Post on 20-Jan-2023
1
DISTRICT :: TINSUKIA
IN THE COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
TINSUKIA
C. R. Case No. 95/2017
U/S – 25/26 of PC & PNDT Act
State
V.
Dr. P.C. Borthakur
... Accused person
PRESENT: Sri Kiran Lal Baishnab, AJS.
Additional Chief Judicial Magistrate,
Tinsukia.
For the Prosecution : Smti. J. Khatoon, Addl. P. P.;
For the Defence : Mr. Naresh Prasad, Advocate.
Evidence recorded on: 23.10.2017.
Argument heard on: 30.10.2017 and 13.11.2017.
Judgment delivered on: 18.11.2017.
JUDGMENT
1. That the prosecution case in brief, as reflected from the
‘Complaint Petition’, is that the accused Nursing Home, Dr. P.C.
Borthakur Nursing Home and Research Centre had violated the
provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act by not maintaining the records as per
law. Hence, the case.
Contd….Page/2
2
2. That the criminal law in the instant case was moved by Sri
Pulin Gohain, the Deputy District Extension and Media Officer, the office
of the Additional Chief Medical and Health Officer (F/W), Tinsukia by
filing a complaint petition before the Learned Chief Judicial Magistrate,
Tinsukia who registered the instant case vide C.R. Case No. 95/2017 and
transferred the case for trial before this court.
3. Upon receipt of the Case Record this court took cognizance
of the offences U/s. 23/26 of the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 against
the accused Nursing Home, Dr. P.C. Borthakur Nursing Home and
Research Centre and proceeded with trial against him. During trial,
copies of relevant documents were furnished to the accused person.
Thereafter, finding sufficient materials against the accused Nursing
Home, Dr. P.C. Borthakur Nursing Home and Research Centre to proceed
for the offences U/s. 25/26 of the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 against
Dr. P.C. Borthakur Nursing Home and Research Centre represented by
one of its Partners, Sri Arindom Borthakur; particulars of the said
offences was explained to the accused person and he was asked as to
whether he pleads guilty to the offences charged, to which he pleaded
not guilty and claimed to be tried..
5. In the course of hearing the prosecution examined only
three Witnesses Sri Pulin Borgohain as P.W.1; Sri Manuj Roy as P.W.2
and Smti. Rituma Tanti as P.W.3.
The prosecution exhibited the following documents as
evidence:-
Exhibit-1 is the complaint petition.
Exhibit-2 is the seizure list.
And
Exhibit-3 is the Memorandum of inspection in two page.
The prosecution also exhibited the following articles as Material
Exhibits being the seized articles in proof of their case:-
Material Exhibit- 1 is the Anti-natal USG register.
Material Exhibit-2 is the USG case register.
Contd….Page/3
3
Material Exhibit-3 is the case report of Resham Haradia.
Material Exhibit-4 to 16 are the F. Form.
And
Material Exhibit-17 and 18 are the photographs of sealed USG
machines.
The accused person was examined U/s.-313 Cr. P. C. and
his answers are recorded on a separate sheet.
Defence story is of total denial. Moreover, defence side
declined to adduce any evidence.
6. Points for determination:-
Whether the accused Nursing Home, Dr. P.C.
Borthakur Nursing Home and Research Centre had
violated the provisions of the Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection)
Act by not maintaining the records as per law and thereby
committed an offence punishable U/s. 25/26 of the Pre-
Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994?
7. Discussion, Decision and Reasons thereof:-
Heard arguments of both sides. Perused the Case Record
very minutely. My findings are as follows:-
The defence side took the plea that neither the procedure
of initiation of the case against the accused person was proper
nor could the prosecution adduce any reliable and proper
evidence in proof of the allegations labelled against him.
Hence, let’s first look into the legal provisions challenged
by the defence in the instant case.
The learned Advocate at the outset pointed out the fact
that the complainant, Mr. Pulin Borgohain made a great error by
Contd….Page/4
4
not filing a formal complaint as necessary U/S- 2(d) of the Code
of Criminal Procedure and the letter dated 22.09.2017 which the
learned Chief Judicial Magistrate, Tinsukia considered as a
complaint does not fulfil the criteria.
