In CRM-M-14160-2016(O&M)-PUNJ HC- If accused has been summoned in criminal complaint and is also facing proceeding based on FIR, then Magistrate should inquire into or try cases together as if both cases were instituted on Police report: P&H HC Justice Jasjit Singh Bedi [18-04-2022]

Read Order: Ila Sood v. State Of Punjab

Monika Rahar

Chandigarh, April 23, 2022: While dealing with a quashing plea in a case pertaining to the PNDT Act, 1994, the Punjab and Haryana High Court has held that since in the present case the accused was summoned in a criminal complaint and was also facing proceedings initiated on the basis of an FIR, resort can be had to the provisions of Section 210 Cr.P.C. and the trial Court shall inquire into or try together the complaint case and the case arising out of a police report as if both the cases were instituted on a Police report. 

The Bench of Justice Jasjit Singh Bedi held, “ (…) an FIR [in PNDT Act, 1994 cases] is certainly maintainable but for the purposes of taking of cognizance, the report under Section 173 Cr.P.C. should be accompanied with the complaint of an Appropriate Authority. It is the trial Court that shall decide as to whether cognizance is to be taken in a particular case on the basis of the Police report accompanied with the appropriate complaint.”

The present petition was filed under Section 482 Cr.P.C. for quashing of an FIR registered under Sections 3-A, 5, 6 and 23 of PNDT Act, 1994 and Rule 9(4) & 9 (1) of PC PNDT Rules, 1996 and Sections 120-B IPC at Police Station City Khanna, District Ludhiana. 

The brief facts of the case are that the petitioner was running a hospital in the name and style of Jeevan Eye & Maternity Hospital at City Khanna, District Ludhiana along with Dr. Jagjivan Sood. The hospital was registered under the PC & PNDT Act, 1994 and the registration was being renewed periodically from time to time. 

The District Appropriate Authority, Ambala-cum-Civil Surgeon received a secret information from some source that the sex determination of pregnant ladies was being done by one Smt. Meenakshi (Asha Worker) in connivance with other touts of District Patiala by charging a sum of Rs. 25,000/-. The DDA, Ambala asked one Dharamveer Sharma who was working as an Adolescent Health Worker at CHC, Chaurmastpur (Ambala) to contact Smt. Meenakshi for getting the sex of a foetus determined. 

The prosecution case was that Smt. Meenakshi agreed and asked the said Dharamveer Sharma to come along with the pregnant lady. Smt. Sonia who was allegedly six months pregnant and was working against the post of a Ward Servant in Government Hospital, Ambala City was persuaded to be the decoy customer. The petitioner subjected the decoy customer to ultrasonography of sex determination without entering her name in the PC & PNDT Register and without filling the F-form. It was further alleged that the petitioner disclosed the sex of the foetus to Smt. Meenakshi who further conveyed the same to Dharamveer Sharma in the presence of the decoy customer. 

Subsequently, certain sums of money were recovered from Smt. Meenakshi and Kawaljeet Singh. The petitioner was arrested and her ultrasound machine was seized. The present FIR was registered and ultimately, the petitioner was granted the concession of regular bail. 

The petitioner raised a number of disputed questions of fact regarding the search and seizure and how she had actually not conducted the ultrasound on the decoy customer. It was contended by the Counsel for the petition that in terms of Section 28 of the PC & PNDT Act, no Court could take cognizance of an offence under this Act except on a complaint made by the Appropriate Authority concerned. It was contended that the said complaint was already filed and therefore, the present FIR was not maintainable. 

It was argued that under the provisions of PC & PNDT Act, 1994 offences were to be investigated/inquired into by the Appropriate Authority concerned as per the mandate of Section 28 of PC & PNDT Act. A reference was made to Sections 17, 17-A and 30 read with Rules 11, 12, 18, 18-A of the PC & PNDT Rules, 1996 to contend that an offence under this Act was to be investigated into by the District Appropriate Authority as the PC & PNDT Act, 1994 was a Code in itself. References were also made to various judgments of this Court, wherein, it was held that an FIR under the provisions of the PC & PNDT Act, 1994 was not maintainable.

On the argument of the petitioner that an FIR is not maintainable as the Court could take cognizance under the Act only on a complaint of the Appropriate Authority, the Court opined that the provisions of Section 28 of the Act envisaged that no Court is to take cognizance of an offence under the Act except on a complaint made by the persons enumerated in clause (a) thereof. Besides, the Court noted that clause (b) envisages that a complaint may also be made by a person who has given notice of not less than 15 days in the manner prescribed to the Appropriate Authority of the alleged offence and has an intention to make a complaint to the Court. 

Further, the Court noted that the apparent dichotomy between Sections 27 and 28 of the PC & PNDT Act was set at rest by the Division Bench of the Court in Hardeep Singh & Another Vs. State of Haryana & Others.

From the perusal of this decision, the Court observed that an FIR is certainly maintainable but for the purposes of taking of cognizance, the report under Section 173 Cr.P.C. should be accompanied by the complaint of an Appropriate Authority. Additionally, the Court held that it is the trial Court that shall decide as to whether cognizance is to be taken in a particular case on the basis of the Police report accompanied with the appropriate complaint.

In the present case, the Court observed that undoubtedly, the petitioners were also summoned in a private complaint preferred by the Appropriate Authority and in fact a quashing petition was pending adjudication before the High Court. Thus, the Court held that in the present situation where an accused was summoned in a criminal complaint and was also facing proceedings initiated on the basis of an FIR, resort can be had to the provisions of Section 210 Cr.P.C. which provides that if there is a complaint case and a police investigation in respect of the same offence then the Magistrate concerned shall inquire into or try together the complaint case and the case arising out of a police report as if both the cases have instituted on a Police report.
Thus, in view of the above discussion, the Court opined that the FIR was maintainable under the provisions of the PC & PNDT Act, 1994 and even otherwise, the petitioner had the remedy of seeking clubbing of both the cases in terms of Section 210 Cr.P.C, in which case the trial shall proceed like in a State case. Hence, the Petition was dismissed.