Allahabad High Court
Praveen Kumar And 2 Others vs State Of U.P. And Another on 15 May, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:80710 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 11599 of 2025 Applicant :- Praveen Kumar And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Deepak Rana Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J.
1. Heard Sri Sundeep Shukla along with Sri Deepak Rana, learned counsel for applicants and learned A.G.A. for State.
2. The instant application has been preferred for challenging the charge-sheet dated 24.01.2023 along with cognizance/summoning order dated 27.01.2023 and the entire proceedings of Criminal Case No.638 of 2023 (State vs. Praveen Kumar and Others) arising out of Case Crime No.553 of 2022, under sections 3(2)/23, 3A/23, 4(3)/23, 4(4)/23, 5(2)/23, 6/23, 23, 29/23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the Act of 1994") and sections 420, 120B, 34 I.P.C., P.S. Dhaulana, District- Hapur, pending before learned court of Additional Chief Judicial Magistrate, Hapur.
3. While challenging the entire proceedings arising out of Case Crime No.553 of 2022 instituted as Criminal Case No.638 of 2023 (State vs. Praveen Kumar and Others) in pursuance to sections 3(2)/23, 3A/23, 4(3)/23, 4(4)/23, 5(2)/23, 6/23, 23, 29/23 of the Act of 1994 and sections 420, 120B, 34 I.P.C., P.S. Dhaulana, District- Hapur, which is pending before learned court of Additional Chief Judicial Magistrate, Hapur, learned counsel for applicant pressed several other grounds inter-alia precisely on the ground that no Court shall take cognizance of offence as mentioned under the Act of 1994 except over the complaint.
4. Learned counsel for applicant submitted that in the instant matter no complaint has been preferred and there is registration of F.I.R., wherein investigation has been carried out by concerned Investigating Officer and thereupon report under section 173 Cr.P.C. has been preferred, which has been taken up by learned court concerned for taking cognizance of offence in respect of offence committed by the applicants in pursuance to sections 3(2)/23, 3A/23, 4(3)/23, 4(4)/23, 5(2)/23, 6/23, 23, 29/23 of the Act of 1994 and sections 420, 120B, 34 I.P.C. The exercise carried out by the prosecution is contrary to mandate of section 28 of the Act of 1994.
5. It is further submitted by learned counsel for applicant that the entire incident of seizure, search and raid has been initiated by the District Appropriate Authority, Faridabad (Haryana) and at the same it is not disputed that the establishment whereupon the raid has been conducted is situated at District- Hapur (U.P.).
6. As per the State Notification dated 30th November, 2007, the appropriate authority comprises of two members including one chairman has already been notified in the official gazette of Uttar Pradesh on dated 30.11.2007 and thereafter the same has been amended vide notification dated 08.02.2013, through which by way of exercising powers in pursuance to section 17 of the Act of 1994, every Sub-Divisional Magistrate of respective Tehsil has also been authorized to appoint competent authority for respective Tehsil and as the District Magistrate was already authorized to constitute the competent authority appointed at District Level and as such the District Competent Authority of another State, i.e., Faridabad at Haryana is not competent to intervene or interfere by way of crossing its territorial jurisdiction of the State of Haryana and enter into State of U.P. under the words mentioned under section 30 of the Act of 1994, which is "if the appropriate authority has reason to believe that an offence under this Act has been or being committed."
7. Learned counsel for applicant also submitted that the entire search, seizure along with inspection of the records is contrary to all cannons of fairness and reasonableness and the same is in violation of section 30 of the Act of 1994. For substantiating the arguments raised by learned counsel for applicant, he relied upon the judgement rendered by co-ordinate Bench of this Court in case of Dr. Brij Pal Singh vs. State of U.P. and Another, decided on 30.09.2024 passed in Application u/s 482 Cr.P.C. No.6753 of 2019, wherein basically certain questions have been framed for adjudicating controversy as raised, which is more or less similar to the present matter. While answering the question framed only four questions are attracting the facts of the instant matter, i.e., (A), (B), (D) & (E), which are reproduced herein below:-
"(A) Whether, the Appropriate Authority, merely on suspicion, without there being any reason to believe, can direct the search and seizure in terms of Section 30 of the PC & PNDT Act?
