Selective Pregnancy Termination Fuels Gender Inequality; Forced Abortion In Unhygienic Clinics Attacks Right To Bodily Autonomy: P&H HC

Observing that "forced, illicit abortions in unhygienic clinics directly attacks their right to bodily autonomy inter alia violating right enshrined under Article 21," the Punjab & Haryana High Court refused to quash an FIR lodged against a female doctor, alleged involved in illegal sex determination, on the ground that under the Preconception and Pre-Natal Diagnostic Techniques Act, 1994 (PNDT Act) the cognizance can be taken by the Court only on filing of complaint by appropriate authority. 

For context, as per Section 28 of the PNDT Act, there is a restriction that the Court shall take cognizance of an offence only on a complaint made by the concerned Appropriate Authority.

While refusing to quash the FIR, the Court noted, "the stage for taking cognizance of offence under the PNDT Act has not yet been reached and thus, the present FIR cannot be quashed on the ground that the police cannot register and investigate an offence under the PNDT Act."

The only restriction imposed upon the Court is that it cannot take cognizance except on the complaint filed in writing by the Appropriate Authority, it added.

Justice Harpreet Singh Brar said, "the preference for a male child is evident from the skewed sex ratio, which is rooted in cultural and social biases that not only propagate misogyny but also endangers the health of the expectant mothers. Alongwith posing deep ethical questions, selective termination of pregnancies further exacerbates gender inequality in the society creating an unsafe environment, unconducive to the cause of gender justice. Forced, illicit abortions in unhygienic clinics directly attacks their right to bodily autonomy inter alia violating right enshrined under Article 21 of the Constitution of India."

The Court further added that separating context from the statute would have disastrous consequences and therefore, the Courts should not fall prey to hyper-technical approaches while interpreting the PNDT Act and pay due regard to the legislative intent behind it. The PNDT Act serves a social utility and a restrictive interpretation of the same would negate the very purpose of its enactment.

These observations were made while hearing the plea under Section 482 CrPC for quashing of FIR under Sections 29, 5 (2), 6 (b) of the PNDT Act and Section 120-B IPC against a doctor for allegedly conducting illegal sex determination of foetus.

Dr Rachna Raina was booked under Sections 29, 4, 5(2), 6 (b) of the PNDT Act and Section 120-B IPC at Police Station Krishna Gate, Thanesar, District Kurukshetra.

The counsel for the petitioner argued that the FIR is liable to be quashed because Section 28 of the PNDT Act makes it abundantly clear that no Court shall take cognizance of an offence under this Act except on a complaint made by the Appropriate Authority or any officer authorized in this behalf by the Central Government or the State Government.

Considering the submissions, the Court referred to Sections 27 and 28 of the Act and Section 18-A of PNDT Rules, 1996.

A perusal of the aforesaid provisions would indicate that the offences provided under the PNDT Act are cognizable, non-bailable and non-compoundable. However, Rule 18-A of the Rules of 1996 indicates that the power of the police to investigate is not completely barred under the PNDT Act, as the expression 'as far as possible' under Rule 18-A (3) indicates that whenever the Appropriate Authority deems it necessary, it can take the aid and assistance of the police, noted the Court.

The bench further clarified that when any information is received by the police about any cognizable offence, they are bound to register FIR and proceed with the investigation. But under the PNDT Act, there is a restriction that the Court shall take cognizance of an offence only on a complaint made by the concerned Appropriate Authority.

Adding that the intervention of the Court was sought at a time when the investigation was in progress, the bench said, "The stage for taking cognizance of offence under the PNDT Act has not yet been reached and thus, the present FIR cannot be quashed on the ground that the police cannot register and investigate an offence under the PNDT Act."

 In the light of the above, the plea was dismissed.

Appearance: Abhishek Sethi, Advocate and Ms. Richa Sethi, Advocate for the petitioner.

Geeta Sharma, DAG, Haryana.

Citation: 2023 LiveLaw (PH) 288

Title: Dr. Rachna Raina v. State of Haryana

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