Rajasthan High Court - Jodhpur
Mohammad Imtiyaz vs State Of Rajasthan on 22 September, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Criminal Misc. (Pet.) No. 5502/2022 Dr. Mohammad Imtiyaz S/o Mohammad Niyaaz, Aged About 45 Years, B/c Muslim R/o House No. 83, Kamla Nehru Nagar, P.S. Pratap Nagar, District Jodhpur (Accused In Accused)
----Petitioner Versus
1. State of Rajasthan through PP
2. Shri Jitendra Gangwani S/o Late Shri Narendra Gangwani, Police Inspector Office In Charge P.S. P.B.I. Medical And Health Services, Jaipur
----Respondents For Petitioner(s) : Mr. Sheetal Kumbhat For Respondent(s) : Ms. Anita Gehlot, P.P. JUSTICE DINESH MEHTA REPORTABLE Order 22/09/2022
1. The instant petition has been preferred invoking this Court's power under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") impugning the F.I.R. No.01/2022, registered at Police Station P.B.I., District Jaipur against the petitioner seeking his prosecution for offences under the provisions of Sections 420 & 120 -B of the Indian Penal Code, Sections 4, 5, 6, 18, 23 & 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the P.C.P.N.D.T. Act") and Rule 4 of Pre-conception and Pre-natal Diagnostic Techniques Rules, 1996 (hereinafter referred to as "the P.C.P.N.D.T. Rules"). (Downloaded on 23/09/2022 at 11:37:05 PM)
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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 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 (Downloaded on 23/09/2022 at 11:37:05 PM) (3 of 6) [CRLMP-5502/2022] 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
(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."
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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 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.
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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.
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. (Downloaded on 23/09/2022 at 11:37:05 PM)
(6 of 6) [CRLMP-5502/2022] 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.
(DINESH MEHTA),J 212-Inder/-
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