Minor discrepancies in records maintained by medical professionals cannot invite prosecution by appropriate authority without prior investigation

High Court of Bombay: While dealing with the question relating to the validity of a criminal complaint filed against the petitioner for violating Sections 4, 5, 6 and 29 of the Preconception & Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter to be referred as “said PCPNDT Act”) & and Rule 9, 10(1A) and 18 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, the Division Bench comprising of A.V. Nirgude and V.L. Achliya, JJ. observed that minor procedural errors and inadvertent omissions in maintaining records under the PCPNDT Act & Rules cannot be regarded as a punishable violation on part of a person in the field of medical profession. Further, the Court quashing the complaint filed against the petitioner held that a casual approach adopted by the Authority to invariably file a complaint against the petitioner without proper inquiry, investigation & due application of mind leads to unnecessary humiliation and harassment of the person in the field of medical profession hence, any legal action by the authority must follow based upon sufficient material to establish that there was a violation of provisions of PCPNDT Act and Rules thereunder.

The petitioner had installed a sonography machine at Suyog Hospital at Nanded,which is duly registered with the Health Department and the certificate of registration is valid up to November 2016. The regional vigilance squad inspected the centre and prepared a report and forwarded it to the advisory committee on the basis of which the advisory committee decided to suspend the registration of petitioner’s sonography centre and initiate prosecution against her without even investigating the complaints made out in the report regarding the breach of provision of the PCPNDT Act and Rules thereunder. The Chief Judicial Magistrate upheld the accusations of the authority, against the petitioner for initiating prosecution against her, which the petitioner seeks to be quashed and set aside.

The Court relying on the contentions of the petitioner held that the discrepancies mentioned in the report mainly refers to omission to mention full address, mobile number etc. of patients underwent sonography, difference in the signature of the Doctor & other inadvertent mistakes cannot be termed as discrepancy or act of inaccuracy amounting to violate the provisions of the said Act & Rules made thereunder. The Court upholding the reply filed by petitioner that reflects the discrepancies noted by Committee in respect of maintenance of record were mistakes, omissions and lacunas and for which satisfactory explanation has been offered by the petitioner along with the undertaking that no such mistake will be committed in future accordingly, such errors were not made with ulterior motive to suppress certain information about the patients or misuse the ultrasonography machine for sex determination

The Court criticizing the casual approach adopted by the authority in filing the complaint and initiating prosecution against the petitioner held that it was expected on the part of the Appropriate Authority to have investigated the information received in the form of inspection report from the Vigilance Squad as well as to look into explanation given by the petitioner and after giving her opportunity of personal hearing and then to find out there was any violation of provisions of PCPNDT Act on the part of the petitioner thus, the Appropriate Authority has failed to discharge its statutory obligations as contemplated under Section 17(4) of PCPNDT Act i.e. to investigate the report of inspection received from Vigilance Squad which restricts to noting of certain lacunae, omission and certain mistakes in maintenance of record which would help to remove the fear in the mind of medical professionals doing their work with utmost honesty, sincerity and due observance of medical ethics and code of conduct laid down under the PCPNDT Act of being subjected to face unnecessary humiliation, harassment and criminal prosecution. [Sai v.  State Of Maharashtra, 2016 SCC OnLine Bom 8812, decided on 27th September ,2016.]

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