Gujarat High Court
Chaudhary Bhagubhai Mansingbhai vs State Of Gujarat on 27 October, 2023
NEUTRAL CITATION
R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1918 of 2013
With
R/SPECIAL CRIMINAL APPLICATION NO. 1143 of 2013
With
R/CRIMINAL MISC.APPLICATION NO. 13519 of 2013
With
R/CRIMINAL MISC.APPLICATION NO. 16686 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHAUDHARY BHAGUBHAI MANSINGBHAI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
CR.MA No.1918 of 2013 & SCR.A 1143 of 2013
MR BB NAIK, SENIOR ADVOCATE WITH MR PARTHI BHATT for the
Applicant of SCR.A 1143 of 2013.
MR TUSHAR CHAUDHARY(5316) for the Applicant(s) No. 1
MR. RB CHAUDHARY(7013) for the Applicant(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
CR.MA Nos.13519 of 2013 & 16686 of 2014
MR PM LAKHANI, for the Applicants.
MS RV ACHARYA(1124) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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Page 1 of 52
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NEUTRAL CITATION
R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/10/2023
CAV JUDGMENT
1. Since the facts and the issue involved in all these petitions are similar, all these petitions are heard and decided together by this common judgment.
2. Special Criminal Application No.1143 of 2013 is filed with a prayer to quash and set aside the impugned FIR registered at City "B" Division Police Station Jamnagar, being C.R.No.II-39 of 2013 for the offences punishable under Sections 4(3), 5(1)(b), 5(1)(c), 5(2), 6(a) and 25 of the Pre-
Conception and Pre-Natal Diagnostic Techniques [Prohibition of Sex Selection] Act, 1994 (for short, "the Act") and Rules 9(1), 9(4) and 10(1A) of the Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Rules, 1996 (for short, "the Rules"). Said complaint was lodged by District Health Officer. While complaint being C.R.No.II-406 of 2012 is filed by appropriate authority under the PC&PNDT Act, before Visnagar Police Station, Mehsana, which is challenged by filing Criminal Misc. Application Nos.1918 of 2013, 13519 of 2013 and 16686 of 2014.
3. So far as facts of Special Criminal Application No.1143 of 2013 is concerned, complaints were received against the Page 2 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined petitioner, who is practicing as a Gynecologist at Jamnagar and she was illegally examining foetus by charging a huge amount. To take out legal proceedings against her, one Shardaben was selected as decoy patient who was carrying two months pregnancy and she was sent to the petitioner for examination. She was called on 20.2.2013 by the petitioner for examination to know the sex of foetus. To carry out a sting operation, three government witnesses were kept present and a panchanama was drawn including noting down number of currency notes. Thereafter, on 20.2.2013, the first informant and the panchas were standing at some distance from nursing home of the petitioner and Shardaben went to the hospital for examination. For carrying out the operation, a hidden camera was installed on the dress of Shardaben.
After Shardaben was examined, she was informed that the foetus was found not breathing and, therefore, Shardaben was referred to Dr. Sunil Mehta, who is running Image Point Diagnostic Centre. At that time, the petitioner charged Rs.400/- for doing sonography and examining Shardaben.
Thereafter, Dr.Sunil Mehta examined Shardaben. Thereafter, Shardaben asked the petitioner regarding the report of Dr.Sunil Mehta and at that time the petitioner called Shardaben at 5 p.m. to visit her hospital. In the evening, when the petitioner saw report of Dr.Sunil Mehta, she informed Shardaben that foetus was dead and an operation Page 3 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined was required to be carried out. At that time, Shardaben asked about sex of foetus [fetal gender identification] and the petitioner informed her that it is a female foetus. Thereafter, the petitioner advised Shardaben to come on next day without taking any water or food for carrying out abortion and also told Shardaben that if her mother-in-law would come tomorrow, the petitioner would inform her also that it is a female foetus. Thereafter, the petitioner charged Rs.9000/- for disclosing the sex of foetus. Shardaben came out and gave a signal and, thereafter, a raid was carried out and amounts of Rs.9000/- and Rs.450/- were recovered from the petitioner. With such allegations, complaint is filed against the petitioner.
3.1 Therefore, being aggrieved and dissatisfied with the same, this petition is filed by the accused on the ground that said FIR cannot be filed, more particularly when the Act provides that unless it is filed by an authorized officer by way of private complaint before the competent Court such proceedings cannot be entertained. Therefore, it is prayed to quash the impugned complaint.
4. Since Criminal Misc. Application Nos.1918 of 2013, 13519 of 2013 and 16686 of 2014 are filed against same complaint by different accused persons, facts of Criminal Page 4 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined Misc. Application No.13519 of 2013 are stated hereunder for considering these matters.
