2026 INSC 176

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026

(ARISING OUT OF SLP (CRIMINAL) NO. 5915 OF 2025)

DR. NARESH KUMAR GARG APPELLANT(S)

VERSUS

STATE OF HARYANA AND ORS. RESPONDENT(S)

J U D G M E N T

UJJAL BHUYAN, J.

Leave granted.

2. This appeal by special leave is directed against

the judgment and order dated 24.07.2024 passed by the

High Court of Punjab and Haryana at Chandigarh (briefly

‘the High Court’ hereinafter) in CRM-M No. 52858 of 2022

(Naresh Kumar Garg Vs. State of Haryana).

2

3. It may be mentioned that appellant as the

petitioner had filed a petition under Section 482 of the Code

of Criminal Procedure, 1973 (briefly ‘the Cr.P.C.’ hereinafter)

for quashing of the complaint bearing No. COMA/116/2018

dated 19.09.2018 filed under various provisions of the Pre-

Conception and Pre-Natal Diagnostic Techniques (Prohibition

of Sex Selection) Act, 1994 (briefly, ‘the PCPNDT Act’

hereinafter) as well as the summoning order dated 12.09.2022

passed by the Judicial Magistrate First Class, Gurugram.

However, vide the impugned judgment and order dated

24.07.2024, the High Court dismissed the aforesaid petition.

4. At the outset, a brief recital of the relevant facts

would be in order.

5. It is stated that appellant is a qualified radiologist

by profession.

5.1. On 17.09.2015, Chairman, District Appropriate

Authority-cum-Civil Surgeon, Gurugram, Dr. Pushpa

Bishnoi received a complaint from a lady named Smt. Rajni

to the effect that she knew a person called Dr. Abdul Kadir

of Geetanjali Hospital in Badshahpur who was allegedly

3

running a racket of illegal sex-determination. On receipt of

such a complaint, the Chairman constituted a three-

member team alongwith support staff to conduct a raid and

investigate the complaint against the said Dr. Abdul Kadir.

5.2. A pregnant lady named Smt. Suman had come to

the Civil Hospital, Gurugram for her routine checkup on

17.09.2015. Dr. Saryu Sharma, who was a member of the

team constituted by the Chairman, approached her and

apprised her about the complaint against Dr. Abdul Kadir.

Dr. Sharma requested her if she could help the authority by

becoming a decoy patient in the proposed raid. The lady

Smt. Suman agreed to the proposal and gave her written

consent to become a decoy patient.

5.3. Thereafter, shadow witness Rajni was asked to

call Dr. Abdul Kadir and to ask him for sex-determination of

her relative i.e. the decoy patient Smt. Suman. Dr. Kadir was

informed that Smt. Suman was pregnant and that she

wanted to know the sex of her foetus. Dr. Abdul Kadir agreed

to the proposal but demanded Rs. 25,000.00 for carrying out

sex-determination of the foetus and thereafter to disclose

the same. Shadow witness Rajni agreed to pay the same.

4

5.4. Dr. Saryu Sharma gave Rs. 25,000.00 (Rs. 1,000

into 25 notes) to shadow witness Rajni whereafter Smt.

Suman accompanied by shadow witness Rajni went to

Sector 56, Gurugram (near Badshahpur) to meet Dr. Abdul

Kadir, who came after some time in his vehicle. Dr. Kadir

asked the two of them to sit in his vehicle whereafter he was

paid Rs. 25,000.00. He started driving his vehicle towards

Vatika Medicare in Sector 45, Gurugram. After talking with

someone over phone, he told the two of them that he had a

word with one Dr. Naresh Garg, a radiologist, at Vatika

Medicare who would conduct the ultrasound on the patient

in order to determine the sex of her foetus. Dr. Kadir

informed the two ladies that Dr. Naresh Garg would neither

ask the patient to sign any document nor would he sign

Form F. Dr. Kadir further clarified that Dr. Naresh Garg

would not make any entry of the patient in the register and

that he would provide the patient the ultrasound report

without putting his signature within a day or two.

5.5. It may be mentioned that the team constituted by

the Chairman was following the vehicle of Dr. Abdul Kadir.

When Dr. Kadir and the two ladies reached Vatika Medicare,

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he asked the patient to go to the room of the ultrasonologist

to get her ultrasound done. It is the case of the complainant

that the ultrasound on patient Suman was conducted by Dr.

Naresh Garg himself. Dr. Garg neither signed Form F nor

did he ask Smt. Suman to sign any document. He also did

not sign the ultrasound report.

5.6. It was at this stage that the team members

constituted by the Chairman alongwith other officials and

police personnel confronted Dr. Abdul Kadir and recovered

Rs. 25,000.00 from his right pocket. The numbers of these

notes matched the numbers of the notes given by the team

to the decoy patient. The team also confronted Dr. Naresh

Garg and on checking all records found that Form F had not

been signed by Dr. Naresh Garg. There was no entry of the

name of the decoy patient Smt. Suman in any register

maintained in the hospital.

6. Dr. Saryu Sharma gave first information to the

police at the spot on the basis of which FIR No. 336 of 2015

dated 17.09.2015 was registered by the police of Police

Station Sector 40, Gurugram.

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6.1. On conclusion of investigation, police filed a

discharge application dated 28.10.2015 before the trial

court stating that there was no incriminating material

against the appellant. By order of the same date i.e.

28.10.2015, trial court allowed the application filed by the

police and discharged the appellant.

7. District Advisory Committee adopted resolution

dated 17.12.2015 recommending lodging of a complaint

against the appellant Dr. Abdul Kadir, the appellant, and

Vatika Medicare. Ultimately one Dr. Chitranjan, Deputy

Civil Surgeon, was authorized by the District Appropriate

Authority to lodge a complaint against the appellant under

the PCPNDT Act vide the authorization letter dated

17.09.2018.

7.1. Pursuant thereto, a complaint bearing No.

COMA/116/2018 was lodged against the appellant and Dr.

Abdul Kadir under various provisions of the PCPNDT Act as

well as under Rules 9 and 10 of the Pre-Conception and Pre-

Natal Diagnostic Techniques (Prohibition of Sex Selection)

Rules, 1996 (briefly, ‘the PCPNDT Rules’ hereinafter). As

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there was delay in lodging of the complaint, an application

for condonation of delay was also filed.

7.2. By order dated 18.09.2018, the trial court allowed

the application for condonation of delay. Thereafter the trial

court i.e. Judicial Magistrate First Class, Gurugam vide

order dated 12.09.2022 summoned the accused persons i.e.

Dr. Abdul Kadir and Dr. Naresh Garg under Section 3 of the

PCPNDT Act for 30.11.2022.

8. Aggrieved thereby, appellant filed a petition

before the High Court under Section 482 Cr.P.C. for

quashing of the complaint dated 18.09.2018, the

summoning order dated 12.09.2022 and all consequential

proceedings, which was registered as CRM-M-52858/2022.

By the impugned judgment and order dated 24.07.2024, the

High Court dismissed the said petition holding that there

was no merit therein.

9. Aggrieved thereby, the related special leave

petition was filed.

10. This Court vide the order dated 15.04.2025 had

issued notice and in the meanwhile directed stay of

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proceedings of complaint case bearing No. COMA/116/2018

pending before the Chief Judicial Magistrate, (Judicial

Magistrate First Class) Gurugram, Haryana.

11. Learned senior counsel for the appellant

Mr. Bhalla submits that appellant is a doctor who works as

an employee in a diagnostic center at Gurugram. He is being

wrongly and illegally prosecuted for the offences under

Sections 23 and 29 of the PCPNDT Act, Sections 4, 5 and 6

thereof added later on. According to him, appellant is a

victim of an illegal raid/sting operation which led to

registration of an FIR in which appellant was discharged. It

is unfortunate that after his discharge, the District

Appropriate Authority, Gurugram lodged the related

complaint in which appellant was summoned.

11.1. It is submitted that nothing has been recovered

from the appellant. Witnesses had deposed both in the

complaint proceedings as well as before the police that

appellant did not disclose the sex of the foetus. On the other

hand, an amount of Rs. 25,000.00 was recovered from Dr.

