Gujarat High Court
Renuka Pankaj Shah vs State Of Gujarat on 27 October, 2023
NEUTRAL CITATION
R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7444 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RENUKA PANKAJ SHAH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BB NAIK, Senior Advocate with MR PARTHIV A BHATT(5331) for the
Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/10/2023
CAV JUDGMENT
1. This petition is filed with a prayer to quash and set aside the criminal proceedings being Criminal Case No.606 of Page 1 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined 2014 lodged by respondent no.2 against the applicant in the Court of learned Chief Judicial Magistrate, Jamnagar and order passed by the trial Court taking cognizance of the same.
2. The applicant is a practicing doctor since last many years at Jamnagar as Gynecologist and is running a maternity home in the name of "Nirmal Nursing Home". On 21.2.2013, an FIR came to be registered at City "B" Division Police Station Jamnagar, being C.R.No.II-39 of 2013 for the offences punishable under Sections 4(3), 5(1)(b), 5(1)(c), 5(2), 6(a) and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques [Prohibition of Sex Selection] Act, 1994 (for short, "the Act") and Rules 9(1), 9(4) and 10(1A) of the Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Rules, 1996 (for short, "the Rules"). Said complaint was lodged by respondent no.2-District Health Officer.
2.1 As per the allegations made in the FIR, complaints were received against the petitioner, who is practicing as a Gynecologist at Jamnagar and she was illegally examining foetus by charging a huge amount. To take out legal proceedings against her, one Shardaben was selected as decoy patient who was carrying two months pregnancy and she was sent to the petitioner for examination. She was called on Page 2 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined 20.2.2013 by the petitioner for examination to know the sex of foetus. To carry out a sting operation, three government witnesses were kept present and a panchanama was drawn including noting down number of currency notes. Thereafter, on 20.2.2013, the first informant and the panchas were standing at some distance from nursing home of the petitioner and Shardaben went to the hospital for examination. For carrying out the operation, a hidden camera was installed on the dress of Shardaben. After Shardaben was examined, she was informed that the foetus was found not breathing and, therefore, Shardaben was referred to Dr. Sunil Mehta, who is running Image Point Diagnostic Centre.
At that time, the petitioner charged Rs.400/- for doing sonography and examining Shardaben. Thereafter, Dr.Sunil Mehta examined Shardaben. Thereafter, Shardaben asked the petitioner regarding the report of Dr.Sunil Mehta and at that time the petitioner called Shardaben at 5 p.m. to visit her hospital. In the evening, when the petitioner saw report of Dr.Sunil Mehta, she informed Shardaben that foetus was dead and an operation was required to be carried out. At that time, Shardaben asked about sex of foetus [fetal gender identification] and the petitioner informed her that it is a female foetus. Thereafter, the petitioner advised Shardaben to come on next day without taking any water or food for carrying out abortion and also told Shardaben that if her Page 3 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined mother-in-law would come tomorrow, the petitioner would inform her also that it is a female foetus. Thereafter, the petitioner charged Rs.9000/- for disclosing the sex of foetus.
Shardaben came out and gave a signal and, thereafter, a raid was carried out and amounts of Rs.9000/- and Rs.450/-
were recovered from the petitioner. With such allegations, complaint is filed against the petitioner.
2.2 It is respectfully submitted that sonography examination of the applicant was confirmed by the report of Dr. Sunil R. Mehta that pulse of the foetus was absent which clearly suggests that the foetus was dead and was not alive. He has also 1213 to 2020, stated in his report that it was a case of mis-carriage and, therefore, the foetus was required A to be removed from the uterus, otherwise, it would endanger the life of the mother and, therefore, the applicant advised an operation to remove foetus from the uterus.
2.3 It is respectfully submitted that, being aggrieved by registration of the said first information report against the applicant by respondent No.2, the applicant approached this Honourable Court by filing a writ petition, being Special Criminal Application No.1143 of 2013, for quashing of the said first information report. It is respectfully submitted that, in the said writ petition, initially, this Hon'ble Court was Page 4 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined pleased to issue notice and, thereafter, admit the writ petition and granted stay of further proceedings in connection with the said first information report. The said writ petition is, at present, pending before this Hon'ble Court.
