The Punjab & Haryana High Court while refusing to quash FIR against a doctor who was accused of conducting illegal sex determination of a foetus observed that forced, illicit abortions in unhygienic clinics directly attack their right to bodily autonomy inter alia violating right enshrined under Article 21 and further the stage for taking cognizance of offence under the PNDT Act has not yet been reached and thus, the present FIR cannot be quashed on the ground that the police cannot register and investigate an offence under the PNDT Act.
Brief Facts:
The present petition was filed under Section 482 Cr.P.C. for quashing of FIR registered under Sections 29, 5 (2), 6 (b) of the Preconception and Pre-Natal Diagnostic Techniques Act, 1994 and Section 120-B IPC after it was alleged that the petitioner, a doctor was conducting illegal sex determination of foetus.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the petitioner is mainly aggrieved by the registration of the FIR and further, it is liable to be quashed because Section 28 of the PNDT Act makes it abundantly clear that no Court shall take cognizance of an offence under this Act except on a complaint made by the Appropriate Authority or any officer authorized in this behalf by the Central Government or the State Government. Further, the counsel relied on the judgment in Delhi Administration Vs. Ram Singh submits that if the power to investigate has been exclusively bestowed upon a special person/body then only the authorized person can conduct an investigation.
Contentions of the Respondent:
The learned counsel appearing on behalf of the state contended that as such, pending investigation, power under Section 482 Cr.P.C. cannot be exercised to quash the FIR before filing a final report under Section 173 Cr. P.C. and the present petition is not maintainable as the same was filed during the pendency of investigation. Further, it was submitted that now the investigation is complete and a report under Section 173 Cr.P.C. along with a complaint by the Appropriate Authority as envisaged under Section 28 of the PNDT Act will be filed in the concerned jurisdictional Court and therefore, cognizance would be taken only on the said complaint.
Observations of the Court:
Further, the court clarified that when any information is received by the police about any cognizable offence, they are bound to register FIR and proceed with the investigation. But under the PNDT Act, there is a restriction that the Court shall take cognizance of an offence only on a complaint made by the concerned Appropriate Authority.
It was observed by the court that the preference for a male child is evident from the skewed sex ratio, which is rooted in cultural and social biases that not only propagate misogyny but also endanger the health of the expectant mothers and selective termination of pregnancies further exacerbates gender inequality in the society creating an unsafe environment, unconducive to the cause of gender justice and further forced, illicit abortions in unhygienic clinics directly attacks their right to bodily autonomy inter alia violating right enshrined under Article 21 of the Constitution of India.
The court concluded that the e stage for taking cognizance of offence under the PNDT Act has not yet been reached and thus, the present FIR cannot be quashed on the ground that the police cannot register and investigate an offence under the PNDT Act. The only restriction imposed upon the Court is that it cannot take cognizance except on the complaint filed in writing by the Appropriate Authority.
The decision of the Court:
The court refused to quash the FIR and dismissed the petition.
Case Title: Dr. Rachna Raina vs State of Haryana
Coram: Hon’ble Mr. Justice Harpreet Singh Brar
Case No.: CRM-M No.1120 of 2023 (O&M)
Advocate for the Applicant: Mr. Abhishek Sethi and Ms. Richa Sethi
Advocate for the Respondent: Ms. Geeta Sharma
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