M.M. Das, J.
1. Though this is an application under Section 439 Cr.P.C. filed by the petitioner for grant of bail, the facts on which the case evolved not only has created sensation throughout the State as well as the country, but also involves interesting and important question to be dealt with.
2. A few weeks ago, large numbers of aborted foetus were found from various places in the district of Nayagarh. This gave rise to a suspicion in the mind of the general public that probably after sex determination, finding the sex of the foetus to be female, the mothers have chosen for aborting the child.
3. It is well known that even after 60 years of independence, in our country, boys and girls are still not given equal preference. Poor families in the society or for that matter, the conservative and old fashioned parents prefer boys and girls are seen as a burden and inferior to boys. This is more fortified due to the social stigma of dowry. On account of the above, in spite of enactments made by the Legislature prohibiting sex determination before birth of the child, the medical practitioners by modern scientific methods, some times disclose the sex of the foetus to the parents giving them an opportunity to either retain or abort the pregnancy. As a result, it has been seen that there is a high degree of foeticide in various parts of the country. This also gives an opportunity to the doctor to make a lot of money taking advantage of the cultural approaches of the people by helping them to get rid of unwanted female foetus.
4. One of the things that has happened because of sex determination is that gender ratio has changed dramatically resulting in an imbalance in the society. Statistics show that in the Northern States of our country, there are 861 girls for every 1000 boys.
5. In order to curb this malady in the society, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, 'the Act') was legislated. The said Act was not framed to stiffle the medical professionals, but as a regulatory effort, in which the contribution and the co-operation of the medical professionals is of vital importance which is evident from the scheme of the Act.
6. As already indicated above, due to public furore created on account of detection of aborted foetus in large number of Nayagarh, it appears that attempt is being made by the Government to investigate into the matter and find out the culprits on the assumption that the same were female foetuses and illegally aborted in contravention of the provisions of the aforesaid Act. It further appears that the investigation has been directed to find out medical professionals who have conducted illegal abortions contrary to the provisions of the Act. In furtherance of this attempt by the Investigating Agency, it appears that joint verification was conducted by the Chief District Medical Officer, Nayagarh along with the Director, Deputy Director, Health and Family Welfare Department and the Executive Magistrate, Nayagarh, of various Clinics/Diagnostic Centres where facilities for sonography/ultra sound tests were available at Nayagarh, on the assumption that medical professionals might have conducted prenatal sex determination by advising the expected mothers to undertake a sonography test. It would be apt to mention here that without ascertaining as to whether the aborted foetuses were female one's or not, to carry out investigation with regard to faults of the medical practitioners is not only dicey, but also led to exodus of almost all Specialists in Gynaecology from Nayagarh, creating immense hardship to patients requiring their service. The administration was brought under high pressure due to wide publicity of this news in both print and electronic media.
7. Before delving into the facts of the case, this Court feels it appropriate to refer to certain materials from well known sources as it considers such materials to be relevant facts under Section 57 of the Evidence Act.
8. The Website of American Institute of Ultra Sound in medicine (http://www.aium.org./) if accessed one will find the answer to the question 'When can an ultra sound determine the sex of the baby' as follows:
You may have an ultrasound between 18 to 20 weeks to evaluate dates, a multiple pregnancy, placenta location or complications. It may also be possible to determine the gender of your baby during this ultrasound. Several factors, such as the stage of pregnancy and position of foetus, will influence the accuracy of the gender prediction. But to be 100% sure you will have an anxious wait until the birth.
9. Callen, the well known Author on the subject of 'Ultrasonography in Obstetrics and Gynaecology' has stated about sex determination of a foetus by Sonography as follows:.It is difficult, even for an experienced sonologist, to be confident that the abnormal appearance is the 'correct' interpretation. It has been our experience that this is one of the most difficult conditions to convey to and discuss with expectant parents.
It is frequently difficult for the sonologist to understand the parents true feelings when an intersex abnormality is suspected and one parent may have remarkably different opinions than the other....
Accurate sonographic assessment of fetal gender requires adequate perineal visualization to permit unequivocal distinction between the labia and scrotum.
Unfortunately, inopportune fetal positioning precludes perineal visualization in approximately 30% of foetuses, especially before 24 menstrual weeks. Even after adequate perineal visualization, sonography incorrectly assigns fetal gender in approximately 3% of case. The sonographer should bear in mind this small but definite error rate and avoid using sonography as the sole method for gender determination.
It would be profitable to note that in the meantime. the Act and the Rules framed thereunder have been amended in 2002. The other piece of legislation which governs the field is the Medical termination of pregnancy Act as amended in 2002.