2.4 It is respectfully submitted that, after filing of the said writ petition, being Special Criminal Application No.1143 of 2013, respondent No.2 filed a criminal complaint on 6.6.2014 in the Court of the learned Chief Judicial Magistrate, Jamnagar, for the offences covered by the first information report. In the said criminal complaint, trial court took cognizance and issued summons to the applicant and registered the said complaint as Criminal Complaint No.606 of 2014.
2.5 The applicant, feeling aggrieved and dissatisfied with the entertainment of the complaint filed by respondent No.2 dated 6.6.2014 and the order passed by the learned Chief Judicial Magistrate, Jamnagar, taking cognizance of the same and issuing summons to the applicant, approached this Hon'ble Court by filing this application under Section 482 of the Code of Criminal Procedure, for quashing of the said complaint as well as proceedings pending before the trial court.
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3. Heard learned Senior Advocate, Mr.B.B.Naik appearing with Mr.Parthiv Bhatt and learned APP, Ms.Monali Bhatt for the respondent-State.
4. Learned Senior Advocate, Mr.B.B.Naik appearing for the petitioner has submitted that definition of 'foetus' given in Clause (bc) of Section 2 of the Act reads as under:-
"(bc) 'foetus' means a human organism during the period of its development beginning on the fifty-seventh day following fertilization or creation (excluding any time in which its development has been suspended) and ending at the birth."
4.1 Section 2 (bc) of the Act clearly provides that foetus means a live foetus ending at the birth. It is respectfully submitted that, if the foetus was not alive and dead and not ending at the birth, it cannot be termed as 'foetus' under the Act and, therefore, even if the allegation of informing sex of the foetus to Shardaben by the applicant is accepted, the same does not constitute any offence.
4.2 It is respectfully submitted that, actually, sonography carried out by the applicant on 20.2.2013 was not for the Page 6 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined purpose to know sex of the foetus, but to check development of the foetus and, since there was no movement, it was up to checked whether the foetus was alive or not. It is respectfully submitted that, admittedly, when sonography was conducted by the applicant, she found that the foetus was not alive and was dead as there was no pulse available and the applicant did not disclose sex of the foetus to the decoy Shardaben. It is stated that, admittedly, decoy Shardaben was referred by the applicant to Dr. Sunil Mehta, who is running Image Point Diagnostic Centre, at Jamnagar, to confirm the results recorded by the applicant that the foetus was dead and not alive as Dr. Sunil Mehta was having modern equipments for sonography and other examination. It is also an admitted position that the applicant charged only Rs.400/- while checking Shardaben for the first time and did not charge any higher amount, as alleged, that the test was performed to determine sex of the foetus and to disclose sex of the foetus. It is respectfully submitted that Shardaben went to Image Point Diagnostic Centre run by Dr. Sunil Mehta on the same day and Dr. Sunil Mehta examined Shardaben and conducted sonography and other examination of the foetus and gave his report confirming the opinion of the applicant that the foetus was dead and not alive and it was a case of mis-abortion or mis-carriage. It is respectfully submitted that respondent No.2 has also seized the report Page 7 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined given by Dr. Sunil Mehta on 20.2.2013, wherein, it was categorically stated that it is a case of mis-abortion or mis-
carriage and no pulse of the foetus was found. It is respectfully submitted that Shardaben was called by the applicant in the evening at 5 p.m. after she received report from Dr. Sunil Mehta and informed Shardaben that it is a case of misabortion or mis-carriage and the foetus is dead and, therefore, the foetus has to be removed, otherwise, it would be dangerous to the life of Shardaben. After informing as above, she asked about sex of the foetus which was dead and the allegation is that the applicant disclosed sex of the foetus. It is respectfully submitted that the provisions of the Act will apply to the live foetus and not to the dead foetus and, therefore, the basis for registering offence against the applicant even if it is taken as true that the applicant disclosed sex of the foetus, is not made out against the applicant and the same is completely baseless and unfounded on facts.
