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Dr. Shri Balaji Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
CourtMumbai Aurangabad High Court
Decided On
Case NumberCriminal Writ Petition No. 784 of 2016
Judge
AppellantDr. Shri Balaji
RespondentState of Maharashtra
Excerpt:
criminal procedure code, 1973 - section 482 - pre-natal diagnostic techniques (prohibition of sex selection) act, 1994 - section 3-a, 22, 28(1) -oral judgment: (v.l. achliya, j.) 1. rule. rule returnable forthwith. heard finally with the consent of learned counsel for parties. 2. by this petition filed under article 226 of the constitution of india and section 482 of cr.p.c. the petitioner herein seeks quashing of complaint bearing no.150 of 2016 filed by the respondent under section 28(1) of pre-natal diagnostic techniques (prohibition of sex selection) act, 1994 and amendment act of 2003, (henceforth referred to as the "pcpndt act") on the grounds set out in detail in the petition. 3. before adverting to appreciate the submissions advanced, it is necessary to consider few facts leading to filing of petition. the petitioner claims to be doctor by profession and holds the degree as "ayurved visharad". he claims to be author of.....
Judgment:

Oral Judgment: (V.L. Achliya, J.)

1. Rule. Rule returnable forthwith. Heard finally with the consent of learned counsel for parties.

2. By this petition filed under Article 226 of the Constitution of India and Section 482 of Cr.P.C. the petitioner herein seeks quashing of complaint bearing No.150 of 2016 filed by the respondent under Section 28(1) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Amendment Act of 2003, (henceforth referred to as the "PCPNDT Act") on the grounds set out in detail in the petition.

3. Before adverting to appreciate the submissions advanced, it is necessary to consider few facts leading to filing of petition. The petitioner claims to be Doctor by profession and holds the degree as "Ayurved Visharad". He claims to be author of more than twenty books and composed twenty five healing music albums. Petitioner claims that he has played an active and significant role in promotion of Ayurved. He also claims that he has initiated the Santulan OM mediation and Santulan Kriya Yoga Techniques and founder of Atmasantulan village which is known as world's renowned healing center. He is an author of book "Ayurvedic Garbha Sanskar", which was published in the year 2007, this subject matter of petition.

4. According to petitioner, Shri Ganesh S. Borhade, made a frivolous complaint to the office of respondent against the petitioner alleging therein that the petitioner is author of book "Ayurvedic Garbha Sanskar", of which certain contents amounts to an offence under Section 22 of PCPNDT Act. He urged the Civil Surgeon, Ahmednagar, the appropriate authority to take action against the petitioner.

5. On receipt of said complaint, the Medical Officer attached to Rural Hospital, Sangamner, District Ahmednagar issued show cause notice to the petitioner, calling upon him to submits his explanation within 5 days from the receipt of show cause notice. Since, the petitioner was out of country, notice was responded on his behalf by the person authorized by him. Petitioner claims that, the detail reply dealing with each of the objectionable contents referred in the notice was given by the petitioner. In support of the contents in the book referred in the notice, the petitioner has enclosed the copies of the reference books which are treated as authority in the field of Ayurveda. It is also pointed out that, that the contents on page 193 of the book published by the petitioner made in the notice, there are many publications which have made reference to 'Pusavan Vidhi' which includes Charakh Sanhita, Ayurvediya Mahakosh Part-II, Ashtang Sangraha and a book prescribed by Central Council of Indian Medicine for the syllabus of B.A.M.S. Course and M.S. (Gynaec). He has urged that, none of the contents referred in the show cause notice suggest any technology, facility, capability of undertaking determination of sex of foetus or sex selection. It was further pointed in the same book on page No.195 Mrs. Malvika Tambe, Daughter in Law of the petitioner has shared her experience about giving birth to two daughters namely Tanushree and Tanishka.

6. After considering the explanation of the petitioner, the District Advisory Committee decided to seek guidance from the Dean, (Ayurved) Maharashtra University of Health Sciences, Nashik. Accordingly, the Civil Surgeon, Ahmednagar sent letter dated 20.01.2016 to Dean, (Ayurved) Maharashtra University of Health Sciences, Nashik seeking guidance on three points. Pursuant to request made vide letter dated 20th January, 2016 the committee of five Experts was constituted by Maharashtra Health University.

7. The expert committee after due deliberation forwarded its response through the Registrar of Health University. The Expert committee has specifically opined that, what has been mentioned in the show cause notice issued to the petitioner, is the part of syllabus of B.A.M.S. and M.S. (Gynaec) of Ayurvedic medicine and the reference of same also find place in 'Charakh Sanshita'- Chapter No.8, Sushrut Sanhita - Chapter no.2, Ashtang Sangrah - Chapter - I. The reply received in response to show cause notice, the opinion / guidance received from the expert Committee appointed by the Dean, (Ayurved) Maharashtra Health University was placed before the Advisory Committee. The Advisory Committee in its meeting held on 31.05.2016 decided to initiate prosecution against the petitioner and directed the Taluka Authorised Officer to file complaint.

