Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is the procedural keyhole through which every PCPNDT prosecution must pass. However grave the alleged sex determination, a Magistrate cannot move unless the matter reaches the court through one of the narrow channels the section permits: a complaint by the Appropriate Authority or an authorised officer, or a complaint by a private citizen who has first given fifteen days' notice. Read with Section 27, which makes every offence cognizable, non-bailable and non-compoundable, Section 28 produces the curious hybrid that dominates the case law — a cognizable offence whose cognizance is, paradoxically, locked behind a complaint. This chapter unpacks the text, the competing High Court views on FIRs and police investigation, and the cognizance-specific holdings of the Supreme Court and High Courts that examiners return to year after year.
The text and scheme of Section 28
Section 28 is short but decisive. Sub-section (1) provides that “No court shall take cognizance of an offence under this Act except on a complaint made by” either (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, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. Sub-section (2) adds the forum bar: “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.”
Two distinct restrictions therefore operate together. The first is a locus filter on who may set the criminal process in motion; the second is a forum filter on which court may try the matter. The provision must be read alongside the broader penal scheme of the Act — particularly Section 23 (offences and punishment) and Section 27 (offences cognizable, non-bailable and non-compoundable) — because Section 28 controls how those substantive offences actually enter a courtroom.
The architecture of Section 28 is a deliberate departure from the ordinary criminal process and must be appreciated as such. In the general scheme of criminal procedure a Magistrate may take cognizance upon receiving a complaint, upon a police report, or upon information received from any person other than a police officer or upon the Magistrate's own knowledge. Special statutes frequently narrow these gateways, and Section 28 is a particularly strong example: it shuts off every avenue save a complaint by the persons it names. The phrase “No court shall take cognizance” is a negative, prohibitory formulation, and courts have consistently read such language as mandatory rather than directory. The consequence is that a defect going to the root of the complaint — an incompetent complainant, or a private complainant who skipped the notice — is not a curable irregularity but a jurisdictional bar that vitiates the cognizance itself.
It is also important to fix the meaning of “cognizance” itself, because much of the case law turns on it. Taking cognizance is the application of the judicial mind to the allegations with a view to proceeding under the Act; it is the moment at which the Magistrate decides to take judicial notice of an offence. It is distinct from, and anterior to, the issue of process or the framing of charge. Section 28 governs precisely this threshold moment. Everything that happens before cognizance — inspection of a clinic, seizure of records, search, even arrest where the offence is cognizable — is preparatory; the statutory filter bites at the point where the matter is placed before the Magistrate for the assumption of jurisdiction.
Why a complaint, not a police report, triggers cognizance
The phrase “except on a complaint made by” is the operative limb. Ordinarily, under the general criminal procedure, a Magistrate takes cognizance of a cognizable offence on a police report after investigation. Section 28 displaces that default. By insisting on a complaint from a designated person, the legislature has consciously channelled PCPNDT prosecutions through the regulatory authority created by the Act rather than through the police station. The rationale is institutional: the Appropriate Authority — staffed with officers conversant with genetic counselling centres, Form F records and ultrasound regulation — is far better placed than a beat constable to appreciate whether a technical breach amounts to an offence.
This design also explains the recurring confusion in the reports. Although Section 27 labels every offence cognizable, the label does not by itself authorise a Magistrate to take cognizance on a charge-sheet; Section 28 still demands a complaint. The result is that the cognizable character of the offence governs powers of arrest and the registration question, while Section 28 independently governs cognizance. Keeping these two ideas apart is essential to answering the FIR debate discussed below.
The policy reasons for this channelling are worth stating fully, because examiners reward candidates who can justify the design rather than merely describe it. Sex-selection offences are typically committed within the closed setting of a clinic, leave little conventional evidence, and turn on technical compliance with record-keeping, registration and disclosure obligations. The Appropriate Authority, drawing on inspections, audits of Form F records and the registration files of genetic counselling centres and clinics, is uniquely equipped to assemble and assess that material. Routing prosecutions through this expert body reduces the risk that meritorious cases collapse for want of technical appreciation, and equally guards against ill-founded prosecutions of medical practitioners who have in fact complied. The complaint requirement is thus not an obstacle to enforcement but a calibrated mechanism that places the prosecutorial judgment where the competence lies.