Abdul Kadir. The only surviving allegation against the

9

appellant is that he did not fill in the requisite forms and

registers.

11.2. Referring to the order dated 17.09.2015 directing

conduct of a sting operation, learned senior counsel submits

that the said order was not a legally valid order in as much

as the same was passed by a solitary member of the District

Appropriate Authority. In this connection, reference has

been made to a judgment of this Court reported in Ravinder

Kumar Vs. State of Haryana

1 wherein it has been held that

an order passed by a single member of the District

Appropriate Authority directing conduct of a sting operation

is illegal and void and renders the entire proceedings null

and void. Learned senior counsel asserts that the order

dated 17.09.2015 which led to the sting operation which

further led to registration of FIR and lodging of complaint

against the appellant amongst others was not passed by the

District Appropriate Authority but by a single member of the

said authority. Therefore, in view of Section 30 of the

PCPNDT Act and the judgment of this Court in Ravinder

1

2024 SCC Online SC 2495

10

Kumar, the said order dated 17.09.2015 has no legal

significance; as a result, the resultant sting operation, the

documents collected pursuant thereto, the complaint and

the order of summoning by the trial court are illegal and

void; thus liable to be set aside.

11.3. Learned senior counsel asserts that facts in

Ravinder Kumar are identical to the facts in the appellant’s

case in as much as the sting operation was ordered by a

single member of the District Appropriate Authority. That

being so, the decision of this Court in Ravinder Kumar is

squarely applicable to the facts of the present case.

Consequently, the sting operation directed by order dated

17.09.2015 would be a nullity; hence the complaint and the

summoning order are liable to be quashed as being wholly

untenable in law as well as on facts.

11.4. Learned senior counsel submits that the District

Appropriate Authority is defined under Section 2(a) of the

PCPNDT Act. It is appointed and notified under Section 17.

The notification constituting the District Appropriate

Authority in the present case was issued on 07.11.2013 and

comprises of the following members:

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(i) Civil Surgeon;

(ii) District Programme Officer, Women and Child

Development Department; and

(iii) District Attorney.

11.5. The power to conduct search and seizure is

contained in Section 30 of the aforesaid Act. The order to

conduct search and seizure is required to be passed by the

District Appropriate Authority i.e. by all the three members.

In so far the present case is concerned, the order to conduct

the raid was admittedly passed only by the Civil Surgeon on

17.09.2015 without associating the other two members viz.

the District Programme Officer of the Women and Child

Development Department and the District Attorney.

11.6. In so far FIR No. 0336 dated 17.09.2015 is

concerned, learned senior counsel submits that the said FIR

was registered against Dr. Abdul Kadir and the appellant

pursuant to the raid. However, the appellant was discharged

by the trial court vide the order dated 28.10.2015 pursuant

to an application dated 28.10.2015 of the prosecution on the

ground that police could not find any connection between

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the appellant and Dr. Abdul Kadir who is now facing

prosecution in the criminal case arising out of the FIR

registered under Section 420 of the Indian Penal Code, 1860

(IPC).

11.7. It was only after the discharge of the appellant

that the complaint was filed. Learned senior counsel

submits that the subsequent complaint is not maintainable

in as much as the complaint is based on the same set of

facts on which the appellant was earlier discharged.

11.8. Mr. Bhalla, learned senior counsel, submits that

appellant was discharged because both the witnesses had

denied that he had informed them about the sex of the

foetus. That apart, one of the witnesses Smt. Rajni denied

her presence at Vatika Hospital; rather, she stated that she

was present at Medanta Hospital. That apart, respondents

have failed to establish beyond a reasonable doubt any

relationship between the parties. Further, it was the case of

the respondents that appellant had allegedly committed the

offence on the instructions of Dr. Abdul Kadir. However, no

evidence was tendered to prove the relationship.

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11.9. Learned senior counsel submits that the raiding

party comprised of Dr. Saryu Sharma (Deputy Civil Surgeon,

Gurugram), Shri Shyam Sundar (Secretary, Red Cross,

Gurugram) and Shri Amandeep Chauhan (Drugs Control

Officer). Thereafter, the District Advisory Committee was

formed in which one of the members of the raiding party i.e.

Shri Shyam Sundar was made a member of the District

Advisory Committee vide the resolution dated 27.12.2015.

This is contrary to Rule 18A(2)(ii) of the PCPNDT Rules

which prohibits a member of the investigating authority in

becoming a part of the District Advisory Committee.

11.10. Much emphasis has been laid by learned senior

counsel for the appellant on the fact that it was only after

the discharge of the appellant in the criminal case based on

the FIR, that the complaint was filed. Such a complaint is

not maintainable. That apart, court proceedings have

revealed that both the witnesses i.e. the pregnant lady

Suman and the shadow witness Rajni have categorically

denied that Dr. Naresh Kumar Garg, the appellant, had ever

informed them about the sex of the foetus. Appellant was

summoned and made party to the complaint despite having

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been discharged in the criminal case arising out of FIR No.

336 of 2015 which pertained to the same incident and

identical evidence. Therefore, the contention is that the

complaint and all proceedings arising therefrom should be

quashed as otherwise the appellant would have to suffer the

ordeal of a criminal trial which is based on identical evidence

as in the criminal case arising out of the related FIR in which

the appellant was discharged.

11.11. Based on the aforesaid submissions, learned

senior counsel for the appellant submits that the present

appeal should be allowed in the interest of justice.

12. Per contra, Mr. Neeraj, learned Additional

Advocate General appearing for the respondents submits

that the impugned judgment is a well-reasoned one. The

present appeal is wholly misconceived. It is totally devoid of

merit. It seeks to unsettle the well-reasoned judgment of the

High Court. Therefore, the appeal should be dismissed.

12.1. Learned Additional Advocate General thereafter

gave a brief narration of the facts. He submitted that on

17.09.2015, acting upon information indicative of illegal pre-

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natal sex determination, the district authority conducted a raid

in the clinic of the appellant. The raiding team seized the

ultrasound machine, documents, incomplete and deficient

forms and entries, unregistered referrals and records that

were prima-facie in violation of Rules 9 and 10 of the

PCPNDT Rules. He then referred to the provisions of Rules

9 and 10.

12.2. An FIR was initially registered and based upon

police investigation, appellant was discharged in that

proceeding on 28.10.2015.

12.3. Asserting that PCPNDT Act confers independent

powers upon the District Appropriate Authority to initiate

proceedings upon examination of the records and statutory

contravention, learned Additional Advocate General submits

that the District Advisory Committee met on 17.12.2015 and

examined the materials whereafter it recommended filing of

complaint. The District Appropriate Authority authorized

initiation of complaint proceedings by issuing a formal

authorization to the Deputy Civil Surgeon under Rule 18A

of the PCPNDT Rules on 17.09.2018.

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12.4. Submitting that no case for interference by this

Court in the complaint proceedings have been made out,

learned Additional Advocate General submits that appellant

has failed to establish that the complaint discloses no

offence and that the prosecution is manifestly absurd or that

the action is barred by law. It is contended that the raid was

carried out on 17.09.2015 by a duly constituted

enforcement team, supervised by the District Appropriate

Authority and documented contemporaneously. The mere

allegation that the authorization letter did not contain all

signatures is insufficient to quash a complaint. The

presumption of validity of the raid stood reinforced by

subsequent ratification through the District Advisory

Committee proceedings, the decision of the District

Appropriate Authority and Rule 18A of the PCPNDT Rules.

No mala fide or perversity has been demonstrated by the

appellant.

12.5. Adverting to Section 17(4)(c) of the PCPNDT Act,

learned Additional Advocate General submits that the said

provision expressly empowers the appropriate authority to

take immediate action if the circumstances so warrant. The

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Chairperson upon receiving credible information acted

promptly to prevent destruction and manipulation of record.

The subsequent discovery of Form F entries fully validates

the need for urgency.

