Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 380 OF 2021
REKHA SENGAR …PETITIONER(S)
VERSUS
STATE OF MADHYA PRADESH …RESPONDENT(S)
J U D G M E N T
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 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,
Signature Not Verified
without the required registration or license under law. The petitioner
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2021.01.30
12:46:24 IST
Reason:
has been in custody since September 2020. Her first application for
bail (Bail Application No. 1203/2020) was rejected by the learned IV
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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dismissed as withdrawn on 14.10.2020.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 Pre
Conception 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
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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.
4. To understand the severity of the offence, it is imperative to note
the legislative history of the PC&PNDT Act. Reference 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
diagnostic techniques for the purposes of detecting
genetic abnormalities or metabolic disorders or
chromosomal abnormalities or certain congenital
malformations or sexlinked disorders and for the
prevention of their misuse for sex determination leading
to female foeticide; and, for matters connected therewith
or incidental thereto.”
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(emphasis supplied)
The passage of this Act was compelled by a cultural history of
preference for the male child in India, rooted in a patriarchal 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, sexselection
and female feticide. The pervasiveness of this preference is reflected
through the census data on the skewed sexratio 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 PreNatal 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 the PC&PNDT Act. ( See : Lok Sabha Debates, Tenth Series,
Vol. XXXIII No.2, July 26, 1994, Eleventh Session, at pages 506544).
The prevalence of prenatal sex selection and feticide has also
attracted international censure and provoked calls for strict
th
regulation. In September 1995, the UN 4 World Conference on
Women, adopted the Beijing Declaration and Platform for Action which
inter alia declared female feticide and prenatal sexselection as forms
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of violence against women. ( See : Beijing Declaration and Platform for
th th
Action, adopted in 16 plenary meeting of UN 4 World Conference on
th
Women, (15 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 prenatal sexdetermination as a
grave offence with 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
followup action so as to achieve the object and purpose of
the Act. Mushrooming of various sonography centres,
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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
they are misusing the prenatal diagnostic techniques 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 practice, the
investigative team has seized the sonography machine and made out a
strong primafacie 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 sexdetermination
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 coaccused in the present case
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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 coaccused 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 sexselective abortion. Whereas the alleged role of the coaccused
was limited 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.
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
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on its own merits based on facts. The Special Leave Petition is
dismissed accordingly.
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
.……………………………...............J.
(VINEET SARAN)
…………………………………………J.
(AJAY RASTOGI)
NEW DELHI,
JANUARY 21, 2021
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ITEM NO.13 Court 10 (Video Conferencing) SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 380/2021
(Arising out of impugned final judgment and order dated 07-12-2020
in MCRC No. 48262/2020 passed by the High Court Of M.P At Gwalior)
SMT. REKHA SENGAR Petitioner(s)
VERSUS
THE STATE OF MADHYA PRADESH Respondent(s)
(FOR ADMISSION and I.R. and IA No.4732/2021-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.4736/2021-EXEMPTION FROM
FILING O.T. and IA No.4734/2021-EXEMPTION FROM FILING AFFIDAVIT )
Date : 21-01-2021 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
HON'BLE MR. JUSTICE VINEET SARAN
HON'BLE MR. JUSTICE AJAY RASTOGI
For Petitioner(s) Ms. Sakshi Vijay, Adv.
Mr. Tapendra Sharma, Adv.
Mr. Palav Agarwal, Adv.
Mr. Ashutosh Kumar, Adv.
Mr. Astik Gupta, Adv.
Mr. Mnan Patel, Adv.
Mr. Varun Kumar, Adv.
Mr. Triloki Nath Razdan, AOR
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
Heard learned counsel for the petitioners.
The special leave petition is dismissed in terms of the signed
reportable judgment.
It is open for the petitioner to request the Trial Court to
complete the trial within one year.
(GULSHAN KUMAR ARORA) (R.S. NARAYANAN)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)