Judgment:
Oral Judgment:
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioner is aggrieved by the order dated 25/09/2013 passed by the learned Judicial Magistrate F.C. by which the application filed by the petitioner seeking discharge from Reg.Cri.Case No.529/2011 has been rejected. The petitioner is also aggrieved by the judgment and order dated 15/05/2015 delivered by the learned Additional Sessions Court, Dhule by which the criminal revision application filed by the petitioner has been dismissed
3. I have heard Mr.Kulkarni, learned Advocate for the petitioner and the learned APP on behalf of the respondents at length.
4. The issue raised by the petitioner is whether the complaint filed by the respondent and registered as RCC No.529/2011 would be maintained in the light of the contentions of the respondents/complainants?
5. The petitioner is being prosecuted vide RCC No.529/2011 before the learned Judicial Magistrate F.C. Dhule on the allegations that he has committed offences which are punishable under the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 (hereinafter referred to as the Act of 2003) and the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as the Rules of 1996). The application for discharge filed by the petitioner has been rejected by the impugned order and his revision petition is dismissed by the impugned judgment of the Sessions Court.
6. The petitioner was served with the notice dated 22/06/2011. He replied on 28/06/2011 and denied all contents of the notice considering that clauses 2, 3, 10, 11 and 13 were pressed against him.
7. Considering the submissions of the learned Advocates, the complaint against the petitioner is primarily on the following grounds:-
[a] The registration certificate of the petitioner's Genetic Counselling Centre / Genetic Laboratory / Diagnostic Centre was not displayed in the room where the sonography machine was being utilized.
[b] In the surprise check dated 22/06/2011, an authorized and trained person was not appointed for operating the sonography machine.
[c] The authorized doctor to operate the sonography machine was not appointed.
[d] The registered machine used for sonography in the clinic was not found.
[e] No sanction was granted to the appointment of Dr.Rahul Bacchav in place of Dr.Ashish Agrawal, who was earlier authorized to operate the machine.
[f] After Dr.Agrawal disengaged himself from the petitioner's clinic, Dr.Bacchav has illegally operated the clinic and the sonography machine in between 13/06/2011 to 22/06/2011.
8. The respondents have filed an affidavit in reply of Dr.Sunil Purushottam Bhamre dated 25/08/2015. It is specifically stated that the petitioner deserves to be punished for having committed an offence punishable u/s 3(2), 18(1) and 19(4) of the Act of 2003 and under Rule 3, 13 and 17(1) of the Rules of 1996.
9. It is further stated in paragraph No.5 that the petitioner as well as Dr.Aashish Agrawal had submitted a communication dated 20/05/2011 indicating therein that Dr.Agrawal would not be available from 13/06/2011 onwards. As the surprise check occurred on 22/06/2011, it was found that Dr.Bacchav had not obtained the permission of the appropriate authorities under the Act for operating the sonography machine and hence the offence was of a continuous nature from 13/06/2011 to 22/06/2011.
10. It would be apposite to reproduce the sections and the rules referred to by the respondent in its complaint and in the affidavit in reply which are as follows:-
"Section 3:- Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics : On and from the commencement of this Act, -
(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, gynaecologist paediatrician 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 18:- Registration of Genetic Counselling Centres, Genetic Laboratories or Genetic Clinics:-
[(1) No person shall open any Genetic Counselling Centre, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection, or render services to any of them, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such Centre, Laboratory or Clinic is duly registered under the Act.]
(2) Every application for registration under sub-section (1), shall be made to the Appropriate Authority in such form and in such manner and shall be accompanied by such fees as may be prescribed.
(3) Every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic engaged, either partly or exclusively, in counselling or conducting pre-natal diagnostic techniques for any of the purposes mentioned in section 4, immediately before the commencement of this Act, shall apply for registration within sixty days from the date of such commencement.
(4) Subject to the provisions of section 6, every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic engaged in counselling or conducting pre-natal diagnostic techniques shall cease to conduct any such counselling or technique on the expiry of six months from the date of commencement of this Act unless such Centre, Laboratory or Clinic has applied for registration and is so registered separately or jointly or till such application is disposed of, whichever is earlier.