12.6. Referring to the decision of this Court in

Federation of Obstetrics and Gynaecological Societies of India

(FOGSI) Vs. Union of India

2, learned Additional Advocate

General submits that there is clear violation of Rules 9 and

10 of the PCPNDT Rules in this case. Such violations by the

appellant are not minor procedural lapses but grave

statutory contraventions that strike at the very heart of the

PCPNDT Act. He has also referred to Rule 18A of the

PCPNDT Rules which empowers the appropriate authority

to delegate its functions to subordinate authority.

Accordingly, the District Appropriate Authority delegated to

the Deputy Civil Surgeon the authority to file the complaint.

Contention of the appellant that the District Appropriate

Authority as a whole must physically authorize filing of

complaint is untenable.

2

(2019) 6 SCC 283

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12.7. Further submission is that the argument of the

appellant that the District Advisory Committee also

comprised of an individual who was a member of the raiding

party, thus vitiating proceedings of the District Advisory

Committee, is irrelevant. Even assuming irregularity, which

is not conceded, such irregularity in the composition of an

advisory body cannot vitiate a prosecution initiated

independently by the District Appropriate Authority.

However, he has clarified that this submission of the

appellant is factually incorrect. The allegation that one

Shyam Sunder was a member of the District Advisory

Committee who also participated in the raid is factually

incorrect. The said individual was not a member of any

investigating agency. He was a civilian volunteer associated

with the Red Cross assisting the district authorities in social

welfare enforcements. He had neither any formal

investigative powers nor was he part of the police machinery.

Rule 18A(2)(ii) of the PCPNDT Rules applies only to persons

from the investigating machinery meaning police or

statutory enforcement bodies. Even assuming an

irregularity in the composition of the District Advisory

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Committee, such irregularity cannot invalidate an entire

prosecution based on a statutory complaint. The role of the

District Advisory Committee is purely advisory; its views are

not binding and the independent decision of the District

Appropriate Authority to lodge complaint is unaffected.

12.8. Learned counsel for the respondents also refuted

the submission made on behalf of the appellant regarding

violation of Section 30(2) of the PCPNDT Act. He submits

that there has been substantial compliance to Section 30(2)

of the aforesaid Act. A search which is otherwise valid,

cannot be invalidated on a hyper technical ground.

12.9. That apart, the complaint was lodged well within

limitation. Though the FIR was registered on 17.09.2015,

police filed final report on 15.11.2015. Thereafter District

Advisory Committee in its meeting held on 17.12.2015

recommended initiation of complaint proceedings. The

District Appropriate Authority, Gurugram formally

authorized Dr. Chitranjan on 17.09.2018 to lodge the

complaint which was duly instituted on 18.09.2018.

Learned Additional Advocate General submits that

limitation would run from the date of recommendation of the

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District Advisory Committee or authorization of the District

Appropriate Authority and not from the date of registration

of FIR. Since the offence carries a punishment of three years,

complaint falls squarely within the ambit of Section 468(2)(c)

Cr.P.C.

12.10. Finally, learned Additional Advocate

General submits that the discharge granted on 28.10.2015

pertained to police investigation following lodging of FIR.

However, the PCPNDT Act mandates that the court should

take cognizance only upon a complaint filed by the

appropriate authority. A police discharge order would have

no bearing on the independent statutory power of the

District Appropriate Authority.

12.11. Learned Additional Advocate General has drawn

the attention of the Court to the object of the legislation. He

submits that female foeticide is a matter of national concern.

Social welfare statutes, like the PCPNDT Act, must be

implemented with all seriousness. This Court has time and

again directed the States to ensure strict compliance with

the statute. Quashing of a complaint proceeding at the

threshold on hyper technical grounds would send a contrary

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signal and weaken enforcement at the grass root. Considering

all these factors, the appeal should be dismissed, he submits.

13. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

14. At the outset, let us advert to the relevant

provisions of the PCPNDT Act and the PCPNDT Rules.

15. The Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex Selection) Act, 1994 (already

referred to as ‘the PCPNDT Act’ hereinabove) is a social

welfare legislation. It is a law enacted to prohibit sex

selection leading to female foeticide in India. It, inter alia,

aims to arrest the declining sex ratio in India. The objectives

of the PCPNDT Act declare that the said Act provides for

prohibition of sex selection, before or after conception, and

for regulation of pre-natal diagnostic techniques to prevent

their misuse for sex determination leading to female

foeticide and for matters connected therewith or incidental

thereto. The PCPNDT Act, inter alia, provides for:

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(i) prohibition of the misuse of pre-natal diagnostic

techniques for determination of the sex of the 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

Act.

16. Preamble to the PCPNDT Act says that it is an Act

to provide for the prohibition of sex selection, before or after

conception, and for regulation of pre-natal diagnostic techniques for

the purposes of detecting genetic abnormalities or metabolic disorders

or chromosomal abnormalities or certain congenital

malformations or sex linked disorders and for the prevention

of their misuse for sex determination leading to female

23

foeticide and for matters connected therewith or incidental

thereto.

17. In Federation of Obstetrics and Gynaecological

Societies of India (FOGSI), this Court was examining the

challenge to the constitutional validity of certain provisions

of the PCPNDT Act. It was in that context that this Court

observed that it is a social welfare legislation which was

conceived in the light of the skewed sex ratio in India and to

avoid the consequences of the same. A skewed sex ratio is

likely to lead to greater incidences of violence against women

and increase in practices of trafficking, bride-buying etc. It

is an effort to save the girl child. The focus of the PCPNDT

Act is to protect the right to life of the girl child under Article

21 of the Constitution of India.

18. Discrimination against women, more particularly

against the girl child, is widely prevalent across several parts

of the country. Female foeticide is a crude manifestation of

such a social malady. It is with a view to prevent such crime

and to aligning with the global perspective for a discrimination free

world, that the aforesaid legislation has been enacted in India.

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19. As per Section 2(a), ‘appropriate authority’

has been defined to mean the authority appointed under

Section 17.

20. Section 3A prohibits sex selection. It says that 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. Section 3B prohibits sale of ultrasound

machines, etc. to persons, laboratories, clinics, etc. which

are not registered under the PCPNDT Act.

21. Regulation of pre-natal diagnostic techniques is

laid down in Section 4. It basically prohibits conducting pre-

natal diagnostic techniques for sex determination, only

permitting the use of such techniques for detection of

abnormalities mentioned in sub-section (2) and subject to

fulfillment of the conditions as provided in sub-section (3).

Section 4 being exhaustive, is extracted in its entirety

hereunder:

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4. Regulation of pre-natal diagnostic techniques.— On

and from the commencement of this Act,—

(1) no place including a registered Genetic

Counselling Centre or Genetic Laboratory or Genetic

Clinic shall be used or caused to be used by any person for

conducting pre-natal diagnostic techniques except for the

purposes specified in clause (2) and after satisfying

any of the conditions specified in clause (3);

(2) no pre-natal diagnostic techniques shall be

conducted except for the purposes of detection of any

of the following abnormalities, namely:—

(i) chromosomal abnormalities;

(ii) genetic metabolic diseases;

(iii) haemoglobinopathies;

(iv) sex-linked genetic diseases;

(v) congenital anomalies;

(vi) any other abnormalities or diseases as may be

specified by the Central Supervisory Board;

(3) no pre-natal diagnostic techniques shall be used

or conducted unless the person qualified to do so is

satisfied for reasons to be recorded in writing that

any of the following conditions are fulfilled,

namely:—

(i) age of the pregnant woman is above thirty-five

years;

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(ii) the pregnant woman has undergone two or more

spontaneous abortions or foetal loss;

(iii) the pregnant woman had been exposed to

potentially teratogenic agents such as drugs,

radiation, infection or chemicals;

(iv) the pregnant woman or her spouse has a family

history of mental retardation or physical deformities

such as spasticity or any other genetic disease;

(v) any other condition as may be specified by the

Board:

Provided that the person conducting

ultrasonography on a pregnant woman shall keep

complete record thereof in the clinic in such

manner, as may be prescribed, and any

deficiency or inaccuracy found therein shall

amount to contravention of the provisions of

Section 5 or Section 6 unless contrary is proved

by the person conducting such ultrasonography;

(4) no person including a relative or husband of the

pregnant woman shall seek or encourage the

conduct of any pre-natal diagnostic techniques on

her except for the purposes specified in clause (2).