4.3 Learned Senior Advocate, Mr.Naik has submitted that, FIR is filed pursuant to alleged decoy trap whereby the accused person is found indulging in activity which is prohibited by the Act and the Rules. He has further submitted that on a bare reading of FIR, no offence is made out against present petitioner. He has submitted that the Page 8 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined accused is a lady doctor and she is practicing since many years as a gynecologist. He has also submitted that in so-
called sting operation, it is revealed that the applicant had noticed a lifeless foetus. He has also submitted that initially the applicant had refused to disclose gender of the lifeless foetus, however, based on her experience and knowledge of "missed abortion" a reference was made to the imaging centre. In addition, allegations against the applicant are of not following procedure under the Act for which the authority can certainly takes steps.
4.4 Learned Senior Advocate, Mr.Naik has further submitted that considering the definition of "foetus", when a lifeless foetus was existing in the womb, provisions of the Act cannot be attracted in present case and the FIR which is filed against the petitioner is required to be quashed and set aside. He submitted that in the peculiar facts of present case, FIR is nothing but an abuse of process of law and, therefore, it is required to be quashed and set aside. He has relied upon this judgment in the case of State of Haryana V/ s Bhajan Lal reported in AIR 1992 SC 604.
5. Per contra, Ms.Monali Bhatt, learned APP, for the respondent-State has strongly objected to the contentions raised by the petitioner. It is submitted that prima facie Page 9 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined offence is made out against the accused. She has submitted that petitioner is practicing as a Gynecologist at Jamnagar and was involved in examination of sex of foetus by charging huge amount. She has further submitted that a sting operation is carried out and for carrying out this sting operation, a hidden camera was installed on the dress of the decoy patient. She has submitted that, during such operation, it is found that the accused has charged Rs.9000/- for disclosing sex of the foetus. She has also submitted that the complainant has filed Criminal Case No.606 of 2014 before learned Chief Judicial Magistrate, Jamnagar on 6.6.2014 along with the papers of charge sheet, which is filed pursuant to the proceedings and, therefore, she has prayed that present petition may be dismissed.
5.1 Learned APP, Ms.Bhatt, has further submitted that as there is no illegality in the proceedings initiated against the accused, it is required to be carried out in accordance with law. She has also submitted that considering seriousness of the offence, the accused may face trial and put her defence during trial and such trial may be completed as early as possible. It is prayed that the interim relief granted by this Court may be vacated and present petition may be dismissed, in view of decision in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in Page 10 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined 2021 SCC OnLine SC 315. Accordingly, it is prayed to dismiss this petition.
5.2 Learned APP, Ms.Monali Bhatt, has further submitted that incident in question has taken place when decoy patient went to the place of accused and the accused has accepted an amount of Rs.9000/- in presence of panchas. She has further submitted that charge sheet is already filed pursuing to FIR and Criminal Case No.606 of 2014 has proceeded further. In view of above, she has submitted that present case do not require interference by this Court and present petition may be dismissed.
6. Before proceeding further, it would be appropriate to refer to the provisions of Sections 3, 4(3), 5(1)(b), 5(1)(c), 5(2), 6(a) and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques [Prohibition of Sex Selection] Act, 1994, which are reproduced hereunder:-
"3. Regulation of Genetic Counseling Centres, Genetic Laboratories and Genetic Clinics.- On and from the commencement of this Act,-
1. no Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting Page 11 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined activities relating to prenatal diagnostic techniques;
2. no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess qualifications as may be prescribed;
3. no medical geneticist, gynecologist, pediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.
3A. Prohibition of sex-selection- No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.
3B. Prohibition on sale of ultrasound machines, etc., to persons, laboratories, clinics, etc. not registered under the Act.- No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act.Page 12 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023
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4. Regulation of pre-natal diagnostic techniques.- On and from the commencement of this Act,-
1. .........
...........
3. no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:-
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the Central Supervisory Board;
Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;"
Page 13 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined ............
5. Written consent of pregnant woman and prohibition of communicating the sex of foetus.
1. No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless-- NDT Act, 1994 & Amendments
(a) ..........
(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and
(c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.
2. No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner.
6. Determination of sex prohibited.- On and from the commencement of this Act,-
(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;Page 14 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023
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25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.- Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention."