8. Pursuant to said decision Dr. Raju Sambhaji Ghodke, the Medical Officer, attached to Rural Hospital, Sangamner filed criminal complaint against the petitioner under Section 28(1) of PCPNDT Act alleging therein, the petitioner has committed an offence under Section 22 of the PCPNDT Act. The complaint was filed on 13.06.2016 which was registered as RTC No.150/2016. It appears that, on the date of filing of the complaint itself, the learned Magistrate taken cognizance of complaint and passed an order to issue summons to accused Nos.1 to 3 i.e. the petitioner, publisher and seller of book respectively. Being aggrieved, the petitioner has preferred this petition seeking quashing of criminal proceedings against the petitioner.

9. We have heard Mr. Raghuwanshi, learned counsel appearing for the petitioner and Mr. Kale, learned APP for the State and perused the copy of the complaint, the impugned order, show cause notice issued to petitioner, reply filed to show cause notice, the letter written by Civil Surgeon, Ahmednagar to Dean, Maharashtra Health University seeking guidance/opinion in the matter and the guidance/opinion given by the expert committee constituted by Dean (Ayurveda), Maharashtra Health University and affidavit-in-reply filed by respondent.

10. Mr. Raghuwanshi, learned counsel appearing on behalf of the petitioner strenuously contended that, the filing of such complaint is nothing but gross abuse of process of law and humiliation and harassment to the petitioner who is well-known Doctor in the filed of Ayurveda. He has submitted that the petitioner has devoted his life to propagate the Ayurveda. He has submitted that the petitioner has written more than 20 books and running the center of Ayurvedic treatment known as Atmasantulan village at Karla, Dist. Pune. He has pointed out that the book written by the petitioner has nothing to do with determination of sex i.e. pre or post-conception. In fact, the book written by petitioner is a guide for the women to know as to how she should prepare for pregnancy, care to be taken after the pregnancy, nourishing of the foetus and care to be taken after delivery and baby care. The book written by the petitioner and the contents therein has no concern with the pre or post determination of sex or any act amounting an offence under the PCPNDT Act. He has submitted that, what has been recorded at page Nos.108 is a 'mantra' extracted from the Charakh Sanhita. He has pointed out that alleged objectionable contents at page No.193 is also part of Chapter on a 'Pusanwan Sanskar' find place in number of books, such as 'Ashtang Sangrah', Ayurvedic Mahakosh, Charakh Sanhita, Prasuti Tantra.

He has further pointed out that, the 'Prasuti Tantra' is the part of syllabus approved by the Central Council of Indian Medicine for the BAMS course. He has submitted that none of the contents of the book remotely suggest a technology, facility, capable of undertaking determination of sex of foetus or sex selection. Similarly, experience shared by Mrs. Hema Jagdish Konge referred in the complaint is personal experience shared by her after reading the series "Family Doctor", the supplement issued alongwith Daily Newspaper Sakal, on the basis of reading article 'Care to be taken in nine months of pregnancy' and 'Care of New born Child' which has helped her during the pregnancy and birth of healthy child. The view expressed by her no where suggest that she was helped in determination of sex of foetus or giving birth to male child. He has therefore submitted that, the complaint filed by the complainant is frivolous and there is absolutely nothing in the complaint to suggest that the petitioner has indulged in to any act to invite commission of offence under the provisions of PCPNDT Act. He has submitted that by no stretch of imagination the book in question can be treated as an advertisement to be termed as an offence under Section 22 of any of the provisions of the PCPNDT Act. He has further submitted that, the complaint filed by respondent is outcome of complainant made by Shri Ganesh Borhade who indulges into making such frivolous complaints with ulterior motive.

11. He has further submitted that, if the allegations made in the complaint, accepted in entirety at face value, still they do not constitute any offence under the provisions of PCPNDT Act. Continuation of such proceedings would amount to great injustice and hardship to the petitioner who will be required to face Criminal prosecution for no offence committed on his part under the provisions of PCPNDT Act or any other law. He has therefore urged to exercise inherent powers to quash the complaint and to save the petitioner to be subjected to undergo rigorous of Criminal Prosecution, humiliation and harassment.

12. Learned A.P.P. tried to justify the complaint by referring to sub-section (2) of Section 22 of the PCPNDT Act. He tried to point out that the contents in the book suggest that there are methods and rituals, if followed, would result into conception of male child, which amounts to offence, as contemplated under Section 22 of PCPNDT Act.