There is a further structural point. Because the complaint is the only gateway, the Appropriate Authority's decision whether to complain is itself amenable to scrutiny. Where an authority abdicates its duty and declines to act on credible information, the citizen-complaint route under clause (b) supplies a corrective, and the higher courts have on occasion compelled authorities to discharge their statutory obligations. The cognizance provision therefore sits within a wider accountability framework rather than conferring an unreviewable veto on prosecution.
Complaint by the Appropriate Authority or authorised officer
The primary route under clause (a) is a complaint by the Appropriate Authority constituted under Section 17, or by an officer specifically authorised by the Central or State Government or by the Appropriate Authority itself. The registration and inspection machinery feeds directly into this power: it is the same authority that registers and inspects clinics which is entrusted with launching prosecutions for their misuse.
A litigated question has been whether a complaint signed by a single member of a multi-member Appropriate Authority is valid, or whether the authority must act collectively. In Manish Gupta v. State (NCT of Delhi), 2022 SCC OnLine Del 1154, the Delhi High Court (Mukta Gupta, J.) held that a complaint filed by a member of the Appropriate Authority is competent and that the absence of collective signature does not vitiate cognizance, reading Section 17(3) and Section 28 harmoniously so as not to defeat the Act's object. The court reiterated that the Metropolitan Magistrate or Judicial Magistrate of the first class is competent to take cognizance and try the offence on the complaint of an Appropriate Authority. The decision is a useful corrective against hyper-technical pleas that the composition of the authority somehow invalidates an otherwise valid complaint.
The reasoning in Manish Gupta repays close study because it illustrates the purposive method courts apply to Section 28. The Act constitutes Appropriate Authorities at the level of the State, district and sub-district, and although these may be multi-member bodies, the statutory functions — including the launching of prosecutions — are carried out through the authority acting by its competent member or officer. To insist that every member personally subscribe to a complaint would, the court reasoned, frustrate the object of the Act by making prosecutions hostage to administrative coordination. The harmonious construction adopted ensures that the complaint filter screens out unauthorised complainants without erecting a procedural maze that the Appropriate Authority itself cannot navigate.
A practical corollary is that the authorisation and competence of the complainant should appear on the record. Where an officer other than the Appropriate Authority files the complaint, the order of authorisation by the Central or State Government or by the Appropriate Authority ought to be produced or pleaded, because the validity of cognizance is traceable to that authorisation. Defects in demonstrating authority are the most common ground on which accused persons seek to quash PCPNDT complaints, and a well-pleaded authorisation forecloses that line of attack at the threshold.
The private complainant and the fifteen-day notice
Clause (b) democratises enforcement. Recognising that authorities may be slow, captured or simply overburdened, the Act lets any person approach the court — but only after giving the Appropriate Authority not less than fifteen days' notice, in the prescribed manner, of both the alleged offence and the intention to complain. The notice serves twin purposes: it gives the authority a fair chance to act first, and it filters out frivolous or vexatious private prosecutions launched without putting the regulator on notice.
The fifteen-day period is a mandatory pre-condition, not a directory courtesy. A private complaint filed before the period expires, or without any notice at all, is liable to be quashed because the statutory foundation for cognizance is absent. This citizen-enforcer provision mirrors the participatory ethos that the Supreme Court repeatedly stressed in Voluntary Health Association of Punjab v. Union of India (2013) 4 SCC 1, where civic vigilance was treated as integral to making the Act work on the ground.
The mechanics of the notice deserve attention. The notice must be given to the Appropriate Authority, must run for at least fifteen clear days before the complaint is filed, must be in the manner prescribed by the rules, and must specify both the alleged offence and the complainant's intention to approach the court. Each of these elements is a condition precedent. A notice that is vague about the offence, or that fails to convey the intention to complain, may be held insufficient, just as a complaint filed prematurely is. The fifteen-day window is the regulator's opportunity to investigate and, if it sees fit, to lodge its own complaint, in which event the private complaint may become unnecessary; it is not a mere formality to be discounted.
The provision also reflects a calibrated trust in civil society. NGOs, public-spirited individuals and whistle-blowers within the medical fraternity have historically been the most effective sources of intelligence about sex-determination rackets. By giving them a statutory standing to prosecute — subject only to the notice safeguard — the Act enlists them as an auxiliary enforcement arm, while the notice ensures that the official machinery is neither bypassed nor caught unawares. This dual structure, official and private, is one of the more distinctive features of the cognizance regime under the Act.
