What is PCPNDT Act?

The PCPNDT Act was enacted to prevent misuse of prenatal diagnostic techniques for sex determination leading to female foeticide. The Act regulates:

• Genetic counselling centres
• Genetic laboratories
• Genetic clinics
• Ultrasound clinics
• Imaging centres
• IVF and fertility-related procedures involving prenatal diagnostics

The Act prohibits:

• Sex selection before or after conception
• Communication of sex of foetus
• Advertisement relating to sex determination
• Operation of unregistered ultrasound clinics

The law provides strict punishments including imprisonment, cancellation of medical registration, sealing of ultrasound machines, and criminal prosecution.

Can FIR be Registered under PCPNDT Act?

The short answer is: Ordinarily, No.

The PCPNDT Act contains a specific provision regarding cognizance and prosecution. Section 28 of the Act clearly states that no court shall take cognizance of an offence under the PCPNDT Act except upon a complaint made by:

• The Appropriate Authority; or
• An officer authorised by the Appropriate Authority; or
• A person who has given notice in the prescribed manner.

This provision substantially restricts the ordinary powers of police to directly initiate criminal prosecution by registration of FIR under the PCPNDT Act.

Section 28 PCPNDT Act Overrides General FIR Procedure

Section 28 of the PCPNDT Act reads in substance that prosecution can only commence through a statutory complaint mechanism.

This creates a departure from the normal criminal law procedure under the Code of Criminal Procedure, 1973 where police can ordinarily register FIRs for cognizable offences.

Since the PCPNDT Act prescribes a special procedure, courts have repeatedly held that:

• The Act is a complete code in itself;
• Complaint procedure under Section 28 is mandatory;
• Police cannot assume unrestricted jurisdiction under general criminal law.

Thus, mere registration of FIR by police without involvement of the Appropriate Authority often becomes legally vulnerable.

Limited Role of Police under PCPNDT Act

The role of police under the PCPNDT Act is generally confined to:

1. Assisting the Appropriate Authority during raids or inspections;
2. Providing law and order support;
3. Executing search and seizure when directed;
4. Investigating offences under IPC, if independently disclosed;
5. Acting pursuant to valid complaint proceedings initiated under the Act.

Police do not become primary prosecuting authority under the PCPNDT Act merely because allegations are made regarding sex determination or record maintenance violations.

The statutory scheme intentionally vests primary control with the “Appropriate Authority” constituted under the Act.

Why FIR under PCPNDT Act is Legally Challengeable

In many cases, FIRs are mechanically registered by local police stations without following the mandatory requirements under Section 28 of the PCPNDT Act.

Such FIRs may be challenged on grounds including:

• Lack of jurisdiction;
• Violation of mandatory statutory procedure;
• Absence of complaint by Appropriate Authority;
• Abuse of criminal process;
• Non-compliance with statutory safeguards.

Courts have repeatedly emphasized that when a special statute prescribes a particular method for prosecution, authorities must strictly follow that procedure.

Quashing of FIR under PCPNDT Act

A petition for Quashing of FIR under PCPNDT Act can be filed before the jurisdictional High Court under Section 482 CrPC / Section 528 BNSS seeking exercise of inherent powers.

Grounds commonly taken include:

• FIR registered by unauthorized police officer;
• No complaint under Section 28 PCPNDT Act;
• Violation of mandatory provisions;
• Malafide prosecution;
• Abuse of process of law;
• Lack of ingredients constituting offence.

Several High Courts have quashed criminal proceedings where police bypassed the statutory mechanism prescribed under the PCPNDT Act.

However, each case depends upon:

• Nature of allegations;
• Whether IPC offences are also invoked;
• Role of Appropriate Authority;
• Stage of proceedings;
• Nature of investigation conducted.

Bail in PCPNDT Act Cases

Obtaining Bail in PCPNDT Act matters depends upon the facts of the case, nature of allegations, and stage of prosecution.

Courts generally consider:

• Whether allegations relate to technical violations or actual sex determination;
• Previous compliance history;
• Whether records were maintained;
• Whether accused cooperated in investigation;
• Whether prosecution itself is legally sustainable.

Where prosecution suffers from jurisdictional defects, it strengthens the case for anticipatory bail or regular bail.

PCPNDT Act is a Special Statute

The Supreme Court and various High Courts have consistently held that where a special statute creates:

• specific offences,
• designated authorities,
• and a special procedure,

the general provisions of criminal law must yield to the special enactment.

The PCPNDT Act carefully creates a regulatory mechanism controlled by the Appropriate Authority. Permitting unrestricted police prosecution would defeat the legislative framework of the Act.

Important Legal Position on FIR under PCPNDT Act

The settled legal position emerging from various judicial precedents is:

• PCPNDT Act provides a special complaint procedure;
• Appropriate Authority plays central role;
• Police powers are not absolute under the Act;
• Direct FIRs by police may be challengeable;
• Criminal proceedings initiated contrary to Section 28 may be liable to quashing.

Frequently Asked Questions (FAQs)

What is PCPNDT Act?

The PCPNDT Act is a law enacted to prohibit sex selection and regulate prenatal diagnostic techniques to prevent female foeticide.

Can police register FIR under PCPNDT Act?

Ordinarily, prosecution under the PCPNDT Act must be initiated through complaint procedure prescribed under Section 28 by the Appropriate Authority or authorised officer.

Can FIR under PCPNDT Act be quashed?

Yes. High Courts can quash FIRs and proceedings if statutory procedure under the Act is violated or prosecution is initiated without jurisdiction.

Is bail possible in PCPNDT Act cases?

Yes. Depending upon facts, courts may grant anticipatory bail or regular bail in PCPNDT Act matters.

What is the role of police under PCPNDT Act?

Police generally assist the Appropriate Authority and do not function as independent prosecuting authority under the Act unless other cognizable offences are involved.

Conclusion

The PCPNDT Act is a socially significant legislation aimed at preventing female foeticide and sex selection. However, strict adherence to statutory safeguards is equally necessary.

The law does not permit indiscriminate criminal prosecution outside the mechanism specifically created under the Act. Courts have repeatedly recognized that the role of police under PCPNDT Act is limited, and prosecution must ordinarily originate through the Appropriate Authority in terms of Section 28.

Therefore, where police directly register FIRs without following the statutory framework, such proceedings may become vulnerable to judicial scrutiny, quashing, and consequential relief including bail.

Bhuvnesh Kumar Goyal
Advocate in Jaipur