Role of Police under PCPNDT Act - Important judgment of Hon. Delhi High court - Adv. ROHiT ERANDE ©
#PCPNDT : Cognizance of Offences U/Sec. 28 can’t be made on the basis of chargesheet filed by Police, but registration of FIR by police as per law is not barred.
Adv. ROHiT ERANDE ©
CRL.M.C. 1352/2023 & CRL.M.A.5184/2023
MANOJ KRISHAN AHUJA......................... Petitioner
V/s.
STATE OF NCT OF DELHI & ANR................. Respondents
CORAM:
HON'BLE MS. JUSTICE SWARANA
KANTA SHARMA
(delivered on 24/04/2023)
Facts in brief :
1.
The petitioner, by way of instant
petition filed under Section 482 of
the Code of Criminal Procedure, 1973 (‘Cr.P.C’),
sought quashing of FIR bearing
no. 375/2018, registered at Police Station
Sunlight Colony, New Delhi for the offences punishable under Sections 3A/4/5/6/23/29 of the Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter ‘PC&PNDT Act’) and all proceedings emanating therefrom.
2.
The case set out by the prosecution,
in brief, is that the District Appropriate
Authority, PC&PNDT, Rohtak had received an information regarding illegal sex determination of
foetus being carried out at Jeewan Hospital,
New Delhi by some of the doctors and the said information had been forwarded to Dr. Nitin, State
Program Officer, PC&PNDT (DFW),
who had accordingly informed the concerned authorities. Upon receipt
of such information, the concerned
authority in Delhi had constituted a joint raiding
team comprising District
Inspection Monitoring
Committee (DIMC) Team, South East District, New Delhi and PC&PNDT Team, Rohtak, headed by SDM, Defense Colony,
South East Delhi.
4.
The
team had also carried out other formalities at the spot such as
preparation of spot memo, panchnama, etc.
and three USG machines had also been seized along with other relevant articles. It is alleged that Rs.
30,000/- were paid to Ms. ‘X’ by decoy
patient Ms. Monika, out of which, Rs. 14,000/- was recovered from her and Rs. 12,000/- from the present
petitioner. It is also alleged that
foreign currency and Indian currency notes had also been recovered from the petitioner. As alleged, the
petitioner had also not taken any ID proof
of Ms. Monika nor had he filled the consent form ‘F’. On the basis
of this raid and recovery, the SDM, Defense Colony, New Delhi had given a hand-written complaint
to the SHO, Sunlight Colony
and the present FIR was registered against the accused persons.
5.
On 21.12.2018, the petitioner, one Dr. Shikha and one Dr. Ravinder
Sabharwal had received
a Suspension Order-Cum-Show Cause Notice from the Office of District Appropriate Authority,
South East Delhi whereby, by virtue
of powers under Section 20(2) of the PC&PNDT Act, the registration of M/s. Jeewan Hospital had been suspended. Further, the District
Appropriate Authority had also asked them
to submit their replies within 2 days as to why actions may not be taken against
them.
6.
The learned Metropolitan
Magistrate-07, South East, Saket Court, Delhi (hereinafter ‘Trial Court’) vide order
dated 11.10.2019, took cognizance
of the main and supplementary charge-sheet and proceeded to summon the petitioner to appear before it
& aggrieved by registration of present FIR and cognizance having been taken by learned Trial Court on the
chargesheet, the petitioner by way of present petition
seeks quashing of the said FIR and all proceedings emanating therefrom.
SUMMARY OF ARGUMENTS
7.
It is argued by learned
senior counsel for the petitioner that the FIR is devoid of any merits and cognizance of offences
could not have been taken by the learned Trial
Court under PC&PNDT Act in the absence of any complaint made by Appropriate Authority or any officer
authorised on behalf of it, as per clear
mandate of Section 28 of the Act, and cognizance taken on the basis of a chargesheet filed by the
prosecution was impermissible and untenable in law.
9.
It is also contended on behalf of
petitioner that the petitioner had never received
the Suspension Order-Cum-Show Cause Notice in person.
It is stated that on 02.01.2019, Dr. Shikha was fined Rs. 5,000/- for her role in the alleged violation
under the PC&PNDT Act and was warned to remain more diligent in future. On the other hand, the reply of the petitioner was found to be
unsatisfactory and no reason was given for such a decision.
