Anamika Bhardwaj vs State Of Rajasthan (2026:Rj-Jd:7426) on 28 January, 2026

[Cites 18, Cited by 0]

Rajasthan High Court - Jodhpur

Anamika Bhardwaj vs State Of Rajasthan (2026:Rj-Jd:7426) on 28 January, 2026

1. The instant Criminal Revision Petition under Section 397/401 of the Cr.P.C. has been preferred by the petitioner against the order dated 20.01.2024 passed by the learned Sessions Judge, Banswara in Sessions Case No.105/2017 whereby the learned Judge framed charges against her for the offence under Sections 120-B, 315/511 of the IPC and Sections 4, 5 & 6 of the Pre-Conception & Pre-Natal Diagnostic Tehniques Act, 1994.

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (2 of 25) [CRLR-307/2024]

2. Briefly stated the facts of the case are that an FIR No. 6/2017 was registered on 18.02.2017 at Police Station PBI Medical and Health Services, Jaipur, alleging offences under Sections 4, 5, 6, 23, 25 of the PCPNDT Act, Rules 9 and 10 of PCPNDT Rules, and Sections 315/511 IPC. The complaint stemmed from information provided by Mr. Sandeep Singh Chauhan that the petitioner, through agent Smt. Anila, facilitated illegal sex determination of foetus. Acting on this, a decoy operation was conducted on 17.02.2017 by Smt. Vijaylaxmi Hada and others, during which Rs. 19,000/- was recovered from the petitioner and Rs. 1,000/- from the co- accused. The petitioner was arrested and later released on bail.

3. Instead of filing a charge-sheet, a complaint was filed before the learned Chief Judicial Magistrate, Banswara, reiterating the same allegations. The matter was committed to the Sessions Court, Banswara. During proceedings, co-accused Smt. Anila expired and the proceedings against her were abated on 08.05.2023. On the same date, charges were framed against the petitioner under Sections 5 and 6 of the PCPNDT Act and Sections 120B/315/511 IPC.

4. Aggrieved, the petitioner filed SB Criminal Revision Petition No. 1343/2023, which was allowed on 14.12.2023, and the matter was remanded for a reasoned order. Despite this, the Trial Court again framed the same charges on 20.01.2024 (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (3 of 25) [CRLR-307/2024] without addressing the directions of this Court. Hence the instant petition.

5. The petitioner contends that the impugned order is perfunctory, ignoring that the FIR and subsequent complaint are based on identical facts, rendering the second prosecution barred under Article 20(2) of the Constitution. The PCPNDT Act and Rules constitute a complete code; only complaints filed by appropriate authorities can invoke court cognizance, and police investigation in such matters is impermissible under Rule 18A. Even on the highest assumptions, no offence under Sections 315 or 511 IPC is made out, as there was no intent to prevent a child from being born alive or cause its death.

6. It is further submitted that the Sessions Court lacked jurisdiction, as the case is exclusively triable by a Magistrate under Section 28 of the PCPNDT Act. The petitioner and her center are duly registered, and the framing of charges without judicial evaluation violates Article 21 and the principles of fair trial. The proceedings are speculative, ignore binding precedents, and were initiated without following mandatory CrPC provisions, rendering them vitiated ab initio.

7. Lastly he submits that the impugned order dated 20.01.2024 is illegal, arbitrary, and unsustainable, and deserves to be quashed, with liberty to urge additional contentions at the hearing.

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (4 of 25) [CRLR-307/2024]

8. I have heard the submissions advanced by the counsel for the parties at the Bar and perused the impugned order dated 20.01.2024, and carefully examined the material available on record.

Observations of the Court I. Scope of Interference at the Stage of Charge

9. At the outset, it is trite that at the stage of framing of charge, the Court is not expected to conduct a meticulous appreciation of evidence or undertake a roving enquiry into the probative value of the material collected during investigation. Nevertheless, the jurisdiction exercised at that stage is neither ornamental nor mechanical. The Court is under a solemn obligation to apply its judicial mind to the material placed before it and to satisfy itself that the essential ingredients of the alleged offences are prima facie disclosed. While a detailed judgment is not required, the order must reflect conscious application of mind and cannot be reduced to a ritualistic endorsement of the prosecution version. This position has been emphatically reiterated by this Court in Reema Vs. State of Rajasthan, S.B. Criminal Revision Petition No. 581/2025, decided on 22.01.2026, wherein it was held that although elaborate reasoning is not mandated at the stage of charge, the order must nonetheless disclose meaningful judicial scrutiny and cannot be cryptic or mechanical.