(5) no person including a relative or husband of a

woman shall seek or encourage the conduct of any

sex selection technique on her or him or both.

21.1. Thus, in terms of the proviso to sub-section (3)

of Section 4, it is mandatory for the person conducting

27

ultrasonography on a pregnant woman to keep the complete

record relating to the ultrasonography in the clinic in such

manner as may be prescribed and any deficiency or

inaccuracy found in the maintenance of such record shall

amount to contravention of Sections 5 or 6. However, the

burden is on the person conducting such ultrasonography

to prove the contrary.

22. Section 5 deals with written consent of pregnant

woman for conducting pre-natal diagnostic procedure which

is provided for in sub-section (1). Sub-section (2) bars all

persons including the person conducting pre-natal

diagnostic procedures from communicating to the pregnant

woman or her relatives or any other person the sex of the

foetus by words, signs or in any other manner.

23. Section 6 makes it categorically clear that

determination of sex is completely prohibited. It says that no

genetic counselling centre or genetic laboratory or genetic

clinic or person shall conduct or cause to be conducted any

pre-natal diagnostic technique including ultrasonography

for the purpose of determining the sex of the foetus; and no

person shall, by whatever means, cause or allow to be

28

caused selection of sex before or after conception. Infact, sex

determination of a foetus is completely prohibited under Section 6,

which reads thus:

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-

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.

24. ‘Appropriate authority’ and ‘advisory committee’

are dealt with in Section 17. Sub-section (1) says that 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 the PCPNDT Act.

As per sub-section (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

29

of the PCPNDT Act having regard to the intensity of the

problem of pre-natal sex determination leading to female

foeticide. Sub-section (4) mentions the various functions

that may be performed by the ‘appropriate authority’. Sub-

section (4) of Section 17 reads thus:

17. Appropriate Authority and Advisory Committee-

* * * * * *

(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

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; and,

(d) to seek and consider the advise 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

30

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.

24.1. As per sub-section (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. Composition of

advisory committee is provided for in sub-section (6).

24.2. From a close reading of sub-section (4), more

particularly clause (e) thereof, it is evident that the

appropriate authority has been mandated to take appropriate

legal action against the use of any sex selection technique by

31

any person at any place suo moto or brought to its notice and

also to initiate an independent investigation in such matter.

25. Power of appropriate authority is dealt with in Section

17A. Amongst other things, the appropriate authority shall have the

power to issue search warrant for any place suspected to be

indulging in sex selection techniques or pre-natal sex

determination. Section 17A reads as under:

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.

26. Section 23 deals with offences and penalties.

Section 23 reads as under:

23. Offences and penalties.—(1) Any medical geneticist,

gynaecologist, registered medical practitioner or any person

32

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.

(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 any 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 sub-section (2) of

Section 4, he shall be punishable with imprisonment for a

term which may extend to three years and with fine which

33

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.

27. As per Section 24, a court shall presume unless

the contrary is proved that the pregnant woman was

compelled by her husband or by any other relative, as the

case may be, to undergo pre-natal diagnostic technique for

the purposes other than those specified in sub-section (2) of

Section 4 (which permits such techniques only for the

purposes of detection of certain abnormalities mentioned

therein); such person shall be liable for abetment of the

offence under sub-section (3) of Section 23 and shall be

punished for the offence specified under Section 23.

28. Cognizance of offences is dealt with in Section 28

which reads as under:

28. Cognizance of offences .—(1) No court shall take

cognizance of an offence under this Act except on a

complaint made by—

34

(a) the Appropriate Authority concerned, or any officer

authorised in this behalf by the Central Government or

the 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.

(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.

28.1. Section 28 is a procedural provision which places

clear limitations on the taking of cognizance by criminal

courts, thereby ensuring that prosecutions under this

specialized social welfare legislation are instituted in a

controlled and legally structured manner. Sub-section (1),

more particularly clause (a) thereof, mandates that no court

shall take cognizance of an offence under the PCPNDT Act

except on a complaint made by the appropriate authority or

35

by any officer authorized in this behalf by the Central

Government or by the State Government or by the

appropriate authority itself.

29. While Section 29 deals with maintenance of

records, Section 30 provides for the power of search and

seizure of records, etc. Sub-section (1) of Section 29

mandates that all records, charts, forms, reports, consent

letters and all other documents required to be maintained

under the PCPNDT Act and the PCPNDT Rules shall be

preserved for a period of two years or for such period as may

be prescribed. Sub-section (2) says that all such records

shall, at all reasonable times, be made available for

inspection to the appropriate authority or to any other

person authorized by the appropriate authority in this

behalf.

29.1. Section 30(1) makes it clear that if the

appropriate authority has reason to believe that an offence

under the PCPNDT Act has been committed or is being

committed at any genetic counselling centre, genetic

laboratory, genetic clinic or any other place, such authority

or any officer authorised in this behalf may enter and search

36

at all reasonable times such genetic counselling centre,

genetic laboratory, genetic clinic or any other place and

examine any record, register, document, book, pamphlet,

advertisement or any other material object found therein

and seize and seal the same if such authority or officer has

reason to believe that it may furnish evidence of the

commission of an offence punishable under the PCPNDT

Act. Sub-section (2) clarifies that provisions of CrPC relating

to searches and seizures shall apply to every search or

seizure made under the PCPNDT Act, as far as may be.

30. Section 32 is the rule making provision.

31. In exercise of the powers conferred by Section 32 of

the PCPNDT Act, the Central Government has made the Pre-

Conception and Pre-Natal Diagnostic Techniques (Prohibition

of Sex Selection) Rules, 1996 (already referred to as ‘the

PCPNDT Rules’ hereinabove).

32. Rule 9 deals with maintenance and preservation

of records. As per sub-rule (1), every genetic counselling

centre, genetic laboratory, genetic clinic including a mobile

genetic clinic, ultrasound clinic and imaging centre shall

37

maintain a register showing, in serial order, the names and

addresses of the men or women given genetic counselling,

subjected to pre-natal diagnostic procedures or pre-natal

diagnostic tests, the names of their spouses or fathers and

the date on which they first reported for such counselling,

procedure or test. Sub-rule (4) says that the record to be

maintained by every genetic clinic including a mobile genetic

clinic in respect of each man or woman subjected to any

pre-natal diagnostic procedure/ technique/test shall be as

specified in Form F.

32.1. In terms of sub-rule (6), all case related records,

forms of consent, laboratory results, microscopic pictures,

sonographic plates or slides, recommendations and letters

shall be preserved by the genetic counselling centre, genetic

laboratory, genetic clinic, ultrasound clinic or imaging

centre for a period of two years from the date of completion

of counselling, pre-natal diagnostic procedure or pre-natal

diagnostic test, as the case may be. In the event of any legal

proceedings, the records shall be preserved till the final

disposal of legal proceedings or till the expiry of the said

period of two years, whichever is later.

38

32.2. In case such centres or laboratory or clinics

maintain records on computer or other electronic

equipment, sub-rule (7) provides that a printed copy of the

record shall be taken and preserved after authentication by

a person responsible for such record.

32.3. Sub-rule (8) requires every such centre, laboratory and

clinic to send a complete report in respect of all pre-conception or

pregnancy related procedures/techniques/tests conducted by

them in respect of each month by 5

th day of the following

month to the concerned appropriate authority.

33. Thus, under Rule 9, it is mandatory for every

ultrasound clinic amongst others to maintain a detailed

register in terms of Form F of the woman undergoing any

pre-natal diagnostic procedure or pre-natal diagnostic test.

Not only that, such clinic etc are required to submit a

complete report regarding such procedures or tests

conducted by it to the concerned appropriate authority.

34. Rule 10 deals with conditions for conducting pre-natal

diagnostic procedures. Sub-rule (1) mandates obtaining of a written

consent in the manner provided in Form G and in a language

39

the person undergoing such procedure understands, before

conducting such a procedure. Sub-rule (1A) mandates that

any person conducting ultrasonography/image scanning on

a pregnant woman shall give a declaration on each report on

ultrasonography/ image scanning that he has neither

detected nor disclosed the sex of the foetus of the pregnant

woman to anybody. Likewise, the pregnant woman shall

before undergoing ultrasonography/image scanning shall

declare that she does not want to know the sex of her foetus.

