Police not authorised to probe sex determination offence under PCPNDT Act: Allahabad High Court

The Allahabad High Court recently held that police cannot investigate or file first information reports (FIRs) for violations under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) [Dr Brij Pal Singh v. State of Uttar Pradesh and Another].

Justice Anish Kumar Gupta 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, which can 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 Court said.

Consequently, the Court noted that the general procedure law for criminal cases, namely the Code of Criminal Procedure (CrPC), would also not be applicable to such cases.

"The registration of F.I.R. for violation of any provisions of this Act, is impermissible and consequentially, no investigation by the police is permissible for offence under the Act, which are otherwise specifically technical area of investigation. Therefore, the PC & PNDT Act, being the Special Law, the provisions of general law i.e. CrPC, would not apply with regard to receipt of the complaints for any violation of any provisions of this Act and investigation search, seizure and initiating the criminal proceedings in the competent court and would be governed only under provisions of the PC & PNDT Act," the Court's September 30 ruling said.

The Court was hearing a plea by doctor to quash a criminal case registered against him by the State police in 2017. He was booked under the PCPNDT Act on allegations that he was illegally identifying the sex of foetus, to enable couples to prevent female children from being born.

He was implicated after a search carried out at a hospital along with the police on instructions by a Tehsildar, who said he was authorised to take such action by the "appropriate authority" i.e., District Magistrate.

The doctor's counsel argued that no FIR could have been registered against him for violations under PCPNDT Act since only the 'appropriate authority' under Section 28 of PCPNDT Act can file complaint cases and not FIRs in such matters.

The doctor argued that the FIR was lodged by the Tehsildar who cannot be said to be the appropriate authority.

It is further stated by the doctor that only a complaint case can be moved under the Act with the appropriate authority and no FIR can be registered at all.

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 and therefore, there exists no illegality in the proceedings.

The State further contended that Tehsildar lodging the FIR after being authorised by District Magistrate, is sufficient compliance with Section 28 PCPNDT Act.

The Court noted that in view of Rule 18A of the Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 coupled with Sections 28 and 30 of PCPNDT Act, police authorities cannot be involved for the purpose of investigation of cases under this special enactment as cases under it are tried as complaint cases.

Therefore, the Court was of the view that on receipt of any complaint for violations under PCPNDT Act, it is only the 'appropriate authority' under Section 28 that can investigate the matter, and police officers are debarred from registering any FIR in such matters.

"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 clarified.

With regard to taking cognizance by Magistrate, the Court clarified that no Magistrate can take cognizance of offence under PCPNDT Act on the basis of police report and the same can only be done when a complaint is made by a person authorised.

"In the considered opinion of this Court, in view of the specific bar created by Section 28 of the PC & PNDT Act, it is not open for the Magistrate to take cognizance of the offence under the PC & PNDT Act on the basis of the police report submitted after investigation. It is only on the complaint filed by the persons authorized to file the complaint under Section 28 of the PC & PNDT Act, in which the cognizance can be taken by the Magistrate," the Court observed.

In light of the above findings, the Court was of the view that criminal proceedings against the doctor were illegal and proceeded to quash the same.

Advocate Syed Mohammad Abbas Abdy appeared for the doctor.

Additional Government Advocate Pankaj Srivastava appeared for State of Uttar Pradesh.

[Read Judgment]