.c. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.: (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.” 14 The two decisions relied upon by the learned counsel appearing for the applicant are not helpful in any manner as the facts of each case should be looked into by the Court. 15 I am of the view that considering the nature of the allegations levelled in the complaint and prima facie supported by materials on record, it cannot be said that the Magistrate committed any error in taking cognizance upon the complaint. 15 I am of the view that considering the nature of the allegations levelled in the complaint and prima facie supported by materials on record, it cannot be said that the Magistrate committed any error in taking cognizance upon the complaint. In my view, no error could be said to have been committed by the Magistrate in issuing process to the applicant accused. It is important to note that in the reply filed by the applicant to the show cause notice issued by the appropriate authority, the applicant has virtually admitted each and every irregularity or illegality alleged to have been committed. Although this reply of the applicant may not be termed as a confession, yet, at the same time, the complaint do disclose more than a prima facie case. The matter on hand is not one which can be straightway allowed and the proceedings be quashed. The guilt or the innocence of the accused shall be decided by the Trial Court on the basis of the evidence that may be led in the course of the trial. As on date, there is more than a prima facie case. Although, in the course of the hearing of this matter, the learned counsel very strenuously tried to put forward his explanation as regards the allegations levelled in the complaint, yet that would be in the nature of defence. The defence of the accused cannot be considered at this stage. It is not that the reading of the complaint fails to disclose commission of any offence. In such circumstances, I am not inclined to exercise my inherent powers for the purpose of quashing the complaint and the order of process. Let the Trial Court look into the matter in accordance with law. 16 In view of the above, this application fails and is hereby rejected. Notice stands discharged.