Statutory bar on cognizance under PC&PNDT Act does not preclude police investigation into independent IPC offences.

An FIR (CR No. II-406/2012) was registered by a Sub-Divisional Magistrate (SDM) against the applicant, a gynecologist, alleging violations of Sections 3A, 3B, 4, 5, 6, 22, 23, 25, and 29 of the Pre-Conception & Pre-Natal Diagnostic Techniques (PC&PNDT) Act, 1994

Following a sting operation and search, the police filed a charge-sheet adding Sections 313, 315, and 114 of the Indian Penal Code (IPC)

The applicant moved for discharge under Section 227 of the Cr.PC regarding the IPC offences, contending that Section 28 of the PC&PNDT Act bars police FIRs and limits cognizance to complaints by "appropriate authorities"

The 2nd Additional Sessions Judge, Mehsana, rejected the discharge application on 11.07.2024

The applicant approached the High Court in revision, asserting that the IPC sections were illegally invoked in a decoy trap scenario where no actual miscarriage occurred and that the SDM lacked authority to move the police machinery

Section 28 of the PC&PNDT Act, which mandates that no court shall take cognizance of an offence under the Act except on a complaint by the Appropriate Authority

Full Bench decision in Suo Motu v. State of Gujarat (2008), which clarified the procedures for taking cognizance and the burden of proof regarding record-keeping under the Act

principle from Jayant v. State of Madhya Pradesh (2021), which established that a statutory bar on taking cognizance under a special act (like the MMDR Act or PC&PNDT Act) does not preclude the police from investigating or the Magistrate from taking cognizance of distinct IPC offences discovered during the investigation

Rule 18A(3)(iv) of the PC&PNDT Rules, which advises against involving police "as far as possible" but does not impose an absolute prohibition

The court rejected the applicant's contention that Section 28 of the PC&PNDT Act creates an blanket immunity against police investigation

It reasoned that while the PC&PNDT Act regulates prenatal diagnostic techniques and requires a specific complaint for its specific violations, it does not debar the police from investigating cognizable IPC offences, such as causing miscarriage without consent (Sec. 313) or acts to prevent a child being born alive (Sec. 315)

The court scrutinized the witness statements (patients and their relatives) which alleged that the applicant had performed abortions without written or oral consent after informing them of the female sex of the foetus

The court found that these statements provided independent grounds for the IPC charges, distinct from the regulatory lapses under the PC&PNDT Act

Consequently, since IPC 313 and 315 are Sessions-triable offences, the police-led charge-sheet was maintainable for these counts

The court held that the police possess independent authority to investigate and charge-sheet for IPC offences even if the investigation originated from a special statute's violation

It directed that the Sessions Court holds jurisdiction to try the accused for Sections 313 and 315 of the IPC

Regarding the PC&PNDT Act violations, the court noted that the Magistrate must ensure a private complaint is filed by the authorized person under Section 28 if one is not already pending, as those offences are triable by a Magistrate and not the Sessions Court