Sanjay Sinha & Ors. vs The State Of Madhya Pradesh

The present petition has been instituted under Section 482 of the Code of Criminal Procedure, 1973 invoking the inherent jurisdiction of this Court for quashment of the FIR bearing Crime No.311/2022 registered at Police Station Kotwali, District Betul, the consequential charge-sheet dated 20.05.2022 filed before the learned Chief Judicial Magistrate, Betul, and all subsequent proceedings arising from RCT No.569/2022 including the order framing charge against the petitioners under Section 3B of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (herein after PCPNDT Act).

The facts reveal that the petitioners at the relevant point of time were employees of BPL Medical Technologies Pvt. Ltd., a company engaged in manufacture, distribution and supply of medical diagnostic equipment including ultrasound and sonography machines. Petitioner No.1 namely Sanjay Sinha was functioning as Regional Manager at the Bhopal branch of the company whereas petitioner No.2 namely Vikas Pandey was functioning as a salesman attached to the said branch.

On 29.07.2021, a purchase order bearing reference No.VP/21-22/CD/22 was placed by Karuna Hospital, Betul for purchase of an ultrasound machine namely “BPL Alpinion Ecube8LE” . Along with the purchase order, Karuna Hospital furnished certain documents to the petitioners including an old certificate of registration issued under Section 19(1) of the PCPNDT Act and documents relating to renewal application allegedly submitted before the competent authority.

The record reveals that the registration certificate furnished by Karuna Hospital was Registration No.16 issued under Section 19(1) of the PCPNDT Act and was valid from 10.05.2012 till 09.05.2017. The said certificate specifically authorized use of “Logiq 100 Ultrasound Machine with 3.5 MHZ convex probe.” The Renewed Certificate of Registration dated 11/10/2021 bearing Registration number - MP/PCPNDT/BZU/2021/14 authorized Karuna Hospital to carry out ‘Genetic Counselling Pre Natal Diagnostic Procedures/ Pre-Natal Diagnostic Tests/ Ultrasonography’ under the PCPCNDT Act using an ultrasound machine namely, “SONOTECH ST9 040005”. The Renewed Certificate of Registration stated that it was valid from 10.05.2012 to 10.05.2017. The prosecution case is that despite the absence of any valid authorization permitting installation or use of the newly supplied machine namely “BPL Alpinion Ecube8LE”, the petitioners proceeded with the transaction and facilitated supply of the machine to Karuna Hospital. The prosecution further alleges that the petitioners, despite being fully aware of the statutory framework governing supply of ultrasound machines under the PCPNDT Act, failed to verify whether the machine sought to be supplied was covered by a valid and subsisting registration certificate issued by the Appropriate Authority. It is the further allegation of the prosecution that the petitioners knowingly facilitated supply of the machine on the basis of an expired certificate relating to a different machine and thereby violated the mandatory provisions of Section 3B of the PCPNDT Act.

Subsequently, information was received by the authorities regarding illegal prenatal diagnostic activities and offences connected with sex determination allegedly being carried out at Karuna Hospital, Betul, by using second ultra-sound machine without permission/registration, inspite of that, one ultra-sound machine was already available to the hospital, and the second machine was used for the illegal sex determination by the hospital. On the basis of the said information, FIR bearing Crime No.311/2022 came to be registered at Police Station Kotwali, District Betul under Section 420 IPC, Sections 3, 4, 5 and 6 of the Medical Termination of Pregnancy Act and Section 23 of the PCPNDT Act.

During investigation, the Investigating Agency collected documentary evidence including the purchase order, registration certificates, renewal application documents, communications exchanged between the petitioners and the authorities, installation-related documents and other material connected with supply of the machine. Statements of witnesses were also recorded. Upon completion of investigation, charge-sheet dated 20.05.2022 came to be filed against the petitioners and other accused persons before the competent criminal court and charged under Section 3B of the PCPNDT Act have been framed accordingly against the petitioners and the matter is pending for recording of evidence before the Trial court. Aggrieved by initiation and continuation of the criminal proceedings, the petitioners have approached this Court by way of the present petition under Section 482 Cr.P.C.

Learned counsel appearing on behalf of the petitioners has advanced elaborate submissions contending that the entire criminal prosecution initiated against the petitioners is wholly misconceived, contrary to the material available on record and amounts to gross abuse of process of law. According to the petitioners, the allegations made in the FIR and charge-sheet, even if accepted in their entirety, do not disclose commission of any offence under Section 3B of the PCPNDT Act.

