Pcpndt act . Court proceedings

1. CASE STUDY – A SUCCESSFUL
PROSECUTION IN PC & PNDT
ACT, 1994
BY- SHRI BISWARANJAN ROUT
ASST. PUBLIC PROSECUTOR
BHUBANESWAR

3. PC & PNDT ACT, 1994 – AN OVERVIEW

4.  Initiation of Criminal Case

6.  Collection of
material evidence
by A.A.
 Seizure list –
various
documents,
records, letters,
forms, registers
etc.
 Summoning of
witnesses
 Acquittal/conv
iction
 Evidence
(Sec.3)
1. Oral
2. Documenta
ry

7. »Complaint petition
»Seizure list
»Zimanama
»Various documents collected
during inspection
»Inspection format

8.  Offences by persons acts contrary to the
prohibitions listed in the act,
1. First offence – 3 years imprisonment and
fine of Rs.10,000/-
2. Subsequent offences – 5 years
imprisonment & fine upto Rs.50,000/-
 Suspension by S.M. Council and removal of
name from the register of MCI:
1. First offence – for 5 years
2. Subsequent offences – Permanently
 Where no penalty has been prescribe in this act

9.  Sec.24 – Shall presume……
 Sec.27 – Cognizable,
– Non bailable
– Non compoundable

10. Chapter V [Section 17, 17(A)] includes
Advisory Committees and Appropriate
Authorities. Under Section 17, the appropriate
authorities are granted a wide range of powers,
including the ability to issue, revoke, or suspend
a centre’s registration, as well as the ability to
look into complaints and take legal action. The

11.  No cognizance by a court (Metropolitan / JMFC)
unless complaint is made by Sec.28 – 1(a).
 Sec.30 .

12.  Chances of corruption
 Elimination of fear
 Punishing the victim
 No local authorities
 A Loophole in Form F of the Act
 Updating the Act
 Difficulty in the assessment of an

13. The following powers have been granted to
the appropriate authority:
1. Summoning anybody who has knowledge of
a breach of this Act’s norms or provisions to
appear in court.
2. Production of any record or tangible thing
pertaining to violations
3. Issuing a search warrant for any location
where prenatal sex determination or sex
selection practices are allegedly being used;

14. Assimilating the points, the Court observes
that the State Government declared the AAs for
the district and sub-division under the OM dated
27th July, 2007 for exercising jurisdiction under
Section 17(2) of the PC&PNDT Act amended in
2002. If a CDMO/ADMO is treated as an EM,
then also in the considered view of the Court,

15. complaint under the PC & PNDT Act. The
DM/SDM is only to initiate legal action by filling
complaint against persons who are directly or
indirectly involved in sex determination. Though
the OM authorizes the EM to have the role of
assisting the DM, however, by no stretch of
imagination, he can be permitted to file the
complaint which shall have to be by the DM at
the district level and SDM/Sub-Collector at the

16. read with the OM was not followed, rather, the
officials who did not have the authority to file
complaints for the offences punishable under
Sections 23 and 25 of the said Act initiated the
prosecutions which cannot be sustained in law.
To reiterate and while referring to the decision of
the Apex Court in the case of Dipak Babaria
(supra) and applying its ratio, the Court reaches
at a logical conclusion that a complaint shall

17. exclusio alterius’ which stipulates that when
something is mentioned expressly in a
statute, it leads to the presumption that the
things not mentioned are excluded. Thus, the
Court is of the final opinion that even
assuming that the CDMOs/ADMOs have been
nominated as the EMs, they could not have
filed the complaints. Any such authorization in
favour of the CDMOs/ADMOs by the DMs shall

18. cross the line especially when the OM replaced
the earlier notification of 2002 which had
appointed the CDMOs as the AA.
The end result is restated: (i)CRLMC No.4249
of 2009 and CRLMC No.682 of 2017: Both the
petitions stand allowed to the extent indicated
above. As a logical sequitur, the orders of
cognizance vis-à-vis offences under Sections 23
and 25 of the PC&PNDT Act are hereby set

19. wherein the petitioners shall have the
opportunity to defend during the enquiry and trial
since it would require examination of the
materials to find out existence of a prima facie
case; and a bunch of petition filed as
CRLMC….The aforesaid petitions stand allowed.
As a necessary corollary, the orders of
cognizance, framing of charge as well as the