35. Facilities for inspection are dealt with in Rule 11. Sub-rule

(1) provides that every such centre, laboratory, clinic, nursing home,

hospital, etc. where any of the machines or equipments capable of

performing any procedure, technique or test capable of pre-natal

determination of sex or selection of sex before or after conception is

used, shall afford all reasonable facilities for inspection of the place,

equipment and records to the appropriate authority or to

any other person authorized by the appropriate authority

in this behalf, amongst others, for detection of misuse of

such facilities or for selection of sex before or after

conception or for detection/disclosure of sex of the foetus or

40

for detection of cases of violation of the provisions of the

PCPNDT Act in any other manner.

35.1. Sub-rule (2) empowers the appropriate authority

or the officer authorized by it to seal and seize any

ultrasound machine, scanner or any other equipment

capable of detecting the sex of foetus, used by any

organization if the organization has not got itself registered

under the PCPNDT Act. Such machines shall be confiscated

and further action shall be taken as per provisions of Section

23 of the PCPNDT Act.

36. Procedure for search and seizure is laid down in

Rule 12. As per sub-rule (1), the appropriate authority or

any officer authorized in this behalf may enter and search

at all reasonable times any such centre, laboratory or clinic

in the presence of two or more independent witnesses for the

purposes of search and examination of any record, register,

document, book, pamphlet, advertisement or any other

material object found therein and seal and seize the same if

there is reason to believe that it may furnish evidence of

commission of an offence punishable under the PCPNDT

Act. Explanation 1 clarifies that such laboratory, clinic or

41

centre would include an ultrasound centre/imaging centre

/nursing home/hospital/institute or any other place by

whatever name called where any of the machines or

equipments capable of selection of sex before or after

conception or performing any procedure, technique or test

for pre-natal detection of sex of foetus is used. As per

Explanation 2, ‘material object’ would include records,

machines and equipments; and Explanation 3 clarifies that

‘seize’ and ‘seizure’ would include ‘seal’ and ‘sealing’

respectively.

37. While Rule 18 lays down the code of conduct to

be observed by persons working at genetic counselling

centres, genetic laboratories, genetic clinics etc., Rule 18A

lays down the code of conduct to be observed by appropriate

authorities. Sub-rule (1) of Rule 18A reads as under:

18A. Code of Conduct to be observed by Appropriate

Authorities.—(1) All the Appropriate Authorities including

the State, District and Sub-district notified under the Act,

inter-alia, shall observe the following general code of

conduct, namely:—

(i) maintain dignity, and integrity at all times;

42

(ii) observe and implement the provisions of the Act and

Rules in a balanced and standardised manner in the

course of their work;

(iii) conduct their work in a just manner without any

bias or a perceived presumption of guilt;

(iv) refrain from making any comments which demean

individuals on the basis of gender, race, religion;

(v) delegate his or her powers by administrative order

to any authorized officer in his or her absence and

preserve the order of authorization as documentary

proof for further action.

37.1 Thus, Rule 18A (1)(v) says that all the appropriate

authorities including the State, District and Sub-district

shall delegate his or her powers by administrative order to

any authorized officer in his or her absence and preserve the

order of authorisation as documentary proof for further

action.

37.2. Sub-rule (2)(ii) places a duty on all the

appropriate authorities to ensure that a person who is a part

of the investigating machinery in cases under the PCPNDT

Act is not nominated or appointed as a member of the

advisory committee.

43

37.3. As per sub-rule (3), all the appropriate authorities

including the State, District and Sub-district shall observe

certain conduct for processing of complaint and

investigation, such as, maintaining of appropriate diaries in

support of registration of complaints etc. Those authorities

shall not involve police for investigating cases under the

PCPNDT Act as far as possible, as the cases under the

PCPNDT Act are tried as complaint cases under the Cr.PC.

38. We may also refer to Form F before we wind up

our reference to the relevant provisions of the statute. Form

F, which is relatable to the proviso to Section 4(3), Rule 9(4)

and Rule 10(1A), is as under:

Form F

[See Proviso to Section 4(3), Rule 9(4) and Rule 10(1-A)]

FORM FOR MAINTENANCE OF RECORD IN CASE OF

PRE-NATAL DIAGNOSTIC TEST/ PROCEDURE BY

GENETIC CLINIC/ ULTRASOUND CLINIC/ IMAGING

CENTRE

Section A: To be filled in for all Diagnostic Procedures/Tests

1. Name and complete address of Genetic Clinic/

Ultrasound Clinic/ Imaging centre:………………………

2. Registration No. (Under PC & PNDT Act, 1994)

……………………………………

3. Patient's name………………………. Age …………

44

4. Total Number of living children: ……………………..

(a) Number of living sons with age of each living son

(in years or months): ………………………………………

(b) Number of living daughters with age of each living

daughter(in years or months):………………………………...

5. Husband's /Wife's/ Father's / Mother's Name:

……………………………………

6. Full postal address of the patient with Contact

Number, if any…………………………

7.(a) Referred by (Full name and address of Doctor(s)/

Genetic Counseling Centre):………………

(Referral slips to be preserved carefully with Form F)

(b) Self-Referral by Gynaecologist/Radiologist/

Registered Medical Practitioner conducting the

diagnostic procedures:………………………… ……

(Referral note with indications and case papers of the

patient to be preserved with Form F)

Self-referral does not mean a client coming to a

clinic and requesting for the test or the relative/s

requesting for the test of a pregnant woman

8. Last menstrual period or weeks of pregnancy:

……………………………………

Section B : To be filled in for performing non-invasive

diagnostic Procedures/ Tests only

9. Name of the doctor performing the procedure/s:

…………………………………

10. Indication/s for diagnosis procedure ………………

(specify with reference to the request made in the

referral slip or in a self -referral note)

45

(Ultrasonography prenatal diagnosis during

pregnancy should only be performed when

indicated. The following is the representative list of

indications for ultrasound during pregnancy. (Put

a “Tick” against the appropriate indication/s

for ultrasound)

i. To diagnose intra-uterine and/or ectopic pregnancy

and confirm viability.

ii. Estimation of gestational age (dating).

iii. Detection of number of fetuses and their

chorionicity.

iv. Suspected pregnancy with IUCD in-situ or suspected

pregnancy following contraceptive failure/MTP

failure.

v. Vaginal bleeding/leaking.

vi. Follow-up of cases of abortion.

vii. Assessment of cervical canal and diameter of

internal os.

viii. Discrepancy between uterine size and period of

amenorrhea.

ix. Any suspected adenexal or uterine pathology/abnormality.

x. Detection of chromosomal abnormalities, fetal

structural defects and other abnormalities and

their follow-up.

xi. To evaluate fetal presentation and position.

xii. Assessment of liquor amnii.

xiii. Preterm labor / preterm premature rupture of

membranes.

46

xiv. Evaluation of placental position, thickness, grading and

abnormalities (placenta praevia, retro-placental

hemorrhage, abnormal adherence, etc.).

xv. Evaluation of umbilical cord −presentation,

insertion, nuchal encirclement, number of

vessels and presence of true knot.

xvi. Evaluation of previous Caesarean Section scars.

xvii. Evaluation of fetal growth parameters, fetal

weight and fetal well being.

xviii. Color flow mapping and duplex Doppler studies.

xix. Ultrasound guided procedures such as medical

termination of pregnancy, external cephalic

version, etc. and their follow-up.

xx. Adjunct to diagnostic and therapeutic invasive

interventions such as chorionic villus sampling

(CVS), amniocenteses, fetal blood sampling, fetal

skin biopsy, amnio-infusion, intrauterine infusion,

placement of shunts, etc.

xxi. Observation of intra-partum events.

xxii. Medical/surgical conditions complicating pregnancy.

xxiii. Research/scientific studies in recognised institutions.

