High Court of Punjab and HaryanaCRR/2686/2010dismissed

Pushap Lata v. State Of Punjab And ANR.

2026-04-10Justice (To Be Nominated)24 pages

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"130. The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case.

11131. xxxx xxxx xxxx

132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

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Applying the above reproduced observations to the present case, I may state that the 1994 Act is a social welfare legislation. It is a law enacted to prohibit sex selection leading to female foeticide. It in fact aims to arrest the declining sex ratio in our country. It's objectives declare that it provides for prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic techniques for preventing misuse thereof for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. It was conceived in the light of the skewed sex ratio in our country and to avoid the consequences of the same. It is an effort to save the girl child. It's focus is to preserve right to life of a girl child under Article 21 of our Constitution.

It's Section 4 regulates pre-natal diagnostic techniques whereas Section 6 thereof prohibits sex determination. Section 23 of the said Act talks of offences and penalties under it. Section 29 of the said Act regulates maintenance of records. The said section is reproduced as under: "29. Maintenance of records.

14for a period of two years or for such period as may be prescribed:

Provided that, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such proceedings.

2. All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorised by the Appropriate Authority in this behalf."

18.

In exercise of the powers conferred under Section 32 of the said Act, the Central Government has made 1996 Rules. Rule 9 thereof also talks of maintenance and preservation of records. The said rule is accordingly reproduced as under:

"9. Maintenance and presenration of records.-[(1) Every Genetic Counselling Centre, Genetic Laboratory, [Genetic Clinic including a Mobile Genetic Clinicl, Ultrasound Clinic and Imaging Centre shall maintain a register showing, in serial order, the names and addresses of the men or women given genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouse or father and the date on which they first reported for such counselling, procedure or test.]

(2) The record to be maintained by every Genetic Counselling Centre, in respect of each woman counselled shall be as specfied in Form D.

[(3) The record to be maintained by every Genetic Laboratory, in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form E.]

15- [(4) The record to be maintained by every [Genetic Clinic including a mobile Genetic Clinic], in respect of each man or woman subjected to any pre-natal diagnostic procedure/ technique/test, shall be as specified in Form F.]

(5) The Appropriate Authority shall maintain a permanent record of applications for grant or renewal of certificate of registration as specified in Form H. Letters of intimation of every change of employee, place, address and equipment installed shall also be preserved a permanent records.

(6) All case related records, forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by the [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imagrng Centre] for a period of two years from the date of completion of counselling, prenatal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the records shall be preserved till the final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is later.

(7) In case the [Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic or Ultrasound Clinic or Imaging Centrel maintains records on computer or other electronic equipment, a printed copy of the record shall be taken and preserved after authentication by a person responsible for such record.

[(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall send a complete report in respect of all pre-conception or pregnancy related procedures/techniques/tests conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority.]"

1619.

In respect of preparation of Form F mentioned in Rule 9 of the 1996 Rules, Hon'ble the Supreme Court, in the report "Federation of Obstetrics and Gynaecological Societies of India (FOGSI) Vs. Union of India", (2019) 6 SCC 283, observed as under:- "98. Non-maintenance of record is springboard for commission of offence of foeticide, not just a clerical error. In order to effectively implement the various provisions of the Act, the detailed forms in which records have to be maintained have been provided for by the Rules. These Rules are necessary for the implementation of the Act and improper maintenance of such record amounts to violation of provisions of Sections 5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. In addition, any breach of the provisions of the Act or its Rules would attract cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, by the appropriate authority as provided under Section 20 of the Act.

99. There is no substance in the submission that provision of Section 4(3) be read down. By virtue of the proviso to Section 4(3), a person conducting ultrasonography on a pregnant woman, is required to keep complete record of the same in the prescribed manner and any deficiency or inaccuracy in the same amounts to contravention of Section 5 or Section 6 of the Act, unless the contrary is proved by the person conducting the said ultrasonography. The aforementioned proviso to Section 4(3) reflects the importance of records in such cases, as they are often the only source to ensure that an establishment is not engaged in sex determination.

100. Section 23 of the Act, which provides for penalties of offences, acts in aid of the other sections of the Act is quite reasonable. It provides for punishment for any medical geneticist, gynaecologist, registered medical practitioner or a

17person who owns a Genetic Counselling Centre, a Genetic Clinic or a Genetic Laboratory, and renders his professional or technical services to or at the said place, whether on honorarium basis or otherwise and contravenes any provisions of the Act, or the Rules under it.

101. Therefore, dilution of the provisions of the Act or the Rules would only defeat the purpose of the Act to prevent female foeticide, and relegate the right to life of the girl child under Article 21 of the Constitution, to a mere formality.

