TaxTMI 
TaxTMI 
2026 (3) TMI 1439
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....minal Procedure, 1973 (briefly 'the Cr. P.C.' hereinafter) for quashing of the complaint bearing No. COMA/116/2018 dated 19.09.2018 filed under various provisions of the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (briefly, 'the PCPNDT Act' hereinafter) as well as the summoning order dated 12.09.2022 passed by the Judicial Magistrate First Class, Gurugram. However, vide the impugned judgment and order dated 24.07.2024, the High Court dismissed the aforesaid petition. 4. At the outset, a brief recital of the relevant facts would be in order. 5. It is stated that appellant is a qualified radiologist by profession. 5.1. On 17.09.2015, Chairman, District Appropriate Authority-cum-Civil Surgeon, Gurugram, Dr. Pushpa Bishnoi received a complaint from a lady named Smt. Rajni to the effect that she knew a person called Dr. Abdul Kadir of Geetanjali Hospital in Badshahpur who was allegedly running a racket of illegal sex-determination. On receipt of such a complaint, the Chairman constituted a three- member team alongwith support staff to conduct a raid and investigate the complaint against the said Dr. Abdul Kadir. ....
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....gn any document. He also did not sign the ultrasound report. 5.6. It was at this stage that the team members constituted by the Chairman alongwith other officials and police personnel confronted Dr. Abdul Kadir and recovered Rs. 25,000.00 from his right pocket. The numbers of these notes matched the numbers of the notes given by the team to the decoy patient. The team also confronted Dr. Naresh Garg and on checking all records found that Form F had not been signed by Dr. Naresh Garg. There was no entry of the name of the decoy patient Smt. Suman in any register maintained in the hospital. 6. Dr. Saryu Sharma gave first information to the police at the spot on the basis of which FIR No. 336 of 2015 dated 17.09.2015 was registered by the police of Police Station Sector 40, Gurugram. 6.1. On conclusion of investigation, police filed a discharge application dated 28.10.2015 before the trial court stating that there was no incriminating material against the appellant. By order of the same date i.e. 28.10.2015, trial court allowed the application filed by the police and discharged the appellant. 7. District Advisory Committee adopted resolution dated 17.12.2015 recommending l....
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....llant was summoned. 11.1. It is submitted that nothing has been recovered from the appellant. Witnesses had deposed both in the complaint proceedings as well as before the police that appellant did not disclose the sex of the foetus. On the other hand, an amount of Rs. 25,000.00 was recovered from Dr. Abdul Kadir. The only surviving allegation against the appellant is that he did not fill in the requisite forms and registers. 11.2. Referring to the order dated 17.09.2015 directing conduct of a sting operation, learned senior counsel submits that the said order was not a legally valid order in as much as the same was passed by a solitary member of the District Appropriate Authority. In this connection, reference has been made to a judgment of this Court reported in Ravinder Kumar Vs. State of Haryana [2024 SCC Online SC 2495] wherein it has been held that an order passed by a single member of the District Appropriate Authority directing conduct of a sting operation is illegal and void and renders the entire proceedings null and void. Learned senior counsel asserts that the order dated 17.09.2015 which led to the sting operation which further led to registration of FIR and lodg....
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....on the ground that police could not find any connection between the appellant and Dr. Abdul Kadir who is now facing prosecution in the criminal case arising out of the FIR registered under Section 420 of the Indian Penal Code, 1860 (IPC). 11.7. It was only after the discharge of the appellant that the complaint was filed. Learned senior counsel submits that the subsequent complaint is not maintainable in as much as the complaint is based on the same set of facts on which the appellant was earlier discharged. 11.8. Mr. Bhalla, learned senior counsel, submits that appellant was discharged because both the witnesses had denied that he had informed them about the sex of the foetus. That apart, one of the witnesses Smt. Rajni denied her presence at Vatika Hospital; rather, she stated that she was present at Medanta Hospital. That apart, respondents have failed to establish beyond a reasonable doubt any relationship between the parties. Further, it was the case of the respondents that appellant had allegedly committed the offence on the instructions of Dr. Abdul Kadir. However, no evidence was tendered to prove the relationship. 11.9. Learned senior counsel submits that the raid....
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....hine, documents, incomplete and deficient forms and entries, unregistered referrals and records that were prima-facie in violation of Rules 9 and 10 of the PCPNDT Rules. He then referred to the provisions of Rules 9 and 10. 12.2. An FIR was initially registered and based upon police investigation, appellant was discharged in that proceeding on 28.10.2015. 12.3. Asserting that PCPNDT Act confers independent powers upon the District Appropriate Authority to initiate proceedings upon examination of the records and statutory contravention, learned Additional Advocate General submits that the District Advisory Committee met on 17.12.2015 and examined the materials whereafter it recommended filing of complaint. The District Appropriate Authority authorized initiation of complaint proceedings by issuing a formal authorization to the Deputy Civil Surgeon under Rule 18A of the PCPNDT Rules on 17.09.2018. 12.4. Submitting that no case for interference by this Court in the complaint proceedings have been made out, learned Additional Advocate General submits that appellant has failed to establish that the complaint discloses no offence and that the prosecution is manifestly absurd or ....