11. Procedures carried out (Non-Invasive) (Put a “Tick”

on the appropriate procedure)

i. Ultrasound

(Important Note : Ultrasound is not indicated/

advised/ performed to determine the sex of fetus

except for diagnosis of sex-linked diseases such as

Duchene Muscular Dystrophy, Hemophilia A & B

etc.)

47

ii. Any other (specify) ………

12. Date on which declaration of pregnant woman/

person was obtained:……………………

13. Date on which procedures carried out: …………

14. Result of the non-invasive procedure carried out

(report in brief of the test including ultrasound carried

out)…………………………………………………………..

15. The result of pre-natal diagnostic procedures was

conveyed to …………on…………

16. Any indication for MTP as per the abnormality

detected in the diagnostic procedures/ tests…………

Date: (………………………………………….)

Place: Name, Signature and Registration

Number with Seal of the

Gynaecologist/Radiologist/

Registered Medical Practitioner

performing Diagnostic Procedure/s

Section C: To be filled for performing invasive

Procedures/Tests only

17. Name of the doctor/s performing the procedure/s:

…………………………………

18. History of genetic/medical disease in the family

(specify):……………………… Basis of diagnosis (“Tick” on

appropriate basis of diagnosis):

(a) Clinical (b) Bio-chemical

(c) Cytogenetic (d) other (e.g. radiological,

ultrasonography, etc.

specify)

48

19. Indication/s for the diagnosis procedure (“Tick” on

appropriate indication/s):

A. Previous child/children with:

(i) Chromosomal disorders (ii) Metabolic disorders

(iii) Congenital anomaly (iv) Mental Disability

(v) Haemoglobinopathy (vi) Sex-linked disorders

(vii) Single gene disorder (viii) Any other (specify)

B. Advanced maternal age (35 years)

C. Mother/father/sibling has genetic disease (specify)

D. Other (specify) …………………………………………

20. Date on which consent of pregnant woman / person

was obtained in Form G prescribed in PC & PNDT

Act, 1994:…………………………………………………

21. Invasive procedures carried out (“Tick” on

appropriate indication/s)

i. Amniocentesis ii.Chorionic Villi aspiration

iii. Fetal biopsy iv. Cordocentesis

v. Any other (specify)

22. Any complication/s of invasive procedure (specify)…

23. Additional tests recommended (Please mention if

applicable)

(i) Chromosomal studies (ii) Biochemical studies

(iii) Molecular studies (iv) Pre-implantation

gender diagnosis

(v) Any other (specify)

24. Result of the Procedures/ Tests carried out (report

in brief of the invasive tests/ procedures carried

out)……………………………………………………………

25. Date on which procedures carried out:…………………

49

26. The result of pre-natal diagnostic procedures was

conveyed to …………on…………

27. Any indication for MTP as per the

abnormality detected in the diagnostic

procedures/tests…………………………………………

(………………………………………….)

Date:

Place:

Name, Signature and Registration

Number with Seal of the

Gynaecologist/Radiologist/Registered

Medical Practitioner performing

Diagnostic Procedure/s

Section D: Declaration

DECLARATION OF THE PERSON UNDERGOING PRE-

NATAL DIAGNOSTIC TEST/ PROCEDURE

I, Mrs./Mr. ………………………… declare that by

undergoing ……………………… Prenatal Diagnostic Test/

Procedure. I do not want to know the sex of my foetus.

(…………………………………………….)

Date: Signature/ Thump impression of

the person undergoing the

Prenatal Diagnostic Test/

Procedure

In Case of thumb Impression:

Identified by (Name) ……………………Age:…… Sex:……

Relation (if any):………. Address & Contact No.:…………..

Signature of a person attesting thumb impression:………

Date:…………

DECLARATION OF DOCTOR/PERSON CONDUCTING

PRE-NATAL DIAGNOSTIC PROCEDURE/TEST

50

I, ……………… (name of the person conducting

ultrasonography/image scanning) declare that while

conducting ultrasonography/image scanning on Ms./ Mr.

……………… (name of the pregnant woman or the person

undergoing pre-natal diagnostic procedure/ test), I have

neither detected nor disclosed the sex of her fetus to

anybody in any manner.

Signature:………………………

Date:………… (…………………………………….)

Name in Capitals, Registration

Number with Seal of the

Gynaecologist/ Radiologist/

Registered Medical Practitioner

Conducting Diagnostic procedure

39. Thus, Form F, which is statutory in character, is

detailed and exhaustive providing for recording of the entire

spectrum of information necessary and relatable to all such

pre-natal diagnostic procedures and tests.

40. Form F in its entirety have been held to be

mandatory by this Court in Federation of Obstetrics and

Gynaecological Societies of India (FOGSI). This Court has

held that non-maintenance of record is the springboard for

commission of the offence of foeticide. Therefore, it can not

51

be brushed aside merely as clerical error. This Court held

thus:

98. Non-maintenance of record is springboard for

commission of offence of foeticide, not just a clerical

error. In order to effectively implement the various

provisions of the Act, the detailed forms in which

records have to be maintained have been provided for

by the Rules. These Rules are necessary for the

implementation of the Act and improper maintenance

of such record amounts to violation of provisions of

Sections 5 and 6 of the Act, by virtue of proviso to

Section 4(3) of the Act. In addition, any breach of the

provisions of the Act or its Rules would attract

cancellation or suspension of registration of Genetic

Counselling Centre, Genetic Laboratory or Genetic

Clinic, by the appropriate authority as provided under

Section 20 of the Act.

99. There is no substance in the submission that

provision of Section 4(3) be read down. By virtue of

the proviso to Section 4(3), a person conducting

ultrasonography on a pregnant woman, is required

to keep complete record of the same in the prescribed

manner and any deficiency or inaccuracy in the

same amounts to contravention of Section 5 or

Section 6 of the Act, unless the contrary is proved by

the person conducting the said ultrasonography. The

aforementioned proviso to Section 4(3) reflects the

importance of records in such cases, as they are

52

often the only source to ensure that an

establishment is not engaged in sex determination.

100. Section 23 of the Act, which provides for

penalties of offences, acts in aid of the other sections

of the Act is quite reasonable. It provides for

punishment for any medical geneticist, gynaecologist,

registered medical practitioner or a person who owns

a Genetic Counselling Centre, a Genetic Clinic or a

Genetic Laboratory, and renders his professional or

technical services to or at the said place, whether on

honorarium basis or otherwise and contravenes any

provisions of the Act, or the Rules under it.

101. Therefore, dilution of the provisions of the Act

or the Rules would only defeat the purpose of the Act

to prevent female foeticide, and relegate the right to

life of the girl child under Article 21 of the

Constitution, to a mere formality.

102. In view of the above, no case is made out for

striking down the proviso to Section 4(3), provisions

of Sections 23(1), 23(2) or to read down Section 20 or

30 of the Act. Complete contents of Form F are held

to be mandatory. Thus, the writ petition is dismissed.

No costs.

41. Let us now deal with the judgment of this Court

in Ravindra Kumar heavily relied upon by learned senior

counsel for the appellant. That was a case where the

quashing petition filed by the appellant for quashing the FIR

53

and the complaint was rejected by the High Court against

which the related appeal was filed. The specific challenge in

that case was that the search and seizure carried out was

that of the Chairman of the District Appropriate Authority

and not by the appropriate authority. After referring to

Sections 17, 23, 26, 28 and 30 of the PCPNDT Act, a two

Judge Bench of this Court held that the appropriate

authority is not required to record reasons for concluding

that it has reason to believe that an offence under the

PCPNDT Act has been or is being committed but there has

to be a rational basis to form that belief. Importantly, the

Bench held that the decision to take action under sub-

section (1) of Section 30 must be of the appropriate authority

and not of its individual members. In the facts of that case,

it was found that under the notification dated 07.11.2013,

the appropriate authority for the concerned District i.e.

