2021 INSC 37

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. 380 OF 2021

REKHA SENGAR …PETITIONER(S)

VERSUS

STATE OF MADHYA PRADESH …RESPONDENT(S)

J U D G M E N T

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, 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 pre­natal sex

determination and abortion of female fetuses at their residence,

without the required 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

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Addnl. Sessions Judge, Morena on 01.10.2020, and her subsequent

bail application before the High Court (MCRC­39649­2020) was

dismissed as withdrawn on 14.10.2020. Chargesheet was filed against

the petitioner and the co­accused 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 Pre­Natal Diagnostic Techniques (Regulation and

Prevention of Misuse) Act, 1994 (‘PC&PNDT Act’). Trial is pending.

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.

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 pre­natal 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

non­bailable, non­compoundable and cognizable.

It is well settled that in non­bailable 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
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whether there is a prima facie case against the accused.

3. 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 sex­selective 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 sex­determination, and other medical

instruments used during abortion and sex­determination were seized.

This constitutes sufficient evidence to hold that there is a prima facie

case against the petitioner.

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 techniques for the purposes of detecting
genetic abnormalities or metabolic disorders or
chromosomal abnormalities or certain congenital
malformations or sex­linked disorders and for the
prevention of their misuse for sex determination leading
to female foeticide; and, for matters connected therewith
or incidental thereto.”
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(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 evils such as female infanticide, trafficking of young girls, and

bride buying and now, with the advent of technology, sex­selection

and female feticide. The pervasiveness of this preference is reflected

through the census data on the skewed sex­ratio in India. Starting

from the 1901 census which recorded 972 females per 1000 males;

there was an overall 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 Pre­Natal 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 Act. (See : Lok Sabha Debates, Tenth Series,

Vol. XXXIII No.2, July 26, 1994, Eleventh Session, at pages 506­544).

The prevalence of pre­natal sex selection and feticide has also

attracted international censure and provoked calls for strict

regulation. In September 1995, the UN 4 th World Conference on

Women, adopted the Beijing Declaration and Platform for Action which

inter alia declared female feticide and pre­natal sex­selection as forms

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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).

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 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 establish pre­natal sex­determination 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:

“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
follow­up action so as to achieve the object and purpose of
the Act. Mushrooming of various sonography centres,
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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
they are misusing the pre­natal diagnostic techniques for
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. 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

investigative team has seized the sonography machine and made out a

strong prima­facie 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 sex­determination

and feticide with impunity. A strict approach has to be adopted if we

are to 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 co­accused in the present case

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was released on bail by the High Court in MCRC No.39380/2020 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 co­accused 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 sex­selective abortion. Whereas the alleged role of the co­accused

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

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.

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
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on its own merits based on facts. The Special Leave Petition is

dismissed accordingly.

…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)

.……………………………...............J.
(VINEET SARAN)

…………………………………………J.
(AJAY RASTOGI)

NEW DELHI,
JANUARY 21, 2021
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ITEM NO.13 Court 10 (Video Conferencing) SECTION II-A

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 380/2021

(Arising out of impugned final judgment and order dated 07-12-2020
in MCRC No. 48262/2020 passed by the High Court Of M.P At Gwalior)

SMT. REKHA SENGAR Petitioner(s)

VERSUS

THE STATE OF MADHYA PRADESH Respondent(s)

(FOR ADMISSION and I.R. and IA No.4732/2021-EXEMPTION FROM FILING

C/C OF THE IMPUGNED JUDGMENT and IA No.4736/2021-EXEMPTION FROM
FILING O.T. and IA No.4734/2021-EXEMPTION FROM FILING AFFIDAVIT )

Date : 21-01-2021 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR

HON'BLE MR. JUSTICE VINEET SARAN
HON'BLE MR. JUSTICE AJAY RASTOGI

For Petitioner(s) Ms. Sakshi Vijay, Adv.

Mr. Tapendra Sharma, Adv.
Mr. Palav Agarwal, Adv.
Mr. Ashutosh Kumar, Adv.
Mr. Astik Gupta, Adv.
Mr. Mnan Patel, Adv.
Mr. Varun Kumar, Adv.
Mr. Triloki Nath Razdan, AOR

For Respondent(s)

UPON hearing the counsel the Court made the following

O R D E R

Heard learned counsel for the petitioners.

The special leave petition is dismissed in terms of the signed

reportable judgment.

It is open for the petitioner to request the Trial Court to

complete the trial within one year.

(GULSHAN KUMAR ARORA) (R.S. NARAYANAN)

ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)