Dr Ashish S/O Arvind Bopalkar vs The State Of Maharashtra And ...
2017 Latest Caselaw 9051 Bom

                                       ..1..                                CrWP-354-17


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD
                                                 
               CRIMINAL WRIT PETITION NO. 354 of 2017

       Dr. Ashish s/o Arvind Bopalkar,
       Age : 42  Years, Occ. : Medical Practitioner,
       R/o : Arihant Diagnosis Centre, at Post
       Barshi, District Solapur.                  ...   PETITIONER
                                                        ( Orig. Accused )
                              VERSUS


1.  The  State of Maharashtra, 
    Through Police Station Officer, 
    Police Station, Jamkhed, 
    Taluka Jamkhed, 
    District Ahmednagar.
    (Copy to be served on Public 
    Prosecutor, High Court of Judicature 
    of Bombay Bench at Aurangabad)

2.   Appropriate Authority/Tahsildar,
     Jamkhed, Taluka Jamkhed, 
     District Ahmednagar,
     (Deleted as per order dtd. 9ThOctober, 2017)

3.   Appropriate Authority, Jamkhed                  ..  RESPONDENTS.
     (Appropriate Authority appointed                    (Respondent No.3-
     U/Sec.17(2) of P.C.P.N.D.T. Act, 1994)              Original complainant)
                                  ...
Mr. V. D. Sapkal h/f. Mr. S.G. Chapalgaonkar, Advocate for petitioner.
         Mr. A.A. Jagatkar, APP for respondent Nos. 1 and 2.
                      Respondent No. 3 served.
                                  ...
                            CORAM : PRAKASH D. NAIK, J.
                                    Reserved on     : 30th October, 2017
                                    Pronounced on : 27th November, 2017. 




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                                       ..2..                                     CrWP-354-17


JUDGMENT

The petitioner has approached this Court by invoking the

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India challenging the order passed by the Judicial

Magistrate First Class, Jamkhed, District Ahmednagar, dated 13th April,

2016, in RTC No. 182 of 2010. He is being impleaded as accused

No.1 in the complaint filed by the respondents for an offence under

section 23(1) read with Section 9(4) of the Pre-conception and Pre-

natal Diagnostic Techniques ( Prohibition of Sex Selection) Act, 1994

and Rules of 1996 (hereinafter referred to as P.C.P.N.D.T. Act and

Rules). The petitioner has also challenged the Order passed by the

Sessions Court in Criminal Revision Application No. 65 of 2016

rejecting the said application. The said order was passed on

8th February, 2017.

2. The petitioner is a Medical Practitioner. He is running a

Diagnostic Centre named and styled as "Arihant Diagnostic Centre" at

Barshi, District Solapur. The petitioner is a qualified Radiologist and

has registered his own Centre at Barshi under the provisions of Section

9(1) of P.C.P.N.D.T. Act and Rules. The petitioner is also rendering his

professional services as Radiologist at Shriram Hospital, Jamkhed.

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3. The prosecution case as stated in the complaint is as follows :

The complaint is submitted by Dr. B.G.Thawal, Medical

Superintendent, Rural Hospital, Jamkhed. He is appointed as Taluka

Appropriate Authority. While discharging his duties, the complainant

came to know that the petitioner - accused, Dr. Kalyan Kolhe and Mr.

Mahendra Kolhe attached to Shriram Hospital, Jamkhed are indulging

in illegal procedure of detection of sex in Foetus of some pregnant

ladies. On 25th August, 2010, the member of Central Advisory

Committee P.C.P.N.D.T. Act conducted sting operation at Shriram

Hospital, Jamkhed with the help of Smt. Prerna Bhilare, who was a

pregnant lady along with others. It was decided to send a decoy with

the help of Smt. Shaila Jadhav and Maya Pawar to ascertain the facts.

They approached the petitioner-accused in the said Hospital on 25 th

August, 2010. At about 11.30 a.m. Smt. Prerna Bhilare went to the

Hospital and intimated that she wants to know the sex of the foetus

and that the two persons accompanying her are her relatives. Dr.