It is further stated that on 13.03.2019, the Chairman, District
Appropriate Authority, Rohtak,
vide a letter had clarified
that there was no information received by them regarding the involvement of any doctors
in the alleged racket of illegal sex determination.
Arguments for State :
11.
Learned APP for the State further
states that involvement of the police
is not barred under the Act. It is also stated that offences under PC&PNDT Act are cognizable,
non-bailable and non-compoundable in nature as provided under Section 27 and the power of arrest in cognizable
cases vests with the police only since no such power has been vested in the Appropriate Authority by virtue of PC&PNDT Act. It is vehemently
argued that the words 'as far as possible' in Rule 18A(3)
of PC&PNDT Rules would show that the role of police
in investigating cases under the Act and assisting the Appropriate Authority
is not ruled out per se, and it is only the ‘cognizance’ which is to be taken
by the Courts as per Section
28 of the Act.
12.
The arguments addressed and the
contentions raised on behalf of both
the sides have been heard at length and the material on record has been perused.
Held
:
Hon’ble
Court gave a detailed judgment and started with the Historical backdrop of the
Act.
THE HISTORIC
BACKDROP
a.
In the year 1994, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted
by the Parliament and was brought into force on 01.01.1996. By way of Amendment
in the year 2003, the short title of the Act was amended to ‘The Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act’ and the Court also referrd to its Aims and Objects.
b.
The root of the issue can be traced back to 1970s and 80s,
when advancements in medical
technology had made it possible to determine
the gender of a foetus before birth. The PC&PNDT Act was enacted in 1994 in response to the widespread
practice of sex-selective abortions, a practice
which was driven by predilection for male children and social evil of female feticide which had deep
social and cultural origins in India.
The long-standing preference for male children led to a trend of sex-selective abortions which was, in
turn, responsible for a significant decline in the female-to-male ratio.
c.
The aim of PC&PNDT Act is to prohibit the misuse of
pre-natal diagnostic techniques for
sex-selective abortions and to regulate the use of these techniques for medical purposes only.
d.
The PC&PNDT Act makes it illegal to determine the sex
of a foetus through any means, and to
conduct any tests or procedures that could
lead to the selective abortion of a foetus based on sex. The Act also provided for the registration and
regulation of all diagnostic centres and clinics offering pre-natal diagnostic services.
e.
The Act was further strengthened in 2003 with the inclusion
of provisions for more stringent
provisions to ensure
better implementation. The
amended Act increased the penalties for violation and made it mandatory for all ultrasound clinics and machines to
be registered and monitored and paved
the way for establishment of State and National Boards to oversee the implementation of the Act.
ISSUES BEFORE
THIS COURT
I.
Cognizance of Offences under Section 28
can be made on the basis of chargesheet filed by Police ?
a.
The Court referred to Section 28 which expressly
provides for taking cognizance of offences under
the Act by the Courts, only upon filing of complaint by (i) the concerned
Appropriate Authority, or (ii) any officer authorised by Central Government
or State Government or concerned Appropriate
Authority, as the case may be, or (iii) any officer authorised by concerned
Appropriate Authority, or (iv) any person who has given notice of at least 15 days to the Appropriate Authority of the
alleged offence and his
intention to file complaint before the Court.
b. In view of
the above, either a complaint can be initiated by the Appropriate Authority, or even the Central Government and State Government can authorise an officer other than the Appropriate Authority
contemplated under this Act to file a complaint on which cognizance can be taken by the concerned
Court. The Appropriate Authority may also delegate its power to someone to file
complaint on its behalf who has been
authorised by them. Further, any person, other
than these authorities or officers, can also initiate a complaint, but
only in terms of Section 28(1)(b),
and the term ‘person’ also includes within its ambit a
social organization.
c.
