Bombay High Court: In a batch of petitions regarding a challenge to common order passed by Additional Sessions Judge which quashed and set aside order of Magistrate issuing order under Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (‘PCPNDT Act’), and praying to restore the complaint, Kishore C. Sant, J. held the communication in the religious discourse to be an advertisement under PCPNDT Act and directed the Trial Court to proceed with the trial.
The respondent in the instant petition was a Kirtankar (public speaker) allegedly having influence over people in rural and semi-urban areas. It was alleged that the respondent addressed the gathering about techniques on ‘how to conceive a male child’ through certain extracts from some books on religion and Ayurveda on 04-01-2020 and it was uploaded on YouTube the same day. It was allegedly stated in his speech that if a husband and wife establish physical contact on even-dates, then the wife conceives a male child, and sexual relations on odd-dates would conceive a female child. It further included that child born by physical contact at inauspicious time would spoil the family name. Interestingly, he also said that “even after six months if a fetus in womb takes a round on right side it turns to be a male child and takes round of left side then it turns to be a female child.”
On notice being issued, the respondent replied that he could not get the exact video footage which was objectionable. Complaint was filed under Section 28(1) alleging that the respondent propagated technique of having a male child and was therefore guilty of offences punishable under Sections 22(1)(2)(3) & 23(1) of PCPNDT Act. The Magistrate found that the act fell under the definition of ‘sex selection’ under Section 2(O) and Section 22 regarding prohibition of advertisement relating to pre-conception and pre-natal determination of sex and issued process by order dated 03-07-2020. The Sessions Judge in the Criminal Revision rejected the allegations of advertisement about facilities of pre-natal determination of sex or sex selection before conception. It was held that he simply made a statement during a religious discourse that sexual contact on particular days result in conceiving of male child, which could not be regarded as propagating sex selection. The Criminal revision was allowed by quashing the order of issuance of process.
The Court in the instant matter considered whether the said statement amounted to an offence under PCPNDT Act and propagation of sex selection/ advertisement of any diagnostic technique. The Court admitted that there was no propagation of any modern day & established technique in the instant matter. The respondent, however, justified his act by stating that whatever was said in his speech was already there in books on Ayurveda and religion.
The Court appreciated the Magistrate and commented that there was material to show prima facie case against the respondent, and the findings of Sessions Judge were totally perverse. The Court observed that the respondent has propagated the selection of sex before conception is attracted. The Court held that communication in the religious discourse would be an advertisement. However, the Court further said that “Writing a book for study for academic purpose cannot be equated with the acts alleged in this case. Preserving & imparting knowledge is always to be done in particular manner to the persons interested to gain the knowledge.”
The Court pointed out that the respondent did not state that he was giving lectures to students of medicine, but it was public speech in the form of Kirtan. The Court examined Sections 2(O) and 6(c) and clarified that “The words advertisement propagation is used in a wide sense and needs to be taken in their wide meaning. It cannot be restricted only to the extent of diagnostic center, clinic but anything that propagates or tries to impose upon the message that by use of certain techniques sex of foetus can be selected.”
The Court rejected the Sessions Judge’s contention of a clinical diagnostic center or modern technique for the purpose of advertisement. It pointed to the instant case wherein, the respondent not only advertised but claimed the information to be correct, having scientific basis and legal sanctity. The Court appreciated the Trial Court’s conclusion and found the instant case which necessarily required a trial.
The Court dismissed the petition for want of locus standi, allowed the other petitions and restored the Trial Court’s order. The Court further directed the Trial Court to proceed with the trial without being influenced by observations of the Court in the instant matter. However, the Court stayed the effect of instant order for four weeks at the request of the respondent.
[Ranjana Pagar-Gawande v. Nivrutti Kashinath Deshmukh (Indorikar), 2023 SCC OnLine Bom 1199, decided on 16-06-2023]
Judgment by: Justice Kishore C. Sant
Advocates who appeared in this case :
For Petitioner: Advocate Jitendra V. Patil, Advocate Neha Kamble;
For Respondent: Senior Advocate Rajendra Deshmukh, Advocate R.S. Navandar, Advocate P.B. Pawar, Advocate Sanket A. Jadhav, Additional Public Prosecutor P.N. Kutti.