The foremost submission advanced by learned counsel for the petitioners is that Karuna Hospital was not an unregistered clinic and therefore the foundational ingredient necessary to attract Section 3B of the PCPNDT Act is completely absent. Learned counsel submits that at the time of placing the purchase order dated 29.07.2021, the hospital had furnished an existing certificate of registration issued under Section 19(1) of the Act as well as documents showing pendency of renewal proceedings before the competent authority. It is urged that the discrepancy in the validity period mentioned in the renewed certificate was an error as this period pertained to the earlier Certificate of Registration. According to the petitioners, once a registration certificate existed and renewal proceedings were pending, the petitioners were legally justified in proceeding with the transaction.

Learned counsel has further argued that Rule 8(6) of the PCPNDT Rules creates a statutory deeming fiction whereby if an application for renewal of registration is not decided within ninety days, the registration shall be deemed to have been renewed by operation of law. It has been contended that Karuna Hospital had submitted a renewal application dated 24.12.2019 and had deposited the requisite renewal fees on 28.01.2020. In support of the said contention, reliance has been placed upon the communication dated 30.04.2022 issued by BPL Medical Technologies to the CMHO, Betul wherein the aforesaid facts were specifically mentioned. It has therefore been argued that the registration of Karuna Hospital stood deemed renewed and consequently the petitioners cannot be prosecuted under Section 3B of the PCPNDT Act.

Another substantial submission advanced on behalf of the petitioners is that the ultrasound machine was not installed immediately upon sale. Installation was undertaken only after Karuna Hospital furnished a fresh registration certificate dated 11.10.2021 issued under the PCPNDT Act. It has therefore been argued that the petitioners acted with utmost caution and bona fides and consciously refrained from installation until a fresh certificate was produced before them. The petitioners have thus sought to demonstrate absence of any criminal intent or deliberate statutory violation on their part.

Learned counsel has also submitted that the petitioners complied with all statutory obligations cast upon suppliers under Rule 3A of the PCPNDT Rules by intimating the competent authorities regarding supply of the machine. It has been argued that the transaction was carried out transparently and openly and there was neither concealment nor any dishonest conduct attributable to the petitioners.

The petitioners have further contended that they had no role whatsoever in the internal functioning or alleged illegal activities of Karuna Hospital. According to learned counsel, the petitioners neither operated the machine nor conducted any prenatal diagnostic procedure nor participated in any alleged sex determination activity. It has therefore been argued that criminal liability cannot be extended to suppliers merely because they sold a machine in the ordinary course of business.

Learned counsel for the petitioners has also placed strong reliance upon the judgments in “R. Jairam Iyer Vs. State of Chhattisgarh, in the High Court of Chhatisgarh at Bilaspur, Criminal Misc. Petition No.765 of 2010”, “Manish Emanwal Vs. State of M.P., in the High Court of Madhya Pradesh (Gwalior Bench), M.Cr.C. No. 2060/2017, “Sabir Hussain and Others Vs. State of M.P., Miscellaneous Criminal Case No.9879 of 2015” and “Satish Mehra Vs. State (NCT of Delhi), (2012) 13 SCC 614” and has contended that where basic ingredients of an offence are absent or where continuation of prosecution would amount to abuse of process, the High Court is duty-bound to exercise jurisdiction under Section 482 Cr.P.C. and quash the proceedings.

Per contra, learned counsel appearing for the State has vehemently opposed the petition and submitted that the prosecution material clearly discloses prima facie commission of offence under Section 3B of the PCPNDT Act and therefore no interference is warranted in exercise of inherent jurisdiction under Section 482 Cr.P.C.

Learned counsel for the State has contended that the entire foundation of the petitioners’ case is legally unsustainable because the registration certificate relied upon by them had admittedly expired on 09.05.2017 and moreover pertained to an entirely different machine, in relation to that, no registration was available to the hospital. According to the State, the certificate specifically authorized use of “SONOTECH ST9 040005” whereas the machine supplied by the petitioners was “BPL Alpinion Ecube8LE” for which no Certificate of registration was available with Karana hospital.

The State has further contended that the PCPNDT Act and Rules contemplate equipment-specific registration and not a blanket or generic authorization in favour of the institution. Reliance has been placed upon Form A, Form B and Rule 13 of the PCPNDT Rules to contend that every change in equipment requires disclosure before the Appropriate Authority and corresponding modification or reissuance of the registration certificate. Learned counsel for the State has further argued that the plea regarding deemed renewal itself raises disputed questions of fact which cannot be conclusively adjudicated in proceedings under Section 482 Cr.P.C. It has also been contended that even assuming deemed renewal of the earlier certificate; the same could not automatically authorize installation of a completely new machine of a different make and model without approval of the Appropriate Authority.

