,,
1. This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) to quash the order dated",,
10.04.2019 passed in Crl.R.P.No.35 of 2019 by the learned I Additional Metropolitan Sessions Judge at Hyderabad( for short, ‘the Revisional",,
Court’) wherein the order dated 27.02.2019 passed in Crl.M.P.No.47 of 2019 in C.C.No.1542 of 2018 by learned III Additional Chief,,
Metropolitan Magistrate, Hyderabad (for short, ‘trial Court’), were confirmed, and also to drop the proceedings against the petitioners in",,
C.C.No.1542 of 2018. The petitioners herein are A.1 and A.2 in the above said Calendar Case. The offences alleged against the petitioners herein are,,
under Rules 9 and 10 of the Pre-conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short ‘the",,
Rules’) and Section 18 and 23 of Pre-conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994( for short, ‘the",,
Act’).,,
2. Heard Sri T.Bala Mohan Reddy, learned counsel for the petitioners and learned Asst. Public Prosecutor for State and perused the record.",,
3. Despite service of notice, none appeared for 2nd respondent.",,
4. FACTS OF THE CASE:,,
i) The 2nd respondent herein/the District Medical and Health Officer, Hyderabad had visited 1st respondent Hospital on 24.07.2017 between 2.00",,
P.M., to 5.00P.M., along with doctor Rajeshwari, Medical Officer, Sri Ram Nagar, Hyderabad(L.W.2) and N.Satish Kumar(L.W.3). During the",,
Inspection, 2nd respondent has observed that A.2 is not maintaining proper records i.e. Form-F and PC & PNDT Register which is mandatory to",,
maintain properly as per the Rules and also A.2 giving the treatment for IUI for infertile patient without obtaining permission and license from 2nd,,
respondent herein. Accordingly, 2nd respondent along with his team of members seized the Form-F and PC and PNDT Register under the provisions",,
of the Rules and also seized ultra sound scan machine Make GE Model Voluson S6.Sl.No.164984SU7.,,
ii) A.2 with mala fide intention and without license giving treatment to the patients and also not maintaining proper records which are mandatory to,,
maintain under the Act. Therefore, the A.1 and A.2 have committed the above said offences.",,
iii) With the said allegations, 2nd respondent has filed a complaint under Section 28 of the Act read with Section 200 of the Cr.P.C. before the trial",,
Court.,,
5) A perusal of the record would reveal that 2nd respondent who inspected A.1’s hospital on 24.07.2017, issued notice on 24.07.2017 itself. The",,
petitioners herein have submitted their explanation on 31.07.2017. 2nd respondent has filed the present complaint on 16.10.2017 and the same was,,
taken on file as C.C.No.1542 of 2018.,,
6) The petitioners herein have filed a petition under Section 245 of the Cr.P.C. vide Crl.M.P.No.47 of 2019 in C.C.No.1542 of 2018 seeking to,,
discharge them in C.C.No.1542 of 2018 on the following grounds:-,,
i) 2nd respondent- District Appropriate Authority filed the complaint against them contrary to the provisions of the Act more particularly Section 17 of,,
the Act.,,
ii) The 2nd respondent is not competent authority to file complaint under the provisions of the Act.,,
iii) 2nd respondent has not conducted any enquiry as required under Section 17(4) of the Act.,,
iv) The contents of the charges lacks ingredients of the offences alleged against the petitioners herein.,,
v) 2nd respondent has filed the said complaint only statistical purpose, without following the procedure laid down under law and therefore, it is an",,
abuse of process of law.,,
vi) With the said contentions, the petitioners herein sought to discharge them from the said C.C.No.1542 of 2018.",,
7)) Vide order dated 27.02.2019, the trial Court dismissed the said petition holding that 2nd respondent is the appropriate authority, as per the",,
provisions of the Act, to file the present complaint. 2nd respondent has also followed the procedure laid down under the Act. There are serious",,
allegations against the petitioners herein. The petitioners are giving treatment for IUI (Intra Uterine Insemination) for infertile patients. The material,,
available on record is sufficient to frame charges against them. There are several triable issues. Therefore, the petitioners are not entitled for",,
discharge.,,
8) Feeling aggrieved by the said order, the petitioners herein have filed a revision vide Crl.R.P.No.35 of 2019, wherein the Revisional Court vide order",,
dated 10.04.2019, dismissed the said revision confirming the order passed by the trial Court. The Revisional Court gave a finding that there are several",,
triable issues and therefore, the Court below has rightly dismissed the discharge petition filed by the petitioners herein.",,
