Dr Ashishkumar Govindrao Wagh vs The Competent Authority And Anr
2016 Latest Caselaw 5604 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                     
                      CRIMINAL WRIT PETITION NO. 1641 OF 2015
                                      WITH
                       CRIMINAL APPLICATION NO. 2234 OF 2016




                                                    
     Dr. Ashishkumar Govindrao Wagh
     Age 39 years, Occ. Medical Practitioner
     R/o. Pachora Road, Jamner
     Tq. Jamner, District Jalgaon                             ...Petitioner




                                        
              versus         
     1.       The Competent Authority
              Medical Superintendent Class-I,
                            
              Sub division Hospital, Jamner
              District Jalgaon

     2.       State of Maharashtra                            ...Respondents
      


                                         .....
     Mr. S.S. Bora, advocate for the petitioner
   



     Mr. P.G. Borade, A.G.P. for respondents
                                          .....

                                                CORAM : V. K. JADHAV, J.

Date of Reserving the Judgment: 22.09.2016

Date of pronouncing

the Judgment: 27.09.2016

JUDGMENT:-

1. Rule. Rule made returnable forthwith. By consent, heard

finally.

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2. By way of present writ petition, the petitioner prays for

quashing of orders dated 18.2.2014 passed by learned Judicial

Magistrate, First Class, Jamner in S.C.C. No. 450 of 2011, thereby

framing charge against the petitioner under Section 4(3), 5 and 6 of

the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition

of Sex Selection) Act, 1994 (hereinafter for the sake of brevity

referred to as "PCPNDT Act") and the order dated 27.10.2015

passed by learned Additional Sessions Judge, Jalgaon in criminal

revision No. 56 of 2014, thereby confirming the order passed by the

Magistrate.

3. Brief facts giving rise to the present writ petition are as follows:-

a) The petitioner is a private medical practitioner, runs a medical

hospital under the name and style as "Meera Hospital" at Jamner.

The petitioner also possesses requisite qualification as well as

permission to run sonography center and as such is also having

sonography machine in his hospital. On 13.8.2011, the appropriate

authority alongwith his team had visited the hospital of the petitioner

and inspected the record. On 29.9.2011, the respondent

No.1/competent authority filed a complaint against the petitioner

under the provisions of PCPNDT Act alleging therein that the

petitioner has failed to maintain proper record as required under the

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provisions of PCPNDT Act. It has alleged in the complaint that one

patient viz. Kavita Kale had visited the clinic of petitioner for trans

vaginal sonography. The petitioner has conduced the said procedure

on the patient though the petitioner does not possess the probes,

required for the procedure of trans vaginal sonography. It has further

alleged in the complaint that even "F" form about said patient was not

filled in and also the consent of the said patient was also not taken.

By referring the names of 4/5 women patients, it has further alleged

in the complaint that consent was not taken by the petitioner accused

while filling up "F" Forms. It has also alleged in the complaint that

names of patients Asha Gajanan Khawale and Pratibha Sonar are

wrongly mentioned in the record.

b) On the basis of allegations made in the complaint, learned

Magistrate had initially issued process against the petitioner, which

was challenged by filing criminal application before this Court.

However, the petitioner has subsequently withdrew the said

application with liberty to file discharge application at appropriate

stage before the Magistrate.

c) On 18.2.2014, the learned Magistrate was pleased to frame

charge against the petitioner at Exh.1 in S.C.C. No. 450 of 2011

under Sections 4 (3), 5 and 6 of the PCPNDT Act. Being aggrieved

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by the said order dated 18.2.2014, the petitioner preferred criminal

revision application No. 56 of 2014 before the Sessions Court at

Jalgaon. After hearing, the learned Additional Sessions Judge,

Jalgaon by its impugned judgment and order dated 27.10.2015

dismissed the criminal revision application and confirmed the order

passed by the Magistrate. Hence, this writ petition.

4. Learned counsel for the petitioner submits that on perusal of

the entire record, it is clear that the said patient Kavita Kale never

undergone any sonography in the hospital of petitioner. The

document in respect of O.P.D. register shows that the patient was

consulted by the petitioner and alleged prescription does not show

that trans vaginal sonography was conducted on her. The competent

authority has not even recorded the statement of Kavita Kale and as

such, without verifying the fact from patient Kavita Kale, whether she

had undergone the sonography in the hospital of the petitioner or not,

the allegations have been made in the complaint only on the basis of

the prescription. Learned counsel further submits that by referring

the names of 4/5 women patients, it has alleged in the complaint that

their consent is not taken by the petitioner while filling up Forms "F'.