13. The gist of the complaint is that the petitioner has written a book, which is published by accused No.2 and sold by accused No.3 in which there are references about pre-natal sex determination methods utilised in the Ayurvedic branch of medicine and amounts to breach of section 3-A and 22 of the PCPNDT Act.

14. In order to appreciate the submissions advanced it is quite useful to refer the relevant section 3(A) and 22 of the PCPNDT Act, which reads as under :-

"3-A. Prohibition of sex selection - No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them."

"22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention

(1) No person, organisation, Genetic Counseling Centre, including Clinic, laboratory or Centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including Internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place.

(2) No person or organization including Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.

(3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees."

[Explanation : For the purpose of this section, "advertisement" includes any notice, circular, label, wrapper or other document including advertisement through internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas]."

15. Section 3-A provides absolute prohibition of sex selection by any person including a specialist in the field of infertility. Section 22 deals with absolute prohibition of advertisements relating to Pre-Conception and pre-Natal determination of sex and punishment for contravention. It is therefore necessary for us to examine the complaint as filed against the petitioner, prima facie discloses the commission of offence under Section 3-A or Section 22 of said Act. The contents mentioned below are alleged to be act amounting to violation of Section 3-A and 22 of PCPNDT Act on the part of petitioner.

In EnglishIn Marathi
I.Ayurved has outlined a specific mantra, to be whispered in the ear of the woman, during the final stage of labour:Aayurvredshastraney prasvachya dusrya avastheyt mhanjey garbhacha pratyaksh pavas hotana, sobat asnarya v prasvas madat karnarya striney, prasav honarya strichya kanat vishesh mantra mhanayla sangitaley ahey.
Karne casya mantram imam anukula stri japet,karney chashya mantram imam anukula stri japat,
"Ksitirjalam viyattejo vayuh Visnuh Prajapatih Sagarbham Tvam sada pantu vaisalyam ca disantu te"skhitijral vijtteyjo vayuvrishnu prajapati | sagarbha tvaa sada pantu vayshalya che dishantu tey||
Prasusva tvam aviklistam aviklista subhananeprayushva tva aviklishta aviklishtaa sheubhanney |
Kartikeyadyutim putram artikeyabhiraksitam"kartikaydyuti putra kartikeyabhirshitam ||"
iti ...Charak sarirasthanaIti .... charak sharirsthan
"May the Earth, Water, Sky, Air, Fire, Vishnu and Prajapati, protect you and your child. May they also help you to have a safe delivery. May your baby be born without undue effort. May the baby be as brilliant as Kartikeya and may Kartikeya himself protect it."Prouthvi, jal, akash, tej, vayu, vishnu v prajapati hey sarv garbhasahit tuzhey rakshan karot, tuzhayapasun garbh baheyr kadhot. shubhanney, tula kashta n hota kartikeyasarkhey teyjashvi bal hovo v kartikeya tyachey rakshan karo"
II.Punsavan Sanskar : carried out before the second month of pregnancy ends to ensure that the child to-be-born is full of life energy.This is Ponshvan sanskar-garbhdharana zhalyanantar dosara mahina sanpaychya aat balak virysanpanna honyasathi ha sanskar karayacha asto.
Contrary to common belief, the result of this sanskar is not to ensure that the child is male. The aim is to ensure fertility (for the continuation of nature's cycle) in the newly developing child. This sanskar ensures that the child born will further be able to have children as well.Ponshvan vidhi ha putrprapticha vidhi nasun yenarya apatyamadhey nisargchakra shuru rahanyasathi apatya nirmitichi shkmata nirman karnyasathicha ha vidhi ahey.
Both men and women play an equally important role in the formation of a strong social framework, and in ensuring the continuation of our species. By nature, the male is physically stronger than the female, and many atrocities have been committed against women because of this. Some changes in social norms are therefore called for. It is not wrong for a family to want a son, especially if they already have a daughter, and in such situations, Ayurveda has suggested special measures, whereby, either a male or a female child can be conceived.Jivanchakra chalu rahanyasathi v samajdharneysathi stri v purush ya doghanchihi mahatvachi bhoumika astey. bali to kaan pili ya nyayaney purushanni strhyanvar keleyla atyacharacha kahi bhordand porshana bharava lagla tar tyat kahi gayr nahi aani tya drushtiney samajik chaliriti badalun gheynyachi nitant avshyakta ajhi ahey. eakhadya kutunbat mulgi astana nantar mulga vhava ashi eicha aslyas kahi vavaghey tharu naye. tyadrushtiney aayurvedhat putraparptisathi vishesh ilaj suchavaleyla astat, tasech mulghi havi asli tar tyasathihi ilaj suchavaleley astat.
Punsavan sanskar aims to ensure the proper physical development of the child, so that it remains healthy and free of decease, with suficient virya and ojas for its entire life, irrespective of its gender. Although, the name may suggest that this sanskar is a religious ceremony, it is, in fact, a completely Ayurvedic treatment.Garbhadharana zhalyanantar garbhat mulga aso va mulgi, tya apatyachey sarv sharer uttam tayar vhavey, rogagrast nasavey aani sanpurna ayushyabhar purel asey viryayukta v ojasayunkt asavey mhanjech aarogysanppanna balakacha jannm vhava ya drushtiney ponsavan vidhi suchavalela asto. ponsavan vidhi ya shabdavar ha dharmik vidhi asava asey vatat asley tari to sanpurn ayurveydik padhaticha upacharvidhi ahey.
Ayurveda clearly states that the success of this procedure is dependent on many factors, such as, the time and place, and the Karma as well as destiny of the person. Only if these factors are positive can the procedure be successful. There are different ways of performing Punsavan Sanskar.Ya sanskarachi mahiti detana ayurvedaney suruvatilach sangitaley ki, ha vidhi desh, kal, karm aani dayva ya sarv goshti anukul aslya tarach sadhya hoto. Ayurveydamadhey ponsavanachey nirniraley yog sangitaleyle sapadtat. uda. vadachya zhadachya pourv kinva uttar dishela gelelya
For example : Take the tender shoots of a north of east-facing branch of a banyan tree. Grind them in milk, and use this liquid for nasya (as nose drops). This nasya must be done on pushya nakshatra (the occurrence of the pushya constellation). These drops are put into the left nostril of the mother if a daughter is desired, and in the right nostril if the couples wants a son. A similar procedure can also be done with Durva grass juice.fandyanchey kovaley konb dodhat vatu tayar zhalelya mishranachey pushpa nakshtravar mulgi havi aslyas davya nakpudit tar mulga hava aslyas ujavya nakpudit nasya karavey, yach prakarey dorvanchya rasacheyhi nasya karnyas sangitaleley ahey.
III.I am a regular reader of `Family Doctor'. The `Garbha Sanskar' series has helped me tremendously. As luck would have it, your article on `Care to be taken in the ninth month', coincided with ninth month of my pregnancy. The same was true, for the article on `Care of the newborn child'. I was able to have a normal delivery only because i have followed all your advice in great detail. My son is four months old now.Mi aaplya family doctor chi niyamit vachak ahey. Yatil garbhasanskar ya sadracha mala khoup fayda zhala. yogayog mhanjey mi naou mahinyanchi garodar astana aapla navavya mahinyatil kalaji aani mazhi dilivhary zhalyavar pachvya divashi navajat balakachi kalaji hey lekh prasidha zhaley. garbsanskar ya sadaratil sarv suchananchey mi kateykorpaney palan keley mhanunach mazhi dilivhari
Mrs Hema Jagdish Konge, Ahmednagarnormal houn sadrudh mulacha janm zhala.aaj maza mulga char mahinyancha aahey.
Saw. Hema Jagdish Kongey, Ahamadnagar