As to criteria of a complaint as described U/S- 2(d) of the
Code of Criminal Procedure “complaint” means any allegation
made orally or in writing to a Magistrate, with a view to his taking
action under this court, that some person, whether known or
unknown, has committed an offence, but does not include police
report.
In the instant case on going through the letter dated
22.09.2017 it is clearly seen that the letter specifically mentions
the allegation of improper maintenance of records by the accused
Nursing Home and it is also mention that letter that the
complainant, Sri Pulin Borgohain had prayed to the Court to
register a Criminal Case for violation of Section 4, 29 and Rule 9
of Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act against Dr. P. C. Borthakur
Nursing Home and Research Centre thereby showing the
intention of the complainant that the said Nursing Home has
committed an offence and the letter is sent with a view to take
action against him.
Thus, the letter submitted by Sri Pulin Borgohain dated
22.09.2017 fulfils all the criteria as necessary U/S- 2(d) of the
Code of Criminal Procedure for making a complaint and thus, this
submission of the learned Advocate is also not acceptable.
The learned Advocate also questioned the procedure
adopted by the complainant in this case being in violation of
provision u/s- 28 of the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 and hence,
submitted that the trial in this case is vitiated and as such the
accused deserves acquittal.
Contd….Page/5
5
Section 28 of the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 provides that
no court shall take cognizance of any offence punishable under
the said act except on the complaint made by the Appropriate
Authority concerned, or any Officer authorized in this behalf by
the Central Government or the State Government as the case
may be, or the Appropriate Authority; or a person who has given
notice of not less than 15 days in the manner prescribed, to the
Appropriate Authority, of the alleged offence and of his intention
to make a complaint to the court.
Here, the learned Advocate submitted that the complaint
was not made by the Appropriate Authority concerned, or any
Officer authorized in this behalf by the Central Government or the
State Government as the case may be, or the Appropriate
Authority; or a person who has given notice of not less than 15
days in the manner prescribed, to the Appropriate Authority, of
the alleged offence and of his intention to make a complaint to
the court and as such the proceeding itself being illegal, the
accused deserves to be acquitted.
In this respect we can look into the evidence of the
complainant.
The complainant while deposing as P.W.1 admitted in his
cross examination that he did not mention in his complaint
petition that he is authorized to filed this complaint under the Pre-
Conception and Pre-Natal Diagnostic Techniques Rules and also
did not filed any document in support of his authority to file the
case.
He also admitted that he knows that only appropriate
authority can file case in this respect but he does not know as to
who are the Appropriate Authority in this District.
The complainant also admitted during cross examination
that he did not filed the complaint as per the provisions of Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition of
Contd….Page/6
6
Sex Selection) and rules and that the complaint was not filed in
proper format as mentioned in the rules under Annexure – VII.
Thus, it is seen that the complaint was filed in violation of
the legal provisions and there being a complete bar in taking
cognizance of the offence u/s- 28 of the Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994, I find force in the submission of the learned advocate for
defence.
The learned advocate for defence supported his
submission by a judgment of the Hon’ble High Court of Bombay
delivered in Dr. Paayal Vs. The State of Maharashtra & Others
wherein the Hon’ble High Court held relying upon the judgment
of the Hon’ble Supreme Court of Indian in A. K. Roy and Others
Vs. State of Punjab and others reported in AIR 1986 SC
2150 and in State of Haryana Vs. Ch. Bhajanlal and Others
reported in AIR 1992 SC 604 that when a proceeding cannot
be initiated in itself, it cannot sustain in law, even if cognizance is
taken by the Court ignoring the bar U/S – 28 of the Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition of
Sex Selection) Act.
For ready reference, I quote the relevant paragraph of the
judgment below:-
20. In order to examine whether there is an
express legal bar under the PCPNDT Act for entertaining
Criminal Complaint instituted against the petitioner vide
Regular Criminal Case No. 541/2013 one will have to
consider the provisions of Sections 27 and 28 from
Chapter VII of the said Act which deals with the offences
and penalties. For the sake of convenience it is necessary
to re-produce the provisions of Sections 27 and 28 of the
PCPNDT Act which reads thus:-
Contd….Page/7
7
"27. Offence to be cognizable, non-bailable
and non-compoundable. ─ Every offence under
this Act shall be cognizable, non-bailable and non-
compoundable.