In the present case, the
police, upon receipt of said complaint bySDM, Defence Colony, New Delhi,
had registered an FIR against the accused
persons under Sections 3A/4/5/6/23/29 of the PC&PNDT Act. After conducting investigation, the police
had filed chargesheet under Section 173 of
Cr.P.C. before the learned Trial Court. Having discussed the procedure contemplated under Section
28 of the Act in the
preceding discussion, this Court notes that the manner in which the cognizance was taken by the learned Trial Court
upon a chargesheet is not the procedure envisaged under the PC&PNDT Act.
d. In the
present case, the complaint had to be filed by the concerned Appropriate Authority before the learned
Trial Court as a complaint under
Section 200 Cr.P.C. Since the cognizance has been taken on the chargesheet filed under Section 173 of
Cr.P.C., it is clearly in the teeth of
the bar under Section 28 of this Act which bars cognizance except upon receipt of complaint in the manner
provided therein.
e.
It is also the sine qua non for taking cognizance that
the said Appropriate Authority or the person
so authorised should be validly
appointed.
f.
In the considered opinion of this Court, since Section 28
of the Act expressly prohibits taking
of cognizance by the Courts
in absence of a complaint made by Appropriate Authority or any other person authorised on its behalf, the complaint filed
subsequently and registered and
pending adjudication as per law under the Act cannot come to the rescue of the prosecution, more so
since it will amount to prosecuting the
same persons for same offences by two procedures prescribed under law i.e. by way of filing of a complaint
case which was mandatory
under this Act and on the basis of cognizance taken of a chargesheet which is
prohibited under the Act.
g.
In this case, this Court also takes note of an order dated 15.07.2019 vide which
the Appropriate Authority
had granted ‘sanction’ under Section 28 to the police
to prosecute accused no. 3 in the present FIR.
h. The Court
noted that though technically
the police had been authorised
to prosecute the offenders, the same did not absolve the
Appropriate Authority of their duty to file a complaint
which was mandatory
under the PC&PNDT Act under Section
28. The Appropriate Authority, however, had filed
a complaint in the Court on 02.09.2020.
Therefore, the cognizance in absence of complaint of the Appropriate Authority was barred in law.
II.
Is Police Investigation permissible under PC&PNDT Act?
13.
Learned senior counsel for the
petitioner had argued that no FIR or
charge-sheet could have been
filed in the present case since the offence alleged against petitioner relates to PC&PNDT Act,
which is a special legislation and all the proceedings, including
investigation, filing complaint, etc. can only be performed
by the Appropriate Authority
and these allegations were contested by the Govt.
14.
The Court observed that the Cognizable
offences are those criminal offences where the police has the power to make an arrest without a warrant and start an investigation
without requiring permission from a Court. Further, non- bailable offences are those where an accused cannot be granted
bail as a matter of right.
15.
It referred to the Rule 18A of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 provides
for Code of Conduct to be observed
by Appropriate Authorities, wherein Rule 18A(3)
reads as under:
“...(3) All
the Appropriate Authorities including the State, District and Sub-district notified under the Act, inter alia, shall observe the following conduct
for processing of complaint and investigation, namely:-
(i) maintain
appropriate diaries in support of registration
of each of the complaint
or case under the Act;
(ii) attend to all complaints and maintain transparency in the follow up action of the complaints;
(iii) investigate all the complaints within twenty four hours of receipt of the complaint
and complete the investigation
within forty eight hours of receipt of such complaint;
(iv)
as far as possible, not involve police for investigating cases under the Act as the case under the Act are tried as complaint”
(Emphasis supplied)
16.
As per Section 27, the offences under
the PC&PNDT Act have been classified as 'cognizable' offences
without an exclusion
clause barring the role of
police. Similarly, the phrase "as far as possible" included in Rule 18A(3) would indicate
that the role or assistance of police
is not barred under the Act. Though the offences under the Act have been made cognizable, definition of
which has as per Cr.P.C. has been
reproduced in preceding para no. 43, it is not clear from the Act that since the police is duty bound to
register an FIR when it comes to their
knowledge that a cognizable offence has been committed and is empowered to arrest a person without a
warrant, though Section 27 makes all the
offences under the Act to be ‘cognizable’, what will police do
in such eventuality.
17.
However, this Court notes that Section
28 of PC&PNDT Act only bars taking of cognizance by Court of law and does not bar registration of FIR or investigation by
police on the basis of a complaint lodged with the
police. After referring to Sec.4 of Cr.P.C., the Court noted that all offences under the Indian Penal Code,
1860, and also the offences under ‘any
other law’, are to be investigated, inquired into, tried or otherwise to be dealt with as per provisions of
Cr.P.C., unless an exception to the same
is expressly provided in ‘any other law’. As observed in preceding paragraphs, the offences under the
PC&PNDT Act are cognizable in nature,
and thus, registration of FIR or
investigation by police as per law is not barred.
