Police cannot investigate sex determination offences under PCPNDT Act: Supreme Court

The Supreme Court on Thursday ruled that the police cannot ordinarily investigate foetal sex determination offences under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) [State Of Uttar Pradesh And Anr. Vs Brij Pal Singh And Anr].

A Bench of Justices Sanjay Karol and NK Singh passed the ruling.

The Court, however, added that the police may have a limited, supplementary role to play as and when required by the Appropriate Authority (AA) authorised under the Act to file complaints in such matters.

"Police are not meant to be the investigators for the purposes of this act. Recourse to the police be avoided as far as possible. Police to play a supplementary role as required under the AA (appropriate authority) as per the provisions," the Court said.

The Court, therefore, agreed with the Allahabad High Court's view that the police cannot investigate or file first information reports (FIRs) for violations under the PCPNDT Act.

The top court noted that the Act concerns issues that are technical and which may require medical knowledge and sensitivity. This indicates that the police are not meant to be the primary investigators of offences outlined in the Act, it opined.

"This is further made clear by the fact that an FIR once registered (police action) cannot be taken to its logical conclusion as per the procedures of this Act. The restriction applies only to offences under this Act and does not restrict the police's power to investigate, to prosecute independent offences disclosed in the substantive criminal law," the Court added.

It also observed that the functions of the AA under Section 17(4) expressly includes the responsibility to file complaints in respect of offences under the Act and to investigate the same.

The Court further found that related rules also require for police action to be avoided as far as possible. Therefore, the police cannot be the main investigating authority and can only play a supplementary role as and when required by the AA under its provisions.

Moreover, the Court noted that Section 28 of the Act bars magistrates from taking cognisance of PCPNDT Act offences unless a complaint is made by the AA or a "person", which may include a social organisation. There is no mention of the police being authorised to file FIRs in such matters. This too led the Court to conclude that the police is not expected to investigate offences under this Act.

"Section 28 of the Act envisages a complete statutory embargo on the taking of cognisance except in situations and scenarios provided thereunder. The answer has to be clear - a competent magistrate shall not be able to take cognizance from the final charge sheet. And reference is answered accordingly," the Court said.

The matter concerned the question of whether the registration of an FIR at a police station is permissible for offences under the PCPNDT Act merely because the offences have been classified as cognizable and non-bailable.

The question arose after a doctor moved the High Court to quash a criminal case registered against him by the Uttar Pradesh police in 2017.

He had been booked under the PCPNDT Act on allegations that he was illegally identifying the sex of the foetus to enable couples to prevent female children from being born.

The doctor's counsel argued that no FIR could have been registered against him for violations under the PCPNDT Act since only the appropriate authority/ AA under Section 28 of the PCPNDT Act can file complaint cases, and not FIRs, in such matters. In this case, the doctor argued that the FIR was lodged by the Tehsildar, who cannot be said to be the appropriate authority.

On the other hand, the State argued that there is no bar in registration of the FIR and investigation by the police for the offences under the PCPDT Act. It contended that Tehsildar was authorised by the District Magistrate to file a complaint, which was sufficient compliance with Section 28 PCPNDT Act.

In 2024, the Allahabad High Court observed that the PCPNDT Act is a special law and is in itself a complete code containing all requisite provisions pertaining to investigation, search and seizure and filing of complaints and the same only be done by an "appropriate authority" under the Act.

Police involvement is discouraged under the Act and its rules given the technical nature of such cases, the High Court said.

The High Court further clarified that no Magistrate can take cognisance of offence under the PCPNDT Act on the basis of a police report and the same can only be done when a complaint is made by a person authorised. It, therefore, quashed the criminal proceedings initiated by the police against the accused-doctor.

The Supreme Court today agreed with the High Court's view that the police cannot investigate PCPNDT Act offences.

However, it has remanded the matter back to the High Court for a fresh decision on certain aspects.

A detailed copy of the judgment is awaited.

Senior Advocate Mukta Gupta acted as amicus curiae in the matter. She was assisted by advocate Nitin Saluja.

Senior Advocates Pramod Kumar Dubey and Siddharth Agarwal along with advocate Vikalp Sharma assisted the Court on behalf of the Bar.

The appellant was represented through advocates Vishwa Pal Singh, Divyesh Pratap Singh, Srikant Singh, Akash, Srajan Shankar Kulshreshtha, Amit Kumar, Manoj Sharma, Danish Alvi, Vikalp Sharma, Satyam Sharma, Pranteek Uniyal, Prachi Dubey, Rup Raj Banerjee, RB Siddhartha, Yash Saxena, Jot Parkash Singh Teji, Yadish Arora, Nitin Saluja, Nitya Gupta, Vittal Bala Subrahamanyam, Ishita Soni, Pranya Madan and Karan Singh.

The respondents were represented by Additional Solicitor General Vikramjit Banerjee, along with advocates Kamal Kumar Pandey, Pawan Kumar Shukla, Pankaj Kumar Singh, SK Warish Ali, Raj Singh Rana, GP Mahto, Madhulika Upadhyay, AK Srivastava, Seema Bengani, Nachiketa Joshi, Amit Sharma, Prashant Singh, Sanjay Kumar Dubey, Ayush Anand, Kartik Dey, Sahil Bhacotia, Hritik Pathak, Sanjana, Aditya Kashyap, Vikalp Sharma, Palash Soni, Harshit Sharma, Atharva Kamble, Sakshi Arora, Nishita Gupta, Ramneek Kaur, Priyal Gupta and Akash Awana.

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