REKHA SENGAR versus STATE OF MADHYA PRADESH on 21 January 2021

1. By the impugned order passed by the Madhya Pradesh HighCourt on 7.12.2020 in MCRC No. 48262 of 2020, the Petitioner’sapplication for bail under Section 439 of the Code of Criminal Procedure,B1973 (‘Cr.P.C.’) has been rejected.

The record shows that an FIR was registered against the Petitionerand another person on 26.9.2020 in PS City Kotwali Morena, MadhyaPradesh alleging their involvement in pre-natal sex determination andabortion of female fetuses at their residence, without the requiredCregistration or license under law. The petitioner has been in custodysince September 2020. Her first application for bail (Bail ApplicationNo. 1203/2020) was rejected by the learned IV Addnl. Sessions Judge,Morena on 01.10.2020, and her subsequent bail application before theHigh Court (MCRC-39649-2020) was dismissed as withdrawn onD14.10.2020. Chargesheet was filed against the petitioner and theco-accused on 6.11.2020, for offences under the certain relevantprovisions of Indian Penal Code, Medical Termination of Pregnancy Act,1971 and under the provisions of the Pre- Conception and Pre-NatalDiagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994(‘PC&PNDT Act’). Trial is pending.E

In the meanwhile, the petitioner again approached the High Courtfor grant of bail under Section 439, Cr.P.C. The High Court, vide impugnedorder dated 7.12.2020, has denied bail on facts. Aggrieved, the petitionerhas approached this Court seeking bail.

F2. The gravamen of the allegations against the petitioner pertainto violation of the provisions of the PC&PNDT Act. Section 6 prohibitsthe use of pre-natal diagnostic techniques, including ultrasonography, fordetermining the sex of a fetus. Section 23 provides that any violation ofthe provisions of the Act constitutes a penal offence. Additionally, Section27 stipulates that all offences under the said Act are to be non-bailable,Gnon-compoundable and cognizable.

It is well settled that in non-bailable cases, the primary factors thecourt must consider while exercising the discretion to grant bail are thenature and gravity of the offence, its impact on society, and whetherthere is a prima facie case against the accused.H

REKHA SENGAR v. STATE OF MADHYA PRADESH[MOHAN M. SHANTANAGOUDAR, J. ]

3. The charge sheet prima facie demonstrates the presence of acase against the petitioner. A sting operation was conducted upon theorder of the Collector, by the member of the PC&PNDT AdvisoryCommittee, Gwalior; the Nodal Officer, PC&PNDNT; and lady policeofficers. The team used the services of an anonymous pregnant woman,who approached the petitioner seeking sex-determination of the fetusand sex-selective abortion. The petitioner accepted Rs 7,000 for thesame whereupon the team searched her residence. From the residence,an ultrasound machine with no registration or license, adopter and gelused in sex-determination, and other medical instruments used duringabortion and sex-determination were seized. This constitutes sufficientevidence to hold that there is a prima facie case against the petitioner.

4. To understand the severity of the offence, it is imperative tonote the legislative history of the PC&PNDT Act. Reference may behad to the Preamble; which states as follows:

“An Act to provide for the prohibition of sex selection, before orafter conception, and for regulation of prenatal diagnostictechniques for the purposes of detecting genetic abnormalities ormetabolic disorders or chromosomal abnormalities or certaincongenital malformations or sex-linked disorders and for theprevention of their misuse for sex determination leading to femalefoeticide; and, for matters connected therewith or incidentalthereto.”

(emphasis supplied)

The passage of this Act was compelled by a cultural history ofpreference for the male child in India, rooted in a patriarchal web ofreligious, economic and social factors. This has birthed numerous socialevils such as female infanticide, trafficking of young girls, and bridebuying and now, with the advent of technology, sex-selection and femalefeticide. The pervasiveness of this preference is reflected through thecensus data on the skewed sex-ratio in India. Starting from the 1901census which recorded 972 females per 1000 males; there was an overalldecline to 941 females in 1961, and 930 females in 1971, going furtherdown to 927 females in 1991. Records of Lok Sabha discussions on thePre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)Bill, 1991 reflect various members’ concern with this alarming state ofaffairs, which acted as a clarion call to the passage of the PC&PNDT

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AAct. (See : Lok Sabha Debates, Tenth Series, Vol. XXXIII No.2, July26, 1994, Eleventh Session, at pages 506-544).

