Supreme Court of India
Ravinder Kumar vs The State Of Haryana on 12 September, 2024
Author: Abhay S. Oka
Bench: Abhay S Oka
2024 INSC 684 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 3747 OF 2024 Ravinder Kumar … Appellant versus State of Haryana ... Respondent J U D G M E N T
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
Signature Not Verified
the decoy patient. The decoy patient and shadow witness, S.I.
Digitally signed by
KAVITA PAHUJA
Date: 2024.09.12
Usha Rani, informed Dhanpati that they knew the sex of the
16:27:33 IST
Reason:
foetus. Dhanpati called the decoy patient on 27th April 2017 at
Criminal Appeal No. 3747 of 2024 Page 1 of 14
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
Criminal Appeal No. 3747 of 2024 Page 2 of 14
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 sub-
section (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
Criminal Appeal No. 3747 of 2024 Page 3 of 14
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 27th April 2017 and issued the order authorising the
search. He submitted that the so-called raid under Section
30(1) is the only basis of the FIR and the complaint. He
submitted that the raid was completely illegal as it was not
conducted by the officers authorised by the Appropriate
Authority.
6. The learned counsel appearing for the State did not
dispute that the order appointing officers to conduct the raid
was issued and signed only by the Civil Surgeon, the
Appropriate Authority’s Chairman. He submitted that as there
was an emergency, the Civil Surgeon had to take action. He
submitted that the complaint under sub-Section (1) of Section
28 has been filed by an officer authorised by the Appropriate
Authority. The decision to file the complaint is made by the
Appropriate Authority. The learned counsel appearing for the
respondent would, therefore, submit that even if there is a
defect in the procedure adopted while appointing the officers to
conduct the raid, it does not amount to illegality, but it is a
curable irregularity which has been cured by subsequent order
of the Appropriate Authority to file a complaint.
Criminal Appeal No. 3747 of 2024 Page 4 of 14
CONSIDERATION OF SUBMISSIONS
7. To appreciate the submissions, we must refer to relevant
provisions of the 1994 Act. Section 23 of the 1994 Act, which
is a penal provision, reads thus:
“23. Offences and penalties.- (1) Any
medical geneticist, gynaecologist, registered
medical practitioner or any person who owns
a Genetic Counselling Centre, a Genetic
Laboratory or a Genetic Clinic or is employed
in such a Centre, Laboratory or Clinic and
renders his professional or technical services
to or at such a Centre, Laboratory or Clinic,
whether on an honorary basis or otherwise,
and who contravenes any of the provisions of
this Act or rules made thereunder shall be
punishable with imprisonment for a term
which may extend to three years and with
fine which may extend to ten thousand
rupees and on any subsequent conviction,
with imprisonment which may extend to five
years and with fine which may extend to fifty
thousand rupees.
2. The name of the registered medical
practitioner shall be reported by the
appropriate authority to the State Medical
Council concerned for taking necessary
action including suspension of the
registration if the charges are framed by the
court and till the case is disposed of and on
conviction for removal of his name from the
register of the Council for a period of five
years for the first offence and permanently
for the subsequent offence.
3. Any person who seeks the aid of a Genetic
Counselling Centre, Genetic Laboratory,Criminal Appeal No. 3747 of 2024 Page 5 of 14
Genetic Clinic or ultrasound clinic or
imaging clinic or of a medical geneticist,
gynaecologist, sonologist or imaging
specialist or registered medical practitioner
or any other person for sex selection or for
conducting pre- natal diagnostic techniques
on any pregnant women for the purposes
other than those specified in sub-section (2)
of section 4, he shall, be punishable with
imprisonment for a term which may extend
to three years and with fine which may
extend to fifty thousand rupees for the first
offence and for any subsequent offence with
imprisonment which may extend to five years
and with fine which may extend to one lakh
rupees.
4. For the removal of doubts, it is hereby
provided, that the provisions of sub-section
(3) shall not apply to the woman who was
compelled to undergo such diagnostic
techniques or such selection.”
8. The procedure for cognizance is incorporated in Section
28, which reads thus:
“28. Cognizance of offences. –
1. No court shall take cognizance of an
offence under this Act except on a complaint
made by—
(a) the appropriate authority concerned, or
any officer authorised in this behalf by the
Central Government or State Government, as
the case may be, or the appropriate
authority; or
(b) a person who has given notice of not less
than fifteen days in the manner prescribed,Criminal Appeal No. 3747 of 2024 Page 6 of 14
to the appropriate authority, of the alleged
offence and of his intention to make a
complaint to the court.
