Rajasthan High Court - Jodhpur
Dr. Sanjeev Kumar Jain vs State Of Rajasthan (2023:Rj-Jd:41339) on 1 December, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023:RJ-JD:41339]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 6642/2022
Dr. Sanjeev Kumar Jain S/o Sh. Manmal Jain, Aged About 55
Years, B/c Jain R/o Sanjeevni Hospital N.h. 14, Shai Nagar Board
No. 7, P.s. Kotwali, Sirohi.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Shayar Singh S/o Sh. Sua Lal,, Police Inspector, Officer-
In-Charge And Hc, P.s. P.b.i., Medical And Health Services,
Jaipur.
----Respondents
For Petitioner(s) : Mr. Sheetal Kumbhat
For Respondent(s) : Mr. A.R. Malkani, Associate to
Mr. M.A. Siddiqui, G.A.-cum-A.A.G.
HON'BLE DR. JUSTICE NUPUR BHATI
Order 01/12/2023
1. The present criminal misc. petition has been preferred by the petitioner with the following prayers:-
"It is therefore, most humbly and respectfully prayed that the petition may kindly be allowed and:
a. the captioned FIR and the entire proceedings in furtherance thereto qua the petitioner may kindly be quashed and set aside; and b. any other appropriate/consequential orders or directions which may be deemed just and proper in the facts and circumstances of the case may be passed."
2. At the outset, learned counsel for the petitioner places reliance upon the judgment dated 18.10.2022 passed by this Court in SBCRLMP No.3240/2016 titled as Dr. Ganesh Patel Vs. (Downloaded on 01/12/2023 at 08:52:25 PM) [2023:RJ-JD:41339] (2 of 9) [CRLMP-6642/2022] The State of Rajasthan & Anr., and submits that the controversy involved in the instant petition is squarely covered with the aforesaid judgment. The relevant portion of the said judgment is reproduced hereunder:-
"5. This Court, looking into the factual matrix of the present case, finds that the First Information Reports impugned herein were filed by the respondent no. 2 i.e. the Sub-Inspector, Authorized Officer under the P.C.P.N.D.T Act; although he is a competent authority to file a complaint under the P.C.P.N.D.T. Act i.e. Sections 27 and 28 thereof read with Rule 18A of the P.C.P.N.D.T. Rules, however, the said authority is barred from directly filing First Information Reports against a person accused under the offences in the P.C.P.N.D.T. Act.
6. This Court observes that Section 315/511 and Sections 315& 120-B, of the I.P.C. are interlinked with the offences under the Act of 1994 and the Rules of 1996, and a perusal of the impugned First Information Reports would reveal that the ingredients of the offences alleged under the said Sections, are absent.
7. This Court, after looking into the factual matrix of the present case, and as a result of the above discussion, finds that the judgment rendered in Dr. Mohammad Imtiyaz (supra) is applicable in the present case, and thus, the present petitions deserve to be allowed, in terms of the said judgment.
8. Consequently, keeping into consideration the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. (1992) Supp 1SCC 335, and the judgment rendered by the Coordinate Bench of this Hon'ble Court in Dr. Mohammad Imtiyaz (supra), the present petitions are allowed. Accordingly, FIR Nos.19/2016 and 10/2016, registered at Police Station, PBI, Medical &Health Services, Rajasthan, Jaipur; for the offences under Sections 4, 5, 6, 23, 25 and 29 of (Downloaded on 01/12/2023 at 08:52:25 PM) [2023:RJ-JD:41339] (3 of 9) [CRLMP-6642/2022] P.C.P.N.D.T. Act, 1994 and Rules 9 & 10 of the P.C.P.N.D.T Rules, 1996 and Section 315/511 IPC (in FIR NO. 19/2016); and for the offences under the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, and Sections 315, 120-B IPC, Sections 4, 5, 6, 23, 25, 29 of PCPNDT Act, 1994 and Rules 9 (2) (3) (4) (5) (6) (7) & (8) of the Rules of1996 (In FIR No. 10/2016) qua the present petitioners are hereby quashed and set aside. However, it is made clear that the final report filed by the competent authority shall be treated as complaint, and the respondents shall be free to proceed strictly in accordance with law. It is further made clear that the petitioners shall be free to take all their legal issues at the appropriate stage, before the competent court."
