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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

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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

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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

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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

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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

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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:-

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"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

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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

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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

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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

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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

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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”

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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