The prevalence of pre-natal sex selection and feticide has alsoattracted international censure and provoked calls for strict regulation.In September 1995, the UN 4th World Conference on Women, adoptedBthe Beijing Declaration and Platform for Action which inter alia declaredfemale feticide and pre-natal sex-selection as forms of violence againstwomen. (See : Beijing Declaration and Platform for Action, adopted in16th plenary meeting of UN 4th World Conference on Women, (15thSeptember, 1995), Article 115).

CWhile the sex ratio has improved since after the passage of thePC&PNDT Act, rising to 933 as per the 2001 census, and then to 943 inthe 2011 census, these pernicious practices still remain rampant. As perthe reply filed by the then Minister of State, Health and Family Welfarein the Rajya Sabha on 27.3.2018, as of December 2017, around 3,986court cases had been filed under the Act, resulting in only 449 convictionsDand 136 cases of suspension of medical licenses.

The unrelenting continuation of this immoral practice, the globallyshared understanding that it constitutes a form of violence against women,and its potential to damage the very fabric of gender equality and dignitythat forms the bedrock of our Constitution are all factors that categoricallyEestablish pre-natal sex-determination as a grave offence with seriousconsequences for the society as a whole.

5. We may also refer with benefit to the observations of this Courtin Voluntary Health Association of India v. State of Punjab, (2013) 4SCC 1, as follows:F

“6…Above statistics is an indication that the provisions of the Act are not properly and effectively being implemented. Therehas been no effective supervision or follow-up action so as toachieve the object and purpose of the Act. Mushrooming of varioussonography centres, G

genetic clinics, genetic counselling centres, genetic laboratories,ultrasonic clinics, imaging centres in almost all parts of the countrycalls for more vigil and attention by the authorities under the Act.But, unfortunately, their functioning is not being properly monitoredor supervised by the authorities under the Act or to find out whether H

they are misusing the pre-natal diagnostic techniques fordetermination of sex of foetus leading to foeticide.

7…Seldom, the ultrasound machines used for such sexdetermination in violation of the provisions of the Act are seizedand, even if seized, they are being released to the violators of thelaw only to repeat the crime. Hardly few cases end in conviction.The cases booked under the Act are pending disposal for severalyears in many courts in the country and nobody takes any interestin their disposal and hence, seldom, those cases end in convictionand sentences, a fact well known to the violators of law…”

In the present case, contrary to the prevailing practice, theinvestigative team has seized the sonography machine and made out astrong prima-facie case against the petitioner. Therefore, we find itimperative that no leniency should be granted at this stage as the samemay reinforce the notion that the PC&PNDT Act is only a paper tigerand that clinics and laboratories can carry out sex-determination andfeticide with impunity. A strict approach has to be adopted if we are toeliminate the scourge of female feticide and iniquity towards girl childrenfrom our society. Though it certainly remains open to the petitioner todisprove the merits of these allegations at the stage of trial.

6. The fact that on 13.10.2020, the co-accused in the presentcase was released on bail by the High Court in MCRC No.39380/2020does not alter our conclusions. The allegations in the FIR and the chargesheet, as well the disclosure statements made by the petitioner and theco-accused under Section 27 of the Indian Evidence Act, 1872, revealthat prima facie, the petitioner had a more active role in conducting thealleged illegal medical practices of sex determination and sex-selectiveabortion. Whereas the alleged role of the co-accused was limited tomerely picking up and dropping off the petitioner’s clients. Hence, wefind no grounds for granting parity with the co- accused to the petitioner.

7. Thus, in view of the presence of prima facie evidence againstthe petitioner and other factors as referred to supra, we find ourselvescompelled to uphold the impugned order of the High Court denying bailto the petitioner. However, in light of this Court’s directions in VoluntaryHealth Association of India (supra) mandating speedy disposal of suchcases it is open for the petitioner to request the Trial Court to expediteher trial and decide it within a period of 1 year.

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320SUPREME COURT REPORTS

[2021] 2 S.C.R.

A8. We make it clear that the above observations on facts aremade only to decide the present petition. Any of the observations madeon facts will not come in the way of the Trial Court to complete the trialand decide the matter. The matter shall be decided by the Trial Court onits own merits based on facts. The Special Leave Petition is dismissedaccordingly.B

Divya Pandey

Petition dismissed.

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