Kalyan Kolhe conducted Sonography and informed her that the foetus

is male and demanded Rs. 3,500/-. He did not issue any receipt

towards the fees received by him. He also gave prescription of

medicines to pregnant woman Smt. Prerna Bhilare. Smt. Shaila

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Jadhav reported the said incident to Tahsildar, Jamkhed on the same

day. The Tahsildar and the Medical Officers then visited Shriram

Hospital on the same day between 3.30 a.m. to 4.00 p.m. and

conducted inspection. The report of inspection was prepared by them.

The statements of Smt. Prerna Bhilare, Shaila Jadhav and Maya Pawar

were recorded. The Sonography Machine, Register and Registration

Certificate were seized under the search panchanama on the same day.

It was noted that the petitioner-accused were conducting sex

determination of foetus of pregnant women, the copy of P.C.P.N.D.T.

Act was not available, F-Form was not filled, on blank page of Form-F,

there was signature of the petitioner-accused and unauthorized,

unqualified person was conducting Sonography. The complaint was

filed before the Court of learned Judicial Magistrate First Class,

Jamkhed, District Ahmednagar on 20th September, 2010.

4. The learned Magistrate perused the complaint and the

documents filed on record. Vide order dated 23 rd September, 2010,

the Court issued process against accused Nos. 1 to 3 under Sections 23,

25 and 26 of P.C.P.N.D.T. Act.

5. The petitioner preferred Revision Application No. 194 of

2010 before the Court of Sessions challenging the order of

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issuing process. The Sessions Court vide order dated 14 th August, 2013

rejected the said Revision Application. The petitioner then preferred

Criminal Application No. 4678 of 2013 before this Court challenging

the aforesaid orders. The said application was withdrawn with liberty

to avail alternate remedy under the law. Vide order dated 25 th

September, 2014, the petitioner was allowed to withdraw the aforesaid

application with liberty to move the concerned Court to avail the

remedy, that may be available under the law.

6. The petitioner-accused had also preferred Criminal Writ

Petition No. 1418 of 2014 before this Court challenging the

proceedings before the Trial Court. Since by order dated 25 th

September, 2014 the application preferred by the petitioner was

allowed to be withdrawn with liberty to avail all the alternate remedy

available in law, the said petition was disposed of vide order dated 23 rd

January, 2015.

7. In pursuance to that, the Trial Court proceeded to record the

evidence before charge in the said proceedings. The prosecution has

examined complainant Dr. Thawal as witness No. 1, who was also

cross-examined by the defence advocate. The prosecution also

examined P. W. No. 2 Smt. Prerna Bhilare, P.W. No.3 Shri Vasant

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Ahire and P.W. 4 Shri Gahininath Zagade, who were cross-examined

by the advocate for the accused.

8. After the evidence of witnesses was recorded before framing

of charge, the Trial Court proceeded to pass order dated 13 th April,

2016. In the said order, it was observed that, from the evidence it

appears that there is enough material to proceed further against

accused persons. There is convincing material to hold trial against the

accused. Even though the accused have raised certain defences, they

are going to get enough opportunity to raise the defences during the

hearing of the case. The Court, therefore, proceeded to pass an order

that the charge can be framed against accused Nos. 1 to 3 under

P.C.P.N.D.T. Act. Thereafter, vide order dated 18th April, 2016, the

learned Judicial Magistrate, First Class, Jamkhed, District Ahmednagar

framed the charge against accused. The charge was framed against the

petitioner - accused under the provisions of Section 29 read with Rule

9(4) and Section 23(1) of the P.C.P.N.D.T. Act.

9. The order passed by the Trial Court framing charge was

challenged by the petitioner by preferring Revision Application No. 65

of 2016. The Sessions Court vide order dated 17 th October, 2017

dismissed the Criminal Revision Application No. 65 of 2016 and

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directed the accused to cooperate for expeditious disposal of the

criminal trial. The said order was passed on 8th February, 2017. Being

aggrieved by the aforesaid orders, the petitioner has approached this

Court and has prayed for quashing of the said orders as well as the

proceedings initiated against him.

10. The learned advocate appearing for the petitioner submitted

that the petitioner has been falsely implicated in this case, he is not

concerned with the incident dated 25-08-2010. There is no evidence

to prosecute the petitioner with the charges alleged by the prosecution.

The statements of witnesses do not attribute any role to the petitioner.

