Patient Has to be Pregnant to undergo pre-natal diagnostic test
The following case summarises an Important relief in PCPNDT Act given to a doctor by Hon. Punjab & Haryana High Court, who was given 2 years conviction and Rs 5000 fine by a lower court. The court observed that the trial court had lost sight of several aspects, namely the fact it was not proved on the record that sonography was conducted for the purpose of determination of sex of the foetus. As a matter of fact the decoy was not even pregnant.
“If it was so then how could the test be conducted to determine the sex of the foetus.” observed the court
Facts in Short :
1. The Petitioner Doctor challenged the order of 2 years conviction and fine of Rs.5000/- for offenses under PCPNDT ACT, passed by Ld. Sub-Divisional Magistrate Mobile Court, Ferozepur and confirmed by Ld. Sessions Court , Nuh.
2. The Prosecution case was that on 17/09/2007, a team comprising of CMO, Ferozepur Zirka and a Drug Inspector was constituted by A.A., Mewat. The team on compliant, raided the hospital of the Dr. Sodhi and sent a decoy customer Smt. Omwati. She was given the currency notes with distinctive nos which were noted down. She deposited same money for her sonography. The moment she was handed over the sonography report, after the decided signal, team conducted raid. The accused-petitioner could not produce the registration certificate. The notified currency notes were also recovered.
3. The prosecution examined various witnesses including the decoy customer and also produced no, of documents to substantiate its claim. The Accused denied all the charges and pleaded not guilty.
4. After hearing of parties and Ld. Magistrate held the accused guilty of offenses under PCPNDT Act and observed that the Accused conducted sonography without any requisite permission and he shifted the sonography machines of genetic laboratory and genetic clinic for sex determination and this was the offense not only against the girl child, but also against humanity.
5. Thus the accused was convicted with 2 years imprisonment and fine of Rs.5000/- and the accused approached Hon. Punjab and Haryana High Court.
1. In the beginning of the reasoning, their Lordship observed that the Ld. Trial Court lost the sight of several aspects.
2. Most importantly, it was observed that as the Decoy patient was not pregnant, how could then the sonography was conducted for sex determination of the foetus and both the lower courts missed this fact.
Sec.6 prohibits pre and post conception sex determination. Thus the patient should be pregnant to undergo pre-natal diagnostic test. On the contrary the Decoy was not a pregnant. Moreover in her evidence in witness box, she admitted that on the advise of a civil surgeon, she went to Dr. Sodhi nursing home as she was having abdominal pains. She nowhere stated that she underwent sonography for sex determination
4. In her cross examination also she could not answer questions properly. She said that there was no written order of CMO directing her to go as decoy witness. Nor she could remember as to when the raid started and it got concluded.
5. As regards to shifting of machines, it was observed that the Petitioner Doctor got himself registered with AA and submitted necessary documents, fees and information to Civil Surgeon, Mewat, assuming Civil Surgeon as the AA.
6. Thus the impugned order was held to be suffering from illegalities and infirmities and thus was set aside and the Doctor was acquitted.
No doubt the menace of Female foeticide should be cured. The aims and object of PCPNDT Act also underlines the same principal. The culprit doctors have been put behind bars. But whether there is no responsibility on us as a society ? When we are completely going to come out from medieval concepts of “Chiraag ka diya” ?
IF MEN ARE PURE, LAWS ARE USELESS
IF MEN ARE CORRUPT, LAWS ARE BROKEN.
last but not the least, The Doctor was acquitted after 11 years of legal battle. Who is to be blamed for it ?
Thanks and Regards,
Adv. Rohit Erande
In the case of Dr. J.S. Sodhi V/s. State of Haryana,
CRR No.2475/2009, decided on 20/03/2018.
CORAM : His Lordship H.S. Madaan.
Judgment Link :