Gurugram consisted of the Civil Surgeon, the District

Programme Officer of the Women and Child Development

Department and the District Attorney, the Civil Surgeon

being the Chairman of the appropriate authority. Looking at

the object of sub-section (1) of Section 30 which the Bench

54

observed was a very drastic provision granting power to the

appropriate authority or any officer authorised by it to enter

a genetic laboratory, a genetic clinic or any other place to

examine the record found therein, to seize the same, even to

seal the same and the express language used therein, it has

been held that only the Chairman or any other member

acting alone cannot authorize a search under sub-section

(1) of Section 30; it must be a decision of the appropriate

authority. If a single member of the appropriate authority

authorizes a search, it will be completely illegal being

contrary to sub-section (1) of Section 30. In that case, it was

found from the affidavit filed by the Chairman that the

decision to conduct the search by appointing three officers

was only his decision taken in his capacity as the Chairman

of the appropriate authority; the other two members of the

appropriate authority were not party to the said decision. In

the facts of that case, it has been held that no legal decision

was made by the appropriate authority in terms of sub-

section (1) of Section 30 to search for the appellant’s clinic

which vitiated the search. Thereafter, on a perusal of the FIR

and the complaint, the Bench concluded that these were

55

based entirely on the materials seized during the search.

Except for what was found in the search and the seized

documents, there was nothing to connect the appellant

accused with the offence under Section 23 of the PCPNDT

Act. After holding that as the search itself was illegal,

continuing prosecution based on such an illegal search

would amount to an abuse of the process of law, this Court

quashed the FIR and the complaint.

41.1. Thus, the ratio in Ravindra Kumar, which is a

two-Judge Bench decision of this Court, is that the decision

to authorize a search under sub-section (1) of Section 30

must be that of the appropriate authority collectively. If a

single member of the appropriate authority, and that

includes the Chairperson, authorizes a search, it will be

illegal being contrary to sub-section (1) of Section 30. Such

a decision would vitiate the search rendering the same

illegal. This is the ratio in Ravindra Kumar. The relief granted

or the final directions issued are on the facts of the case and

are not part of the ratio decidendi.

56

42. Having noticed the statutory framework and the

two decisions of this Court, let us now revert back to the

facts of the present case.

43. Government of Haryana in the Health Department had

issued a notification dated 17.11.2013 exercising powers conferred by

Section 17(3)(b) of the PCPNDT Act and in supersession of the

previous notification dated 04.03.2009 appointing

appropriate authority for the districts. The appropriate

authority for each of the districts comprised of the following:

(i) Civil Surgeon – Chairperson;

(ii) District Programme Officer, Women and Child

Development Department-Member; and

(iii) District Attorney-Member.

44. A perusal of the communication/order dated

17.09.2015 (Annexure P-2 to the SLP paperbook) would

show that it was a directive of the Civil Surgeon acting as

the District Appropriate Authority, Gurugram, directing Shri

Amandeep Singh Chauhan, District Child Officer and Shri

Shyam Sunder of the District Red Cross Society, Gurugram

57

to conduct raid under the PCPNDT Act and to register the

FIR.

45. From a careful reading of the communication/

order dated 17.09.2015, it is true that it was issued by

the Civil Surgeon, acting as the District Appropriate

Authority, Gurugram. No doubt, the Civil Surgeon is the

Chairperson of the District Appropriate Authority but this

communication/order does not indicate any decision being

taken collectively by the District Appropriate Authority to

conduct raid in the premises of the appellant. Nothing has

been placed on record by the respondents to show that there

was any meeting of mind of the members of the District

Appropriate Authority on the basis of which the Chairperson

had issued the communication/order dated 17.09.2015. If

that be the position, then the ratio in Ravindra Kumar would

be applicable to this case as well on the basis of which the

search carried out by the District Appropriate Authority,

Gurugram at Vatika Medicare i.e. the premises where the

appellant worked, would be illegal. However, the matter

would not stop at that.

58

46. We have already noted that on the basis of the

search itself, FIR was lodged against the appellant and Dr.

Abdul Kadir being FIR No. 336 of 2015. Following

investigation, the police filed an application before the

learned Judicial Magistrate First Class on 28.10.2015 for

discharge of the accused appellant. In the application, it was

mentioned that appellant had conducted ultrasound on the

decoy pregnant woman but had not done sex determination.

Police noted that on examination of the record, some

differences had been found though no secret talk between

the appellant and Dr. Kadir was found. It was mentioned

that for differences in the maintenance of record, there are

separate provisions in the PCPNDT Act for filing a complaint

case through the District Appropriate Authority. However, it

was recorded that during investigation, it was found that Dr.

Abdul Kadir had fraudulently taken money for the sex

determination of the foetus of the pregnant woman from the

shadow witness. Therefore, a case under Section 420 IPC

and Section 23(3) of the PCPNDT Act was made out qua Dr.

Abdul Kadir. In these circumstances, the investigating

59

authority i.e. the police sought for the discharge of the

appellant.

46.1. Learned Magistrate accepted the said application

and discharged the appellant and also released him from

custody vide the order dated 28.10.2015.

47. The District Advisory Committee held a meeting

on 17.12.2015 wherein a decision was taken that a

complaint case be filed against Dr. Abdul Kadir, Dr. Naresh

Garg (appellant) and Vatika Medicare for contravention of

the provisions of the PCPNDT Act.

48. Pursuant thereto, complaint was filed by the

District Appropriate Authority, Gurugram through Dr.

Chitranjan, Deputy Civil Surgeon-cum-Nodal Officer on

18.09.2018 under Sections 4, 5, 6 and 29 of the PCPNDT

Act read with Rules 9 and 10 of the PCPNDT Rules, all

punishable under Section 23 of the aforesaid Act which was

registered as COMA/47/591/2018. As already noted supra,

the raid on the premises where the appellant worked for gain

was carried out on 17.09.2015 which led to seizure of record

etc. Section 23 of the PCPNDT Act says that for the

60

contravention of any of the provisions of the PCPNDT Act or

the PCPNDT Rules, the maximum sentence is upto three

years and with fine. Section 468(2)(c) CrPC has prescribed a

period of limitation of three years for a competent court to

take cognizance of an offence which is punishable with

imprisonment for a term exceeding one year but not

exceeding three years. Therefore, the limitation in this case

was of three years. Since there was a delay of one day in the

filing of the complaint, an application for condonation of

delay was also filed for condoning the said delay. The

learned Magistrate by order dated 18.09.2018 condoned the

delay. Thereafter, the learned Magistrate passed an order

dated 12.09.2022 issuing summons to the accused persons

under Section 23 of the PCPNDT Act by taking the view that

there are sufficient grounds for proceeding against the two

accused persons including the appellant.

49. Repelling the challenge made by the appellant,

the High Court vide the impugned judgment and order held

that the District Appropriate Authority had implemented the

recommendation of the District Advisory Committee under

Section 17 of the PCPNDT Act whereafter the District Appropriate

61

Authority exercising power under Rule 18A of the PCPNDT Rules

had authorized Dr. Chitranjan, Deputy Civil Surgeon for

filing of the complaint. High Court has held that the

procedure adopted cannot be said to be in contravention of

the PCPNDT Act as per authorization given to Dr. Chitranjan

on 17.09.2018.

50. While there is infraction of Section 30 of the

PCPNDT Act qua the search carried out by the respondents

on Vatika Medicare in as much as it was an individual

decision of the Chairperson instead of being the collective

decision of the District Appropriate Authority which has

vitiated the search, and in this connection we are bound by

the ratio laid down by the Coordinate Bench in Ravindra

Kumar; we are however of the view that the evidence

collected in the course of the search in the form of the seized

record etc cannot be discarded altogether, like the baby with

the bath water. While the search may be illegal, the

materials or evidence gathered or collected in the course of

such search can still be acted or relied upon subject to the

rule of relevancy and the test of admissibility. We are

62

fortified in adopting such a view by several decisions of this

Court a couple of which are by Benches of larger strength.

51. In Radha Kishan Vs. State of Uttar Pradesh

3

, a

three-Judge Bench of this Court in the context of search

operations in the premises of the appellant under Section

103 and 165 of the old Cr.P.C. which accidently led to

discovery of a large number of letters and postcards, held

that even if it is assumed that the search was illegal, the

seizure of the articles is not vitiated. Of course, because of

the illegality of the search, the court may be inclined to

examine carefully the evidence regarding the seizure. This

Court held thus:

5.………So far as the alleged illegality of the search is

concerned it is sufficient to say that even assuming

that the search was illegal the seizure of the articles is

not vitiated. It may be that where the provisions of

Sections 103 and 165 of the Code of Criminal

Procedure are contravened the search could be

resisted by the person whose premises are sought to

be searched. It may also be that because of the

illegality of the search the court may be inclined to

examine carefully the evidence regarding the seizure.