4.1 The petitioner is a law-abiding citizen and a Doctor of repute and is attached with the well known "Mahesana Lions Hospital" at Mahesana. The petitioner is a hard working and young Doctor who has completed his study in Russia and, thereafter also, completed the specialization course in Mumbai and thereafter, has started his practice at Mahesana from beginning of his career and at present, is associated with the Mahesana Lions Hospital, at Mehsana. The petitioner further humbly states that the petitioner has a very bright future and extremely a good career path. In the year 1998, the petitioner went to Russia for further study. He got admission in the language course in the year 1998 and thereafter, in the year 2005, he completed his M.B.B.S. from Moscow in Russia. The petitioner came back to India and immediately thereafter, had joined for the Post Graduate Diploma Course (Obstetrics & Gynecology) (DGO) with Dr. D. Y. AR Patil Medical College, Hospital and Research Centre at Navi Mumbai from where he completed his Post Graduation Diploma in the year 2010. Thereafter, he got registered himself with the Gujarat Medical Council at Ahmedabad on 13.12.2010. After completing his DGO from Mumbai, he started his very first practice at Mehsana with one "Dr. U.C. Page 5 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined Vasavada Maternity Home" from 01.07.2011 and thus had started to reside in Mehsana. Thereafter, he started working as a full time Gynecologist with Smt. Savitaben Ramanlal Dahyalal Shah Sarvajanik Hospital & Prasuti Gruh Trust, Ambasan, Taluka & Dist. Mahesana and had worked there from 01.03.2012 to 13.08.2012. The petitioner was allotted an official quarter to reside near the said Hospital. Thereafter, the petitioner had joined one "Dr. Mehul V. Sukhdiya, Radhey Nursing Home and Endoscopic Centre", Dairy Road, Mahesana, and worked there from 20.08.2012 to 31.12.2012.
During his work tenure in the said Hospital, he was residing at Mahesana and at the same address as stated in the cause title of the petition. The petitioner state that the bungalow is in name of his brother. During this period, he has also attended different professional training courses and had also completed a Fellowship in "Advance Endoscopic Surgery".
Thereafter, the Petitioner was appointed as a M.D. D.G.O., in the Department of Gynecology in the "Lions General Hospital", at Mahesana from 1.06.2013. Till today, the petitioner is attached with the Lions General Hospital at Mahesana and is discharging his duties as Gynecologist.
4.2 It is stated that looking to above relevant facts, it is very much evident and crystal clear that the petitioner was and is still today practicing as a Doctor in Mahesana and Page 6 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined never in the past had worked or associated in any manner whatsoever, with his Father who is also a medical Doctor and is practicing separately in his own clinic in Visnagar since very long. In other words, the petitioner states that after the completion of the Post Graduation studies from Mumbai, the petitioner had started his work career in Mahesana and always resided in Mahesana. The petitioner states that he was and is inclined and ambitious to build his career in Mahesana as a reputed Gynecologist Doctor in the Mahesana City. The Petitioner says that he resided for some time with his family at Tirupati Shukan Bungalow at Mahesana and from 15.08.2012 onwards is permanently residing with his wife and his son named "Malay" at 25, Akash Bungalows, Ashram Chokdi, Visnagar Road, Mahesana which is owned by his brother - Hareshbhai B. Chaudhry.
The son "Malay" was also born at Vasavada Maternity Home, Mahesana.
4.3 The Petitioner humbly submits that from the facts enumerated above one thing is very evident and crystal clear that right from the beginning of his career the petitioner lived and resided in Mahesana and, therefore, the Petitioner neither had or has any professional connection, whatsoever, with his father nor was or is practicing at his father's hospital at Visnagar. The Petitioner most humbly say and Page 7 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined submit that only when he came to know and heard about the complaint filed against his father that he went to his father's clinic. By that time he reached his father's clinic, the alleged string operation was completed. The Petitioner came to know about the details of the Complaint later on and was tremendously taken aback. It is only thereafter the Police implicated the petitioner. The Petitioner therefore most respectfully say and submit that he was not personally present in the hospital at the time of so called commission of the crime and he was nowhere involved in the said commission of the crime. No role of him has been stated by the complainant in her complaint. In view of above, II-
C.R.No.406 of 2012 is filed against the petitioners of these petitions.
5. Heard learned Senior Advocate, Mr.B.B.Naik appearing with Mr.Parthiv Bhatt and learned advocate, Mr.P.M.Lakhani for the respective petitioners, learned advocate, Ms.R.V.Acharya for respondent no.2-complainant and learned APP, Ms.Monali Bhatt for the respondent-State.
6. Learned Senior Advocate, Mr.B.B.Naik and learned advocate Mr.P.M.Lakhani appearing for the petitioners have submitted that considering Section 28 of the Act, which provides for cognizance of an offence, and it is provided that Page 8 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined no Court shall take cognizance of an offence under this Act, unless on a complaint made by appropriate authority or a person who has given notice of not less than 15 days, in the manner prescribed, to appropriate authority, of the alleged offence, and of his intention to make a complaint to the Court.