3. A bare look at the FIR reveals that the respondent No.2- Police Inspector, Officer-In-Charge and Head Constable of Police Station P.B.I., lodged a complaint against the petitioner for the offences under Sections 420 and 120B of IPC and under Section 3, 4, 5, 6, 23 and 25 of the Pre-Conceptional and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'PCPNDT Act, 1994') and Rules 9 and 10 of the Pre-Conceptional and Pre-Natal Diagnostic Techniques Rules, 1996 (hereinafter referred to as 'PCPNDT Rules, 1996').
4. Learned counsel for the petitioner submits that the respondent No.2, although, is a competent authority to file a complaint under PCPNDT Act, i.e. Section 27 and 28, read with Rule 18A of the PCPNDT Rules, however, the respondent no.2 is barred from directly filing the first information report against the person accused under the offences in the PCPNDT Act.
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5. It is apparent from the FIR that the respondent No.2 i.e. Police Inspector, is competent to file a complaint under the PCPNDT Act i.e. Section 27 and 28, read with Rule 18A of the PCPNDT Rules, but the said authority is barred from directly filing the FIR against the person accused in the offences included in PCPNDT Act.
6. This Court observes that Section 315/511 and Section 315 & 120B of IPC are interlinked with the offences under the PCPNDT Act, 1994 and the PCPNDT Rules, 1996 and the perusal of the FIR reveals that the ingredients of the offences alleged under the said Sections, are absent.
7. This Court after looking into the factual matrix of the present case, and as a result of the above discussion, finds that the judgment rendered by the Coordinate Bench of this Court in the case of Dr. Mohammad Imtiyaz Vs. State of Rajasthan passed in SB Criminal Misc. (Pet.) No.5502/2022, decided on 22.09.2022, is applicable in the present case. The said judgment is reproduced hereunder:-
"2. While maintaining that the petitioner has been falsely implicated and a concocted story has been portrayed, Mr. Kumbhat, learned counsel for the petitioner argued that the respondent No. 2 has no jurisdiction to register an F.I.R. for offences under the provisions of the P.C.P.N.D.T. Act as the offences under Sections 4, 5, 6, 18, 23 & 25 of the P.C.P.N.D.T. Act are non-cognizable.
3. He further argued that even if the contents of the FIR are believed to be true, offence under Section 420 of the Indian Penal Code is not made out.
4. During the course of submissions, learned counsel for the petitioner informed that after registration of the (Downloaded on 01/12/2023 at 08:52:25 PM) [2023:RJ-JD:41339] (5 of 9) [CRLMP-6642/2022] impugned F.I.R., a complaint has also been instituted by Manohar Lal Meena, Police Inspector, Officer-in- charge, Police Station P.C.P.N.D.T. Bureau of Investigation, Medical & Health Services, Jaipur (hereinafter referred to as "the appropriate authority") and this FIR is hit by Article 20 of the Constitution and Section 300 of the Code.
5. Ms. Gehlot, learned Public Prosecutor, on the other hand, argued that since the petitioner has committed forgery, he is liable to be punished under Section 420 of the Indian Penal Code. She emphasised that even if the offence under the provisions of the P.C.P.N.D.T. Act are non-cognizable, the Investigating Officer could register the F.I.R. because, it is a case of multiple offences under two enactments arising out of one incident.
6. Heard learned counsel for the parties.
7. According to this Court, the allegation that the petitioner was involved in sex determination, definitely gives rise to an offence under the P.C.P.N.D.T. Act, but the moot question is whether such offence can be taken cognizance of by the Police or whether the Police can directly register an F.I.R.
8. Answer to the above question lies in Sections 27 and 28 of the P.C.P.N.D.T. Act, which are reproduced here infra :-
"27. Offence to be cognizable, non-bailable and non-compoundable. -Every offence under this Act shall be cognizable, non-bailable and non- compoundable.
28. Cognizance of offences.
1. No court shall take cognizance of an offence under this Act except on a complaint made by--
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Cen-
tral Government or State Government, as the case may be, or the Appropriate Authority; or (Downloaded on 01/12/2023 at 08:52:25 PM) [2023:RJ-JD:41339] (6 of 9) [CRLMP-6642/2022]
(b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
Explanation.--For the purpose of this clause, "person" includes a social organisation.
2. No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
3. Where a complaint has been made under clause (b) of sub-section (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person."
9. Rule 18A of the P.C.P.N.D.T. Rules also has an important bearing on the question involved, hence, relevant part thereof is being extracted herein below :-
"18A. Code of Conduct to be observed by Appropriate Authority.
(1) ... xxx ...
(2) ... xxx ...
