The Supreme Court has clarified that evidence obtained during an illegal search under the Pre-Conception and Pre-Natal Diagnostic Techniques Act remains admissible if relevant and genuine, reinforcing that procedural irregularities do not automatically nullify prosecution for female foeticide. This ruling balances strict statutory enforcement with evidentiary fairness in social welfare legislation.
Background & Facts
The Dispute
Dr. Naresh Kumar Garg, a radiologist employed at Vatika Medicare in Gurugram, was named in a criminal complaint under the PCPNDT Act for allegedly conducting ultrasonography on a pregnant woman without maintaining statutory records or disclosing the foetus’s sex. The case originated from a sting operation conducted on 17.09.2015, during which Rs. 25,000 was recovered from Dr. Abdul Kadir, and Form F records from Dr. Garg’s clinic were seized. No money or incriminating material was recovered from Dr. Garg himself.
Procedural History
- 17.09.2015: A raid was conducted by a team led by the Civil Surgeon, acting alone, at Vatika Medicare. The team included Dr. Saryu Sharma, Shri Shyam Sunder, and Shri Amandeep Chauhan.
- 17.09.2015: FIR No. 336/2015 was registered against Dr. Garg and Dr. Kadir under Sections 420 IPC and PCPNDT Act.
- 28.10.2015: The trial court discharged Dr. Garg after the prosecution admitted insufficient evidence linking him to sex determination.
- 17.12.2015: The District Advisory Committee recommended filing a complaint against Dr. Garg for non-maintenance of Form F records.
- 17.09.2018: The District Appropriate Authority authorized Dr. Chitranjan, Deputy Civil Surgeon, to file a complaint under Sections 4, 5, 6, and 29 of the PCPNDT Act read with Rules 9 and 10.
- 18.09.2018: Complaint COMA/116/2018 was filed, with condonation of delay granted.
- 12.09.2022: The Judicial Magistrate First Class summoned Dr. Garg.
- 24.07.2024: The Punjab and Haryana High Court dismissed Dr. Garg’s Section 482 Cr.P.C. petition for quashing.
Relief Sought
Dr. Garg sought quashing of the complaint and summoning order on grounds that the initial search was illegal (conducted by a single member of the District Appropriate Authority), the complaint followed his discharge in the FIR case, and the District Advisory Committee was improperly constituted.
The Legal Issue
The central question was whether evidence collected during an illegal search under Section 30 of the PCPNDT Act - conducted by a single member of the District Appropriate Authority instead of the collective body - can still be relied upon to sustain a criminal complaint, and whether discharge in a police investigation bars subsequent prosecution initiated by the Appropriate Authority.
Arguments Presented
For the Appellant
Learned senior counsel argued that:
- The search on 17.09.2015 was invalid under Section 30(1) of the PCPNDT Act because it was authorized solely by the Civil Surgeon, not the full District Appropriate Authority comprising three members.
- The decision in Ravinder Kumar v. State of Haryana squarely applied, rendering the search null and void.
- The complaint was filed after discharge in the FIR case, violating the principle against double jeopardy and abuse of process.
- The District Advisory Committee included Shri Shyam Sunder, a member of the raiding team, violating Rule 18A(2)(ii) of the PCPNDT Rules.
- Non-maintenance of Form F alone cannot constitute a criminal offence without proof of intent to determine sex.
For the Respondent
The Additional Advocate General contended that:
- While the search may have been procedurally flawed, the seized records were relevant and admissible under established precedent.
- The District Appropriate Authority independently authorized the complaint under Rule 18A, and the Advisory Committee’s role was purely advisory.
- Discharge in the FIR case did not preclude a statutory complaint under Section 28(1) of the PCPNDT Act, which mandates prosecution only by the Appropriate Authority.
- Non-maintenance of Form F is a statutory contravention under the proviso to Section 4(3), and constitutes an offence under Section 23.
- The Advisory Committee member was not part of the investigating machinery, so Rule 18A(2)(ii) was not violated.
The Court's Analysis
The Court acknowledged that the search on 17.09.2015 was illegal under Section 30(1) of the PCPNDT Act, as it was authorized by the Civil Surgeon acting alone, contrary to the requirement of collective decision-making by the District Appropriate Authority. This finding was consistent with the binding precedent in Ravinder Kumar v. State of Haryana.
"If a single member of the appropriate authority authorizes a search, it will be completely illegal being contrary to sub-section (1) of Section 30."
However, the Court declined to quash the complaint on this ground alone. It held that while the search was illegal, the evidence seized - specifically the incomplete Form F records and absence of patient entries - remained admissible if relevant and genuine. The Court relied on the constitutional principle established in Pooran Mal v. Director of Inspector (Investigation), which affirmed that relevancy, not legality of procurement, governs admissibility under the Indian Evidence Act.
"Unless there is an express or necessarily implied prohibition in law, evidence obtained as a result of illegal search or seizure is not liable to be shut out."
The Court further distinguished between procedural irregularities and substantive offences. Non-maintenance of Form F, as mandated by Section 4(3) proviso and Rule 9(4), is not a mere clerical lapse but a statutory contravention that facilitates female foeticide. The Court cited FOGSI v. Union of India to affirm that such omissions are springboards for illegal sex determination.
The Court also rejected the argument that discharge in the FIR case barred the complaint. It emphasized that Section 28(1) of the PCPNDT Act vests exclusive power to initiate prosecution in the Appropriate Authority, independent of police investigations. The discharge order was based on lack of evidence for sex determination, not on the absence of record-keeping violations.
Regarding the Advisory Committee, the Court found no violation of Rule 18A(2)(ii), as Shri Shyam Sunder was a Red Cross volunteer without statutory investigative powers, and thus not part of the "investigating machinery".
The Court concluded that the complaint disclosed a prima facie offence under Section 23 for failure to maintain statutory records, and the trial court was entitled to examine the evidence on its merits.
The Verdict
The appellant’s appeal was dismissed. The Supreme Court held that an illegal search under the PCPNDT Act does not automatically render seized evidence inadmissible, and that prosecution for non-maintenance of statutory records under Section 23 may proceed even after discharge in a police case, provided the complaint is filed by the Appropriate Authority under Section 28(1).
What This Means For Similar Cases
Evidence from Illegal Searches May Still Be Admissible
- Practitioners must now argue admissibility based on relevance and genuineness, not merely on procedural illegality.
- Courts will examine whether the evidence is tainted by coercion or fabrication, not whether the search was technically valid.
- In PCPNDT and similar social welfare cases, courts are likely to admit documentary evidence (e.g., Form F, registers) even if obtained through flawed raids.
Statutory Non-Compliance Is a Standalone Offence
- Failure to maintain Form F or other mandated records under Section 4(3) proviso and Rule 9 constitutes a criminal offence under Section 23, irrespective of intent to determine sex.
- Medical practitioners must ensure complete, contemporaneous documentation - oral testimony or absence of sex disclosure will not excuse non-compliance.
- Defence strategies must shift from denying intent to proving compliance with Form F requirements.
Discharge in Police Case Does Not Bar Statutory Complaint
- Prosecution under special statutes like the PCPNDT Act is independent of police investigations.
- A discharge under Section 239 Cr.P.C. based on lack of evidence for one offence (e.g., sex determination) does not preclude a subsequent complaint for a different offence (e.g., record-keeping violation).
- Practitioners must file separate applications under Section 482 Cr.P.C. challenging the maintainability of the complaint, not merely relying on prior discharge.
