CRREF/420/2008 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REFERENCE No. 4 of 2008 With CRIMINAL REFERENCE No. 3 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE M.S.SHAH Sd/- HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- HONOURABLE MR.JUSTICE AKIL KURESHI Sd/- ============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? Yes to all Judicial Magistrate in the State (FC) ============================================== SUO MOTU - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ============================================== Appearance : SUO MOTU for Applicant(s) : 1, MR SUNIT S SHAH PUBLIC PROSECUTOR for Respondent(s) : 1, ============================================== CORAM : HONOURABLE MR JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE AKIL KURESHI CRREF/420/2008 2/24 JUDGMENT Date : 30/09/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. By these References, learned single Judge has referred the following issues for consideration and opinion: "(i) Whether under the provisions of section 28 of the Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the Appropriate Authority? (ii) Whether the provisions of the proviso to sub-section (3) of section 4 of the PNDT Act require that the complaint should contain specific allegations regarding the contravention of the provisions of sections 5 and 6 of the Act? (iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of section 5 or 6 of the PNDT Act? (iv) Whether any deficiency of inaccuracy in filing Form-F as required under the statutory provisions is merely a procedural lapse?" 2. Above issues have come to be referred on account of the learned single Judge not agreeing with the following observations and conclusions expressed by another learned single Judge in Dr.Manish C. Dave v. State of Gujarat [2008 (1) GLH 475] : "10. ....Therefore, the complaint should be filed by Appropriate Authority or any officer authorised in this behalf by the Central Government of State Government and the person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority of the alleged offence and of his intention to make a complaint to the Court. Admittedly, the complaints were not filed by Appropriate Authority or any CRREF/420/2008 3/24 JUDGMENT officer authorised in this behalf. There is nothing on record to show that the persons who have filed the complaints have given notice as per Section 28 (b) of the Act. In view of these facts, I am of the view that the complaints become bad in law. .... .... .... "15. From a bare perusal of the complaints, it is apparent that it is not the case of the authority that provisions of Section 5 or 6 are applicable inasmuch as the authority has not been able to show or even alleged that (i) any pregnant woman or her relative or any other person has been communicated the sex of foetus by the petitioners or (ii) at any place and by any person, including the person conducting ultrasonography, there has been either sex determination or sex selection. In absence of such specific allegations in the complaint, it cannot be said that provisions of sections 5 and 6 of the Act would be attracted. "16. Reading the proviso to section 3, it is to be presumed that the deficiency or inaccuracy in the record would amount to contraventions of the provisions of section 5 or section 6 of the Act. As a natural consequence, in view of such deficiency or inaccuracy, there should be allegation of contravention of provisions of sections 5 and 6 of the Act. In the present case, there are no specific allegations in the complaint pertaining to the provisions of sections 5 and 6. Apart from that, the language of sections 5 and 6 is prohibitory in nature and therefore the burden of proof will be on the authority to prove that there was contravention and thereupon to rely on the provisions of Statutory Form-F for filing criminal complaint. .... .... .... "18. As far as section 4 (3) is concerned, it is the case of the petitioners that the register is maintained with all the columns which fall within the four corners of the duties and functions of the petitioners. Apart from that, no opportunity is afforded to the petitioners to prove contrary and put up their case. Further, such deficiency or inaccuracy, at least so far as the present proceedings are concerned, is merely a procedural lapse, which do not in any manner contravene the provisions of sections 5 and 6 of the Act. "19. In view of the above, when it is not established that there is contravention of the provisions CRREF/420/2008 4/24 JUDGMENT of Sections 5 or 6, the contention regarding any inaccuracy or deficiency in Form-F will not be applicable and therefore the complaints themselves are not maintainable. I am, therefore, of the view that the complaints do not prima facie establish any alleged offence against the petitioners." The questions referred in Reference No.4 of 2008 include the issue referred in Reference No.3 of 2008 and they are heard and disposed as references under Rule 5 of the Gujarat High Court Rules, 1993. 3. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short "the Act") is enacted for the avowed purpose of prohibiting 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 sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. Relevant statutory provisions of the Act, as amended by the Act 14 of 2003, read as under: "2 Definitions- In this Act, unless the context otherwise requires- (a) "Appropriate Authority" means the Appropriate Authority appointed under section 17; (i) "pre-natal diagnostic procedures" means all gynaecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo, blood or any other tissue or fluid of a man, or of a woman before or after conception, for being sent to a Genetic CRREF/420/2008 5/24 JUDGMENT Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception; (j) "Pre-natal diagnostic techniques" includes all pre-natal diagnostic procedures and pre-natal diagnostic tests; (k) "pre-natal diagnostic test" means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases; (l) "prescribed" means prescribed by rules made under this Act. CHAPTER III REGULATION OF PRE-NATAL DIAGNOSTIC TECHNIQUES 4. Regulation of pre-natal diagnostic techniques- On and from the commencement of this Act - (1) no place including a registered Geneteic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3); (2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely- (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) haemoglobinopathies; (iv) sex-linked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board; (3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely- CRREF/420/2008 6/24 JUDGMENT (i) age of the pregnant woman is above thirty-five years; (ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss; (iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; (iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease; (v) any other conditions as may be specified by the Board: Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography; (4) no person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre- natal diagnostic techniques on her except for the purposes specified in clause (2); (5) no person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both. 5. Written consent of pregnant woman and prohibition of communicating the sex of foetus- (1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless- (a) he has explained all known side and after effects of such procedures to the pregnant woman concerned; (b) he has obtained in the prescribed form her written consent to undergo such procedures in the CRREF/420/2008 7/24 JUDGMENT language which she understands; and (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman. (2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner. 6. Determination of sex prohibited- On and from the commencement of this Act- (a) no Genetic Counselling Centre or Genetic Laboratory or Geneteic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Cinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus; (b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus. (c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception. CHAPTER V APPROPRIATE AUTHORITY AND ADVISORY COMMITTEE 17. Appropriate Authority and Advisory Committee- (1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union Territories for the purposes of this Act. (2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide. (3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be,- (a) when appointed for the whole of the State or the CRREF/420/2008 8/24 JUDGMENT Union territory, consisting of the following three members:- (i) an officer of or above the rank of the Joint Director of Health and Family Welfare- Chairperson; (ii) an eminent woman representing women's organization and (iii) an officer of Law Department of the State or the Union territory concerned; Provided that it shall be the duty of the State or the Union territory concerned to constitute multi-member State or Union territory level Appropriate Authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002: Provided further that any vacancy occurring therein shall be filled within three months of the occurrence; (b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be may deem fit. (4) the Appropriate Authority shall have the following functions, namely- (a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic; (b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic; (c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action; (d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on CRREF/420/2008 9/24 JUDGMENT application for registration and on complaints for suspension or cancellation of registration; (e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigation in such matter; (f) to create public awareness against the practice of sex selection or pre-natal determination of sex; (g) to supervise the implementation of the provisions of the Act and rules; (h) to recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions; (i) to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of registration. CHAPTER VII OFFENCES AND PENALTIES 22. ... ... ... 23. Offences and penalties:- (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees. (2) The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and CRREF/420/2008 10/24 JUDGMENT on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence. (3) Any person who seeks the aid of any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre-natal diagnostic techniques on any pregnant woman for the purposes other than those specified in sub-section (2) of section 4, he shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. (4) For the removal of doubts, it is hereby provided, that the provisions of sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection. 28. Cognizance of offences- (1) No court shall take cognizance of an offence under this Act except on a complaint made by- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and for his intention to make a complaint to the court. Explanation.- For the purpose of this clause, "person" includes a social organisation. CHAPTER VIII MISCELLANEOUS 29. Maintenance of records- (1) All records, charts, forms, reports, consent letters and all the documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed: CRREF/420/2008 11/24 JUDGMENT 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." 