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (5 of 25) [CRLR-307/2024]

10.In the present case, the co-ordinate bench of this Court vide orde dated 14.02.2023 had earlier remanded the matter with a specific direction to pass a reasoned order. However, the impugned order again records, in an omnibus manner, that sufficient grounds exist to frame charges under Sections 120- B, 315/511 IPC and Sections 4, 5 and 6 of the PCPNDT Act, without indicating what particular material satisfies the statutory ingredients of the offences alleged. Such reiteration, bereft of analytical scrutiny, falls short of the standard required in law and runs contrary to the principles articulated in Reema (supra).

II. Statutory Framework Governing Discharge and Framing of Charge

11.Before adverting to the ingredients of Section 315 IPC, it becomes necessary to reiterate the statutory discipline governing the stage of discharge and framing of charge. Under Section 227 Cr.P.C., the Judge is mandated that, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution, if he considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

12.Correspondingly, under Section 250 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the statutory obligation stands reinforced. The provision not only permits the accused (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (6 of 25) [CRLR-307/2024] to prefer an application for discharge within sixty days from the date of commitment, but expressly mandates that upon consideration of the record and after hearing both sides, if the Judge considers that there is not sufficient ground for proceeding, he shall discharge the accused and record reasons.

13.It is significant to note that under the erstwhile Cr.P.C., the Court was required to hear the Public Prosecutor and the accused and form an opinion as to whether there were grounds to presume that the accused had committed an offence warranting trial. The emphasis was on formation of judicial opinion upon evaluation of the record.The BNSS has further strengthened this obligation by codifying a more structured discharge mechanism, thereby underscoring that the Court's duty is not passive but evaluative.

14.Even under Section 245 Cr.P.C., applicable to warrant cases instituted otherwise than on police report, the Magistrate was required, upon taking all evidence referred to in Section 244, to discharge the accused if no case was made out which, if unrebutted, would warrant conviction. The provision further empowered the Magistrate to discharge the accused at any previous stage if the charge appeared groundless.

15.Thus, even the minimum threshold under the erstwhile Section 245 Cr.P.C. namely, that the material, if unrebutted, should be capable of warranting conviction, sets a substantive (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (7 of 25) [CRLR-307/2024] standard. At the very least, that standard must inform the judicial exercise while considering whether charges are to be framed. The Court cannot abdicate this responsibility by mechanically adopting the prosecution narrative.

16.The above position stands further fortified by the recent judgment of the Hon'ble Supreme Court in DR. ANAND RAI VERSUS STATE OF MADHYA PRADESH & ANR. dated 10.02.2026 (Crl. Appeal @ SLP (Crl.) No. 10711 of 2025,) wherein the Court exhaustively revisited the scope of discharge and framing of charge under Sections 227 and 228 Cr.P.C. The Court observed:

"11. Section 227 and 228 of the CrPC are as below:

"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--

(a) ...

(b) is exclusivel triable by the Court, he shall frame in writing a charge against the accused.

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (8 of 25) [CRLR-307/2024] (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." Even though the instant case is governed by the prior regime of substantive and procedural criminal laws, we may observe that in the new legislation, now occupying the field, the position remains the same. On a close reading of the statutory text of the Cr.P.C. and the Bharatiya Nagarik Suraksha Sanhita, 2023, the position is one of continuity rather than change in relation to the Court's power at the stages of discharge and framing of charge. In both enactments, the governing standards are framed in materially the same language. At the stage of discharge, the Court is required to consider whether there is any sufficient ground for proceeding against the accused in sessions cases, or whether the charge is groundless in Magistrate warrant cases. At the subsequent stage, charges are to be framed only if the Court forms an opinion that there is a ground for presuming that the accused has committed an offence. These formulations, which have long anchored the exercise of judicial discretion under the Cr.P.C., are carried forward in substance in the corresponding provisions of the BNSS, without any textual indication that the level of scrutiny is intended to be either heightened or diluted . What the BNSS does is to change the procedural setting within which this discretion is exercised. The new statute introduces express timelines for the filing of discharge applications and for the framing of charges, and it expressly recognises the possibility of the accused being heard or examined through electronic means. These changes are regulatory in nature. They are aimed at structuring the process and reducing delay, not at (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (9 of 25) [CRLR-307/2024] transforming the judicial task itself. The Court's obligation to apply its mind to the record, to hear both sides, and to record reasons where discharge is ordered remains exactly as before, as does the caution against weighing evidence or conducting a mini trial at these preliminary stages.

