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PC-PNDT Act : AN OVERVIEW

Preamble of the PCPNDT Act - "

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 foeticide and for matters connected
therewith or incidental thereto."

This preamble substituted by the Act of 14 of 2003. Prior to its

substitution the title of this Act was very much long. The main object of this
Act is to prohibit pre-natal diagnostic techniques for determination of sex
of the foetus leading to elimination of female foeticide. It is abuse of
techniques which is discriminatory against the female sex and affects the
dignity and status of women. The need was therefore felt to regulate the use
of such techniques and to provide deterrent punishment to stop such inhuman
acts.

In the year 2003 the object and reasons were amended to include
proliferation of new technologies that are being developed to select the
sex of the child before conception. These practices and techniques are
considered discriminatory to the female sex and not conducive to the dignity
of women. Hence the object of the Act "is to
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ban pre-conception sex selection techniques and the misuse of pre-natal

diagnostic techniques for sex selective abortion and to provide for the
regulation of such abortions."
Salient features of the PCPNDT Act.

This statute was enacted to prohibit the preconception and

prenatal diagnostic techniques. Such techniques discriminate against the
female sex and affects the dignity of women. Therefore this Act came into
existence. Section 3 provides for the regulation of genetic counselling
centres, genetic laboratories and genetic clinics by their registration under the
Act and by their operation by qualified persons. Section 3(A) imposes a
prohibition etc. to persons, laboratories, clinics etc. not registered under the
Act. Section 4 regulates prenatal diagnostic techniques. Section 5 requires
the written consent of the pregnant woman and prohibits the communicating
of the sex of the foetus. Section 6 prohibits the determination of the Sex.
Chapter IV (Section 7 to 16(A) deals with the constitution of the Central
Supervisory Board to, inter alia, review and monitor the implementation of
the Act and Rules. Under Section 16(A) State and Union Territory
Supervisory Boards are to be established for the same purpose. Chapter V
(Section 17, 17(A)) covers the Appropriate Authorities and Advisory
Committees. The Appropriate Authorities have extensive powers under
Section 17 inter alia to grant, suspend or cancel registration of centres etc.,
to investigate complaints and to take legal action. The Appropriate
Authorities have, inter alia, the power to summon persons, order the
production of documents and issue search warrants.

Sections 18 & 19 deal with the registration of centres etc.

Section 20 deals with the cancellation or suspension of registration. Section
22 makes it an offence punishable with imprisonment and fine for
advertising relating to determination of sex. Sections 23 & 25 make it an
offence punishable with imprisonment and fine for contravening
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any of the provisions of the Act and Rules. Section 24 creates a

presumption in favour of the pregnant woman to the effect that
she was compelled by her husband or relatives to undergo a
diagnostic technique amounting to an offence. Section 26 deals
with offence by companies. Section 27 makes every offence
cognizable, non-bailable and non-compoundable. Section 28 lays
down the procedure for taking cognizance. Section 29 lays down
the requirement for maintenance of records by clinics etc. Section
30 gives the power to the Appropriate Authorities to do search and seizure
of records. Section 32 is the rule making power. The Pre-Conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules,
1996 have been framed. Form D & E are for the maintenance of records by
a genetic counselling centre and genetic laboratory respectively. Form F is
particularly important. This is for the maintenance of records in
respect of pregnant women by clinics etc. If these forms are
filled properly and honestly it would be possible to detect
contravention of the provisions of the Act by scrutiny of these forms
alone. However, in order to hide sex selection and determination this
form is either not filled up at all or improperly prepared.

Landmark decisions on constitutional validity of the Act.

As on date there are two decisions, both of Hon’ble Bombay High

Court, in which the constitutional validity was challenged but uphold.
Both decisions are landmark in the way deals with this most sensitive and
socially relevant issue. These are as under;

(1) Vinod Soni & Anrs. Vs. Union of India [2005 Cr. L. J. 3408]
(B.H.C.)
"The petitioners in this case were a married couple. They had
challenged the Constitutional validity of the Act basically on two grounds -
first, that it violates Article 14 and second, that it violates Article 21 of the
Constitution of India. However, at the time of argument, challenge to Article
14 was not pressed into submission.” The Hon'ble High Court however

exposed the fallacy of this argument by observing that, "right to

personal liberty cannot be expanded by an stretch of imagination to
liberty to choose the sex of the child and prohibit to coming into
existence of a female foetus".

