The Supreme Court has ruled that while a search and seizure operation conducted under Section 30 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), authorized by an individual member of the District Appropriate Authority instead of the authority acting collectively, is illegal, the evidence collected during such an illegal search is not automatically rendered inadmissible.
The admissibility of materials gathered during an illegal search is subject to the rule of relevancy and the test of admissibility, and such evidence can be relied upon to sustain a criminal complaint under the PCPNDT Act, added the Court.
Further, the Court held that a discharge of an accused in a police case initiated via an FIR for offences under the PCPNDT Act does not act as a bar to a subsequent criminal complaint filed by the Appropriate Authority as mandated by Section 28 of the Act. The statutory scheme of the PCPNDT Act provides for an independent complaint mechanism by the Appropriate Authority, which is not nullified by the outcome of a police investigation.
A Two-Judge Bench comprising Justice Manoj Mishra and Justice Ujjal Bhuyan analysed the framework of the PCPNDT Act, to highlight it as a social welfare legislation enacted to prohibit sex selection and combat the declining sex ratio and female foeticide in India. The Bench underscored the mandatory nature of maintaining complete and accurate records as prescribed under the Act and Rules, particularly Form F.
Citing its previous decision in Federation of Obstetrics and Gynaecological Societies of India (FOGSI) vs. Union of India [(2019) 6 SCC 283], the Bench observed that non-maintenance of records is not a mere clerical error but the ‘springboard for commission of the offence of foeticide’ and amounts to a contravention of Sections 5 and 6 of the Act.
The Bench found that the raid order in the present case was indeed passed only by the Civil Surgeon, the Chairperson of the authority, and not by the collective body. The Bench also observed that evidence obtained through an illegal search is not liable to be shut out, and stated that the relevancy of the evidence is the primary test for admissibility, and while a court may scrutinize such evidence more carefully, its admissibility is not barred simply because it was procured through an illegal search.
Further, the Bench rejected the appellant’s contention that his discharge in the criminal case arising from the FIR would render the subsequent complaint non-maintainable. It pointed out that Section 28 of the PCPNDT Act specifically mandates that a court can take cognizance of an offence only upon a complaint made by the Appropriate Authority. Therefore, the discharge in the police case has no bearing on the independent statutory power of the District Appropriate Authority to file a complaint, especially for offences like non-maintenance of records.
Finally, the Bench dismissed the argument that the raiding party included a member who was also part of the District Advisory Committee, allegedly violating Rule 18A(2)(ii) of the PCPNDT Rules. The Bench clarified that the rule applies to a person from the ‘investigating machinery’, which Dr. Saryu Sharma was not. In any event, the Bench viewed the guidelines in Rule 18A as directory, not mandatory, and an irregularity in the advisory committee’s composition would not invalidate a prosecution initiated independently by the Appropriate Authority.
Briefly, the case originated from a complaint received by the Chairman, District Appropriate Authority-cum-Civil Surgeon, Gurugram, against a Dr. Abdul Kadir for allegedly running an illegal sex-determination racket. A three-member team was constituted to conduct a raid, and a pregnant lady agreed to act as a decoy patient. Dr. Kadir demanded and was paid Rs. 25,000 to arrange for the sex-determination of the foetus. He then took the decoy patient and a shadow witness to Vatika Medicare, where the appellant, Dr. Naresh Kumar Garg, a radiologist, was to conduct the ultrasound.
It was alleged that the appellant conducted the ultrasound on the decoy patient without asking her to sign any documents, without signing Form F himself, and without making any entry of the patient in the hospital’s register. The raiding team confronted both doctors, recovered the sum of Rs. 25,000 from Dr. Kadir, and noted the deficiencies in the records maintained by the appellant. Consequently, an FIR was registered. However, the police later filed a discharge application for the appellant, stating no incriminating material was found against him, and the trial court discharged him.
Subsequently, the District Advisory Committee recommended lodging a complaint against the appellant. The District Appropriate Authority authorized the Deputy Civil Surgeon to file a complaint, which was lodged for violations of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) and its Rules. The trial court took cognizance and issued a summoning order to the appellant. The appellant’s petition to the High Court under Section 482 of the CrPC to quash these proceedings was dismissed.
Appearances:
AOR Shubham Bhalla, along with Advocates Yajur Bhalla, Gauri Bedi, Ragini Sharma, Neha Verma, Yash, and Aman Khatri, for the Appellant
AAG Neeraj, AOR Samar Vijay Singh, along with Advocates Piyush Beriwal, Jyotsna Vyas, Sabarni Som, Aman Dev Sharma, Gaj Singh, Keshav Mittal, and Vikramaditya Chauhan, for the Respondent