(B ) Whether, for the offences under the PC & PNDT Act, the registration of FIR at the police station is permissible, merely because the offences under PC & PNDT Act have been made cognizable and non-bailable?
(D) Whether on the charge sheet submitted after the investigation by the police, the competent magistrate can take cognizance of the offence under the PC & PNDT Act?
(E) Who are the persons, who are authorised to file a complaint case under Section 28 of the PC & PNDT Act?"
7A. The same has been answered while dealing with above-mentioned questions and the extract of the same is reproduced herein below:-
"FINDINGS ISSUE (A)
75. In view of the judgement of the Apex Court in Ravinder Kumar (supra), wherein the Apex Court while interpreting Section 30 of the PC & PNDT Act, held that first part of sub-section (1) of Section 30 safeguards the interest of the Genetic Laboratory or Genetic Clinic etc., and held that search and seizure can be authorized only if appropriate authority has reason to believe that an offence under the PC & PNDT Act has been committed or is being committed and the reason to believe is not mere formality. Before asking the search and seizure in terms of Section 30, there must be sufficient material on the basis of which the appropriate authority has reason to believe that offene under the PC & PNDT Act are being committed or have been committed. Therefore, the ISSUE (A) is answered to the effect that the appropriate authority merely on suspicion without there being any reason to believe, based on sufficient material, cannot direct the search and seizure in terms of Section 30 of the PC & PNDT Act.
ISSUE (B & C)
76. In Jeewan Kumar Raut (Supra), the Apex Court, while dealing with the identical provisions of the TOHO Act, has taken a categorical view that the police report is inconsequential and the FIR for the offence under the provisions of the TOHO Act cannot be entertained, if any such information is received in writing, it is the duty of the police officer to report it to the Appropriate Authority, under the Act only, who can investigate the matter and file a complaint on conclusion of the investigation. The aforesaid view, finds approval in the judgment of Ashok Kumar Sharma (Supra), which has categorically dealt with the provisions of Code of Criminal Procedure as well as the special Act. Thus, in view of the aforesaid, this court is of the opinion that wherever the special law provides that the complaints can be lodged or the prosecution can be initiated only by the specified persons under such special law, the police officers are debarred from registering the FIR and investigating the matter as in almost all the special laws the power to investigate under the Special Acts has been given to the specified officers under such special laws. Therefore, in the considered opinion of this Court, in view of the Bar created under section 28 of the PC & PNDT Act, for any offence under the Act, no person is authorized to register the F.I.R. Therefore, the registration of the FIR and investigation thereof is categorically barred, as under the scheme of the PC & PNDT Act and the rules, on a complaint received by the Appropriate Authority for violation of any provisions of the PC & PNDT Act, the investigation can be done only by the Appropriate Authority himself or by the authorized person only. Therefore, police officers are debarred from registering the F.I.R. and investigating the matter. The PC & PNDT Act further provides that while carrying out the investigation, so far as it is possible, the Appropriate Authority or the person authorized under the PC & PNDT Act shall avoid the involvement of the police; however, involvement of police can be sought only for the purpose, when some restraint is there on the part of accused persons.
ISSUE (D)
77. Though, there are divergent views by different High Courts with regard to the investigation by the police and the results of such investigation and report submitted by the police. Section 156 and 157 of the Code provide the procedure after registration of the F.I.R., wherein it is provided that after registration of the FIR, it has to be reported to the concerned magistrate immediately, who is having power to take cognizance of such offences, if report is submitted after the investigation by the police. Since for the offence under the PC & PNDT Act, the magistrate cannot take cognizance of the police report, therefore, the entire exercise will be nothing but a futile exercise. Thus, such exercise is impermissible under the provisions of the PC & PNDT Act. Therefore, in the considered opinion of this Court, in view of the specific bar created by Section 28 of the PC & PNDT Act, it is not open for the Magistrate to take cognizance of the offence under the PC & PNDT Act on the basis of the police report submitted after investigation. It is only on the complaint filed by the persons authorized to file the complaint under Section 28 of the PC & PNDT Act, in which the cognizance can be taken by the Magistrate. Therefore, the registration of F.I.R. and the police investigation is not warranted under the PC & PNDT Act; otherwise also if any investigation is carried out by the police officer, the Magistrate is incompetent to take cognizance thereof.