The trial forum under Section 28(2)
Sub-section (2) confines the trial to a Metropolitan Magistrate or a Judicial Magistrate of the first class. No court inferior to these may try a PCPNDT offence. The choice of a first-class Magistrate reflects the seriousness Parliament attached to sex-selection offences while keeping trials at a level capable of swift, decentralised disposal across districts.
The forum bar interacts with sentencing under Section 23, which prescribes imprisonment that can extend to three years (and up to five years for a subsequent offence) together with fine. Because the punishment falls within the competence of a first-class Magistrate, there is no inconsistency between the forum restriction and the quantum of sentence. A complaint instituted before any court other than a Metropolitan Magistrate or Judicial Magistrate of the first class would be without jurisdiction.
The forum bar carries two practical consequences worth noting. First, it removes any argument that the gravity of the offence demands trial by a Sessions Court; Parliament has fixed the trial level, and the relative seriousness of sex-selection offences does not elevate the forum. Second, it dovetails with the cognizance restriction in sub-section (1): the same first-class Magistrate who is authorised to try the offence is the court before which the qualifying complaint must be laid. The two sub-sections therefore work in tandem, the first identifying who may complain and the second identifying the court that may both take cognizance and conduct the trial.
Candidates should be careful to express the forum rule as a minimum threshold. Section 28(2) does not say that only a first-class Magistrate may try the offence to the exclusion of any higher designation; it bars courts inferior to a Metropolitan Magistrate or Judicial Magistrate of the first class. In practice the offence is tried at that level, and a trial conducted by a second-class Magistrate or an inferior court would be a nullity for want of jurisdiction.
Cognizable offences requiring a complaint: the paradox
Section 27 declares every offence under the Act cognizable, non-bailable and non-compoundable. At first blush this sits uneasily with Section 28's complaint requirement, because cognizable offences are normally investigated and charge-sheeted by the police. The reconciliation accepted by most courts is that the two sections operate in different registers. The cognizable, non-bailable character governs the powers of arrest and the bail regime; the complaint requirement under Section 28 governs the distinct judicial act of taking cognizance.
The practical upshot is that the Appropriate Authority cannot escape its central role. Even where the police are involved, the matter must ultimately reach the Magistrate as a complaint of the kind Section 28 specifies. The substantive prohibitions on communicating the sex of the foetus are thus enforced through a procedure deliberately weighted towards the regulatory authority rather than ordinary police prosecution.
The FIR and police-investigation controversy
Few procedural questions under the Act have divided the High Courts as sharply as whether the police may register an FIR and investigate, given that cognizance lies only on a Section 28 complaint. Three broad positions have emerged.
The first, associated with the Punjab and Haryana High Court (Harinder Singh Sidhu, J., 2022), holds that an FIR may be lodged and the police may investigate, but the court can take cognizance only on the complaint of the Appropriate Authority as mandated by Section 28; police investigation merely assists and cannot substitute for the statutory complaint. The second, taken by the Allahabad High Court in Dr Brij Pal Singh v. State of Uttar Pradesh (2024), is more restrictive: it holds that FIRs cannot be registered for PCPNDT violations and that the role of the police is confined to assisting the Appropriate Authority, the offences being a special, self-contained code. The third, reflected in a May 2025 decision of the Delhi High Court, treats the offences as cognizable so that FIR registration and police investigation are not per se barred, leaving cognizance to be regulated by Section 28.
This divergence remains unsettled at the apex level, and courts have noted that the question needs authoritative resolution by the Supreme Court. For examination purposes, the safe formulation is that whatever the position on FIRs, cognizance is invariably controlled by Section 28 — the complaint requirement is common ground across all three views.
The conceptual knot at the heart of the controversy is the relationship between Section 27 and Section 28. Those who favour permitting FIRs argue that Section 27, by declaring the offences cognizable, necessarily imports the police's power to register information and investigate, since the very definition of a cognizable offence is one in which a police officer may arrest without warrant and investigate without an order of a Magistrate. On this view, Section 28 limits only the mode of cognizance and leaves the investigative stage untouched. The opposing camp responds that the Act is a complete and special code: Section 28 having confined cognizance to a complaint, it would be incongruous to allow a parallel police investigation culminating in a charge-sheet that the Magistrate can never act upon, and the cognizable label in Section 27 serves only the limited purpose of regulating arrest and bail.