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....the appellant is factually incorrect. The allegation that one Shyam Sunder was a member of the District Advisory Committee who also participated in the raid is factually incorrect. The said individual was not a member of any investigating agency. He was a civilian volunteer associated with the Red Cross assisting the district authorities in social welfare enforcements. He had neither any formal investigative powers nor was he part of the police machinery. Rule 18A(2)(ii) of the PCPNDT Rules applies only to persons from the investigating machinery meaning police or statutory enforcement bodies. Even assuming an irregularity in the composition of the District Advisory Committee, such irregularity cannot invalidate an entire prosecution based on a statutory complaint. The role of the District Advisory Committee is purely advisory; its views are not binding and the independent decision of the District Appropriate Authority to lodge complaint is unaffected. 12.8. Learned counsel for the respondents also refuted the submission made on behalf of the appellant regarding violation of Section 30(2) of the PCPNDT Act. He submits that there has been substantial compliance to Section 30(2) o....
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.... India. It, inter alia, aims to arrest the declining sex ratio in India. The objectives of the PCPNDT Act declare that the said Act provides for prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques to prevent their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. The PCPNDT Act, inter alia, provides for: (i) prohibition of the misuse of pre-natal diagnostic techniques for determination of the sex of the foetus, leading to female foeticide; (ii) prohibition of advertisement of pre-natal diagnostic techniques for detection or determination of sex; (iii) permission and regulation of the use of pre-natal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders; (iv) permitting the use of such techniques only under certain conditions by the registered institutions; and (v) punishment for violation of the provisions of the Act. 16. Preamble to the PCPNDT Act says that it is an Act to provide for the prohibition of sex selection, before or after conception, and for regulation o....
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.... sub-section (3). Section 4 being exhaustive, is extracted in its entirety hereunder: 4. Regulation of pre-natal diagnostic techniques .- On and from the commencement of this Act,- (1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3); (2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely :- (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) haemoglobinopathies; (iv) sex-linked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board; (3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely :- ....
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....aphy for the purpose of determining the sex of the foetus; and no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception. Infact, sex determination of a foetus is completely prohibited under Section 6, which reads thus: 6. Determination of sex prohibited .- On and from the commencement of this Act,- (a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus; (b) no person shall conduct or cause to be conducted any pre- natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus; (c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception. 24. 'Appropriate authority' and 'advisory committee' are dealt with in Section 17. Sub-section (1) says that the Central Government shall appoint, by notification in the official gazette, one or more appropriate authorities for each of the Union Territ....
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.... 24.2. From a close reading of sub-section (4), more particularly clause (e) thereof, it is evident that the appropriate authority has been mandated to take appropriate legal action against the use of any sex selection technique by any person at any place suo moto or brought to its notice and also to initiate an independent investigation in such matter. 25. Power of appropriate authority is dealt with in Section 17A. Amongst other things, the appropriate authority shall have the power to issue search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination. Section 17A reads as under: 17A. Powers of Appropriate Authorities .- The Appropriate Authority shall have the powers in respect of the following matters, namely :- (a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the Rules made thereunder; (b) production of any document or material object relating to clause (a); (c) issuing search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination; and (d) any other mat....
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....r by any other relative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of Section 4 (which permits such techniques only for the purposes of detection of certain abnormalities mentioned therein); such person shall be liable for abetment of the offence under sub-section (3) of Section 23 and shall be punished for the offence specified under Section 23. 28. Cognizance of offences is dealt with in Section 28 which reads as under: 28. Cognizance of offences .- (1) No court shall take cognizance of an offence under this Act except on a complaint made by- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. Explanation .- For the purpose of this clause, "person" includes a social organisation. (2) No court other than that of a Metropolitan....
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....ly to every search or seizure made under the PCPNDT Act, as far as may be. 30. Section 32 is the rule making provision. 31. In exercise of the powers conferred by Section 32 of the PCPNDT Act, the Central Government has made the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (already referred to as 'the PCPNDT Rules' hereinabove). 32. Rule 9 deals with maintenance and preservation of records. As per sub-rule (1), every genetic counselling centre, genetic laboratory, genetic clinic including a mobile genetic clinic, ultrasound clinic and imaging centre shall maintain a register showing, in serial order, the names and addresses of the men or women given genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouses or fathers and the date on which they first reported for such counselling, procedure or test. Sub-rule (4) says that the record to be maintained by every genetic clinic including a mobile genetic clinic in respect of each man or woman subjected to any pre-natal diagnostic procedure/ technique/test shall be as specified in Form F. 32.1. In terms o....
