REKHA SENGARversusSTATE OF MADHYA PRADESH

314                       [2021]
               SUPREME COURT     2 S.C.R. 314
                              REPORTS                       [2021] 2 S.C.R.


A                              REKHA SENGAR
                                        v.
                       STATE OF MADHYA PRADESH
               (Special Leave Petition (Criminal) No.380 of 2021)
B                              JANUARY 21, 2021
        [MOHAN M.SHANTANAGOUDAR, VINEET SARAN AND
                              AJAY RASTOGI, JJ.]
             Code of Criminal Procedure, 1973 – s.439 – Bail – Non-
      bailable cases – FIR against petitioner and another person alleging
C     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 –
D
      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 – Pre-
E     Conception 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
F     petitioner pertain to violation of the provisions of the Pre-
      Conception 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
G     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
H
                                       314
     REKHA SENGAR v. STATE OF MADHYA PRADESH                            315


whether there is a prima facie case against the accused. The            A
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
                                                                        B
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 gel used in
sex-determination, and other medical instruments used during            C
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           D
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   E
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.                    F
                        Case Law Reference
[2013] 5 SCR 111                 relied on               Para 5
       CRIMINAL APPELLATE JURISDICTION : Special Leave
Petition (Criminal) No. 380 Of 2021
       From the Judgment and Order dated 07.12.2020 of the High Court   G
of Madhya Pradesh, Bench at Gwalior in MCRC No. 48262 of 2020.
       Ms. Sakshi Vijay, Tapendra Sharma, Palav Agarwal, Ashutosh
Kumar, Astik Gupta, Mnan Patel, Varun Kumar, Triloki Nath Razdan,
Advs. for the Petitioner.
                                                                        H
316             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A            The Judgment of the Court was delivered by
             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,
B     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, without the required
C     registration or license under law. The petitioner has been in custody
      since September 2020. Her first application for bail (Bail 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 withdrawn on
D     14.10.2020. Chargesheet was filed against the petitioner and the
      co-accused 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 Pre-Natal
      Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
      (‘PC&PNDT Act’). Trial is pending.
E
             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.
F            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,
G
      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.
H
      REKHA SENGAR v. STATE OF MADHYA PRADESH                               317
          [MOHAN M. SHANTANAGOUDAR, J. ]

       3. The charge sheet prima facie demonstrates the presence of a       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 sex-determination of the fetus
                                                                            B
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.   C
      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           D
      techniques for the purposes of detecting genetic abnormalities or
      metabolic disorders or chromosomal abnormalities or certain
      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 incidental         E
      thereto.”
                                                    (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    F
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 reflected 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      G
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 the PC&PNDT
                                                                            H
318             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     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
B     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, (15th
      September, 1995), Article 115).
C            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
D     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
E     establish pre-natal sex-determination 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:
F
            “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 as to
            achieve the object and purpose of the Act. Mushrooming of various
            sonography centres,
G
            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
H
      REKHA SENGAR v. STATE OF MADHYA PRADESH                                  319
          [MOHAN M. SHANTANAGOUDAR, J. ]

      they are misusing the pre-natal diagnostic techniques for                A
      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.        B
      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           C
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-determination and
feticide with impunity. A strict approach has to be adopted if we are to       D
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              E
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       F
abortion. Whereas the alleged role of the co-accused 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       G
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.
                                                                               H
320             SUPREME COURT REPORTS                         [2021] 2 S.C.R.


A           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.
B

      Divya Pandey                                              Petition dismissed.




C




D




E




F




G




H