(2) Vijay Sharma & Ors. Vs. Union of India

[AIR 2008 Bombay 29]
"In this Writ Petition filed under Article 226 of the
Constitution of India, by Mr.Vijay Sharma and Others, the validity
of the Act was challenged on the ground that it violates the
principle of ‘equality of law’ enshrined in Article 14 of the
Constitution of India.”
The Hon’ble Judges of the High Court, after elaborately
dealing with the Object, Reasons and Provisions of the Act, held
that there could be no comparison between the two legislations
viz., MTP Act and PCPNDT Act. The object of both the Acts
differs. MTP Act does not deal with the sex selection before or
after conception. Anguish of a mother who does not want to bear a
child of a particular sex cannot be equated with a mother who
wants to terminate the pregnancy not because of the sex of child
but for other reasons. Thus by process of comparative study, the
High Court held that provisions of the Act cannot be called
discriminatory and hence violative of Article 14 of the Constitution
(para 17)

Penal Provisions under the Act

(12). Penal provisions deal with the offences and penalties and list
punishments for contravention of the Sections and Rules of the Act. Any
medical professional who contravenes any of the provisions of this Act or
Rules is liable for imprisonment for a term which may extend to three years
and with fine which may extend to Rs.10,000/- and on any subsequent
 conviction, with imprisonment which may extend to five years and
with fine which may extend to Rs.50,000/-. A person who seeks pre-natal
diagnostic facilities for purposes of sex selection is liable to three to five
years imprisonment and fine ranging from Rs.50,000/- to Rs.1,00,000/-.
Any person advertising about sex selection is liable for imprisonment upto
three years and fine of Rs.10,000/-. Whoever contravenes any of
the provisions of this Act or any Rules made thereunder, for which
no penalty has been elsewhere provided in this Act, shall be punishable
with imprisonment for a term which may extend to three months or
with fine, which may extend to Rs.1000/- or both and in the case of
continuing contravention with an additional fine which may extend to
Rs.500/- for every day during which such contravention continues after
conviction for the first such contravention.

Section/ Rule Penal Provisions

Section 22(3) Penalty for advertisement - prohibited under the

Act

Section 23(1) Punishment for medical practitioner contravening

any provision of the Act or Rules.

Section 23(2) Suspension of registration/removal of name from

Register of Medical Practitioners by State Medical

Council.

Section 23(3) Punishment for person seeking aid of pre-

conception or pre-natal diagnosis for the purpose

of sex selection.

Section 24(4) Provision of Section 23(3) does not apply to

pregnant women.

Section 25 Anyone contravening any provision of the Act or

Rules for which no penalty has been provided

elsewhere.
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Structure and Implementing Authorities under the Act.

The PCPNDT Act envisages the constitution of certain structures for
effective implementation of the Act. These include;
(1) Central Supervisory Board
(2) State/UT Supervisory Board
(3) State Appropriate Authority/State Advisory Committee
(4) District Appropriate Authority /
District Advisory Committee.

Presumption under the Act.

(16). The PCPNDT Act is a progressive piece of legislation as it

makes a presumption under Section 24 that a pregnant woman would
be exempt from punishment unless the contrary is proved. It will be
assumed that the pregnant woman was compelled by her husband
or any other relative to undergo pre- natal diagnostic technique for the
purpose of sex selection.

(17). The Act also makes a presumption that any deficiency or inaccuracy
found in maintenance of records as prescribed under Section 29 and Rule 9
of the Act shall amount to contravention of provisions of Sections 5 & 6
unless contrary is proved by the person conducting such ultrasonography.

Who can file a complaint ?

(18). Under the Act a complaint has to be filed by the AA concerned, any
officer authorised in this behalf by the Central or State Government or AA or
a person who has given notice of at least 15 days to the AA of the alleged
offence and of his/her intention to make a complaint in the Court. As per
explanation to Section 28, ‘person’ includes a social organisation.

(19). In the case of Dr. Kavita Pramod Kamble (Londhe) Vs. State of
Maharashtra and Anr., Hon'ble Bombay High Court held that not only AAs
 but any officer on whom the powers are conferred by the Central
Government , State Government or by the AA can institute a complaint and
the court can take cognizance on a complaint made by an officer authorised
in that behalf.

Who can take cognizance ?

(20). As per Section 28 sub-clause 2 no court other than that of a

Metropolitan Magistrate or a Judicial Magistrate First Class shall try any
offence punishable under the Act. Hence exclusive jurisdiction is conferred
on the Court of Metropolitan Magistrate or Judicial Magistrate First Class to
take cognizance of the offence under the Act.12
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What are the procedures for conduct of trial under the Act

(22). As per Section 27 of the Act, every offence under this Act shall be
cognizable, non-bailable and non-compoundable. Cases under this Act are
instituted not on police report. They are supposed to be conducted as warrant
cases on a complaint other than on police report. Hence evidence has to be
recorded before framing of charge. The case of Dr. Ravindra s/o. Shivappa
Karmudi Vs. State of Maharashtra clarifies this issue.
(23). In Dr. Ravindra s/o Shivappa Karmudi Vs. State of
Maharashtra. (B.H.C.)
"Section 28 of the Act makes it clear that the Court
can take cognizance of the offence punishable under the Act
only on the complaint lodged by the AA or the persons or
organization fulfilling the criteria laid down therein.
Therefore, this is a case instituted not on the police report
but otherwise. As the punishment provided for the offences
under Sections 22 & 23 of the Act is of imprisonment for a
term which may extend to three years and fine which may
extend to Rs.10,000/-the procedure for trial of these offences
is of warrant trial as laid down in Chapter XIX of Cr.P.C.
 specifically provided in Part B of the Chapter for cases
instituted otherwise than on police report.

