Delhi High Court: In a case wherein a petition was filed under Section 482 of Criminal Procedure Code, 1973 (“CrPC”) for quashing of FIR registered for offences punishable under Sections 3-A, 4, 5, 6, 23, 29 of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (‘PC&PNDT Act’) and all proceedings emanating therefrom, a Single Judge Bench of Swarana Kanta Sharma, J.* held that cognizance taken by the Trial Court in absence of any complaint filed by Appropriate Authority under Section 28 of PC&PNDT Act, was bad in law, and thus, the Court set aside the order of the Trial Court. Further, the Court held that no grounds for quashing of FIR were made out since registration of FIR upon a complaint lodged by Appropriate Authority or any person authorized on its behalf disclosing cognizable offence, conduct of investigation and filing of chargesheet was not barred under the PC&PNDT Act.
Background
The District Appropriate Authority, PC&PNDT, Rohtak received an information regarding illegal sex determination of foetus being carried out at Jeewan Hospital, New Delhi and thus, the authorities concerned were accordingly informed. A joint raiding team was constituted for carrying out the raid and two decoy patients, namely Monika and Dr. Vijay Kumar had been sent to meet ‘X’, who was involved in a racket of carrying out illegal sex determination. ‘X’ instructed Vijay to get himself registered for the Ultrasound Sonography Test (“USG”) in some other name on the pretext of meeting the doctor for abdominal pain. ‘X’ took Monika instead of Vijay for the USG Test to Dr. Manoj Krishna Ahuja (the petitioner). The petitioner had allegedly conducted the test upon Monika and disclosed that the sex of the foetus was female. Thereafter, the joint raiding team conducted the raid, in which, three USG machines were also seized along with other relevant articles. The petitioner along with two other doctors, received suspension order-cum-show cause notice whereby, by virtue of powers under Section 20(2) of PC&PNDT Act, the registration of Jeewan Hospital was suspended. Pursuant to the investigation, a chargesheet was filed by the prosecution against the accused persons for commission of offences under Sections 3-A, 4, 5, 6, 23 and 29 of PC&PNDT Act. The Metropolitan Magistrate, Saket Court, took cognizance of the chargesheet and proceeded to summon the petitioner to appear before it. The petitioner was aggrieved by the registration of FIR and cognizance being taken by the Trial Court on the chargesheet, therefore, he filed the present petition to seek quashing of the said FIR.
Analysis, Law, and Decision
The following issues were before this Court for consideration:
1. Whether the Trial Court could take cognizance of an offence as per Section 28 of PC&PNDT Act based on the chargesheet filed by the police?
The Court noted that as per Section 28 of PC&PNDT Act, the Court of Metropolitan Magistrate/Judicial Magistrate of first class was competent to take cognizance and try offences punishable under PC&PNDT Act. The Court further observed that either a complaint could be initiated by Appropriate Authority, or even the Central Government and State Government could authorize an officer other than the Appropriate Authority contemplated under this Act to file a complaint on which cognizance could be taken by the Court concerned. The Appropriate Authority might also delegate its power to someone to file a complaint on its behalf. Further, any person, other than these authorities or officers, could also initiate a complaint, but only in terms of Section 28(1)(b) of PC&PNDT Act. Thus, the Court observed that the manner in which cognizance was taken by the Trial Court upon a chargesheet was not the procedure envisaged under PC&PNDT Act. The Court stated that in the present case, the complaint had to be filed by the Appropriate Authority before the Trial Court as a complaint under Section 200 of CrPC. Further, the Court opined that since the cognizance had been taken on the chargesheet filed under Section 173 of CrPC, it was clearly barred under Section 28 of PC&PNDT Act, which barred cognizance except upon receipt of complaint in the manner provided therein. It was also a sine qua non for taking cognizance that the said Appropriate Authority or the person so authorized should be validly appointed. However, the Court opined that technically, though the police had been authorized to prosecute the offenders, the same did not absolve the Appropriate Authority of their duty to file a complaint which was mandatory under Section 28 of PC&PNDT Act. The Appropriate Authority, however, had filed a complaint in the Court and therefore, the cognizance in absence of complaint of the Appropriate Authority was barred in law.