18.
The Court referred to the peculiar
facts of the Case in hand wherein the raid was
conducted by the Appropriate Authority as per mandate of the Act and the Rules. After all the search and
seizures had been made and relevant documents
had been prepared by the officials of Appropriate Authority as per provisions of the Act, they had
informed the police. Thereafter, the concerned SDM had lodged a complaint
and had submitted along with it, the relevant documents
which were prepared by the Appropriate Authority itself, such as spot memos, inspection performa, punchnama,
office order, list of currency notes,
statements of decoy patients, Form-F of two patients, documents relating
to qualification and registration of accused persons,
etc. Therefore, all the
formalities contemplated under the Act were initially performed by the Appropriate Authority and only thereafter, the assistance of
police was sought for the purpose of effectuating the arrest of accused persons.
The police had also recorded
the disclosure statements of the accused
persons, and had carried out further investigation relating to recording of
statements of witnesses under 161 Cr.P.C.,
ascertaining details regarding ultrasound machines, ownership details of hospital in question,
investigation qua Call Detail Records of accused persons,
etc.
19.
Thus, tested from the facts and
material on record of the present case, the proceedings in this case were initiated
by Appropriate Authority. The initial investigation as
per the Act was carried out by them and they had sought assistance of the police for further
investigation. Since the Act does not bar the involvement of the police entirely and the Appropriate Authority
could have taken assistance of the
police, the assistance of the police in this case was thereby taken. The reason as to why the Appropriate Authority
felt a need for taking assistance of the police will become clear only during trial and, therefore, it cannot be a ground
for quashing of FIR.
20.
The Court held that the bar under Section
28 of the Act that cognizance can be taken only if a complaint
of the Appropriate Authority is before the Trial Court is an absolute
bar. Therefore, though registration
of the FIR is not expressly barred under the
Act on the complaint made by Appropriate Authority, taking of cognizance only on the basis of chargesheet
filed by the police on the basis of such a complaint is barred. A similar view was also taken by the
Division Bench of Hon’ble High Court of Punjab and Haryana in case of Hardeep Singh
v. State of Haryana
CRM No.M-4211/2014.
21.
As held by Hon’ble Apex Court in Rasila S. Mehta v. Custodian, Nariman Bhavan, Mumbai 2011 6 SCC 220,
it is incumbent upon the Courts to
interpret the statute in such a way that it protects and advances the purpose of enactment, and to not
adopt any technical or restricted interpretation of the provisions which would negate the legislative intent and policy.
22.
Albeit, it is not specifically provided
in the Act that the Appropriate Authority
can get an FIR registered after their preliminary inquiry, search, seizure etc.
or on a complaint received by them, the purpose of law cannot be defeated
by quashing of FIRs where investigation
also reveals commission of cognizable offence under the Act only due to lack of clarity in this regard in the Act. At
the cost of repetition, it is to be
noted that when the Appropriate Authority, as per mandate of PC&PNDT Act, informs the police about commission
of offence under the Act, the police
is duty bound and it is mandatory for them to register an FIR if commission of cognizable offence
is made out.
III.
Quashing of FIR in a case under PC&PNDT Act
23.
In the present
case, the complaint
was received by the Appropriate Authority, and was dealt with
by them under the Act and thereafter
a complaint was lodged with the police as their assistance was sought
for investigating the matter. Further,
keeping in view that there
is no complete bar in involvement of police under the Act, and the words used in Rule 18A(3)
are “as far as possible”, neither the filing of chargesheet was vitiated nor the registration of FIR was bad in
law. In case this view is adopted, FIRs registered under the Act and investigations carried out by the police pursuant to complaint by Appropriate
Authorities culminating into filing of chargesheet against the offenders would have to be quashed
on technical ground
of no clarity or specific
provision in the Act regarding
the same.
24.