9) Feeling aggrieved by the said order of the Revisional Court, the petitioners herein have preferred the present Criminal Petition seeking to quash the",,
said order and to discharge the petitioners herein in C.C.No.1542 of 2018.,,
10) CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS:,,
i) 2nd respondent is not an Appropriate Authority in accordance with the provisions of the Act, more particularly Section 17 of the Act.",,
ii) 2nd respondent has not followed the procedure laid down under the said Act. It is mandatory on the part of 2nd respondent to conduct an enquiry,,
under Section 17(4) of the Act and in the present case, 2nd respondent has not conducted any such enquiry.",,
iii) The allegations leveled against the petitioners are false.,,
iv) The evidence produced by 2nd respondent is not sufficient to frame the charges against the petitioners herein for the offences under the provisions,,
of the Act.,,
v) He has also placed reliance on the order dated 06.05.2020 in Crl.P.Nos.239 and 266 of 2020 between Smt.Dr.Kiran Kumar and two others Vs.,,
State of Telangana, and also the judgments of the Madhya Pradesh High Court at Jabalpur in M.Cr.C.No.11773 of 2013 between Dr.Swaroop Charan",,
Sahu and another Vs.State of Madhya Pradesh, M.Cr.C.No.3067 of 2015 between Dr.Harshal Dafal Vs. Chief Medical and Health Officer, District",,
Bhopal, in M.Cr.C.No.9854 of 2015 between Dr.Krishna Kumar Choukse Vs. Chief Medical and Health Officer, District Bhopal, and",,
M.Cr.C.No.18265 of 2015 between Dr.Lal Kumar Kishnani Vs. Chief Medical and Health officer, Bhopal.",,
vi) both the trial Court as well as the Revisional Court did not consider the said contentions of the petitioners herein and dismissed the discharge,,
application filed by the petitioners and also revision petition erroneously.,,
vii) With the said submissions, learned counsel for the petitioners sought to quash the said orders and to discharge the petitioners herein in",,
C.C.Nop.1542 of 2018.,,
11) CONTENTIONS OF LEARNED PUBLIC PROSECUTOR:,,
i) There are serious allegations against the petitioners herein.,,
ii) There are specific allegations of non-maintenance of documents and 2nd respondent seized the 38 forms. The petitioners are conducting test,,
illegally disclosing the status of the fetus of the diagnosis which is in violation of the procedure laid down under the Act. Thus the petitioners herein,,
have committed the above said offences alleged against them. 2nd respondent is the competent authority in accordance with the provisions of the Act.,,
There are several triable issues and the petitioners herein, instead of facing trial, filed the present petition.",,
iii) With the said submissions, learned Public Prosecutor sought to dismiss the present petition.",,
12. The above said rival contentions would reveal that the petitioners herein filed the above said discharge petition on the following grounds:-,,
i) 2nd respondent is not a competent authority in terms of the provisions of the Act, more particularly Section 17 of the Act.",,
ii) 2nd respondent has not conducted an enquiry in terms of the section 17(4) of the Act.,,
iii) The contents of the complaint lacks the ingredients of the offences alleged against the petitioners herein.,,
ANALYSIS AND FINDINGS OF THE COURT:,,
13) In view of the said submissions, it is relevant to refer certain provisions of the Act and Rules.",,
i) Section 2(a) of the Act deals with the definition of ‘Appropriate Authority’ means the Appropriate Authority appointed under Section 17 of,,
the Act. Therefore, it is apt to extract section 17 of the Act:-",,
“Section 17: Appropriate Authority and Advisory Committee.â€",,
(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories",,
for the purposes of this Act.,,
(2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State",,
for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.,,
(3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be,â€"",,
(a) when appointed for the whole of the State or the Union territory, consisting of the following three members:â€"",,
(i) an officer of or above the rank of the Joint Director of Health and Family Welfareâ€"Chairperson;,,
(ii) an eminent woman representing women’s organization; and,,
(iii) an officer of Law Department of the State or the Union territory concerned: Provided that it shall be the duty of the State or the Union territory,,
concerned to constitute multi-member State or Union territory level Appropriate Authority within three months of the coming into force of the Pre-,,
natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002:",,