102. In view of the above, no case is made out for striking down the proviso to Section 4(3), provisions of Sections 23(1), 23(2) or to read down Section 20 or 30 of the Act. Complete contents of Form F are held to be mandatory......" 20.

The complainant says that when clinic of the petitioner was inspected on 19.01.2005, discrepancies/violations/omissions enumerated in the present complaint were detected to have been committed by the petitioner. The complainant then says that the said violations/omissions are contrary to Section 29 of the 1994 Act read with Rule 9 of 1996 Rules. To prove his such stand, the complainant has produced/exhibited documents Ex.C3 to C58 on record. A perusal of the documents Ex.C3 to C51 i.e. copies of Form F prepared by clinic of the petitioner shows that the same do not contain signatures of the Doctor conducting ultrasonography etc. on the concerned patient/s. Preparation of the said form, as held by the Hon'ble Supreme Court in the above-stated report, is mandatory. The said form is required to be maintained under Rule 9(4) of the 1996 Rules. The petitioner, at no stage, has come forward with a plea that the said documents do not belong to her clinic. May be that at one

18stage, she says that the complainant has forged reports Ex.C57 and Ex.C58. At the same time, she nowhere has come forward with the plea that the documents Ex.C3 to Ex.C51 were not recovered from her clinic on 19.01.2005. Other violations mentioned in the complaint, in the facts/ circumstances of the present case, have categorically been deposed to have been committed by clinic of the petitioner. However the petitioner nowhere has come forward with a plea that documents Ex.C3 to Ex.C51 were not taken into possession from her clinic. Rather, a perusal of document Ex.C58 shows that the said documents were taken into possession from her clinic and reports Ex.C57 & C58 were handed-over to her. CW1 Dr.S.P.Gupta has also deposed in that regard. The said facts/omissions on the part of the petitioner and her clinic, therefore, are clear-cut violations of Section 29 of the 1994 Act read with Rule 9 of the 1996 Rules.

21.

Coming to the argument of learned counsel for the petitioner that procedure prescribed in Section 30 of the 1994 Act read with Rule 12 of the 1996 Rules was not followed by the complainant at the time of inspecting the premises in question, I may observe that no doubt the procedure adopted by the complainant at the time of inspecting the clinic of the petitioner does not comply with the said seciton/rule in letter and spirit. At the same time, the said inspection is stated to have resulted into recovery of the above-stated documents from clinic of the petitioner. Only on the ground of non-compliance of the said section/rule meticulously, the documents seized during search of the premises in question which the petitioner does not dispute to be belonging to her clinic, are evidence

19which can certainly be taken into consideration for deciding the matter in question. In fact, in the report "Radha Kishan Vs. State of Uttar Pradesh", AIR 1963 SC 822, in respect of search operations under Sections 103 and 165 of the 1973 Code, a three Judge Bench of the Hon'ble Supreme Court held that even if it is assumed that the search was illegal, the seizure of the articles is not vitiated. In the said report, Hon'ble the Supreme Court observed as under:

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22.

In a report "Dr.Naresh Kumar Garg Vs. The State of Haryana & others", 2026 SCC Online SC 295, Hon'ble the Supreme Court, in respect of the evidence collected during an illegal search, observed as under:

20- "50. While there is infraction of Section 30 of the PCPNDT Act qua the search carried out by the respondents on Vatika Medicare in as much as it was an individual decision of the Chairperson instead of being the collective decision of the District Appropriate Authority which has vitiated the search, and in this connection we are bound by the ratio laid down by the Coordinate Bench in Ravindra Kumar; we are however of the view that the evidence collected in the course of the search in the form of the seized record etc cannot be discarded altogether, like the baby with the bath water. While the search may be illegal, the materials or evidence gathered or collected in the course of such search can still be acted or relied upon subject to the rule of relevancy and the test of admissibility. We are fortified in adopting such a view by several decisions of this Court a couple of which are by Benches of larger strength.

51.

xxx xxx xxx

52. R.M. Malkani Vs. State of Maharashtra 1973 (1) SCC 471 is a two-Judge Bench decision of this Court. In that case, this Court was examining admissibility of tape recorded conversation. In that context, this Court held that tape recorded conversation is admissible provided, firstly, the conversation is relevant to the matter in issue; secondly, there is identification of the voice; and thirdly, the accuracy of the tape recorded conversation is proved. Rejecting the contention of the appellant that the tape recorded conversation was obtained by illegal means, this Court held that even if evidence is illegally obtained, it is admissible. However, by expressing a word of caution, this Court observed that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. This Court referred to with approval its earlier decision in Magraj Patodia Vs. R.K.

