HC Expresses Concern over wrong arrest of Doctors under PCPNDT Act
Gujarat High Court
Ahmedabad: While considering the case of a visiting gynaecologist in a hospital, who was booked under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act), the Gujarat High Court recently expressed its concern over the fact that the police authorities many a time act "without application of mind" and end up wrongly arresting doctors under the Act.
The High Court Single-judge bench comprising Justice Sandeep Bhatt noted that even though sometimes the authorities may be right in taking action against the erring doctors, but many a times, their action proves their non-application of mind and genuine doctors suffer as a result.
"This Court fails to understand the manner and method of the officers / authority with regard to register the complaint under the Act / Rules. Many a time, the Authorities are very eager to act promptly and without application of mind and therefore, their prompt action results into vitiation of the whole proceedings. Sometime, they may be right in taking action against erring doctors, but many a time, their action proves their non-application of mind and the genuine doctors are the sufferers," noted the bench.
"We know that the remedial measures available in such cases are time-consuming and bring the career of an individual to a standstill. This Court hopes that wisdom may prevail to the appropriate authorities in future," it further observed.
These observations were made by the Court while considering a revision application challenging an order passed by a Sessions Court in Rajkot on April 8, 2019.
The matter concerned a Gynaecologist, who had been booked in 2014 for breaching several provisions of the PCPNDT Act. When the a trial court issued summons to the doctor and for the offences punishable under Sections 4(3), 5(1-b), 19(4) and 29 of the PCPNDT Act, and Rules 6(2), 9(1), 10 and 17(2) of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, the doctor had preferred a revision application before the Sessions Court in 2015.
However, the plea was rejected and the inquiry proceedings got culminated into Criminal Case before the trial Court. The doctor, consequently, preferred discharge application at the stage of framing of charge by an application before the trial court. This application was rejected.
Following this, a Criminal Revision Application was filed before the Sessions Court, Rajkot, which reversed the order passed by the trial court. Thereafter, the order of the Sessions Court was challenged before the HC bench.
It was argued by the prosecution that the discharged doctors had failed maintaining records and they had not taken consent signatures of the pregnant women subjected to ultrasound and even did not display the registration certificate at the diagnostic centre.
The counsel argued that the doctor was required to maintain the records under the PCPNDT Act, but the doctor did not fill up the Form 'F', which is required for performing the sonography, and committed breach of the Rules.
Meanwhile, the counsel for the State submitted that the during inspection, clerical irregularities were found and therefore complaint was lodged by the authority against the erring person.
The Court noted that there are three accused in the complaint including the visiting doctor and the petitioner filed the complaint after visiting the hospital. The bench also observed that the main allegations in the complaint were about the clerical things i.e. registers, forms, notice board, etc., which are maintained by the hospital but not in accordance with law/rules.
On bare perusal of the entire complaint, no serious allegation is made by the petitioner – Authority against respondent No.2, except not maintaining the record in proper manner, which is a clerical thing. The said clerical error is committed by the hospital staff and not by the doctor/s, more particularly not by the visiting doctor/s, noted the court adding that there is no role of the visiting doctor as the sole owner of the hospital was accused No. 1.
While considering the matter, the Court also referred to relevant provisions of the PCPNDT Act and noted that the object of the act is 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 sec-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide
"The effective implementation of the Act has painted a grim picture of the Act. The Act was enacted with an intent to prohibit prenatal diagnostic techniques for determination of the sex of the foetus leading to female foeticide. The preliminary object of this Act was to put a check on female foeticide. The Act is legislated in a manner that it should be a deterrent for those indulging in sex determination. The unfortunate decline in the male-female sex ratio has brought in stringent measures," noted the bench.
Referring to the allegations that the person performing the procedure was required to fill up Form 'F', the bench observed,
"Further, it was only under the new Act of 2014 that the person performing the procedure was required to be signed the Form ‘F’. As the offence alleged against the accused for breach of Rule 9(4) of the Rules is said to have been occurred before the amendment in the Act of 2014, respondent No.1 cannot be made liable for non-signing of Form ‘F’."
In respect to the visiting gynaecologist, the bench noted,
"Further, respondent No.1 being a visiting gynecologist and a registered medical practitioner, cannot be held liable for breach of Section 4(3) of the Act. Further, respondent No.1 can also not be liable for breach of Section 19(4) of the Act and Rule 6(2) of the Rules for not displaying of certificate of registration under the Act in the hospital. Further, to maintain register showing in serial order as prescribed in Rule 9(1) of the Rules and to keep copy of the Act and Rules in the hospital are the duty of the owner and staff of the concerned nursing clinic and not of the visiting gynecologist and therefore, respondent No.1 cannot be held liable for breach of Section 19(4) and 29 of the Act as well as Rules 6(2), 9(1), 9(4) and 17(2) of the Rules."
Referring to several rulings of various High Courts and the Supreme Court, the bench clarified that if there is no breach of the object of the Act, the accused cannot be held liable for the offences under the same.
"Time and again, the Co-ordinate Bench of this Court as well as the Hon’ble Apex Court has observed that if there is a no breach qua the object of the Act, the accused cannot be held liable for the offence under the Act," the bench noted.
Opining that there was no error in the Sessions Court's order, the bench mentioned in the order,
"Under the circumstances, this Court is of the opinion that, the learned appellate Court below has not committed any error in allowing the discharge application of respondent No.1, by rejecting the order passed by the learned trial Court. There is no need to interfere in the impugned order passed by the learned appellate Court below by this Court. Therefore, the present petition is required to be rejected by confirming the order passed by the learned appellate Court below by exercising the powers under Article 226/227 of the Constitution of India."
To read the order, click on the link below:
https://medicaldialogues.in/pdf_upload/gujarat-hc-pnpndt-215238.pdf