16. We have thoroughly scrutinized the allegations made in the complaint which according to the respondent amounts to violation of Section 3-A and 22 of PCPNDT Act by the petitioner. In our view the contents quoted above and which forms the foundation of the complaint, no way attract the offence under Section 3-A or Section 22 of the PCPNDT Act. The purpose of writing book appears to propagate knowledge about Ayurveda as a branch of Medical science. Writing and publishing such book and objectionable contents therein, in fact all the references taken from ancient texts on Ayurveda, it no way, amounts to suggest any an act on the part of petitioner suggesting any techniques, procedure or method of selection of sex of a woman or a man or on both prohibited under Section 3-A of the PCPNDT Act. Similarly, the contents referred no where suggest any act amounting to advertisement relating to determination of sex, in violation of Section 22 of the said Act.

17. By virtue of Section 22 the absolute prohibition of advertisement relating to Pre-Conception and Pre-Natal determination of sex has been provided and contravention has been made punishable with imprisonment upto three years. The advertisement by all means by the individual, organization, Genetic Council Center, Genetic Laboratory or Genetic Clinic Laboratory Centers having ultrasound machine or imagine Machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection have been prohibited.

18. On due examination of the allegations made in the complaint and more particularly the contents as referred above which according to complainant amounts to Act in violation of Section 3-A and Section 22 of the PCPNDT Act, we have no hesitation to hold that, the entire complaint discloses no offence either under Section 3-A or Section 22 of PCPNDT Act to prosecute the complainant. Filing of such complaint is a gross abuse of process of law. On reading the complaint and allegations made therein at their face value and accepted in entirely do not constitute any offence under the PCPNDT Act. In our view, the allegations are patently absurd and no prudent person would term such allegations as contravention of Section 3-A or Section 22 of the PCPNDT Act. By no stretch of imagination, it can be stated that the petitioner had indulged in to any act of making advertisement as to Pre-Conception and Pre-Natal Determination of Sex. The above quoted contents even not remotely suggest that the contents written in the book suggest in any manner that the petitioner undertakes or provides any facility or suggest any means for determination of sex before or after conception or provide any remedies for conception of male child. Filing of such complaint and prosecuting a person for the scholarly work done by him in the filed of Ayurveda is nothing but an Act of gross abuse of process of law.