Explanation.—For the purpose of this clause,
“person” includes a social organisation.
2. No court other than that of a Metropolitan
Magistrate or a Judicial Magistrate of the
first class shall try any offence punishable
under this Act.
3. Where a complaint has been made under
clause (b) of subsection (1), the court may, on
demand by such person, direct the
appropriate authority to make available
copies of the relevant records in its
possession to such person.
9. Section 30(1) deals with the power to search and seize
records, which reads thus:
“30. Power to search and seize records,
etc. –(1) If the Appropriate Authority has
reason to believe that an offence under
this Act has been or is being committed at
any Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic or any other
place, such Authority or any officer
authorised thereof in this behalf may,
subject to such rules as may be prescribed,
enter and search at all reasonable times with
such assistance, if any, as such authority or
officer considers necessary, such Genetic
Counselling Centre, Genetic Laboratory or
Genetic Clinic or any other place and
examine any record, register, document,
book, pamphlet, advertisement or any other
material object found therein and seize and
seal the same if such Authority or officer hasCriminal Appeal No. 3747 of 2024 Page 7 of 14
reason to believe that it may furnish evidence
of the commission of an office punishable
under this Act.
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
(emphasis added)
10. The condition precedent for the search of a clinic is that
the Appropriate Authority must have reason to believe that an
offence under the 1994 Act has been or is being committed.
The Appropriate Authority, as defined under Section 2(a), is the
Appropriate Authority appointed under Section 17. Sub-
sections (1) to (3) of Section 17 read thus: –
“17. Appropriate Authority and Advisory
Committee. – 1. The Central Government shall
appoint, by notification in the Official Gazette,
one or more Appropriate Authorities for each of
the Union territories for the purposes of this
Act.
2. The State Government shall appoint, by
notification in the Official Gazette, one or more
Appropriate Authorities for the whole or part of
the State for the purposes of this Act having
regard to the intensity of the problem of pre-
natal sex determination leading to female
foeticide.
3. The officers appointed as Appropriate
Authorities under sub-section (1) or sub-
section (2) shall be,—
(a) when appointed for the whole of the State or
the Union territory, consisting of the following
three members:-
Criminal Appeal No. 3747 of 2024 Page 8 of 14
i) an officer of or above the rank of the
Joint Director of Health and Family
Welfare – Chairperson;
ii) an eminent woman representing
women’s organization; and
iii) an officer of Law Department of the
State or the Union territory concerned:
Provided that it shall be the duty of the State
or the Union territory concerned to
constitute multimember State or Union
territory level appropriate authority within
three months of the coming into force of the
Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Amendment Act,
2002:
Provided further that any vacancy occurring
therein shall be filled within three months of
that occurrence.
(b) when appointed for any part of the State
or the Union territory, of such other rank as
the State Government or the Central
Government, as the case may be, may deem
fit.
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ”
11. Now, coming back to Section 30, it is a very drastic
provision which grants power to the Appropriate Authority or
any officer authorized by it to enter a Genetic Laboratory, a
Genetic Clinic, or any other place to examine the record found
therein, to seize the same and even seal the same. The first
part of sub-section (1) of Section 30 safeguards these centres
or laboratories from arbitrary search and seizure action. The
Criminal Appeal No. 3747 of 2024 Page 9 of 14
safeguard is that search and seizure can be authorized only if
the Appropriate Authority has a reason to believe that an
offence under the 1994 Act has been committed or is being
committed.
12. The question is what meaning can be assigned to the
expression “has reason to believe”. Section 26 of the Indian
Penal Code defines the expression “reason to believe”, which
reads thus:
“26. “Reason to believe”.— A person is said
to have “reason to believe” a thing, if he has
sufficient cause to believe that thing but not
otherwise.”In the case of Aslam Mohammad Merchant v. Competent
Authority & Ors.1, this Court had an occasion to interpret the
same expression. In paragraph 41, this Court held thus:
“41. It is now a trite law that whenever a
statute provides for “reason to believe”, either
the reasons should appear on the face of the
notice or they must be available on the
materials which had been placed before
him.”However, interpretation of the expression will depend on the
context in which it is used in a particular legislation. In some
statutes like the present one, there is a power to initiate action
under the statute if the authority has reason to believe that1
(2008) 14 SCC 186Criminal Appeal No. 3747 of 2024 Page 10 of 14
certain facts exist. The test is whether a reasonable man,
under the circumstances placed before him, would be propelled
to take action under the statute. Considering the object of the
1994 Act, the expression “reason to believe” cannot be
construed in a manner which would create a procedural
roadblock. The reason is that once there is any material placed
before the Appropriate Authority based on which action of
search is required to be undertaken, if the action is delayed,
the very object of passing orders of search would be frustrated.