(5) No Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall be registered under this Act unless the Appropriate Authority is satisfied that such Centre, Laboratory or clinic is in a position to provide such facilities, maintain such equipment and standards as may be prescribed."
"Section 19:- Certificate of registration:- (1) The Appropriate Authority shall, after holding an inquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules made thereunder and having regard to the advice of the Advisory Committee in this behalf, grant a certificate of registration in the prescribed form jointly or separately to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, as the case may be.
(2) If, after the inquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of this Act or the rules, it shall, for reasons to be recorded in writing, reject the application for registration.
(3) Every certificate of registration shall be renewed in such manner and after such period and on payment of such fees as may be prescribed.
(4) The certificate of registration shall be displayed by the registered Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic in a conspicuous place at its place of business."
"Rule 3(1) of the Rules of 1996:- The qualification of the employees, the requirement of equipment etc., for a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall be as under:-
(1) Any person being or employing -
(i) A gynaecologist or a paediatrician having six months experience or four weeks training in genetic counselling, or
(ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counselling may set up a genetic counselling centre and get it registered as a genetic counselling centre."
"Rule 13 (prior to the amendment as on 22/06/2011):-Intimation of changes in employees, place or equipment :Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall intimate every change of employee, place, address and equipment installed, to the Appropriate Authority within a period of thirty days of such change."
"Rule 13 (post amendment dated 05/06/2012):- In Intimation of changes in employees, place or equipment:- Every Genetic Counselling Centre, Genetic Laboratory, or Genetic Clinic, shall intimate every change of employee, place, address and equipment installed, to the Appropriate authority [atleast thirty days in advance of the expected date of such change, and seek re-issuance of certificate of registration from the Appropriate Authority, with the changes duly incorporated]."
"Rule 17:- Public Information:- (1) Every [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre] shall prominently display on its premises a notice in English and in the local language or languages for the information of the public, to the effect that disclosure of the sex of the foetus is prohibited under Law.
(2) At least one copy each of the Act and these rules shall be available on the premises of every [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre], and shall be made available to the clientele on demand for perusal.
(3) The Appropriate Authority, the Central Government, the State Government and the Government / Administration of the Union Territory may publish periodically lists of registered [Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics and Imaging Centres] and findings from the reports and other information in their possession, for the information of the public and for use by the experts in the field."
11. Mr.Kulkarni, learned Advocate for the petitioner has placed reliance upon the judgment of this Court dated 28/01/2013 in Cri.W.P.No.558/2012 in the matter of Dr.Prakash Shamrao Chaudhari Vs. The State of Maharashtra and others (Reported in and the judgment dated 07/02/2014 delivered in Cri.W.P.No.158/2013 in the matter of Dr.Rajesh Ratnakar Ranade Vs. The Member of the Appropriate Authority and another.
12. The first issue as regards failure to display the registration certificate in the sonograhy room is concerned, it is admitted that the said certificate was displayed in the hall of the clinic which was used as a waiting room for the patients. Said certificate was not displayed in the sonography room where the patient was subjected to sonography.
13. A somewhat similar situation with regard to displaying of the photos of God and Goddesses and not displaying the registration certificate was considered by this Court in the Dr.Prakash Shamrao case (supra). This Court has concluded in paragraph No.5 of the said judgment as under:-
"5. Respondent No.2 felt that there was no certificate of registration but he, probably, even before issuing notice dated 18.6.2011, did not browse his counter records which would have facilitated of existence of such certificate of registration having a validity for a period of five years from 1.1.2007 to 31.12.2001. Non displaying the certificate, could not be so fatal to initiate criminal action as referred above. The explanation offered of renovation at the hospital - clinic should not have been negated. Displaying photo of deity - Ganpati, giving reference to it in the complaint petition, speaks volumes of the conduct of behaviour and vengeance in the mind of respondent no.2. Law does not inhibit in a private organization for displaying photo of deity to which an individual is professing. Such acts or formation of opinion, in fact, calls for condemnation. The process issued by the learned Chief Judicial Magistrate, could not have been so issued as there was already valid registration in favour of the petitioner. There could not be violation of Rules as has been contemplated."