We are rather surprised to see that, even after seeking guidance from the Dean of Health University, State of Maharashtra, such decision has been taken by the respondent to file complaint. It is apparent from the record that the respondent had requested the Dean of Maharashtra University to guide on three points referred in the letter dated 20th January, 2016. Pursuant to the request received the Dean of Maharashtra Health University constituted the committee consist of five experts in the field of Medical Science which includes three eminent person from field of Ayurvedic Medicine and two professor from Government Medical College at Pune. The committee has held various meeting and after due deliberation communicated its opinion on each of the point of reference. It is evident from the opinion given by the committee it is indicated that no case made out to substantiate the allegation made against the petitioner. Overlooking the detail reply supported by copies of references relied by the petitioner and the opinion sought from the Dean of Maharashtra Health University, the decision has been taken by the respondent to file complaint. The minutes of the meeting reflects that, no reasons have been recorded to take view contrary to the opinion given by the expert committee.

19. The opinion of the Expert Committee clearly indicate that what has been alleged to be objectionable is a part of a syllabus approved by Indian Medical Council (Ayurveda) for the course of B.A.M.S. and M.S. (Gynaec). As per the reference made they have provided the names of the reference books in Ayurveda such as 'Charakh Sanhita', Sushrut Sanhita and Ashtang Sangrah, wherein the alleged contents find place. They have also mentioned in minutes of meeting that though it is mentioned in the books of Ayurveda that by adopting the methods referred in the book it is possible to select the sex and facilitate giving birth to male child, but, there is no authentic information available. It appears from the meeting of the members of District Advisory Committee held on 31st May, 2016, the report/opinion of the expert committee was placed before the Committee and Committee discuss the same. But nowhere recorded its reasons to discard the opinion of expert Committee as well as the contention of the petitioner that publication of book and alleged contents therein not amounts to any offence under PCPNDT Act. Without recording any reason the Committee decided that the act of the complainant amounts to breach of provisions of PCPNDT Act and directed the Taluka Authorized Officer to file complaint in the matter.

20. In our view, it was expected on the part of appropriate authority to have applied its mind before taking such drastic action to prosecute the petitioner on the basis of few sentences used in the book written by him without going through the contents of book and context in which same have been mentioned in the book. The appropriate authority has even not taken any pains to consider the detail reply filed by the petitioner, in which he has specifically mentioned that what has been alleged as objectionable is not a personal view of the petitioner, but part of the books as referred in the reply, which are treated as authority in the filed of Ayurveda. The committee has also failed to taken into consideration that the contents which have been alleged to be objectionable and amounts to violation of the provisions of PCPNDT Act are part of syllabus of B.A.M.S. and M.S. (Gynaec) approved by Indian Council of Medical Science (Avurved). They have also not consider the copies of extracts from various books of Ayurveda forwarded by the petitioner alongwith the reply sent in response to show cause notice as well as the list of the books furnished by the expert committee. Their appears to be complete non application of mind on the part of appropriate authority in taking decision to prosecute the petition. In order to prevent the misuse of the provisions of PCPNDT Act, the responsibility to take the decision and to prosecute the person under the provisions of the PCPNDT Act has been entrusted to an appropriate authority constituted under the said Act. The police machinery has been kept out of purview of Act of inspection and lodging of complaint. The high ranking officials from the field of Health Department such as Civil Surgeon of District has been notified as a appropriate authority. Sub section 4 of Section 17 provides for the functions of appropriate authority.

One of such function of the appropriate authority is to investigate complaints of breach of provisions of the Act or the rules made their under as well as to take action. Section 28 of the PCPNDT Act expressly provides that no cognizance of an offence under this PCPNDT Act shall be taken by the Court except on the complaint made by appropriate authority or any officer authorized by the Central or State Government as an appropriate authority. We are sorry to observe that though such a important responsibility has been casted upon Civil Surgeon District Ahmednagar, as an appropriate authority, and expert in the field of Medical Science, still he has acted in a most casual manner in taking decision to lodge complaint against the petitioner. In fact, it was expected on the part of said authority to have thoroughly applied his mind before taking such decision to prosecute the petitioner. He ought to have considered the reply filed by the petitioner as well as the opinion obtained from the expert committee. While it is a duty of appropriate authority to ensure strict action against the persons violating the provisions of PCPNDT Act, but equally the said authority is duty bound to ensure that no person is unnecessarily prosecuted and subjected to criminal action.

