ORDER 21.6.2018. Heard Mr. D. Panda, learned Counsel for the petitioner and Mr. P.K. Mohanty, learned Addl. Standing counsel. 2. Challenge has been made to the order of framing charges for the offence under Section 420/34 I.P.C. read with Section 16 of Clinical Establishment (Control & Regulation) Act, 1990 (hereinafter called “the Act” and under Section 23 of the Pre-Conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,1994 (hereinafter called the “the P.C. & P.N.D.T. Act”). 3. Learned Counsel for the petitioner submits that on the date of visit by the squad to the clinic in question does not disclose that the petitioner being the doctor was engaged in determining of sex contravening the provision of the P.C.& P:.N.D.T. Act on the date of visit of enforcement squad to the clinic. According to him, the clinic belongs to co-accused Md. Zamila Ahemad In that clinic co-accused Sanjaya Kumar Sahu was found to have not obtained appropriate licence for conducting ultrasound test. The material only shows that the petitioner occasionally attends the clinic whenever pregnant woman requires for such test. But there is no allegation that the petitioner made ultrasound test for determining the sex of any fetus since the allegation is mainly against the co-accused Sanjauya Kuamr Sahu and Md. Zamila Ahemad and the present petitioner being a doctor by profession has attended the clinic as per the permission granted vide Annexure-2 to the petition to attend the clinic and there is no allegation of contravention of any provision of any statute. The impugned order of framing charge against the petitioner under such offences is abuse of process of Court and per se illegal. Apart from this, the order sheet would go to show that no opportunity was given to the petitioner to hear on the point of charge because on the very same date when the police paper was supplied, the charge was framed against him by the learned J.M.F.C., Aul. So he submits to set aside the impugned order against the present petitioner. 4. Learned Addl. Standing counsel submits that as per the case diary there is allegation against three accused persons including the present petitioner. Charge sheet also submitted in this case. The entire materials show that the present petitioner also has participated with other two co-accused persons, but on the date of visit, he was absent in the clinic. So, he supports the impugned order. Charge sheet also submitted in this case. The entire materials show that the present petitioner also has participated with other two co-accused persons, but on the date of visit, he was absent in the clinic. So, he supports the impugned order. 5. ‘Considered the submission of learned Counsel for the respective parties. The impugned order is as follows : Xx xx xx xx Later. Heard on the point of charge. P:erused the case record along with its connected documents like F.I.R., Charge Sheet submitted by the IO. I am of the considered view that there is sufficient ground for presuming that the accused persons have committed offence under Section 420/34 of I.AP.C./16 Clinical Establishment Control & Regulation Act, 1990 & 23 of P.C.F.N.DT. Act which comes sunder XIX of Cr.P.C. The said offences are triable by this Court and in my earnest considered view that the accused persons could be adequately punished by this Court. Hence, charge under Section 420/34 of IP.C./16 Clinical Establishment Control & Regulation Act, 1990 & 23 of P.C.P.N.D.T. Act is framed against the accused persons and the contents of the charge is read over and explained to the accused persons to which they pleads not guilty and claims for to be charge-sheeted witnesses. Hence, issue summons to the Charge-sheeted witnesses fixing 17.04.18 for evidence.” 6. From the impugned order it appears that the learned Magistrate having found a prima facie case has framed the charge against the present petitioner including other co-accused persons. 7. On cursory reading of the record, it is found that on the date of visit, the petitioner was not performing any ultrasound, although Sanjaya Kumar Sahu was found to have been conducting ultrasound. The material also shows that the petitioner being doctor has conducted certain ultrasound in that clinic for certain witnesses like Aparna Das, Pratima Biswal and other witnesses, but they are referred by other doctors for conducting ultrasound and they have specifically stated that they have neither asked the petitioner to conduct sex determination test nor the present petitioner has conducted any such sex determination test which is banned under Section 3 read with Section 6 of the P.C. & P.N.D.T. Act. From the materials it appears that the petitioner is not found in cheating punishable under Section 420 I.P.C. as only attends the clinic occasionally and there is no allegation that he has conducted any sex determination test by cheating any woman. 8. Since the petitioner is not the owner of the clinic or the ultrasound machine, the question of attracting Section 16 of the Clinical Establishment (Control & Regulation) Act, 1990 is far from truth. However, Sections 3, 3A, 4, 5 (2), 6 and 23 of the P.C. & P.N.D.T. Act, are relevant to the quoted below :- “3. Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics – On and from the commencement of this Act,- (1) On Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques; (2) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possesses qualifications as maybe prescribed; (3) no medical geneticist, gynaecologist, paediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any prenatal diagnostic techniques at a place other than a place registered under this Act. 3.A. 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 of on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them. 4. 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 pre-natal 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 detention 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’ Xx xx xx 5,(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned of her relatives or any other person the sex of the foetus by words, signs, or in any other manner. Xx XX XX 6. Determination of sex prohibited.- On and from the commencement of this Act.