1. The petition is filed to challenge the order made by the learned Judicial Magistrate, First Class in Regular Criminal Case No.152/2007 by which the Judicial Magistrate has decided to frame charge against the petitioner for offences punishable under sections 3 and 18 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, (for short, "the Act"). This order was challenged by filing Criminal Revision Application No.30/2013 by the petitioner and the learned Additional Sessions Judge Kopargaon has dismissed the revision. Heard learned Senior Counsel for the petitioner.
2. The complaint is filed by the Appropriate Authority in the Court of the Judicial Magistrate, First Class, Rahata. There are allegations that the present petitioner Dr. Yogendra Sachdev has registered Sonography Centre by giving his address as "Ashirwad Clinic, Loni, Taluka Rahata, District Ahmednagar". It is bearing registration No.ANR-255. Allegations are made that there was information that some unauthorized person was using this machine and so "Decoy Case" was made by visiting the other place, Dr. Maid Hospital Rahata on 20-7-2007. It transpired that Dr. Maid was using this machine. Thus the Sonography machine of present petitioner which was to be used at Loni by the petitioner, was found at other place and another person was using, operating the said machine. In view of this circumstance, the machine came to be seized and the complaint came to be filed for commission of offence punishable under sections 3(1)(2) and 18(1) of the Act.
3. Before the learned Judicial Magistrate, evidence before charge is given. After recording evidence before charge, argument was advanced and the learned Judicial Magistrate has decided to frame the charge.
4. The learned Senior Counsel submitted that notice as required under section 20 of the Act was not given and so the prosecution cannot sustain. If one goes through the scheme of the special legislation and goes through different chapters it can be said that Chapter VI of the Act is made for giving provisions for registration of Genetic Counseling Centres, Genetic Laboratories and Genetic Clinics. Under this Chapter there are provisions made for following the procedure for obtaining registration and there are also provisions empowering the Appropriate Authority to take action for cancellation or suspension of registration. Section 20 is made for using the power of cancellation or suspension of registration. This provision is not applicable for launching prosecution. Thus, there is no force in the contentions made that notice ought to have been given under section 20 of the Act before filing complaint.
5. The learned Senior Counsel took this Court through the evidence given before charge and also through the contents of the complaint. The learned Senior Counsel submitted that Rule 13 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short, "the Rules") was amended and the amendment came into force with effect from 4-6-2012 and prior to that amendment there was no necessity of giving intimation of change of place. He submitted that in view of this amendment correction in the registration certificate is required to be made and as the incident in question took place in the 2007, the amended provision cannot be applied in this case. Even if this contention is accepted that cannot help the present petitioner.
6. If the provision of Section 3 of the Act is seen, it becomes clear that person who has obtained registration is expected to use and operate the machine himself unless he employees some person, who is qualified as provided under the Act. Even if the contention is accepted that he could have used the machine at other place, it was necessary to show that he was using the machine but he has taken the defence of total denial. The learned Senior Counsel submitted that it is up to the prosecution to show that there was machine belonging to the petitioner and other person was operating the machine. The prosecution is expected to show that there has been breach of the provisions of the Act and the Rules and then presumption available under section 24 of the Act can be raised. There is the record like panchanama and there is evidence of complainant and witnesses to prove the charge.
7. There is allegation against the petitioner that his machine was found at other place, the place which was not registered place, and he had allowed other person to use the machine when that person was not employed or authorized. There was no information supplied as required under the aforesaid chapter by accused to Appropriate Authority in respect of Dr. Maid.
8. This Court has gone through the evidence given before charge. There is evidence of the complainant which needs to be read as it is and it shows that the machine of the present petitioner was found at other place and it was being used by unauthorized person. The defence of the accused in this regard cannot be accepted at this stage. The provision of Section 245 of the Code of Criminal Procedure, 1973, (for short "the Code") shows that for giving discharge the Court is expected to give reasons and the Court is expected to come to conclusion that on the basis of the evidence no case has been made out which, if unrebutted, would warrant his conviction.
9. On the other hand, for framing charge provision of Section 246 of the Code needs to be used and it shows that the Magistrate is expected to form opinion that there is ground for presuming that accused has committed an offence triable under this Chapter. This provision shows that the material as it is given by the prosecution / complainant is required to be considered. The aforesaid material is definitely sufficient for framing of the charge and it is not the case where discharge can be given to the petitioner. This Court finds no reason to interfere in the orders made by the Courts below.
10. The petition stands dismissed. The aforesaid observations are only for the present proceeding.
11. The learned Senior Counsel requests for continuation of interim relief. This request is not allowed.