Even without harassing Doctors, the aims and objects of PCPNDT Act can be achieved. - Hon. bombay high Court. - Adv. ROHiT ERANDE.©
"The Complaint was filed after 3 years of the alleged incident, speaks volumes "
Adv. ROHiT ERANDE.
BEFORE HON'BLE BOMBAY HIGH COURT
CRIMINAL APPLICATION NO. 399 OF 2022
Chandrashekhar M. Gattani and anr .. Applicant
V/s
State of Maharashtra and anr .. Respondents
…
CORAM: Hon. BHARATI DANGRE,
J. :
Order dated : 7th SEPTEMBER, 2023
Facts in brief
:
1. The matter goes back to the year 2014 when the Complaint was filed against two applicants; the applicant no. 1 being a Qualified Radiologist and running his clinic in the name and style of ‘Dr. Gattani’s Clinic’ in Nashik and has obtained the necessary registration certificate for his clinic as contemplated under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994. As far as the applicant no. 2, the wife of applicant No. 1 is concerned, she is working as a Chief Casualty Medical Officer in Mayo Institute.
2. The accusations leveled against them, in the complaint filed in the year 2014 is, that on 5/07/2011, the Authorized Officer visited the private clinic of the applicant No. 1 situated at Sathye Baugh, where applicant no. 2 was found operating an OPD, with a Sonography machine in the said clinic. It is the case of the respondent that the applicant no. 1 was not present and the applicant No. 2 was operating the machine and on actual inspection, she could not produce the Referral Slips, Consent form, case card etc.
3. The inspection report dated 5/07/2011 has recorded as under :-
5. Thereafter on 13/07/2011, when the applicant no. 1 arrived back in the city, once again the team visited the clinic, and unsealed the clinic, though they did not remove the seal on the machine. The panchnama dated 13/07/2011 record that the registration certificate of the clinic was taken in possession and even the X-ray and Sonography receipts as well as the consent forms were also seized. The exercise was carried out in presence of two independent medical practitioners and also on the applicant no. 1, being present and resulted into the aforesaid compliant.
Held :
The Hon’ble Court has come heavily on the Authorities.
a. The Court observed that this is just but another case, where the medical practitioners are subjected to persecution, causing lot of harassment, as it can be clearly seen that sub-section (3) of Section 4 necessarily contemplate conduct of pre-natal diagnostic test by a person, who is not qualified to do so and do not fulfill the conditions stipulated therein.
b. Admittedly, respondent authority had no evidence to establish that the applicant no. 2 was operating the said machine and Ms. Deshmukh, who has filed the reply, as per the instructions, is also unable to offer any justification on that count.
c. The fact, therefore, remains that the complaint under sub-section (3) of section 4 is not based on any material to establish that an unqualified person was operating the clinic, where the sonography machine was placed and which had already obtained the requisite registration under the Act.
d. Apart from this, as far as other violations, are concerned, it is also evident that on the second visit to the clinic i.e. on 13/07/2011, in presence of the applicant no. 1, the necessary documents were handed over and were taken into custody.
e. In fact, since it is the case of the applicant no.2, that she attended the clinic upon a call being received from an employee working in the clinic, she was not able to offer any documents as she was not operating the clinic and the report of inspection dated 5/07/2011 clearly records that these documents are not provided. But as soon as the applicant no. 1, arrived in the clinic, he made all these necessary documents available to the Inspection Team and they were seized on the second visit.
f.
Surprisingly, though the incident reported is
alleged to have taken place in the
year 2011, almost after period of 3 years, the
complaint is filed. This speaks of volumes.
g.
The Hon’ble Court further stated that It is true that the
Act of 1994, which is enacted to prevent sex selection before or after conception and Pre-natal Diagnostic Techniques are to be restricted for the purpose
of detecting genetic
abnormalities or metabolic disorders and as such require strict implementation, but this definitely do not
warrant such obsolete exercises, which but for harassment of the medical
practitioners, do not yield
any outcome.
h.
The Court stated that reading of Sec.17 of the Act
does not mean
that it is the prerogative of this authority
to file frivolous complaints, merely on the basis of assumptions
and surmises, which would ultimately result into grave humiliation to the professionals and also have its adverse
impact on their clinics, since it is
possible that a blemish will tarnish
their image and would adversely effect the medical
profession, as a whole.
i.
With only hope and trust that the respondent
authority, in future, shall entail caution,
while exercising the power conferred
upon them under the Act of 1994, it is expected that they shall keep in mind the avowed purpose
of the legislation and avoid all such unwarranted accusations against the professionals. The present case is
a classic example, where it can be said that the respondents have clearly
misused their powers.
j.
Lastly the Court observed that, though I am convinced that the conduct
shall result in imposition of cost upon the respondent authorities, I deem it appropriate to refrain myself from doing
so, with the expectation that the
observations made in the order would deter the public authorities from acting
in such an arbitrary manner and
dismissed all the charges against the Petitioners .
This judgment is the silver lining for the Doctors who are opposing
the draconian Law. The main cause of Female Feticide is the mindset of people,
the obsession for male child over female child. It is said that “If men are pure, laws are useless, If men are
corrupt, Laws are broken !”.
I think rather the sex determination should be made legal and should be disclosed
as it is done in western countries. So that then the burden will be on the
shoulders of the family and not on the Doctors !
If the hon'ble Court would have saddled costs upon the authorities, it would have been the cherry on the top for Medicos !
Thanks and Regards
Adv. ROHiT ERANDE
Pune.
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