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....nursing home, hospital, etc. where any of the machines or equipments capable of performing any procedure, technique or test capable of pre-natal determination of sex or selection of sex before or after conception is used, shall afford all reasonable facilities for inspection of the place, equipment and records to the appropriate authority or to any other person authorized by the appropriate authority in this behalf, amongst others, for detection of misuse of such facilities or for selection of sex before or after conception or for detection/disclosure of sex of the foetus or for detection of cases of violation of the provisions of the PCPNDT Act in any other manner. 35.1. Sub-rule (2) empowers the appropriate authority or the officer authorized by it to seal and seize any ultrasound machine, scanner or any other equipment capable of detecting the sex of foetus, used by any organization if the organization has not got itself registered under the PCPNDT Act. Such machines shall be confiscated and further action shall be taken as per provisions of Section 23 of the PCPNDT Act. 36. Procedure for search and seizure is laid down in Rule 12. As per sub-rule (1), the appropriate auth....
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....r to any authorized officer in his or her absence and preserve the order of authorisation as documentary proof for further action. 37.2. Sub-rule (2)(ii) places a duty on all the appropriate authorities to ensure that a person who is a part of the investigating machinery in cases under the PCPNDT Act is not nominated or appointed as a member of the advisory committee. 37.3. As per sub-rule (3), all the appropriate authorities including the State, District and Sub-district shall observe certain conduct for processing of complaint and investigation, such as, maintaining of appropriate diaries in support of registration of complaints etc. Those authorities shall not involve police for investigating cases under the PCPNDT Act as far as possible, as the cases under the PCPNDT Act are tried as complaint cases under the Cr. PC. 38. We may also refer to Form F before we wind up our reference to the relevant provisions of the statute. Form F, which is relatable to the proviso to Section 4(3), Rule 9(4) and Rule 10(1A), is as under: Form F [See Proviso to Section 4(3), Rule 9(4) and Rule 10(1-A)] FORM FOR MAINTENANCE OF RECORD IN CASE OF PRE-NATAL DIAGNOSTIC TEST/ PROCED....
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....bleeding/leaking. vi. Follow-up of cases of abortion. vii. Assessment of cervical canal and diameter of internal os. viii. Discrepancy between uterine size and period of amenorrhea. ix. Any suspected adenexal or uterine pathology/abnormality. x. Detection of chromosomal abnormalities, fetal structural defects and other abnormalities and their follow-up. xi. To evaluate fetal presentation and position. xii. Assessment of liquor amnii. xiii. Preterm labor / preterm premature rupture of membranes. xiv. Evaluation of placental position, thickness, grading and abnormalities (placenta praevia, retro-placental hemorrhage, abnormal adherence, etc.). xv. Evaluation of umbilical cord-presentation, insertion, nuchal encirclement, number of vessels and presence of true knot. xvi. Evaluation of previous Caesarean Section scars. xvii. Evaluation of fetal growth parameters, fetal weight and fetal well being. xviii. Color flow mapping and duplex Doppler studies. xix. Ultrasound guided procedures such as medical termination of pregnancy, external cephalic version, etc. and t....
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....anced maternal age (35 years) C. Mother/father/sibling has genetic disease (specify) D. Other (specify) 20. Date on which consent of pregnant woman / person was obtained in Form G prescribed in PC & PNDT Act, 1994: 21. Invasive procedures carried out ("Tick" on appropriate indication/s) i. Amniocentesis ii. Chorionic Villi aspiration iii. Fetal biopsy iv. Cordocentesis v. Any other (specify) 22. Any complication/s of invasive procedure (specify) ... 23. Additional tests recommended (Please mention if applicable) (i) Chromosomal studies (ii) Biochemical studies (iii) Molecular studies (iv) Pre-implantation gender diagnosis (v) Any other (specify) 24. Result of the Procedures/ Tests carried out (report in brief of the invasive tests/ procedures carried out) ............... 25. Date on which procedures carried out: ................... 26. The result of pre-natal diagnostic procedures was conveyed to ......... on ........... 27. Any indication for MTP as per the abnormality detected in the diagnostic procedur....
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....etailed forms in which records have to be maintained have been provided for by the Rules. These Rules are necessary for the implementation of the Act and improper maintenance of such record amounts to violation of provisions of Sections 5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. In addition, any breach of the provisions of the Act or its Rules would attract cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, by the appropriate authority as provided under Section 20 of the Act. 99. There is no substance in the submission that provision of Section 4(3) be read down. By virtue of the proviso to Section 4(3), a person conducting ultrasonography on a pregnant woman, is required to keep complete record of the same in the prescribed manner and any deficiency or inaccuracy in the same amounts to contravention of Section 5 or Section 6 of the Act, unless the contrary is proved by the person conducting the said ultrasonography. The aforementioned proviso to Section 4(3) reflects the importance of records in such cases, as they are often the only source to ensure that an establishment is not engaged....