6.1 Learned Senior Advocate, Mr.Naik has submitted that, in view of above, complaint filed by District Health Officer before the police station cannot be entertained. He has further submitted that FIR is filed pursuant to alleged decoy trap whereby the accused person is found indulging in activity which is prohibited by the Act and the Rules. He has further submitted that on a bare reading of FIR, no offence is made out against present petitioner. He has submitted that the accused is a lady doctor aged about 76 years and she is practicing since last 50 years as a gynecologist. He has also submitted that in so-called sting operation, it is revealed that the applicant had noticed a lifeless foetus. He has also submitted that initially the applicant had refused to disclose gender of the lifeless foetus, however, based on her experience and knowledge of "missed abortion" a reference was made to the imaging centre. In addition, allegation against the applicant are of not following procedure under the Act for which the authority can certainly Page 9 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined takes steps and considering all these aspects, the co-ordinate Bench of this Court has granted anticipatory bail to the petitioner. He has further submitted that considering the definition as provided in Section 2 (bc) the Act, "foetus"
means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth.
Therefore, when a lifeless foetus was existing in the womb, as per the submission of Mr.Naik, provisions of the Act cannot be attracted in present case and the FIR which is filed by the Medical Officer is required to be quashed and set aside. He has also submitted that complaint is also filed pursuant to the alleged offence before the concerned Court by the officer on 6.6.2014. He has further submitted that charge sheet is filed in that case, however, considering the provisions of the Criminal Procedure Code, two proceedings cannot go together simultaneously for one offence, more particularly, when cognizance is required to be taken by learned Magistrate in view of Section 28. He submitted that in the peculiar facts of present case, FIR is nothing but an abuse of process of law and, therefore, it is required to be quashed and set aside. He has relied upon this judgment in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604.
Page 10 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined 6.2 He has also relied the judgment in the case of State of NCT of Delhi v. Sanjay reported in AIR 2015 SC 75 and another judgment in the case of Kanwar Pal Singh v. State of Uttar Pradesh reported in AIR Online 2019 SC 1930. He has submitted that though these judgments are in connection with the provisions of the Mines and Minerals Act, same analogy will be applicable in the facts of present case and competent officer is required to file complaint before learned Magistrate and the Magistrate can only take cognizance. He, therefore, prays to allow this petition.
7. Mr.P.M.Lakhani, learned advocate for the petitioners of Criminal Misc. Application Nos.13591 of 2013 and 16686 of 2014 has adopted the arguments advanced by learned Senior Advocate, Mr.B.B.Naik and has further submitted that considering various provisions of law, for the offence under the PC&PNDT Act, FIR can be lodged and police can take cognizance and may arrest the accused without warrant from the court and may carry out the investigation also and may submit report of investigation under section 173 of CRPC also. However, the Court cannot take cognizance upon such police report submitted under Section 173 of CRPC. The court can take cognizance only and only upon the complaint made in writing by the competent authority or the authorized Page 11 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined officer. However, the competent authority or the Authorized officer may use the investigation papers and report for the purpose of filing his complaint before the Magistrate and on basis of such investigation papers he may file appropriate complaint before the concerned magistrate and thereafter only the concerned magistrate may take cognizance of such offence and not before that. However, in the present case learned trial Court cannot take cognizance on basis of FIR and the Charge-sheet papers which itself is against the basic provisions of law and thus the FIR, charge sheet and subsequent proceedings deserves to be quashed and set aside.
8. Per contra, Ms.R.V.Acharya, learned advocate appearing for the respondent-complainant has strongly objected to the contentions raised by the petitioners. It is submitted that prima facie offence is made out against the accused. By drawing attention of this Court towards affidavit-in-reply filed in Special Criminal Application No.1143 of 2013, learned advocate, Ms.R.V.Acharya has submitted that petitioner was practicing as a Gynecologist at Jamnagar and was involved in examination of sex of foetus by charging huge amount.
She has further submitted that a sting operation is carried out and for carrying out this sting operation, a hidden camera was installed on the dress of the decoy patient. She has submitted that, during such operation, it is found that Page 12 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined the accused has charged Rs.9000/- for disclosing sex of the foetus. She has also submitted that the complainant has filed Criminal Case No.606 of 2014 before learned Chief Judicial Magistrate, Jamnagar on 6.6.2014 along with the papers of charge sheet, which is filed pursuant to the proceedings and, therefore, she has prayed that present petition may be dismissed.
8.1 Ms.Acharya has further submitted that as there is no illegality in the proceedings initiated against the accused persons, it is required to be carried out in accordance with law. She has also submitted that considering seriousness of the offence, accused persons may face trial and put their defence during trial and such trial may be completed as early as possible. It is prayed that the interim relief granted by this Court may be vacated and present petitions may be dismissed, in view of decision in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315. Accordingly, it is prayed to dismiss all these petitions.