Both readings can claim textual support, which is precisely why the matter calls for authoritative settlement. The pragmatic middle position — that the police may assist the Appropriate Authority and even investigate, but that the prosecution must culminate in a Section 28 complaint — has the advantage of harmonising the two provisions without rendering either redundant. Until the Supreme Court speaks definitively, candidates should present the three High Court positions, identify the underlying Section 27 versus Section 28 tension, and conclude that the complaint requirement is the one fixed point in an otherwise contested field.
Effect of a police discharge on a Section 28 complaint
A frequently litigated defence is that, once an accused has been discharged in proceedings arising from a police case, a fresh complaint by the Appropriate Authority on the same facts is barred. The Supreme Court rejected this argument in Naresh Kumar Garg v. State of Haryana, 2026 INSC 176, holding that a discharge order in a police case does not preclude the Appropriate Authority from instituting an independent complaint under Section 28 of the Act. The Court reasoned that PCPNDT prosecutions are designed to proceed as complaint cases through the Appropriate Authority, and that a discharge premised on the police route cannot foreclose the distinct statutory complaint mechanism.
The decision underscores the autonomy of the Section 28 complaint. Because the Act locates the prosecutorial initiative in the regulatory authority, the fate of a parallel police case neither completes nor exhausts the statutory remedy. For aspirants, Naresh Kumar Garg is the most recent and most quotable cognizance authority — it crystallises the principle that the complaint mechanism stands on its own footing.
Limitation and the point of taking cognizance
Limitation questions are intertwined with cognizance because the period under the general law of limitation for offences is reckoned with reference to the date of taking cognizance. The settled principle — reiterated by High Courts including the Uttarakhand High Court (2020) — is that the bar of limitation is tested at the stage when the Magistrate takes cognizance, not at any consequent stage. For an offence punishable with imprisonment exceeding one year but not exceeding three years, the limitation is three years; the court may nonetheless take cognizance after expiry where the delay is properly explained or it is necessary in the interests of justice.
Because many PCPNDT breaches are continuing in character — for instance, the persistent failure to maintain or display prescribed records at a clinic — a fresh period of limitation begins at each moment the offence continues. This blunts limitation defences that might otherwise frustrate complaints filed after a delayed inspection. The interplay between continuing offences and the cognizance-stage test for limitation is a fertile area for problem questions.
The continuing-offence characterisation has real practical bite under this Act. Registration, record-keeping and display obligations are not discharged once and for all; they subsist for as long as the centre operates. A failure to maintain Form F records, or to display the mandatory notice that sex determination is prohibited, is therefore an offence that is renewed each day the default persists. The consequence is that a complaint laid long after the initial default may still be within time, provided the breach was subsisting within the limitation window reckoned from the date of cognizance. Defence pleas of limitation in such cases are correspondingly weak.
Even where an offence is not continuing, the discretionary power to condone delay where it is properly explained or where the interests of justice so require gives courts room to entertain belated complaints in deserving cases. Given the strong public interest the Supreme Court has identified in enforcing the Act, courts have generally been reluctant to allow technical limitation objections to defeat otherwise substantial prosecutions, while remaining alert to genuine prejudice from stale allegations.
Interface with the substantive prohibitions
Section 28 does not exist in a vacuum; it is the procedural gateway for the offences created by the substantive provisions. A complaint will typically allege contraventions such as conducting sex determination contrary to the prohibition, communicating the sex of the foetus, or breaches of registration and record-keeping obligations. The strength of any complaint therefore depends on the underlying provisions — the rule that the determination of sex is prohibited and the parallel ban on communicating it.
Equally, the definitions in the Act determine the reach of every complaint. Whether a particular facility is a “Genetic Clinic” or whether a person is a registered medical practitioner shapes who can be made an accused. A complaint that misdescribes the entity or relies on conduct outside the statutory definitions risks failing at the threshold, irrespective of how it is routed through Section 28.
Supreme Court enforcement and the cognizance machinery
The cognizance provisions cannot be divorced from the Supreme Court's sustained supervision of the Act's implementation. In Voluntary Health Association of Punjab v. Union of India (2013) 4 SCC 1, the Court, troubled by the persistent decline in the child sex ratio, recorded that ultrasound machines were seldom seized, that cases booked under the Act languished for years, and that convictions were rare. It issued comprehensive directions for regular monitoring, faster disposal of cases, and suspension of convicted practitioners' licences.
