JUDGMENT
S.K. Agarwal, J.
1. This revision petition under Sections 397 read with 401 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the order dated 18th October, 1997, passed by the Additional Sessions Judge, Delhi framing the charge against petitioner for offences under Sections 313/269 IPC.
2. Prosecution allegations in brief are: on 22th March, 1993, Tarsem Kumar lodged a report with the police alleging that on 3rd january, 1993, after reading the advertisement in Punjab Kesari, he along with his wife, who was then pregnant, contacted M/s.Bharati Lab and Scan Centre at Rajouri Garden, to rule out any foetal abnormality. They were told that the test will be done by ultra modern computerised machines and with modern techniques. They agreed for the test. Rs.3,500/- was charged from them. After test, he was told by his wife that needle was injected in her abdomen by the petitioner and aminocentesis test was done. They were told that it was a healthy male baby. Dr.Chopra, proprietor of Lab called them, after one month for ultra-sonography but they could not go. However, they could go, only on completion of five months pregnancy; on that day after doing ultra-sonography, they were told that the test would have to be repeated. They were called on 17th March, 1993, on which date, the petitioner instead of doing ultra-sonography repeated the aminocentesis test by injecting needle twice in the abdomen of his wife. On the same day, after about four hours of their return from the clinic, complainant’s wife felt intense pain in her abdomen and started bleeding and was having high temperature. She was admitted in Virmani Maternity and Nursing Home where she was informed that the technique of aminocentesis was faulty and that the needle introduced infection during the procedure. It was declared to be a case of inevitable abortion due to septic aminocentesis. She had to be aborted on 19th March, 1993. The Doctor at Virmani Maternity & Nursing Home stated that the embryo was a female sex. Thus it was alleged that the doctors at Bharat Lab & Scan Centre had mislead them; that they were careless and negligent while doing aminocentesis and that due to their negligence wife of the complainant developed sceptic and she had to undergo forced abortion. It was further alleged that Dr.Chopra is not even a qualified doctor. Aminocentesis test was done second time without their consent and if they had known that the tests were being done by old conventional methods, they would not have consented for the same. On this complaint, above case under Sections 269/313/420 IPC was registered. After investigation, challan was filed. By impugned order, learned trial court held that a prima facie case, under Sections 313/269 IPC against petitioner and under Sections 313/269/34 and 420 IPC against Dr.Vinod Chopra, proprietor of Bharat Lab & San Centre, was made out.
3. Learned counsel for petitioner while assailing the impugned order firstly argued that aminocentesis test is conducted primarily to study any possible genetic disorder of the foetus; the test is conducted by injecting a small needle into the abdomen and taking a sample of aminotic fluid; as per practice before conducting the test, no objection/consent was taken in writing from the patient as well as her spouse (complainant) informing them about the risk in conducting such test. It is argued that in this case after conducting the test, the patient was asked to report again after four weeks for confirmations on ultra-sonography. patient did not turn up after four weeks, and she visited the clinic only in the second week of March, 1993, on that date ultra-sonography test was conducted but the result was not clear and they were asked to report after one week. There is no dispute on these facts. He further argued that when it was discovered that she was carrying a female child, on which the couple became angry and started abusing the doctors, for having mislead them earlier; Ultra-sonography test is conducted in routine manner during the pregnancy in order to monitor the growth of the foetus and there was nothing to indicate that she was having any problem. Learned counsel for petitioner then argued that assuming the allegations to be true, for the sake of arguments, no case for framing the charge under Sections 269/313 IPC is made out, against the petitioner and that the finding of the trial court is based on misreading of the provisions of law. Learned APP for Stated argued to the contrary.
4. Section 269 IPC makes the negligent act likely to spread infection of disease dangerous to life as an offence. The essential ingredients are: that the accused does any act unlawfully or negligently; that such act is likely to spread infection of any disease dangerous to life; and that he knows or had reasons to believe that the act is likely to cause such infection. Thus causing infection of the disease which is dangerous to life are covered by this section. Section 312 IPC provides punishment for causing miscarriage. The ingredients of the offence under Section 312 IPC are that the accused voluntarily does some act to cause a woman with a child or quick with child to miscarry and that he did not cause the miscarriage in good faith in order to save mother’s life. The term “miscarriage” is not defined in the Code. It is synonymous with an abortion. It consists inexpulsion of embrio or foetus that is termination of pregnancy before the period of viability. A woman quick with a child, simply means stage of pregnancy where the quickening takes place. It is perception by the mother of the movement of foetus. Section 312 IPC can even apply to a pregnant woman herself, who causes her own miscarriage. Good faith by itself is not enough. It has to be good faith for the purpose of saving the life of the mother or the child and not otherwise. The expression “voluntarily” is defined in Section 39 of the IPC. It reads:-
“39. “Voluntarily”. –A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.”
5. Bare reading of this Section shows that person need not intend to cause a certain effect. If an act is probable consequence of the means used by him, he is said to have caused it voluntarily whether he really means to cause it or not. Section implicitly lays down the principle that a man is presumed to intend the probable consequences of his act. Section 313 IPC is an aggravated form of offence defined under Section 312 IPC. It provides for severer punishment if the offence defined under Section 312 IPC is committed without the consent of the woman whose miscarriage is caused.
6. Applying the above principles to the facts of the case admittedly complainant’s wife was carrying a child. As per the allegations needle was inserted inside the abdomen of the wife of the complainant, while performing aminocentesis test, after she was called second time on telephone by Dr.Vinod Chopra for further examination on 17th March, 1993. It is alleged that test of aminocentesis was performed by injecting needle twice in the abdomen of the complainant’s wife and that after about four hours she suffered severe pain in her abdomen and was admitted in the Virmani Maternity & Nursing Home. Dr.Virmani in her statement has stated that wife of the complainant had to be operated because the sceptic had developed while performing the aminocentesis test. Documents from Virmani Maternity and Nursing Home have also been collected and placed on record.
7. In view of the above, at this stage, even if it be assumed that the patient had consented for aminocentesis test, even for second time, she cannot be assumed to have consented for insertion of a needle which can cause sceptic. The case is at the charge stage. Even a grave suspicion is enough. It would be open for the petitioner during the trial to take the defense that patient was not subjected to aminocentesis test for the second time or that there was no sceptic or that the sceptic was not caused by the tests performed by her or any other defense she may like to take. But at this stage on the basis of the material presently available, it is not possible to hold that no prima facie case is made out. The law in this regard is well settled in a recent decision by the Supreme Court in Smt.Om Wati and another v. State through Delhi Administration, 2001 Crl.L.J. 1723 wherein it was observed:-
“We would again remind the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for the unjustified litigation under the cloak of technicalities of law.”
(emphasis supplied)
8. For the foregoing reasons, I find no merit in the petition. The same is dismissed. Trial court record be sent back forthwith. Any observation made herein, shall not affect the merits of the case.