9. Learned APP, Ms.Monali Bhatt has supported the submissions made by learned advocates for the complainant.
She has submitted that so far as Special Criminal Application No.1143 of 2013 is concerned, incident in question Page 13 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined has taken place when decoy patient went to the place of accused and the accused has accepted an amount of Rs.9000/-
in presence of panchas. She has further submitted that charge sheet is already filed pursuing to FIR and Criminal Case No.606 of 2014 has proceeded further. Since the facts are almost similar in all these petitions, she has prayed that the proceedings may not be quashed merely on the ground that FIR is filed instead of written complaint before learned Magistrate. She has submitted that in view of various judgments of Honourable High Courts and Honorable the Apex Court, FIR can also be filed in such circumstances and investigation may be carried out and, thereafter, a written complaint can be filed by the competent officer. In view of above, she has submitted that present case do not require interference by this Court and present petition may be dismissed.
10. Sections 3, 4(3), 5(1)(b), 5(1)(c), 5(2), 6(a), 22, 23, 25 and 29 of the Pre-Conception and Pre-Natal Diagnostic Techniques [Prohibition of Sex Selection] Act, 1994, are reproduced hereunder:-
"3. Regulation of Genetic Counseling Centres, Genetic Laboratories and Genetic Clinics.- On and from the commencement of this Act,-Page 14 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023
NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined
1. no Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques;
2. no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess qualifications as may be prescribed;
3. no medical geneticist, gynecologist, pediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.
3A. 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.
3B. Prohibition on sale of ultrasound machines, etc., to persons, laboratories, clinics, etc. not registered under the Act.- No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Page 15 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined Genetic Laboratory, Genetic Clinic or any other person not registered under the Act.
4. Regulation of pre-natal diagnostic techniques.- On and from the commencement of this Act,-
1. .........
...........
3. no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:-
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the Central Supervisory Board;
Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless Page 16 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined contrary is proved by the person conducting such ultrasonography;"
............
5. Written consent of pregnant woman and prohibition of communicating the sex of foetus.
1. No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless-- NDT Act, 1994 & Amendments
(a) ..........
(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and
(c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.
2. No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner.
6. Determination of sex prohibited.- On and from the commencement of this Act,-
(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques Page 17 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined including ultrasonography, for the purpose of determining the sex of a foetus;
......
22. Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention.-
1. No person, organization, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, 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 Counselling 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 preconception 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 Page 18 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined which may extend to ten thousand rupees.
Explanation.--For the purposes of this section, "advertisement" includes any notice, circular, label, wrapper or any 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.
23. Offences and penalties.- (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
2. The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including Page 19 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
3. Any person who seeks the aid of a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre- natal diagnostic techniques on any pregnant women for the purposes other than those specified in sub-section (2) of section 4, he shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. 4. For the removal of doubts, it is hereby provided, that the provisions of sub- section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.
............
25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.-
Page 20 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. ............
29. Maintenance of records.
1. All records, charts, forms, reports, consent letters and all other documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed: Provided that, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such proceedings.
2. All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorized by the Appropriate Authority in this behalf. "
Page 21 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined 10.1 Rules 9(1), 9(4) and 10(1A) of the Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Rules, 1996 are reproduced hereunder:-
"9. Maintenance and preservation of records. (1) Every Genetic Counselling Centre, Genetic Laboratory, 25[Genetic Clinic including a Mobile Genetic Clinic], Ultrasound Clinic and Imaging Centre shall maintain a register showing, in serial order, the names and addresses of the men or women given genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouse or father and the date on which they first reported for such counselling, procedure or test. ............
(4) The record to be maintained by every [Genetic Clinic including a Mobile Genetic Clinic], in respect of each man or woman subjected to any pre-natal diagnostic procedure/ techniques/ test, shall be as specified in Form F.]"
.......
10. Conditions for conducting pre-natal diagnostic procedures. "[(1) Before conducting pre-implantation Page 22 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined genetic diagnosis, or any pre-natal diagnostic technique/ test/procedure such as amniocentesis, chorionic villi biopsy, foetoscopy. foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him.] [(1-A) Any person conducting ultrasonography/image scanning on a pregnant woman shall give a declaration on each report on ultrasonography/ image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to anybody. The pregnant woman shall before undergoing ultrasonography/image scanning declare that she does not want to know the sex of her foetus.]"
INDIAN PENAL CODE Section 313. Causing miscarriage without woman's consent. Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 315. Act done with intent to prevent child being born alive or to cause it to die after birth.Page 23 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023
NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
11. I have considered aforesaid provisions of law. I have also considered rival submissions made at bar and the judgments cited by both the sides. I have also considered the fact that the complaint is filed and, thereafter, investigation is carried out and charge sheet is also filed. Thereafter appropriate authority has also filed complaint as required under the provisions of law before the concerned Magistrate.