Therefore, what is needed is that the complaint or other
material received by the appropriate authority or its members
should be immediately made available to all its members. After
examining the same, the Appropriate authority must
expeditiously decide whether there is a reason to believe that
an offence under the 1994 Act has been or is being committed.
The Appropriate Authority is not required to record reasons for
concluding that it has reason to believe that an offence under
the 1994 Act has been or is being committed. But, there has
to be a rational basis to form that belief. However, the decision
to take action under sub-section (1) of Section 30 must be of
the Appropriate Authority and not of its individual members.
13. Under the notification dated 7th November 2013, the
Appropriate Authority for the district consists of the Civil
Surgeon, the District Program Officer of the Women and Child
Development Department, and the District Attorney. The Civil
Surgeon is the Chairman of the appropriate authority. Looking
at the object of sub-section (1) of Section 30 and the express
Criminal Appeal No. 3747 of 2024 Page 11 of 14
language used therein, only the Chairman or any other
member acting alone cannot authorise search under sub-
section (1) of Section 30. It must be a decision of the
Appropriate Authority. If a single member of the Appropriate
Authority authorises a search, it will be completely illegal being
contrary to sub-section (1) of Section 30. If the law requires a
particular thing to be done in a particular manner, the same
shall be done in that manner only. In the present case, going
by the affidavit filed by Dr Virender Yadav, the Chairman of the
District Appropriate Authority cum-Civil Surgeon, Gurugram,
the decision to conduct a search by appointing three officers by
order dated 27th April 2017 was only his decision purportedly
taken in his capacity as the Chairman of the Appropriate
Authority. Admittedly, the other two members of the
appropriate authority are not parties to the said decision. The
Civil Surgeon has given the excuse of urgency. The Appropriate
authority doesn’t need to have a physical meeting. The Civil
Surgeon could have held a video meeting with the other two
members. However, when a video meeting is held, every
member must be made aware of the complaint or the material
on which a decision will be made. It was a matter of a few
minutes.
14. Therefore, in the facts of the case, no legal decision was
made by the Appropriate Authority in terms of sub-section (1)
of Section 30 to search for the appellant’s clinic. As stated
earlier, sub-section (1) of Section 30 provides a safeguard by
laying down that only if the Appropriate Authority has reason
Criminal Appeal No. 3747 of 2024 Page 12 of 14
to believe that an offence under the 1994 Act has been
committed or is being committed that a search can be
authorized. In this case, there is no decision of the Appropriate
Authority, and the decision to carry out the search is an
individual decision of the Civil Surgeon, who was the Chairman
of the concerned Appropriate Authority. Therefore, the action
of search is itself vitiated.
15. There is another factual aspect of the case. The seizure
Memo dated 27th April 2017 (Annexure P-4) contains the names
of three persons. The Seizure Memo records that on 27th April
2017, the District Appropriate Authority constituted a team
comprising three members whose names were stated in the
seizure memo. However, a letter dated 27th April 2017
(annexure P-3) addressed by Deputy Civil Surgeon Rewari to
Deputy Civil Surgeon Gurugram records that the team
comprised four members, and the raid was conducted by the
said four members.
16. A perusal of the impugned FIR and impugned complaint
shows that its foundation is the material seized during the raid
on 27th April 2017. Except for what was found in the search
and the seized documents, there is nothing to connect the
accused with the offence punishable under Section 23 of the
1994 Act. As the search itself is entirely illegal, continuing
prosecution based on such an illegal search will amount to
abuse of the process of law. The High Court ought to have
noticed the illegality we have pointed out.
Criminal Appeal No. 3747 of 2024 Page 13 of 14
17. Therefore, the appeal is allowed, and the impugned
judgment dated 13th January 2023 is set aside. FIR No.408,
dated 27th April 2017, registered in the Police Station,
Gurugram at Gurugram, is hereby quashed. The complaint
bearing no. COMA No.40 of 2018, pending before the court of
learned Chief Judicial Magistrate, Gurugram, also stands
quashed.
……………………………….J.
(Abhay S Oka)
..…………………………….J.
(Augustine George Masih)
New Delhi;
September 12, 2024.
Criminal Appeal No. 3747 of 2024 Page 14 of 14