6.1 Rules 9(1), 9(4) and 10(1A) of the Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Rules, 1996 are reproduced hereunder:-
"9. Maintenance and preservation of records.
(1) Every Genetic Counselling Centre, Genetic Laboratory, 25[Genetic Clinic including a Mobile Genetic Clinic], Ultrasound Clinic and Imaging Centre shall maintain a register showing, in serial order, the names and addresses of the men or women given Page 15 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouse or father and the date on which they first reported for such counselling, procedure or test. ............
(4) The record to be maintained by every [Genetic Clinic including a Mobile Genetic Clinic], in respect of each man or woman subjected to any pre-natal diagnostic procedure/ techniques/ test, shall be as specified in Form F.]"
.......
10. Conditions for conducting pre-natal diagnostic procedures. "[(1) Before conducting pre-implantation genetic diagnosis, or any pre-natal diagnostic technique/ test/procedure such as amniocentesis, chorionic villi biopsy, foetoscopy. foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him.] [(1-A) Any person conducting ultrasonography/image scanning on a pregnant woman shall give a declaration on each report on ultrasonography/ image scanning that he/she has neither detected nor disclosed the sex of Page 16 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined foetus of the pregnant woman to anybody. The pregnant woman shall before undergoing ultrasonography/image scanning declare that she does not want to know the sex of her foetus.]"
7. I have considered aforesaid provisions of law. I have also considered rival submissions made at bar and the judgments cited by both the sides. I have also considered the fact that the complaint is filed and, thereafter, investigation is carried out and charge sheet is also filed. Thereafter appropriate authority has also filed complaint as required under the provisions of law before the concerned Magistrate.
Pursuant to said complaint, Criminal Case No.606 of 2014 is going on at present. The complaint is filed by Chief District Health Officer, PNDT, dated 6.6.2014 under provisions of Section 28 of the Act. In identical facts and circumstances Honorable Delhi High Court in the case of Manoj Krishan Ahuja v. State of NCT of Delhi and Another reported in 2023 SCC Online Delhi 2303, has observed as under:-
"53. As held by Hon'ble Apex Court in Rasila S. Mehta v. Custodian, Nariman Bhavan, Mumbai 2011 6 SCC 220, it is incumbent upon the Courts to interpret the statute in such a way that it protects and advances the purpose of enactment, and to not adopt any technical or restricted Page 17 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined interpretation of the provisions which would negate the legislative intent and policy.
54. Albeit, it is not specifically provided in the Act that the Appropriate Authority can get an FIR registered after their preliminary inquiry, search, seizure etc. or on a complaint received by them, the purpose of law cannot be defeated by quashing of FIRs where investigation also reveals commission of cognizable offence under the Act only due to lack of clarity in this regard in the Act. At the cost of repetition, it is to be noted that when the Appropriate Authority, as per mandate of PC&PNDT Act, informs the police about commission of offence under the Act, the police is duty bound and it is mandatory for them to register an FIR if commission of cognizable offence is made out.
55. Thus, the law has to be interpreted in a way that the object of enactment is not defeated, and in case of any conflict between two provisions in a statute, the Courts must strive to give effect to both by harmonising them with each other as far as possible."
7.1 In the same judgment while considering scope of quashing of FIR under the offences of PCPNDT Act, the Court has observed as under:-
"58. In Neeharika Infrastructure v. State of Maharashtra, 2021 SCC OnLine 315, a three-judge Bench of Hon'ble Apex Page 18 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined Court has summarised the relevant principles that govern the law on quashing of an FIR under Section 482 of the Cr.P.C. The relevant observation are as under:
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);Page 19 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023
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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
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xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and Page 21 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
59. The power under Section 482 Cr.P.C. has to be exercised sparingly and that too in the rarest of rare cases. Tested on the touchstone of aforesaid judicial precedents, the plea of present petitioner for quashing of FIR is not covered under the said principles as material regarding commission of the offence has been collected and filed in the form of chargesheet before the Trial Court and is also before this Court. As observed in preceding discussion, the object of the Act cannot be allowed to get defeated by quashing the FIR solely on the ground that police could not have investigated and filed chargesheet in this case, since the police assistance sought by Appropriate Authority is not barred completely by the Act.
