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CR.MA/4406/2008 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4406 of 2008
WITH
CRIMINAL
MISC. APPLICATION NO.4410 OF 2008
AND
CRIMINAL
MISC.APPLICATION NO.4414 OF 2008
==========================================
HITESH
D. SHAH - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
MAHENDRA K PATEL for Applicant(s) : 1,
PUBLIC
PROSECUTOR for Respondent(s) : 1,
None for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 19/05/2008
ORAL
ORDER
By
these applications under section 482 of the Code of Criminal
Procedure, 1973 (?Sthe Code??) the applicants seek quashment of
the complaints lodged against them in the Court of the Metropolitan
Magistrate, Ahmedabad for the offences punishable under sections
4(3), 5 (1) of the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 (?Sthe PNDT
Act??) as well as Rules 9(4), 10(1A), 17(1) and 17(2) of the
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)
Rules, 1996 (?Sthe PNDT Rules??).
The
main grounds for challenging the complaint are set out in paragraph
2 of the application. One of the grounds is that the respondent No.2
herein is not an ?Sappropriate authority?? as envisaged under
section 17(2) of the Act and that therefore the complaint made by
him is not maintainable. In support of the said contention reliance
has been placed upon a decision of this Court in the case of Dr.
Manish Dave v. State of Gujarat and Another and other
cognate matters, (2008 (1) GLR 239) wherein on similar facts, for
the reasons stated in the said judgement and order, it had been held
that the complaints were bad in law. Similar contention was raised
before this Court in the case of Jagruti R. Sanghvi v. State
of Gujarat (Criminal
Miscellaneous Application No.4996 of 2008),
wherein this Court had for the reasons stated in its order
dated 7.2.2007 rendered in Criminal Miscellaneous Application
No.7328 of 2006 and allied matters, expressed disagreement with the
view taken by the learned Single Judge in the case of Dr.Manish
Dave (supra) and referred the following question to the
larger bench for its consideration and opinion:
Whether
under the provisions of section 28 of the Pre-conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 a Court can take cognizance of an offence under the Act on a
compliant made by any officer authorised in this behalf by the
Appropriate Authority?
The
other grounds stated in the application are that there is no
specific allegation in the entire complaint that the applicants have
conducted test for determining the sex of the foetus or that the
applicants had communicated the sex of the foetus to any one. That
the only allegation against the applicant is that there is
deficiency and inaccuracy found in Form ??F?” as there are some
blanks in the same. That as far as non-filling up of certain columns
is concerned the applicants are not required to note the same as the
applicants have nothing to do with such particulars in view of the
fact that ultimately the report which is indicated in the sonography
test is just to be handed over to the patient concerned. Reliance is
placed upon the decision of this Court in the case of Dr.
Manish Dave (supra) wherein while construing the provisions
of the proviso to sub-section (3) of section 4 of the PNDT Act, it
has been held that ?Sthe language of the proviso is to the effect
that ?Sany deficiency or inaccuracy found therein shall amount to
contravention of the provisions of section 5 or 6 unless contrary is
proved by the person conducting such ultra sonography??. The phrase
?Sunless contrary is proved by the person conducting such ultra
sonography?? connotes that if there is any allegation, the person
conducting can prove otherwise. In the present case, there is no
allegation by the respondent authority that the provisions of
section 5 and 6 of the Act are attracted and hence there is no
question of proving otherwise.?? Interpreting the provisions of
section 5 and 6 of the PNDT Act it has been held as follows:
?S[14].
A reading of the aforesaid provisions would show that no person
should be communicated the sex of foetus, the test should not be
conducted for the purpose of determining the sex of a foetus nor can
there be a test for selection of sex before conception. If the test
is is done for the aforesaid purpose there is a contravention of the
provisions of the Act.
[15].
From a bare perusal of the complaints it is apparent that it is not
the case of the authority that provisions of Secs.5 or 6 are
applicable inasmuch as the authority has not been able to show or
even alleged that (i) any pregnant woman or her relative or any other
person has been communicated the sex of foetus by the petitioners or
(ii) at any place and by any person, including the person conducting
ultrasonography, there has been either sex determination or sex
selection. In absence of such specific allegations in the complaint
it cannot be said that provisions of Secs.5 and 6 of the Act would be
attracted.
[16].