But beyond these two consequences no further

3

AIR 1963 SC 822

63

consequence ensues. The High Court has chosen to

accept the evidence of the prosecution with regard to

the fact of seizure and that being a question to be

decided only by the court of fact, this Court would not

re-examine the evidence for satisfying itself as to the

correctness or otherwise of the conclusions reached

by the High Court…………………………………………….

52. R.M. Malkani Vs. State of Maharashtra

4 is a two-

Judge Bench decision of this Court. In that case, this Court

was examining admissibility of tape recorded conversation. In

that context, this Court held that tape recorded conversation

is admissible provided, firstly, the conversation is relevant to

the matter in issue; secondly, there is identification of the

voice; and thirdly, the accuracy of the tape recorded

conversation is proved. Rejecting the contention of the

appellant that the tape recorded conversation was obtained by

illegal means, this Court held that even if evidence is illegally

obtained, it is admissible. However, by expressing a word of

caution, this Court observed that the Judge has a discretion

to disallow evidence in a criminal case if the strict rules of

admissibility would operate unfairly against the accused.

4

1973 (1) SCC 471

64

This Court referred to with approval its earlier decision in

Magraj Patodia Vs. R.K. Birla

5 which held that a document

which was procured by improper or even by illegal means

could not bar its admissibility provided its relevance and

genuineness were proved. Referring to English decisions,

this Court held that as long as evidence is not tainted by an

inadmissible confession of guilt evidence even if it is illegally

obtained is admissible.

53. A Constitution Bench of this Court in Pooran Mal

Vs. Director of Inspector (Investigation), New Delhi

6

was

examining a challenge to search and seizure of certain

premises under Section 132 of the Income Tax Act, 1961 on

the ground that the authorisation for the search as also the

search and seizure were illegal. After referring to various

provisions of the Indian Evidence Act, 1872, this Court

opined that it had permitted relevancy as the only test of

admissibility of evidence; the Indian Evidence Act or any

other similar law in force does not exclude relevant evidence

on the ground that it was obtained under an illegal search

5

AIR 1971 SC 1295

6

(1974) 1 SCC 345

65

or seizure. Elaborating further, this Court held that courts

have a discretion to admit evidence obtained as a result of

illegal search. Unless there is an express or necessarily

implied prohibition in law, evidence obtained as a result of

illegal search or seizure is not liable to be shut out. Finally,

the Constitution Bench concluded as under:

25. In that view, even assuming, as was done by the

High Court, that the search and seizure were in

contravention of the provisions of Section 132 of the

Income Tax Act, still the material seized was liable to

be used subject to law before the Income tax

authorities against the person from whose custody it

was seized and, therefore, no Writ of Prohibition in

restraint of such use could be granted. It must be,

therefore, held that the High Court was right in

dismissing the two writ petitions. The appeals must

also fail and are dismissed with costs.

54. Before finally concluding our discussion, we may

also deal with two more submissions advanced by learned

senior counsel for the appellant. Submission of Mr. Bhalla,

learned senior counsel, is that though FIR No. 336 dated

17.09.2015 was registered against Dr. Abdul Kadir and the

appellant following the illegal raid, the appellant was

discharged by the learned Magistrate on the basis of an

66

application filed by the police itself. The contention is that

after discharge of the appellant, the criminal complaint is

not maintainable since it is based on the same set of facts.

We are afraid such a submission cannot be accepted.

Section 28(1) of the PCPNDT Act, which we have already

taken note of supra, specifically says that no court shall take

cognizance of an offence under the PCPNDT Act except on a

complaint made by the appropriate authority or by any

officer authorized by the appropriate authority etc. Further,

as per Rule 18A (3) (iv) of the PCPNDT Rules, the appropriate

authority should not involve police for investigating cases

under the PCPNDT Act as the cases under this Act are tried

as complaint cases under the CrPC. In any case, the police

in the discharge application mentioned that appellant had

infact conducted ultrasound on the decoy pregnant woman

but had not carried out sex determination. However, police

investigation revealed discrepancies in the maintenance of

record for which it was pointed out that there are provisions

in the PCPNDT Act for filing of a complaint case. We have

already noted that as per the proviso to sub-section (3) of

Section 4 of the PCPNDT Act, it is the duty of the person

67

conducting ultrasonography on a pregnant woman to keep

complete record thereof in the clinic in such manner as may

be prescribed and any deficiency or inaccuracy found

therein shall amount to contravention of Sections 5 or 6 of

the PCPNDT Act. Burden is on the person conducting such

ultrasonography to prove to the contrary. Similarly, Rule

9(1) read with Rule 9(4) and Rule 10(1A) of the PCPNDT

Rules mandate the person conducting ultrasonography on a

pregnant woman to maintain the complete record of such

procedure in the prescribed format, the failure of which

would be construed to be an offence under Section 23 of the

PCPNDT Act. That apart, this Court has held that complete

contents of Form F are mandatory. Therefore, discharge of

the appellant in the police case would be of no consequence.

55. It is also the submission of learned senior counsel

for the appellant that the raiding party comprised of Dr.

Saryu Sharma, Deputy Civil Surgeon, Gurugram who was

also made a member of the District Advisory Committee. It

is the contention of the appellant that such duality of role

assigned to Dr. Saryu Sharma is illegal which not only

vitiated the raid but also the decision to file the criminal

68

complaint. Such a submission has no basis at all. Rule 18A

lays down certain guidelines in the form of code of conduct

to be observed by the appropriate authorities. As per Rule

18A(2)(ii), all appropriate authorities shall ensure that a person

who is part of the investigating machinery in cases under the

PCPNDT Act shall not be nominated or appointed as a member

of the advisory committee. Thus, Rule 18A(2)(ii) is applicable

only to a person who is part of the investigating machinery

in cases under the PCPNDT Act. Dr. Saryu Sharma was

never a part of any investigating machinery. Therefore, there

is no contravention of Rule 18A(2)(ii) of the PCPNDT Rules.

In any case, going by language of Rule 18A, those guidelines

can only be termed as directory being part of the general code

of conduct to be observed by appropriate authorities,

violation of which may render a proceeding irregular but not

illegal. However, as we have seen in this case, there is no

violation of Rule 18A(2)(ii) inasmuch as Dr. Saryu Sharma

was not a part of any investigating machinery.

56. Discrimination against the girl child and by

extension women is still prevalent in several parts of the

country. Crude and ugly manifestation of such social

69

malady is in the form of female foeticide. The first step

towards commission of such an offence is in the sex

determination of the foetus. Therefore, the Parliament has

stepped in not only outlawing sex determination and

selection but also prohibiting all related pre-conception and

pre-natal techniques and procedures, making it mandatory

to maintain the relevant record in the prescribed format.

Non-maintenance of the record in the prescribed form would

be an offence under the PCPNDT Act and the Rules. In so

far the present case is concerned, prima facie it has come on

record that appellant had conducted ultrasonography on the

pregnant woman. Whether or not he has maintained the

record as required under the law in addition to non-

disclosure of the sex of the foetus is a matter for trial.

Therefore, it is not a case where the trial should be nipped

in the bud.

57. Thus, having regard to the discussions made above

and for the reasons recorded, the criminal complaint bearing

No. COMA/116/2018 pending before the Judicial Magistrate

First Class, Gurugram cannot be quashed. Therefore, no

interference is called for in the impugned judgment and order

70

of the High Court. However, we make it clear that we have not

expressed any opinion on merit of the allegations and all

contentions qua reliability and admissibility of evidence are

kept open.

58. Subject to the above, the criminal appeal is dismissed.

However, there shall be no order as to cost.

……………………………J.

[MANOJ MISRA]

……………………………J.

[UJJAL BHUYAN]

NEW DELHI;

FEBRUARY 23, 2026.