Can't Prosecute Doctor For Illegal Sex Determination Merely Because His Name Remained On Diagnostic Centre Panel Despite Leaving: P&H High Court

The case arose from a raid conducted on July 27, 2016, at Janta Diagnostic Centre in Hansi following secret information regarding illegal prenatal sex determination. According to the prosecution, a decoy customer, acting through a tout, underwent an ultrasound examination and was informed that she was carrying a male foetus. Subsequently, marked currency notes amounting to Rs. 26,500 were recovered from the clinic owner, S.S. Mann, and other accused persons were apprehended.

Significantly, the petitioner's name did not figure either in the FIR or in the spot memo prepared during the raid. The ultrasound report and the mandatory Form 'F' recovered from the clinic named Dr. Sudhir Kumar Dhusia, who had been serving as the centre's full-time consultant radiologist since February 2015, as the doctor who performed the procedure. Dr. Dhusia also stated that the petitioner had never visited the diagnostic centre after Dr. Dhusia joined in 2015.

The petitioner was arrested about a month later and stated that he had stopped working at Janta Diagnostic Centre on November 5, 2012, after which he shifted his practice to Delhi and Gurgaon. Investigation further revealed that, on the date of the raid, he was employed as a consultant radiologist at Health Map Diagnostic, Civil Hospital, Gurgaon. The attendance register of the Gurgaon hospital marked him "present" on the day of the raid, while the attendance register of Janta Diagnostic Centre did not contain his name.

On this basis, the Sub-Divisional Judicial Magistrate, Hansi, discharged the petitioner on April 12, 2017, holding that there was no substantive material indicating his involvement in the alleged offence.

However, on a revision filed by the State, the Additional Sessions Judge, Hisar, reversed the discharge order, reasoning that since the petitioner's name had not been formally struck off the diagnostic centre's panel, he was deemed to remain associated with the clinic at the time of the raid. The revisional court also held that his registration at centres in two districts amounted to a violation of the PCPNDT Rules.

Before the High Court, the petitioner argued that the revisional court had proceeded on conjectures, despite documentary evidence establishing his presence in Gurgaon on the relevant date. It was further contended that there was no allegation of conspiracy or active involvement and that the operation of Rule 3(3)(3) had, in any case, been stayed by several High Courts.

The State, on the other hand, maintained that the trial court was not required to conduct a mini-trial at the stage of framing of charges and argued that the petitioner's continued inclusion on the diagnostic centre's panel constituted sufficient material to proceed against him.

Rejecting the State's submissions, the High Court held that Rule 3(3)(3) restricts registration only in respect of diagnostic centres situated within the same district and does not prohibit registration in separate districts or States. The Court also noted that the operation of the provision had been stayed by the Bombay, Delhi and Punjab and Haryana High Courts. Consequently, the restriction contained in the Rule was not legally enforceable when the revisional court passed its order.

The Court observed that the petitioner had left Janta Diagnostic Centre in 2012 and that the continued presence of his name on the clinic's panel was merely the result of an administrative delay in updating records. In such circumstances, no criminal intent or conspiracy could be attributed to him for an incident that occurred four years later. The Court further held that a doctor cannot be held criminally liable for the acts of a diagnostic centre's owner or staff merely because his earlier registration had not been formally cancelled.

Holding that the revisional court had reversed a well-reasoned discharge order on "purely technical and legally unsustainable grounds", the High Court allowed the revision petition, set aside the order of the Additional Sessions Judge, Hisar, and restored the discharge order passed by the trial court.