3.1 In exercise of the powers conferred by section 32 of the Act, the Central Government has made the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short, "the Rules") of which following provisions, as amended by notification [G.S.R.109 (E)] dated 14.02.2003, may be relevant: "9. Maintenance and preservation of records- (1) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall maintain a register showing, in serial order, the names and addresses of the men or women given counselling, subjected to pre-natal diagnostic procedures or pre- natal diagnostic tests, the names of their spouses or fathers 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 specified 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. (4) The record to be maintained by every 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 CRREF/420/2008 12/24 JUDGMENT registration as specified in Form H. Letters of intimation of every change of employee, place, address and equipment installed shall also be preserved as 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 or Imaging Centre for a period of two years from the date of completion of counselling, pre-natal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the record shall be preserved till 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 Centre 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. 10. Conditions for conducting pre-natal diagnostic procedures- (1) Before conducting preimplantation genetic diagnosis, or any pre-natal diagnostic technique/test/procedure, such as amniocentesis, chorionic villi biopsy, foetoscopy, foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him: Provided that where a Genetic Clinic has taken a sample of any body tissue or body fluid and sent it to a Genetic Laboratory for analysis or test, it shall not be necessary for the Genetic Laboratory to obtain a fresh consent in Form G. (1A) Any person conducting ultrasonography/image scanning CRREF/420/2008 13/24 JUDGMENT on a pregnant woman shall give a declaration on each report on ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to any body. The pregnant woman shall before undergoing ultrasonography/ image scanning delcare that she does not want to know the sex of her foetus. (2) All the State Governments and Union territories may issue translation of Form G in languages used in the State or Union Territory and where no official translation in a language understood by the pregnant woman is available, the Genetic Clinic may translate Form G into a language she understands." "14. Conditions for analysis or test and pre-natal diagnostic procedures- (1) No Genetic Laboratory shall accept for analysis or test any sample, unless referred to it by a Genetic Clinic. (2) Every pre-natal diagnostic procedure shall invariably be immediately preceded by locating the foetus and placenta through ultrasonography, and the pre-natal diagnostic procedure shall be done under direct ultrasonographic mnitoring so as to prevent any damage to the foetus and placenta." "18. Code of conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centre, etc. All persons including the owners, employee or any other persons associated with Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centres registered under the Act/these Rules shall- (i) not conduct or associate with, or help in carrying out detection or disclosure of sex of foetus in any manner; (ii) not employ or cause to be employed any person not possessing qualifications necessary for carrying out pre-natal diagnostic techniques/ procedures and tests including ultrasonography; (iii) not conduct or cause to be conducted or aid in conducting by himself or through any other person CRREF/420/2008 14/24 JUDGMENT any techniques or procedure for selection of sex before or after conception or for detection of sex of foetus except for the purposes specified in sub- section (2) of section 4 of the Act; (iv) not conduct or cause to be conducted or aid in conducting by himself or through any other person any techniques or test or procedure under the Act at a place other than a place registered under the Act/these Rules; (v) ensure that no provision of the Act and these rules are violated in any manner; (vi) ensure that the person, conducting any techniques, test or procedure leading to detection of sex of foetus for purposes not covered under section 4 (2) of the Act or selection of sex before or after conception, is informed that such procedures lead to violation of the Act and these rules which are punishable offences; (vii) help the law enforcing agencies in bringing to book the violators of the provisions of the Act and these Rules; (viii) display his/her name and designation prominently on the dress worn by him/her; (ix) write his/her name and designation in full under his/her signature; (x) on no account conduct or allow/cause to be conducted female foeticide; (xi) not commit any other act of professional misconduct." 3.2 Form-F prescribed for maintaining the records under Rule 9 (4) and Rule 10 (1A) is as under: "FORM F (See proviso to section 4 (3), rule 9(4) and rule 10 (1A) FORM FOR MAINTENANCE OF RECORD IN RESPEPCT OF PREGNANT WOMAN BY GENETIC CLINIC/ULTRASOUND CLINIC/IMAGING CENTRE. CRREF/420/2008 15/24 JUDGMENT 1. Name and address of the Genetic Clinic/ Ultrasound Clinic/Imaging Centre. 2. Registration No. 3. Patient's name and her age 4. Number of children with sex of each child 5. Husband's/Father's name 6. Full address with Tel.No.,if any. 7. Referred by (full name and address of Doctor(s)/Genetic Counselling Centre (referral note to be preserved carefully with the