The disturbing and illegal practice of prenatal sex determination led Justice Avneesh Jhingan of the Punjab and Haryana High Court to dismiss the applicants pre-arrest bail application and observe that, “Considering the disdainful attitude of the society to a female child and use of diagnostic equipment for female foeticide Act was enacted to curb the pre-natal sex determination. Despite the specific legislation the menace of sex-based destruction of foetus continues to plague the society.” (Hasan Mohammad v State of Haryana- CRM-M-34797 of 2020).
Advocate Sarfraj Hussain represented the petitioner and Haryana Deputy Advocate General Pankaj Mulwani appeared for the State of Haryana.
“The Constitution guarantees equality to genders but prenatal sex determination deprives a female foetus to come to this world. In a civilized society, the sex of the foetus cannot be a determining factor for having a lease of life to see this world, if permitted the consequences would be devastating, the civilization itself would be endangered. To put in other words termination of female foeticide is destruction of woman of future”, the court noted.
The court expressed concern by further stating that, “Determination of sex of the foetus is a malaise which is affecting the society day in and day out. The desire to have a male child is an open secret. It has affected the gender ratio of the society.”
An anticipatory bail application was filed in connection with FIR No. 226 dated September 29, 2020 for assaulting a public servant and cheating under relevant section of the Indian Penal code. He was also booked under Sections 4, 5, 6, 23 and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 for playing a pre-recorded abdomen ultrasound to declare the sex of the foetus.
After the police received secret information about an illegal activity being carried out, a decoy customer was deployed to get an ultrasound done, for determining the sex of the foetus. The payment was made through marked currency notes. Thereafter, the accused allegedly dramatised the conduct of ultrasound on the decoy customer and played a pre-recorded video (on an LCD) to show that ultrasound was being conducted in the name of sex determination.
The petitioner’s counsel argued that no charge against him under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 should be made out since he did not actually conduct an ultrasound or have an ultrasound machine in his clinic. There was also no complaint against him for his activities either, his counsel argued.
However, Justice Jhingan reasoned that since the accused misrepresented the machine he was using as an ultrasound machine and declared the sex of the foetus at the end of the alleged scan, he could be booked under the provisions of the Prohibition of Sex Selection Act. The court also strictly held that, “the person who is in active participation against an enactment, in other words is a party to the illegal act, is not expected to come forward to make a police complaint.”
Further, the court looked at the sections of the provision and laid down that Section 5 (1) says that no pre-natal diagnostic procedure shall be carried without explaining the side effects to the pregnant lady and without obtaining her consent. Section 5 (2) states that the sex of the foetus shall not be communicated to the pregnant woman or her relatives or any other person by words, signs or in any other manner. Section 6 prohibits various centres to use the diagnostic techniques for determining the sex of the foetus.
The court recorded that, “The persons who were being fleeced probably would not be aware that in the name of determination of sex they were shown pre-recorded video.”
On the basis of these observations, the single bench of Justice Avneesh Jhingan dismissed the petitioners’ anticipatory bail application on October 30, 2020.
The order may be read here: