Bombay High Court
Dr Sushila S Latpate vs The State Of Maharashtra And Anr on 31 January, 2018
Bench: K.L. Wadane
WP 93 17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 93 OF 2017
Dr. Sushila S. Latpate, Age
43 years, Occ. Medical
Practitioner, R/o. Latpate ... Petitioner.
Hospital, Jalna Road,
Bhokardan, District Jalna
VERSUS.
1 The State of Maharashtra,
Through Police Prosecutor,
High Court of Bombay, Bench
at Aurangabad.
2 Dr. Patil D.M.,
Age Major, Occ. Medical
Superintendent, Rural
Hospital, Bhokardan, Tq.
Bhokardan, Dist. Jalna. ... Respondents.
...
Advocate for Petitioner : Mr. S.V. Mundhe.
APP for Respondents : Mr. A.P. Basarkar
CORAM : K. L. WADANE, J.
Reserved on : 29th January, 2018
Pronounced on : 31th January, 2018
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the
consent of the parties, petition is taken up for final
hearing.
2. Heard Mr. Mundhe, learned counsel for the
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petitioner and learned APP Mr. Basarkar for the
respondents.
3. Brief facts of the case are stated as follows;
4. Respondent No. 2 herein filed a complaint in the
Court of Judicial Magistrate First Class Bhokardan,
District Jalna, against the petitioner for the offence
punishable under section 23 of The Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection)Act, 1994 (hereinafter referred as 'the Act')
for contravention of Rule 9(4) and 17(2) of The Pre-
conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 (hereinafter
referred as 'the Rules').
5. It is alleged by the respondent No.2/
complainant that when he visited the hospital of the
petitioner at that time he found that no book of the
Act was kept in the Ultra Sonography Centre, 'F' form
were not filled, referral slip was not kept and other
record which is to be kept as per the law was not
found. After filing of the complaint the learned
Magistrate issued process against the petitioner by its
order dated 23.01.2012. The petitioner challenged this
order before the Sessions Court Jalna, by way of
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revision application under section 397 of the Code of
Criminal Procedure, which came to be rejected. Hence,
this petition.
6. Mr. Mundhe, learned counsel for the petitioner
submits that no opportunity was given to the petitioner
to explain the irregularities alleged to have committed
by the petitioner. Furthermore, from the contents of
the panchnama dated 05.07.2011 it is seen that all the
record is required under the provisions of the Act was
kept however the learned Revisional Court has relied
upon the report dated 06.07.2011. Mr. Mundhe, learned
counsel further submitted that the petitioner is a
registered owner of the Ultra Sonography Centre, but in
fact, the work of sonography was done by one Dr. H.S.
Kalamkar. Therefore, Dr. Kalamkar is supposed to fill
the form 'F' and to maintain other records.
7. As against this, learned APP Mr. Basarkar,
submitted that since the centre is registered in the
name of present petitioner, therefore, it is for the
petitioner to maintain all the records as required
under 'the Act' and 'the Rules'.
8. The respondent No. 2/complainant alleged that
the petitioner had not kept the copy of the book of
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'the Act' in contravention of Rule 17(2) of 'the
Rules'. As well as the petitioner had not filled the
form 'F' and referral chit were also not found on the
centre. Therefore, the petitioner has committed the
offence punishable under section 23 of the Act.
9. There is specific allegations against the
petitioner about the contravention of the Rules
particularly Rules 9(4) and 17(2) punishable under
section 23 of the Act. Furthermore, the respondent
No. 2 in his affidavit, in para No. 4 has contended
that he visited the Ultrasound Clinic of the petitioner
on 05.07.2011. He found that no book of the Act was
made available, 'F' form was not filled-in, no referral
slip was available. Thus, the petitioner being owner
of Ultrasound Clinic has violated the provisions of the
Act.
10. The provision of Rule 9 sub rule 4 reads as
follows :
"9. Maintenance and preservation of records-
[(1) Every genetic Counselling Centre, Genetic
Laboratory, [Genetic Clinic including a Mobile
Genetic Clinic], Ultrasound Clinic and Imaging
Centres shall maintain a register showing, in
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serial order, the names and addresses of the
men or women given genetic counselling,
subjected to pre-natal diagnostic procedures
or pre-natal diagnostic tests, the names of
their spouse or father and the date on which
they first reported for such counselling,
procedure or test.
"(4) : The record to be maintained by every
[Genetic Clinic including a Mobile Genetic
Clinic], in respect of each man or woman
subjected to any pre-natal diagnostic
procedure/technique/test,shall be as specified
in Form F.]"
11. Provision of Rule 17(2) reads as follows :
"17 Public Information - (1) Every [Genetic
Counselling Centre, Genetic Laboratory,
Genetic Clinic, Ultrasound Clinic and Imaging
Centres] shall prominently display on its
premises a notice in English and in the local
language or languages for the information of
the public, to the effect that disclosure of
the sex of the foetus is prohibited under
law.
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(2) At least one copy each of the Act and
these rules shall be available on the
premises of every [Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic and Imaging Centres] and
shall be made available to the clientele on
demand for perusal."
12. On perusal of the aforesaid provisions, it is
obligatory on the part of the centre holder to keep the
record as referred under Rules 9(4) and 17(2) of the
Rules in the center. In the present case, when the
respondent No. 2 visited the Ultrasound Clinic at that
time such record was not found on the Centre.
Therefore, prima-facie, there is sufficient record
against the applicant to proceed further in the matter.
13. Learned counsel for the petitioner relied upon
the observations of this Court recorded in Criminal
Writ Petition No. 4194/2014 & 4195/2014. On perusal of
the facts of the case cited, it appears that, it was
pertaining to the visiting Radiologist. Therefore, this
Court has observed that they cannot be prosecuted for
not maintaining particular record which is required to
be maintained by the Genetic Clinic Centre.
WP 93 17.odt
14. The present case is not regarding the visiting
of Radiologist. But in fact, admittedly, the petitioner
is a registered owner of the Ultra Sonography Centre.
Therefore, it is obligatory on her part to maintain all
the records as required under the Act and the Rules.
15. In view of the above, there is no substance in
the Criminal Writ Petition, therefore, it is liable to
be dismissed and accordingly, it is dismissed.
16. Rule is discharged. No costs.
(K. L. WADANE, J.)
mkd
