“Selective Pregnancy Termination Perpetuates Gender Inequality”; High Court Declines to Drop Complaint Against Doctor Suspected of Performing Illicit Sex Determination

The Punjab & Haryana High Court declined to dismiss a formal complaint against a physician for allegedly performing an illegal sex determination on a fetus. The court noted that forced and illegal abortions in unsanitary clinics violate the right to bodily autonomy guaranteed by Article 21 and that the process for registering and looking into an offence under the PNDT Act has not yet been completed. Consequently, the current FIR cannot be dismissed on the grounds that the police are not authorized to register and look into an offense under the PNDT Act.

Quick Facts:

It was alleged that the petitioner, a doctor, was conducting illegal sex determination of foetus, and as a result, the present petition was filed under Section 482 Cr.P.C. for the purpose of quashing of FIR registered under Sections 29, 5 (2), 6 (b) of the Preconception and Pre-Natal Diagnostic Techniques Act, 1994 and Section 120-B IPC.

The petitioner’s contentions:

Speaking on behalf of the petitioner, the learned attorney argued that the petitioner was primarily upset by the filing of the FIR and that it could be overturned because Section 28 of the PNDT Act clearly states that no court can consider an offense under this Act unless the appropriate authority or an officer designated by the federal government or a state government files a complaint in this regard. Furthermore, the attorney cites the ruling in Delhi Administration v. Ram Singh to support his argument that only the authorized party may carry out an investigation if the authority to do so has been specifically granted to a particular person or body.

Respondent’s points of contention:

In an appearance on behalf of the state, the learned counsel argued that because the petition was filed while the investigation was ongoing, it was not maintainable and that, as a result, the power under Section 482 Cr.P.C. could not be used to quash the FIR prior to filing a final report under Section 173 Cr. P.C. Additionally, it was argued that since the investigation was finished, a report under Section 173 Cr.P.C. and a complaint made by the appropriate authority in accordance with Section 28 of the PNDT Act would be filed in the relevant jurisdictional court, and only that complaint would be given legal weight.

Court Observation:

The PNDT Act’s Sections 27 and 28 were cited by the court, which declared that they showed that the offenses covered by the Act are cognizable, non-bailable, and non-compoundable. The phrase “as far as possible” in Rule 18-A (3) indicates that the Appropriate Authority may use the police’s aid and assistance whenever it deems it necessary, indicating that the police’s investigative power is not entirely prohibited by the PNDT Act, as the Court noted.

The court also made it clear that the police must file a formal complaint and begin an investigation as soon as they receive information about any crime that is punishable. However, the PNDT Act places a limitation on the court’s ability to consider an offense: it can only do so in response to a complaint filed by the relevant appropriate authority.

The skewed sex ratio, which is rooted in cultural and social biases that not only propagate misogyny but also jeopardize the health of expectant mothers, was noted by the court as evidence of the preference for a male child. Selective pregnancy terminations further exacerbate gender inequality in society by creating an unsafe environment that is unconducive to the cause of gender justice. Furthermore, forced, illicit abortions in unhygienic clinics directly attack women’s right to bodily autonomy, infringing upon their right to bodily autonomy, among other rights guaranteed by Article 21 of the Indian Constitution.

The court determined that the current FIR cannot be quashed on the grounds that the police are unable to register and investigate an offence under the PNDT Act because the stage for taking cognizance of the offence has not yet been reached. The only limitation placed on the Court is that it can only consider cases that the Appropriate Authority files in writing.

The Court’s ruling:

The petition was dismissed by the court, which declined to nullify the FIR.

Dr. Rachna Raina vs State of Haryana

CRM-M No.1120 of 2023 (O&M)

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