Rekha Sengar v. State of Madhya Pradesh
MOHAN M. SHANTANAGOUDAR, J.
1. By the impugned order passed by the Madhya Pradesh High
Court on 7.12.2020 in MCRC No. 48262 of 2020, the Petit ioner’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 pre-natal sex determination and
abortion of female fetuses at their residence, witho ut the required
registration or license under law. The petitioner has been in cust ody
since September 2020. Her first application for bail (Ba il 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 (MCRC-39649-2020) was dismissed as withdr awn on
14.10.2020. Chargesheet was filed against the petit ioner and the
co-accused on 6.11.2020, for offences under the cer tain relevant
provisions of Indian Penal Code, Medical Termination of Pregnancy Act,
1971 and under the provisions of the Pre- Conception and Pre-Na tal
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 pre-natal 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 non-bailable,
non-compoundable and cognizable.
It is well settled that in non-bailable 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.
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3. The charge sheet prima facie demonstrates the presence of a
case against the petitioner. A sting operation was conduct ed upon the
order of the Collector, by the member of the PC&PNDT Ad visory
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 sex-determination of the fetus
and sex-selective 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 ge l
used in sex-determination, and other medical instruments used duri ng
abortion and sex-determination were seized. This constitutes sufficient
evidence to hold that there is a prima facie case against the petitioner.
4. To understand the severity of the offence, it is imperati ve to
note the legislative history of the PC&PNDT Act. Referen ce may be
had to the Preamble; which states as follows:
“An Act to provide for the prohibition of sex selection, before or
after conception, and for regulation of prenatal dia gnostic
techniques for the purposes of detecting genetic abnormalities or
metabolic disorders or chromosomal abnormalities or c ertain
congenital malformations or sex-linked disorders and for the
prevention of their misuse for sex determination leading to female
foeticide; and, for matters connected therewith or incidenta l
thereto.”
(emphasis supplied)
The passage of this Act was compelled by a cultural his tory of
preference for the male child in India, rooted in a patriarc hal web of
religious, economic and social factors. This has birthed numerous social
evils such as female infanticide, trafficking of young girls, and bride
buying and now, with the advent of technology, sex-selection and female
feticide. The pervasiveness of this preference is reflec ted through the
census data on the skewed sex-ratio in India. Starting from the 1901
census which recorded 972 females per 1000 males; there was an overall
decline to 941 females in 1961, and 930 females in 1971, going further
down to 927 females in 1991. Records of Lok Sabha discussions on the
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Bill, 1991 reflect various members’ concern with this alarming state of
affairs, which acted as a clarion call to the passage of t he PC&PNDT
REKHA SENGAR v. STATE OF MADHYA PRADESH
[MOHAN M. SHANTANAGOUDAR, J. ]
Act. (See : Lok Sabha Debates, Tenth Series, Vol. XXXIII No.2, July
26, 1994, Eleventh Session, at pages 506-544).
The prevalence of pre-natal sex selection and feticide has also
attracted international censure and provoked calls for strict regulation.
In September 1995, the UN 4th World Conference on Women, adopted
the Beijing Declaration and Platform for Action which inter alia declared
female feticide and pre-natal sex-selection as forms of violence against
women. (See : Beijing Declaration and Platform for Action, adopted in
16th plenary meeting of UN 4th World Conference on Women, (15 th
September, 1995), Article 115).
While the sex ratio has improved since after the passage of the
PC&PNDT Act, rising to 933 as per the 2001 census, and then to 943 in
the 2011 census, these pernicious practices still remain rampant. As per
the reply filed by the then Minister of State, Health and Family Welfare
in the Rajya Sabha on 27.3.2018, as of December 2017, around 3,986
court cases had been filed under the Act, resulting in only 449 convictions
and 136 cases of suspension of medical licenses.
The unrelenting continuation of this immoral practice, the globally
shared understanding that it constitutes a form of violence against women,
and its potential to damage the very fabric of gender equality and dignity
that forms the bedrock of our Constitution are all factors that categorically
establish pre-natal sex-determination as a grave offence wi th serious
consequences for the society as a whole.
5. We may also refer with benefit to the observations of this Court
in Voluntary Health Association of India v. State of Punjab, (2013) 4
SCC 1, as follows:
“6…Above statistics is an indication that the provisions of
the Act are not properly and effectively being implemented. There
has been no effective supervision or follow-up action so a s to
achieve the object and purpose of the Act. Mushrooming of various
sonography centres,
genetic clinics, genetic counselling centres, genetic laboratories,
ultrasonic clinics, imaging centres in almost all parts of the country
calls for more vigil and attention by the authorities under the Act.
But, unfortunately, their functioning is not being properly monitored
or supervised by the authorities under the Act or to find out whether
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they are misusing the pre-natal diagnostic techniqu es for
determination of sex of foetus leading to foeticide.
7…Seldom, the ultrasound machines used for such sex
determination in violation of the provisions of the Act are seized
and, even if seized, they are being released to the violators of the
law only to repeat the crime. Hardly few cases end in conviction.
The cases booked under the Act are pending disposal for several
years in many courts in the country and nobody takes any interest
in their disposal and hence, seldom, those cases end in conviction
and sentences, a fact well known to the violators of law…”
In the present case, contrary to the prevailing pra ctice, the
investigative team has seized the sonography machine and made out a
strong prima-facie case against the petitioner. Therefore, we find it
imperative that no leniency should be granted at this stage as the same
may reinforce the notion that the PC&PNDT Act is only a paper tiger
and that clinics and laboratories can carry out sex-determina tion and
feticide with impunity. A strict approach has to be adopted if we are to
eliminate the scourge of female feticide and iniquity towards girl children
from our society. Though it certainly remains open to the petitioner to
disprove the merits of these allegations at the stage of trial.
6. The fact that on 13.10.2020, the co-accused in the present
case was released on bail by the High Court in MCRC No.39380/2020
does not alter our conclusions. The allegations in the FIR and the charge
sheet, as well the disclosure statements made by the petitioner and the
co-accused under Section 27 of the Indian Evidence Act, 1872, reveal
that prima facie, the petitioner had a more active role in conducting the
alleged illegal medical practices of sex determination and sex-selective
abortion. Whereas the alleged role of the co-accused was limit ed to
merely picking up and dropping off the petitioner’s clients. Hence, we
find no grounds for granting parity with the co- accused to the petitioner.
7. Thus, in view of the presence of prima facie evidence against
the petitioner and other factors as referred to supra, we find ourselves
compelled to uphold the impugned order of the High Court denying bail
to the petitioner. However, in light of this Court’s directions in Voluntary
Health Association of India (supra) mandating speedy disposal of such
cases it is open for the petitioner to request the Trial Court to expedite
her trial and decide it within a period of 1 year.
REKHA SENGAR v. STATE OF MADHYA PRADESH
[MOHAN M. SHANTANAGOUDAR, J. ]
8. We make it clear that the above observations on facts are
made only to decide the present petition. Any of the observations made
on facts will not come in the way of the Trial Court to complete the trial
and decide the matter. The matter shall be decided by the Trial Court on
its own merits based on facts. The Special Leave Petition is dismissed
accordingly.
Divya Pandey Petition dismissed.