21. We have perused the contents as quoted above which according to respondent amounts to violation of the provisions of the PCPNDT Act. It appears that few sentences from the books written by the petitioner has been picked up by the complainant without examining the context in which the sentences have been written and the view has been formed that same amounts to breach of provisions of PCPNDT Act. Perusal of the book reveals that the petitioner has written the book as a guide to the women to prepare for pregnancy as well as guidance during the pregnancy. It also provides guidance as to the precautions to be taken during the pregnancy and post pregnancy. It also provides for activities which the pregnant woman should undertake during the pregnancy and post pregnancy as well baby care. Petitioner has written the book in which the subjects have been classified in to five chapters and one appendix. The books provides the following chapters and appendix :-

Preparing for pregnancy...

1. Values lasting through multiple lifetimes

2. For healthy reproductive cells

3. Culturing the seed

4. Creating the atmosphere

5. The body's reproductive infastructure

6. Feminine balance

7. Difficulties during conception...

Care of the pregnant woman...

8. Early days of pregnancy

9. Diet during pregnancy

10. Fruits and vegetables for the pregnant woman

11. What and when should an expectant mother eat ?

12. Some essential activities

13. Remedies for minor problems

Nurturing the foetus...

14. Growth of the foetus and its nourishment

15. Some possible foetal defects

16. Yoga during pregnancy - 1

17. Yoga during pregnancy - 2

18. Preparations prior to delivery

19. Delivery

Care of the woman after delivery...

20. Care of the 'Sutika'

21. Diet after delivery

22. Ideal practices for the new mother

Baby care....

1. Care of the newborn

2. Breastfeeding

3. For a healthy baby...

4. Diet for the baby

5. 'Rasayan' for the baby

6. Child development milestones

7. Raising a child

8. Common childhood diseases

9. Premature birth and child care

Appendices

1. Concepts of Ayurveda

2. Investigations during pregnancy

3. Table for calculating delivery date

4. Family planning

5. Balguti

6. Sixteen Sanskars

7. Immunisation

8. Experience speaks...

9. Words of experiencefrom a doctor mother !

10. Special recipes

Panchamrut, Semolina Kheer, Narayan Sheera, Mung Dal Sheera, Carrot and Mung Dal Salad, Spinach, Bottle Gourd (Dudhi) and Mung Dal Soup, Kulith Soup, Mint (Pudina) Chutney, Mixed Vegetable Thepla, Supari for Balanteen (Post Partum), Suntha (Dry Ginger Powder) Goli, Dink Ladu, Methi Ladu, Ahleev Ladu.

11. Scientific names of medicinal plants

12. Santulan products for Garbha Sanskar

13. Glossary

22. In the opening remark the petitioner i.e. the Author of said book has disclosed the intention behind writing the said book and some of the observations reads as under:- :-

"The woman carries the child for nine months, accepts the inconveniences and discomforts that come with pregnancy. It would be gross injustice not to give her credit for this..............

I want to bring to attention that as a society we have paid very little attention to women's health. If a child is born with defects, the responsibility for this certainly lies with both partents, but it hinges more on the mother's health. She has a much greater effect on the child as compared to the father.

Just imagine, if children are born blind, deaf, or with any other defects, then who will enjoy the beauty of this world ? If children are born with holes in their hearts, who will sit in the jet planes we've designed ?

I wished to draw attention to the health of the woman and the unborn child. During the period between 1970-1972, I began to design certain health related programmes for women. They dealt with several subtle, interesting and often overlooked questions.

What should a woman do to maintain her health ? When and what should she eat ? How should one treat, or even better, prevent menstrual and urinary disorders ? What kind of relationship should man and wife share so that a husband contributes to his wife's well-being and ensures that her hormonal health remains in balance.

Since many years I started making medicines for this purpose and gave them free, as a service to humanity. I cannot stress more about the importance of care during pregnancy, care during child birth, and women's health in general. I decided to help people in these matters in what little way I could. So over the years, I developed a project called Ayurvediya Garbha Sanskar. While going through this book you will see how future generations could have much happier lives with the help of 'Garbha Sanskar'.

The perspective I offer people is that once a child is born with a physical or mental handicap or incapacitation, not only that individual but his entire family will go through hardship for their entire lives. Instead, it will always be better for the would-be parents to invest in some care as advised here for just 12 to 18 months prior to conception. This way they will reap the benefits for their entire lives, as well as for the lives of their children. We believe that a child is simply born due to the union of man and woman. This is as foolish as assuming that when a seed is merely thrown onto soil, it will survive, grow, and bear fruit. We are unaware that for this process to be fully realised in human beings, 'Garbha Sanskar' is absolutely essential.