Pursuant to said complaint, Criminal Case No.606 of 2014 is going on at present. The complaint is filed by Chief District Health Officer, PNDT, dated 6.6.2014 under provisions of Section 28 of the Act. For the purpose of deciding the issue involved in this matter, it is appropriate to reproduce the provisions of law under which the offences are alleged against the petitioner.
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12. I have considered the judgments cited at bar, which pertains to the Mines and Minerals act. In the case of State of NCT of Delhi v. Sanjay (supra), it is observed as under:-
"55. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
56. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence.Page 25 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023
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57. Sub-section (1A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the rules made thereunder. In other words no person will do mining activity without a valid lease or license. Section 21 is a penal provision according to which if a person contravenes the provisions of Sub-section (1A) of Section 4 shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure 1973.
58. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any rule made thereunder except upon a complaint made by a person authorized in this behalf.
59. It is very important to note that Section 21 does not begin with a non-obstante clause. Instead of the words "notwithstanding anything contained in any law for the time being in force no court shall take cognizance...", the Section begins with the words "no court shall take cognizance of any offence."
60. It is well known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other Page 26 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined enactment, that is to say, to avoid the operation and effect of all contrary provisions."
........
67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco- system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.
68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging Page 27 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.
69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is laible to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.
70. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft.
71. Hence, merely because initiation of proceeding for Page 28 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure."
12.1 In the case of Kanwar Pal Singh v. State of Uttar Pradesh (supra), it is observed as under:-
"11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-
sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint Page 29 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression 'same offence', to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR (1995) 1 Cal LT 95 is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act.
12. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under Section 379 of the IPC Page 30 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have upheld the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. There would be no order as to costs."
12.2 Considering aforesaid judgments and the facts of present case, I am of the opinion that Magistrate can take cognizance of the complaint, in view of Section 28, if it is filed by appropriate authority, as described in the law. In the present case, appropriate authority has already filed complaint, which is numbered as Criminal Case No.616 of 2014. In identical facts and circumstances Honorable Delhi High Court in the case of Manoj Krishan Ahuja v. State of NCT of Delhi and Another reported in 2023 SCC Online Delhi 2303, has observed as under:-
Page 31 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined "53. 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.
54. 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.
55. Thus, the law has to be interpreted in a way that the object of enactment is not defeated, and in case of any conflict between two provisions in a statute, the Courts must strive to give effect to both by harmonising them with each other as far as possible."
Page 32 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined 12.3 In the same judgment while considering scope of quashing of FIR under the offences of PCPNDT Act, the Court has observed as under:-
"58. In Neeharika Infrastructure v. State of Maharashtra, 2021 SCC OnLine 315, a three-judge Bench of Hon'ble Apex Court has summarised the relevant principles that govern the law on quashing of an FIR under Section 482 of the Cr.P.C. The relevant observation are as under:
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;Page 33 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023
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iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
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x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
59. The power under Section 482 Cr.P.C. has to be exercised sparingly and that too in the rarest of rare cases. Tested on the touchstone of aforesaid judicial precedents, the plea of present petitioner for quashing of FIR is not covered under the said principles as material regarding commission of the offence has been collected and filed in the form of chargesheet before the Trial Court and is also before this Court. As observed in preceding discussion, the object of the Act cannot be allowed to get defeated by quashing the FIR solely on the ground that police could not have investigated and filed chargesheet in this case, since the police assistance Page 36 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined sought by Appropriate Authority is not barred completely by the Act.
60. 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.
61. 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."
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62. Thus, hyper technical grounds cannot become the basis of quashing of chargesheets or FIRs, especially when offences under the Act are cognizable in nature."
12.4 The Court has further clarified the provisions of the Act in detail and observed as under:-
"OBSERVATIONS OF THE COURT APROPOS THE NEED TO CLARIFY CERTAIN PROVISIONS AND PROCEDURES UNDER THE ACT
63. 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
64. It is important to take note of the fact that since the enactment of PC&PNDT Act, there have been several efforts on the part of Judiciary in enforcing its provisions, ensuring its better implementation and even prescribing necessary guidelines. The Hon'ble Apex Court, in the year 2001, had issued a set of directions in Centre For Enquiry into Health and Allied Themes (CEHAT) v. Union of India 2001 5 SCC 577 to the Central Government, Central Supervisory Board, State Governments, and Appropriate Authorities after expressing that the Act was not being implemented to a Page 38 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined large extent by the Central Government and State Governments. A further set of directions were issued by the Hon'ble Apex Court in Centre For Enquiry into Health and Allied Themes (CEHAT) v. Union of India 2003 8 SCC 398 since the concerned governments and authorities had failed to comply with the guidelines and directions issued in the year 2001.
