The Court noted that Additional Director Health Service and Appropriate Authority of the State Government has already noticed that in some cases even if flimsy mistakes were committed by doctors, the local appropriate authorities are sealing machines and prosecuting them. "It is also recognised that this kind of action amounts to harassment of medical practitioners", observed Justice AV Nirgude recently while allowing petition filed by the doctor couple.
"In my earlier orders, I have very specifically opined that since the provisions of this Act are very strict, the appropriate authority before taking action against the medical practitioner must act meticulously", the judge remarked. Dr Alka Gite and Dr Anant Gite, who were running a clinic at Parli Vaijnath in Beed, were charged with offences under Sections 23(1), 25 and 29 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act.
On 16th June, 2011, the appropriate authority of Parli Vaijnath, appointed under the provisions of the Act, visited the clinic, inspected the record and found that the doctors had not filled up Form 'F' of the patients which is mandatory. A panchnama was recorded, "incomplete" forms 'F' were seized and two sonography machines installed at the clinic were sealed. A notice was also sent to the doctors to show cause why action should not be taken against them.
The petitioners replied that they had completely filled up form 'F' of the patients and had not contravened any provision under the Act. The authorities then filed a complaint before Judicial Magistrate First Class who is now recording evidence before framing charge. The doctor couple had challenged the legality of action mainly on the ground that the allegation made against them was completely false. The only allegation made against them was that they had not filled up forms 'F' completely of certain patients who were subjected to ultrasound sonography.
In order to verify the correctness of this allegation, the court perused the forms and found that the forms are completely filled up. Only items which were left untouched by the doctors were item No 9 and 13 of Form F.
The court noted that item 9 required information regarding history of genetic or medical disease in the family of the patient. In no such form in question this information was filled up.
Normally, a patient is referred for sonography test to examine the health of the foetus. In this background if the information regarding patient's genetic disease in the family is not mentioned in item 9, it clearly indicates that there was no genetic medical disease in the family of the patient, the judge noted.
"If the form is otherwise completely filled up, the applicants would not have left this item incomplete. The non-filling of this item thus is not contravention. It is not even lapse or inadvertence", observed justice Nirgude.
Item 13 is clearly made applicable wherever laboratory test is recommended. The asterisk mark on the word 'recommended' clearly suggests that this item has to be filled up by a laboratory and not by ultrasound clinic. Thus, the allegation that these two items were left incomplete by the applicants, would not attract contravention of Sections 5 or 6 of the Act, the judge noted.