Code of Criminal Procedure, 1973 – s.439 – Bail – Nonbailable cases – FIR against petitioner and another person alleging involvement in pre-natal sex determination and sex selective abortion – Bail denied – Held: In non-bailable cases, the primary factors the court must consider while exercising the discretion to grant bail are nature and gravity of the offence, its impact on society, and whether there is a prima facie case against the accused – In the present case, there is prima facie evidence against the petitioner – No ground for granting parity with the co-accused whose alleged role was limited to merely picking up and dropping off the petitioner’s clients – Petitioner prima facie had a more active role in conducting the alleged illegal medical practices – Impugned order of High Court upheld – Medical Termination of Pregnancy Act, 1971 – PreConception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 – ss.6, 23, 27 – Indian Evidence Act, 1872 – s.27
Dismissing the petition, the Court
HELD: 1. The gravamen of the allegations against the petitioner pertain to violation of the provisions of the PreConception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (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. 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. 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 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 gel used in sex-determination, and other medical instruments used during abortion and sex-determination were seized. This constitutes sufficient evidence to hold that there is a prima facie case against the petitioner. [Paras 2, 3][316-F-H; 317-A-C]
1.2 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 limited to merely picking up and dropping off the petitioner’s clients. No grounds for granting parity with the co-accused to the petitioner. The impugned order of the High Court denying bail to the petitioner is upheld. [Paras 6, 7][319-E-G]
Voluntary Health Association of India v. State of Punjab (2013) 4 SCC 1: [2013] 5 SCR 111 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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