Reading the proviso to Sec.(3) it is to be presumed that the
deficiency or inaccuracy in the record would amount to contraventions
of the provisions of Sec.5 or 6 of the Act. As a natural consequence,
in view of such deficiency or inaccuracy, there should be allegation
of contention of provisions of Secs.5 and 6 of the said Act. In the
present case there are no specific allegations in the complaint
pertaining to the provisions of Secs.5 and 6. Apart from that the
language of Secs.5 and 6 is prohibitory in nature, and therefore, the
burden of proof will be on the authority to prove that there was
contravention and thereupon to rely on the provisions of Statutory
Form-F for filing criminal complaint.
[17].
In the present case, without alleging the contravention to provisions
of Secs.5 and 6, the complaint has been filed merely on the alleged
deficiency or inaccuracy, it should follow contravention of
provisions of Secs.5 and 6 Such is not the case in the complaints in
question.
[18].
As far as Sec.4(3) is concerned, it is the case of the petitioners
that the register is maintained with all the columns which fall
within the four corners of the duties and functions of the
petitioners. Apart from that no opportunity is afforded to the
petitioners to prove contrary and put up their case. Further, such
deficiency or inaccuracy, at least so far as the present proceedings
are concerned, is merely a procedural lapse, which do not in any
manner contravene the provisions of Secs.5 and 6 of the Act.
[19].
In view of the above, when it is not established that there is
contravention of the provisions of Sec.5 or 6, the contention
regarding any inaccuracy or deficiency in in Form-F will not be
applicable, and, therefore, the complaints themselves are not
maintainable. I am, therefore, of the view that the complaints do not
prima facie establish any alleged offence against the petitioners.??
For
the reasons that follow, this Court is not in agreement with the
view taken by a co-ordinate bench in the aforesaid decision:
The
PNDT Act is an Act to provide for 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 sex-linked disorders and for the
prevention of their misuse for sex determination leading to female
foeticide and for matters connected therewith or incidental thereto.
Chapter
III of the PNDT Act, which provides for ?SRegulation of Pre-Natal
Diagnostic Techniques?? consists of three sections viz. sections 4,
5 and 6. Section 4 makes provision for regulation of pre-natal
diagnostic techniques. Section 5 makes provision for written consent
of pregnant woman and prohibition of communicating the sex of
foetus. Section 6 prohibits the determination of sex. Sub-section
(3) of section 4 which is relevant for the purpose of the present
applications reads as under:
?S4.
Regulation of pre-natal diagnostic techniques.- On an from the
commencement of this Act.-
(3)
no pre-natal diagnostic techniques shall be used or conducted unless
the person qualified to do so is satisfied for reasons to be recorded
in writing that any of the following conditions are fulfilled, namely
:-
age
of the pregnant woman is above thirty-five years;
the
pregnant woman has undergone two or more spontaneous abortions or
foetal loss;
the
pregnant woman has been exposed to potentially teratogenic agents
such as drugs, radiation, infection or chemicals;
the
pregnant woman or her spouse has a family history of mental
retardation or physical deformities such as, spasticity or any other
genetic disease;
any
other condition as may be specified by the Board
Provided
that the person conducting ultrasonography on a pregnant woman shall
keep complete record thereof in the clinic in such manner, as may be
prescribed, and any deficiency or inaccuracy found therein shall
amount to contravention of the provisions of section 5 or 6 unless
contrary is proved by the person conducting such ultrasonography.??
The
interpretation of the proviso to sub-section (3) of section 4 of the
PNDT Act is the main issue involved in the present case.
A
plain reading of the proviso to sub-section (3) of section 4 shows
that the same imposes an obligation on the person conducting
ultrasonography on a pregnant woman to keep a complete record
thereof in the clinic in such manner, as may be prescribed.
The
manner in which such record is to be kept is prescribed by the PNDT
Rules. Sub-rule (4) of Rule 9 of the PNDT Rules provides that the
record to be maintained by every 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.
Rule
10(1A) of the PNDT Rules lays down that ?SAny 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 any body. The pregnant woman shall before
undergoing ultrasonography/image scanning declare that she does not
want to know the sex of her foetus.
In
view of the aforesaid provisions, the person conducting
ultrasonography on a pregnant woman is required to keep a complete
record thereof in the clinic in such manner, as prescribed under the
Rules. Hence, the concerned person is required to fill up Form F
which is the ?SForm for maintenance of record in respect of
pregnant woman by genetic clinic/ultrasound clinic/imaging centre??.
Under
the proviso to sub-section (3) of section 4 any deficiency or
inaccuracy found in maintaining the record as prescribed shall
amount to contravention of the provisions of section 5 or 6 unless
contrary is proved by the person conducting such ultrasonography.
