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3. It would be appropriate to reflect upon and discuss the relevant provisions of the PC&PNDT Act before adverting to the rival claims of the parties. In fact, the term AA is defined in Section 2(a) of the said Act which means an authority appointed under Section 17 thereof. The pre- natal diagnostic procedures have been prescribed in Section 4 with certain restrictions imposed. Section 5 specifies that no person referred to in Section3(2) of the PC&PNDT Act shall conduct the pre-natal diagnostic procedure without the consent of the pregnant woman. The determination of sex is fully prohibited in view of Section 6. An elaborate procedure has been specified in the PC&PNDT Act for regulation on pre-natal diagnostic techniques and the manner in which, they shall have to be conducted, the intent and purpose being to prevent its misuse in the sex determination. Section 17 deals with the AA and functions an AA is required to discharge stands clearly mentioned in sub- section (4) thereof. The powers of the AA in certain matters have been indicated in Section 17(A) which is with regard to summoning of persons in possession of any information relating to violation of the provisions of the PC&PNDT Act; production of documents or material objects; issuance of search warrant for any place suspected to be indulged in sex selection techniques or pre-natal sex determination etc. Chapter VII of the PC&PNDT Act deals with the offences and penalties. A reverse presumption is attached in view of Section 24 of the PC&PNDT Act as to absence of consent of the pregnant woman unless contrary is proved while following the pre-natal diagnostic techniques for the purposes of the said Act. The offences under the PC&PNDT Act are cognizable in nature as per Section 27. In fact, Section 28 specifies that no court shall take cognizance of any offence except on a complaint filed by the AA or such other officer duly authorized by the AA or the appropriate Government. As already indicated herein before, the ground of challenge is that the prosecutions have been initiated at the instance of the CDMO/ADMO/EM other than the AA which needs a threadbare discussion with reference to the provisions of the PC&PNDT Act.

7. Turning to the PC&PNDT Act and its provisions, Section 28 begins with a non-obstante clause and goes on to say that cognizance of the offences has to be based on a complaint by the AA or authorized officer. On a conjoint reading of Section 17(3)(a)(b) and Section 28(1)(a) of the PC&PNDT Act makes it is profoundly clear that a complaint is to be filed by the AA or any such officer, who has been so authorized. It is submitted at the Bar that in view of the above provisions, it has to be the AA to file the complaint in view of the OM dated 27th July, 2007 which allows him to do so besides to nominate an EM for monitoring the implementation of the provisions of the PC&PNDT Act. It is contended on behalf of the petitioners that a procedure is prescribed under the PC&PNDT Act which is to be scrupulously followed without any departure. In this regard, a judgment of the Supreme Court in the case of Dipak Babaria and another Vrs. State of Gujarat and another reported in (2014) 3 SCC 502 is relied upon to contend that when a statute provides for a thing to be done in a particular manner, it has to be accomplished in that manner only. The contention is that if a statute confers a power and lays down a procedure for exercise of such power, it has to be exercised in the manner so prescribed and in the present case, since the complaints have been filed not by the AAs but by other officials, the learned courts below should not have entertained it. In support of such contention, a judgment of the Bombay High Court in the case of Dr. Paayal Vrs. State of Maharastra and others (Criminal Writ Petition No.250 of 2015) disposed of on 16th October, 2015 is cited, wherein, it is held that when the complaint has not been filed by the AA as per the PC&PNDT Act, the court cannot take cognizance of the offence in view of Section 28 of the Act and in such eventuality, the proceeding shall have to be terminated while making a reference to Article 21 of the Constitution of India which mandates that a person shall not be deprived of his life or liberty except according to the procedure established by law. A decision of the M.P. High Court in the case of Mukesh Rathore Vrs. State of M.P. and another decided in MCC No.3154 of 2020 and disposed of on 26th June, 2020 is also placed reliance, wherein, it is held that AA as defined under the PC&PNDT Act shall have to initiate the action and no one else or by any such officer duly authorized by the Government or the AA. As to the exercise of authority by the AA and maintainability of the prosecution under the PC&PNDT Act, a decision of the Supreme Court in the case of M.P. Vrs. Manvinder Singh Gill decided in SLP (Criminal No.2226 of 2014) dated 3rd August, 2015 is also referred to while contending that the Court shall have to take cognizance according to the provisions of the PC&PNDT Act and in the manner prescribed and not otherwise. In the said case, the challenge was to the notification of the State Government to delegate powers to initiate prosecution for offences under the Prevention of Food Adulteration Act, 1954. Herein essentially the contention is that the prosecutions have not been set in motion through complaints filed by the AAs and therefore, they are to be terminated since it touches upon and hits the jurisdiction to entertain the same. The argument is that only if the complaint is a valid one and as per the PC&PNDT Act, only then, it can be maintained by a court and not otherwise.