The
Act is silent as to what course is to be adopted
and what is the
repercussion of such chargesheet being filed in the court. As held by the Hon’ble Apex Court in the case of Rasila S. Mehta (supra), the purpose of law is not to allow the
offender to sneak out of the meshes of law
and that “the statutes must be construed in a manner which will suppress the mischief and advance the object the legislature had in view.
A narrow construction which tends to stultify the law must not be taken.”
25.
Thus,
hyper technical grounds
cannot become the basis of quashing
of chargesheets or FIRs, especially when offences under the Act are cognizable in nature.
OBSERVATIONS OF THE COURT APROPOS
(CONCERNING) THE NEED TO CLARIFY CERTAIN PROVISIONS AND PROCEDURES UNDER THE ACT
26.
Before parting with this judgment, it
is in the factual and legal background
of this case that this Court is constrained to make certain observations, which are recorded in the succeeding paragraphs.
I.
Joint Endeavour of Judiciary, Legislature and Executive to achieve
Object of the Act
II.
Impact Assessment of Laws, Practical
Difficulties and Consequent Development of Jurisprudence by the Courts
III.
Judicial, Institutional and Constitutional Restraint by the Courts Vs. Pointing out the Grey Areas in
an Act for the Legislature to cure for achieving Substantive Justice
IV.
Backdrop of Reasons
Necessitating Issuance of Guidelines Apropos
the Act: Quest for Substantive Justice
a.
Need
for Safe Womb for Female Foetus: Sex- Determination Tests directly
related to Sex-Selective Abortions : The Court touched the
important issues of how the preganant women is put through the ordeal.
b. It also mentioned that to
encourage the education and well being of female child, the government has implemented schemes
which include providing incentives such as free education
and a fixed sum of money deposit when
a female child is born, so that she is not considered a burden and her parents do not worry about how to pay for her education or marriage.
c. However, attitudinal changes are essential to ensure safety
of an unborn female. Despite various
schemes being implemented by the governments, small families having poor
economic status had always desired to have at least one male child. Needless
to say, the dual violence faced by a woman on the basis of her gender in itself is abhorrent.
d. Earlier, a woman was
pressurised by her family members
to give birth only to a male child, however, in certain situations, women themselves wanted a male child
considering the fact that once she
was old, she would have a son to support her.
Women also had insecurities in certain cases that in case they were not able to give birth to a male child, they
would not be respected or valued by
family members as well as the society. On the other hand, there are situations when a woman already has a
female child as the first child in the
family, and in those cases, women have to
face serious mental pressure to undergo abortion if her second
child is not a male child which leads to mental
violence and physical
health hazards. As such
abortions are being carried out against the law which are based on selective
sex determination that this
Act aims to curb.
e. Women who choose
to have an abortion in such circumstances, or rather are forced to undergo abortion by family pressure,
choose to have abortion at private
clinics where they use unsafe and unhygienic
practices. Poor and rural women lack access to safe and hygienic
abortion services and there are instances that since they cannot get
these done at government hospitals, either they adopt
unsafe means at home or at unsafe
private clinics.
f. Sex-selective tests, followed by sex-selective abortion
are typically conducted during
the later stages of the second trimester. This
ordeal not only inflicts physical pain and trauma upon women, but also causes emotional turmoil. Women may feel
pressured by their family and society
to terminate the life of a female foetus, even if it goes against their own beliefs and conscience.
The decision to end the life of the
unborn child can have a profound emotional impact that can last for several months. Women may experience
feelings of anxiety, fear, and grief that are
difficult to articulate.
27.
There are situations where a woman may
choose to bear the discomfort of carrying a female foetus for
a limited period, rather than subjecting
herself and her unborn daughter to a lifetime of distress and anguish. The ethical and personal dilemmas
involved for a woman can be
intricate, particularly when they clash with societal norms and the collective beliefs of those around her.
Consequently, women may find themselves
grappling with complex decisions that involve navigating a challenging set of moral and social circumstances.
28.
The
offences under this Act, which are proposed to be curbed, give rise
to dual violence i.e. against
the unborn female child and against the mother by putting her into
health danger by forcing them to undergo
abortions. Needless to say, a woman will be forced to undergo an abortion in case she has a female child
in her womb, only when an illegal sex-determination test is conducted.
CONCLUSION AND DIRECTIONS
29.