The State has further argued that the petitioners were not ordinary laypersons unfamiliar with the statutory framework. Rather, they were experienced suppliers and distributors of ultrasound machines and were fully aware of the regulatory requirements governing supply of such machines. Therefore, according to the State, the petitioners cannot avoid liability by merely pleading bona fide belief or absence of mens rea.

Having heard learned counsel for the parties at length and perusal of the entire record.

At the very outset, it is necessary to appreciate the legislative object underlying the PCPNDT Act. The Act was enacted as a social welfare legislation intended to prevent misuse of prenatal diagnostic techniques for sex selection and female foeticide. The alarming decline in child sex ratio and the widespread misuse of diagnostic technology compelled the legislature to enact stringent regulatory provisions governing not merely medical practitioners and clinics but also manufacturers, suppliers and distributors of ultrasound machines. Section 3B forms an integral part of the preventive mechanism contemplated by the legislation.

The principal submission advanced by the petitioners is that Karuna Hospital was a registered entity and therefore Section 3B of the PCPNDT Act is not attracted. This Court is unable to accept the said submission for more than one reason.

The material placed on record correctly demonstrate that registration under the PCPNDT Act is not generic or institution-centric in the broad manner suggested by the petitioners. The statutory scheme clearly reveals that registration is equipment-specific and conditional in nature. “Form A” prescribed under the PCPNDT Rules of 1994 which is a Form of Application for registration or renewal of registration of a Genetic Counselling Centre / Genetic Counselling Centre / Genetic Laboratory / Genetic Clinic / Imaging Centre specifically requires disclosure of the type, make and model of the equipment proposed to be used. “Form B” that is the Certificate of Registration issued by the Appropriate Authority correspondingly reflects the particulars of the equipment authorized for use. Rule 13 further mandates that any change in equipment must be intimated to the Appropriate Authority and approval or reissuance of registration certificate must be obtained. Relevant portion of Form A and Form B is reproduced below -

Full name and address/addresses of Genetic Counselling Centre/ Genetic Laboratory/ Genetic Clinic/ Ultrasound Clinic/ Imaging Centre with Telephone/ Fax number(s)/Telegraphic/Telex/ e-mail address(es).

A conjoint reading of the PCPNDT act and PCPNDT rules, 1996 demonstrates that registration is granted on the basis of specific particulars of equipment disclosed by the applicant. Form A, which is the prescribed application for registration, requires the applicant to furnish details of the equipment available, including the make and model of each machine. The requirement is not generic but contemplates a specific enumeration of equipment proposed to be installed and used. Correspondingly, Form B, being the certificate of registration, reflects the particulars of the equipment for which the clinic is authorized. Significantly, Form B itself stipulates that any change in the equipment must be intimated to the Appropriate Authority under Rule 13. Rule 13, in clear terms, mandates that every clinic shall intimate any change in equipment and obtain re-issuance or modification of the registration certificate. The said provision leaves no manner of doubt that the registration is confined to the equipment so specified and does not automatically extend to additional machines.

In the present case, the renewed certificate relied upon by the petitioners admittedly pertained only to “SONOTECH ST9 040005”. The machine supplied by the petitioners, however, was “BPL Alpinion Ecube8LE”, which was an entirely different machine, and for that registration is not issued by any authority. Consequently, even assuming that the earlier certificate or renewal application existed, the same did not authorize installation or use of the newly supplied machine. For this very same reason the contention advanced by the petitioners that installation was undertaken only after issuance of a fresh registration certificate dated 11.10.2021 is untenable.

The plea regarding deemed renewal under Rule 8(6) also fails to impress this Court. Firstly, whether renewal application had actually been filed in accordance with law, whether it remained pending and whether the conditions necessary for operation of the deeming fiction stood satisfied are all disputed questions of fact requiring evidence. Such disputed factual issues cannot be conclusively adjudicated in proceedings under Section 482 Cr.P.C.

Secondly, and more importantly, even assuming deemed renewal of the earlier certificate, such renewal could at best relate to the machine already available to the hospital authorized under the earlier registration certificate. The deeming fiction cannot be stretched beyond its legitimate statutory purpose so as to automatically authorize installation of an altogether new machine of a different make and model without approval of the Appropriate Authority. Acceptance of such an interpretation would completely defeat the regulatory framework of the PCPNDT Act and render Rule 13 wholly meaningless.