65. Subsequently, the PC&PNDT Act was amended by the Parliament in the year 2003 to strengthen its provisions and improve its implementation. Some of the changes introduced through the Amendment of 2003, in simple terms, were: (i) improving the regulation of the technology used in sex selection by introducing new techniques of pre-natal diagnostic tests and procedures, (ii) increasing the penalties for violating the provisions of the Act, (iii) banning advertisements related to pre-conception and pre-natal determination of sex, (iv) clarifying the responsibilities of various Authorities and Boards, (v) providing more powers to the Appropriate Authority for better implementation of the Act, etc. These amendments were aimed at addressing some of the shortcomings of the original Act and making it more effective in preventing sex-selective abortions. A reference in this regard can also be made to the Statement of Objects and Reasons of Act No. 14 of 2003, which read as under:
"...The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 seeks to prohibit prenatal diagnostic techniques for determination of sex Page 39 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined of the foetus leading to female foeticide. During recent years, certain inadequacies and practical difficulties in the administration of the said Act have come to the notice of the Government, which has necessitated amendments in the said Act.
2. The pre-natal diagnostic techniques like amniocentesis and sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked disorders, etc. However, the amniocentesis and sonography are being used on a large scale to detect the sex of the foetus and to terminate the pregnancy of the unborn child if found to be female. Techniques are also being developed to select the sex of child before, conception. These practices and techniques are considered discriminatory to the female sex and not conducive to the dignity of the women.
3. The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of the society, especially of the women and children. It is, therefore, necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such Page 40 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society.
4. Accordingly, it is proposed to amend the aforesaid Act with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended..."
66. However, despite the above-discussed amendments, the implementation of the PC&PNDT Act continued to be a challenge in India. The Hon'ble Supreme Court in Voluntary Health Association of Punjab v. Union of India 2013 4 SCC 1 as well as in Voluntary Health Association of Punjab v. Union of India 2016 10 SCC 265 was pleased to issue directions to the Central Government and State Governments to take steps for effective implementation of the Act of 1994.
67. It is, however, noteworthy that to ensure proper implementation of the Act, the Ministry of Health and Family Welfare, Government of India in collaboration with United Nations Population Fund had issued 'Standard Operating Guidelines for District Appropriate Authorities' in the year 2016. A perusal of the same also shows that these standard guidelines have been issued with a view to assess and guide the District Appropriate Authorities, at every Page 41 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined stage, of the procedure to be adopted before and after a complaint is received and till culmination of the complaint to a logical end before a Court of law.
68. Within the said Standard Operating Guidelines, different sets of guidelines have been provided. To point out a few important aspects covered in the same, the 'Guidelines for Undertaking a Decoy Operation' inter alia provides that (i) a trustworthy woman should be chosen who is 14 to 22 weeks pregnant and who has been explained the gravity of the situation in a language she understands and whose consent has been taken to participate in a decoy operation, (ii) at the place of the crime, statement of the pregnant woman and the witnesses should be recorded, (iii) If the audio and video recording of the evidence has been done, a CD should be made and submitted in the Court at the time of filing the case, (iv) all the relevant documents and articles must be seized, (v) a complaint should be filed in the concerned Court by the Appropriate Authority as soon as the investigation is completed, enclosing all the documents including evidence collected during decoy operation and investigation, (vi) the Appropriate Authority or his/her authorised representative should be present in the Court at all times for the hearing of the case, etc.
69. Further, 'Guidelines for Responding to a Complaint' inter alia provides that (i) investigation should be started within Page 42 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined 24 hours and completed within 48 hours of receipt of complaint, (ii) on the basis of complaint, an inspection of the facility/centre should be carried out and completed as per the Rules, and registration of such facility/centre should be suspended immediately if it is found to have contravened the law, (iii) all search and seize procedures should be completed, (iv) statements of witnesses should be recorded and panchnama should be prepared after gathering evidence,
(v) as per Section 24, no action shall be taken against the pregnant woman since she is protected under the law, etc. Similarly, 'Guidelines for Filing a Criminal Complaint' comprehensively deals with the aspect relating to Section 28 of PC&PNDT Act and explains the process as to how a complaint is to be filed before the Court by the Appropriate Authority. The process of filing has been divided into four segments i.e. preparatory process prior to filing a complaint case, documents to be submitted/annexed with the complaint, actual filing of the case, and general instructions. It is inter alia provided in these guidelines that such procedure should be followed under the guidance of a legal expert, and original documents should be submitted before the Court and proper follow-up of cases needs to be done by the officers of concerned Appropriate Authority.
70. However, the serious issue is that despite the fact that the judiciary, legislature and executive have made such efforts over the past more than 20 years, the Courts continue to encounter instances in which the relevant Page 43 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined authorities are unaware of the proper procedure to be followed in cases governed by the PC&PNDT Act.