2. Whether police investigation was permissible under PC&PNDT Act?
The Court observed that as per Section 27 of PC&PNDT Act, the offences were classified as ‘cognizable’ offences without an exclusion clause barring the role of police and the phrase ‘as far as possible’ included in Rule 18-A(3) of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (“PC&PNDT Rules”) indicated that the role or assistance of police was not barred under the Act. The Court further noted that Section 28 of PC&PNDT Act only barred taking of cognizance by the Court and did not bar registration of FIR or investigation by police based on a complaint lodged with the police. The Court noted that all the formalities contemplated under the Act were initially performed by the Appropriate Authority and only thereafter, the assistance of police was sought for the purpose of effectuating the arrest of accused persons. The initial investigation as per the Act was carried out by the Appropriate Authority and they had sought assistance from the police for further investigation. The Court also noted that since the Act did not bar the involvement of the police entirely and the Appropriate Authority could take assistance from the police, the assistance of the police in the present case was thereby taken. The Court, therefore, opined that taking police assistance could not be a ground for quashing the FIR.
The Court relied on Rasila S. Mehta v. Custodian, Nariman Bhavan, Mumbai, (2011) 6 SCC 220 wherein the Supreme Court held that “it was incumbent upon the Courts to interpret the statute in a way that it protected and advanced the purpose of enactment, and to not adopt any technical or restricted interpretation of the provisions which would negate the legislative intent and policy”. Therefore, the Court opined that though it was not specifically provided in PC&PNDT Act that the Appropriate Authority could get an FIR registered after their preliminary inquiry, search, seizure etc. or on a complaint received by them, the purpose of law could not be defeated by quashing of FIR where investigation revealed commission of a cognizable offence under PC&PNDT Act, only due to lack of clarity in this regard in PC&PNDT Act. Therefore, when Appropriate Authority, as per mandate of PC&PNDT Act, informed the police about commission of offence under PC&PNDT Act, the police was duty bound, and it was mandatory for the police to register an FIR if commission of cognizable offence was made out.
3. Quashing of FIR in a case under PC&PNDT Act
The Court relied on State of Haryana v. Bhajan Lal, 1992 SCC (Cri) 426 and Neeharika Infrastructure v. State of Maharashtra, 2021 SCC OnLine SC 315, wherein the Supreme Court had summarized the relevant principles that governed the law on quashing of an FIR under Section 482 of CrPC. Thus, the Court opined that the plea of petitioner for quashing of FIR was not covered under the said principles as material regarding commission of the offence had been collected and filed in the form of chargesheet before the Trial Court and was also before this Court. The Court again relied on Rasila S. Mehta case (supra) wherein it was held that “the purpose of law was 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”.
Thus, the Court opined that hyper technical grounds could not become the basis of quashing of chargesheets or FIRs, especially when offences under PC&PNDT Act were cognizable in nature.
The Court made the following observations in relation to PC&PNDT Act:
The Court stated that the purpose behind enactment of PC&PNDT Act was to protect a female child from violence even before she entered the world and the need for a safe womb for a female foetus was another issue which was sought to be addressed by PC&PNDT Act.
The Court observed that due to lack of information and awareness among the masses and the Authorities concerned under PC&PNDT Act, a situation often arises as to how the complaints were to be lodged and processed under PC&PNDT Act. Thus, the Court stated that for a common man, a complaint for commission of any offence could be lodged with the police. Therefore, even in a case of information regarding sex determination test, the police was often approached as first authority for initiation of action against persons committing offence in contravention of provisions of PC&PNDT Act. But the Court stated that the police was not the first authority competent to initiate action under PC&PNDT Act. However, if FIR was lodged at the instance of Appropriate Authority or any authorized person, and on its basis if either cognizance was taken or refused by the Magistrate, the parties could approach the High Court for redressal of their grievance.