Accordingly, the established jurisprudence developed under the Cr.P.C. on the scope and limits of consideration at the stages of discharge and framing of charge continues to hold the field under the BNSS. The statutory language supports the conclusion that the Legislature has retained the same substantive balance between the rights of the accused and the interest of prosecution, while seeking to impose greater procedural discipline and expedition. In substance, the power remains the same; only the manner of its exercise has been more tightly structured. "

17.The Hon'ble Court further reiterated the principles laid down in Sajjan Kumar v. CBI and held:

"12. Sajjan Kumar v. CBI11 , which has been relied upon a bench of three judges in Ghulam Hassan Beigh v. Mohd. Maqbool Magrey12 , formulated the following principles regarding the scope of the above quoted sections:

21. ...

(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (10 of 25) [CRLR-307/2024]

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

"

18.Most significantly, the Supreme Court underscored the human dimension of judicial responsibility at the threshold stage in the following words:

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (11 of 25) [CRLR-307/2024] "21.Before parting with the matter, it is observed that at the stage of framing of charge or considering discharge, the Court is not dealing with an abstract legal exercise. It is dealing with real people, real anxieties, and the real weight of criminal prosecution. Judicial responsibility at this stage calls for care, balance, and an honest engagement with the facts on record. The power to frame a charge is not meant to be exercised by default or out of caution alone. When the material placed before the Court, taken at face value, does not disclose the ingredients of an offence, the law expects the Court to have the clarity and courage to say so and to keep such a case aside.

Discharge, in that sense, is not a technical indulgence but an essential safeguard. The Court must consciously distinguish between a genuine case that warrants a trial and one that rests only on suspicion or assumption or for that matter without any basis. To allow a matter to proceed despite the absence of a prima facie case is to expose a person to the strain, stigma, and uncertainty of criminal proceedings without legal necessity. Fidelity to the rule of law requires the Court to remember that the process itself can become the punishment if this responsibility is not exercised with care. "

19.The analogy is striking. In the said case, the Hon'ble Supreme Court quashed charges under the SC/ST Act upon finding that the foundational statutory ingredients were absent. The Court emphasized that even in socially sensitive legislation, the presence of each essential ingredient must be demonstrably reflected from the record.

20.The same discipline applies in the present matter. The mere allegation of sex determination, without material disclosing intention to prevent live birth or cause death after birth, cannot justify extension of penal liability under Section 315 (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (12 of 25) [CRLR-307/2024] IPC. Just as absence of caste-based ingredient vitiated the SC/ST charge in the cited case, absence of specific mens rea and overt act in the present case renders the framing of charge legally infirm.

21.Therefore, the impugned order, which mechanically reiterates that "sufficient grounds exist" without demonstrating how the essential ingredients are satisfied, falls foul of the standard mandated by the Hon'ble Supreme Court.

III. Ingredients of Section 315 IPC- Requirement of Specific Mens Rea

22. The principal question that arises for consideration, so far as the charge under Section 315 IPC is concerned, relates to the existence of the foundational ingredients of the said provision. For ready reference, Section 315 of the Indian Penal Code reads as under:

"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."

23.Section 315 IPC contemplates penal liability for an act done before the birth of a child with the specific and conscious intention of preventing that child from being born alive or causing its death after birth. The gravamen of the offence lies (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (13 of 25) [CRLR-307/2024] in the existence of a deliberate and directed mens rea aimed at extinguishing potential life.

IV. Distinction Between Sex Determination and Termination- Impermissibility of Far-Fetched Presumption

24.The prosecution case primarily alleges illegal sex determination and recovery of certain amounts during a decoy operation. Even assuming these allegations to be correct for the limited purpose of considering the charge, sex determination, though prohibited under the PCPNDT Act, does not ipso facto establish an intention to terminate pregnancy or to prevent a child from being born alive.