II. Impact Assessment of Laws, Practical Difficulties and Consequent Development of Jurisprudence by the Courts
71. The Courts have the authority through their judgments to initiate dialogues and develop jurisprudence if it is observed by a Court that a statute is unable to attain its intended purpose. This can also be done by bringing it to the notice of not only the public who seek justice from the Courts but of the Legislature also who has enacted the law with the object of safeguarding the interests of people, welfare of its citizens as well as ensuring rule of law and to achieve social and gender justice in specific enactments.
72. In India, laws are enacted by the worthy Parliament. However, the impact of enactment of law is discernible only when it is implemented and entered in Courts of law. Therefore, it assumes importance to discuss, review and analyse as to whether the purpose and object behind the enactment of a law has been achieved or not, by justice adjudicatory force and consumers of justice i.e. the litigants of both sides.
73. As discussed above, the object and the historical background in our country leading to enactment of the PC&PNDT Act was noble to curb long practised social evil of gender based violence which began from the womb when a female child was not even born, commonly known as Page 44 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined female foeticide. The very purpose behind enactment of the present Act was to protect a female child from violence even before she entered the world.
74. The social context of an enactment and the social context of the commission of offence need to be borne in mind as they are vital to do substantive justice. In this context, this Court notes that there has been a series of cases for last many years wherein the offenders seek invocation of powers under Section 482 of Cr.P.C. of High Courts to quash proceedings and complaints and set aside orders taking cognizance on the basis of police reports filed under this Act. While delving into the problem, it transpires that such a situation often arises due to lack of information and awareness among the masses as well as the concerned Authorities under the Act as to how the complaints are to be lodged and processed under the Act.
75. As this Court has observed, keeping in consideration the social context of an Act and offence is vital to do complete and true justice. For a common man or a layman, a complaint for commission of any offence can be lodged with the police. Therefore, even in a case of information regarding sex determination test, the police is often approached as first authority for initiation of action against persons committing offence in contravention of provisions of this Act. The police is not the first authority competent to initiate action under the Act. However, if FIR is lodged at the instance of Appropriate Authority or any authorised person, and on its Page 45 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined basis if either cognizance is taken or refused by the learned Magistrate, the parties approach the High Court for redressal of their grievance.
76. One common thread which runs through such litigation is the lack of information not only to the common citizen but also to the police, and in many cases Appropriate Authority, who invariably investigate the matter and file chargesheet under the Act and Indian Penal Code, 1860 before 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
77. Judicial decisions affect the practical world we live in and substantive justice is not served if the law which is sought to be implemented remains ineffective due to procedural or related issues that need attention. These issues are understood in their true context by those who deal with the enactment at the ground level before and after it reaches the Courts of law.
78. The Courts are to work within the institutional and constitutional constraints and restraints under which they operate. However, the Courts are responsible to the citizens and strive to protect the rule of law which is as per their judicial and constitutional duty, despite such judicial and constitutional restraints in a democratic set up. The constitutional goal of social justice can be achieved by Page 46 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined ensuring that the aim and object of legislation is not defeated, but it is the joint inter- institutional endeavour of the judiciary and the legislature.
79. In light of aforesaid, this Court has gone through the contents of 'Standard Operating Guidelines for District Appropriate Authorities', details of which have already been discussed in para no. 67 to 69.
80. While doing so, it has been noted by this Court that one of the guidelines contained in 'Guidelines for Undertaking a Decoy Operation' lays down that a woman who is 14-22 weeks pregnant can be used as a decoy customer/patient for the purpose of conducting a raid. However, it is mentioned that the consent of her husband, mother or mother-in-law is essential for the same even if she is a major. Moreover, they should also be explained the process and counselled in a language they understand. Though this Court holds a view that such guidelines may be against the philosophy of an independent adult woman's choices and discretion, it is for the Ministry concerned to reconsider or take call regarding the same.
81. One of the guidelines in 'Guidelines for Filing a Criminal Complaint' also states that in case charges are framed, application for suspension of the registration of the doctor should be submitted to the State Medical Council and on conviction, the name of doctor shall be removed from the Page 47 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined register of Council. In this regard, it can be noted that there are no guidelines as to what procedure is to be followed by the Appropriate Authority in case of discharge or if a Court declines to take cognizance under the Act.
82. This Court further notes that though the PC&PNDT Rules contemplate that 'as far as possible' police should not be involved in the process of raids, search, seizure, recording evidence, etc., the practicality of this aspect needs to be re- considered since this procedure has to be as per Cr.P.C. for conducting raids at facilities/clinics which are running in contravention of any provision of PC&PNDT Act.
83. Another grey area of the Act, as also dealt with by this Court in preceding discussion, is that while the powers of investigation, search, seizure, raid, cancellation or suspension of registration of medical centres and facilities have been given to the Appropriate Authority, the offences under the Act have been made 'cognizable' without vesting the power of arrest in the Appropriate Authorities. As per Cr.P.C., in case of commission of a cognizable offence, the accused can be arrested without a warrant by the police. Therefore, this aspect of the Act remains ambiguous, which has also compelled several High Courts to examine the same.