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....geon being the Chairman of the appropriate authority. Looking at the object of sub-section (1) of Section 30 which the Bench observed was a very drastic provision granting power to the appropriate authority or any officer authorised by it to enter a genetic laboratory, a genetic clinic or any other place to examine the record found therein, to seize the same, even to seal the same and the express language used therein, it has been held that only the Chairman or any other member acting alone cannot authorize a search under sub-section (1) of Section 30; it must be a decision of the appropriate authority. If a single member of the appropriate authority authorizes a search, it will be completely illegal being contrary to sub-section (1) of Section 30. In that case, it was found from the affidavit filed by the Chairman that the decision to conduct the search by appointing three officers was only his decision taken in his capacity as the Chairman of the appropriate authority; the other two members of the appropriate authority were not party to the said decision. In the facts of that case, it has been held that no legal decision was made by the appropriate authority in terms of sub- sect....
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....ue that it was issued by the Civil Surgeon, acting as the District Appropriate Authority, Gurugram. No doubt, the Civil Surgeon is the Chairperson of the District Appropriate Authority but this communication/order does not indicate any decision being taken collectively by the District Appropriate Authority to conduct raid in the premises of the appellant. Nothing has been placed on record by the respondents to show that there was any meeting of mind of the members of the District Appropriate Authority on the basis of which the Chairperson had issued the communication/order dated 17.09.2015. If that be the position, then the ratio in Ravindra Kumar would be applicable to this case as well on the basis of which the search carried out by the District Appropriate Authority, Gurugram at Vatika Medicare i.e. the premises where the appellant worked, would be illegal. However, the matter would not stop at that. 46. We have already noted that on the basis of the search itself, FIR was lodged against the appellant and Dr. Abdul Kadir being FIR No. 336 of 2015. Following investigation, the police filed an application before the learned Judicial Magistrate First Class on 28.10.2015 for disc....
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....ation for condonation of delay was also filed for condoning the said delay. The learned Magistrate by order dated 18.09.2018 condoned the delay. Thereafter, the learned Magistrate passed an order dated 12.09.2022 issuing summons to the accused persons under Section 23 of the PCPNDT Act by taking the view that there are sufficient grounds for proceeding against the two accused persons including the appellant. 49. Repelling the challenge made by the appellant, the High Court vide the impugned judgment and order held that the District Appropriate Authority had implemented the recommendation of the District Advisory Committee under Section 17 of the PCPNDT Act whereafter the District Appropriate Authority exercising power under Rule 18A of the PCPNDT Rules had authorized Dr. Chitranjan, Deputy Civil Surgeon for filing of the complaint. High Court has held that the procedure adopted cannot be said to be in contravention of the PCPNDT Act as per authorization given to Dr. Chitranjan on 17.09.2018. 50. While there is infraction of Section 30 of the PCPNDT Act qua the search carried out by the respondents on Vatika Medicare in as much as it was an individual decision of the Chairpers....
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....rded conversation. In that context, this Court held that tape recorded conversation is admissible provided, firstly, the conversation is relevant to the matter in issue; secondly, there is identification of the voice; and thirdly, the accuracy of the tape recorded conversation is proved. Rejecting the contention of the appellant that the tape recorded conversation was obtained by illegal means, this Court held that even if evidence is illegally obtained, it is admissible. However, by expressing a word of caution, this Court observed that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. This Court referred to with approval its earlier decision in Magraj Patodia Vs. R.K. Birla [AIR 1971 SC 1295] which held that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved. Referring to English decisions, this Court held that as long as evidence is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible. 53. A Constitution Bench of this Court in....
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.... authorized by the appropriate authority etc. Further, as per Rule 18A (3) (iv) of the PCPNDT Rules, the appropriate authority should not involve police for investigating cases under the PCPNDT Act as the cases under this Act are tried as complaint cases under the CrPC. In any case, the police in the discharge application mentioned that appellant had infact conducted ultrasound on the decoy pregnant woman but had not carried out sex determination. However, police investigation revealed discrepancies in the maintenance of record for which it was pointed out that there are provisions in the PCPNDT Act for filing of a complaint case. We have already noted that as per the proviso to sub-section (3) of Section 4 of the PCPNDT Act, it is the duty of the person conducting ultrasonography on a pregnant woman to keep complete record thereof in the clinic in such manner as may be prescribed and any deficiency or inaccuracy found therein shall amount to contravention of Sections 5 or 6 of the PCPNDT Act. Burden is on the person conducting such ultrasonography to prove to the contrary. Similarly, Rule 9(1) read with Rule 9(4) and Rule 10(1A) of the PCPNDT Rules mandate the person conducting ul....