Whether Police has power to investigate or not? :-

In Dr. Tejinder Pal Singh Multani v. State of Punjab (P&H) : Law

Finder Doc Id # 659269 2015(2) R.C.R.(Criminal) 399

In the present case, it was held that the FIR and other proceedings are
contrary to the provisions of PNDT Act as there is an express legal bar
and still the FIR has been lodged and on the basis of said FIR, the
charges have been framed against the petitioner. The trial Court has failed
to take into consideration the facts and circumstances of the case and
especially, the legal provisions which debars the police from further
proceedings with the matter as the police cannot take cognizance without
the complaint filed by the Appropriate Authority.

Dr. Arvind Pal Singh Gambhir And vs State Of Punjab And Others
2013 (P& H) held that As far as the investigation is concerned, there is
no dispute that as per Sectaon 27 of the PNDT Act, the police can take
cognizance of the offence and arrest a person without warrant and
continue with the investigation. However, as per Section 28 of the PNDT
Act, the appropriate authority, appointed by the Central Government or
the State Government, shall be competent to present a complaint before
the Court, who shall then take cognizance of the offence.
 Dr. Hardeep Singh and another vs State of Haryana and another CRM-
M- 4211 of 2014 it was held that as per Section 27 of this Act, every offence
under this Act shall be cognizable, non-bailable and non-compoundable. As per the
definition given in the gazettee notification dated 24.2.2014, and in the
Criminal Procedure Code, 1973, cognizable offence means an offence for
which, and cognizable case means a case in which, a Police Officer may in
accordance with the Ist Schedule or under any law for the time being in
force arrest without warrant. Keeping in view the two sections one saying the
offences under the Act are cognizable and the other saying cognizance of offence
can be taken on the complaint made by the Appropriate Authority requires the
determination on legal points from a larger Bench:-
(1)Whether FIR for the offences committed under this Act
can be registered on the complaint of Appropriate Authority
and can be investigated by the Police?
(2) Whether the report under Section 173 Cr.P.C. along
with the complaint of an Appropriate Authority can be filed to
the Court?
(3) Whether no FIR can be lodged nor the offences can be
investigated by the Police and only complaint by the
Appropriate Authority directly to the Court lies?
In view of the above, this case was put up before the Hon’ble Chief
Justice for appropriate orders.

Anuj vs State Of Haryana on 20 November, 2017 CRM-M-30759-

2017 ( P& H) held that power of search and seizure has been vested with
the Appropriate Authority, the police would not have the power to
investigate the case, Hon`ble Division Bench of this Court in Hardeep
Singh's case (supra) while discussing scope of Sections 4 and 5 of the
Code held that in terms of sub-Section (1) of Section 4, all offences under
the Indian Penal Code are to be investigated and inquired into, tried and
otherwise dealt with according to the provisions of the Code. As per view
taken by the Division Bench of this Court in Hardeep Singh's case
(supra), the FIR for the offences committed under the Act can be
registered on the complaint of the Appropriate Authority and can be
investigated by the Police, but cognizance of the offence is to be taken by
the Court only on the complaint that has been filed in accordance with
the provisions of Section 28 of the Act.

(24). The Act provides that any contravention of any provisions of the Act is
liable for punishment with imprisonment and fine. It does not make any
distinction in punishment for conducting sex selection, disclosure of sex of
foetus, non-maintenance of records and/or advertisement. If the case ends in
conviction of the accused, the punishment has to be deterrent so as to send a
proper signal to other erring doctors and to society at large to restrain them
from indulging in such unethical and unlawful practices. The Act provides
for graded punishment of imprisonment and fine or first and subsequent
offence.

(25). According to the Act, even the non-maintenance of records is not

merely a technical or procedural lapse but has to be also dealt with
sternly as the punishment provided for the said offence is also
imprisonment extending upto three years and fine. In view of Section
23(2) of the Act, in case of conviction, the court should pass a specific
order of removal of the name of the medical practitioner from the
Register of the Medical Council for a period of five years for the first
offence and permanently for the subsequent offence.

(26). As the sonography machine seized by the AA was used for the
commission of the offence, the court should pass the order of
confiscating the same to the state in case of conviction. In the case of
Dr. Vandana Ramchandra Patil Vs. State of Maharashtra, the High
Court did not permit the release of the machine even on indemnity
bond during pendency of inquiry and trial.

(27). Thus, the provisions of the Act needs to be implemented

seriously and honestly. Every attempt should be made by each
authority to carry the object of the Act. The Courts must be sensitive
about the cases arising out of the Act.