60. In the present case, the complaint was received by the Appropriate Authority, and was dealt with by them under the Act and thereafter a complaint was lodged with the police as their assistance was sought for investigating the Page 22 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined matter. Further, keeping in view that there is no complete bar in involvement of police under the Act, and the words used in Rule 18A(3) are "as far as possible", neither the filing of chargesheet was vitiated nor the registration of FIR was bad in law. In case this view is adopted, FIRs registered under the Act and investigations carried out by the police pursuant to complaint by Appropriate Authorities culminating into filing of chargesheet against the offenders would have to be quashed on technical ground of no clarity or specific provision in the Act regarding the same.
61. The Act is silent as to what course is to be adopted and what is the repercussion of such chargesheet being filed in the court. As held by the Hon'ble Apex Court in the case of Rasila S. Mehta (supra), the purpose of law is not to allow the offender to sneak out of the meshes of law and that "the statutes must be construed in a manner which will suppress the mischief and advance the object the legislature had in view. A narrow construction which tends to stultify the law must not be taken."
62. Thus, hyper technical grounds cannot become the basis of quashing of chargesheets or FIRs, especially when offences under the Act are cognizable in nature."
7.2 The Court has further clarified the provisions of the Act in detail and observed as under:-
Page 23 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined "OBSERVATIONS OF THE COURT APROPOS THE NEED TO CLARIFY CERTAIN PROVISIONS AND PROCEDURES UNDER THE ACT
63. Before parting with this judgment, it is in the factual and legal background of this case that this Court is constrained to make certain observations, which are recorded in the succeeding paragraphs.
I. Joint Endeavour of Judiciary, Legislature and Executive to achieve Object of the Act
64. It is important to take note of the fact that since the enactment of PC&PNDT Act, there have been several efforts on the part of Judiciary in enforcing its provisions, ensuring its better implementation and even prescribing necessary guidelines. The Hon'ble Apex Court, in the year 2001, had issued a set of directions in Centre For Enquiry into Health and Allied Themes (CEHAT) v. Union of India 2001 5 SCC 577 to the Central Government, Central Supervisory Board, State Governments, and Appropriate Authorities after expressing that the Act was not being implemented to a large extent by the Central Government and State Governments. A further set of directions were issued by the Hon'ble Apex Court in Centre For Enquiry into Health and Allied Themes (CEHAT) v. Union of India 2003 8 SCC 398 since the concerned governments and authorities had failed to comply with the guidelines and directions issued in the year 2001.
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65. Subsequently, the PC&PNDT Act was amended by the Parliament in the year 2003 to strengthen its provisions and improve its implementation. Some of the changes introduced through the Amendment of 2003, in simple terms, were: (i) improving the regulation of the technology used in sex selection by introducing new techniques of pre-natal diagnostic tests and procedures, (ii) increasing the penalties for violating the provisions of the Act, (iii) banning advertisements related to pre-conception and pre-natal determination of sex, (iv) clarifying the responsibilities of various Authorities and Boards, (v) providing more powers to the Appropriate Authority for better implementation of the Act, etc. These amendments were aimed at addressing some of the shortcomings of the original Act and making it more effective in preventing sex-selective abortions. A reference in this regard can also be made to the Statement of Objects and Reasons of Act No. 14 of 2003, which read as under:
"...The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 seeks to prohibit prenatal diagnostic techniques for determination of sex of the foetus leading to female foeticide. During recent years, certain inadequacies and practical difficulties in the administration of the said Act have come to the notice of the Government, which has necessitated amendments in the said Act.Page 25 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023
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2. The pre-natal diagnostic techniques like amniocentesis and sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked disorders, etc. However, the amniocentesis and sonography are being used on a large scale to detect the sex of the foetus and to terminate the pregnancy of the unborn child if found to be female. Techniques are also being developed to select the sex of child before, conception. These practices and techniques are considered discriminatory to the female sex and not conducive to the dignity of the women.
3. The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of the society, especially of the women and children. It is, therefore, necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society.