25.The Court must necessarily examine: what specific act is attributed to the accused? Up to the stage of alleged sex determination, the statutory violation, if any, may fall within the contours of the PCPNDT Act. However, to extend that allegation to presume readiness or intention for termination of pregnancy would amount to a far-fetched inferential leap unsupported by material.

26.Criminal law does not operate on expansive presumptions. It must be shown that there existed a mental agreement or conscious design that if, upon examination, a female foetus were detected, the same would be terminated. In absence of material reflecting such understanding, either through spoken words, overt acts, recorded communication, or compelling (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (14 of 25) [CRLR-307/2024] circumstantial evidence, the Court cannot superimpose such intention.

27.There must be some foundational material indicating that the accused and the concerned persons had reached a prior meeting of minds that sex determination was being undertaken with the settled understanding that if the foetus were female, termination would follow. In the absence of such allegation in the complaint or supporting material, the charge cannot be judicially invented.

28.The Court cannot supply what the prosecution has failed to allege or substantiate. Charges cannot be imposed merely because a suspicion, however strong, may arise. The material brought by the investigator defines the boundaries of judicial consideration. What is not alleged cannot be presumed; what is not supported cannot be supplied.

V. Conspiracy under Section 120-B IPC- Necessity of Demonstrable Agreement

29.Where Section 120-B IPC is invoked, the law requires proof, even at the threshold stage, of a demonstrable agreement between two or more persons to commit an illegal act. Mere association or proximity does not constitute conspiracy.

30.In the present case, there is no prima facie material indicating that there existed a mental consensus that examination would be followed by termination if the foetus (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (15 of 25) [CRLR-307/2024] were female. Without such meeting of minds, invocation of Section 120-B IPC becomes legally unsustainable.

31.Besides the substantive offence, the prosecution must show at least one legally cognizable mode of criminal liability- commission, attempt, preparation (where punishable), abetment, or conspiracy. Absent material demonstrating attempt, overt act, preparatory steps, or criminal agreement directed toward termination, the essential scaffolding of Section 315 IPC read with Section 120-B IPC remains unconstructed.

VI. Attempt under Section 511 IPC- Proximity and Intent

32.The addition of Section 511 IPC to the charge requires independent and careful judicial scrutiny. Section 511 IPC embodies the general provision governing punishment for attempts to commit offences punishable with imprisonment for life or other imprisonment, where no express provision for attempt is separately enacted.

33.While intention is a mental state and preparation consists of arranging the means or measures necessary for commission of the offence, attempt denotes a direct movement towards the commission of the offence after preparations are made. Attempt is therefore not a matter of conjecture; it is a matter of conduct.

34.An attempt necessarily presupposes:

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (16 of 25) [CRLR-307/2024]

(i) a specific and definite intention to commit the particular offence; and

(ii) an overt act done in pursuance of that intention, which is sufficiently proximate to the intended crime; and

(iii) a stage where preparation, coupled with some effort in execution, forms part of a continuous sequence leading toward completion of the offence.

35.It must be clarified that preparation is not entirely alien to attempt. Preparation may, in certain circumstances, constitute part of the continuum of attempt when it is accompanied by some movement in execution. Mere contemplation or preliminary thought does not suffice; however, preparatory activities which demonstrably enter the zone of execution may assume the character of attempt. The law thus recognizes that preparation, when merged with operative steps and minimal effort directed toward the criminal objective, may transition into attempt.

36.Preparation may include arranging instruments, setting the stage, or mobilising necessary resources. But unless such preparation is followed by some overt movement that unmistakably advances the offence, it remains legally insufficient. A little bit of effort in the process, some operational step beyond planning, is essential to cross the threshold.

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (17 of 25) [CRLR-307/2024]

37.It is a settled principle that attempt cannot be presumed merely from suspicion. A presumption may sometimes relate to mental state; however, attempt is not merely a state of mind; it is an action-oriented concept. It is conduct manifesting itself externally.

38.For an attempt to arise, there must first be a mental determination , a "mind made up" to commit the offence. However, mere mind-makeup does not constitute attempt. After forming such intention, the accused must undertake some act to achieve that objective. The act may vary in nature depending on the offence, but it must be directed toward accomplishment.