10. Now coming to the facts of the present case, it would appear from the case diary that the first information was lodged in the Nayagarh Police Station by the Chief District Medical Officer, Nayagarh, inter alia, stating that during joint verification carried out by him along with the Director, Deputy Director, Health and Family Welfare Department and the Executive Magistrate, Nayagarh, certain anomalies/defects of various ultrasound Centres situated at Nayagarh as named in the F.I.R., were found. It was also found that the Proprietors of the said Centres with the help of visiting/ attending doctors assisting staff, in connivance with some DALALS, are using ultrasound techniques to determine the sex and causing abortion mis-carriage and M.T.P. in those Diagnostics Centres and its attached rooms and some Nursing Homes. After such verification, the said authority sealed the said Diagnostic Centres in presence of the Executive Magistrate as per the provisions of the Act. The F.I.R. was registered for alleged commission of offence under Sections 312/316/318 IPC read with Sections 23/25 of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. The registers of the said Diagnostic Centres were also seized and statements of various persons have been recorded under Section 161 Cr.P.C. The statement of the informant Dr. Mirza Mumtaz Alli Baig recorded during investigation discloses that the petitioner was attending the 'Satkar Polly Clinic'. Another witness, namely, Md. Sahajahan has stated that during the verification conducted by the C.D.M.O. and Ors. they have come to know that illegal sex determination was being made by conducting ultra sound tests and the petitioner was one of such doctors who conducted sex determination and termination of pregnancy. Similar is the statement given by many other witnesses examined during investigation. The Registers of Satkar Polly Clinic which have been seized disclose that the patients were referred by doctors including the petitioner for undergoing a sonography tests and the doctor conducting sonography test conveyed the results of such tests to the referring doctor.
11. Sections 23 and 25 of the Act under which the F.I.R. has been registered read as follows:
23. Offences and penalties - (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
(2) The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the Court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre-natal diagnostic techniques on any pregnant woman for the purposes other than those specified in Sub-section (2) of Section 4, he shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.
(4) For the removal of doubts, it is hereby provided, that the provisions of Sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.
25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided - Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been else where provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
12. The prosecution has not come out with a specific allegation as to which provision of the said Act has been violated, as contemplated under the aforementioned sections. I find absolutely no material whatsoever brought out during investigation to prima facie show that the petitioner has violated any of the provisions of the Act.
13. The petitioner is a Specialist in Obstetrics and Gynaecology and is posted as Additional Chief District Medical Officer at Capital Hospital at Bhubaneswar who was previously serving at Nayagarh.
14. The offences under the Penal Code under which the F.I.R has been registered, i.e. Sections 312/316/318 I.P.C., read as follows:
312. Causing miscarriage - Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation - A woman who cause herself to miscarry, is within the meaning of this section.
316. Causing death of quick unborn child by act amounting to culpable homicide - Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of quick unborn child, Shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
318. Concealment of birth by secret disposal of dead body - Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
15. There is absolutely no material brought out by the prosecution, which, if accepted, would prima facie show commission of any of the offences by the petitioner. If the conclusions of Callen in his above cited Book, which is already quoted, are relied upon, one would infer that it is not practicable on the part of a Gynecologist to easily predict the sex of an unborn child by conducting sonography. There is also absence of any material to show that the petitioner has disclosed the sex of the foetus to any patient or her relatives who were advised by him to undertake sonography test. It is needless to mention that in the rules framed under the Act, under the heading 'Important Notes' it has been prescribed that during pregnancy ultra sonography should only be performed when indicated and a list of 23 indications have been prescribed as a representatives list where sonography can be advised to be conducted. The said list having been nomenclatured as a 'representative list' cannot be deemed to be a comprehensive list and it also cannot be said that under no other contingencies other than those 23 indications, sonography can be conducted. What has been found during the investigation is that the petitioner has advised a number of patients to undertake sonography tests in the Diagnostic centre. That itself does not attract the penal provisions in the Act.
16. Upon considering the materials available in the case diary and the nature of allegations made against the petitioner in the light of the observations made above as well as taking into consideration the fact that the petitioner is in custody since 31.7.2007 and is a Government servant, posted at Bhubaneswar as Addl. Chief District Medical Officer, there is no apprehension of his absconding, it is directed that the petitioner shall be released on bail on furnishing a bond of Rs. 20,000/- (Rupees twenty thousand) with one surety for the like amount to the satisfaction of the learned S.D.J.M., Nayagarh in G.R. Case No. 449 of 2007 arising out of Nayagarh P.S. Case No. 244 of 2007.
17. It is needless to mention that the observations made above with regard to the allegations against the petitioner will not influence the trial Court in any manner, in the event a charge-sheet is filed by the Investigating Agency against him.
The BLAPL is accordingly allowed.