(3) All the Appropriate Authorities including the State, District and Sub-district notified under the Act, inter-alia, shall observe the following conduct for processing of complaint and investigation, namely :-
(i) ... xxx ...
to
(iii) ... xxx ...
(iv) as far as possible, not involve police for investigating cases under the Act as the cases (Downloaded on 01/12/2023 at 08:52:25 PM) [2023:RJ-JD:41339] (7 of 9) [CRLMP-6642/2022] under the Act are tried as complaint cases under the Code of Criminal Procedure, 1973 (2 of 1974)."
10. Sections 27 & 28 of the P.C.P.N.D.T. Act clearly suggest that the scheme of the Act bars interference of other authorities including the police. Section 28 clearly prohibits a Court from taking cognizance of any offence under the P.C.P.N.D.T. Act except pursuant to a complaint filed by an appropriate authority or authorised officer in this behalf. It is to be noted that a person other than appropriate authority or authorised officer cannot file a complaint directly to the Court - he has to give 15 days notice.
11. Rule 18A(3)(iv) of the P.C.P.N.D.T. Rules in express terms postulates that involvement of police shall be minimum. When the very involvement is discouraged under the Act and the Rules, registration of F.I.R., investigation and arrest by the police is out of question.
12. Moving on to the next question, whether provisions of Section 420 of the Indian Penal Code are attracted ? Entire story as narrated in the F.I.R., revolves around determination of sex and taking Rs. 50,000/- as fee for such act by the accused person. There is not even a whisper about cheating. Even the informer, at whose information, decoy or trap was plotted, did not allege cheating or inducement - the information was only about sex determination. During the course of trap also, the petitioner and other co-accused have agreed to determine the sex of the fetus. Hence, foundational or jurisdictional fact quintessential for offence under Section 420 of the Indian Penal Code is non- existent.
13. Impugned F.I.R. has been lodged by the Authorized Officer, Police Station P.B.I., Medical & Health Services, Jaipur, who might be an appropriate authority as per Section 28 of the P.C.P.N.D.T. Act, competent to file a complaint but not empowered to register an F.I.R.
14. The registration of F.I.R. is per se, illegal, contrary to the provisions of the P.C.P.N.D.T. Act and without jurisdiction.
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15. For whatever has been discussed herein above, the petition deserves to be and is hereby allowed.
16. The F.I.R. No. 01/2022, Police Station P.B.I., Medical &Health Services, Jaipur registered against the petitioner on 22.04.2022 is hereby quashed.
17. Since the F.I.R. impugned has been quashed, the petitioner shall be released forthwith. The concerned Jail Superintendent, wherever the petitioner is lodged, is directed to release the petitioner on production of a certified copy of order instant.
18. As per information given by learned counsel for the petitioner, the petitioner is behind the bars since 22.04.2022. While invoking this Court's inherent powers, it is hereby directed that in case, the petitioner is ultimately convicted pursuant to complaint filed by the State, the period for which he has remained behind the bars, shall be considered against the sentence (if any) awarded by the trial court pursuant to the complaint filed against him under the provisions of the P.C.P.N.D.T. Act.
19. Needless to observe that quashing of present F.I.R. will have no bearing on complaint case, which is said to have been filed by the appropriate authority so far as offences under the provisions of P.C.P.N.D.T. Act are concerned. The Court concerned shall decide the same in accordance with law.
20. The stay application stands disposed of accordingly."
8. Consequently, keeping into consideration the judgment rendered by Hon'ble the Apex Court in the case of State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors. (1992) Supp 1 SCC 335, and the judgment rendered by the Coordinate Bench of this Court in Dr. Mohammad Imtiyaz (supra), the present petition is allowed. The FIR No.05/2021 registered at Police Station P.B.I., District Jaipur for the offences under Sections 420 (Downloaded on 01/12/2023 at 08:52:25 PM) [2023:RJ-JD:41339] (9 of 9) [CRLMP-6642/2022] and 120B of IPC and under Section 3, 4, 5, 6, 23 and 25 of the Pre-Conceptional and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Rules 9 and 10 of the Pre-
Conceptional and Pre-Natal Diagnostic Techniques Rules, 1996 is quashed and set aside qua the petitioner. However, it is made clear that the final report filed by the competent authority shall be treated as a complaint and the respondents shall be free to proceed strictly in accordance with law. It is further made clear that the petitioner shall be free to take all their legal issues at the appropriate stage before the competent court.
(DR. NUPUR BHATI),J 443-Devesh/Surabhi/-
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