It is a matter of record, produced before the court that, all "F" Forms

were available and perusal of the same, would show that each and

every women patients referred in the complaint put their signatures

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on declaration of "F" Form.

Learned counsel for the petitioner submits that it has alleged in

the complaint that the petitioner failed to take their consent. The

requirement of obtaining consent is contemplated under Form "G",

Rule 10 of Pre-conception and Pre-natal Diagnostic Techniques

(Prohibition of Sex Selection) Rules, 1996 (hereinafter for the sake of

brevity referred to as "PCPNDT Rules") and the said requirement of

consent is for invasive techniques only. The same is evident from

the title of Form G. Sub Rule (1-A) of Rule 10 of PCPNDT Rules

deals with ultra sonography image scanning on pregnant woman and

it mandates only giving of declaration in respect of Ultra sonography

Image scanning and such declaration is already on Form-F, which is

completely filled in so far as women patients, refereed in the

complaint are concerned. However, sub-Rule (1) of Rule 10 speaks

about written consent as specified in Form "G" and Form "G" itself

indicates about invasive techniques. There are no allegations in the

complaint that the petitioner has used invasive techniques while

conducting pre-natal Diagnostic procedure.

Learned counsel submits that the case of the petitioner is

covered under Rule (1-A) of Rule 10 of the PCPNDT Rules and the

petitioner has complied with the requirements of said Rules in toto.

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So far as the mistake in respect of surnames of two patients, as

referred in the complaint are concerned, the said mistake in any way

cannot attract the provisions of PCPNDT Act and Rules or cannot be

said to be violating any provisions of PCPNDT Act or Rules. On

perusal of record, no offence is made out against the accused. The

order passed by the Magistrate framing of charge against the

petitioner and subsequent order passed by the Additional Sessions

Judge in criminal revision application, thereby confirming the order of

the learned Magistrate, are not proper, correct and legal and the

same are liable to be quashed and set aside.

5. Learned A.P.P. submits that on perusal of prescription paper of

patient Kavita Kale, at the bottom of said prescription, it is mentioned

as TVS / 10 weeks missed abortion. It is clearly revealed from the

said document that TVS speaks about trans vaginal sonography and

on bare perusal of the same, it does not indicate that patient was

subjected to Pre-vaginal (PV) examination. There is no F form and

the consent letter of the said patient Kavita Kale. Learned A.P.P.

submits that it is the duty of the medical practitioner, who conducts

the sonography on pregnant woman, to maintain proper record as

per the mandate of the Act. The said patient Kavita Kale was

subjected to Prenatal Diagnostic Technique and burden shifts on the

petitioner accused to show that she was not subjected to such

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technique. Though prima facie, F Form of the patient contains

declaration of pregnant woman, no separate consent form were filled

in by them. The learned A.P.P. submits that on plain reading of Rule

10 of PCPNDT Rules, it does not show that Form G is required to be

filled up in case of invasive techniques only. Learned A.P.P. submits

that whether filling up of Form G was necessary or not, can be

determined during the course of trial.

6.

During the course of arguments, respondent No.1 competent

authority has filed additional short affidavit and admitted the legal

position that for non-invasive techniques under the provisions of

PCPNDT Act only filling up Form F is mandatory and Form G is

required to be filled in by the patient through doctor for invasive

technique, meaning thereby the fill up form G is not at all necessary

to be filled up by the doctor while performing non-invasive technique

procedure.

7. On careful perusal of complaint, it appears that there are

allegations by referring name of one patient Kavita Kale for non-

compliance of filling up of form F as well as about not obtaining her

consent though the petitioner has conducted trans vaginal

sonography on her. By referring names of women patients, it has

further alleged in the complaint that their consent were not taken by

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the petitioner accused while filling up Form F.

8. The conditions for conducting pre natal diagnostic procedure

are mentioned in Rule 10 of the PCPNDT Rules. Rule 10 of the

PCPNDT Rules reads as under:-

"10. Conditions for conducting pre-natal diagnostic

procedures:- (1) Before conducting preimplantation genetic

diagnosis, or any pre-natal diagnostic technique/test/procedure such as amniocentesis, chorionic villi biopsy, foetoscopy, foetal skin or organ biopsy or cordocentesis, a written consent, as

specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him.