11. As per Section 17(4)(e) of the PC&PNDT Act, the AA shall have the authority to take appropriate legal action against the use of any sex selection technique by any person at any place either suo motu or being brought to notice and also to initiate independent investigation in such matters. So it is the AA who is to initiate the prosecution after taking up investigation. In other words, the AA is to file the complaint only upon which the court shall take cognizance of the offences. Section 28 (1) of the PC&PNDT Act clearly mandates that a court shall not take cognizance of any offence except on a complaint being filed by the AA or by any officer authorized by him or the appropriate Government. Whether the AA can delegate the power to any other officer for filing of a complaint? The reply to the above question is not in the affirmative. The PC&PNDT Act does not provide any such authority for the AA to delegate the responsibility. However, the AA can authorize an officer for the aforesaid purpose which is evident from Section 28(1)(a) of the Act. In so far as the OM of the State Government dated 27th July, 2007 is concerned, the AA may nominate an EM of the district as his nominee to assist him in monitoring implementation of the PC&PNDT Act. The petitioners contend that for a limited purpose, an EM is nominated so as to render assistance to the AA, who is primarily responsible for the execution and overall implementation of the provisions of the PC&PNDT Act. In other words, according to the petitioners, an EM if nominated by the AA shall be responsible for offering his assistance and therefore, cannot and shall not be eligible to register a complaint which has to be done by the AA only. In the decision of Mamata Sahoo (supra), the Apex Court held that when an EM inspected a clinic, the proceeding has not been vitiated as he was authorized for the said purpose. The above decision has been relied upon by the learned AGA while contending that the filing of the complaints by the CDMO/ADMO/EM since a part of the implementation process notwithstanding the fact that the DMs have not filed such complaints, in view of the said authority of the Apex Court, the proceedings cannot be held as bad in law. But the PC&PNDT Act is very clear which speaks of the manner in which the complaints are to be filed and it must have to be by the AA which is conspicuously evident from Section 28(1) of the said Act. If the CDMO of a district files a complaint, he cannot file it not being the authority under the PC&PNDT Act. In some of the cases, it has been found that instead of a complaint being filed, FIR has been registered. For taking of cognizance of offences punishable under the PC&PNDT Act, no doubt an investigation may be undertaken by the police but for initiating a criminal prosecution, it shall have to be through a complaint filed by the AA. From the aforesaid discussion, the conclusion which is drawn by the Court stands summarized herein below:

(iv) CRLMC No.904 of 2013: In the present case, the EM has initiated the prosecution under Sections 23 and 25 of the PC&PNDT Act by filling the complaint and therefore, the same is legally untenable.

13. The conclusion in respect of CRLMC No.4249 of 2009 and CRLMC No.682 of 2017 is in agreement with an earlier decision of this Court in CRLMC No.2082 of 2010 in case of Ramesh Chandra Naik and others Vrs. State of Odisha decided and disposed of on 3rd April, 2018, wherein, it has been concluded that Section 27 of the PC&PNDT Act stipulates that every offence under the said Act being cognizable and Section 154 Cr.P.C. since provides that every information relating to the commission of cognizable offence has to be registered as an FIR and as per Section 156 Cr.P.C. when an OIC of the P.S. can investigate any cognizable case committed within its local jurisdiction even without the orders of a Magistrate, however, in view of the special provision in the PC&PNDT Act, lodging of an FIR and submission of chargesheet for such offences is impermissible as any such cognizance shall have to be based on a complaint moved by the authority empowered to do so. Hence, therefore, in both the cases since the cognizance of the offences under Sections 23 and 25 of the PC&PNDT Act has been taken on the basis of chargesheets and not on the strength of complaints as envisaged in Section 28 of the PC&PNDT Act, the Court has therefore held that the impugned proceedings cannot stand and shall have to be terminated. In the said decision, the concerned authority was granted the liberty to file complaint before the appropriate court. However, in the present case, the Court does not wish and is not inclined since no real and worthy purpose would be served by granting such liberty after so long. With regard to the challenge as to the constitution of the AA by the State Government as per the OM not to be consistent with Section 17(3) of the PC&PNDT Act, it has remained so and survived till now and though raised by the learned counsel appearing for some of the parties but the Court is of the view that said question should be left open for determination in such other proceedings at appropriate point of time.