Does the PC & PNDT Act stop the police investigating IPC offences on the same facts?

Paragraph 11Although we have extracted the questions referred to us in paragraph 2, for the sake of completion we may reproduce them here also. Question 1 – Whether, for offences under the PC & PNDT Act, the registration of FIR at the police station is permissible, merely because the offences under the PC & PNDT Act have been made cognizable and non-bailable? Answer 1 – The language of the statute, more particularly Sections 27 and 28 of the Act when read together, in light of the other provisions and the socially beneficial nature of the Act as also the requirement of sensitivity along with medical and technical know-how, indicates that the police are not meant to be the investigators for the purpose of this Act. This is further made clear by the fact that an FIR once registered cannot be taken to its logical conclusion as per the procedures of this Act. The restriction applies only to offences under this Act and does not restrict the police’s power to investigate or prosecute independent offences disclosed under substantive criminal law (IPC/BNS). Question 2 – Whether the police investigation is permissible for the offences under the PC & PNDT Act? And who can investigate the complaints, received for violation of the provisions of the PC & PNDT Act? Answer 2 - Section 17(4) of the Act, while describing the functions of the AA, clearly states that investigating the complaints is its responsibility. Rule 18A(3)(iv), which has statutory force, also requires that recourse to the police be avoided “as far as possible”. It necessarily has to be concluded, therefore, that the police cannot be the main investigating authority. At best, the police may play a supplemental role, as and when required by the AA under its supervision. Question 3 – Whether on the chargesheet submitted after the investigation by the police, the competent magistrate can take cognizance of the offence under the PC & PNDT Act? Answer 3 – Section 28 of the Act envisions a complete statutory embargo on the taking of cognizance except in situations and scenarios provided thereunder. The answer has to be clear. The competent Magistrate shall not be able to take cognizance upon the filing of a chargesheet.

Paragraph 11The principle from Sanjay (supra) must be applied with care, because it does not mean that the police may investigate the PC & PNDT offence whenever a general penal provision is also cited, but the practical inquiry is into, understand the pith and substance of the allegation, tested by the ingredients of the offences. If the offence is only sex determination, communication of fetal sex, prohibited use of the diagnostic technique, or another offence which clearly falls within the scope of PC & PNDT Act, the police must keep their hands off that investigation unless the AA seeks their assistance. Conversely, if a deliberate medical act independently causes death, homicide, foeticide, or such other connected offences, and the facts satisfy the ingredients in the general penal law offence, the police may investigate those offences. What they cannot do is use the general offence as a gateway to take over the PC & PNDT inquiry and equally, the Special Act cannot operate as a shield against investigation of a genuinely distinct IPC/BNS offence.