IMPORTANT POINT
Sex Determination Test – Continuing prosecution based on an illegal search will amount to abuse of process of law – If law requires a particular thing to be done in a particular manner, same shall be done in that manner only.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant claims that he has been practising as a general Physician since 2001 and as a Radiologist since 2007. On 27th April 2017, a team comprising four officers raided the appellant's clinic. Based on the complaint against one woman, Dhanpati (accused no.1), that she is running a racket of sex determination and medical termination of pregnancy, a decoy patient was selected. The allegation is that Dhanpati was contracted to do the medical termination of the pregnancy of the decoy patient. The decoy patient and shadow witness, S.I. Usha Rani, informed Dhanpati that they knew the sex of the foetus. Dhanpati called the decoy patient on 27th April 2017 at 8 am for MTP. The shadow witness informed Dhanpati that family members of the decoy patient were suggesting reconfirming the sex of the foetus through ultrasound. Dhanpati called the shadow witness on 27th April 2017 at 7 am and stated that the Doctor who would perform the ultrasound would charge Rs.20,000/- but ultimately, she fixed the deal at Rs.15,000/-.

2. Accordingly, the decoy patient was given a sum of Rs.15,000/-. The members of the search party, along with the police staff as well as the shadow witness and decoy patient, went to the Gurugram bus stand where Dhanpati asked for Rs.15,000/- which amount was handed over to her. After that, a nurse, Anju (accused no.2), was called by Dhanpati, and a part of the amount of Rs.15,000/- was given to her. Thereafter, the decoy patient and others entered the appellant's clinic, known as the Divine Diagnostic Centre at Gurugram. The decoy patient was taken inside. When the decoy patient and Anju came out of the diagnostic centre, the police caught them. The search team entered the diagnostic centre. The cash amount was seized, and the team recovered even the USG report for the decoy patient. It was alleged that the appellant had signed the said report.

3. A first information report was registered on 27th April 2017 in the Police Station, Gurugram, alleging the commission of an offence punishable under Section 23 of the Pre- Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, ‘the Act of 1994’). It was followed by a complaint filed by the District Appropriate Authority under Section 28(1) of the Act of 1994 before the learned Chief Judicial Magistrate, Gurugram, alleging the commission of punishable offences against the appellant, the said Dhanpati and Anju. The allegation against the appellant and the co-accused was of indulging in the illegal activity of sex determination of a foetus by using ultrasound.

4. The appellant filed a petition for quashing the complaint and the FIR before the High Court. By the impugned judgment, the High Court declined to quash both the complaint and FIR.

SUBMISSIONS

5. Learned counsel appearing for the appellant invited our attention to the provisions of the 1994 Act. He pointed out a notification issued on 7th November 2013 by the Government of Haryana under sub-section (2) read with clause (b) of subsection (3) of Section 17 of the 1994 Act by which Appropriate Authorities were constituted for each District consisting of Civil Surgeon, District Programme Officer, Women and Child Development Department and District Attorney. He submitted that the search /raid purportedly conducted under the orders of the Appropriate Authority of the District under Section 30(1) of the 1994 Act was completely illegal as there was no order passed by the Appropriate Authority authorising the conduct of the raid. He submitted that only the Civil Surgeon signed the order authorising officers to conduct the raid. But, two other members of the Appropriate Authority did not sign the said order. He pointed out an affidavit filed by Dr. Virender Yadav, the Chairman of the District Appropriate Authority - cum-Civil Surgeon, Gurugram. He stated that the Civil Surgeon accepted that he alone constituted the raiding team vide order dated 27