28. Cognizance of offences. ─ (1) No Court
shall take cognizance of an offence under this Act
except on a complaint made by –
(a) the Appropriate Authority concerned, or
any officer authorised in this behalf by the Central
Government or State Government, as the case
may be, or the Appropriate Authority; or
(b) a person who has given notice of not
less than fifteen days in the manner prescribed, to
the Appropriate Authority, of the alleged offence
and of his intention to make a complaint to the
Court.
Explanation. ─ For the purpose of this
clause, "person" includes a social organisation.
(2) No Court other than that of a
Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence punishable
under this Act.
(3) Where a complaint has been made
under clause (b) of sub-section (1), the Court may,
on demand by such person, direct the Appropriate
Authority to make available copies of the relevant
records in its possession to such person. "
Perusal of provisions of Section 28 shows that the
Court is debarred from taking cognizance of an offence
under the PCPNDT Act except on the complaint made by
the concerned Appropriate Authority or by an officer
authorized for making complaint by the Central or the
State Government, as the case may be. Even any officer
Contd….Page/8
8
authorized by the Appropriate Authority for instituting the
criminal proceedings can also lodge the complaint. In the
case in hand, as stated in foregoing para, it is not the case
of prosecution that the private complaint bearing Regular
Criminal Case No. 541/2013 is instituted by an officer
under the authorization of the concerned Appropriate
Authority. Similarly it is not the case of respondents that
the said complaint is instituted by the complainant
authorized in that behalf by the State Government. It is
specific case of the prosecution as seen from the perusal
of record of R.C.C. No. 541/2013 that respondent no.3 -
Dr. Jayshree Kulkarni has lodged the said criminal
proceedings as a holder of the post of Medical Officer,
Health and as per version of the prosecution, the post of
Medical Officer, Health with Municipal Corporation
Aurangabad is notified by the State Government in the
Official Gazette as an Appropriate Authority in view of the
notification dated 9-12-1997 issued by the Public Health
Department of the State of Maharashtra.
21. Careful perusal of the provisions of Section 28 of the
PCPNDT Act which deals with cognizance of offences
under the said Act reveals that it prohibits initiation of
prosecution for any offence under the said Act except on a
complaint made by the Appropriate Authority concerned,
or any officer authorized for the said purpose by the
Central or State Government as the case may be or by
any officer authorized for this purpose by the Appropriate
Authority. No doubt apart from these persons, a private
person can also institute prosecution under this Act after
fulfilling the conditions prescribed by Section 28 of the
said Act. Thus provision contained in Section 28(1) of the
PCPNDT Act does not contemplate the lodging of a private
criminal complaint for the offences under the said Act by
Contd….Page/9
9
any person other than the person empowered in the said
Section. The bar for institution of prosecution is at the
threshold itself and the Court taking cognizance of an
offence punishable under the PCPNDT Act is duty bound
to satisfy itself that the complaint is lodged by any of the
Officer/person authorized to do so as per the provision of
Section 28 of the PCPNDT Act. Provision of Section 28 of
the PCPNDT Act mandates that the complaint for the
offence punishable under the said Act can only be made
by the Officers/persons authorized under the said Section.
In absence of such duly filed Criminal Complaint, the
Court is not empowered to take cognizance of the alleged
offences. So far as the instant case is concerned,
respondent no.3 - Dr. Jayshree Kulkarni has lodged the
private criminal complaint bearing R.C.C. No. 541/2013
purportedly acting as an Appropriate Authority being
incharge of the post of Medical Officer, Health with
respondent no.2 - Aurangabad Municipal Corporation. At
this juncture, it is apposite to quote relevant observation
of the Hon'ble Apex Court in the case of A.K. Roy &
another (supra). While considering the provision of
Section 20(1) of the Prevention of Food Adulteration Act
1954 dealing with cognizance and trial of offences under
the said Act, it is held thus by the Hon'ble Apex Court :-
“ A careful analysis of the language of
S.20(1) of the Act clearly shows that it inhibits
institution of prosecutions for an offence under the
Act except on fulfillment of one or the other or the
two conditions. Either the prosecutions must be
instituted by the Central Government or the State
Government or a person authorised in that behalf
Contd….Page/10
10
by the Central Government or the State
Government, or the prosecutions should be
instituted with the written consent of any of the
four specified categories of authorities or persons.