Further, the Court stated that as per ‘Standard Operating Guidelines for District Appropriate Authorities, 2016’, a woman who was 14-22 weeks pregnant could be used as a decoy customer/patient for the purpose of conducting a raid. However, the consent of her husband, mother or mother-in-law was essential for the same even if she was a major. Moreover, they should also be explained the process and counselled in a language they understand. The Court further stated that though 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 needed to be re-considered since this procedure had to be as per CrPC for conducting raids at facilities/clinics which were running in contravention of the provisions of PC&PNDT Act. Moreover, while the powers of investigation, search, seizure, raid, cancellation, or suspension of registration of medical centres and facilities had been given to Appropriate Authority, the offences under PC&PNDT Act had been made ‘cognizable’ without vesting the power of arrest in the Appropriate Authorities. But as per CrPC, in case of commission of a cognizable offence, the accused could be arrested without a warrant by the police. Therefore, this aspect of PC&PNDT Act remained ambiguous.
The Court also observed that women who decided to have an abortion or rather were forced to undergo abortion by family pressure, choose to have abortion at private clinics where they use unsafe and unhygienic practices. Moreover, poor, and rural women lack access to safe and hygienic abortion services and there were instances that since they could not get the abortion done at government hospitals, either they adopted unsafe means at home or at unsafe private clinics.
Further, the Court stated that the offences under PC&PNDT Act, which were proposed to be curbed, gave rise to dual violence, that is, against the unborn female child and against the mother by putting her into health danger by forcing them to undergo abortions. The Court observed that it was aware of the conflict that plagued women who were torn between societal and familial pressure to bear sons and the emotional stress and moral uncertainty they experienced for not bearing a male child.Sex-determination based abortion was a powerful method of perpetuating gender inequalities. The restriction of access to foetal sex information was related to the problem of misogyny, which affected women of all socio-economic backgrounds not only in this country but globally as well. The purpose of controlling knowledge of sex or gender was to protect expectant women and their unborn child. Given this history and context, it is imperative that PC&PNDT Act be implemented with greater care and utilized by those affected.
The Court, to ensure that the object of PC&PNDT Act was achieved, issued the following directions:
1. The contents of this judgment and the observations made herein to be brought to the notice of (i) Ministry of Law and Justice, Government of India, (ii) Ministry of Health and Family Welfare, Government of India, (iii) Department of Health and Family Welfare, Govt. (NCT of Delhi).
2. The contents of PC&PNDT Act and PC&PNDT Rules to be brought to the notice of District Appropriate Authorities, Investigation Officers, and Prosecutors regarding specific mandatory provisions of Section 28 of PC&PNDT Act and as to what procedure was to be adopted in ensuring the complaint filed under PC&PNDT Act. Moreover, training and sensitization programmes could be organized for the officials who were concerned with the implementation of PC&PNDT Act.
3. The details of District Appropriate Authorities were not readily available or known to a common layman and it was also not clear as to whether such Appropriate Authorities had an office or a website where a complaint could be lodged or whether a person had to go to their office personally or not. Therefore, it would be appropriate if online portals and websites were created for this purpose, if not yet done, to notify and inform the public about the procedure, place, and mechanism to lodge such a complaint.
The Court lastly, held that cognizance taken by the Trial Court in absence of any complaint filed by Appropriate Authority under Section 28 of PC&PNDT Act, was bad in law, and thus, the order of the Trial Court was set aside. However, no grounds for quashing of FIR were made out since registration of FIR upon a complaint lodged by Appropriate Authority or any person authorized on its behalf disclosing cognizable offence, conduct of investigation and filing of chargesheet was not barred under the PC&PNDT Act.
[Manoj Krishan Ahuja v. State (NCT of Delhi), 2023 SCC OnLine Del 2303, decided on 24-4-2023]
Advocates who appeared in this case:
For the Petitioner: Govardhan, Senior Advocate and Jyotsna Bhuchar, Anmol Singh, Advocates;
For the Respondents: Manoj Pant, APP.
*Judgment authored by: Justice Swarana Kanta Sharma