ISSUE (E)
78. In view of Section 28 of the PC & PNDT Act, the following persons are authorized to file complaint case for any offence under the PC & PNDT Act, i.e. (i) the Appropriate Authority; (ii) any other person authorized by the Central Government or the State Government, as the case may be; (iii) or any person authorized by the Appropriate Authority and (iv) a person who has given a notice of not less than 15 days to the appropriate authority for filing of the complaint before the magistrate."
8. Per contra, learned A.G.A. vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel for the applicant on the ground that if in any case the procedure mentioned under section 28 of the Act of 1994 has not been followed and the entire proceeding carried out by the prosecution along with opposite party no.2 is on the basis of F.I.R., which has been initially lodged against the applicants instead of provision of complaint available under the statute the opportunity is available before the applicants to prefer discharge application by way of highlighting the provisions as mentioned under section 28 of the Act of 1994 and once it is provided under section 28 of the Act of 1994, the same has been discussed in the judgement of Dr. Brij Pal Singh (supra), there is no doubt that learned court of Magistrate will not consider the same.
9. After hearing rival submissions extended by learned counsel for the parties, one thing is crystal clear that once the mandate of provisions contained under section 28 of the Special Act of 1994 shows that in case of offence mentioned under the Act of 1994, it is only the complaint may be preferred by the competent authority, since the special acts have been framed by the legislation for committing the offence and redressal of the complexities arising out of procedure and compliances of conducting special things that might not be under the ambit of I.P.C. and as such the special act has been framed for dealing with the conduction of provisions contained in the special procedures such as Mines and Minerals (Development and Regulation) Act, 1957, Drugs and Cosmetics Act, 1940 along with Essential Commodities Act, 1955, wherein F.I.R. is permitted but only after the proper accord and sanction executed by Magistrate, Transplantation of Human Organs and Tissues Act, 1994; in all these acts, there is provision for preferring complaint by way of using word that in a particular section - (X), cognizance of offences - (X), no court shall take cognizance of offence under this act, except on a complaint made by - (X); similar provision has been mentioned under section 22 of Mines and Minerals (Development and Regulation) Act, 1957 as well as in Transplantation of Human Organs and Tissues Act, 1994; section 32 of Drugs and Cosmetics Act, 1940 as prescribed under section 28 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
10. Rest of the arguments raised by learned counsel for applicant is a matter of detail exchange of affidavits or if in any case the same may be sent before learned trial court for determining the issue by way of considering the evidences and the statement recorded at the behest of prosecution and the defence, but the same will be in gross violation of determining section 28 of the Act of 1994, wherein specific provision has been provided for lodging complaint by competent authority in case of violation or offences carried out by any person as prescribed under the Act of 1994 and once the mandated procedure has not been adopted, which is apparent from the records available in the instant matter, the entire proceeding cannot be said to be a justified one.
11. In view of the aforementioned facts and circumstances as well as in the light of judgement rendered by co-ordinate Bench of this Court in case of Dr. Brij Pal Singh (supra), entire proceedings arising out of Case Crime No.553 of 2022 instituted as Criminal Case No.638 of 2023 (State vs. Praveen Kumar and Others) in pursuance to sections 3(2)/23, 3A/23, 4(3)/23, 4(4)/23, 5(2)/23, 6/23, 23, 29/23 of the Act of 1994 and sections 420, 120B, 34 I.P.C., P.S. Dhaulana, District- Hapur, is hereby set-aside.
12. The instant application stands allowed accordingly.
13. However, it is made clear that the competent authority may re-initiate the matter in strict consonance of the procedure as defined under the Act of 1994, if so required.
Order Date :- 15.5.2025 Saif (Saurabh Srivastava, J.)