If either of these two conditions is satisfied, there
would be sufficient authority for the institution of
such a prosecution for an offence under the Act.
The provision contained in S.20(1) of the Act does
not contemplate the institution of a prosecution by
any person other than those designated. The
terms of S. 20(1) do not envisage further
delegation of powers by the person authorised,
except that such prosecution may be instituted
with the written consent of the Central
Government or the State Government or the
person authorised. The use of the negative words
in S.20(1) "No prosecution for an offence under
this Act .. shall be instituted except by or with the
written consent of" plainly make the requirements
of the section imperative. That conclusion of ours
must necessarily follow from the well known rule
of construction of inference to be drawn from the
negative language used in a statute stated by
Craies on Statute Law, 6th edn., p. 263 in his own
terse language :
"If the requirements of a statute which
prescribe the manner in which something is to be
done are expressed in negative language, that is to
say, if the statute enacts that it shall be done in
such a manner and in no other manner, it has
been laid down that those requirements are in all
cases absolute, and that neglect to attend to them
will invalidate the whole proceeding."
Contd….Page/11
11
Where a power is given to do a certain
thing in a certain way, the thing must be done in
that way or not at all. Other modes of performance
are necessarily forbidden. The intention of the
Legislature in enacting S.20(1) was to confer a
power on the authorities specified therein which
power had to be exercised in the manner provided
and not otherwise. ”
Keeping in mind this exposition of the Hon'ble
Apex Court, it becomes clear that as Section 28 of the
PCPNDT Act in terms provides for the category of persons
who are empowered to institute the prosecution for the
offences under the said Act, no person other than the one
falling in the category of persons mentioned in Section 28
of the PCPNDT Act is empowered to institute the
prosecution. The complaint for the offences under the
PCPNDT Act as such can be filed only by the Appropriate
Authority concerned or by any officer authorized for this
purpose by the Central or the State Government as the
case may be, or by the Appropriate Authority apart from a
private person on giving notice of not less than 15 days in
the prescribed manner to the Appropriate Authority.
Unless and until the complaint for the offence punishable
under the PCPNDT Act is instituted by any of these
Officers/persons, the Court is not empowered to take
cognizance of the offence alleged in the said complaint.
Any other officer howsoever high ranking he may be in
the hierarchy cannot institute the prosecution for the
offence punishable under the PCPNDT Act and complaint if
any made by such unauthorised complainant cannot be
validly entertained.
Basing on the exposition of the judgments of the Hon’ble
Supreme Court of India in A. K. Roy and Others Vs. State of
Contd….Page/12
12
Punjab and others reported in AIR 1986 SC 2150 and in
State of Haryana Vs. Ch. Bhajanlal and Others reported in
AIR 1992 SC 604, the Hon’ble Bombay High Court held as
follows:
39. As discussed in the foregoing paragraphs, in the case
in hand, there is express legal bar to entertain the
complaint for the offence punishable under the provisions
of the PCPNDT Act made by the Authority/Officer/Person
other than those authorized under Section 28 thereof. We
have already held that the criminal complaint bearing
R.C.C. No. 541 of 2013 against the petitioner is not made
by the Authority/Officer/person competent to lodge the
same. As such, allowing continuation of the said criminal
complaint would be abuse of the process of the Court
apart from waste of time and public money. We are of the
view that there is no possibility of conviction in such
criminal complaint which cannot be validly entertained.
Continuance of such prosecution would put the accused
therein, i.e. present petitioner to great oppression and
prejudice. Extreme injury would be caused to the
petitioner if the proceedings in such untenable criminal
complaint are not quashed.