Today's youth owes its good health to healthy parents. This good health has not been achieved automatically; it is the result of Ayurvediya Garbha Sasnkar, carried out over many generations (as part of their lifestyle and traditional, and perhaps not explicitly, or known by this name). This health is, by no means, to be taken for granted. Fortunately, with the advent of modern science, technology, and transportation, it has become easier to adopt 'Ayurvediya Garbha Sanskar.' If we want to do something for life long happiness and contentment, then we must follow 'Garbha Sanskar'.".............

Now, although having a child is an entirely natural process, some couples experience difficulty in conception. Som precautions are recommended before conception, and a certain amount of planning is necessary. And right from cnception until delivery, it is important that the foetus is well protected. These precautions will ensure that conception occurs without hindrance, and the child will, hopefully, be physically and mentally fit, make his or her mark in the world, and work positively for mankind. This entire process should not be left to nature's cycle or chance. Appropriate care during pregnancy will ensure a happy and illness free life for the child and these effects even carry over to successive generations!

Once we have understood the importance of this idea, it should follow that utmost care is taken to maintain the health of women. And it is simple and effective to do so if one uses ayurvedic remedies and medicines.

Women are generally sensitive because their hormonal systems are quite delicate. I have carefully studied the female hormonal system, and reseearched the effects that music has on it. I have also referred to our ancient Indian literature, stories and sciences. With the help of this research i composed music which is now on the albums 'Feminine Balance' and 'Garbha Sanskar', compilations designed to be listened to before conception, and during pregnancy, respectively. Through evaluations of the children whose mother's had regularly used these compositions and through their responses, we realised the compositions had extremely positive results. Based on these results we decided to distribute these albums on a large scale. Times Music, a leading worldwide publisher, made them available to all, including international audiences. The basic aim of these efforts is to help people bear healthy children so we can be assured of strong future generations.

Ayurvedic literature is rigorous and detailed in its description of the physiological functioning and development of the human body. It covers a lot of related behavioural topics. Apart from the process of Garbha Sanskar itself, topics like conception, child care and other necessary details like tests before, during and after pregnancy, diet, clothing and so on, are covered in this book.

,.................

,.................

This book has turned out to be like an experienced and wise older woman who passes on her expertise about conception, health and child care to younger women in her fold. I am confident that this book will serve to guide women well.

,.................

Ayurvedic Garbha Sanskar is a publication intended to help contribute to future generations who will work to uplift humanity!"

23. Thus, the book written by the petitioner even remotely treated as advertisement as contemplated under Section 22 of the PCPNDT Act. In fact, the book written by the petitioner is a sharing of vast knowledge and experience the petitioner has gathered during his long standing practice in the field of Ayurveda and as a guide for the woman and a family members to take care before and after conception and baby care. We find nothing in the book which remotely suggest that the petitioner has written and published the book with an intention to directly or indirectly suggest any method, procedure or techniques for determination of sex or giving birth to male child.

24. The complaint made by the complainant to the appropriate authority seeking prosecution against the petitioner is nothing but act of mischief on the part of complainant. So far as, Whispering/chanting of 'Mantra' as quoted at page No.108 of the book in the ear of the woman during final stage of delivery i.e. during the labor pain, no way suggest as means or technique to give birth to the male child. What has been quoted as a 'Mantra' by the Author of the book is extraction from the ancient book on Ayurveda. It is not the own creature of the petitioner and it has no nexus with determination of sex or birth of child. What has been mentioned in the book which is supported by the Charakh Sanhita as a 'Mantra' to be whispered in the ear during the final stage to facilitate smooth delivery and birth of child without undue efforts. The reference made of "Kartikeya" is a part of Mantra and not the own invention of the petitioner. It is a part of the 'Mantra' find place in the ancient book. The purpose of whispering 'Mantra' in the final stage of delivery, is nothing but prayer made to Earth, Water, Sky, Air, Fire, Vishnu and Prajapati, i.e. all the gods of universe to protect the child in the womb of women and to help her to have safe delivery and have baby to be born without undue effort. Such baby be as the brilliant as 'Kartikeya'. Therefore, the reference of the 'Kartikeya' in the Mantra' in the book has nothing to do with the determination of sex or birth of the male child. In this context the allegations made in the complaint that the 'Mantra' as referred in the book to be chanted/whispered in the ear of the women amounts to an offence under the PCPNDT Act found to be totally baseless.

25. Similarly, what has been mentioned at page No.193 of the book can not be termed as an act of advertisement as contemplated under Section 22 of the PCPNDT Act. If we consider as to what has been mentioned at page No.193 of the book as "Punsavan Sanskar" then it has nothing to do with determination of sex nor suggest that the petitioner has published the book with an intention to suggest any method, procedure or techniques, by adopting the same one can have male child. What has been observed in the book by the petitioner is not his own creature. What has been recorded is the ancient practices observed since long. The petitioner as "Punsavan Sankar" is also a part of the syllabus of the student of Bachelor of Ayurvedic medicine and part of number of publication which are accepted authority in the field of Ayurveda.

