Punjab-Haryana High Court
Dr. Arvind Pal Singh Gambhir And Another vs State Of Punjab And Others on 10 July, 2013
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-23040 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-23040 of 2012 (O&M)
Date of decision: 10.07.2013
Dr. Arvind Pal Singh Gambhir and another
....Petitioners
Vs.
State of Punjab and others
....Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
******
Present:- Mr. B.B.S. Sobti, Advocate,
for the petitioners.
Mr. D.S. Virk, AAG, Punjab.
RITU BAHRI, J (ORAL)
This petition under Section 482 Cr.P.C is for quashing of the final report submitted by the SHO, Sarbha Nagar, Ludhiana, under Section 173 Cr.P.C. pertaining to FIR No.118 dated 31.07.2008, under Sections 25, 26, 23 and Section 23 (1) of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (for brevity "PNDT Act').
The FIR was registered on the basis of an application moved by Dr. Reena Sandhu, District Family Welfare and Planning Officer, Ludhiana, to the SHO, Police Station, Sarbha Nagar, Ludhiana, with the allegation that on a secret information received by the Civil Surgeon, a team comprising of Dr. Gurbinder Kaur and S/N Darshna Sharma was sent to the hospital of the petitioners to investigate a case of illegal M.T.P., being attempted Prasher Ajay 2013.07.26 10:52 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-23040 of 2012 (O&M) 2 there. Thereafter, statements of the team members were recorded. One patient was present there for examination and on internal examination, it was found that she was 3½ months pregnant and bleeding P/V. The team assumed that there was a sex determination followed by attempted medical termination of pregnancy. On this background the aforesaid FIR was registered.
Earlier petitioner No.1 had filed CRM No. M-33595 of 2008 and petitioner No.2 filed CRM No.M-12160 of 2009 for quashing of FIR No.118 dated 31.07.2008, however, the same were dismissed by this Court vide order dated 03.07.2012 (Annexures P-3 and P-4 respectively). While dismissing the said petition, it was held that as per Section 28 of PNDT Act, no Court shall take cognizance of an offence under this Act, except on a complaint made by the appropriate authority. It was also observed that as per Section 27 of PNDT Act, the police has power to arrest a person, who is found to be indulging in an offence committed under the said PNDT Act.
As per Section 2 (c) Cr.P.C., cognizable offence gives powers to the police to arrest a person without warrant and there is no such bar or prohibition at the stage of investigation. The aforesaid petition was dismissed as the police could not be restrained from investigating a complaint made for non compliance of the provisions of PNDT Act. After dismissal of the aforesaid petition, the police investigated the matter and presented a challan (Annexure P-1) before the trial Court.
It is the presentation of the challan, which is being Prasher Ajay sought to be quashed on the ground that as per mandatory 2013.07.26 10:52 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-23040 of 2012 (O&M) 3 provisions of Section 28 of PNDT Act, cognizance of the offence can be taken on a complaint made by the appropriate authority.
As far as the investigation is concerned, there is no dispute that as per Section 27 of the PNDT Act, the police can take cognizance of the offence and arrest a person without warrant and continue with the investigation. However, as per Section 28 of the PNDT Act, the appropriate authority, appointed by the Central Government or the State Government, shall be competent to present a complaint before the Court, who shall then take cognizance of the offence. In this regard section 28 of the PNDT Act is reproduced as under:-
"28. Cognizance of offences- (1) No court shall take cognizance of an offence under the Act except on a complaint made by:-
(a) The appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(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 organization.
(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 of such person." In view of the aforesaid discussion, this petition is allowed and the challan (Annexure P-1) is quashed. However, Prasher Ajayliberty is granted to the respondents to send a report under 2013.07.26 10:52 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-23040 of 2012 (O&M) 4 Section 173 (8) Cr.P.C. (challan) to the competent authority, set up by the State Government, as per Section 28 of the PNDT Act and the appropriate authority, so established, shall be competent to make a complaint to the Magistrate, who shall take cognizance of the offence under the PNDT Act.
(RITU BAHRI)
July 10, 2013 JUDGE
ajp
Prasher Ajay
2013.07.26 10:52
I attest to the accuracy and
integrity of this document
High Court Chandigarh