Case Note & Summary
The matter arose from a criminal application filed before the Bombay High Court, Aurangabad Bench, seeking quashing of an order of issuance of process passed by the Judicial Magistrate First Class, Parli-Vaijnath in RCC No.270 of 2011. The applicant, a medical practitioner with MBBS and DGO qualifications, operated a hospital and sonography diagnostic centre registered under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the rules framed thereunder. Respondent No.2, a Naib-Tahsildar, inspected the centre on 16 June 2011 and seized eight Form F documents, alleging that they were not completely filled. A show-cause notice was issued and the applicant replied, admitting that the sonography machine was not working and there were minor errors in Form F, while seeking release of the machine and no further action. Respondent No.2 filed a complaint before the Magistrate alleging incomplete Form F and non-intimation of the non-working sonography machine as required under the Act and Rules. The Magistrate issued process under Sections 23(1), 25 and 29 of the PCPNDT Act read with Rules 9(4), 10(1), 10(1-A) and 13 of the PCPNDT Rules. The applicant challenged the process order on several grounds: that the seized Form F were not annexed to the complaint and other documents were not given for the Magistrate's perusal; that the trial court acted mechanically; that no offence was committed because the sonography machine was faulty and non-working for only two days, and thus the 30-day intimation requirement did not apply; and that respondent No.2 lacked authority to file the complaint. The respondent maintained that Rule 9 made it mandatory to maintain and preserve Form F for each patient subject to pre-natal diagnostic procedures for two years, that deficiencies or inaccuracies amounted to contravention of Sections 3 and 4 of the Act, and that no sufficient cause was shown for non-intimation of the machine's non-working status. The High Court heard learned counsel and the Additional Public Prosecutor. It noted that the applicant had admitted in reply to the show-cause notice that the sonography machine was not working and there were minor errors in Form F. The court examined the nature of Form F and relied upon the Supreme Court decision in Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India, (2019) 6 SCC 283, which had upheld the constitutional validity of Sections 23(1) and 23(2) and emphasized the mandatory nature of record-keeping under the Act. The Supreme Court had explained that Rule 9 mandates maintaining a register and that Rule 9(4) requires record in Form F. It also held that filling Form F is not a clerical job but must be done by a medical practitioner after enquiry with the patient. The High Court quoted the Supreme Court's observations that columns such as patient's name, age, address, husband's/father's name, last menstrual period, history of genetic disease, and indication for pre-natal diagnosis are statutorily necessary and their absence would make violation of the Act blatant and unchecked. It further noted that monthly reports are only abstract information and do not substitute the obligation to maintain individual Form F for every patient. The court observed that the trial court had perused the complaint and documents, and therefore crucial material was not withheld. It also stated that the nature of errors in Form F would be considered during trial, and that on the allegations a prima facie offence appeared to be made out. The excerpted portion of the judgment ends with the court's analysis of these principles; the final operative direction or order is not mentioned in the available text.
Headnote
A) Criminal Procedure - Quashing of Process - High Court's Inherent Power - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Sections 23(1), 25, 29 - Applicant sought quashing of process issued by JMFC; Court examined whether trial court considered complaint and documents; observed that trial court had gone through complaint and documents and that applicant admitted errors; nature of errors to be considered during trial and prima facie offence appeared to be made out (Paras 1, 4-5). B) Health Law - Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Maintenance of Form F - Sections 3, 4(3), 23(1), 25, 29 and Rules 9(4), 10(1), 10(1-A) - Applicant's diagnostic centre found eight Form F incomplete; applicant admitted minor errors; Court emphasized Form F is crucial and must be filled meticulously by medical practitioner after enquiry with patient; non-maintenance of records is misconduct under Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002; deficiencies in Form F amount to contravention of Sections 3 and 4; Held that Form F maintenance is mandatory and not clerical (Paras 2-3, 5-10). C) Health Law - Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Monthly Reports vs Form F - Rule 9 and Rules 10(1A) - Applicant contended that monthly reports were accepted by authority; Court held that monthly report is information in abstract and does not absolve obligation to maintain individual Form F for every patient; ownership of diagnostic center requires meticulous completion of Form F; Held that submission of monthly reports does not cure incomplete Form F (Paras 6-7). D) Constitutional Law - Validity of Penal Provisions under PCPNDT Act - Articles 14, 19(1)(g), 21 of Constitution and Sections 23(1), 23(2) of PCPNDT Act - Supreme Court in Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India, (2019) 6 SCC 283 upheld constitutional validity and stressed mandatory record-keeping; High Court relied on this to reject contention that incomplete Form F is mere clerical error; Held that mandatory columns in Form F are necessary to detect violations and cannot be termed clerical (Paras 7-10).
Issue of Consideration
Whether the order of issuance of process passed by the Judicial Magistrate First Class under Sections 23(1), 25 and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 read with Rules 9(4), 10(1), 10(1-A) and 13 of the PCPNDT Rules should be quashed; whether incomplete filling of Form F and non-intimation of non-working sonography machine constitute offences under the Act; whether respondent No.2 had authority to file complaint; whether the Trial Court's order was mechanical.
Law Points
- Rule 9 of PCPNDT Rules mandates maintenance of Form F records for each patient
- deficiencies or inaccuracy in Form F amount to contravention of Sections 3 and 4 of PCPNDT Act
- Form F is not a clerical job and must be filled by medical practitioner
- monthly report is abstract and does not substitute individual Form F
- non-maintenance of medical records is professional misconduct under MCI Regulations
- Section 4(3) read with Rule 9(4) and Rule 10(1A) imposes mandatory obligations on genetic clinics
- Supreme Court in FOGSI held mandatory columns in Form F are necessary to detect violations of PCPNDT Act