There is no violation of the provisions of P.C.P.N.D.T. Act and Rules at

the instance of the petitioner. The evidence before charge recorded by

the Court does not establish any case against the petitioner. It is

further submitted that the Courts below have committed error while

proceeding to frame charge against the petitioner when there is no

evidence to bring home any charge against him. It is submitted that

the contents of panchanama below Exh. 118 dated 25-08-2010 show

that the record was seized at the centre alongwith Sonography

Machine. The panchanama does not show that any blank 'F' Form was

found with the signature of the petitioner. The list of documents

annexed to the complaint also does not include 'F' Form. It is

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submitted that P.W. 1 and P.W. 4 have admitted during cross-

examination that there is no mention of seizure of any blank 'F' Form

in the panchanama. It is further stated that no seal was put to the

seized articles except Sonography Machine. Signature of panchas were

not taken on the seized articles like register of 'F' Form. Therefore,

there is nothing on record to show that the blank signed 'F' Form was

seized at the Sonography Centre on 25-08-2010. It is further

submitted that the complaint does not mention that during the

inspection, authorities found any blank 'F' Form signed by the

petitioner and that the same is seized by them. No particulars of such

Form are mentioned in the complaint. It is further submitted that the

evidence on record do not establish any offence against the petitioner

even to frame charge. No role is attributed to the petitioner during the

operation conducted by the authorities. The presence of the petitioner

is also not shown at the time of raid. It is further submitted that, the

Sonography Machine Room was found locked as stated in the

panchanama regarding seizure of Sonography Machine. The Dean

broke the lock and removed the seal after entering in the Sonography

Room at the time of seizure panchnama. It is, therefore, submitted

that the petitioner has followed the procedure meticulously to avoid

misuse of machine in his absence. The show-cause notice dated 1st

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September, 2010 does not refer to the record which was allegedly

seized from the centre. It is submitted that the entire case of the

prosecution against the petitioner is based on the alleged recovery of

blank 'F' Form. It is submitted that there is nothing on record to show

that 'F' Form was recovered at the Sonography Centre on 25-08-2010.

The said document appears to have been subsequently inserted and the

evidence is created against the petitioner. It is submitted that on

account of framing of charge drastic action can be initiated against the

petitioner vide under Section 23(2) of P.C.P.N.D.T. Act, and therefore,

since there is no evidence to support the charge, the petitioner ought

to have been discharged by the Courts below.

11. The learned counsel relied upon the decisions of this Court in

the case of Dr. Ranjeet Ghatge Vs. The State of Maharashtra and

another delivered in Criminal Writ Petition No. 4194 of 2014 and

in the case of Dr. Dipak Jagtap Vs. The State of Maharashtra and

others in Criminal Writ Petition No. 22 of 2014 as well as two

decisions of the Supreme Court in the case of State of Karnataka Vs.

Muniswami and others, AIR 1977 Supreme Court 1489 and Satish

Mehra Vs. State of N.C.T., AIR 2013(3) 506. It is submitted that

there is no evidence to frame charge against the petitioner and

therefore, the proceedings against the petitioner are required to be

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quashed and set aside.

12. Learned A.P.P. submitted that on the basis of evidence before

charge recorded by the Trial Court and the documentary evidence on

record, case of framing charge is made out against the petitioner. The

orders passed by the Courts below are not required to be interfered.

Prima-facie case is made out against the petitioner to frame charge.

The grounds raised by the petitioner cannot be appreciated at this

stage and it would be opened to the petitioner-accused to raise the

defences at the time of trial. Learned A.P.P. also filed affidavit

opposing grant of relief to the petitioner.

13. Perused the evidence before charge recorded by the Trial

Court. I have also gone through the documents on record as well as

the orders passed by Courts below. The petitioner's case that he has

been falsely implicated and that the evidence is fabricated against him

cannot be considered at this stage. Reading the evidence of the

witnesses, it will have to be held that prima facie case is made out for

framing charge and the petitioner is not entitled to be discharged. The

evidence on record indicates the involvement of the petitioner which is

sufficient to frame charge and prosecute him for the offence for which

is he charged. The co-accused Dr. Kalyan Kolhe who is the owner of

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Shriram Hospital, Jamkhed, Taluka Jamkhed, District Ahmednagar and

