The Bombay High Court allowed a writ petition challenging the common order passed by the learned Additional Sessions Judge, whereby the learned Judge had allowed Criminal Revision, filed by the respondent, by quashing and setting aside the order issuing process dated 03- 07-2020 by the learned JMFC.
The Court observed that the words advertisement propagation are used in a wide sense and need to be taken in their wide meaning. It cannot be restricted only to the extent of diagnostic centers, and clinics but anything that propagates or tries to impose upon the message that by use of certain techniques, the sex of the foetus can be selected.
Brief Facts:
Respondent No.1 happens to be a public speaker (Kirankar). Kirtankars have influence over people in rural and semi-urban areas. The respondent, as per the allegations, in his Kirtans, had addressed gathering about the so-called techniques as to how to conceive a male child by giving certain extracts from the religious and also from some books on Ayurveda. The said speech was given on 04-01-2020 and, on the same day, it was also uploaded on the ‘youtube’ channel.
The complaint came to be filed under Section 28(1). It was alleged that the respondent propagated the technique of having a male child and therefore, he is guilty of the offences punishable under Section 22(1)(2)(3) & 23(1) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [PCPNDT Act]. The learned Magistrate, on going through the complaint and considering the propagatory nature of the lectures, found that act of the complainant falls under the definition given in Section 2(O) i.e. sex selection. Section 22 i.e., prohibition of advertisement relating to pre-conception and pre-natal determination of sex and issued process by order dated 03-07-12020.
The respondent filed a criminal revision. Learned Sessions Judge recorded that the respondent has not made any advertisement about facilities of pre-natal determination of sex or sex selection before conception available at such center, laboratory & clinic. It was held that the respondent simply made a statement that sexual contact on particular days results in the conceiving of a male child and this cannot be said to be propagating sex selection. The court also further observed that no controversial statement was made during the religious discourse. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the act of the respondent falls into the definition falling under the Act. The learned trial court had rightly issued the process under Section 22(1) & (2). From a reading of the complaint, it is clearly seen that the accused had stated that if there is physical contact on odd dates then a girl child is born. He submitted that this clearly amounts to making an advertisement of sex selection.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that when this material is already available to all the persons, speaking about the same in public discourse cannot be said to be illegal or amounting to an offence. His submission is whatever is already there in the books is only conveyed to people; such acts cannot be said to be an advertisement.
Observations of the Court:
The Court noted that the Learned Sessions Court erred in that there has to be a clinic diagnostic center or modern technique of which advertisement is made. In this case, the respondent not only advertised but also claimed the information about the techniques to be correct and having a scientific base. He also supported that such texts have religious sanctity which makes it more serious looking to the people before whom speeches are made.
The court observed that if the words are taken as it is, the case certainly may appear to be an advertisement or propagating technique of sex selection. The words advertisement and propagation are used in a wide sense and need to be taken in their wide meaning. It cannot be restricted only to the extent of diagnostic centers, and clinics but anything that propagates or tries to impose upon the message that by use of certain techniques, the sex of foetus can be selected.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the learned trial court had rightly considered the complaint and the material before him and had come to the right conclusion.
Case Title: Ranjana Pagar-Gawande vs DR. Bhaskar Madhavrao Bhavar & Anr.
Coram: Hon’ble Justice Kishore C. Sant
Case no.: CRIMINAL WRIT PETITION NO.851 OF 2021
Advocate for the Petitioner: Mr. Jitendra V. Patil
Advocate for the Respondents: Mr. Rajendra Deshmukh, and Mr. P. N. Kutti
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