Provided further that any vacancy occurring therein shall be filled within three months of the occurrence;],,
(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the",,
case may be, may deem fit.",,
(4) the Appropriate Authority shall have the following functions, namely:â€"",,
(a) to grant, suspend or cancel registration of a Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic;",,
(b) to enforce standards prescribed for the Genetic Counseling Centre, Genetic Laboratory and Genetic Clinic;",,
(c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action;,,
(d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for",,
suspension or cancellation of registration;,,
(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also",,
to initiate independent investigations in such matter;,,
(f) to create public awareness against the practice of sex selection or pre-natal determination of sex;,,
(g) to supervise the implementation of the provisions of the Act and rules;,,
(h) to recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions;,,
(i) to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of,,
registration.],,
(5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to",,
aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its",,
Chairman.,,
(6) The Advisory Committee shall consist ofâ€",,
(a) three medical experts from amongst gynecologists, obstetricians, pediatricians and medical geneticists;",,
(b) one legal expert;,,
(c) one officer to represent the department dealing with information and publicity of the State Government or the Union Territory, as the case may be;",,
(d) three eminent social workers of whom not less than one shall be from amongst representatives of women’s organizations.,,
[(7) No person who has been associated with the use or promotion of pre-natal diagnostic techniques for determination of sex or sex selection shall be,,
appointed as a member of the Advisory Committee.],,
(8) The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for,,
registration or any complaint for suspension or cancellation of registration and to give advice thereon:,,
Provided that the period intervening between any two meetings shall not exceed the prescribed period.,,
(9) The terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such,,
Committee in the discharge of its functions shall be such as may be prescribed.â€,,
ii) It is also apt to refer Section 2(bc), 2(i), 2(j) and 2(k) and 2(o) of the Act which deals with fetus, pre-natal diagnostic procedures, pre-natal",,
diagnostic techniques, pre-natal diagnostic test and sex selection etc, which reads as follows:-",,
2(bc):- “foetus†means a human organism during the period of its development beginning on the fifty-seventh day following fertilization or creation,,
(excluding any time in which its development has been suspended) and ending at the birth;],,
2(i):- “pre-natal diagnostic procedures†means all gynecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking",,
or removing samples of amniotic fluid, chorionic villi, embryo, blood or any other tissue or fluid of a man, or of a woman before or after conception, for",,
being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or,,
after conception;],,
2(j):- “pre -natal diagnostic techniques†includes all pre-natal diagnostic procedures and pre-natal diagnostic tests;,,
“pre-natal diagnostic test†means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant",,
woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or,,
haemoglobinopathies or sex-linked diseases;],,
2(o):- “sex selection†includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring",,
or increasing the probability that an embryo will be of a particular sex;,,
iii) It is also apt to refer Section Sections 3, 3(A), 4, 5 and 6 of the Act which read as follows:-",,
Section 3:-Regulation of Genetic Counseling Centers, Genetic Laboratories and Genetic Clinics.â€"On and from the commencement of this Act,â€"",,
(1) no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in,",,
conducting activities relating to pre-natal diagnostic techniques;,,
[(2) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person,",,
whether on honorary basis or on payment who does not possess the qualifications as may be prescribed;],,
(3) no medical geneticist, gynecologist pediatrician registered medical practitioner or any other person shall conduct or cause to be conducted or aid in",,
conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.",,
Section 3A:- Prohibition of sex-selection.â€"No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to",,
be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo,",,
