New Delhi [India], August 6 : The Delhi High Court on Wednesday refused to quash the summons issued against a doctor accused of terminating the pregnancy of a minor rape victim without her consent. The High Court also upheld the order of the trial court directing further investigation against the doctor.
The prosecutrix (rape victim) on February 22, 2020, filed a protest petition alleging that her pregnancy was terminated in conspiracy with the main rape accused. Thereafter, further investigation was ordered.
Delhi Police had filed a supplementary charge sheet after further investigation. The trial court had issued summons to the doctor after taking cognisance of the supplementary chargesheet.
Justice Purushaindra Kumar Kaurav dismissed the petition moved by Dr Poonam Mishra, saying that the order of further investigation doesn't warrant any interference and the summoning does not suffer from any legal infirmity. The record shows that the offence is made out against the petitioner. He also noted that the petitioner failed to report the offence.
Justice Kaurav said, "The prosecution materials would show that the alleged offence against the petitioner is made out from the prosecution records, warranting trial. Therefore, the quashment plea would necessarily fail."
"For the reasons set out above, this Court holds that the order dated 29.09.2020 directing further investigation does not warrant interference and that the order dated 31.07.2021 taking cognisance and issuing summons accordingly does not suffer from any illegality warranting interference under Section 482 CrPC," Justice Kaurav held.
The High Court dismissed the petition saying that the Court finds no merit in the present petition and the same is accordingly dismissed.
Justice Kaurav said, " In the instant case, the petitioner, who got knowledge regarding the crime on 26.07.2017, failed to inform the same and accordingly registration of the crime was delayed for a period of almost 70 days. That must have attenuated timely investigation of the case without elements of lacuna.
As per the Prosecution, an FIR was registered on October 4, 2019 at Police Station Saket, Delhi under Sections 376, 313, 506, 34 IPC and Section 6 POCSO Act, on the complaint of the prosecutrix, who alleged that she was administered an intoxicant and sexually assaulted by the main accused, Rishipal Chaudhary, and thereby conceived.
It is further alleged that on 26.07.2019, the prosecutrix, accompanied by co-accused Anita, who presented herself as the prosecutrix's aunt, presented at a private medical Center, Ambedkar Nagar, where the petitioner examined
her and, finding her six weeks pregnant, referred her to a private Nursing home, Greater Kailash-II, New Delhi, where the petitioner held a rented consulting chamber and performed termination there itself.
In her medical examination at AIIMS on 04.10.2019, and in her statement before the metropolitan magistrate on 10.10.2019, the prosecutrix made no allegation against the petitioner. She stated instead that co-accused Anita had told the hospital staff that the child belonged to the prosecutrix's boyfriend, and had caused her age to be recorded as twenty though it was, in reality, sixteen.
It is also alleged that the statements recorded before the police on October 16, 2019 and October 18, 2019 are, likewise, silent qua the involvement of the petitioner.
The Delhi Police had filed a main chargesheet, filed on December 13, 2019, arraying Rishipal Chaudhary, Anita, and Nitin Aggarwal as accused under Sections 376AB, 312, 201, 506, 34 IPC and Sections 6, 21 POCSO Act. The petitioner
The petitioner was featured only as a prosecution witness and cognisance post that was taken on December 17, 2019.
Thereafter, on February 22, 2020, the prosecutrix filed a protest petition alleging, for the first time, that the doctors at GK-II hospital had performed the termination in conspiracy with the main accused, by forging her signatures on the papers, and misplacing the form recording her true date of birth from the documents relied upon in the chargesheet.
The trial court had ordered, "accordingly, the Investigation Officer (IO) of the case is directed to further investigate the matter with respect to the fact that whether the doctors at TMC had carried out the abortion of the victim against the law/rules while having knowledge of the fact that the victim was a minor girl and in collusion with the main accused persons, namely, Rishipal and Anita and they consciously did not report the matter to the police in terms of Section 19 of the POCSO Act, 2012."
On November 19, 2020, a further statment of the prosecutrix was recorded. She stated, for the first time, that she had herself filled an admission slip at TMC, recording her date of birth as September 3, 2003. The prosecutrix, in her statement, also affirmed the incident of hospital staff recording her age, to which the petitioner responded "marvaoge kya ise 20 years karo".
The supplementary charge sheet dated February 19, 2021, arraigned the petitioner as sole accused under Sections 313 and 201 IPC and Section 7 MTP Act on July 31, 2021.
The Trial Court took cognisance, additionally invoked Section 21 POCSO Act, and summoned the petitioner. The petitioner joined proceedings on 11.10.2021, applied for bail the same day, and was enlarged on regular bail.
On Section 313 (termination of pregnancy without consent) IPC, the petitioner submitted that she had no occasion to seek a guardian's consent when the prosecutrix was represented and recorded as an adult, and that the prosecutrix herself was present, ambulant, and cooperative throughout.
It was also submitted that the provisions of the IPC relating to miscarriage stand subservient to the MTP Act by virtue of the non-obstante clause in Section 3, and that the petitioner, having acted in good faith throughout, is entitled to the protection available under Section 8 of the MTP Act to a practitioner so acting.