REKHA SENGAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) By the impugned order passed by the Madhya Pradesh High Court on 7.12.2020 in MCRC No. 48262 of 2020, the Petitioner 's application for bail under Section 439 of the Code of Criminal Procedure, 1973 ( 'Cr.P.C. ') has been rejected. The record shows that an FIR was registered against the Petitioner and another person on 26.9.2020 in PS City Kotwali Morena, Madhya Pradesh alleging their involvement in pre­natal sex determination and abortion of female fetuses at their residence, without the required registration or license under law. The petitioner has been in custody since September 2020. Her first application for bail (Bail Application No. 1203/2020) was rejected by the learned IV Addnl. Sessions Judge, Morena on 01.10.2020, and her subsequent bail application before the High Court (MCRC­39649­2020) was dismissed as withdrawn on 14.10.2020. Chargesheet was filed against the petitioner and the co­accused on 6.11.2020, for offences under the certain relevant provisions of Indian Penal Code, Medical Termination of Pregnancy Act, 1971 and under the provisions of the PreConception and Pre­Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 ( 'PC&PNDT Act '). Trial is pending. In the meanwhile, the petitioner again approached the High Court for grant of bail under Section 439, Cr.P.C. The High Court, vide impugned order dated 7.12.2020, has denied bail on facts. Aggrieved, the petitioner has approached this Court seeking bail.

(2.) The gravamen of the allegations against the petitioner pertain to violation of the provisions of the PC&PNDT Act. Section 6 prohibits the use of pre­natal diagnostic techniques, including ultrasonography, for determining the sex of a fetus. Section 23 provides that any violation of the provisions of the Act constitutes a penal offence. Additionally, Section 27 stipulates that all offences under the said Act are to be non­bailable, non­compoundable and cognizable. It is well settled that in non­bailable cases, the primary factors the court must consider while exercising the discretion to grant bail are the nature and gravity of the offence, its impact on society, and whether there is a prima facie case against the accused.

(3.) The charge sheet prima facie demonstrates the presence of a case against the petitioner. A sting operation was conducted upon the order of the Collector, by the member of the PC&PNDT Advisory Committee, Gwalior; the Nodal Officer, PC&PNDNT; and lady police officers. The team used the services of an anonymous pregnant woman, who approached the petitioner seeking sex­determination of the fetus and sex­selective abortion. The petitioner accepted Rs 7,000 for the same whereupon the team searched her residence. From the residence, an ultrasound machine with no registration or license, adopter and gel used in sex­determination, and other medical instruments used during abortion and sex­determination were seized. This constitutes sufficient evidence to hold that there is a prima facie case against the petitioner.