Not only that, the Hon’ble Bombay High Court has also held that
continuing with a proceeding instituted in violation of the provisions of
law would amount to violation of Constitutional right of the accused
Under article 21 of the Constitution of India and held as follows:
40. The matter can be viewed from another angle also.
Article 21 of the Constitution of India which is held to be
“heart and soul” of the Fundamental Rights, reads thus:-
“No person shall be deprived of his life or
personal liberty except according to procedure
established by law”
Contd….Page/13
13
The petitioner herein is required to face prosecution for
the serious offence punishable under Section 23 of the
PCPNDT Act where the punishment prescribed is for a
term which may extend to 3 years and with fine, which
may extend to Rs. 10,000/-. By now, it is well settled that
free and fair trial is a sine qua non of Article 21 of the
Constitution of India. If a criminal trial initiated at the
instance of the State is not free and fair, the confidence of
the public at large in the criminal justice system would be
eroded. Assurance of a free trial is the first imperative of
dispensation of justice. The expression, “procedure
established by law” in Article 21 has been judiciously
construed as meaning a procedure, which is reasonable,
fair and just. Therefore, the criminal trial which may result
in depriving a person not only of his personal liberty but
also his life and reputation needs to be free, fair, unbiased
and without prejudice. Allowing the petitioner in the
present case to face trial of criminal complaint having
patent legal infirmity would certainly amount to breach of
the provisions of Article 21 of the Constitution of India.
Requiring the petitioner to face the trial of the untenable
criminal complaint lodged by totally incompetent authority
will amount to deprivation of her personal liberty by the
procedure which cannot be said to be established by law
as required by mandate of Article 21 of the Constitution of
India. Such prosecution cannot be held to be by the just,
fair and reasonable procedure as envisaged by Article 21
of the Constitution of India. As such, we are of the
considered view that the proceedings in Criminal Case
bearing R.C.C. No. 541 of 2013, between the parties
pending before the learned Chief Judicial Magistrate at
Aurangabad, needs to be quashed and set aside, in order
Contd….Page/14
14
to prevent abuse of the process of Court, for securing the
ends of justice and as the same are violative of the
constitutional guarantee enshrined in Article 21 of the
Constitution of India.
Hence, upon considering the legal provisions as enshrined in
Section-28 of the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act and the aforesaid rulings, I am of the
considered opinion that the present case admittedly being not filed by
the Appropriate Authority as required under the law; does not good in
law and the materials on record in no way suggest conviction of the
accused person.
The learned advocate for the defence further submitted that the
institution of the present case is not only in violation of Section 28 of the
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act but is also in violation of the guidelines which requires
prior inquiry and approval of the Advisory Committee.
The learned advocate for the defence submitted that the instant
complaint petition is filed in gross violation of the provisions of law and
hence, the accused person deserves to be acquitted on legal lacunae
only.
The learned advocate further submitted that prior to filing the
case, the materials ought to have been kept before the Advisory
Committee, the accused ought to have asked to file a showcause and
only on being dissatisfied by the reply, case could be filed but none of
these steps were taken in this case prior to lodging the complaint.
In this regard the learned advocate for defence submitted that
Section 20(1) of the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act postulates that before filing the
complaint, the seized documents and the allegations proposed to be
made is to be placed before advisory committee and the accused is to be
show cause and only if the explanation given by the accused is not
satisfactory, the complaint may be filed.
Contd….Page/15
15
The learned advocate submitted that here none of the above
requisites were fulfilled prior to filling of the instant complaint and thus
the complaint being bad in law needs to be dismissed.
The learned advocate for defence supported his submission with
the judgment of Hon’ble Bombay High Court passed in Dr. Sai Vs. the
state of Maharastra and another in Criminal Writ Petition No.
1381/2015 delivered on 27.09.2016 whereby the Hon’ble High
Court held that the Appropriate Authority ought to have made inquiry
prior to filing complainant and the complaint petition filed without inquiry
is not sustainable in law.
He also argued that the process of seizure itself was not as per
the provisions of law as there was no independent witness and the
witnesses of the seizure also could not support the allegations labelled
against the accused.
