Mrs. Parijatha, v. The State Of Telangana,

THE HON'BLE DR JUSTI CE B.SI VA SANKARA RAO CRI MI NAL PETI TI ON No.10252 of 2014 ORDER:

The petitioner is the sole accused in C.C.No.657 of 2014 on the file of the Judicial First Class Magistrate, Miryalguda, which is outcome of the private complaint of the second respondent - the District Medical and Health Officer, Nalgonda District (for short 'D.M.H.O.') represented by Dr.P.Amose, against the petitioner-accused for the offences punishable under Sections 23 read with 25 and 26 and 28 of the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (for short 'the Act') read with Rules made thereunder of 1996. 2.

The gist of the private complaint averments shows that the complainant - Dr.P.Amose functioning as D.M.H.O. of Nalgonda District is also the appropriate authority as per Government notification, dated 20.09.1994, under Section 2(a) of the Act and the Rules made thereunder. The District Appropriate Authority represented by Dr.Vijay Kumar, District Leprosy Officer along with Jaya Surya, Senior Assistant, Apo Bharathi, Dr.P.Uma Maheswari Nodal Officer Joint Director PC-PNDT, Dr.Neelima Singh Member of NIMC, G.Thurupathaiah DEMo, on 25.04.2014, inspected Parijatha Hospital, vide registration No.27/2001, Doctors Colony, Miryalguda Town, Nalgonda District and in their survey to ascertain as to how many Genetic Counselling Centres/Genetic Laboratories/Genetic Clinics and Ultrasound Scanning Centres are existing in Miryalguda Town and District, they came to know of its existence and on verification, they observed the following anomalies:- "(1) The Form F for the last 3 years were checked almost all Form-Fs are incomplete in terms of-

(a) Last menstrual period not mentioned (b) Incomplete addressing the Patients, (c) Number and Sex of Previous children not mentioned (d) The declaration is not signed by the doctor, (e) Outcome of USG is not mentioned in any of the Form-F

2. In Scan Patient on whom USG is done report is there but Form-Fs were not filed. The details of such of the Patient are - (a) Name of the Patient Kavitha dated 16.02.2013 (b) Name of the Patient Thirupathamma dated 27.01.2014

3. MTP register not maintained as per act and consent of the Patient from not shown at the time of inspection. No MTP are done beyond 12 months in this Hospital as per statement of Dr.Parijatha Invoice of Purchase of machine USG not shown at the time of inspection.

Hence, the following things sealed and kept in the Hospital Premises 1.USG Machine GE RT-3200 and its probe TVS and abdominal

2. Form-F 2013, Form-F 2014 Registers (January 2014) sealed P Seized

3. USG report of patient name 1. Kavitha 2. Thirupathamma" It further came to know on verification of all the relevant registers to be maintained as per Section 18 under Chapter IV of the Act that the centre was not following the norms and regulations supra and that Forms-F for the last three years, when checked, were found incomplete; MTP registers were not maintained as per the Act; consent of the patients not shown; the details of the patients and invoice of purchase of USG machine were not shown during the inspection and the owner of the hospital admitted his/her guilt and thereby, USG machine and MTP instrument were seized

under the cover of panchanama and that therefore, the Doctor of the Hospital is liable for the penal consequences under Sections 23, 25 and 26 of the Act. In seeking to quash the said complaint taken cognizance by the learned Magistrate, the petitioner-accused supra filed this quash petition contending that the complaint proceedings under the cognizance order are unjust and no offence is made out and there are no violations by the petitioner-accused, who is with good reputation and dedication to serve poor and needy and the alleged irregularities are untrue and no way makes out any offence under the Act. When the second respondent - D.M.H.O., issued show cause notice, dated 28.04.2014, to her under Sections 3 and 18 of the Act, pointing out the anomalies, the petitioneraccused submitted reply on 30.04.2014 and 03.05.

2014 saying that there is no violation of the statutory requirements and all the norms are complied with and the inspection is by non-application of mind to the facts and ignoring the same, the complaint is filed and the cognizance order of the learned Magistrate is thereby unsustainable and outcome of non-application of mind and hence, the petitioner-accused sought to quash the same.

3.

Heard the learned counsel for the petitioner-accused and also the learned Public Prosecutor representing the first respondent - State and the second respondent - D.M.H.O.

4.

The substance of the claim of the petitioner-accused of no offence made out and cognizance is unsustainable is mainly covered by her reply to the show cause notice stating that Form-F in clear terms contains the details relating to menstrual period, street and village name, pregnancy details as to whether first delivery or otherwise, signature of concerned Doctor, the date, outcome of USG, the details of MTP, which was not

conducted by the hospital, details of invoice of USG machine etc.,. and it is also stated that in the Forms-F that the USG was done to know the gestational period that is to know the age of the foetus and it contained the report, however, since there is no column in the said form relating to the outcome of the USG and thereby, there is nothing to mention that the same is relevant for no column in the said form, if at all relevant and Form-F was supplied and copy of the invoice was attached and the same was shown to the authorities at the time of investigation and they do not properly looked into and the petitioner-accused did not conduct any MTP and thereby, the filing of the complaint is nothing but to harass for no defects as if defects were there.

In support of the said explanation of the petitioner-accused, the learned counsel for the petitioner-accused placed reliance on the expression of the Division Bench of the Mumbai High Court in Criminal Writ Petition No.1381 of 2015 between Dr.Sai vs.

specific genetic abnormalities or disorders, permitting the use of such techniques only under certain conditions by the registered institutions and to provide for stringent punishment for violation of the provisions of the legislation; and in order to regulate the working of the genetic counseling centre, laboratory, ultrasound centre, the detail procedure has been provided for maintenance of the record, inspection of record and penal consequences for violating such regulatory mechanism by the genetic centre laboratory, sonography centre, imagining centre for determination of sex of foetus leading to female foeticide and creating imbalance in the male and female child.

5.

From the above principles, coming to the case on hand, regarding the full particulars of the patients of the villages are concerned, it is stated in the reply that there is a specific identity from name and surname of the villagers and that as there was no sex determination done, there is no violation at all as pointed out, much less with dishonest intention by abusing any of the provisions of the Act and the Rules made thereunder to deter the very purpose and object of the Act.

6. Having regard to the above facts and circumstances of the case, the prosecution is unsustainable and the continuance of the same is nothing but abuse of the process of law.

7.

The Criminal Petition is, accordingly, allowed and the proceedings in C.C.No.657 of 2014 on the file of the Judicial First Class Magistrate, Miryalguda are quashed.

_________________________________ DR. B.SI VA SANKARA RAO, J 04th October, 2017 GHN