Hence, there is a presumption under the statute by virtue of which
the moment any inaccuracy or deficiency is found in the record
maintained by the clinic, the same would ipso facto amount to
contravention of the provisions of section 5 and 6 of the PNDT Act,
subject to a caveat that such inaccuracy or deficiency shall not
amount to contravention of the provisions of section 5 and 6 if the
person conducting the ultrasonography proves to the contrary.
Therefore, once an inaccuracy or deficiency is found, the burden
shifts upon the person conducting the ultrasonography to prove to
the contrary, failing which the deficiency or inaccuracy in
maintaining the record as prescribed shall be presumed to be a
contravention of section 5 or 6 of the Act.
Looking
to the complaints in question, it is evident that the persons
conducting the ultrasonography have not properly filled up Form-F as
prescribed under the PNDT Rules; hence, there is clearly a
deficiency in maintaining the record, which would amount to
contravention of sections 5 or 6 of the Act. In view of the
provisions of sub-section (3) of Section 4 of the PNDT Act, the
deficiency or inaccuracy in maintaining the record would ipso facto
amount to contravention of section 5 or 6 and no other allegations
regarding the provisions of section 5 or 6 being attracted, are
necessary. Therefore, the authority is not required to prove
contravention of the provisions of section 5 or 6. But once any
inaccuracy or deficiency is found in maintaining the record, there
is a presumption against the person conducting the ultrasonography
that there is a contravention of the provisions of section 5 ot 6 of
the Act, which has to be rebutted by cogent evidence. Hence, the
onus lies upon the said person and not on the authority.
The
provisions of sub-section (3) of Section 4 of the PNDT Act mandate
that the person conducting ultrasonography on a pregnant woman shall
keep record thereof in the clinic in such manner as may be
prescribed. The statute provides that any deficiency or inaccuracy
found in maintaining such record shall amount to contravention of
section 5 or 6 of the Act. Hence, when the non-maintenance of such
records as prescribed, entails such serious implications, it cannot
be said that any inaccuracy or deficiency in filing Form-F as
required under the statutory provisions is merely a procedural lapse
The
words ?Sunless the contrary is proved?? have come up for
consideration before the Supreme Court in several cases in the
context of the provisions of section 4(1) of the Prevention of
Corruption Act, 1947. In the case of C.S.D. Swami v. State,
AIR 1960 SC 7, the Supreme Court while construing the
provisions of section 5(3) (before amendment by Act 40 of 1964) of
the Prevention of Corruption Act, has held as follows:
?SIn
this case, no acceptable evidence, beyond the bare statements of the
accused, has been adduced to show that the contrary of what has been
proved by the prosecution, has been established, because the
requirement of the section is that the accused person shall be
presumed to be guilty of criminal misconduct in the discharge of his
official duties “unless the contrary is proved”. The words
of the statute are peremptory, and the burden must lie all the time
on the accused to prove the contrary. After the conditions laid down
in the earlier part of sub-section (3) of S. 5 of the Act, have been
fulfilled by evidence to the satisfaction of the court, as discussed
above, the court has got to raise the presumption that the accused
person is guilty of criminal misconduct in the discharge of his
official duties, and this presumption continues to hold the field
unless the contrary is proved, that is to say, unless the court is
satisfied that the statutory presumption has been rebutted by cogent
evidence.??
In
the case of Dhanvantrai Balwantrai Desai v. State of
Maharashtra, AIR 1964 SC 575 the Supreme Court while
interpreting the provisions of section 4(1) of the Prevention of
Corruption Act, 1947 has held as follows:
?SIt
is well to bear in mind that whereas under S. 114 of the Evidence Act
it is open to the Court to draw or not to draw a presumption as to
the existence of one fact from the proof of another fact and it is
not obligatory upon the court to draw such presumption, under
sub-sec. (1) of S. 4, however, if a certain fact is proved, that is,
where any gratification (other than legal gratification) or any
valuable thing is proved to have been received by an accused person
the court is required to draw a presumption that the person received
that thing as a motive of reward such as is mentioned in S. 161, I.
P. C. Therefore, the Court has no choice in the matter, once it is
established that the accused person had received a sum of money which
was not due to him as a legal remuneration. Of course, it is open to
that person to show that though that money was not due to him as
legal remuneration it was legally due to him in some other manner or
that he had received it under a transaction or an arrangement which
was lawful. The burden resting on the accused person in such a case
would not be as light as it is where a presumption is raised under S.
