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SCR.A/1571/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1571 of 2010
=========================================================
ANUPABEN
VIDYUTBHAI DESAI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
RJ GOSWAMI for
Applicant(s) : 1,MRDINESHBPATEL for Applicant(s) : 1,
MR KARTIK
PANDYA, APP for Respondent(s) : 1,
NOTICE SERVED for Respondent(s)
: 2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 22/09/2010
ORAL
ORDER
Petitioner
is a medical practitioner. She has challenged an order passed by the
learned Magistrate on 20th April 2010 in a criminal case
bearing C.R.No.307/09. The case pertains to termination of
pregnancy. The petitioner according to her had performed necessary
procedure for miscarriage on medical grounds. After initial
investigation, the IO submitted a report dated 10.3.2010, stating
that no case for offence under section 313 of the Criminal Procedure
Code is made out. It was found that the consent of the lady was
taken in writing.
The
learned Magistrate on the said report passed the impugned order
observing inter alia that procedure under sections 3 and 5 of the
Medical Termination of Pregnancy Act, 1971 was not followed and
offence under section 313 of the IPC was therefore prima facie made
out. He, therefore, refused to endorse the suggestion of the police
for dropping section 313 of the IPC.
Section
313 of the IPC makes offence of miscarriage without consent of the
woman punishable with imprisonment of life or with imprisonment of
either description for a term which may extend to ten years and
with fine.
In
the present case, even the complainant has not alleged in the
complaint that her consent was not taken by the Doctor before
causing miscarriage. The complainant has made serious allegations
against her husband and other in-laws of pressurizing her into
getting the fetus aborted. Significantly, no allegations are made
against the present petitioner nor has it been stated that consent
was not obtained by the Doctor though she may have been forced to
give such consent. Be that as it may, the allegations against the
original accused may be serious. Question is, can the present
petitioner be stated to have committed or abetted offence under
section 313 of the IPC.
As
already noticed, section 313 of IPC provides for punishment of
miscarriage of a woman without her consent. When the present
petitioner, as a medical practitioner after obtaining consent (though
the consent may not have been free as per the complainant and coerced
by her relatives), carried out the procedure for termination of
pregnancy, she cannot be stated to have committed an offence under
section 313. It may be noted that section 3 of the Medical
Termination of Pregnancy Act pertains to when pregnancy may be
terminated by registered medical practitioner and provides, inter
alia, that notwithstanding anything contained in the Indian Penal
Code, a registered medical practitioner shall not be guilty of any
offence under the Code or under any other law, if any pregnancy is
terminated by him in accordance with the provisions of the Act.
Thus, the said section and other provisions made in the said Act
provide for certain safeguards and defences to a registered medical
practitioner who may have conducted the procedure for termination of
pregnancy.
As
far as offence under section 313 of IPC against present petitioner
is concerned, when the complainant has made no allegation against
the present petitioner nor the police found even prima facie
evidence to hold that she was in any manner involved in any of the
allegations made against her in-laws by the complainant, the
learned Magistrate, in my opinion, was not justified in making the
observations in the order dated 20th April 2010 qua the
present petitioner.
Nothing stated in this order shall come in way of the prosecution in
proceeding against the other accused.
In
the result, the petition is disposed of clarifying that against the
present petitioner, there is no accusation of section 313 of the IPC
in connection with the complaint C.R.No.I-307/09 registered at Vatva
Police Station. The petition is disposed of accordingly.
(Akil
Kureshi, J.)
(vjn)
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