conceptus, fluid or gametes derived from either or both of them.]",,
Section 4:- Regulation of pre-natal diagnostic techniques.â€"On and from the commencement of this Act,â€"",,
(1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any,,
person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions,,
specified in clause (3);,,
(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:â€"",,
(i) chromosomal abnormalities;,,
(ii) genetic metabolic diseases;,,
(I),"The Collector & District Magistrate,","CHAIRPERSON/
CHAIRMAN
(II),The District Medical & Health Officer,"MEMBER-
SECRETARY CONVENER
(III),The District Judge,MEMBER
(IV),The Superintendent of Police,MEMBER
(V),"Eminent NGO to be nominated by the
Collector & District Magistrate",MEMBER
5. The authority shall carry out its functions as per the provision of the Act and Rules there under.,,
6. The Commissioner of Health and Family Welfare, Telangana, Hyderabad shall take necessary action in the matter.â€",,
vii) As per the said G.O., the above said authority shall carry out its provisions as per the provisions of the Act and Rules there under.",,
viii) As per Section 17(4)(e) of the Act, the appropriate authority has power to take appropriate legal action against the use of any sex selection",,
technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter;",,
ix) As per Section 17(4)(c) of the Act, the appropriate authority is having power to investigate complaints of breach of the provisions of this Act or the",,
rules made thereunder and take immediate action.,,
x) Section 17(A) of the Act deals with the powers of the Appropriate Authority which reads as follows:-,,
Section 17(A):- Appropriate Authorities.â€"The Appropriate Authority shall have the powers in respect of the following matters, namely:â€"",,
(a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder;,,
(b) production of any document or material object relating to clause (a);,,
(c) issuing search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination; and,,
(d) any other matter which may be prescribed.],,
xi) Therefore, as per G.O.Ms.No.2, dated 02.01.2015, 2nd respondent herein, the District Medical & Health Officer, Member Secretary Convener, is",,
having power to file a complaint under Section 28 of the Act, in the capacity of Appropriate Authority. Therefore, the contention of the learned",,
counsel for the petitioners that 2nd respondent is not an Appropriate Authority as per the provisions of the Act and 2nd respondent is not having power,,
or authority to file the said complaint under Section 28 of the Act, is not sustainable.",,
14) A perusal of the record would reveal that G.O.Ms.No.2, dated 02.01.2015, was not brought to the notice of the trial Court as well as Revisional",,
Court. But the fact remains that the Government of Telangana has issued the said G.O. in exercise of powers conferred under Section 17(2) of the,,
Act appointing the above said Committee including the District Medical and Health officer as a Member Secretary Convener who is having power to,,
lodge a complaint under section 28 of the Act.,,
15) The above said discussion would also reveal that as per Section17(4)(e) of the Act, the Appropriate Authority is having power to take appropriate",,
legal action against the use of any sex selection technique by any person at any place, suo motu, or brought to its notice and also to initiate independent",,
investigations in such matter. Thus, 2nd respondent is having power to file said application under Section 28 of the Act. 2nd respondent has visited 1st",,
petitioner/A.1 hospital on 24.07.2017 in between 2.00P.M. to 5.00P.M., along with Dr.Rajeshwari, Medical Officer, and N.Satish Kumar and during",,
the Inspection, they have pointed out certain lapses i.e. non-maintenance of certain records i.e. Form-F and PC & PNDT Register which is",,
mandatory under the provisions of the Act and also the Rules 9 and 10 of the Rules. They have also noticed that the petitioners herein are giving,,
treatment for IUI for infertile patient without obtaining permission and license from 2nd respondent. 2nd respondent along with his team of members,,
seized the Form-F and PC and PNDT Registers under the provisions of the Rules and also seized ultra sound scan machine Make GE Model Voluson,,
S6.Sl.No.164984SU7. In the complaint, it is also specifically mentioned that A.2 with mala fide intention, without license giving treatment to the",,
patients and also not maintaining the proper records which are mandatory to maintain under the Act. Thus, they have committed the above said",,
offences.,,
