State's Goal To Check Female Foeticide Due To "Illegal" Sex Determination At Diagnostic Centres "Laudable" But It Must Comply With Law: Karnataka HC

The Karnataka High Court has said that the State's object to check female foeticide cases due to "illegal" sex determination at diagnostic centres is "laudable", but there must be compliance of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT) as every centre cannot be "painted with the same brush". 

A single judge bench of Justice M. Nagaprasanna made the observation while allowing a petition–filed by Dr Subhalakshmi N and another doctor–set aside the criminal proceedings initiated against them pursuant to a complaint by the District Appropriate Authority alleging offences under Sections 20(1),(2),(3) and 23(1) and (2) of the PCPNDT Act. The first petitioner is the proprietor of a diagnostic centre named  'Medizone Medical Centre' and the second petitioner is a certified registered operator of the ultrasound machine at the centre. 

The state government had opposed the plea contending that there are serious lacunae in the maintenance of the diagnostic centre. If leniency is shown to these petitioners, they would indulge in the tests of sex determination as well as the State is on a serious look out of checking sex determination being done illegally resulting in female foeticide, it said. 

 The high court however underscored, “The object of the State is laudable, as it is imperative today to check the growth of cases of female foeticide which happen due to determination of sex at the diagnostic centres illegally. While that cannot be brushed aside for implementation, without compliance with the provisions of the Act, as every diagnostic centre cannot be painted with the same brush.”

Contentions

The prosecution had claimed that on an inspection on 08-12-2023 at the Centre, it was found that signatures of the patients on whom the scan was done was missing on Form F and thus the scanning machine was seized. Later prosecution was initiated and a show cause notice was issued for suspension of registration, but on the same day seizure, closure and locking of the scanning machine had happened.

The petitioners had argued that the signatures of the patients were taken in the register. It is not that the scanning was done without prescriptions from respective doctors. Placing reliance on the guidelines issued by Government of India, in the Ministry of Health and Family Welfare, it was claimed that the procedure adopted by the respondent in registering and continuing with the criminal case is not proper.

The prosecution opposed the plea stating that taking signatures of patients in Form-F is mandated under the statute. It cannot be that the patients would not sign on the document and scanning is done. It is, therefore, necessary for the petitioners to explain or face proceedings for having conducted the scanning without the consent of patients, they contended. 

Court's Findings

The bench referring to Section 20 of the PCNPDT Act, noted that after giving a reasonable opportunity of being heard, if the Authority concerned is satisfied that there has been breach of the provisions of the Act, it may initiate criminal action against the Centre, suspend its registration for a period it may think fit or cancel its registration for reasons to be recorded in writing.

Referring to the patients pregnancy period details, whose signatures were not found on Form F the high court said “It is understandable as to how between five weeks and nine weeks of pregnancy the determination of sex of the foetus can happen. It is in public domain that sex of the foetus can be determined only after 12 to 14 weeks. Therefore, what was carried out in the diagnostic centre was only a normal general routine pregnancy test on prescription of doctors.”

The court noted that the show cause notice was issued on December 8, 2023, which gave an opportunity to the petitioners to reply as to why the registration should not be cancelled or suspended within seven days from the date of receipt of the notice. However, the registration stood suspended on the day of the notice itself, it noted

The court thereafter observed “The notice that is given to any diagnostic centre in terms of Section 20 of the Act, it should be in furtherance of providing an opportunity to explain with regard to the violations of the Act, failing which, the notice would become meaningless, or an empty formality, as they are held guilty and criminal cases are registered even before seeking an appropriate explanation. Any act of this kind of not providing adequate opportunity would be in blatant violation of principles of natural justice.”

“It was for the petitioners to explain as to why it was not taken in the Form and then the criminal case could be registered against these petitioners, as law clearly indicates that if satisfactory reply is not given by those laboratories only then a criminal case can be registered. The procedure cannot be deviated in the wake of any rush to implement the provisions of the Act," it added. 

The high court further said that the even though the 'Standard Operating Guidelines of District Appropriate Authorities' issued by the Government Of India on the subject matter are said to have been adopted by the State, however it "appears to remain only on paper". The high court further said that none of the procedures stipulated in the guidelines had been followed in the case at hand adding that while show cause notice was issued on December 8, 2023 however by then the "seizure had already happened and suspension had already taken place". 

It thereafter said, “It is for the State to henceforth adhere to the guidelines and meaningfully bring about the violations of the Act. Leaving loopholes in law would only form a protective veneer to the violators of the law, if any. The loopholes should not blur the intent behind the enactment and the rigor of provisions of the Act. Therefore, the afore-quoted guidelines shall be strictly adhered to, by the Authorities, while conducting inspection and registration of criminal cases.”

Allowing the petition the high court "obliterated" the show cause notice and quashed the criminal case registered against the petitioners. It further directed the state to issue a fresh notice adding that the petitioners shall submit their reply within one week from the receipt of notice.

"The State, thereafter, is at liberty to initiate action in strict consonance with Section 20 of the Act, if need arises, after submission of reply or otherwise from the hands of the petitioners," the high court said.

Case Title: Dr Subhalakshmi N & ANR v. State By District Appropriate Authority PC AND PNDT District Health and Family Welfare Office & Others

Case No: CRIMINAL PETITION No.3002 OF 2024

Counsel for Petitioners : Advocate Praveen S 

Counsel for Respondents : Additional SPP B.N.Jagadeesh 

Citation No: 2024 LiveLaw (Kar) 378

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