Authorities Probing Case Under PCPNDT Act Without Application Of Mind Leads To Sufferance Of Genuine Doctors: Gujarat HC
The Gujarat High Court dismissed a Special Criminal Application challenging the impugned order by the Sessions Court, whereby the discharge application of Respondent no. 1 was allowed. The Court emphasized that authorities acted hastily and without due application of mind, leading to negative consequences in the proceedings. The Court further noted that while there may be times when it is appropriate to take action against doctors who have made mistakes, often the Authorities' actions show a lack of critical thinking, resulting in unjust consequences for genuine doctors.
The Bench of Justice Sandeep N. Bhatt observed, “This Court fails to understand the manner and method of the officers / authority with regard to register the complaint under the Act / Rules. Many a time, the Authorities are very eager to act promptly and without application of mind and therefore, their prompt action results into vitiation of the whole proceedings. Sometime, they may be right in taking action against erring doctors, but many a time, their action proves their non-application of mind and the genuine doctors are the sufferers”.
Advocate R.V Acharya appeared for the Applicant and Additional Public Prosecutor Soaham Joshi appeared for the Respondents.
The Applicant filed a complaint with the Trial Court, which ordered an inquiry under Section 202(1) of the CrPC. The police report led to the summoning of the Accused/Respondent no. 1 for offences under Sections 4(3), 5(1-b), 19(4) and 29 and Rules 6(2), 9(1), 10 and 17(2) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act and the corresponding Rules, respectively. Respondent No.1, filed a revision application, which was rejected by the Sessions Court. The matter then went to trial, where Respondent No.1 filed a discharge application during the framing of charges. The Trial Court rejected this application. Aggrieved by this rejection, Respondent No.1 filed a Criminal Revision Application with the Appellate Court, which allowed the application and reversed the order of the Trial Court.
The Court noted that the main allegation against Respondent no.2 was that he had not properly maintained the records. Furthermore, the Court noted that the Authority had not made any serious allegations against Respondent No.2, and it was clear that the clerical error was committed by the hospital staff and not by the doctor. The Court also noted that there was no role of Respondent No.1, who is the sole owner of the hospital, in the alleged clerical error.
“On bare perusal of the entire complaint, no serious allegation is made by the petitioner – Authority against respondent No.2, except not maintaining the record in proper manner, which is a clerical thing...The said clerical error is committed by the hospital staff and not by the doctor/s, more particularly not by the visiting doctor/s...There is no role of respondent No.1 – accused No.2 as the sole owner of the hospital is accused No.1”, the Court asserted.
The Court emphasised that the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act was enacted with the intent to prohibit prenatal diagnostic techniques for the determination of the sex of the fetus leading to female foeticide. The Act also regulates the use of pre-natal diagnostic techniques to detect genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders.
“At this stage, it would be necessary to throw light on the object of the Act, which is to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sec-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereof”, the Court asserted.
The Court held that rules are secondary in nature to the Act and therefore cannot go beyond the Parent Act. This is because the Act is the primary source of law, and the rules must comply with the Act. The Court asserted that if there is no breach concerning the purpose of the Act, the accused cannot be held responsible for the offence under such Act.
The Court observed, “Rules are necessary because it is very complex for the legislation to include each and every detail in a single Act making it lengthy. Hence, a separate set of rules are made, in compliance with the provisions of the Act. However, the rules provide procedural laws. Rules are secondary in nature to their parent Act. Therefore, the rules cannot go beyond the parent Act”. In para 11, the Court stated, “Time and again, the Co-ordinate Bench of this Court as well as the Hon’ble Apex Court has observed that if there is a no breach qua the object of the Act, the accused cannot be held liable for the offence under the Act”.
Accordingly, the Court dismissed the Application and the impugned order of the Trial Court was rejected.
Cause Title: Pappukumarsinh v. Dharmesh Bharatbhai Patel