The argument that the petitioners merely acted in the ordinary course of business also cannot be accepted. The petitioners were admittedly experienced functionaries engaged in supply and distribution of ultrasound machines governed by a highly regulated statutory framework. They cannot claim ignorance regarding the legal requirements governing supply and installation of such machines, because the act puts heavy duty on the suppliers also to follow the strict provision of the PCPNDT Act. Once the statute imposes a prohibition upon sale or supply except in accordance with valid registration, corresponding obligations necessarily arise upon suppliers to ensure strict compliance with the statutory requirements. If the analogy is accepted of the petitioner, then in that case a supplier could provide/sell multiple ultrasound machines to a single hospital with one registration which would completely defeat the very object of this act.

Section 3B creates an independent statutory offence relating to unlawful sale or supply of ultrasound machines. The prosecution at this stage is not required to establish that the petitioners themselves conducted sex determination procedures. The gravamen of the allegation against the petitioners is unlawful supply of the machine in contravention of the statutory framework.

In R. Jairam Iyer (supra) the High Court was dealing with allegations of medical negligence under Sections 304-A, 201 and 468 IPC arising out of treatment administered by a cardiologist. Upon examination of the charge-sheet material, the Court found absence of evidence establishing negligence attributable to the doctor under Section 304-A IPC and therefore quashed prosecution to that extent. However, the Court declined to quash proceedings under Section 468 IPC observing that disputed questions relating to falsification of documents required trial. The ratio of the said judgment is therefore entirely distinguishable. The present case does not concern medical negligence but concerns violation of a special social welfare legislation imposing statutory obligations upon suppliers of ultrasound machines.

Similarly, in Manish Emanwal (supra) the issue before the Court was whether the owner of a school bus could be prosecuted under Section 304 Part-II IPC in the absence of material establishing knowledge or intention necessary to constitute the offence. The Court found absence of the essential ingredients necessary to attract Section 304 Part-II IPC. The present case stands on an entirely different footing because Section 3B of the PCPNDT Act creates a specific statutory prohibition and the material collected during investigation prima facie indicates violation of the said prohibition. The question here is not one of inferred intention under the Penal Code but compliance with a regulatory statutory mandate.

Likewise, Sabir Hussain and Others (supra) involved allegations under Sections 498-A and 506 IPC and the Court reiterated settled principles governing exercise of inherent powers under Section 482 Cr.P.C. However, the said judgment itself recognizes that where disputed factual issues arise and the material discloses prima facie commission of offence, the High Court ought not to interfere at the threshold. Therefore, the ratio of the said judgment does not advance the case of the petitioners.

The reliance placed upon Satish Mehra (supra) is also misplaced. In the said judgment, the Supreme Court observed that where the materials placed before the Court completely rule out the possibility of conviction and continuation of prosecution would be meaningless, the Court may exercise jurisdiction to prevent abuse of process.

The inherent powers under Section 482 CrPC are extraordinary in nature and are required to be exercised sparingly, cautiously and only in cases where failure to interfere would result in manifest injustice or abuse of process. At the stage of considering quashment, the Court is not expected to meticulously appreciate evidence or adjudicate disputed factual controversies as though conducting a mini trial.

In the considered opinion of this Court, the material collected during investigation clearly discloses prima facie commission of offence under Section 3B of the PCPNDT Act against the petitioners. The learned Trial Court has already considered the material available on record and framed charge against the petitioners. This Court does not find any perversity, illegality or abuse of process warranting interference in exercise of inherent jurisdiction.

Accordingly, for all the reasons recorded hereinabove, this Court is of the considered opinion that each of the grounds urged by the petitioners lacks merit and deserves rejection. The plea regarding existence of registration certificate is rejected in view of the fact that the certificate relied upon was expired and pertained to a different machine which was already available to the hospital. The plea regarding deemed renewal is rejected since the same raises disputed questions of fact and in any case deemed renewal cannot automatically authorize installation of an altogether different machine without approval of the Appropriate Authority. The plea regarding bona fide conduct and absence of mens rea is rejected in light of the statutory obligations cast upon suppliers under the PCPNDT Act. The plea regarding absence of direct involvement in sex determination activities is also rejected since Section 3B creates an independent statutory offence relating to unlawful supply of ultrasound machines.

Consequently, no case for quashment of FIR as well as charge-sheet or consequential criminal proceedings is made out.

Accordingly, this petition under Section 482 of CrPC, 1973 (Section 528 of BNSS, 2023), being devoid of merit, is dismissed. However, learned Trial Court is expected to expedite the pace of trial and to conclude it as early as possible.

It is clarified that observations made herein are confined solely to adjudication of the present petition under Section 482 CrPC, 1973 and shall not prejudice the Trial Court while deciding the matter on merits in accordance with law.

Let a copy of this order be transmitted forthwith to the concerned Trial Court for information.