That enforcement thrust was reinforced in Union of India v. Indian Radiological and Imaging Association (2018), where a three-Judge Bench stayed a High Court judgment diluting the training requirements and directed that the Voluntary Health Association of Punjab directions be strictly enforced by all States and Union Territories. While these decisions are not narrowly about Section 28, they form the backdrop against which courts construe the cognizance machinery purposively — preferring readings that facilitate, rather than frustrate, prosecutions for sex-selection offences.
Practical checklist for a valid complaint
Reduced to essentials, a complaint that survives a challenge to cognizance must satisfy a short list of requirements. It must be made by a person competent under Section 28(1) — the Appropriate Authority, an authorised officer, or a private person who has given the mandatory fifteen-day notice. It must be filed before a Metropolitan Magistrate or Judicial Magistrate of the first class, and no inferior court. It must disclose an offence under the Act, anchored in the substantive prohibitions and definitions. And it must be instituted within the limitation period reckoned at the stage of cognizance, or accompanied by a tenable explanation for delay.
Where a private complainant is involved, the notice and its service should be pleaded and proved; where the Appropriate Authority complains, the authorisation should be on record. Against the backdrop of Manish Gupta and Naresh Kumar Garg, defences premised on the composition of the authority or on a prior police discharge are unlikely to succeed. The institutional design discussed in the chapter on the Central Supervisory Board and the Appropriate Authorities is what gives these complaints their distinctive procedural shape.
Exam takeaways
For judiciary and CLAT-PG candidates, Section 28 yields a compact bundle of testable propositions. Cognizance lies only on a complaint by the Appropriate Authority or an authorised officer, or by a private person after fifteen days' notice. Trial is reserved to a Metropolitan Magistrate or Judicial Magistrate of the first class. The offences are cognizable, non-bailable and non-compoundable under Section 27, yet cognizance still requires a complaint — a paradox to be explained, not glossed over.
Anchor answers to authority: Manish Gupta v. State (NCT of Delhi) for the validity of a single-member complaint; Naresh Kumar Garg v. State of Haryana for the independence of the Section 28 complaint from a police discharge; and Voluntary Health Association of Punjab and Union of India v. Indian Radiological and Imaging Association for the purposive, enforcement-oriented backdrop. Flag the unsettled FIR debate as a live controversy among the High Courts awaiting authoritative settlement.
Frequently asked questions
Who can file a complaint under Section 28 of the PCPNDT Act?
Two categories. First, the Appropriate Authority concerned or any officer authorised in this behalf by the Central or State Government or by the Appropriate Authority. Second, a private person who has given the Appropriate Authority at least fifteen days' prior notice, in the prescribed manner, of the alleged offence and of the intention to complain to the court.
Can a court take cognizance of a PCPNDT offence on a police charge-sheet?
No. Section 28(1) bars cognizance except on a complaint by the persons it specifies. Even though Section 27 makes the offences cognizable, the Magistrate still needs a Section 28 complaint to take cognizance, so a police report alone is insufficient to set the prosecution in motion.
Which court can try an offence under the Act?
Only a Metropolitan Magistrate or a Judicial Magistrate of the first class. Section 28(2) expressly bars any court inferior to these from trying a PCPNDT offence, and the punishment under Section 23 falls within that court's competence.
Does a discharge in a police case bar a complaint by the Appropriate Authority?
No. In Naresh Kumar Garg v. State of Haryana, 2026 INSC 176, the Supreme Court held that a discharge order in a police case does not preclude the Appropriate Authority from filing an independent complaint under Section 28, because the statutory complaint mechanism stands on its own footing.
Is the fifteen-day notice by a private complainant mandatory?
Yes. The notice of not less than fifteen days to the Appropriate Authority is a mandatory pre-condition for a private complaint. A complaint filed without notice, or before the period expires, lacks the statutory foundation for cognizance and is liable to be quashed.
Can the police register an FIR and investigate PCPNDT offences?
The High Courts are divided. Punjab and Haryana HC allows police investigation but requires cognizance only on a Section 28 complaint; the Allahabad HC in Dr Brij Pal Singh v. State of U.P. (2024) holds FIRs cannot be registered; and the Delhi HC (May 2025) treats the offences as cognizable so FIR registration is not per se barred. The question awaits authoritative settlement by the Supreme Court, but cognizance under Section 28 is common ground.