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Violation of Sex Determination test Rules - Mumbai HC refuses to grant relief to Doctor

Apoorva Mandhani
15 May 2014 1:57 AM GMT
Violation of Sex Determination test Rules - Mumbai HC refuses to grant relief to Doctor
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The Bombay High Court, on Friday, ruled that inaccuracies and irregularities in maintenance of records and forms as prescribed under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act and the Rules there under, amounts to an offence.

The Petition was filed by Dr. Dattatray Kanade, who owns Kanade Maternity Home in Ahmednagar. The Petition requested for quashing of criminal trials against the accused. The complaint was filed against the doctor under the provisions of PCPNDT, 1994 and the PCPNDT Rules, 1996. Technical discrepancies/ faults founds on the part of the petitioner were found to be contrary to the provision of the PCPNDT Act and Rules which had led to suspension of registration certificate of sonography machines and sealing of the machines,

The petitioner, through his lawyer R.S. Shinde, claimed that only irregularities and no illegalities are there and no offence has been made out.

There were several irregularities that were pointed out in order to justify the complaint against the doctor and the subsequent steps taken.

It was argued that a notice informing the public that disclosure of sex of foetus is prohibited under law was necessary to be displayed. This wasn't done in the room where sonography is done.  It was also alleged that whereas it is obligatory to maintain one copy each of the Act and the Rules in the O.P.D., the same wasn't complied with. With regard to this Defect, the counsel for Petitioner argued that such copy was available but it was in the table of the doctor, however this wasn't corroborated.

The Public Prosecutor submitted that the Forms filled, were incomplete and that important information as to how many issues are there, male or female, was not filled in and that the doctor signing the declaration form was not the doctor who was authorized signatory or the radiologist.

It was pointed out that there are forms having signatures of patients without requisite information being filled in or incomplete information. As per the Public Prosecutor, the letter issued by State Appropriate Authority, to the Appropriate Authorities in Districts, which is in the nature of guidance, does not substitute requirements of the Act and the Rules.

Public Prosecutor submitted that the cases under the Act are treated as warrant cases instituted otherwise than on police report. It was argued that major or minor violation in the keeping of records is immaterial.

According to the Public Prosecutor Section 5(2) of the Act prohibits communicating of sex of the foetus by words, signs, or in any other manner and thus according to him displaying of even photographs of Gods and Goddess where prenatal diagnostic procedures are conducted, is not permissible, as the same gives opportunity to convey sex of foetus by signs or in other manners.)

Counsel for Petitioner vigorously made an effort to exhibit that either the defects alleged are not there or even if they are there, they are insignificant.

Justice A.I.S. Cheema, dismissing the petition for quashing of the allegations, said that, "it would be premature to accept explanations regarding inaccuracies or deficiencies before trial takes place. It is further apparent that if the lapse is insignificant, the benefit would go to the accused at the time of sentence, but claiming that deficiencies in Form F and keeping Records are insignificant, cannot be reason to claim that no offence is there and to discharge the accused."

When the complaint has been filed under this Act showing the inaccuracies and deficiencies in the keeping of record, and complainant has documents to support disclosing sufficient grounds to proceed in the light of provisions of this Act and Rules, this Court cannot, before holding of the trial, sit in Judgment whether or not the Record has been kept properly; or Form F concerned has been properly filled or improperly filled; or whether or not the deficiencies pointed out are serious or insignificant. 

The Court dismissed the petition on the grounds that in such serious matters, it would be inappropriate to interfere when prima facie case is made out. 

The Judge rightfully considered the aim and objectives of the Act which pertained to prohibition of abuse of these prenatal diagnostic techniques. Strict compliance of every provision of the Act and the Rules is required and the Court fairly reiterated the same.

The judgment can be read here.

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