84. Further, the present case at hand is one such example where it seems that the Appropriate Authority itself did not know, or without due care, instead of filing the complaint as per mandate of Section 28 of the Act i.e. before the learned Page 48 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined Trial Court, had lodged a complaint with the police for taking appropriate action against the accused persons and thereafter, the police had filed a chargesheet before the Court concerned sans the complaint by Appropriate Authority.
85. Well-intended and well-implemented PC&PNDT Act and Rules are means for intervention to combat gender imbalance. The social context of the Act as well as the offence needs to be remembered, and it has to be kept in mind that the gender based violence, whether be it safety of a female child after birth or even when she is not born, is not only the concern of the State, but also of the Courts of law. While the attitudinal changes have to start from every family, till the said goal is achieved, the law must have teeth to deal with such situations with a stern hand.
86. This Court, however, deems it apposite to clarify that by way of such observations and suggestions, it does not wish to find faults either on part of Legislature i.e. the Parliament or the Executive i.e. the concerned Ministries or with the Appropriate Authorities under the Act. Even in the present case, as prima facie revealed from material on record, both the concerned Appropriate Authority as well as the police had carried out detailed and thorough investigation in the case and had thereafter filed chargesheet and supplementary chargesheet, and no malice or malafide can be attributed to either Appropriate Authority or police in carrying out the raid or the investigation. The irony, Page 49 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined however, remains that due to lack of information, the Appropriate Authority was itself not aware of the mandate of Section 28 of the Act that it had to file a complaint before the Court concerned to initiate the prosecution against the accused persons, but had given a sanction letter to the Investigating Officer to prosecute the accused in Court which was alien procedure to the Act.
87. Rather, this Court, with utmost caution, aims to point out certain ambiguities, grey areas and omissions in the legal framework which is otherwise meant to deal with the grave issues of female foeticide and illegal sex determination. A balance needs to be maintained between the 'judicial innovation' i.e. development of existing laws by adding to its jurisprudence, and 'judicial restraint' i.e. disposition to preserve and harmonise the existing legal framework."
13. Considering the ratio laid down in aforesaid judgments, it is clear that PC&PNDT Act and Rules are meant for intervention to combat gender imbalance. The social context of the Act as well as the offence needs to be remembered, and it has to be kept in mind that the gender based violence, whether be it safety of a female child after birth or even when she is not born, is not only the concern of the State, but also of the Courts of law. Even in the present case, as prima facie revealed from material on record, both the concerned Appropriate Authority as well as the police had Page 50 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined carried out detailed and thorough investigation in the case and had thereafter filed chargesheet, and no malice or malafide can be attributed to either Appropriate Authority or police in carrying out raid or investigation. Considering the provisions of law, I am of the opinion that there is no bar under the Act to file FIR by the component person i.e. appropriate authority, however, the cognizance can be taken only by the Magistrate upon written complaint filed by appropriate authority. In present case, it transpires that initially FIR is filed by appropriate authority, which has culminated in the charge sheet and, thereafter, on the basis of charge-sheet appropriate authority has filed written complaint under Section 28 of the Act. Therefore, in my view, there is no reason to interfere with present proceedings, considering judgment in the case of Neeharika Infrastructure (supra).
14. In my view, present case is not a fit case wherein this Court should exercise its powers under Section 482 of Criminal Procedure Code for quashing the proceedings initiated pursuant to the FIR, which is culminated in Criminal Case. Therefore, no case is made out to exercise powers under Section 482, on the contrary scuttling the proceedings at this stage will amount to miscarriage of justice. I am of the view that the proceedings pursuant to Page 51 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023 NEUTRAL CITATION R/CR.MA/1918/2013 CAV JUDGMENT DATED: 27/10/2023 undefined impugned FIRs may go on in accordance with law against the petitioners and concerned Court may grant appropriate opportunity to the parties before deciding the case.
15. With above observations, all these petitions are dismissed. Rule is discharged. Interim relief granted earlier stands vacated. The trial court may expedite trial in connection with impugned complaints and conclude the same as expeditiously as possible and preferably on or before 30 th June, 2024.
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(SANDEEP N. BHATT,J) FURTHER ORDER Learned advocate, Mr.P.M.Lakhani for the petitioners pray for extension of interim relief granted earlier by this Court. As the present petitions are pending since the year 2013 and the case has not proceeded further in view of interim relief granted by this Court, this Court is of the opinion that proceedings pursuant to impugned FIRs are required to be proceeded further. If interim relief is extended, it will delay further proceeding pursuant to the impugned FIRs. Accordingly, request for extension of interim relief is rejected.
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(SANDEEP N. BHATT,J) R.S. MALEK Page 52 of 52 Downloaded on : Fri Oct 27 20:53:17 IST 2023