Supreme Court Upholds Denial of Bail in Pre-Natal Sex Determination Case: Rekha Sengar vs. State of Madhya Pradesh (2021) INSC 12

Introduction

Date of the Judgment: 21 January 2021

Citation: (2021) INSC 12

Judges: Hon’ble Mr. Justice Mohan M. Shantanagoudar, Hon’ble Mr. Justice Vineet Saran, Hon’ble Mr. Justice Ajay Rastogi. The judgment was authored by Hon’ble Mr. Justice Mohan M. Shantanagoudar.

Should an individual accused of conducting illegal pre-natal sex determination and abortions be granted bail? The Supreme Court of India recently addressed this critical question, emphasizing the seriousness of offenses under the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PC&PNDT Act). The Court upheld the High Court’s decision to deny bail, underscoring the societal impact of such crimes. This case highlights the ongoing battle against female foeticide and the importance of strict enforcement of the PC&PNDT Act.

Case Background

The case originated from an FIR registered on 26th September 2020, against Rekha Sengar (the petitioner) and another individual at PS City Kotwali Morena, Madhya Pradesh. The allegations were that they were involved in pre-natal sex determination and abortion of female fetuses at their residence, without the necessary legal registration or license. The petitioner was taken into custody in September 2020. Her initial bail application was rejected on 1st October 2020, and a subsequent application was withdrawn on 14th October 2020. A charge sheet was filed on 6th November 2020, against the petitioner and the co-accused for offenses under the Indian Penal Code, the Medical Termination of Pregnancy Act, 1971, and the PC&PNDT Act, 1994.

A sting operation was conducted by a team including members of the PC&PNDT Advisory Committee, the Nodal Officer, and lady police officers, upon the order of the Collector. An anonymous pregnant woman was used to approach the petitioner for sex determination and sex-selective abortion. The petitioner allegedly accepted Rs 7,000 for this service, following which a search was conducted at her residence. An unregistered ultrasound machine, along with other medical instruments used for sex determination and abortion, were seized from the premises.

Timeline:

Legal Framework

The core of the allegations against the petitioner involves violations of the PC&PNDT Act, 1994.

• Section 6 of the PC&PNDT Act: Prohibits the use of pre-natal diagnostic techniques, including ultrasonography, for determining the sex of a fetus.
• Section 23 of the PC&PNDT Act: Stipulates that any violation of the provisions of the Act constitutes a penal offense.
• Section 27 of the PC&PNDT Act: States that all offenses under the Act are non-bailable, non-compoundable, and cognizable.

The Preamble of the PC&PNDT Act states:

“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 sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.”

Arguments

The petitioner argued for bail, while the State of Madhya Pradesh opposed it. The arguments are summarized below:

Issues Framed by the Supreme Court

The Supreme Court considered the following issue:

1. Whether the High Court was justified in rejecting the bail application of the petitioner, considering the facts and circumstances of the case, and the provisions of the PC&PNDT Act.

Treatment of the Issue by the Court:

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Voluntary Health Association of India v. State of Punjab, (2013) 4 SCC 1*: The Court used this case to highlight the lack of effective implementation of the PC&PNDT Act and the need for stricter enforcement.
• Section 6 of the PC&PNDT Act: The Court relied on this provision to emphasize the prohibition of pre-natal diagnostic techniques for sex determination.
• Section 23 of the PC&PNDT Act: The Court cited this section to underscore that any violation of the Act constitutes a penal offense.
• Section 27 of the PC&PNDT Act: The Court referred to this section to highlight that offenses under the Act are non-bailable, non-compoundable, and cognizable.
• Lok Sabha Debates, Tenth Series, Vol. XXXIII No.2, July 26, 1994, Eleventh Session, at pages 506-544: The Court cited these debates to show the concerns about the skewed sex ratio in India and the need for the PC&PNDT Act.
• Beijing Declaration and Platform for Action, adopted in 16th plenary meeting of UN 4th World Conference on Women, (15th September, 1995), Article 115: The Court used this declaration to highlight the international recognition of female feticide and pre-natal sex selection as forms of violence against women.

What Weighed in the Mind of the Court?

The Supreme Court’s decision was heavily influenced by the need to uphold the objectives of the PC&PNDT Act and to deter the practice of pre-natal sex determination and female foeticide. The Court emphasized the societal impact of such crimes and the importance of strict enforcement of the law. The Court was also swayed by the evidence presented by the prosecution, including the sting operation and the seizure of the ultrasound machine.

Fact:Law Ratio

Logical Reasoning:

The Court considered the alternative argument that the co-accused was granted bail. However, the Court rejected this argument, noting that the petitioner had a more active role in the illegal activities. The Court reasoned that granting bail to the petitioner would undermine the PC&PNDT Act and send a wrong message to society.

The Supreme Court upheld the High Court’s decision to deny bail to the petitioner. The Court reasoned that the offenses under the PC&PNDT Act are grave and have serious consequences for society. The Court also noted the presence of a prima facie case against the petitioner, as evidenced by the sting operation and the seizure of the ultrasound machine.

The majority opinion was delivered by Justice Mohan M. Shantanagoudar, with Justices Vineet Saran and Ajay Rastogi concurring. There were no dissenting opinions.

The Court quoted from the judgment:

“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 pre-natal sex-determination as a grave offence with serious consequences for the society as a whole.”

“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.”

“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.”

Key Takeaways

• The Supreme Court emphasized the seriousness of offenses under the PC&PNDT Act and the need for strict enforcement.
• Bail will not be easily granted in cases involving pre-natal sex determination and female foeticide.
• The Court highlighted the societal impact of such crimes and the need to deter such practices.
• The decision reinforces the importance of the PC&PNDT Act in combating female foeticide and promoting gender equality.
• The Court’s emphasis on the need for strict enforcement may lead to more stringent actions against those involved in such practices.

Directions

The Supreme Court directed that it is open for the petitioner to request the Trial Court to expedite her trial and decide it within a period of 1 year.

Specific Amendments Analysis

There was no specific amendment analysis in the judgment.

Development of Law

The ratio decidendi of the case is that in cases involving offenses under the PC&PNDT Act, bail should not be granted easily, especially when there is a prima facie case against the accused and the offenses are grave with serious societal implications. This decision reinforces the existing legal framework and does not introduce any new legal principles, but it does emphasize the importance of strict enforcement of the PC&PNDT Act.

Conclusion

The Supreme Court’s decision in Rekha Sengar vs. State of Madhya Pradesh upholds the denial of bail to the petitioner, emphasizing the gravity of offenses under the PC&PNDT Act. The Court’s reasoning underscores the importance of strict enforcement of the law to combat pre-natal sex determination and female foeticide, reflecting a commitment to gender equality and the protection of girl children. The judgment serves as a reminder of the severe consequences of violating the PC&PNDT Act and the societal impact of such offenses.