39.To illustrate within the factual matrix of the present case: if there had been material indicating that instruments for termination were made ready, abortive medicines were procured, medical equipment specifically required for termination was arranged, procedural steps for termination were initiated, or the termination process had commenced but was interrupted by police intervention , such circumstances could potentially fall within the ambit of attempt. In such a situation, the proximity requirement might be satisfied. However, no such foundational facts are alleged here.

40.The essence of attempt lies in the execution of an act which, if uninterrupted, would have culminated in the commission of the offence. Attempt inherently carries within it the notion (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (18 of 25) [CRLR-307/2024] that something is being done towards achieving a criminal objective, though the final consequence has not occurred.

41.To constitute attempt:

• There must be some act done.

• That act, whether viewed in isolation or cumulatively with surrounding circumstances, must, at face value, indicate movement toward commission of the offence. • The act must be proximate, not remote. • The act must unequivocally point toward the intended unlawful result.

42.It is insufficient to merely label conduct as an "attempt." The Court must ask: Does the act, taken at its face value without rebuttal, disclose that the accused had crossed the threshold from mere thought into execution?

43.Attempt cannot be judicially invented. It cannot be inferred merely because an offence is serious or morally condemnable. Criminal law does not punish abstract possibilities; it punishes concrete steps directed towards unlawful completion.

44.Preparation may, in certain cases, merge into attempt where the acts undertaken are so closely connected with the intended offence that they form part of the execution itself. However, the dividing line, though thin, is legally significant. The test often applied is the doctrine of proximity , whether (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (19 of 25) [CRLR-307/2024] the act is so immediately and directly connected with the offence that it can be said to be the first step in its execution.

45. In the context of Section 315 IPC, therefore, the Court must examine:

• Whether there is material indicating a definite intention to prevent a child from being born alive; and • Whether there exists any overt act proximate to that objective.

46.If the foundational intention itself is not discernible from the material on record, the superstructure of attempt under Section 511 IPC cannot independently stand. Attempt is parasitic upon intention; it cannot survive in its absence.

47.It is equally necessary to clarify that mere intention, howsoever reprehensible, is not punishable unless accompanied by an act. If a person merely conceives in his mind the idea of committing an offence but never acts upon it, such mental state by itself does not constitute an offence. Criminal law does not penalise thoughts. Were it otherwise, a vast section of society would stand exposed to prosecution for mere internal contemplation. The law requires outward manifestation.

48.Merely alleging that sex determination was undertaken does not, without more, demonstrate that any act was done towards preventing live birth. For attempt to be made out, there must be material showing that some act was done in (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (20 of 25) [CRLR-307/2024] furtherance of termination, whether medical preparation, procurement of abortive substances, fixation of termination procedure, or any step that unequivocally indicates movement toward extinguishing potential life.

49.It is also pertinent to distinguish, in medical terms, between the process of sex determination and the process of termination. Sex determination through ultrasonography involves application of gel on the abdomen, use of a transducer, and viewing of live imagery on a monitor, from which a trained medical professional may infer fetal sex. This procedure is diagnostic in nature. It does not, by itself, constitute or initiate termination.

50.Termination of pregnancy is an entirely distinct medical procedure involving separate instruments, techniques, medications, and clinical processes. Termination cannot be effected merely by using a transducer on the abdomen. The two processes are medically and procedurally different.

51.In the present case, there is not even a single allegation indicating that any step was taken toward termination. There is no assertion regarding arrangement of termination equipment, no mention of abortive drugs, no allegation of preparatory medical procedure for abortion, nor any statement suggesting that termination was to follow detection.

52.Attempt is not a thing which can be presumed; it is an act which must be demonstrated. Presumption may, in limited (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (21 of 25) [CRLR-307/2024] contexts, relate to mental state. But attempt denotes conduct. Conduct must be visible from the record. It must emerge either individually or cumulatively from the material collected. Attempt requires intent coupled with action. Without action, there can be no attempt.

53. If the acts alleged, even when taken cumulatively and at their highest face value, do not show that the accused was doing something directed toward preventing the child from being born alive, the legal threshold of attempt remains unfulfilled.

54.Here, even if the prosecution version is accepted without rebuttal, that a decoy approached for sex determination and the accused allegedly agreed , the material at best suggests alleged readiness for sex determination. It does not indicate any act directed toward preventing live birth.

