Gujarat High Court: In a petition under Article 226 and 227 of the Constitution of India against the order of Additional Sessions Judge, Rajkot, whereby the discharge application of the accused 1 (‘respondent') who was a visiting doctor in the hospital was allowed and the order of Additional Chief Judicial Magistrate, Rajkot, rejecting the discharge application was reversed. Sandeep N. Bhatt, J. dismissed the petition and upheld the discharge order by the Additional Sessions Judge.
On petitioners’ complaint before the Trial Court against three accused persons, owner of the hospital and two visiting doctors for offences under Sections 4(3), 5(1-b), 19(4) and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (‘the Act') and Rules 6(2), 9(1), 10 and 17(2) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (‘the Rules'). The allegations were regarding to the non-fulfillment of provisions of the Act and Rules regarding maintenance of record and non-filling up of the forms provided under the Acts and the Rules. The Trial Court, after taking into consideration the complaint, police report and other papers, issued summons upon the accused. Aggrieved by the summons order, the accused had preferred revision application before the Sessions Court, however the said application was rejected. Subsequently, the Trial Court had rejected the discharge application. Thereafter, the appellate Court allowed the Criminal Revision Application and reversed the Trial Court's order. Hence, the present petition.
The Court perused the relevant provisions of the Act and discussed the object of the Act and said that the Act was enacted with an intent to prohibit prenatal diagnostic techniques for determination of sex of the fetus leading to female foeticide, the preliminary object of the Act was to put a check on female foeticide. The Court noted the findings of the appellate Court which established that there was no prima facie evidence as to the breach of Rule 10 of the Rules which provides for ‘conditions for conducting pre-natal diagnostic procedures', thus discharging the accused 1. The Court said that the Form ‘F' is to be maintained by the authority and/or staff of the clinic and it should be filled up by anybody among the gynecologists / owner / radiologist and it is not the duty of the visiting gynecologist to maintain such records and Form ‘F'. Further, it was only under the new Act of 2014 that the person performing the procedure was required to be signed the Form ‘F'. As the offence alleged against the accused for breach of Rule 9(4) of the Rules is said to have occurred before the amendment in the Act of 2014, accused 1 cannot be made liable for non-signing of Form ‘F'. Further, the Court added that the accused 1 being a visiting gynecologist and a registered medical practitioner, cannot be held liable for breach of Section 4(3) and Section 19(4) of the Act and Rule 6(2) of the Rules for not displaying certificate of registration under the Act in the hospital. The Court also said that the duty to maintain register showing in serial order as prescribed in Rule 9(1) of the Rules and to keep copy of the Act and Rules is of the owner and staff of the nursing clinic concerned and not of the visiting gynecologist and therefore, accused 1 cannot be held liable for breach of Section 19(4) and 29 of the Act as well as Rules 6(2), 9(1), 9(4) and 17(2) of the Rules.
Therefore, the Court found no error in the impugned order and said that the appellate Court had rightly allowed the discharge application of the accused 1. Further, the Court stressed that the Act did not enjoin duty on doctors performing procedure to sign Form ‘F' himself. It was only under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Amendment Rules, 2014 that the person performing the procedure was required to sign the Form ‘F'.
The Court also discussed the manner in which the officers and authority register complaints under the Acts and Rules. The Court pointed out that many a times, the Authorities are very eager to act promptly and without application of mind and therefore, their prompt action results in vitiation of the whole proceedings. The Court said that sometimes, the authorities may be right in taking action against erring doctors, but many a time, their action proves their non-application of mind, and the genuine doctors are the sufferers. Therefore, the Court said that it hopes that wisdom may prevail to the appropriate authorities in future. Thus, the Court dismissed the petition in limine.
[Pappu kumar singh v. Dharmesh Bharatbhai Patel, 2023 SCC OnLine Guj 2443, Decided on 26-07-2023]
Advocates who appeared in this case :
For the petitioner: Advocate RV Acharya
For the respondents: Advocate Soaham Joshi