Although our country has made
considerable progress towards achieving gender equality, the preference
for sex determination still exists.
Despite efforts to eliminate this bias, it has been challenging to completely eradicate it. This statement is
being made to emphasise the effectiveness
of current legislation and the above observations made by this Court are intended to highlight the
impact of existing laws and regulations
on society.
30.
In these circumstances, this Court,
therefore, to ensure that the object of the Act in question
is achieved, passes the following
directions:
i.
The contents of this judgment and the
observations made herein-above be
brought to the notice of the (i) Ministry of
Law and Justice, Government of India, (ii) Ministry of Health and Family Welfare,
Government of India, (iii) Department of Health and Family Welfare, Government of NCT of Delhi, (iv) Commissioner, Delhi Police and (v) Director
(Academics), Delhi Judicial
Academy.
ii.
The
contents of the PC&PNDT Act and Rules be brought
to the notice of the District Appropriate Authorities, Investigation
Officers, as well as Prosecutors
regarding specific mandatory
provisions of Section 28 of the Act and as to what procedure
is to be adopted in ensuring the complaint filed under the Act.
iii.
Efforts be undertaken by the Central
as well as State Government to ensure clarity
among the Appropriate Authorities about their duties and powers for ensuring effective compliance of the mandate of
PC&PNDT Act and better communication within the officials
of the Authorities.
iv.
Training and sensitization programmes
can be organised for the officials
who are concerned with the implementation of
PC&PNDT Act.
v.
At present, the details of the District
Appropriate Authorities are
not readily available or known to a common
layman. It is also not clear as to whether such Appropriate Authorities have an office or a website
where a complaint can be lodged or
whether a person has to go to their office personally
or not. In today’s world of technology, it would be appropriate if online portals and websites are created for this purpose, if not yet done, to notify and inform the general
public about the procedure, place and mechanism to lodge such a complaint.
31.
The
Delhi High Court Legal Service
Committee and the law
colleges through their legal aid committees may also educate and inform the people about mandatory provision and the fact that in case a person wants to lodge a complaint for commission of offence under
this Act, the complaint has to be lodged either with Appropriate Authority or a person authorised on behalf of Central and State Government
as per mandate of Section 28 of the Act.
32.
The
concerned Ministries/Departments of Central Government and State Government will ensure that such steps are taken, as
directed above and compliance is filed
within three months.
33.
This Court also makes it clear that
this Court is not creating any new
law or a ‘judicial legislation’ but is pointing out the ambiguities in the Act to the concerned
authorities, for them to deal with it appropriately,
since the very object of enactment of the present Act is being defeated in majority of cases due to lack of awareness to
the people, to the police as well as
to the concerned authorities under the Act.
34.
As far as prayers of the petitioner are concerned, in view
of aforesaid discussion, the Court held that:
i.
Cognizance taken by the learned Trial
Court vide order dated 11.10.2019, in
absence of any complaint filed by Appropriate
Authority under Section 28 of the PC&PNDT Act, was bad in law, and
thus, the order dated 11.10.2019 is set aside.
ii.
However, no grounds for quashing of
FIR are made out since registration
of FIR upon a complaint lodged by Appropriate
Authority or any person authorised on its behalf disclosing cognizable offence, conduct
of investigation and filing of chargesheet is not barred
under the PC&PNDT Act.
iii. The
Court held that the investigation
carried out in this case was ‘assisted
investigation’ at the request of Appropriate Authority, and since the complaint filed
by Appropriate Authority is already pending
before the learned
Trial Court in a separate
complaint case, the police investigation in the present case be merged
with the said complaint case.
Petitioner will be at liberty to move an appropriate application before the learned Trial Court for clubbing of
cases, as per law.
iv. In
case, at the end of the trial, the petitioner is convicted and sentenced for any offence under any
provisions of this Act, the period for
which the petitioner had remained in judicial custody pursuant to filing of present FIR will stand set off
against the period of punishment awarded to him.
This is a very interesting judgment and may have impact on the other issues too. The Court, perhaps for the first time, has also dealt in detail with the real reasons behind female foeticide and how the women are made to suffer and interestingly has not completely held the Doctors responsible for it.
thanks and regards
Adv. ROHiT ERANDE ©
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