Delhi Doctor accused under PCPNDT Act gets court relief after 9 years

The Government enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act back in 1994. This law prohibits sex determination before or after conception and regulates the use of pre-natal diagnostic techniques to prevent female foeticide. The offences under the Act are cognizable, non-bailable, and non-compoundable.

In this case, the Delhi-based doctor was accused under the PCPNDT Act after a team led by Dr. Singh conducted a raid at the Delhi-based registered centre, whose in-charge doctor was the accused. An FIR was also registered in this connection.

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Approaching the Court, the counsel for the accused doctor argued that there was no material on record to frame charges against him. Further, the counsel also contended that the offences under PC&PNDT Act are not triable on charge sheet. The authority of the complainant to conduct the raid was also questioned. 

On the other hand, the counsel for the State opposed the plea and pointed out that the purpose of the PC&PNDT Act is to curb female infanticide. It was also argued that the contentions raised by the accused doctor were purely a matter of trial and evidence, and it cannot be adjudicated at this stage.

Taking note of the submissions, the Court observed, "The law regarding discharge is well settled that the court while considering the question of framing the charges has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if the court was conducting a trial."

"If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge. At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. The Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence," it further noted.

At this outset, the District Court relied on the Supreme Court's observations in the case of Dipakbhai Jagdishchandra Patel v. State of Gujarat, the judgment in the case of Asim Shariff v. National Investigation Agency and also the case of Bhawna Bai v. Ghanshyam.

The Court, after considering the material on record, noted that in the present case, the chargesheet was filed by the IO for the offences u/s.186/353/332/341/34 IPC and u/s.23/25 PCPNDT Act. Consequently, the notice of the above offences was taken by the Court by an order dated 06.12.2019.

Referring to the argument made by the counsel for the accused that the offences under the PCPNDT Act are not triable on the basis of chargesheet, the Court observed, "It is a trite law that the registration of FIR and police investigation for the offences under said Act are not barred vide judgment of Hon’ble Delhi High Court in Manoj Krishan Ahuja v. State of NCT of Delhi & Anr. Crl. M.C.1352/2023 decided on 24.04.2023."

Further, the bench noted that the cognizance of the offence on the police report has already been taken by the Ld. Predecessor of the Court by the order dated 06.12.2019. "This court has no power to review or recall the said order. The argument regarding existence of “reason to believe” cannot be adjudged at this stage since it is a matter of evidence. The other argument regarding use of pregnant ladies as decoy patient also cannot be a ground to claim discharge," observed the bench.

Regarding the offence under section 186 of IPC, the Court noted that there is no permission filed with the chargesheet in terms of section 195 CrPC for the prosecution of said offence u/s.186 IPC.

"Moreover, there is no separate complaint filed before the court disclosing commission of offence within the meaning of section 2 (d) of CrPC by the concerned public servant. Accordingly, there is noncompliance of provisions of Section 195 (1)(a)(i) of CrPC with respect to offence under section 186 IPC for want of complaint by the concerned public servant. As regards section 353 and 332 IPC it is to be noted that therein the requirement is that the public servant must be performing duty in the discharge of his public functions. The complainant Dr. Singh while conducting raid in Delhi cannot be said to be discharging public functions as his jurisdiction is limited to Rohtak, Haryana," observed the Court.

It further noted that even the letter dated 17.10.2016 filed with the chargesheet did not contain any specific authorization to the complainant Dr. Singh to conduct raid anywhere in India beyond Rohtak, Haryana and there was no other document on record which could show that the complainant was authorized to conduct raid in Delhi on the day of the incident.

Questioning the authority of the complainant to conduct raids beyond his jurisdiction, the Court observed, "The reference by the complainant in then complaint to the fact that he has informed the Delhi team regarding raid also primafacie shows that he was not competent to conduct raid in Delhi. Therefore, his alleged presence at the spot in Delhi cannot be said to have been “in the discharge of his public functions” or “in the execution of his duty”. Section 332 IPC also specifically requires that the concerned public servant must be performing act in the discharge of his duty or the act must be done in the “lawful” discharge of his duty as such public servant. As regards offence under section 341 IPC, the offence of wrongful restraint is defined under section 339 IPC. It provides that whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a “right to proceed”, is said wrongfully to restrain that person. As already noted above, since the presence of complainant at the spot in Delhi cannot be said to have been “in the discharge of his public functions” or “in the execution of his duty”. Hence, he cannot be said to be having right to proceed in the clinic of accused on the day of incident within the meaning of section 339 IPC."

"Even otherwise as well, the allegations of the complainant are vague and wide sweeping in nature," it observed.

Holding that the complainant did not perform a lawful duty in conducting the raid beyond jurisdiction, the court noted, "The statement of complainant under section 161 CrPC mentions that the raid was conducted under his supervision. There is no document filed with the chargesheet to show that the Delhi team was conducting raid in the supervision of complainant on the said day. Upon consideration of material produced alongwith chargesheet, the complainant cannot be said to have been performing lawful duty as a public servant on the spot on that day. The material on record is not sufficient to frame charges under any of the above sections of IPC."

The court noted that Section 23 of the PCPNDT Act deals with penalties for contravention of any of the provisions of the Act or rules made thereunder and Section deals with penalties for contravention of the provisions of the Act or rules for which no specific punishment is provided in the Act.

It was observed by the bench that even though it is mentioned in the chargesheet that the inspection was being conducted by one Dr. Gautam from Delhi, however, neither she or any other member from Delhi team has filed any complaint before the police on that day regarding the alleged incident or of any violations of provisions of PCPNDT Act.

"The complaint on the basis of which the present FIR also makes no mention of any specific violations of provisions of PCPNDT Act as observed in the clinic of accused pursuant to said raid on the day of alleged incident. There is also no document annexed with the chargesheet from which non-compliance of above provisions could be observed. The statement of decoy witness or of Dr. Santosh was not recorded by the IO under section 161 CrPC. In the statements of all the witnesses recorded under section 161 CrPC during investigation also there is nothing alleged by them regarding any specific violation of sections 23/25 of PCPNDT Act by the accused. No material was collected in this regard during the investigation," further observed the court.

Accordingly, holding that there is insufficient material on record, the bench observed that no prima facie case was made out for framing charges against the accused doctor for the alleged offences under section 186/353/332/341/34 IPC and u/s.23/25 PCPNDT Act.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/order-state-vs-sushil-garg-305953.pdf

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