Rajasthan High Court - Jodhpur

Ashok Prajapat vs State Of Rajasthan on 5 December, 2022

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 6746/2022

1. Ashok Prajapat S/o Sh. Madan Lal Prajapat, Aged About 28 Years, Kheme Ka Kua, Pal Road, Jodhpur, Presently Tenant Of Sohan Lal Mali, Subhash Nagar, Ps Shastri Nagar, Jodhpur. (Tenant In The House)

2. Bhanwar Lal Suthar S/o Sh. Deen Dayal Suthar, Aged About 47 Years, H.no. 16, Thoriyon Ki Dhani, Opp. Pal Balaji, Ps Chb, Jodhpur. (Alleged Agent Who Was Approached By Decoy)

----Petitioners Versus

1. State Of Rajasthan, Through Pp

2. Sh. Jitendra Gangwani S/o Lt. Sh. Narendra Gangwani, Police Inspector, Officer-In-Charge, P.s. P.b.i. Medical And Health Services, Jaipur.

----Respondents Connected With S.B. Criminal Misc(Pet.) No. 6670/2022

1. Ashok Prajapat S/o Shri Madan Lal Prajapat, Aged About 28 Years, R/o Kheme Ka Kua, Pal Road, Jodhpur, Presently Tenant Of Sohan Lal Mali, Subhash Nagar, Ps Shastri Nagar, Jodhpur. (Tenant In The House)

2. Bhanwar Lal Suthar S/o Shri Deen Dayal Suthar, Aged About 47 Years, R/o House No. 16, Thoriyon Ki Dhani, Opposite Pal Balaji, Ps Chopasani House Board, Jodhpur. (Alleged Agent Who Was Approached By Decoy)

----Petitioners Versus State Of Rajasthan, Through Shri Manoharlal Meena, Police Inspector, Officer-In-Charge, Police Station Pcpndt Bureau Of Investigation , Medical And Health Services, Jaipur.

                                                                    ----Respondent


For Petitioner(s)          :     Mr. Sheetal Kumbhat
For Respondent(s)          :     Mr. Mahipal Bishnoi, PP





                                     (2 of 7)                   [CRLMP-6746/2022]

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/12/2022

In S.B. Criminal Misc(Pet.) No. 6746/2022 :-

Learned counsel for the parties jointly submit that the

controversy involved in the present matter is squarely covered by

the judgment rendered by this Court in Dr. Mohammad Imtiyaz

Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition

No.5502/2022), decided on 22.09.2022, relevant portion reads

as under :-

"7. According to this Court, the allegation that the petitioner was involved in sex determination, definitely gives rise to an offence under the P.C.P.N.D.T. Act, but the moot question is whether such offence can be taken cognizance of by the Police or whether the Police can directly register an F.I.R.

8. Answer to the above question lies in Sections 27 and 28 of the P.C.P.N.D.T. Act, which are reproduced here infra :-

"27. Offence to be cognizable, non-bailable and non-compoundable. -Every offence under this Act shall be cognizable, non-bailable and noncompoundable.

28. Cognizance of offences.

1. No court shall take cognizance of an offence under this Act except on a complaint made by--

(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or

(b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. Explanation.--For the purpose of this clause, "person" includes a social organisation.

2. No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

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3. Where a complaint has been made under clause

(b) of sub-section (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person."

9. Rule 18A of the P.C.P.N.D.T. Rules also has an important bearing on the question involved, hence, relevant part thereof is being extracted herein below :- "18A. Code of Conduct to be observed by Appropriate Authority.

(1) ... xxx ...

(2) ... xxx ...

(3) All the Appropriate Authorities including the State, District and Sub-district notified under the Act, inter-alia, shall observe the following conduct for processing of complaint and investigation, namely :-

(i) ... xxx ...

(iii) ... xxx ...

(iv) as far as possible, not involve police for investigating cases under the Act as the cases under the Act are tried as complaint cases under the Code of Criminal Procedure, 1973 (2 of 1974)."

10. Sections 27 & 28 of the P.C.P.N.D.T. Act clearly suggest that the scheme of the Act bars interference of other authorities including the police. Section 28 clearly prohibits a Court from taking cognizance of any offence under the P.C.P.N.D.T. Act except pursuant to a complaint filed by an appropriate authority or authorised officer in this behalf. It is to be noted that a person other than appropriate authority or authorised officer cannot file a complaint directly to the Court - he has to give 15 days notice.

11. Rule 18A(3)(iv) of the P.C.P.N.D.T. Rules in express terms postulates that involvement of police shall be minimum. When the very involvement is discouraged under the Act and the Rules, registration of F.I.R., investigation and arrest by the police is out of question.

12. Moving on to the next question, whether provisions of Section 420 of the Indian Penal Code are

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attracted ? Entire story as narrated in the F.I.R., revolves around determination of sex and taking Rs. 50,000/- as fee for such act by the accused person. There is not even a whisper about cheating. Even the informer, at whose information, decoy or trap was plotted, did not allege cheating or inducement - the information was only about sex determination. During the course of trap also, the petitioner and other co- accused have agreed to determine the sex of the fetus. Hence, foundational or jurisdictional fact quintessential for offence under Section 420 of the Indian Penal Code is non- existent.

13. Impugned F.I.R. has been lodged by the Authorized Officer, Police Station P.B.I., Medical & Health Services, Jaipur, who might be an appropriate authority as per Section 28 of the P.C.P.N.D.T. Act, competent to file a complaint but not empowered to register an F.I.R.

14. The registration of F.I.R. is per se, illegal, contrary to the provisions of the P.C.P.N.D.T. Act and without jurisdiction.

15. For whatever has been discussed herein above, the petition deserves to be and is hereby allowed.

16. The F.I.R. No. 01/2022, Police Station P.B.I., Medical & Health Services, Jaipur registered against the petitioner on 22.04.2022 is hereby quashed.

17. Since the F.I.R. impugned has been quashed, the petitioner shall be released forthwith. The concerned Jail Superintendent, wherever the petitioner is lodged, is directed to release the petitioner on production of a certified copy of order instant.

18. As per information given by learned counsel for the petitioner, the petitioner is behind the bars since 22.04.2022. While invoking this Court's inherent powers, it is hereby directed that in case, the petitioner is ultimately convicted pursuant to complaint filed by the State, the period for which he has remained behind

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the bars, shall be considered against the sentence (if any) awarded by the trial court pursuant to the complaint filed against him under the provisions of the P.C.P.N.D.T. Act.

19. Needless to observe that quashing of present F.I.R. will have no bearing on complaint case, which is said to have been filed by the appropriate authority so far as offences under the provisions of P.C.P.N.D.T. Act are concerned. The Court concerned shall decide the same in accordance with law.

20. The stay application stands disposed of accordingly. "

In light of the aforequoted order, the present misc. petition is

also allowed in terms of the order passed by this Court in Dr.

Mohammad Imtiyaz Vs. State of Rajasthan & Anr (Supra). Thus,

the F.I.R. No. 01/2022, Police Station P.B.I., Medical & Health

Services, Jaipur registered against the petitioner on 22.04.2022 is

hereby quashed.

While invoking this Court's inherent powers, it is hereby

directed that in case, the petitioner is ultimately convicted

pursuant to complaint filed by the State, the period for which he

has remained behind the bars, shall be considered against the

sentence (if any) awarded by the trial court pursuant to the

complaint filed against him under the provisions of the P.C.P.N.D.T.

Act.

Needless to observe that quashing of present F.I.R. will have

no bearing on complaint case, which is said to have been filed by

the appropriate authority so far as offences under the provisions

of P.C.P.N.D.T. Act are concerned. The Court concerned shall

decide the same in accordance with law.

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In S.B. Criminal Misc(Pet.) No. 6670/2022 :-

Learned counsel for the parties jointly submit that the

controversy involved in the present matter is squarely covered by

the judgment rendered by this Court in Dr. Mohammad Imtiyaz

Vs. State of Rajasthan (S.B. Criminal Misc. Petition

No.5515/2022), decided on 22.09.2022. The order dated

22.09.2022 reads as under :-

"1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred challenging the proceedings initiated pursuant to a complaint filed by Manohar Lal Meena, Police Inspector, Officer-in-charge, Police Station P.C.P.N.D.T. Bureau of Investigation, Medical & Health Services, Jaipur, against the petitioner.

2. The petition has been preferred essentially on the ground of double jeopardy. According to the petitioner, since the police has already lodged an F.I.R. (F.I.R No.01/2022 dated 22.04.2022), present complaint cannot sustain.

3. Another argument that has been advanced by the learned counsel for the petitioner is that even after going through the contents of the complaint, offences under Sections 420 and 120-B of the Indian Penal Code are not made out.

4. So far as complaint being illegal on account of double jeopardy is concerned, suffice it to note that by an order of even date, this Court has already quashed the F.I.R. No.01/2022 registered in Police Station P.B.I., District Jaipur, registered against the petitioner. Hence, the petitioner's such ground of challenging subject complaint does not subsist.

5. So far as quashing the complaint qua offences under Sections 420 & 120-B of the Indian Penal Code is concerned, instead of quashing the complaint in

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piecemeal, this Court reserves petitioner's right to raise such objection before the trial court, as and when occasion arises including at the stage of taking cognizance.

6. In case, such plea is raised by the petitioner, the trial court shall consider the same in accordance with law.

7. The petition so also stay application stand disposed of."

In light of the aforequoted order, the present misc. petition is

also disposed of in terms of the order passed by this Court in Dr.

Mohammad Imtiyaz Vs. State of Rajasthan (Supra). So far as

quashing the complaint qua offences under Sections 420 & 120-B

of the Indian Penal Code is concerned, instead of quashing the

complaint in piecemeal, this Court reserves petitioner's right to

raise such objection before the trial court, as and when occasion

arises including at the stage of taking cognizance. In case, such

plea is raised by the petitioner, the trial court shall consider the

same in accordance with law.