26. In response to the show cause notice the petitioner has submitted detail explanation and supported his explanation by forwarding the extracts of various books including the copy of the syllabus. The Expert Committee appointed by the Dean of Avurvedic Faculty, University of Medical Science, State of Maharashtra has given specific opinion on the issue. Similarly, in the explanation given by the petitioner, he has specifically mentioned that, what has been recorded at page No.193 in the book is a part of the syllabus of Ayurvedic medicine approved by the Central Medical Council of Ayurveda and find reference in the books of Ayurveda such as Charakh Sanhita, Sushrut Sanhita and Ashtang Sangraha to which are treated as authority in the field of Ayurveda. This contention of petitioner find favour in the opinion given by Expert Committee. Therefore, the contents recorded on page No.193 can not be treated as an act amounting to an offence under Section 22 of PCPNDT Act.

27. The another objectionable material alleged in the complaint, is that the petitioner has published in the book the experience shared by one Mrs. Hema Jagdish Konge, resident of Ahmednagar. In the experience shared she has mentioned that she is regular reader of series published as "family Doctor" the supplement of Sakal. By reading the 'Garbha Sanskar' series from said supplement helped her to have a normal delivery. In our view, sharing of such view by the reader no way suggest that by following the instructions reading series 'Garbha Sanskar', the said woman was helped in determination of sex or giving birth to male child. The allegations made and conclusion drawn by the appropriate authority to prosecute the petitioner on the basis of such comment as an expression of personal experience of some person is nothing but reflects the irresponsible and casual approach on the part of appropriate authority to file such complaint having no nexus with a violation of provisions of PCPNDT Act.

28. The purpose of writing the book appears to propagate the knowledge of Ayurveda as a branch of Medical science and as a guide for the woman and the family members for taking care before and after pregnancy which includes baby care. It cannot be termed as an any act amounting to advertisement as contemplated under Section 22 nor suggest any methods or technique of selection of sex or giving birth to male child. The book written by the petitioner is based upon references of ancient texts on Ayurveda and his own scholarly work in the field of Ayurveda. By no means the book and contents therein can be termed as an advertisement. On perusal of the book we find that, it is a scholarly treatise on the subject.

29. The petitioner has filed this petition to invoke the jurisdiction of this Court under Article 226 and 227 of the Constitution of India apart from Section 482 of Code of Criminal Procedure, 1973. The powers conferred under Article 226 and 227 of the Constitution of Indian as well as 482 of Cr.P.C. have no limits but same have to be exercised with great care and caution. The powers under Section 482 of Cr.P.C. are expected to be exercised where the Court is satisfied that it is expedient to exercise such powers to prevent abuse of process of any Court or otherwise to secure the ends of justice. The saving of the inherent powers is with a laudable public purpose that the process of the Court ought not to be permitted to be used as a weapon of harassment or persecution by unscrupulous litigant.

30. We have already discussed in the forgoing paras, the criminal complaint filed against the petitioner and allegations made therein. We have also observed how the prosecution has been initiated without any cause to prosecute the petitioner. The complaint has been filed by the appropriate authority without taking pains to even examine as to acts alleged in the complaint amounts to any offence under the PCPNDT Act. Although the appropriate authority issued show cause notice and called upon the petitioner to file reply, the authority has not considered the reply and extracts from the ancient books on Ayurveda submitted along with the reply. Similarly, though the appropriate authority obtained the guidance from the Expert Committee, same was also ignored while taking decision to file prosecution against the petition.

31. On taking the allegations in the complaint at face value and accepted in their entity, we are of the view that the allegations do not prima facie constitute any offence or make out any case against the petitioner for violation of provisions of PCPNDT Act. The objectionable contents in the book which is the subject matter of the petition are not the own creature or expression of any view on the part of petitioner, but same are the expression based upon reading of ancient books on Ayurveda and quotation from such books. The allegations made in the complaint do not suggest that petitioner has made any act of publication of advertisement as defined under Section 22 of the PCPNDT Act to attract the offence under Section 22 or any other provisions of law. None of the Act of the petitioner can be treated as any act suggestive of determination of sex pre or post-conception or suggestive of his own methods or techniques to facilitate birth to male child. The order of taking cognizance passed by learned Judge appears to be passed without application of mind. Therefore, the continuation of such criminal proceeding against the petitioner would be gross abuse of process of law apart from waste of time and public money. We are therefore of the view that, it is the fit case wherein the inherent powers of this Court under Article 226 r/w Article 227 of the Constitution of India and Section 482 of Cr.P.C. deserves to be invoked. We therefore allow the petition. Petition is allowed in terms of prayer clause "B" and "C".

32. Rule made absolute in above terms.


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