Female foeticide crude manifestation of discrimination against women, girl child: Supreme Court

Background

• In 2015 the chairman, district appropriate authority-cum-civil surgeon, Gurugram received a complaint alleging that a doctor was running a racket of illegal sex-determination.
• The chairman constituted a three-member team along with support staff to conduct a raid and investigate the complaint.
• A decoy patient was allegedly taken to a diagnostic facility where an ultrasound was conducted.
• It was alleged that a doctor agreed to the proposal but demanded Rs. 25,000 for carrying out sex-determination of the foetus and thereafter to disclose the same.
• The doctor allegedly said that the appellant-radiologist would conduct the ultrasound on the patient in order to determine the sex of her foetus.
• The complainant alleged that the appellant conducted the ultrasound on the patient.
• Following this an FIR was registered by the police. After investigation police filed a discharge application before the trial court stating that there was no incriminating material against the appellant. The trial court allowed the application filed by the police and discharged the appellant.
• Subsequently, in 2018, the district appropriate authority filed a separate complaint under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), leading to a summoning order by the Judicial Magistrate First Class. The Punjab and Haryana High Court had earlier refused to quash the complaint.

Supreme Court’s observation

• While there is infraction of Section 30 of the PCPNDT Act qua the search carried out by the respondents on the hospital 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, 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.
• 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.
• The contention is that after discharge of the appellant, the criminal complaint is not maintainable since it is based on the same set of facts.
• Such a submission cannot be accepted. Section 28(1) of the PCPNDT Act specifically says that no court shall take cognizance of an offence under the PCPNDT Act except on a complaint made by the appropriate authority or by any officer authorised by the appropriate authority etc.
• Further, as per Rule 18A (3) (iv) of the PCPNDT Rules, the appropriate authority should not involve police for investigating cases under the PCPNDT Act as the cases under this Act are tried as complaint cases under the CrPC.

‘Trial can’t be nipped in bud’

• In any case, the police in the discharge application mentioned that appellant had infact conducted ultrasound on the decoy pregnant woman but had not carried out sex determination.
• However, police investigation revealed discrepancies in the maintenance of record for which it was pointed out that there are provisions in the PCPNDT Act for filing of a complaint case.
• As per the proviso to sub-section (3) of Section 4 of the PCPNDT Act, it is the duty of the person conducting ultrasonography on a pregnant woman to 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 under the PCPNDT Act.
• In so far the present case is concerned, prima facie it has come on record that appellant had conducted ultrasonography on the pregnant woman.
• Whether or not he has maintained the record as required under the law in addition to nondisclosure of the sex of the foetus is a matter for trial. Therefore, it is not a case where the trial should be nipped in the bud.
• Having regard to the discussions made above and for the reasons recorded, the complaint cannot be quashed.