4. Accordingly, it is proposed to amend the aforesaid Act with a view to banning the use of both sex Page 26 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended..."
66. However, despite the above-discussed amendments, the implementation of the PC&PNDT Act continued to be a challenge in India. The Hon'ble Supreme Court in Voluntary Health Association of Punjab v. Union of India 2013 4 SCC 1 as well as in Voluntary Health Association of Punjab v. Union of India 2016 10 SCC 265 was pleased to issue directions to the Central Government and State Governments to take steps for effective implementation of the Act of 1994.
67. It is, however, noteworthy that to ensure proper implementation of the Act, the Ministry of Health and Family Welfare, Government of India in collaboration with United Nations Population Fund had issued 'Standard Operating Guidelines for District Appropriate Authorities' in the year 2016. A perusal of the same also shows that these standard guidelines have been issued with a view to assess and guide the District Appropriate Authorities, at every stage, of the procedure to be adopted before and after a complaint is received and till culmination of the complaint to a logical end before a Court of law.
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68. Within the said Standard Operating Guidelines, different sets of guidelines have been provided. To point out a few important aspects covered in the same, the 'Guidelines for Undertaking a Decoy Operation' inter alia provides that (i) a trustworthy woman should be chosen who is 14 to 22 weeks pregnant and who has been explained the gravity of the situation in a language she understands and whose consent has been taken to participate in a decoy operation, (ii) at the place of the crime, statement of the pregnant woman and the witnesses should be recorded, (iii) If the audio and video recording of the evidence has been done, a CD should be made and submitted in the Court at the time of filing the case, (iv) all the relevant documents and articles must be seized, (v) a complaint should be filed in the concerned Court by the Appropriate Authority as soon as the investigation is completed, enclosing all the documents including evidence collected during decoy operation and investigation, (vi) the Appropriate Authority or his/her authorised representative should be present in the Court at all times for the hearing of the case, etc.
69. Further, 'Guidelines for Responding to a Complaint' inter alia provides that (i) investigation should be started within 24 hours and completed within 48 hours of receipt of complaint, (ii) on the basis of complaint, an inspection of the facility/centre should be carried out and completed as per the Rules, and registration of such facility/centre should be suspended immediately if it is found to have contravened the Page 28 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined law, (iii) all search and seize procedures should be completed, (iv) statements of witnesses should be recorded and panchnama should be prepared after gathering evidence,
(v) as per Section 24, no action shall be taken against the pregnant woman since she is protected under the law, etc. Similarly, 'Guidelines for Filing a Criminal Complaint' comprehensively deals with the aspect relating to Section 28 of PC&PNDT Act and explains the process as to how a complaint is to be filed before the Court by the Appropriate Authority. The process of filing has been divided into four segments i.e. preparatory process prior to filing a complaint case, documents to be submitted/annexed with the complaint, actual filing of the case, and general instructions. It is inter alia provided in these guidelines that such procedure should be followed under the guidance of a legal expert, and original documents should be submitted before the Court and proper follow-up of cases needs to be done by the officers of concerned Appropriate Authority.
70. However, the serious issue is that despite the fact that the judiciary, legislature and executive have made such efforts over the past more than 20 years, the Courts continue to encounter instances in which the relevant authorities are unaware of the proper procedure to be followed in cases governed by the PC&PNDT Act.
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71. The Courts have the authority through their judgments to initiate dialogues and develop jurisprudence if it is observed by a Court that a statute is unable to attain its intended purpose. This can also be done by bringing it to the notice of not only the public who seek justice from the Courts but of the Legislature also who has enacted the law with the object of safeguarding the interests of people, welfare of its citizens as well as ensuring rule of law and to achieve social and gender justice in specific enactments.
72. In India, laws are enacted by the worthy Parliament. However, the impact of enactment of law is discernible only when it is implemented and entered in Courts of law. Therefore, it assumes importance to discuss, review and analyse as to whether the purpose and object behind the enactment of a law has been achieved or not, by justice adjudicatory force and consumers of justice i.e. the litigants of both sides.
73. As discussed above, the object and the historical background in our country leading to enactment of the PC&PNDT Act was noble to curb long practised social evil of gender based violence which began from the womb when a female child was not even born, commonly known as female foeticide. The very purpose behind enactment of the present Act was to protect a female child from violence even before she entered the world.