114 of the Evidence Act and cannot be held to be discharged merely by
reason of the fact that the explanation offered by the accused is
reasonable and probable. It must further be shown that the
explanation is a true one. The words ‘unless the contrary is proved’
which occur in this provision make it clear that the presumption has
to be rebutted by ‘proof’ and not by a bare explanation which is
merely plausible. A fact is said to be proved when its existence is
directly established or when upon the material before it the Court
finds its existence to be so probable that a reasonable man would act
on the supposition that it exists. Unless, therefore, the explanation
is supported by proof, the presumption created by the provision
cannot be said to be rebutted.??
In
the case of Mahesh Prasad Gupta v. State of Rajasthan,
(1974) 3 SCC 591, the Supreme Court while dealing with the
provisions of section 4(1) of the Prevention of Corruption Act, 1947
held as under:
?S7.
Under Section 4(1) of the Act, the burden of proving the contrary
must rest on the appellant. But the learned Counsel appearing on his
behalf urges that the presumption under Section 4(1) can be raised
only if the prosecution establishes in the first instance that the
amount was paid otherwise than as a legal remuneration. This
contention is contrary to the clear terms of section 4(1) and would
render illusory the presumption arising under the Section. To cast on
the prosecution the burden of proving that the amount was accepted by
the accused otherwise than by way of legal remuneration is to ask the
prosecution to prove that the amount was paid and accepted by way of
bribe. If this be the true nature of the burden resting on the
prosecution, no presumption at all need be raised because apart from
the presumption that prosecution would have to prove that the money
was accepted by the accused and that it was accepted as a bribe. It
is plain that if the prosecution proves the acceptance of the amount
by the accused and the amount does not represent legal remuneration
in any form or of any kind, the accused must establish that the
amount was not accepted by him as a motive or reward as is mentioned
in section 161, Penal Code. As held in V.D. Jhangan v. The State
of Uttar Pradesh, the accused can establish his case by
preponderance of probabilities, that is to say, he need not prove his
case beyond a reasonable doubt.??
In
the case of Dr. Manish Dave (supra), the view taken by
a Coordinate Bench of this Court is that ?SReading the proviso
to Sec (3) it is presumed that the deficiency or inaccuracy in the
record would amount to contraventions of the provisions of Section 5
and 6 of the Act. As a natural consequence, in view of such
deficiency or inaccuracy, there should be allegation of
contravention of provisions of Sections 5 and 6 of the said Act. In
the present case there are no specific allegations in the complaint
pertaining to the provisions of Sections 5 and 6. Apart from that
the language of Sections 5 and 6 is prohibitory in nature, and
therefore, the burden of proof will be on the authority to prove
that there was contravention and thereupon to rely on the provisions
of Statutory Form-F for filing criminal complaint.??
In
the opinion of this Court, if the aforesaid interpretation were to
be accepted, the same would render illusory the presumption arising
under the proviso to sub-section (3) of section 4 of the PNDT Act.
To cast on the prosecution the burden of proving that there was
contravention of the provisions of sections 5 and 6 of the PNDT Act
is to ask the prosecution to prove that the accused has communicated
to the pregnant woman concerned or her relatives or any other person
the sex of the foetus by words, signs, or in any other manner or
that the accused has conducted pre-natal diagnostic techniques
including ultrasonography, for the purpose of determining the sex of
the foetus. If this be the true nature of the burden resting on the
prosecution, no presumption at all need be raised. From the language
employed in the statute it is plain that the person conducting
ultrasonography on a pregnant woman is required to maintain complete
record thereof in the clinic in such manner as may be prescribed. If
the prosecution proves that there is any deficiency or inaccuracy
found therein, there would be a presumption that the provisions of
sections 5 or 6 of the PNDT Act have been contravened and it is for
the person conducting such ultrasonography to establish that there
is no contravention of the provisions of section 5 or 6 of the Act.
In
the light of the aforesaid discussion, the following questions are
referred to the Larger Bench for its consideration and opinion:
Whether
under the provisions of section 28 of the Pre-conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 a Court can take cognizance of an offence under the Act on a
compliant made by any officer authorised in this behalf by the
Appropriate Authority?
Whether
the provisions of the proviso to sub-section (3) of Section 4 of
the PNDT Act, require that the complaint should contain specific
allegations regarding the contravention of the provisions of
sections 5 or 6 of the Act?
Whether
the burden lies on the authority to prove that there was
contravention of the provisions of sections 5 or 6 of the PNDT Act?
Whether
any deficiency or inaccuracy in filing Form-F as required under the
statutory provisions is merely a procedural lapse?
The
Registry is directed to place this matter before the learned Chief
Justice for passing appropriate orders.
[HARSHA
DEVANI, J.]
parmar*
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