The Allahabad High Court has ruled that police authorities cannot file First Information Reports (FIRs) or investigate cases under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act).

The Single-Bench of Justice Anish Kumar Gupta held that the PCPNDT Act is a special law that provides for its own investigative framework, allowing only the "appropriate authority" designated under the Act to handle complaints, conduct investigations, and initiate legal proceedings.

"In view of the aforesaid provisions, specifically provided in the Rule 18A and Section 28 and 30 of the PC & PNDT Act, on receipt of any complaint for violation under the PC & PNDT Act, it is only the Appropriate Authority authorized under Section 28, that can investigate the matter. The police investigation has been specifically barred. It is, however, when any obstruction is created by such violators, which cannot be handled without the involvement of the police, only for that purpose, for the assistance of the Appropriate Authority, the police can be associated with the investigation but in all cases the investigation has to be done by the Appropriate Authorities as prescribed under Section 17 and Section 28 of the PC & PNDT Act and Rule 18A of the PC & PNDT Rules," the Court said in its order dated September 30.

The Court clarified that the police are debarred from involvement in such cases due to their technical nature. Consequently, the provisions of the Code of Criminal Procedure (CrPC) are not applicable to violations under the PCPNDT Act, which is governed solely by its specific provisions.

"The registration of an FIR for violations of the PCPNDT Act is impermissible, and no investigation by the police is allowed for offenses under the Act," the Court stated. It further explained that while police may assist if necessary, the investigation must be conducted by the appropriate authority under Sections 17, 28, and Rule 18A of the PCPNDT Act and Rules.

The Court made the observations while dealing with a plea by a doctor seeking to quash a criminal case registered against him by the state police in 2017 for allegedly performing illegal prenatal sex determination. The FIR had been lodged by a Tehsildar following a search at the doctor's hospital, acting under the District Magistrate’s authorization.

The doctor contended that only the "appropriate authority" could initiate complaint proceedings under Section 28 of the PCPNDT Act, and that the FIR was illegal.

On the contrary, the State argued that the FIR and police investigation were valid, as the Tehsildar was authorized to act by the District Magistrate.

The Court, however, rejected this argument, ruling that only complaint cases could be filed under the Act, and no FIRs. It also emphasized that Magistrates could not take cognizance of offenses under the PCPNDT Act based on police reports, but only on complaints filed by authorized persons.

"...in the instant case the person authorized by the appropriate authority after conducting the illegal raid has lodged the F.I.R. and thereupon, the charge-sheet was filed by the police on which the cognizance has been taken by the Additional Chief Judicial Magistrate, Bulandshahr, vide order dated 02.01.2018 for the offence under Sections 315 and 511 I.P.C. and under Section 4/5(2)6(a)/23/25 of the PC & PNDT Act, is an impermissible exercise in view of the findings recorded by this Court hereinabove. Therefore, the cognizance order as well as the F.I.R. and the charge-sheet deserve to be quashed, as the Magistrate is incompetent to take cognizance of such charge-sheet/police report, specifically, for the offence under the provisions of PC & PNDT Act. Therefore, in the considered opinion of this Court the entire proceedings of the instant case is vitiated and deserve to be quashed and are hereby quashed. The instant application is allowed accordingly," the Court said.

Further, noting that there are divergent views of the different High Courts, on the PCPNDT Act, the Court putforth the following questions which are required to be settled by the Apex Court:

(A) Whether, for the offences under the PC& PNDT Act, the registration of FIR at the police station is permissible, merely because the offences under PC & PNDT Act have been made cognizable and non-bailable?

(B) Whether the police investigation is permissible for the offences under the PC & PNDT Act? AND Who can investigate the complaints, received for violation of the provisions of the PC& PNDT Act?

(C) Whether on the charge sheet submitted after the investigation by the police, the competent magistrate can take cognizance of the offence under the PC & PNDT Act?

"...in the considered opinion of this Court, it is necessary that above questions be authoritatively settled by the Apex Court. In view thereof, it is certified that it is a fit case for appeal to be filed before the Apex Court under Article 134(1)(c) read with Article 134A of the Constitution of India with regard to the aforesaid questions for an authoritative pronouncement by the Apex Court," the Court added.

Cause Title: Dr. Brij Pal Singh v. State of Uttar Pradesh and Another [Neutral Citation No. 2024:AHC:159207]

Appearance:-

Applicant: Advocate Syed Mohammad Abbas Abdy

Respondent: Advocate Pankaj Srivastava (AGA)

Click here to read/download the Order


Justice Anish Kumar GuptaAllahabad High CourtPCPNDT Act

Sukriti Mishra