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74. The social context of an enactment and the social context of the commission of offence need to be borne in mind as they are vital to do substantive justice. In this context, this Court notes that there has been a series of cases for last many years wherein the offenders seek invocation of powers under Section 482 of Cr.P.C. of High Courts to quash proceedings and complaints and set aside orders taking cognizance on the basis of police reports filed under this Act. While delving into the problem, it transpires that such a situation often arises due to lack of information and awareness among the masses as well as the concerned Authorities under the Act as to how the complaints are to be lodged and processed under the Act.
75. As this Court has observed, keeping in consideration the social context of an Act and offence is vital to do complete and true justice. For a common man or a layman, a complaint for commission of any offence can be lodged with the police. Therefore, even in a case of information regarding sex determination test, the police is often approached as first authority for initiation of action against persons committing offence in contravention of provisions of this Act. The police is not the first authority competent to initiate action under the Act. However, if FIR is lodged at the instance of Appropriate Authority or any authorised person, and on its basis if either cognizance is taken or refused by the learned Magistrate, the parties approach the High Court for redressal of their grievance.
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76. One common thread which runs through such litigation is the lack of information not only to the common citizen but also to the police, and in many cases Appropriate Authority, who invariably investigate the matter and file chargesheet under the Act and Indian Penal Code, 1860 before the Courts.
III. Judicial, Institutional and Constitutional Restraint by the Courts Vs. Pointing out the Grey Areas in an Act for the Legislature to cure for achieving Substantive Justice
77. Judicial decisions affect the practical world we live in and substantive justice is not served if the law which is sought to be implemented remains ineffective due to procedural or related issues that need attention. These issues are understood in their true context by those who deal with the enactment at the ground level before and after it reaches the Courts of law.
78. The Courts are to work within the institutional and constitutional constraints and restraints under which they operate. However, the Courts are responsible to the citizens and strive to protect the rule of law which is as per their judicial and constitutional duty, despite such judicial and constitutional restraints in a democratic set up. The constitutional goal of social justice can be achieved by ensuring that the aim and object of legislation is not defeated, but it is the joint inter- institutional endeavour of the judiciary and the legislature.
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79. In light of aforesaid, this Court has gone through the contents of 'Standard Operating Guidelines for District Appropriate Authorities', details of which have already been discussed in para no. 67 to 69.
80. While doing so, it has been noted by this Court that one of the guidelines contained in 'Guidelines for Undertaking a Decoy Operation' lays down that a woman who is 14-22 weeks pregnant can be used as a decoy customer/patient for the purpose of conducting a raid. However, it is mentioned that the consent of her husband, mother or mother-in-law is essential for the same even if she is a major. Moreover, they should also be explained the process and counselled in a language they understand. Though this Court holds a view that such guidelines may be against the philosophy of an independent adult woman's choices and discretion, it is for the Ministry concerned to reconsider or take call regarding the same.
81. One of the guidelines in 'Guidelines for Filing a Criminal Complaint' also states that in case charges are framed, application for suspension of the registration of the doctor should be submitted to the State Medical Council and on conviction, the name of doctor shall be removed from the register of Council. In this regard, it can be noted that there are no guidelines as to what procedure is to be Page 33 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined followed by the Appropriate Authority in case of discharge or if a Court declines to take cognizance under the Act.
82. This Court further notes that though the PC&PNDT Rules contemplate that 'as far as possible' police should not be involved in the process of raids, search, seizure, recording evidence, etc., the practicality of this aspect needs to be re- considered since this procedure has to be as per Cr.P.C. for conducting raids at facilities/clinics which are running in contravention of any provision of PC&PNDT Act.
83. Another grey area of the Act, as also dealt with by this Court in preceding discussion, is that while the powers of investigation, search, seizure, raid, cancellation or suspension of registration of medical centres and facilities have been given to the Appropriate Authority, the offences under the Act have been made 'cognizable' without vesting the power of arrest in the Appropriate Authorities. As per Cr.P.C., in case of commission of a cognizable offence, the accused can be arrested without a warrant by the police. Therefore, this aspect of the Act remains ambiguous, which has also compelled several High Courts to examine the same.