(1-A) Any person conducting ultrasonography/image scanning on

pregnant woman shall give a declaration on each report on ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to anybody.

The pregnant woman shall before undergoing ultrasonography/ image scanning declare that she does not want to know the sex of her foetus.

(2) All the State Governments and Union territories may issue translation of Form G in languages used in the State or Union territory and where no official translation in a language understood by the pregnant woman is available, the Genetic Clinic may translate Form G into a language she understand."

In view of the provisions of sub-Rule (1-A) of Rule 10, a

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declaration of each report of ultra sonography/image scanning by a

person conducting ultra sonography/ image scanning of pregnant

woman is mandated to the effect that he/she has neither detected

nor disclosed the foetus of pregnant women to anybody and further

declaration is required to be given by the pregnant woman before

undergoing ultrasonography/image scanning that she does not want

to know the sex of her foetus. Such declarations are already there in

Forms "F" which are completely filled in so far as those women

patients referred in later part of the complaint are concerned. So far

as those women patients referred in later part of the complaint are

concerned, the case of the petitioner is covered under Sub Rule (1-

A) of Rule 10. However, sub Rule (1) of Rule 10 mandates the

written consent as specified in form "G". On perusal of form "G" the

title of form "G" shows that "FORM OF CONSENT" as - Form "G" is

required for invasive techniques. Even on bare reading of sub Rule

(1) of Rule 10, it is clear that for conducting various procedures, as

stated in sub Rule (1) of Rule 10, invasive technique is invariably

required. I do not find that there is non compliance of the said Rule

10 sub-rule (1-A) in any manner. Even the competent authority has

also accepted the same by filing additional affidavit of one Shri

Ravindra Kadu Patil, Medical Superintendent, Sub District Hospital,

Jamner, District Jalgaon dated 22.8.2106. In the said short

additional affidavit in para 3, it is stated as follows:-

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"3. I say that, as per the legal position as on today for non invasive technique under the provisions of PCPNDT Act, only

filling of Form F as prescribed under the rules is mandatory and necessary. I say that, the Form G is required to be fill-up by the patient through Doctor for invasive technique meaning thereby

filling of Form G is not at all necessary to be filled by Doctor while performing non invasive technique procedure."

9. So far as the allegations made in the complaint in respect of

patient viz. Kavita Kale is concerned, I do not find any substance in

the same, as trans vaginal sonography is not possible without any

probes. Admittedly, no probes are found during investigation in the

hospital of the petitioner, which are required for conducting trans

vaginal sonography. Even there is no record available to show that

said Kavita Kale had undergone sonography in the hospital of the

petitioner. The allegations about conducting of trans vaginal

sonography on patient Kavita Kale are mainly levelled on the basis of

prescription form. I have also called the record and proceeding and

carefully perused the said prescription form marked at Exh.41. The

history is written on the prescription form about 2 ½ months

pregnancy and history of jaundice since 10 days. At the bottom of

said prescription alongwith date 29.7.2011 something is written in the

bracket.

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10. The petitioner claims that in the bracket, it is written as PV

whereas respondent No.1 complainant alleged that it is written as

TVS. On perusal of said endorsement, I find only two alphabets in

the bracket. Apart from this, the best person to tell about this is the

petitioner, who has written it. If the respondent complainant found

that the said bracketed portion is something otherwise than explained

by the petitioner, then the best first hand evidence, which could have

been easily available, is to record the statement of said Kavita Kale.

In absence of her statement, only on the basis of prescription and the

guess work and conjecture in respect of writing made in the

bracketed portion, the respondent complainant has made serious

allegations against the petitioner.

11. In the light of above observations, in my considered opinion,

no case is made out to frame charge against the petitioner accused.

The Magistrate is bound to discharge the accused where no case

against him is made out which, if unrebutted, would warrant his

conviction. I do not find that any prima facie case made out against

the petitioner accused for framing charge. Accordingly, I proceed to

pass the following order.

ORDER

I. Criminal writ petition is allowed in terms of prayer clauses

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"C" and "D".

II. Writ petition is disposed of. Rule is made absolute in the

above terms.

12. In view of disposal of writ petition, criminal application No.

2234 of 2016 is also disposed of.

( V. K. JADHAV, J.)

rlj/