In CRL.M.C. 3566/2014-DEL HC- Clubbing of police report & complaint was not permissible u/s 210 of CrPC when cognizance could not have been taken u/s 28(1)(a) of PCPNDT Act: Delhi HC allows complaint case of NGO BetiBachao Samiti, sets aside Magistrate’s order
Justice Amit Sharma [19-12-2023]

Read Order: URAVASHI FAKAY AND ORS v. STATE OF NCT OF DELHI

Tulip Kanth

New Delhi, December 21, 2023: The Delhi High Court has opined that for the purposes of proceedings under Section 210 of the CrPC, so far as clubbing of police report and complaint is concerned, cognizance of an offence of a report u/s173 is mandatory. The High Court further clarified that the clubbing of the police report and the complaint under PCPNDT Act was not permissible when cognizance could not have been taken in view of the Sec.28(1)(a) of the said Act.

Briefly stated, the facts of the case were such that a non-government organization, i.e., respondent no.2/BetiBachao Samiti filed a complaint dated 07.07.2010 before the Deputy Commissionerunder the provisions of Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994(Act) and Medical Termination of Pregnancy Act, 1971 against the present petitioners.

Thereafter, the aforesaid complaint was forwarded by the competent authority to the concerned police station and FIR was registered on 17.08.2010 against the present petitioners under Section 23 of the Act. However, no complaint under Section 28(1)(a) of the Act was filed by the competent authority. On the same date, i.e., 17.08.2010, respondent no. 2 also filed a complaint case, before the Metropolitan Magistrate and the same was fixed for pre-summoning evidence.

On conclusion of investigation in the aforesaid FIR a chargesheet and supplementary chargesheet were filed before the Court of competent jurisdiction. The CMM took cognizance on the said chargesheet and summoned the present petitioners.

The complaint case was pending at the stage of pre-summoning evidence and since the chargesheet was also pending in the same Court, the CMM took up the aforesaid chargesheet and the said complaint case simultaneously.An application under Section 210 of the CrPC was also filed on behalf of respondent no. 2 for clubbing the chargesheet and the complaint.

The CMM, while disposing of the said application passed an order clubbing the aforesaid chargesheet with the complaint case &also held that since the cognizance in the aforesaid complaint case was taken on 17.08.2010, petitioners would be treated as summoned vide order dated 11.01.2013 in the complaint case as well. Henceforth, the said complaint case would proceed as a 'Warrant Trial' under the Act.

The aforesaid order was challenged by the present petitioners by way of revision petitions which were dismissed by the Additional Sessions Judge vide the impugned order. Thus, the appellants approached the High Court in order to call the records of the matter & quashing the impugned order.

It was the case of the appellant that mandatory notice under Section 28(1)(b) of the Act was not given and therefore, the entire proceeding was vitiated.It was also urged that cognizance can be taken only on the basis of the complaint as mandatory under Section 28(l)(b) and the Complaint of respondent no. 2 was not maintainable as the appropriate authority had already initiated action.

Referring to section 28 of the Act, the single-judge Bench of Justice Amit Sharma held that a complaint with respect to the Act can be filed by a competent authority concerned or any officer authorized in this behalf by the Central or the State Government or as the case may by the appropriate authority.A complaint can also be filed by a person which would include a social organization by giving notice of not less than 15 days in the manner 'prescribed' to the appropriate authority of the alleged offence, his intention to make a complaint to the Court.

As per the Bench, the investigation and the material collected during the same couldnot be faulted with.

One of the main issues before the Bench was if the cognizance in the chargesheet/police report was bad in law, then whether the said chargesheet/police report could be clubbed with the complaint filed on behalf of respondent no. 2 under Section 210 or Section 202 of the CrPC.

The Bench resolved this issue by stating, “…for the purposes of proceedings under Section 210 of the CrPC, so far as clubbing of police report and complaint is concerned, cognizance of an offence of a report under Section 173 of the CrPC is mandatory. Section 210(2) of the CrPC clearly stipulates that the Magistrate shall try together the complaint case and the case arising out of the police report only if the cognizance had been taken by the learned Magistrate on such report. In the present case as pointed out hereinabove, the cognizance could not have been taken in view of the Section 28(1)(a) of the PCPNDT Act and, in absence of any cognizance the clubbing of the police report and the complaint is not permissible under Section 210 of the CrPC.”

Noting that the provisions of Section 202 of the CrPC clearly applies to a complaint case and the police report filed in the present case was not in pursuance to an order passed under Section 202 in the complaint case filed on behalf of respondent no. 2, the Bench said, “…provision of clubbing a police report and complaint has been provided for under Section 210 of CrPC and not under Section 202 of the CrPC. The learned ASJ and the learned CMM erred in law by clubbing the police report and complaint case under the provision of Section 202 of the CrPC.”

Considering the fact that the complaint of respondent no. 2 apart from making a complaint with regard to the incident also stated that the said complaint should be taken as their intent to take appropriate action in accordance with provisions of law, the Bench held that the same would come within the meaning of Section 28(1)(b) of the Act inasmuch as after making a complaint and expressing the intention, the complaint under Section 200 of the CrPC was filed after 15 days of the complaint dated 07.07.2010 before the competent authority.

It was noted that the competent authority sent the complaint dated 07.07.2010 for registration of an FIR but no complaint under Section 28(1)(a) of the Act was filed. Aforesaid registration of FIR couldn’t be treated as action taken within the meaning of Section 28, the Bench held.

It was also opined by the Bench that the order taking cognizance and summoning by the CMM in the chargesheet was not in accordance with Section 28(1)(a) and therefore, the applicability of the same to the complaint case filed on behalf of respondent no. 2 was not sustainable. Even otherwise such a procedure adopted by the CMM was beyond the scope of CrPC.

Thus, the Bench set aside the Order passed by the CMM taking cognizance in FIR under Section 23 of the Pre-Conception and Pre- Natal Diagnostic Techniques Act and discharged the petitioners in the said case. The Bench allowed the Complaint case instituted at the instance of respondent no. 2 filed under Section 28(1)(b) of the Act toproceed in accordance with law.