84. Further, the present case at hand is one such example where it seems that the Appropriate Authority itself did not know, or without due care, instead of filing the complaint as per mandate of Section 28 of the Act i.e. before the learned Trial Court, had lodged a complaint with the police for taking appropriate action against the accused persons and Page 34 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined thereafter, the police had filed a chargesheet before the Court concerned sans the complaint by Appropriate Authority.
85. Well-intended and well-implemented PC&PNDT Act and Rules are means for intervention to combat gender imbalance. The social context of the Act as well as the offence needs to be remembered, and it has to be kept in mind that the gender based violence, whether be it safety of a female child after birth or even when she is not born, is not only the concern of the State, but also of the Courts of law. While the attitudinal changes have to start from every family, till the said goal is achieved, the law must have teeth to deal with such situations with a stern hand.
86. This Court, however, deems it apposite to clarify that by way of such observations and suggestions, it does not wish to find faults either on part of Legislature i.e. the Parliament or the Executive i.e. the concerned Ministries or with the Appropriate Authorities under the Act. Even in the present case, as prima facie revealed from material on record, both the concerned Appropriate Authority as well as the police had carried out detailed and thorough investigation in the case and had thereafter filed chargesheet and supplementary chargesheet, and no malice or malafide can be attributed to either Appropriate Authority or police in carrying out the raid or the investigation. The irony, however, remains that due to lack of information, the Appropriate Authority was itself not aware of the mandate Page 35 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined of Section 28 of the Act that it had to file a complaint before the Court concerned to initiate the prosecution against the accused persons, but had given a sanction letter to the Investigating Officer to prosecute the accused in Court which was alien procedure to the Act.
87. Rather, this Court, with utmost caution, aims to point out certain ambiguities, grey areas and omissions in the legal framework which is otherwise meant to deal with the grave issues of female foeticide and illegal sex determination. A balance needs to be maintained between the 'judicial innovation' i.e. development of existing laws by adding to its jurisprudence, and 'judicial restraint' i.e. disposition to preserve and harmonise the existing legal framework."
8. The power under Section 482 Cr.P.C. has to be exercised sparingly and that too in the rarest of rare cases.
Tested on the touchstone of aforesaid judicial precedents, the plea of present petitioner for quashing of FIR is not covered under the said principles as material regarding commission of the offence has been collected and filed in the form of chargesheet before the Trial Court and is also before this Court. As observed in preceding discussion, the object of the Act cannot be allowed to get defeated by quashing the FIR solely on the ground that police could not have investigated and filed chargesheet in this case, since the police assistance Page 36 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined sought by Appropriate Authority is not barred completely by the Act.
9. Considering the ratio laid down in aforesaid judgments, it is clear that PC&PNDT Act and Rules are meant for intervention to combat gender imbalance. The social context of the Act as well as the offence needs to be remembered, and it has to be kept in mind that the gender based violence, whether be it safety of a female child after birth or even when she is not born, is not only the concern of the State, but also of the Courts of law. Therefore, in my view, there is no reason to interfere with present proceedings, considering judgment in the case of Neeharika Infrastructure (supra).
10. In my view, present case is not a fit case wherein this Court should exercise its powers under Section 482 of Criminal Procedure Code for quashing the proceedings initiated pursuant to the FIR, which is culminated in Criminal Case. Therefore, no case is made out to exercise powers under Section 482, on the contrary scuttling the proceedings at this stage will amount to miscarriage of justice. I am of the view that the proceedings pursuant to impugned FIRs may go on in accordance with law against Page 37 of 38 Downloaded on : Thu Nov 02 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/7444/2017 CAV JUDGMENT DATED: 27/10/2023 undefined the petitioners and concerned Court may grant appropriate opportunity to the parties before deciding the case.
11. With above observations, all these petitions are dismissed. Rule is discharged. Interim relief granted earlier stands vacated. The trial court may expedite trial in connection with impugned complaints and conclude the same as expeditiously as possible and preferably on or before 30 th June, 2024.
Sd/-
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