14. In the judgment delivered in Dr.Rajesh Ranade case (supra), this Court has concluded in paragraph No.7 of the judgment as under:-
"7. As regards the alleged contravention at (a) above, the learned Additional Public Prosecutor could not point out any Rule or Regulation requiring such certificate to be displayed at a sonography center. In fact, that there is no such Rule, was conceded in the course of hearing."
15. In the light of the above, I do not find that the petitioner could be held to have violated any Rule as regards displaying of the registration certificate inside the sonography room. As was noted by this Court in the earlier judgment (supra), no such Rule has been cited thereby mandating the displaying of the registration certificate exclusively inside the sonography room.
16. In my view, such a certificate which is aimed at demonstrating to / impressing upon the patients that the sonography center is duly authorized under Law, could very well be displayed at a conspicuous place in the clinic or in the hospital and as such it could be displayed in the waiting hall meant for the patients or in the chamber of the concerned registered medical practitioner or in the sonography room as well. Object of the Legislature appears to be that the registration certificate would appraise the patient that the Center is registered and recognized. This object could be achieved by displaying the certificate at a conspicuous place as noted above.
17. It is noteworthy that Rule 13 of the Rules of 1996 before amendment mandated every Genetic Counselling Centre, Genetic Laboratory, Genetic Centre, Ultrasound Clinic and Imaging Centre to intimate every change of employee, place, address and equipment installed, to the appropriate authority within a period of 30 days of effecting such a change. There is no dispute and in fact it is categorically confirmed by the respondents in their affidavit in reply that the petitioner had intimated the appropriate authority on 20/05/2011 of the change in employee (Discontinuance of Dr.Agrawal and engagement of Dr.Bacchav from 13/06/2011) as well as the change in the sonography machine considering the fact that Dr.Agrawal withdrew his machine, from the petitioner's clinic and Dr.Bacchav installed his machine in its place. Rule 13 therefore is apparently complied with.
18. The petitioner is entitled for discharge from the complaint since Rule 13 (post amendment) was kept in mind by the respondent while instituting the complaint on 12/08/2011. It is beyond comprehension that the respondents have lodged the complaint on the ground that no sanction was granted to the appointment of Dr.Bacchav and the change in sonography machine. It could not be pointed out either from Rule 3 or from Rule 13 as it stood prior to the amendment, that a sanction is required to be granted by the appropriate authority with regard to change in employee, place or equipment.
19. It was only after Rule 13 was amended on 05/06/2012 that it has been made mandatory for such Centres to intimate every change of employee, place, address and equipment installed, to the appropriate authority, at least 30 days in advance in relation to the expected date of such change and seek re-issuance of certificate of registration from the appropriate authority with the changes duly incorporated. In my view, the respondents could not travel beyond Rule 13 as it stood prior to the amendment in the light of the fact that the offence is alleged to have occurred on 22/06/2011 and Rule 13 stood amended on 05/06/2012.
20. Considering the above, the introduction of Dr.Bacchav was communicated to the authorities. Installation of his sonography machine with the details of the manufacturer and the model of the machine was also communicated. There is no dispute that Dr.Bacchav was competent and trained to perform sonography. In this backdrop, the offences alleged to have been committed by the petitioner are a misconception.
21. In so far as failure to display the experience training certificate is concerned, the said issue is covered by the judgment of this Court in the matter of Dr.Rajesh Ranade (supra) and Dr.Prakash Chaudhary (supra). As such, all allegations made by the respondent in its complaint are rendered untrue.
22. In similar circumstances, this Court has observed in paragraph No.13 and 14 in the Dr.Rajesh Ranade case (supra) as under:-
"13. Thus, three of the allegations in respect of contraventions / violations, which were capable of verification are found to be wrong. The forth one : viz : of not making the record available to the inspection party is too vague and unsubstantiated. The complaint appears to be vague with respect to the allegations of non-maintenance of the record by the petitioner and alleged non-production thereof before the inspection party. The categorical stand taken by the petitioner in his reply to the showcause notice has not been dealt with."
"14. In my opinion, there are not sufficient grounds for proceeding against the petitioner. Under the circumstances, continuation of the proceedings against the petitioner would amount to abuse of the process of the Court."
23. In the light of the above, this petition succeeds and the petitioner therefore stands discharged from RCC No.529/2011. Rule is, therefore, made absolute.