having the Sonography Cente registered under the said Act approached

the petitioner for giving consent to work as Sonologist/Rediologist at

the centre. The petitioner gave his declaration/undertaking showing

his consent to work as Radiologist at the said Hospital on second

Sunday of every month from 2.00 p.m. to 6.00 p.m. It is the case of

the prosecution that on 25-08-2010 the officers visited Shriram

Hospital. They collected several documents. According to the

prosecution, the Officers found one blank Form signed by the

petitioner as Radiologist. The petitioner is rendering professional or

technical services to accused No. 2 and 3. The show-cause notice

dated 1st September, 2010 was issued to the petitioner. The

explanation tendered by him was not satisfactory. The permission of

handling the Sonography Machine at Shriram Hospital was suspended.

The evidence of P.W. 1 Dr. Baban Thawal, P.W. 3 Mr. Vasant Ahire,

P.W. 4 Dr. Gahininath Zagade refers to the seizure of blank Form 'F'

allegedly signed by petitioner. Therefore, prima-facie there is evidence

to show involvement of the petitioner.

14. The prosecution has examined P.W. 1 Prerna Bhilare, P.W. 2

Vasant Ahire, P.W. 3 Tahsildar and P.W. 4 Shri Zagade. They were

cross-examined by the defence. The Trial Court therefore, observed

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that on the basis of evidence adduced by the complainant, it has to be

held that there is sufficient material to proceed against the accused.

The Trial Court thereafter framed the charge vide Exh. 128. It is the

case of the complainant that accused Nos. 2 and 3 did not maintain the

record and accused No. 1 has helped them by keeping blank Form 'F'

with his signature in the dispensary. The complainant has stated that

accused No. 1 has helped the other accused. The Sessions Court had

observed that accused No. 1 by keeping blank Form with his signature

facilitated the other accused to perform Sonography. There is evidence

that accused Nos. 2 and 3 conducted Sonography. There is no

explanation as to why the blank Form was found at the Centre. It was

observed that there is enough evidence, that accused Nos. 2 and 3 in

fact conducted Sonography. There is no explanation why blank form

signed by accused No. 1 was found in the premises. The deficiencies

found in evidence are in the nature of defences that can be considered

during course of Trial. The Sessions Court, however, reframed the

charge. Whether the 'F' Form was inserted subsequently to implicate

petitioner accused would be considered by Trial Court. The probable

defenses cannot be considered at this stage. I do not find any reason

to interfere in orders passed by the Court. The Revisional Court

therefore, observed that primarily accused Nos. 2 and 3 have

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committed an offence in connivance with accused No.1. The Sessions

Court, however, substituted the charge as per order dated

8th February, 2017.

15. In the case of Dr. Ranjeet Ghatge, this Court has observed

that the details in Form 'F' are to be filled in by the staff members of

the clinic. The Doctor conducting ultrasonography of a pregnant

woman will keep complete record of the ultrasonography done by him

and not the details of the Form 'F'. Harmonious reading of proviso to

Sub-section 3 of Section 4 of the Act read with Rule 9(4) of the Rules

leads one to the conclusion that the clerical work is to be done by the

staff members. In the other decision, in the case of Dr. Jagtap, it was

observed by Court that the Sonography Centre was conducted by

another Doctor and the petitioner therein was visiting Doctor. He is

not having any control over the activities of the Centre and therefore,

he cannot be charged for not maintaining Form 'F'. The said decisions

are based on the factual aspects in the said proceedings. In the present

complaint, the petitioner is attributed the role of signing blank 'F' Form

to facilitate the other accused in commission of crime. The infirmities

pointed out by learned Advocate for petitioner can be considered in the

Trial. In the case of State of Karnataka Vs. Muniswamy, the Supreme

Court has observed that, accused can be discharged if there are no

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sufficient grounds for proceeding against accused. Applying the

principle laid down therein, the petitioner cannot be discharged. The

Trial Court would look into all defenses of the petitioner. Since, the

evidence before charge is already recorded, it is expected that, the

Trial Court would decide the trial expeditiously.

16. Hence, I pass the following order :

O R D E R

1. Criminal Writ Petition No. 354 of 2017 stands dismissed.

2. The Trial Court shall not be influenced by any

observations made in this order.

( Prakash D. Naik, J.)

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