PREETINDER KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioners, two of whom are medical practioners and the 3rd petitioner that supports the cause of the petitioners, namely the Indian Medical Association, have filed this writ petition under Article 226, 227 of the Constitution of India read with Section 482 Cr.P.C. to quash the order dated 06.11.2003 issued by the Deputy Commissioner, Bathinda authorizing the Assistant, Project Officer, DRDA, and PNDT Cell, Bathinda to file complaints in the Court of Chief Judicial Magistrate for alleged offences under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (called 'the PNDT Act').

(2.) The intervention through this writ petition was at the time when the trial was in progress after the charge-sheet had been framed for violation of Section 3(a) of the Act rendering themselves as punishable under Section 23. The grounds of challenge principally are that the Act contemplates the proceedings to be initiated in a particular fashion on a complaint by the appropriate authority but the procedure had not been followed. The jurisdictional magistrate, who had taken the complaint on file, had no authority to initiate the legal action by issue of process when the procedure had not been followed. As a shot in the arm for the petitioners, the Director, Health and Family Welfare, Punjab had himself reported to have issued a memo dated 04.10.2007 to the Principal Secretary to the Government of Punjab directing withdrawal of complaints lodged under PNDT Act against the doctors of Bathinda on the ground that the person, who had filed the complaint namely, Shri Sadhu Ram Kusla, had never been authorized by the appropriate authority for taking any action and therefore, the action could not be pursued by the magistrate.

(3.) At the time of argument, the learned Counsel Shri Raina appearing for the petitioners also referred to the contentions as to how in one case the sonogram had been taken when the foetus was just around 10 weeks when determination of sex itself was not possible and how in yet another case it was seen to be a blighted ovum and there was no means that it could have gone for gestation for a fully developed foetus to determine the sex of the child. According to him, the Act does not prohibit the use of sonogram itself, for, it was still an essential medical investigation technique and the offence under the Act could be said to have been committed only if it was meant for detection of sex of the child that could result in a misuse leading to female foeticide.