A single judge bench of Justice Sandeep N. Bhatt of the Gujarat High Court in the case of Pappukumarsinh Vs Dharmesh Bharatbhai Patel held that genuine doctors are the sufferers due to the authorities' non-application of mind.
Brief Facts:
The summons was issued to the accused for the offenses punishable under Sections 4(3), 5(1-b), 19(4), and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter referred to as ‘Act’) and Rules 6(2), 9(1), 10 and 17(2) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules (hereinafter referred to as ‘Rules’).
Thereafter, accused no. 2 filed the revision application before the learned Sessions Court. However, the same was rejected by the learned session court. Furthermore, the same was filed before the learned appellate court, and the same was allowed by the learned appellate court which resulted in the present application.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the learned appellate court passed the order without considering the factual aspects of the case. Furthermore, Respondent No. 1 violated the provisions of the acts and rules. It was furthermore contended that the trial court was right in rejecting the discharge application of respondent No. 1. The learned counsel also relied upon the judgment titled Suo Motu versus State of Gujarat.
Contentions of the State:
The learned counsel appearing on behalf of the state contended that the Petitioner is an appropriate authority and they conducted an inspection and found some irregularities then the complaint was filed.
Observations by the Court:
The Hon’ble court observed that the legislative intent of the act is the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sec-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereof.
It was furthermore observed that it is not the responsibility of the visiting gynaecologist to maintain such records and Form 'F'; rather, it is the responsibility of the authority and/or staff of the clinic. Form 'F' should be filled up by anybody among the gynecologist/owner/radiologist. Additionally, Form "F" was only necessary to be signed by the person performing the surgery under the New Act of 2014. Respondent No. 1 is not responsible for not signing Form "F" since the offence against the accused for violating Rule 9(4) of the Rules is claimed to have happened prior to the revision in the Act of 2014. Additionally, respondent No. 1 cannot be held accountable for violating Section 4(3) of the Act since she is a licenced medical practitioner and a visiting gynaecologist. For failing to show the certificate of registration under the Act at the hospital, respondent No. 1 is also not responsible for violating Section 19(4) of the Act and Rule 6(2) of the Rules. Also, it is the responsibility of the clinic owner and employees, not the visiting gynecologist, to preserve the register in serial order as required by Rule 9(1) of the Rules and to keep a copy of the Act and Rules at the hospital.
It was noted that the authorities are very eager to act promptly and without application of mind and therefore, their prompt action resulted in the vitiation of the whole proceedings. Sometimes, they may be right in taking action against erring doctors, but many a time, their action proves their non-application of mind and the genuine doctors are the sufferers.
Based on these considerations, the hon’ble court was of the view that respondent No. 1 cannot be held liable for breach of Section 19(4) and 29 of the Act as well as Rules 6(2), 9(1), 9(4) and 17(2) of the Rules. Therefore, no error is committed by the learned appellate court.
The decision of the court:
With the above direction, the Hon’ble Court dismissed the present petition.
Case Title: Pappukumarsinh Vs Dharmesh Bharatbhai Patel
Coram: Hon’ble Mr. Justice Sandeep N. Bhatt
Case No.: R/Special Criminal Application No. 8286 of 2019
Advocate for the Applicant: Ms RV Acharya
Advocate for the State: Mr Soham Joshi, APP
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