How a procedural lapse led to acquittal of Haryana doctor-couple in a 19-yr-old PNDT Act case
Justice Jasjit Singh Bedi emphasised that under Section 17(3)(b) of the Act, the District Appropriate Authority (DAA)—which is responsible for regulating and enforcing the provisions of the Act within a district and filing such complaints—must be a three-member committee appointed through an official notification.
In its order pronounced Thursday, the HC observed the complaint against Dr Mahender Kamboj and Dr Renu Kamboj, the directors of M/s Kamboj Ultrasound and Diagnostic Pvt Ltd, was not instituted by a competent authority as required by the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, or the PC & PNDT Act.
Gurugram: A doctor couple from Haryana's Hisar booked under the prohibition of sex selection act 19 years ago has been acquitted by the Punjab and Haryana High Court on the grounds that proper procedures were not followed while filing the case against them in 2006.
'In the instant case, the complaint was filed by Dr S.K. Naval (then civil surgeon) alone and it ought to have been filed by a three-member Committee, appointed by a Notification under Section 17 of the PC and PNDT Act. The same not having been done, the very complaint itself is not maintainable and therefore, the subsequent proceedings and conviction stands vitiated,' Justice Bedi stated in the judgment.
The case dates back to October 2006 when, following reports in various media outlets, the then civil surgeon of Hisar constituted a team that inspected the premises of Kamboj Ultrasound and Diagnostic Pvt Ltd.
The team seized records and sealed four ultrasound machines, alleging multiple violations of mandatory record keeping requirements through Form F under the PC & PNDT Act.
Both the doctors were convicted by the Hisar Chief Judicial Magistrate in January 2008.
They were sentenced to three years of rigorous imprisonment and fined Rs 5,000 each for the alleged contravention of the Act's Section 4(3)—prohibits sex determination, read with Rule 9, which mandates keeping a record of the procedure in a prescribed manner.
The doctors received an additional two years of imprisonment and Rs 5,000 fine for violating Section 5(1)(b) of the Act, which mandates written consent from the pregnant woman in a prescribed format before conducting a sex determination test.
Although their sentences were reduced to two years by the Sessions Court in August 2008, the doctors challenged the conviction in the high court, where their sentences were suspended pending the final verdict.
The high court's ruling hinged on several earlier judgments, particularly the 2014 decision in the Help Welfare Group Society versus State of Haryana case which clarified that even when appointed for part of a state, the District Appropriate Authority must be a multi-member body consisting of three officials.
The court rejected the state's argument that this interpretation came only in 2014 and should not apply retroactively to these cases.
Justice Bedi cited Supreme Court precedents to establish that 'the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment'.
'When the Court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning of its promulgation,' the judgment noted, referring to Supreme Court decisions in the Lily Thomas versus Union of India and the Sarwan Kumar versus Madal Lal Aggarwal case.
The court further pointed out that the Special Leave Petition filed by the state against a similar judgment in the Dr Ritu Prabhakar versus State of Haryana case had been dismissed by the Supreme Court in November 2016, reinforcing the interpretation that complaints under the PNDT Act must be filed by a properly constituted three-member authority.
With this judgment, the 19-year-old case against the doctor couple finally comes to a close, establishing an important precedent regarding procedural requirements for prosecution under the PNDT Act.
(Edited by Ajeet Tiwari)
Also Read: Ultrasound that doesn't reveal sex of foetus in the works & what it means for pregnant women
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