(Ranjan Gogoi, C.J. and Sanjiv Khanna, J.)
Dr. Radhakrishna and Another _______________________ Appellant(s);
v.
State of Maharashtra and Others ___________________ Respondent(s).
Criminal Appeal No(s). 427 of 2019 [Arising out of Special Leave Petition (Criminal) No. 6448/2015], decided on March 5, 2019
The Order of the court was delivered by
Order
1. We have heard the learned counsels for the parties.
2. Leave granted.
3. The challenge in this appeal is to an order of the High Court of Judicature of Bombay, bench at Aurangabad dated 9th May, 2014 refusing to quash and set aside the criminal proceedings against the accused appellants under Sections 23 and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as “the Act”).
4. We have considered the complaint dated 5th December, 2012 (registered as SCC No. 863 of 2012) filed by the respondent No. 2 and have heard the learned counsels for the parties. We have also considered the show cause notice dated 9th May, 2012 issued to the accused appellant(s) and reply thereto.
5. The allegations/lacunae on the basis of which the criminal proceedings have been initiated vide complaint dated 5th December, 2012 are as follows:
“i) Form “F” column no. 11 and 9 was not as per the provisions of the PCPNDT Act.
ii) Old Aloka Sonography portable machine was kept in the store room. Said Aloka Sonography machine was not entered in the registration certificate.
iii) The time table of sinologist was not mentioned in the registration certificate.
iv) The signatures of Dr. Zalwar performing sonography has different on the declaration forms.
v) The reason for the abortion was not properly recorded in the register maintained for it.”
6. Insofar as Form ‘F’ is concerned, it is not even the case of the prosecution that Form ‘F’ was not maintained and filled up. It is also accepted and not denied that the Column Nos. 9 and 11 of Form ‘F’ had correctly mentioned and recorded the medical procedure performed i.e. ultrasound. The allegation is that the words “Invasive” and “Non-Invasive” were not printed on the form though it is accepted that the ultrasound which is an invasive procedure and Amniocentesis; Chorionic villi aspiration; Cordocentesis and any other specified procedure which fall under ‘non-invasive’ category were duly printed and mentioned. The procedure undertaken in all cases was ultrasound, which was correctly recorded. The aforesaid facts are not disputed and challenged by the respondent authorities. In reply to the show cause notice, the petitioners had pointed out that they have taken the remedial steps to include the words ‘Noninvasive’ and ‘Invasive’. It is not the allegation of the respondent authorities that other columns in the Form were not properly filled up or there were other defects. No other defects in the record maintained have been pointed out. In the aforesaid admitted background, it may not be appropriate and proper to hold that the deficiency/lapse stated should mandate criminal prosecution and trial.
7. Similarly, with regard to the allegation/lacuna Nos. (ii), (iii) and (iv), it is accepted that the old sonographic machine was not in the use. It was not in working condition. It is also accepted that the old machine was lying in the store room. The fact that the old machine had been discarded, had been informed and intimated to the authorities earlier on 21st July, 2009. Regarding allegation No. (iii), it is stated that there is no provision under the Act and rules framed thereunder requiring time table of the Sonologist. Even otherwise, by letter dated 19th May, 2006 time table of the Sonologist had been informed to the Civil Surgeon. Referring to the allegation (iv) it is highlighted that the assertion that signature of Dr. Zalwar was different from the original signature is vague without specific reference to any particular Form etc. Dr. Zalwar has not denied his signatures. Regarding allegation/lacuna No. (v), it is stated that they do not relate to the provisions of the Act under which the prosecution has been initiated. Further, the complaint does not state and specify the period for which the register etc. were not maintained. The aforesaid position is not under debate and challenged by the respondent-authorities.
8. Taking into account overall view of the matter we are of the opinion that the prosecution in the instant case is futile and abortive and, therefore, ought not to be permitted to continue. We accordingly allow this appeal; set aside the order of the High Court; and quash and set aside the impugned criminal proceedings against the accused appellants registered and numbered as S.C.C. No. 863 of 2012, titled as “Dr. Ramsingh Gundaji Jadhav v. Dr. Radhakrishna Namdeo Zalwar” pending on the file of learned JMFC, Sillod, District Aurangabad. Criminal appeal is disposed of.
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.) NO(S). 6448/2015
Dr. Radhakrishna & Anr ___________________________ Petitioner(s)
v.
The State of Maharashtra & Ors ___________________ Respondent(s)
Date : 05-03-2019 This petition was called on for hearing today.
(Before Ranjan Gogoi, C.J. and Sanjiv Khanna, J.)
For Petitioner(s) Mr. Dilip Annasaheb Taur, AOR
For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar, AOR
Mr. Anoop Kandari, Adv.
UPON hearing the counsel the Court made the following
ORDER
9. Leave granted.
10. The appeal is allowed; order of the High Court is set aside; and criminal proceedings against the accused appellants registered and numbered as S.C.C. No. 863 of 2012, titled as “Dr. Ramsingh Gundaji Jadhav v. Dr. Radhakrishna Namdeo Zalwar” pending on the file of learned JMFC, Sillod, District Aurangabad are quashed and set aside in terms of the signed order.
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