Police cannot register FIR, investigate offenses under PC PNDT Act: Allahabad HC

Allahabad: The Allahabad High Court recently specified that police officers are debarred from registering the FIR and investigating offenses under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act).

Only the 'Appropriate Authority' or the person authorized under the PC & PNDT Act can carry out the investigation and police involvement can only be sought when there is some restraint on the part of the accused persons, clarified the High Court in its recent order dated 30.09.2024.

While considering the issue, the HC bench referred to the Supreme Court's order in the case of Jeewan Kumar Raut, where while dealing with the identical provisions of the TOHO ( Transplantation of Human Organs Act 1994) Act, the Court had clarified that police report is inconsequential and the FIR for the offence under the provisions of the TOHO Act cannot be entertained, if any such information is received in writing, it is the duty of the police officer to report it to the Appropriate Authority, under the Act only, who can investigate the matter and file a complaint on conclusion of the investigation.

Relying on the legal precedence set by the Apex Court, the HC bench observed, "...this court is of the opinion that wherever the special law provides that the complaints can be lodged or the prosecution can be initiated only by the specified persons under such special law, the police officers are debarred from registering the FIR and investigating the matter as in almost all the special laws the power to investigate under the Special Acts has been given to the specified officers under such special laws. Therefore, in the considered opinion of this Court, in view of the Bar created under section 28 of the PC & PNDT Act, for any offence under the Act, no person is authorized to register the F.I.R."

"Therefore, the registration of the FIR and investigation thereof is categorically barred, as under the scheme of the PC & PNDT Act and the rules, on a complaint received by the Appropriate Authority for violation of any provisions of the PC & PNDT Act, the investigation can be done only by the Appropriate Authority himself or by the authorized person only. Therefore, police officers are debarred from registering the F.I.R. and investigating the matter. The PC & PNDT Act further provides that while carrying out the investigation, so far as it is possible, the Appropriate Authority or the person authorized under the PC & PNDT Act shall avoid the involvement of the police; however, involvement of police can be sought only for the purpose, when some restraint is there on the part of accused persons," clarified the Single-Bench HC bench of Justice Anish Kumar Gupta.

These observations were made by the HC bench while considering a plea by a doctor seeking to quash a criminal case registered against him by the State Police back in the year 2017. The doctor was booked for allegedly performing illegal prenatal sex determination.

A Tehsildar had lodged the FIR after searching the accused doctor's hospital, acting under the authorization of the District Magistrate. However, challenging the FIR, the doctor approached the Court and argued that only the "appropriate authority" could initiate complaint proceedings under Section 28 of the PCPNDT Act, and therefore, the FIR lodged against him was illegal.

On the other hand, the State counsel argued that the FIR and the police investigation were valid since the Tehsildar was authorized to act by the District Magistrate.

However, rejecting the argument by the State, the HC bench clarified that only complaint cases could be filed under the Act and no FIRs. Further, the bench observed that Magistrates could not take cognizance of offenses under the PCPNDT Act based on the police reports, but only if such complaints are filed by the authorized persons.

Accordingly, the Court quashed the FIR and observed, "...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."

Is Police Investigation Permissible for Offences Under the PC & PNDT Act? 

While considering the question of whether police investigation is permissible for offences under the PC & PNDT Act, the HC bench noted that Section 27 of the PC & PNDT Act provides that every offence under the Act shall be cognizable, non-bailable and noncompoundable. However, in view of Section 28 of the PC & PNDT Act, no court is competent to take cognizance of offence under the PC & PNDT Act except on a complaint made by the persons described in the Act.

Further, the bench observed that Section 17(4) (c) empowers the Appropriate Authority to investigate the complaints for breach of the provisions of this Act or the rules made thereunder and take immediate action. Section 17A of the PC & PNDT Act further empowers the Appropriate Authority to summon any person who is in possession of any information relating to the violation of the provisions of the Act or the rules made thereunder, production of any document or material object relating to the offence, issuing search warrant for any place indulging in sex-selection techniques or pre-natal sex determination and any other matter, which may be prescribed.

Meanwhile, Section 30 of PC& PNDT Act empowers the Appropriate Authorities under the Act to search and seize the records in case of any violation is found and concerning said search and seizure, the procedure prescribed in the Code shall be followed. Sub-rule (3) of Rule 18A of the Rules, 1996 provides the procedure on receipt of complaint and the investigation thereof and further provides that investigation in all the complaints received under the PC & PNDT Act shall be completed within 48 hours of receipt of such complaint.

"It further provides that as far as possible, the police authorities shall not be involved for the purpose of investigation as the cases under the PC & PNDT Act are tried as complaint case under the Code. 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," the court observed at this outset.

"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," it further noted.

Perusing the provisions of Section 17, 17A & 30 of the PC&PNDT Act and Rule 12 & 18A of the PC&PNDT Rules and noted that these provisions form a "complete Code in itself with regard to the receipt of the complaints, investigation, search and seizure and filing of the complaint before the competent authority."

"Rule 18A(3)(iv) specifically prohibits the involvement of the police for the investigation of case under the PC & PNDT Act. Rule 18A(3)(iv) further provides the proper procedure for receiving of the complaint and registration of each of the complaints so received by the appropriate authority. It is further mandated in the aforesaid rules that while dealing with such complaint received by the appropriate authority, the appropriate authority shall maintain the transparency in every follow up action action and the appropriate authority is expected to investigate the matter immediately after receipt of the complaints without involving the police," noted the Court.

"Therefore, from inception of receipt of the complaint for violation of the provisions of the Act and with regard to the investigation, search and seizure, which is provided under Section 30 read with Rule 12 of the Rules and after completing the investigation procedure to take the remedial measures and also to file the complaint case, if so required, looking at the gravities of the offence. From the scheme of the Act as well as the rules in the considered opinion of this Court it is not mandatory for the appropriate authority to file the complaints in each and every case of violation of the provisions of the Act. The Act itself provides sufficient remedial measures and if those measures are adopted the criminal complaints are not required to be filed in each and every case. In view of the aforesaid 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., Cr.P.C., 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 bench clarified.

However, the Court also noted that there are divergent views of the different High Courts, on the PCPNDT Act, the Court put forth 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?

"Therefore, 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," specified the single-judge bench of the High Court in its order dated September 30, 2024.

To view the HC order, click on the link below:

https://medicaldialogues.in/pdf_upload/allahabad-hc--256873.pdf

Also Read: Additional CMO not an appropriate authority: Allahabad HC quashes proceedings under PCPNDT Act