- (a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or clause to be conducted in its Centre. Xx XX XX 6. Determination of sex prohibited.- On and from the commencement of this Act.- (a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or clause to be conducted in its Centre. Laboratory or Clinic pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus.; (b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus; (c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception. 23. Offences and penalties.’ (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with Act, 1994 & Amendments imprisonment for a term which may extend to three years land with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees. Xx xx xx 3, Any person who seeks the aid of a Genetic Counselling Centre Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sinologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre-natal diagnostic techniques on any pregnant woman for the purposes other than those specified in sub-Section (2) of Section 4, he shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.” 9. The aforesaid provisions have been well dealt in Union of India Vs. Indian Radiological and imaging Association and Ors. Etc., reported in 2018 (4) SCALE 542 where Hon’ble Apex Court in paragraphs -3 and 4 observed as follows :- “3. The aforesaid provisions have been well dealt in Union of India Vs. Indian Radiological and imaging Association and Ors. Etc., reported in 2018 (4) SCALE 542 where Hon’ble Apex Court in paragraphs -3 and 4 observed as follows :- “3. The PCPNDT Act was enacted by Parliament, as its Preamble indicates, to prohibit sex-selection, and to regulate pre-natal diagnostic techniques so as to prevent their misuse for sex determination. The Preamble reads thus : “An Act to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.” 4. The intent of Parliament in enacting the law is clarified in the Statement of Objects and Reasons which accompanied the introduction of the Bill. Insofar as it is material to be present controversy, the Statement of Objects and Reasons reads thus : Introduction: In the recent past Pre-natal Diagnostic Centres sprang up in the urban areas of the country using pre-natal diagnostic techniques for determination of sex of the foetus. Such centres became very popular and their growth was tremendous as the female child is not welcomed with open arms in most of the Indian families. The result was that such centres became centres of female foeticide. Such abuse of the technique is against the female sex and affects the dignity and status of women. Various Organisation working for the welfare and uplift of the women raised their heads against such an abuse.” Statement of Objects and Reasons: It is proposed to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. Such abuse of techniques is determination against the female sex and affects the dignity and status of women. A legislation is required to regulate the use of such techniques and to provide deterrent punishment to stop such inhuman act; The Bill, inter alia provide for :- (i) prohibition of the misuse of pre-natal diagnostic techniques for determination of sex of foetus, leading to female foeticide; (ii) prohibition of advertisement of pre-natal diagnostic techniques for detection or determination of sex. (iii) permission and regulation of the use of pre-natal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders; (iv) permitting the use of such techniques only under certain conditions by the registered institution; and () punishment for violation of the provisions of the proposed legislation. 2. The Bill seeks to achieve the above objectives. “ 5. The comprehensive directions issued by this Court in its decision in voluntary Health Association of Punjab (supra) must be read as integral to the enforcement of a law which has been enacted by Parliament to curb a grave social evil and to render the statutory provisions truly effective to curb the mischief which was sought to be addressed by enacting the law. More specifically in its judgment dated 8 November 2016, this Court has required the States and the Union territories to implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith.......” 10. With due regard to the aforesaid decision and provisions it is clear that any person including doctor if found to have conducted any sex determination test or any other test like pre-natal diagnostic test for the reason other than the purposes as provided under Section 4 (2) of the P.C. & P.N.D.T. Act is punishable under Section 23 of the Act. Section 4 of the Act is clear to show that for the test to be conducted necessary for saving of life of woman and fetus or any incidental thereto ultrasound is permissible. In the instant case there is nothing found from the material on record that sex determination has been made by the petitioner doctor in the clinic although the clinic is unauthorisedly run by the accused prima facie case against the concerned doctor for violating Section 3. 3A of the Act made out in the impugned order the learned Magistrate has not discussed any other material while framing charge except giving finding that there is prima facie case against the petitioner So, prima facie case under Section 23 of PCPNDT Act is not found. Therefore being no prima facie case found, the impugned order is liable to be quashed as continuance of case amounts to abuse of process of Court for which the impugned order is quashed. 11. Therefore being no prima facie case found, the impugned order is liable to be quashed as continuance of case amounts to abuse of process of Court for which the impugned order is quashed. 11. In terms of the above discussion, no prima facie case is found against present petitioner for which he is discharged from the said offence. 12. The Criminal Revision is accordingly allowed. It is made clear that the doctors at large should also verify the clinic whether it is registered or not under relevant provision of law before attending the clinic. Copy of this order be sent to the Director, Medical Services. Principal Secretary, Health and Environment Department for circulation. Certified copy of this order be granted in proper application. Revision allowed.