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Bombay HC overturns conviction of doctor for determining gender of unborn child

After hearing submissions on both sides and perusing material on record, the HC bench observed that both the Magistrate and the Sessions Court had erred in passing a conviction order.

Written by Omkar Gokhale | Mumbai | December 3, 2020 3:38:40 pm
In third such sentence, Manipur court awards death to man convicted of rape and murderPolice submitted two charge sheets in the case on January 13, 2017 and December 4, this year. As many as 20 prosecution witnesses deposed during the trial. (Representational Image)

The Bombay High Court recently quashed the conviction of a doctor accused of conducting a prenatal test on a woman in 2006 for a sum of Rs. 3000.

Challenging the trial court verdict, the doctor had moved the high court, claiming that his conviction under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 was not supported by evidence found in his clinic and should, therefore, be set aside.

The HC observed that the trial court had erred by not taking into consideration the facts of the case. It quashed the lower court order, ruling that proper procedure wasn’t followed while registering a case against Mohankumar Nagane, a radiologist and an administrative medical officer at a chest hospital in Pune.

A single-judge bench of Justice Prithviraj K Chavan overturned the conviction in response to a criminal revision application filed by Nagane on November 27. The doctor also runs a private clinic in Pune.

Abhijeet Desai, the advocate representing the doctor, told the court that in January 2006, the medical director of Pimpri Chinchwad Municipal corporation sent a ‘decoy’ to Nagane’s clinic for a sonography test. The move followed a complaint lodged by a social worker, he added.

Based on the information provided by the decoy and an aide, who had accompanied her, a complaint was filed against Nagane stating that he had disclosed the gender of the foetus in the decoy’s womb to be a male and had sought Rs 3000, which was paid the next day. Nagane was charged under section 17 of the PCPNDT Act and tried by the judicial magistrate in 2011.

After being convicted by the magistrate, Nagane moved an appeal with the Sessions Court in 2013. However, the appeal was dismissed, prompting Nagane to move the high court.

Desai submitted that there were several lapses in the conviction order and the medical director was not the competent authority to initiate the action at the doctor’s clinic. He also said the director did not follow procedure, which was to receive the notice of complaint from the social worker 15 days in advance, and sent a decoy within two hours of receiving the complaint.

Desai also submitted that the amount alleged to have been paid to the doctor was not found in his clinic but in a car owned by someone else, which Nagane would use at times.

However, additional Public Prosecutor SV Sonawane argued that a notification was issued in May 2006, through which, the medical officer was deemed to be a competent authority to initiate action against the doctor under the PCPNDT Act and, therefore, his action was justified.

But the medical officer, through his advocate Deepak More, admitted that he had not followed the procedure of receiving a representation from the social worker 15 days in advance before initiating action against the applicant medical practitioner.

After hearing submissions on both sides and perusing material on record, the HC bench observed that both the Magistrate and the Sessions Court had erred in passing a conviction order.

“Such observation merits to be laughed at and wept over at one and the same time…Thus, where powers have been given to do certain things in a certain way, the things must be done in that way or not at all. The Courts below have deviated from the said path…,” the bench said.

The Court also held that the complainant was found to be ‘defective’ and though the money was not found in the premise of Nagane’s clinic and the medical director had acted beyond his powers, both the trial courts failed to take cognisance of these facts.

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