Thus, I am of the considered opinion that the instant case does
not stand good in law.
Though the initiation of the instant complaint petition is found to
be bad in law; I find it necessary to look into look into the evidence on
record to see how far the allegations could be proved by the prosecution
against the accused person.
The defence argued that the prosecution failed to prove the
offence against the accused whereas the prosecution submits otherwise.
The learned Advocate for the defence argued that only because
the forms are not filled up or the register is not complete cannot be
considered as an act punishable Under Section 25 of the Indian Penal
Code as because the most essential part of any crime is mens rea and
thus, to make out an offence against the accused person, his mens rea
ought to have been proved by the prosecution which is lacking in the
instant case, rather, the Memorandum of Inspection (Exhibit-3) on the
basis of which the instant case is filed, itself shows that the accused
person had explained the reasons for non-compliance of the provisions
of law and the same had also been confirmed by the authority and as
such, the learned advocate submitted that no offence is made out
against the accused person.
Contd….Page/16
16
Now in order to establish the fact of failure in
maintenance of records as per Rules the prosecution has to prove the
criteria of Rule-9 of the Pre-Conception and Pre-Natal Diagnostic
Techniques Rules, 1996 which provides procedure for maintenance of
records. So in order to bring home the charge U/s. 25/26 of the Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act against the accused person the prosecution has to prove
the following ingredients:
i. That the accused Nursing Home intentionally kept
the Forms and Registers blank to hide some
prohibitory acts done therein;
And
ii. That the accused Nursing Home had voluntarily
avoided furnishing information to the Appropriate
Authority as required under the Rules for the
month of July and August, 2017.
The complainant, Pulin Borgahain deposing as P.W.1 stated that
he was working as the Deputy District Extension and Media Officer in the
office of the Additional Chief Medical and Health Officer, Tinsukia and on
that day while inspecting the records in their office, it was noticed by the
team of NIMC that the Form – F was not submitted by the Borthakur
Nursing Home for the month of July and August, 2017 and as such they
visited the said Nursing Home and seized some documents and registers
and also sealed two USG Machines. He specifically deposed that the
NIMC team did the works by locking the room and during the whole
process of inspection he remained outside.
During cross examination the P.W.1 admitted that though the
office did not receive F Form for the month of July and August no notice
was issued to the Borthakur Nursing Home seeking explanation for the
same.
He further admitted that if the machine is non-functional in any
way there is no necessity to file any F Form.
Contd….Page/17
17
It is admitted by the P.W.1 that after preparing the seizure list
and completion of whole work of inspection they call the witnesses and
took their signatures on Exhibit-2 and thus, admittedly the seizure was
not witnessed by the witnesses including the complainant himself.
Thus, there is doubt as to actually how, from where and why the
seizure were made.
As to the allegation of not filling the F Form properly, the accused
stated that since no anti-natal ultra-sound were required for the patients
of whom the F Forms are seized, the forms were not filled up and for
convenience the signatures were taken at the reception itself and thus,
neither he committed any illegality nor there is any malafide intention in
his acts.
It is submitted by the accused that the Manual registers were not
up-to-date as because their hospital staff, Smti. Rituma Tanti was on
maternity leave but the electronic records were updated.
The fact that the staff was on leave is even mentioned in Exhibt-3
and the inspection team themselves stated that they had cross verified
the fact and found it to be true.
Said Smti. Rituma Tanti was also examined as P.W.3 and she
confirmed the fact that she was on leave in her examination-in-chief.
In this regard also the learned advocate for defence placed
reliance upon the judgment of Hon’ble Bombay High Court passed in Dr.
Sai Vs. the state of Maharastra and another in Criminal Writ
Petition No. 1381/2015 delivered on 27.09.2016.
In this judgment the Hon’ble High Court of Bombay specifically
held as follows:-
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
Contd….Page/18
18
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 17-A, 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 sgp 23 WP1381.2015 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.