16) A perusal of the record would reveal that 2nd respondent has issued a notice dated 24.07.2017 to the petitioners herein asking them to submit their,,
explanation for not maintaining proper records and treating the patients without having necessary permission and license, for which the petitioners",,
herein have submitted their explanation on 31.07.2017. In the said explanation, the petitioners have admitted that they did not know about obtaining",,
separate registration for IUI facility under PC and PNDT Act. and as they have already registered for IUI facility under ALLOPATHIC,,
establishment from same authority. Now they have applied for IUI facility under PC and PNDT Act, at JJ Hospital. They have assured that they will",,
follow the said procedure strictly in future and they sought excuse. With regard to the other allegations i.e. not taking signatures of the patients on,,
declaration and incomplete form F and the same was happened due to oversight and negligence of the lower level staff. The petitioners had also,,
meeting with staff and sinologist started implementing procedures strictly. They have assured 2nd respondent that they will not repeat the same in,,
future.,,
17) As discussed supra, the petitioners have admitted the allegations levelled against them in the complaint. Prima facie, there are, serious allegations",,
against the petitioners herein and the same are triable issues. Therefore, the petitioners cannot contend that 2nd respondent has not followed the",,
procedure laid down under the Act and not conducted investigation as mandatory under section 17(4) of the Act, and the contents of the complaint",,
lack the ingredients of the offences alleged against them. The petitioners have to face trial and prove their innocence. Instead of doing so, the",,
petitioners have filed the present Criminal Petition to discharge them from the said Calendar Case. Therefore, this Court is not inclined to discharge",,
the petitioners herein from the said case.,,
18) With regard to the principle laid down in the above said judgments relied upon by the petitioners herein, in the said case, there is no mention about",,
the constitution of the committee/ appointment of Appropriate Authority as per Section 17(2) of the Act. In the present case, the Appropriate",,
Authority was appointed vide GO.Ms.No.2, dated 02.01.2015. Therefore, the principle laid down in the said judgments is not applicable to the facts of",,
the present case.,,
19) It is relevant to note that the Hon’ble Apex Court vide order dated 08.11.2016 in Writ Petition (C) Nos.349 of 2006 and 575 of 2014 between,,
Police Officer, Voluntary Health Organization of Punjab Vs. Union of India and others, directed the States and Union Territories to implement the",,
Rules and Provisions of the Act forthwith considering that the training provided therein is imperative for realising the objects and purpose of this Act.,,
Therefore, in compliance of the said directions, the Government of Telangana had issued another G.O. vide G.O.Ms.No.2, dated 03.01.2018, Health,",,
Medical and Family Welfare Department, constituting State Level High Powered Expert Committee (Governing Council) on permanent basis for six",,
months training programme.,,
20) It is also relevant to note that in view of the directions issued by the Hon’ble Apex Court in the above said judgment, the Registrar General of",,
this Court had issued proceedings vide ROC.No.3779/S0/2016, dated 30.12.2016 requesting all the Unit Heads in the States of Telangana and Andhra",,
Pradesh, for effective implementation of the Rules and the Act and also to instruct all the Judicial Officers who are dealing with the complaints under",,
the above Act and the Rules, to deal with the matters in promptitude and to submit quarterly reports to the High Court through Principal District and",,
Sessions Judge. It is further requested to instruct all the judicial officers who are dealing with the complaints under the said Act and Rules, to dispose",,
of expeditiously and they shall be Fast Tracked.,,
21) In view of the above discussion and also directions issued by the Hon’ble Apex Court, this Court is not inclined to interfere with the impugned",,
orders and to discharge the petitioners herein who are A.1 and A.2 in C.C.No.1542 of 2018 and thus the Criminal Petition is liable to be dismissed.,,
22) In the result, the Criminal Petition is dismissed. However, the learned III Additional Chief Metropolitan Magistrate at Hyderabad shall dispose of",,
the said C.C.No.1542 of 2018 as expeditiously as possible by following the SOP issued by this Court from time to time.,,
23) As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.",,