21Birla AIR 1971 SC 1295 which held that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved. Referring to English decisions, this Court held that as long as evidence is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible.

53. A Constitution Bench of this Court in Pooran Mal Vs. Director of Inspector (Investigation), New Delhi (1974) 1 SCC 345 was examining a challenge to search and seizure of certain premises under Section 132 of the Income Tax Act, 1961 on the ground that the authorisation for the search as also the search and seizure were illegal. After referring to various provisions of the Indian Evidence Act, 1872, this Court opined that it had permitted relevancy as the only test of admissibility of evidence; the Indian Evidence Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure. Elaborating further, this Court held that courts have a discretion to admit evidence obtained as a result of illegal search. Unless there is an express or necessarily implied prohibition in law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. Finally, the Constitution Bench concluded as under:

25. In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of Section 132 of the Income Tax Act, still the material seized was liable to be used subject to law before the Income tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted. It must be, therefore, held that the High Court was right in dismissing the two

22writ petitions. The appeals must also fail and are dismissed with costs."

23.

Keeping in view the above reproduced observations, documents C3 to C51, despite the fact that at the time of seizing the same, procedure prescribed in Section 30 of the 1994 Act and Rule 12 of the 1996 Rules was not meticulously followed, since the said documents are relevant and admissible in evidence in the present case, could certainly be taken into consideration to decide the matter in question. If the same are taken into such consideration, it is proved that the petitioner and her clinic have violated Section 29 of the 1994 Act read with Rule 9(4) of the 1996 Rules. No doubt the petitioner says that the document Ex.C57 is not the same as is the document Ex.D1. At the same time, a perusal of the document Ex.

D1 also shows that it demonstrates that record of ultrasound performed on pregnant mothers was not kept as per declaration of the registration form. It also records that copy of the report of ultrasonography had not been kept by the clinic of the petitioner. Therefore, contents of the document Ex.D1 also show and establish non-compliance of Section 29 of the 1994 Act and Rule 9 of the 1996 Rules. The said document has been signed by Dr.Sunita Goyal as well as the complainant. It also contains signatures of one Om Parkash and Dr.Surinder. Same is the case with document Ex.C57. It also contains signatures of the said Om Parkash and Dr.Surinder. May be that factum of their signing the said documents has not come on record. At the same time, the document Ex.D1 is stated to have been received by the petitioner herself.

She admits the same to have been received by her against her signature.

23at the time of seizure in question. If that is so, Section 30 of the 1994 Act and Rule 12 of the 1996 Rules appear to have been materially complied with at the time of conducting the search in question. Even noncompliance of the said provisions, considering relevancy and admissibility of the documents Ex.C3 to Ex.C51, for what has been observed above, has no significance. The document Ex.D1 specifically mentions that remarks were contained in the report submitted by PW1 Dr.S.P.Gupta. Report in that regard prepared by him is Ex.C58. It establishes violations/omissions done by clinic of the petitioner as referred to above. The said documents have been proved by the prosecution on record. PW1 Dr.S.P.Gupta and CW3 Dr.Sunita Goyal have deposed about the search in question in minute details.

The petitioner does not dispute that the search in question took place on the above-stated date and time. She also does not dispute that the above-stated documents were not taken into possession from her clinic on the said date. In the absence of such dispute, it does not lie in the mouth of the petitioner to contend that the impugned judgments and order are liable to be set aside for alleged non-compliance of the said provisions. 24.

No doubt the petitioner is stated to be now 80 years old. At the same time, considering the acts/omissions committed by her in violation of the provisions of the 1994 Act and the 1996 Rules, no leniency can be shown to her in the matter of imposition of sentence also. 25.

I have also minutely perused the impugned judgments and order. However, I am of the considered opinion that there is no manifest error on the point of law resulting in flagrant miscarriage of justice in the same. They have not caused any mnifest illegality or miscarriage of

24justice. Reappreciation of evidence is not permissible while exercising a revisional jurisdiction. Non-compliance of the procedure prescribed in the 1994 Act and 1996 Rules in the present case has already been held as inconsequential. Findings rendered in the said judgments and order are not perverse or unreasonable. The same do not show neglect of proper precaution or apparent harshness of treatment resulting in undeserved hardship to the petitoner. Interest of justice does not require exercise of revisional power in the present case. Such power cannot be exercised capriciously or arbitrarily and rather it should be exercised based on sound principles. The impugned judgments and order have done real and substantial justice in the matter. Arguments of the learned counsel for the petitioner therefore have no substance and are accordingly rejected. .; > 2

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