Read Order: Dr. Anant Ram v. State of Haryana

LE Correspondent

Chandigarh, April 8, 2022: While dealing with a case involving the illegal practice of sex determination of an unborn child, the Punjab and Haryana High Court has held that the offences under the Pre-Conception and Pre Natal-Diagnostic Techniques Act, 1994 (PNDT Act) are classified as ‘cognizable’ offences and thus in the absence of an exclusion clause or imposition of any limitation as regards the class of officers who are made competent to investigate under the PNDT Act, the local police cannot be said to be not competent to investigate cognizable offences under PNDT Act. 

“The offences being cognizable and there being no absolute bar against arrest or investigation by a police officer, a police officer upon getting information regarding commission of a cognizable offence under PNDT Act, can not be expected to shut his eyes to the same. It is only under section 28 of the PNDT Act that a bar is provided against taking cognizance by Courts of offences under the Act”, held the Bench of Justice Gurvinder Singh Gill Court. 

In this case, upon receipt of information about the involvement of Jagraj Singh and Jaswinder Kaur (resident of District Fatehabad) in the practice of illegal sex determination, the Civil Surgeon, Fatehabad constituted a PNDT Team and prepared a plan of apprehending the accused on the spot with the help of a decoy pregnant woman. 

The two accused were caught red-handed receiving Rs. 40,000/- in total (Rs. 20,000/- each). The accused were apprehended on the spot; a DVR in respect of CCTV cameras installed on the premises was also taken; an ultrasound machine was also recovered from the spot. An FIR at the instance of Dr Prabhu Dayal, Nodal Officer, PNDT, Civil Hospital, Hisar was lodged under the PNDT Act and under Sections 120-B/34 of IPC

The involvement of the present petitioner (Dr Anant Ram) was proved from the CCTV footage and from the fact that the ultrasound machine recovered was purchased and registered in his name. Also, the two accused (named above) disclosed in their statements after being arrested that the test for sex determination of the unborn child was conducted by the petitioner. In order to seek quashing of the FIR, the petitioner approached the High Court. 

The Counsel for the petitioner firstly argued that the total consideration of Rs. 40,000/- was shared between Jagraj and Jaswinder and the petitioner did not benefit from it, thus his involvement, in this case, was ruled out. Negating this argument, the Court observed that the petitioner’s involvement was sufficiently proved by the CCTV footage; the recovery of the Ultrasound machine from the spot (purchased and registered in the petitioner’s name), and the disclosure statements of the two accused. 

Secondly, to prove the petitioner’s non-involvement, the Counsel argued that the petitioner was neither arrested on the spot nor was the test conducted at his clinic nor the recovered machine can be said to belong to him. Again, negating this argument, the Court reiterated the above-stated facts which pointed towards the involvement of the petitioner. 

Thirdly, it was contended by the petitioner’s counsel that since the alleged act of illegal sex determination took place in Hissar, therefore the team appointed by Civil Surgeon Fatehabad did not have territorial jurisdiction. Finding no substance in this plea, the Court was of the view that in this case the offence partly took place in Fatehabad (the deal to carry out the test was entered here and the decoy was procured) and later when the accused with the decoy female was proceeding to Hisar, the PNDT team from Fatehabadinformed the Civil Surgeon,  Hisar who constituted a team and the same joined the Fatehabad team. 

Thus, it was held that the part of the proceedings conducted by the team constituted by Civil Surgeon, Fatehabad in respect of the FIR registered at Hisar cannot be called to question on grounds of territorial jurisdiction.

Fourthly, the Counsel argued that the complainant had no authority to get the FIR lodged. Denying to accept this submission, the Court stated that Police, in terms of Section 154 Cr.P.C., upon receiving information pertaining to the commission of a cognizable offence is bound to reduce the same in writing (i.e. the FIR) and that the bar as envisaged in Section 28 of the PNDT Act is a bar against taking cognizance by the Court and it cannot be extended to the proceedings pertaining to lodging of FIR, as any person can give information pertaining to the commission of a cognizable offence to the police.

Further, it was contended by the Counsel that as per section 17(4)(e) of the Act, it is solely the Appropriate Authority, which is authorized by virtue of sections 17A, 20 and 30 of the Act to carry out an investigation and the police has no role. 

In respect of this argument, the Court referred to provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956 [Sections 13, 14], PNDT Act [Sections 19, 45, 48] and  PMLA Act [Sections 17(3) and (4), 30] to see the investigation procedure of offences in three ‘special statutes’. 

From Section 45(1A) of the PMLA Act, it was observed there is some kind of exclusivity in the matter of arrest and investigation and it is only the ‘special police officers’ are made competent to arrest and investigate ruling out the involvement of police officers who are not nominated as ‘special police officers’. Further, from the perusal of Sections 17 and 30 of the PNDT Act, it was stated that Appropriate Authority is conferred with various powers in the matter of investigation. Though, the Court added that it is nowhere specifically stated therein as to whether the same would also include the power of arrest but the word “investigation” as defined in section 2(h) of Cr.P.C. has been interpreted to be wide enough so as to include arrest as well. 

Thus, from the above scrutiny of these ‘special statutes’, the Court concluded that there is no such provision in the PNDT Act to absolutely rule out the involvement of the police or to have restricted involvement, as has been noticed in the other two Acts. 

Further, it was held that the offences under the PNDT Act have been classified as ‘cognizable’ offences without there being any exclusion clause ruling out police investigation as is there under provisions of section 45(1A) of PMLA and without there being any kind of rider defining a particular class of police officers only to be competent as is noticed in the proviso to Section 14(i) of Suppression of Immoral Traffic in Women and Girls Act, 1956. 

Accordingly, in the absence of an exclusion clause or imposition of any limitation as regards the class of officers who have been made competent, the Court held that the local police can not be said to be not competent to investigate cognizable offences under PNDT Act. Also, the Court pointed out that Rule 18(A) of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 tends to point out that involvement of the police is not absolutely ruled out though, police normally are not expected to be associated. 

It was the Court’s assertion that the stage of cognizance by the Court would come only upon the conclusion of the investigation and that taking cognizance is a function of the Court whereas investigation is the domain of the police/investigating agency. 

Coming to the present case, the Court opined that the police after conducting an investigation presented a challan in respect of the offences under IPC i.e. offence under Section 120-B of IPC against Jagraj Singh, Jaswinder Kaur and Manisha while the same was yet to be filed against the other accused. 

It is to be noted that the State categorically mentioned before the Court that the District Appropriate Authority under PNDT Act was filing a complaint/kalandra separately against the accused under PNDT Act. As a sequel to the aforesaid discussion, the Court did not find any infirmity in the procedure as regards lodging of FIR or the investigation conducted thereafter. 

“As such, it cannot be said that there has been any violation of Section 28 of the PNDT Act”, held Justice Gill

Thus, finding no ground for quashing the FIR or for setting aside the proceedings conducted pursuant to the lodging of the FIR, the present quashing plea was dismissed by the Court.

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