Case Note & Summary
The petitioner, a medical practitioner running a clinic and sonography centre, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the complaint filed by the Appropriate Authority under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. An inspection of the clinic on 6 October 2010 revealed several deficiencies: use of an unregistered sonography machine 'Thoshbro Shimadzu' instead of the registered 'Toshiba Shirmo24', performance of sonography tests by an unregistered radiologist (Accused No.3) while the registered radiologist was Accused No.2, and failure to maintain proper records including Form F, OPD register, and consent forms in a language understood by the patients. A notice was issued on 7 October 2010, and the petitioner responded on 8 October 2010 stating that the deficiencies had been rectified. The Appropriate Authority filed a complaint, R.C.C. No. 174 of 2010, before the Judicial Magistrate, First Class, Majalgaon for offences under Sections 3(2), 4(3), 29(1), 5(1), 3(3), 4(2), 6 and 3B of the Act. Summons were issued. The petitioner's Criminal Revision No. 28 of 2010 before the Additional Sessions Judge, Majalgaon was dismissed, prompting the present application. The main legal issue was whether the complaint disclosed any criminal offence when the alleged violations were minor record-keeping deficiencies and there was no allegation that the petitioner had determined or communicated the sex of a foetus. The petitioner argued that the defects were minor and had been corrected, relying on several Single Judge decisions of the Bombay High Court where similar complaints were quashed for incomplete Form F columns or use of 'N.A.'. The respondents contended that the violations were serious, including use of an unregistered machine and a non-registered doctor performing tests, and that the petitioner had admitted the defects. The court analysed the proviso to Section 4(3) of the Act, which creates a rebuttable presumption that any deficiency or inaccuracy in record-keeping amounts to contravention of Sections 5 or 6, but allows the person conducting the sonography to prove the contrary. The court observed that the complaint did not specifically allege that sex determination was conducted. The deficiencies, such as incomplete forms and lack of proper consent, had been promptly corrected. Following the ratio of previous High Court judgments, the court held that inadvertent errors in maintaining Form F, including blank columns or 'N.A.', do not per se constitute a criminal offence in the absence of any allegation of sex determination. The use of an unregistered machine and the performance of tests by an unregistered radiologist were serious administrative violations for which the Appropriate Authority could take action under Section 20, but they did not automatically warrant criminal prosecution without proof of sex selection. The court concluded that the complaint did not disclose a criminal offence and that the continuation of proceedings would be an abuse of process. The court allowed the criminal application and quashed R.C.C. No. 174 of 2010 and all proceedings arising from it. No costs were ordered.
Headnote
A) Pre-natal Diagnostic Techniques - Record-Keeping Deficiencies - Rebuttable Presumption - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Sections 4(3) proviso, 5, 6; Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, Rule 9 - The proviso to Section 4(3) casts a duty to maintain complete records and provides that any deficiency or inaccuracy shall amount to contravention of Section 5 or 6 unless the person conducting the sonography proves the contrary. However, where the complaint does not allege that sex determination was performed or that the sex of the foetus was communicated, and the alleged record-keeping errors are minor, technical, or subsequently corrected, no criminal offence is made out and the proceedings are liable to be quashed. The court relied on previous decisions holding that inadvertently blank columns or writing “N.A.” do not constitute an offence. Held that the complaint and process issued against the petitioner being based solely on minor non‑compliances, with no allegation of sex determination, deserved to be quashed. (Paras 5-10) B) Administrative Law - Distinction Between Administrative and Criminal Action - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Sections 20, 3B - Section 20 empowers the Appropriate Authority to suspend or cancel registration for violations, providing an administrative remedy distinct from criminal prosecution. In cases of minor record-keeping errors without proof of sex determination, the court may treat the matter as not warranting criminal trial and instead direct the Authority to take follow-up action under Section 20, thereby balancing the legislative intent against misuse of criminal process. The court observed that the presence of an unregistered sonography machine and performance of tests by an unregistered radiologist were serious, but in the absence of sex determination allegations, the matter was suitable for administrative rather than criminal proceedings. (Paras 8, 10)
Issue of Consideration
Whether minor deficiencies and errors in maintaining records under the PCPNDT Act and Rules, without any allegation of sex determination or disclosure, warrant criminal prosecution under the Act.
Final Decision
The criminal application is allowed. The complaint bearing R.C.C. No. 174 of 2010 pending before the Judicial Magistrate, First Class, Majalgaon, and all proceedings emanating therefrom are quashed and set aside. No costs.
Law Points
- Rebuttable presumption under proviso to Section 4(3) of PCPNDT Act for deficiency/inaccuracy in record-keeping
- minor errors in Form F not indicative of sex determination may not attract prosecution
- prompt corrective action may be considered
- Section 20 administrative action exists