It appears that in the instant case what has been
observed as above, not followed. The case has been instituted
Contd….Page/19
19
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 sgp 24 WP1381.2015 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
Contd….Page/20
20
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 sgp 25 WP1381.2015 laid down under the PCPNDT Act
being subjected to face unnecessary humiliation, harassment and
criminal prosecution.”
Thus, in view of the aforesaid judgment, I agree with the
submission of the learned advocate for defence that to make out an
offence against the accused Nursing Home malafide intention should be
proved else no offence is made out under the Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act and in the
instant case there is no material on record showing any malafide
intention on the part of the accused person in improper maintenance of
the records and thus, no criminal liability can be casted upon the accused
person.
Thus, from the materials on record and the submission made by
the accused, I am of the considered opinion that there is lack of
sufficient materials showing any malafide intention in not maintaining the
records properly and hence, in my view the accused cannot be held
criminally liable for the said improper maintenance of the records.
Thus, it seen that the prosecution failed to prove beyond all
reasonable doubts the fact that the improper maintenance of records by
the accused was with malafide intention to misuse the facility of the
nursing home in violation of the provisions of Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act and thus,
the offence as alleged is not made out against the accused Nursing
home.
Hence, in my considered opinion as formed from the discussion
made above the prosecution failed to prove either the factum of
improper maintenance of records or the factum of existence of malafide
intention of the accused in not maintaining the records properly and
thus, failed to prove the case against the accused person.
Contd….Page/21
21
Rather the defence was able to show that the complaint itself was
not filed in accordance with law and it deserves to be dismissed.
Thus, considering the foregoing discussions I am of the
considered opinion that the prosecution failed miserably to prove beyond
all reasonable doubts that the accused Nursing Home, Dr. P.C. Borthakur
Nursing Home and Research Centre had violated the provisions of the
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act by not maintaining the records as per law and thereby
committed an offence punishable U/s. 25/26 of the Pre-Conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
ORDER
Hence, considering the above discussions, I
am of the considered opinion that the evidence
adduced by the prosecution falls short of materials
necessary for conviction of the alleged offence and
the procedure applied in booking the accused for
criminal action also being not in accordance with
law, the benefit ought to be given to the accused
person.
Hence, in my considered opinion, the
accused Nursing Home, Dr. P.C. Borthakur Nursing
Home and Research Centre is found not guilty of
the offences punishable U/s. 25/26 of the Pre-
Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 and
accordingly he is acquitted of the
allegations/charges labeled against him.
9. The bail bond of the Accused Person shall remain in force for 6
months from today.
10. Considering the fact that the seizure and seal of the articles
of the accused Nursing Home was not in accordance with law and the
Contd….Page/22
22
Prosecution also could not prove the alleged offence against the accused
person, the Appropriate Authority, Tinsukia is directed to remove the
seals on the ultra-sound machines of the accused Nursing Home
immediately.
11. A copy of the judgment and order be sent to the Appropriate
Authority, Tinsukia for information and compliance.
12. The judgment is delivered and operative part of the same is
pronounced in the open court, today, the 18th day of November, 2017
under my hand and the seal of this Court.
(KIRAN LAL BAISHNAB) Additional Chief Judicial Magistrate, Tinsukia
23
C. R. Case No. 95/2017
ANNEXURE
1. PROSECUTION WITNESSES:
P.W.1 - Sri Pulin Borgohain;
P.W.2- Sri Manuj Roy;
And
P.W.3 - Smti. Rituma Tanti.
2. DEFENCE WITNESSES:
NIL.
3. EXHIBITS (BY PROSECUTION SIDE):
Exhibit-1 is the complaint petition.
Exhibit-2 is the seizure list.
Exhibit-3 is the Memorandum of inspection in two page.
And
Material Exhibit- 1 is the Anti-natal USG register.
Material Exhibit-2 is the USG case register.
Material Exhibit-3 is the case report of Resham Haradia.
Material Exhibit-4 to 16 are the F. Form.
Material Exhibit-17 and 18 are the photographs of sealed USG
machines.
4. EXHIBITS (BY DEFENCE SIDE):
NIL.
(KIRAN LAL BAISHNAB) Additional Chief Judicial Magistrate, Tinsukia