20. In this case, the petitioners were a married
couple. They had essentially raised two
arguments against the Act’s constitutionality: first,
that it violates Article 14 of the Indian Constitution,
and second, that it violates Article 21. However,
the Article 14 challenge was not pushed into
submission at the time of the hearing. However,
the Hon’ble High Court pointed out the flaw in this

21. include the freedom to forbid the conception of a
female or male foetus, which should be left to
the will of nature.” The High Court held that
“these rights, even if further expanded to the
extremes of the possible elasticity of the
provisions of Article 21, cannot include the right
to selection of sex, whether preconception or
post-conception,” citing Supreme Court
decisions that explain that Article 21 includes the

22. Act is factually enacted to advance the child’s
right to complete development as provided for
under Article 21.” Therefore, regardless of the
infant’s sex, a conceived child has a right to full
development under Article. As a result, the High
Court rejected the petition, ruling that there was
no evidence at all that Article 21 of the
Constitution was violated.

23. The following issues were raised in this case
for consideration: Does Section 28 of the Pre-
conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 permit a
court to find a violation of the Act upon receipt of
a complaint from any official authorised by the
appropriate authorities to file such a complaint?
Does the proviso to subsection (3) of Section 4 of

24. responsibility to establish that there was a
contravention of the provisions of Section 5 or 6
of the Act.
JUDGMENT – A court may take notice of an
offence under the Preconception and Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994, on a complaint submitted
by any official authorised in that regard by the

25. The proviso to Section 4(3) of the PNDT Act
does not mandate that the complaint alleging
accuracy or inadequacy in preserving records in
the required way should also contain an
accusation of violating Sections 5 or 6 of the
PNDT Act.
The burden of proving a violation of Sections
5 or 6 does not fall on the prosecution in a case
based on allegations of a shortcoming or error in

26.  A – Application for registration / renewal of
G.C.C. / G.C. / G.L. /U.C / Imaging centre
 B – Certificate of registration
 C – Form of rejection of application for grant /
renewal of registration
 D – Form for maintenance of record by genetic
counselling centres
 E – Form of maintenance of records by G.L.
 F – Form of maintenance of record in case of a
pregnant women by U.C. / G.C. / Imaging centre
 G – Form of consent
 H – Form for maintenance of permanent record

28. In a comprehensive view of gender
inequality, it is also important to include the
serious crime of killing female foetuses. The
fervently upheld mistreatment of women, the use
of violence, the denial of economic prospects,
and the complete silence of their voices, even on
such a private and important subject as rearing
their own families, all reveal deeply ingrained

29. and dead ends. They must be recognised,
named, and dealt with. The cruelty and avarice
of the medical profession’s members in such
activities and degrading practices must not be
tolerated by professional organisations like the
Indian Medical Association. For the PNDT Act to
be a fundamental transformation, emphasis
must also be placed on sufficient education,
lobbying, publicity, and commitment to saving

30. situations where doctors are not involved
directly. If they have specific information, their
vigilance in reporting such acts to competent
authorities can certainly help. The creation of a
creative legal engagement plan as a method of
mobilisation and opposition is ultimately what is
required.

31. The level of PCPNDT Act knowledge fell
short of expectations. Women’s attitudes
towards the sex of children and societal factors
that favour male offspring are still ingrained in
society. It is imperative that the media, social
workers, and medical personnel take an active
role in educating the public and changing

32. The most prevalent goals of the pre-
conception and pre-natal diagnostic procedures
Act of 1994 are to monitor female foeticide and
prevent it from occurring. After being put into
effect, its effectiveness is clear
A good indicator is that the PCPNDT Act’s
sex ratio has risen to 108.18 men for every 100
females, or 947 females for every 1000 males,
and is increasing at an estimated annual rate of

33. foeticide in rural India, the government has
introduced several programmes to combat it and
promote the welfare of girls. in order for people
in rural India to stop these activities. The
“Mukhbir Yojna” is one such plan. A person who
notifies the government department of any
doctor or other medical personnel engaging in
the practice of sex determination or female
foeticide would receive a reward of 2 lakh

34. At last, it can be seen that the medical and
health law regarding protecting the female
foetus has resulted in some changes, but the
medical fraternity needs to be protected at the
same time from these minor offences. For this
reason, the right to operate a clinic, hospital, or
nursing home with all of these regulations that
are in harmony with the responsibilities of
doctors and medical ethics needs to be properly

35. Thank you