55.There is no whisper in the complaint as to what was done for termination. No step is attributed. No proximate act is disclosed. In absence of such foundational material, invocation of Section 511 IPC would amount to converting suspicion into criminal attempt, which the law does not permit. VII. Absence of Foundational Material - Impermissibility of Speculative Prosecution

56.It is clarified that mere bald and sweeping allegations, unsupported by cogent material reflecting overt act, preparatory conduct, attempted execution, or established (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (22 of 25) [CRLR-307/2024] conspiracy, do not satisfy the threshold of criminal prosecution.

57.The element of intention under Section 315 IPC cannot be presumed in abstraction; nor can attempt under Section 511 IPC be inferred in the absence of demonstrable conduct. Criminal jurisprudence insists upon the presence of some act, however preliminary, which, if taken at its face value and assumed to be true without rebuttal, would reasonably indicate movement toward the prohibited consequence. In the present case, even if the prosecution version is accepted in entirety at this stage, the material only suggests that the decoy visited for sex determination and the accused allegedly agreed to conduct the same. There is no allegation of any act directed toward termination of pregnancy or toward preventing the child from being born alive.

58.No overt conduct is attributed which could tentatively justify a presumption that the accused had commenced execution of an act falling within the ambit of Section 315 IPC. The law does not permit enlargement of penal liability by associative reasoning that because sex determination is alleged, termination must have been contemplated, and because termination might have been contemplated, attempt must be presumed. Each ingredient must stand on its own evidentiary footing. The absence of any act demonstrating transition from (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (23 of 25) [CRLR-307/2024] alleged sex determination to termination renders the foundation for attempt legally untenable.

59.There is no prima facie material demonstrating demand for termination, preparation undertaken for termination, medical documentation indicating termination, or statement revealing conscious design to prevent live birth.

60.In such circumstances, continuation of proceedings under Sections 315/511 read with 120-B IPC would amount to permitting prosecution on conjecture rather than legally admissible foundation.

VIII. Conclusion

61. In view of the foregoing discussion, this Court is of the considered opinion that the impugned order dated 20.01.2024, insofar as it frames charges under Sections 315/511 IPC read with Section 120-B IPC, suffers from absence of discernible judicial satisfaction regarding the essential ingredients of the offences alleged. The order reflects mechanical exercise of jurisdiction without identifying any specific material which, at least prima facie, demonstrates intention coupled with overt act amounting to attempt.

62.It is clarified that this Court is not entering into evaluation of the evidentiary weight, probative value, or ultimate credibility of the material collected. Nor is this Court expressing any conclusive opinion on whether the material, if properly (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (24 of 25) [CRLR-307/2024] appreciated, may or may not sustain conviction. However, at the threshold stage itself, the Court framing charge must indicate what material exists which denotes an attempt. The order must, at the very least, identify some fact which, if accepted at face value, reflects a step taken toward preventing the child from being born alive. In absence of identification of such foundational material, continuation of proceedings under Sections 315/511 IPC read with Section 120-B IPC cannot be sustained in law.

63.Accordingly, the instant criminal revision petition is partly allowed. The impugned order dated 20.01.2024 passed by the learned Sessions Judge, Banswara in Sessions Case No.105/2017 is set aside to the extent it frames charges under Sections 315/511 IPC read with Section 120-B IPC. The matter is remitted to the learned Trial Court for fresh consideration strictly in accordance with law. The learned Trial Court shall re-examine the material on record with specific reference to the statutory ingredients of Section 315 IPC and the legal requirements of attempt under Section 511 IPC, afford adequate opportunity of hearing to the parties, and pass a reasoned and speaking order uninfluenced by any observations made herein.

64.It is further clarified that this Court has not expressed any final opinion on the merits of the prosecution case under the provisions of the PCPNDT Act, and all issues are left open for (Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) [2026:RJ-JD:7426] (25 of 25) [CRLR-307/2024] independent adjudication by the Trial Court in accordance with law.

65.Record of the case be remitted back to the trial Court along with copy of this order. All pending applications, if any, shall stand disposed of.

(FARJAND ALI),J 7-Mamta/-

(Uploaded on 19/02/2026 at 04:26:41 PM) (Downloaded on 20/02/2026 at 08:43:44 PM) Powered by TCPDF (www.tcpdf.org)

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur