# Dr. Brij Pal Singh v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 1046
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-30
- **Case number:** Application U/S 482 No. 6753 of 2019
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-brij-pal-singh-v-state-of-u-p-anr-52516
- **Pages:** 77

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 4, 5, 154, 155, 156,
157, 161, 162, 173, 190, 202, 204 & 482 -
The Indian Penal Code, - Sections 315 &
511 - The Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 - Sections - 4, 5,
5(2), 6, 6(a), 17, 17-A, 23, 25, 28 & 30 -
The
Pre-conception
and
Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Rules, - Rule - 12, 18-A, 18A(3) & 18-A(3)(iv) - Application u/s 482 - for
quashing the summoning order as well as entire
criminal proceedings - Tehsildar submitted
compliant, against Sobha Ram Hospital, stating
that, sex identification of the foetus of the
pregnant woman is being done illegally - District
Appropriate
Authority
(PC&PNDT),
District
Magistrate authorized to Tehsildar to conduct
the required proceedings - a special team was
constituted - team with a planning and with a
decoy customer conducted inspection, search
and arrest accused persons - FIR - investigation
- Charge-sheet - plea taken that, Tehsildar is
not the appropriate authority u/s 28 of the Act,
1994 - which mandate that no court can take
cognizance of an offence under this Act, except
on the complaint filed by the appropriate
authority and u/s 17 of the Act, District
Magistrate is the appropriate authority not the
Tehsildar who has lodge the FIR - Court
observed that, (i) u/s 30 of the Act, 1994 held
that search and seizure can be authorized only if
appropriate authority has reason to believe
which is not mere formality, (ii) under the
scheme of the Act, 1994 & Rules the
investigation
can
be
done
only
by
the
Appropriate
Authority
himself
or
by
the
authorized officer - registration of FIR & police
investigation
is
not
warranted
and
the
Magistrate is incompetent to take cognizance,
(iii) appropriate authority, any other person
authorized by the central govt. or St. govt. or
any person authorized by appropriate authority
can file a complaint for any offence under this
Special Act, 1994, - held, The cognizance order
as well as FIR and the Charge-sheet deserve to
be quashed, as the Magistrate is incompetent to
take Cognizance of such charge-sheet / police
report, specially, for the offence under the
provisions of PC & PNDT Act, 1994 - application
is allowed - cognizance order as well as chargesheet are quashed. (Para -75, 76, 77, 78, 79,
80, 85, 86)

(B) Criminal Law - Constitution of India,
1950- Article - 134(1)(c) & 134-A -
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1047
Criminal Procedure Code, 1973 - Sections
- 4, 5, 154, 155, 156, 157, 161, 162, 173,
190, 202, 204 & 482 - The Indian Penal
Code, 1860 - Sections - 315 & 511 - The
Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994 - Sections - 4, 5, 5(2), 6, 6(a),
17, 17-A, 23, 25, 28 & 30 - The Preconception
and
Pre-natal
Diagnostic
Techniques (Prohibition of Sex Selection)
Rules,1994 -Rule - 12, 18-A, 18-A(3), 18A(3)(iv) - Application u/s 482 - for quashing
the summoning order as well as entire criminal
proceedings - cognizance order as well as FIR
and the Charge-sheet deserve to be quashed, as
the
Magistrate
is
incompetent
to
take
Cognizance of such charge-sheet / police report,
specially, for the offence under the provisions of
PC & PNDT Act, 1994 - hence, with regards to
the questions related to the Act, 1994 there are
divergent opinion of the different high courts,
which are required to be settle by the Apex
Court - hence, it is certified that it is a fit case
for appeal to be filed before the Apex Court on
the questions - Whether, for the offence under
the Act, 1994, the registration of an FIR at the
police
station,
investigation
by
police
is
permissible and whether after investigation and
on
submission
of
the
chargesheet,
the
competent magistrate can take cognizance of
the offence under this Act 1994. (Para - 88, 89)

Application Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,745 of 220,618. This is a partial read: ask again with offset=39745 for what follows._

1046 INDIAN LAW REPORTS ALLAHABAD SERIES
the offence u/S 304B I.P.C., does not be an
alternate charge but ought to be the main
charge and in such circumstances the
charge u/S 302 I.P.C. can be an additional
charge. However, it has been further held in
the aforesaid judgement by the Division
Bench of this Court that though the
additional charge Section 302 I.P.C. can be
framed, but a person cannot be convicted
for both the offences i.e., u/S 304B I.P.C.
and also u/S 302 I.P.C., however, there is
no bar with regard to framing of additional
charge u/S 302 I.P.C.

30. Therefore, this Court does not
find any illegality in rejection of the
discharge application as well as in the
charges framed by the trial court in the
instant
case
against
the
applicant.
Accordingly, the instant application is
devoid of merits and the same is
accordingly dismissed.
----------
(2024) 9 ILRA 1046
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 6753 of 2019

Dr. Brij Pal Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Syed Mohammad Abbas Abdy

Counsel for the Respondents:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 4, 5, 154, 155, 156,
157, 161, 162, 173, 190, 202, 204 & 482 -
The Indian Penal Code, - Sections 315 &
511 - The Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 - Sections - 4, 5,
5(2), 6, 6(a), 17, 17-A, 23, 25, 28 & 30 -
The
Pre-conception
and
Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Rules, - Rule - 12, 18-A, 18A(3) & 18-A(3)(iv) - Application u/s 482 - for
quashing the summoning order as well as entire
criminal proceedings - Tehsildar submitted
compliant, against Sobha Ram Hospital, stating
that, sex identification of the foetus of the
pregnant woman is being done illegally - District
Appropriate
Authority
(PC&PNDT),
District
Magistrate authorized to Tehsildar to conduct
the required proceedings - a special team was
constituted - team with a planning and with a
decoy customer conducted inspection, search
and arrest accused persons - FIR - investigation
- Charge-sheet - plea taken that, Tehsildar is
not the appropriate authority u/s 28 of the Act,
1994 - which mandate that no court can take
cognizance of an offence under this Act, except
on the complaint filed by the appropriate
authority and u/s 17 of the Act, District
Magistrate is the appropriate authority not the
Tehsildar who has lodge the FIR - Court
observed that, (i) u/s 30 of the Act, 1994 held
that search and seizure can be authorized only if
appropriate authority has reason to believe
which is not mere formality, (ii) under the
scheme of the Act, 1994 & Rules the
investigation
can
be
done
only
by
the
Appropriate
Authority
himself
or
by
the
authorized officer - registration of FIR & police
investigation
is
not
warranted
and
the
Magistrate is incompetent to take cognizance,
(iii) appropriate authority, any other person
authorized by the central govt. or St. govt. or
any person authorized by appropriate authority
can file a complaint for any offence under this
Special Act, 1994, - held, The cognizance order
as well as FIR and the Charge-sheet deserve to
be quashed, as the Magistrate is incompetent to
take Cognizance of such charge-sheet / police
report, specially, for the offence under the
provisions of PC & PNDT Act, 1994 - application
is allowed - cognizance order as well as chargesheet are quashed. (Para -75, 76, 77, 78, 79,
80, 85, 86)

(B) Criminal Law - Constitution of India,
1950- Article - 134(1)(c) & 134-A -
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1047
Criminal Procedure Code, 1973 - Sections
- 4, 5, 154, 155, 156, 157, 161, 162, 173,
190, 202, 204 & 482 - The Indian Penal
Code, 1860 - Sections - 315 & 511 - The
Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994 - Sections - 4, 5, 5(2), 6, 6(a),
17, 17-A, 23, 25, 28 & 30 - The Preconception
and
Pre-natal
Diagnostic
Techniques (Prohibition of Sex Selection)
Rules,1994 -Rule - 12, 18-A, 18-A(3), 18A(3)(iv) - Application u/s 482 - for quashing
the summoning order as well as entire criminal
proceedings - cognizance order as well as FIR
and the Charge-sheet deserve to be quashed, as
the
Magistrate
is
incompetent
to
take
Cognizance of such charge-sheet / police report,
specially, for the offence under the provisions of
PC & PNDT Act, 1994 - hence, with regards to
the questions related to the Act, 1994 there are
divergent opinion of the different high courts,
which are required to be settle by the Apex
Court - hence, it is certified that it is a fit case
for appeal to be filed before the Apex Court on
the questions - Whether, for the offence under
the Act, 1994, the registration of an FIR at the
police
station,
investigation
by
police
is
permissible and whether after investigation and
on
submission
of
the
chargesheet,
the
competent magistrate can take cognizance of
the offence under this Act 1994. (Para - 88, 89)

Application Allowed. (E-11)

List of Cases cited:

1. Pramod Suryabhan Pawar Vs St. of Mah. -
(2019) 9 SCC 608,

2. Dr. Vinod Kumar Bassi Vs The St. of U.P. &
anr. passed in Application U/S 482 Cr.P.C. 2998
of 2014, 2024 SCC OnLine All 778, Criminal
Misc. Writ Petition No. 2085 of 2017 (Dr. Rahul
Malik Vs St. of U.P. & ors.) Decided on
21.02.20217,

3. Dr. Varsha Gautam Vs St. of U.P. & ors., ALJ
2006 (5) Page No. 221,

4. Dr. Vinod Kumar Bassi Vs St. of U.P. & anr.,
2024 SCC OnLine All 778,

5. Criminal Misc. No. 4211 of 2021 (Hardeep
Singh Vs St. of Har.) decided on 4.12.2014,

6. Criminal Misc. No. M-421 of 2021 - Dr.
Aparna Singhal v. St. of Har.,

7. Dr. Anant Ram Vs St. of Har., 2022 SCC
OnLine P&H 2284, Manoj Krishan Ahuja Vs St.
of NCT of Delhi & anr., 2023 SCC OnLine Del
2303, S

8. Suo Motu Vs St. of Guj., 2008 SCC OnLine
Guj 294,

9. Dr. Sai Vs St. of Mah., (2016) SCC OnLine
Bom 8812,

10. Ramesh Chandra Naik Vs St. of Orissa, 2018
SCC OnLine Ori 480,

11. W.P. no. 18904 of 2018 (M/s Sujatha Scan
Cente Vs The St. of Telangana),

12. Dr. Amritlal Rohledar Vs St. of Chhattisgarh,
2019 SCC OnLine Chh 137,

13. Manvinder Singh Gill (Dr.) Vs St. of M.P. :
ILR (2014) MP 1176,

14. Dr. Swaroop Charan Sahu Vs The St. of M.P.
(M.Cr.C. No. 11773 of 2013),

15. SLP (Cri.) No. 2226 of 2014 (St. of M.P. Vs
Manvinder Singh Gill),

16. Ravinder Kumar Vs St. of Har., 2024 SCC
OnLine SC 2495,

17. Jeewan Kumar Raut & anr. Vs Central
Bureau of Investigation, (2009) 7 SCC 526,

18. St. NCT of Delhi Vs Sanjay, (2014) 9 SCC
772,

19. Jayant Vs St. of M.P., (2021) 2 SCC 670,

20. Pradeep S. Wodeyar Vs St. of Karn., (2021)
19 SCC 62,

21. U.O.I. Vs Ashok Kumar Sharma, (2021) 12
SCC 674,
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
22. R.P. Kapur v. St. of Pun., 1960 SCC OnLine
SC 21,

23. St. of Har. Vs Bhajan Lal, 1992 Supp (1)
SCC 335,

24. Rajiv Thapar Vs Madan Lal Kapoor: (2013) 3
SCC 330,

25. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors.: 2021 SCC OnLine SC 315.

(Delivered by Hon'ble Anish Kumar Gupta, J.)

1. Heard Sri S.M.A. Abdy, learned
counsel for the applicant and Sri Pankaj
Srivastava, learned A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the summoning order dated
02.01.2018
as
well
as
the
entire
proceedings of Criminal Case No. 60 of
2018, arising out of Case Crime No. 0628
of 2017 u/S 315, 511 I.P.C. and under
Sections 4/5(2)6(a)/23/25 of the Preconception
and
Pre-natal
Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994 (hereinafter referred as, 'the
PC&PNDT Act'), P.S.- Kotwali Shahar,
District- Bulandshahar, pending in the court
of learned Chief Judicial Magistrate,
Bulandshahar.

BRIEF FACTS

3. The brief facts of the case are
that on 14.3.2017, the Tehsildar Khurja,
District- Bulandshahar submitted a written
report to the police station Kotwali Nagar
stating therein that the District MagistrateBulandshahar has received information
from the secret informer that in Sobha Ram
Hospital, the sex identification of the foetus
of the pregnant women is being done with
the object to prevent the female child being
born alive and if any pregnant women is
sent as decoy customer then the doctors of
the said hospital and the persons associated
with the doctor can be caught red handed.
On such secret information, the District
Appropriate
Authority
(PC&PNDT),
District-Bulandshahar
authorised
the
Tehsildar Khurja to conduct the required
proceedings. For the aforesaid purpose, a
Special Action Team was constituted by
nominating Subhash Singh, Sub-Inspector,
P.S.-Kotwali Nagar, District-Bulandshahar
along with the Tehsildar.

4. In compliance of the aforesaid
order, the said Tehsildar called the said
Sub-Inspector along with two constables
and one lady constable in plain clothes and
the team met at the Kaala aam crossing and
in the process the decoy customer, the lady
constable Preeti along with her decoy
husband, Sanjay Kaushik also came there
and were informed by the Tehsildar about
the action to be taken. Then the decoy
customer, lady constable Preeti consented
therefor and then the Tehsildar handed over
Rs. 11,000/- (5 x Rs. 2000/- Notes and 2x
Rs. 500/- Notes) to the said decoy customer
and as per the planning all of them went
towards the Sobha Ram Hospital and the
decoy customer Preeti and her decoy
husband Sanjay were sent to Sobha Ram
Hospital for the sex identification of the
foetus. After sometime, Sanjay Kaushik
came back and told that near the gate of the
hospital two persons were standing and
when he disclosed the cause of their arrival,
those persons informed him that they are
known to the doctor and they will get the
sex identification of the foetus done
through the doctor. Both the aforesaid
persons disclosed their name as Kallan and
Sanjeev. He further said that these persons
disclosed the expense to be incurred in such
examination by the doctor and then both of
them went to talk to the doctor and a deal
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1049
for Rs. 9,000/- was fixed as charge for such
examination. He further told that out of Rs.
11,000/- given to said Kallan, Rs. 2,000/-
were returned and Rs. 9,000/- was given to
decoy customer, constable Preeti, who has
gone inside for examination by the doctor
and
the
doctor
is
doing
the
sex
identification of the foetus. Saying so, the
said Sanjay Kaushik returned the note of
Rs. 2,000/-. On such intimation, the
Tehsildar had reason to believe that doctors
of Sobha Ram Hospital are conducting the
sex identification of foetus by taking the
customer through their brokers.

5. On such information, Tehsildar
along with his team came near the gate of
the hospital and waited for the return of the
decoy customer, Preeti who came from the
hospital after sometime and informed that
sex identification of the foetus in her womb
has been done by the doctor and the doctor
has told her that the foetus is a girl child.
She further stated that the doctor has not
entered her name or address in any of the
register nor any receipt was given and she
informed that two persons standing outside
the hospital are the agents of the said
doctor. On such information, the police
team came along with the Tehsildar,
arrested the aforesaid two persons and both
of them were searched and one of them
disclosed
his
name
as
Jitendra
@
Satyaprakash
@
Kallan
S/o
Sobhraj
Sharma
resident
of
House
No.
26,
Brahmlok Colony, P.S. Kotwali Nagar,
District-Bulandshahar and on search Rs.
2,000/- note, which was given to the decoy
customer was recovered from right side
pocket of his pant. The other person
disclosed his name as Sanjeev S/o Rajendra
Pal resident of Village Chandpur, P.S.
Kotwali Nagar, District-Bulandshahar and
on search Rs. 2,000/- note was recovered
from right side pocket of his jeans. On
enquiry from both of them, they told that
the lady, who came for sex identification of
the foetus has given Rs. 9,000/- out of
which they have received Rs. 2,000/- each
as commission from the doctor and Rs.
5,000/- is kept by the doctor himself.
Taking immediate action along with the
police team and the two accused persons,
they went to the ultrasound room and the
person, who was present there was
interrogated and he disclosed his name to
be Dr. Brij Pal Singh S/o Late Sobha Ram
resident of Sobha Ram Hospital Bhund,
P.S.-Kotwali Nagar, District-Bulandshahar
and on search Rs. 5,000/- was found on the
back pocket of his pant. The notes which
were recovered were the same, which were
given to the decoy customer Preeti by the
Tehsildar. The said seized notes were kept
in separate envelope and were sealed. The
accused persons were informed that they
have committed an offence under Section
4, 5, 6, 23 and 25 of the PC & PNDT Act
and under Section 315/511 of the I.P.C. and
then they were arrested by the police team.
The Sonography machine, sonography
probe, transvaginal probe and one printer of
make Sony was seized and sealed on the
spot and in the process the persons present
there were asked to be witness of the said
seizure, however, they refused to become
witness and in view thereof, the arrest
memo and seizure memo were prepared.
The instant FIR was written by S.I.
Subhash Singh on the dictation of Tehsildar
and all the members of the police team
have signed as witness to the said incident
and a copy of the said report was also given
to them. On such written report, the Case
Crime No. 0628 of 2017 was registered
against the applicant herein as well as two
other accused persons.

6. After the registration of FIR, the
police has investigated the matter and
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
thereupon submitted the charge sheet on
6.8.2017 before the Magistrate, whereupon
the Chief Judicial Magistrate, Bulandshahar
has taken cognizance on the said charge
sheet on 2.1.2018 and Case No. 60 of 2018
was
registered.
Hence,
the
instant
application under Section 482 Cr.P.C. has
been filed by the applicant- Dr. Brij Pal
Singh, seeking quashing of the entire
proceedings of the aforesaid criminal case
along
with
summoning
order
dated
2.1.2018.

SUBMISSIONS
OF
APPLICANT

7. Learned counsel for the
applicant submits that as per the mandate of
Section 28 of the PC & PNDT Act, no court
can take cognizance of an offence under
this Act, except on the complaint filed by
the appropriate authority. Therefore, the
impugned
summoning
order
dated
02.01.2018, based on an F.I.R. lodged by
the Tehsildar, Khurja, Bulandshahar and
charge sheet submitted by the police, is
against the provisions of Section 28 of the
PC & PNDT Act, as the said Tehsildar is
not the appropriate authority within the
meaning of Section 28 of the PC & PNDT
Act. He submits that in view of Section 17
of the PC&PNDT Act, the appropriate
authority
is
the
District
Magistrate
concerned and not the Tehsildar. Therefore,
no cognizance could have been taken in the
instant case by the court concerned.
Therefore, he has prayed for quashing of
the entire proceedings of the instant case.

8. In support of his submissions,
learned counsel for the applicant has relied
upon the judgement dated 22.3.2024 of the
Co-ordinate Bench of this Court in the case
of Dr. Vinod Kumar Bassi vs. The State of
U.P. and Anr. passed in Application U/S
482 Cr.P.C. 2998 of 2014, 2024 SCC
OnLine All 778, wherein a complaint case
was lodged by the Additional Chief
Medical
Officer,
who
was
not
the
appropriate authority. In view thereof, the
proceedings in the said case were quashed.
Learned counsel for the applicant further
submits that even the appropriate authority
under the PC & PNDT Act is not competent
to lodge the F.I.R., rather the complaint
case has to be filed by appropriate authority
in view of Section 28 of the PC&PNDT
Act. However, in the instant case, the F.I.R.
has been lodged by the Tehsildar, who
claims in the F.I.R. that the Appropriate
Authority i.e., District Magistrate, has
authorised him to carry out the search and
seizure and take action on the information
received by the Appropriate Authority.

9. Learned counsel for the
applicant has further relied upon the
provisions of Section 30 of the PC &
PNDT Act that no search and seizure could
have been done by a person other than the
Appropriate Authority or any other officer
authorized in this behalf by the Central
Government or the State Government as
the case may be.

SUBMISSIONS OF A.G.A.

10. Per contra, Sri Pankaj
Srivastava, learned A.G.A for State relying
upon the judgement dated 21.02.2017 of
the Division Bench of this Court passed in
Criminal Misc. Writ Petition No. 2085 of
2017 (Dr. Rahul Malik vs. State of U.P.
and 3 Ors.) submits that there is no bar in
registration of the F.I.R. and investigation
thereof by the police for the offences under
the PC & PNDT Act. Therefore, there is no
illegality in the process adopted in the
instant case. He further submits that once
the FIR was lodged by the person,
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1051
authorised by the Appropriate Authority,
which was investigated by the police
authorities and thereupon charge-sheet was
filed, on which the cognizance is taken,
there cannot be any illegality. The FIR
lodged by person authorised by the
Appropriate
Authority
is
sufficient
compliance of Section 28 of the PC &
PNDT Act. Thus, he submits that the
applicant herein was caught red handed and
a prima facie case has been made out,
therefore, no interference is called for in
the instant case, while exercising the
powers under section 482 of the Criminal
Procedure Code as such powers are can be
exercised very sparingly in rarest of rare
cases. Hence, he prayed for dismissal of the
instant case.

OBJECT OF THE ACT

11. Before considering the case on
merits, it would be relevant to briefly
understand the historical background of the
PC & PNDT Act as well as the objectives,
which it wants to achieve and the scheme
of the Act with regard to the prosecution of
the offence under the Act. In the year 1994,
the
Pre-Natal
Diagnostic
Techniques
(Regulation and Prevention of Misuse) Act
was enacted by the Parliament and it was
brought into force on 1.1.1996. By way of
Amendment in the year 2003, the title of
the Act was amended as the PreConception And
Pre-Natal
Diagnostic
Techniques (Prohibition of Sex Selection)
Act. The circumstances, which led to the
enactment of the PC & PNDT Act is
summarised in the 'introduction' to the Act
itself, which reads as under:-

"In the recent past Prenatal Diagnostic Centres sprang up
in the urban areas of the country
using
pre-natal
diagnostic
techniques for determination of sex
of the foetus. Such centres became
very popular and their growth was
tremendous as the female child is
not welcomed with open arms in
most of the Indian families. The
result was that such centres became
centres of female foeticide. Such
abuse of the technique is against
the female sex and affects the
dignity and status of women.
Various Organisations working for
the welfare and uplift of the women
raised their heads against such an
abuse. It was considered necessary
to bring out a legislation to
regulate the use of, and to provide
deterrent punishment to stop the
misuse of, such techniques. The
matter was discussed in Parliament
and
the
Pre-natal
Diagnostic
Techniques
(Regulation
and
Prevention of Misuse) Bill, 1991
was introduced in the Lok Sabha.
The Lok Sabha after discussions
adopted a motion for reference of
the said Bill to a Joint Committee
of both the Houses of Parliament in
September,
1991.
The
Joint
Committee presented its report in
December, 1992 and on the basis of
the
recommendations
of
the
Committee,
the
Bill
was
reintroduced in the Parliament."

12. The background and the need
of such Act was arrived due to the
advancement in the medical technology
which was capable of determination of
gender of a foetus before birth, which came
into existence in the late 1970s and 80s and
due to availability of such technology there
was widespread practice of sex-selective
abortions, which in long term started to
disbalance the birth ratio of male and
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
female child and such technology has led to
female foeticide, which had deep social and
cultural impacts and in the long run it may
disturb the existence of human race itself, if
not regulated in time. The intention of the
legislators behind enacting any Act can be
well understood from the 'Statement of
objects and reasons' of the said Act. The
Statement of objects and reasons are the
indicative of the goal, which such Act
wants to achieve. To understand the same
with regard to the PC&PNDT Act, the
Statement of objects and reasons of the
same is being reproduced below:-

"It is proposed to prohibit
pre-natal diagnostic techniques for
determination of sex of the foetus
leading to female foeticide. Such
abuse
of
techniques
is
discriminatory against the female
sex and affects the dignity and
status of women. A legislation is
required to regulate the use of
such techniques and to provide
deterrent punishment to stop such
inhuman act.
The
Bill,
inter
alia,
provides for:-
(i) prohibition of the misuse
of pre-natal diagnostic techniques
for determination of sex of foetus,
leading to female foeticide;
(ii)
prohibition
of
advertisement
of
pre-natal
diagnostic techniques for detection
or determination of sex;
(iii)
permission
and
regulation of the use of pre-natal
diagnostic
techniques
for
the
purpose of detection of specific
genetic abnormalities or disorders;
(iv) permitting the use of
such
techniques
only
under
certain
conditions
by
the
registered institutions; and
(v)
punishment
for
violation of the provisions of the
proposed legislation.
2. The Bill seeks to achieve
the above objectives."

13. Therefore, the main objective
of the Act is to prohibit and regulate the
misuse of medical advancement with
regard to pre-natal diagnostic technique for
determination of sex of the foetus, which
ultimately leads to female foeticide. The
object of the PC&PNDT Act can also be
understood from its long title which reads
as "The Pre-Conception And Pre-Natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994". By the Amendment
in the PC&PNDT Act in 2003 some
provisions were included which are more
stringent to ensure better implementation of
the Act.

SCHEME OF THE ACT

14. As per the definition of
"Appropriate Authority" in Section 2(a), the
Appropriate
Authority
means
the
Appropriate Authority appointed under
Section 17 of the PC&PNDT Act. Section
2(b) defines "foetus" which means a human
organism
during
the
period
of
its
development beginning on the fifty-seventh
day following fertilization or creation,
excluding
any
time
in
which
its
development has been suspended, and
ending at the birth. Section 2(i) defines the
"pre-natal diagnostic procedures" which
means all gynaecological or obstetrical or
medical procedures. Section 2(j) defines
"pre-natal diagnostic techniques. Section
2(o) defines "Sex Selection", which reads
as under:-
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1053
"2(o)
"sex
selection"
includes any procedure, technique,
test
or
administration
or
prescription
or
provision
of
anything
for
the
purpose
of
ensuring
or
increasing
the
probability that an embryo will be
of a particular sex."

15. Section 3 of the PC & PNDT
Act provides for the 'Regulation of Genetic
Counselling Centres, Genetic Laboratories
and Genetic Clinics'. Section 3A prohibits
the sex-selection and the same reads as
under:-

"3A. Prohibition of sexselection.-No person, including a
specialist or a team of specialists in
the field of infertility, shall conduct
or cause to be conducted or aid in
conducting by himself or by any
other person, sex selection on a
woman or a man or on both or on
any tissue, embryo, conceptus, fluid
or gametes derived from either or
both of them."

16. Section 3B prohibits the sale of
ultrasound machine, etc., to persons,
laboratories, clinics, etc., not registered
under the PC & PNDT Act.

17. Chapter III of the PC &
PNDT Act provides for regulation of
pre-natal diagnostic techniques. Section
4 deals with Regulation of pre-natal
diagnostic
techniques,
Section
5
provides
for prior
consent of
the
pregnant woman before undergoing any
pre-natal
diagnostic
techniques
and
prohibits the communication of sex of
the foetus. For ready reference, Section
5 of the PC & PNDT Act is reproduced
below:-
"5. Written consent of
pregnant woman and prohibition
of communicating the sex of
foetus.-(1) No person referred to in
clause (2) of section 3 shall
conduct the pre-natal diagnostic
procedures unless-
(a) he has explained all
known side and after effects of such
procedures to the pregnant woman
concerned;
(b) he has obtained in the
prescribed form her written consent
to undergo such procedures in the
language which she understands;
and
(c) a copy of her written
consent obtained under clause (b)
is given to the pregnant woman.
(2) No person including the
person
conducting
pre-natal
diagnostic
procedures
shall
communicate
to
the
pregnant
woman concerned or her relatives
or any other person the sex of the
foetus by words, signs or in any
other manner. "

18. Section 6 prohibits the
determination of sex and the same is also
reproduced herein:-

"6. Determination of sex
prohibited.-On
and
from
the
commencement of this Act,-
(a) no Genetic Counselling
Centre or Genetic Laboratory or
Genetic Clinic shall conduct or
cause to be conducted in its Centre,
Laboratory or Clinic, pre-natal
diagnostic
techniques
including
ultrasonography, for the purpose of
determining the sex of a foetus;
(b) no person shall conduct
or cause to be conducted any pre-
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
natal
diagnostic
techniques
including ultrasonography for the
purpose of determining the sex of a
foetus;
(c) no person shall, by
whatever means, cause or allow to
be caused selection of sex before or
after conception."

19. Chapter IV of the PC & PNDT
Act deals with the constitution of the
Central Supervisory Board and procedures
with regard to meeting of the Board, etc.,
filling of the vacancies, appointment of all
officers and other employees of the Board,
eligibility and disqualifications and the
functions of the Board. Section 16A deals
with the Constitution of State Supervisory
Board and Union Territory Supervisory
Board. Section 17 under Chapter V of the
PC
&
PNDT Act
deals
with
the
appointment of the Appropriate Authority
and Advisory Committee, which reads as
under:-

"17. Appropriate Authority
and Advisory Committee.-(1) The
Central Government shall appoint,
by notification in the Official
Gazette, one or more Appropriate
Authorities for each of the Union
territories for the purposes of this
Act.
(2) The State Government
shall appoint, by notification in the
Official Gazette, one or more
Appropriate Authorities for the
whole or part of the State for the
purposes of this Act having regard
to the intensity of the problem of
pre-natal sex determination leading
to female foeticide.

(3) The officers appointed
as Appropriate Authorities under
sub-section (1) or sub-section (2)
shall be,-
(a) when appointed for the
whole of the State or the Union
territory,
consisting
of
the
following three members:-
(i) an officer of or above
the rank of the Joint Director of
Health
and
Family
WelfareChairperson;
(ii) an eminent woman
representing women's organization;
and
(iii) an officer of Law
Department of the State or the
Union territory concerned:
Provided that it shall be the
duty of the State or the Union
territory concerned to constitute
multimember
State
or
Union
territory
level
Appropriate
Authority within three months of
the coming into force of the Prenatal
Diagnostic
Techniques
(Regulation and Prevention of
Misuse) Amendment Act, 2002:
Provided further that any
vacancy occurring therein shall be
filled within three months of that
occurrence.
(b) when appointed for any
part of the State or the Union
territory, of such other rank as the
State Government or the Central
Government, as the case may be,
may deem fit.
(4)
The
Appropriate
Authority shall have the following
functions, namely:-
(a) to grant, suspend or
cancel registration of a Genetic
Counselling
Centre,
Genetic
Laboratory or Genetic Clinic;
(b) to enforce standards
prescribed
for
the
Genetic
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1055
Counselling
Centre,
Genetic
Laboratory and Genetic Clinic;
(c)
to
investigate
complaints of breach of the
provisions of this Act or the rules
made
thereunder
and
take
immediate action;
(d) to seek and consider the
advice of the Advisory Committee,
constituted under sub-section (5),
on application for registration and
on complaints for suspension or
cancellation of registration;
(e) to take appropriate
legal action against the use of any
sex selection technique by any
person at any place, suo motu or
brought to its notice and also to
initiate independent investigations
in such matter;
(f)
to
create
public
awareness against the practice of
sex
selection
or
pre-natal
determination of sex;
(g)
to
supervise
the
implementation of the provisions of
the Act and rules;
(h) to recommend to the
Board
and
State
Boards
modifications required in the rules
in accordance with changes in
technology or social conditions;
(i) to take action on the
recommendations of the Advisory
Committee
made
after
investigation of complaint for
suspension or cancellation of
registration.
(5)
The
Central
Government
or
the
State
Government, as the case may be,
shall
constitute
an
Advisory
Committee for each Appropriate
Authority to aid and advise the
Appropriate
Authority
in
the
discharge of its functions, and shall
appoint one of the members of the
Advisory Committee to be its
Chairman.
(6)
The
Advisory
Committee shall consist of-
(a) three medical experts
from
amongst
gynaecologists,
obstericians, paediatricians and
medical geneticists;
(b) one legal expert;
(c) one officer to represent
the
department
dealing
with
information and publicity of the
State Government or the Union
territory, as the case may be;
(d) three eminent social
workers of whom not less than one
shall
be
from
amongst
representatives
of
women's
organisations.
(7) No person who has
been associated with the use or
promotion of pre-natal diagnostic
technique for determination of sex
or sex selection shall be appointed
as a member of the Advisory
Committee.
(8)
The
Advisory
Committee may meet as and when
it thinks fit or on the request of the
Appropriate
Authority
for
consideration of any application
for registration or any complaint
for suspension or cancellation of
registration and to give advice
thereon:
Provided that the period
intervening
between
any
two
meetings shall not exceed the
prescribed period.
(9)
The
terms
and
conditions subject to which a
person may be appointed to the
Advisory
Committee
and
the
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure to be followed by such
Committee in the discharge of its
functions shall be such as may be
prescribed."

20. Sub-section (1) of Section 17
empowers the Central Government to
appoint one or more Appropriate authorities
for each of the Union territories for the
purpose of this Act. Sub-section (2) of
Section 17 empowers the State Government
to appoint, by notification in the official
Gazette,
one
or
more
Appropriate
Authorities for the whole or part of the
State having regard to the intensity of the
problem of pre-natal sex determination
leading to female foeticide. Sub-section (3)
of Section 17 deals with the eligibility as to
who can be appointed as Appropriate
Authorities. Sub-section (4) of Section 17
deals with the functions of the Appropriate
Authority. Section 17(4)(c) empowers the
Appropriate Authority to investigate the
complaints received by it for any breach of
the provisions of the Act or the Rules.
Section 17(4)(e) empowers the Appropriate
Authority to take appropriate legal action
against use of any sex selection techniques,
either suo-motu or on information received
and to carry out independent investigation.
Section
17(4)(i)
directs
that
after
completion
of
investigation,
the
Appropriate Authority shall act on the
recommendation
of
the
Advisory
Committee constituted under Section 17(5)
of the Act. Sub-section (5) empowers the
Central
Government
or
the
State
Government, as the case may be, to
constitute a Advisory Committee for each
Appropriate Authority to aid and advise the
Appropriate Authority in the discharge of
its function and shall appoint one of the
members of such Advisory Committee as
Chairman thereof. Sub-section (7) prohibits
the person, who has been associated with
the determination of sex or sex-selection
shall not be appointed as member of the
Advisory Committee. Sub-section (8) of
Section 17 provides the procedure with
regard to functioning of the Advisory
Committee and sub-section (9) empowers
the concerned Government to regulate the
terms and conditions of the Advisory
Committee.
Section
17A
which
was
introduced by way of Amendment in 2003
describes the powers of the Appropriate
Authority which are as follows:-

"17A.
Powers
of
Appropriate
Authorities.-
The
Appropriate Authority shall have
the powers in respect of the
following matters, namely:-
a)
summoning
of any
person who is in possession of any
information relating to violation of
the provisions of this Act or the
rules made thereunder;
b)
production
of
any
document
or
material
object
relating to clause (a);
c) issuing search warrant
for any place suspected to be
indulging
in
sex
selection
techniques
or
pre-natal
sex
determination; and
d) any other matter which
may be prescribed."

21. Thus, Section 17A gives teeth
to the existing power of the Appropriate
Authority. Now while investigating any
matter in view of Section 17(4) of the Act,
the Appropriate Authority can summon any
person, who has any information regarding
the violation of the provisions of the Act or
the Rules and direct for production of
documents and can issue search warrant for
any place, suspected to be indulging in any
sex-selection techniques or pre-natal sex
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1057
determination. Further powers may also be
assigned to the Appropriate Authorities by
the appropriate Government or by the
Rules.

22. Chapter VI of the PC & PNDT
Act deals with the 'Registration of Genetic
Counselling Centres, Genetic Laboratories
and Genetic Clinics'. Section 20 of the PC
& PNDT Act deals with cancellation or
suspension of registration and the same
reads as under:-

"20.
Cancellation
or
suspension of registration.-(1) The
Appropriate Authority may suo
moto, or on complaint, issue a
notice to the Genetic Counselling
Centre, Genetic Laboratory or
Genetic Clinic to show cause why
its registration should not be
suspended or cancelled for the
reasons mentioned in the notice.
(2)
If,
after
giving
a
reasonable opportunity of being
heard to the Genetic Counselling
Centre, Genetic Laboratory or
Genetic Clinic and having regard
to the advice of the Advisory
Committee,
the
Appropriate
Authority is satisfied that there has
been a breach of the provisions of
this Act or the rules, it may, without
prejudice to any criminal action
that it may take against such
Centre,
Laboratory
or
Clinic,
suspend its registration for such
period as it may think fit or cancel
its registration, as the case may be.
(3)
Notwithstanding
anything contained in sub-sections
(1) and (2), if the Appropriate
Authority is, of the opinion that it is
necessary or expedient so to do in
the public interest, it may, for
reasons to be recorded in writing,
suspend the registration of any
Genetic
Counselling
Centre,
Genetic Laboratory or Genetic
Clinic without issuing any such
notice referred to in sub-section
(1)."

23. Chapter VII of the PC
& PNDT Act deals with 'Offences
and Penalties' and Section 23
thereof is reproduced below:-

"23. Offences and
penalties.- (1) Any medical
geneticist,
gynaecologist,
registered
medical
practitioner or any person
who
owns
a
Genetic
Counselling
Centre,
a
Genetic Laboratory or a
Genetic
Clinic
or
is
employed in such a Centre,
Laboratory or Clinic and
renders his professional or
technical services to or at
such a Centre, Laboratory
or Clinic, whether on an
honorary
basis
or
otherwise,
and
who
contravenes any of the
provisions of this Act or
rules
made
thereunder
shall be punishable with
imprisonment for a term
which may extend to three
years and with fine which
may
extend
to
ten
thousand rupees and on
any subsequent conviction,
with imprisonment which
may extend to five years
and with fine which may
extend to fifty thousand
rupees.
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) The name of the
registered
medical
practitioner
shall
be
reported by the Appropriate
Authority
to
the
State
Medical Council concerned
for taking necessary action
including suspension of
the
registration
if
the
charges are framed by the
court and till the case is
disposed
of
and
on
conviction for removal of
his name from the register
of the Council for a period
of five years for the first
offence and permanently
for the subsequent offence.

(3) Any person who
seeks the aid of a Genetic
Counselling
Centre,
Genetic
Laboratory,
Genetic
Clinic
or
ultrasound
clinic
or
imaging clinic or of a
medical
geneticist,
gynaecologist,
sonologist
or imaging specialist or
registered
medical
practitioner or any other
person for sex selection or
for conducting pre- natal
diagnostic techniques on
any pregnant women for
the purposes other than
those specified in subsection (2) of section 4, he
shall, be punishable with
imprisonment for a term
which may extend to three
years and with fine which
may
extend
to
fifty
thousand rupees for the
first offence and for any
subsequent offence with
imprisonment which may
extend to five years and
with
fine
which
may
extend to one lakh rupees.
(4) For the removal
of doubts, it is hereby
provided,
that
the
provisions of sub-section
(3) shall not apply to the
woman who was compelled
to undergo such diagnostic
techniques
or
such
selection."

24. Section 24 of the PC & PNDT
Act which was amended in 2003 protects
the pregnant women from prosecution
under the Act as the presumption is raised
that unless proved otherwise, it shall be
presumed that the pregnant women was
compelled by her husband or any other
relative, as the case may be, to undergo prenatal diagnostic technique for the purposes
other than those specified in sub-section (2)
of Section 4 and such person shall be liable
for abetment of offence under sub-section
(3) of Section 23 and shall be punished for
such offence. Section 25 provides for
penalty for contravention of the provisions
of the Act or rules for which no specific
punishment is provided. Section 26 deals
with the offence committed by the
companies. Section 27 makes the offence
under the PC & PNDT Act to be
cognizable,
non-bailable
and
noncompoundable and the same reads as
under:-

"27.
Offence
to
be
cognizable, non-bailable and noncompoundable.-Every
offence
under this Act shall be cognizable,
non-bailable
and
noncompoundable."
9 All. Dr. Brij Pal Singh Vs. State of U.P. & Anr.
1059
25. Section 28 of the PC & PNDT
Act deals with the cognizance of offence
which is reproduced herein:-