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2011 DIGILAW 547 (ALL)

Yangliu @ Liu Yang v. State of U. P.

2011-03-04

SHRI NARAYAN SHUKLA

body2011
Shri Narayan Shukla, J.;- Heard Mr. Kunwar Mridul Rakesh, Senior Advocate, assisted by Mr. Naved M. Ali, for the petitioner and Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State. 2. The petitioner has challenged the order impugned dated 25.2.2001, passed by the Chief Judicial Magistrate, Bahraich in Case Criminal Case No. 22 of 2011, under Section 14 of the Foreigners Act, 1946 and Section 3(III) of the Passport (Entry into India) Act, 1920, Police Station Rupaidiha, District Bahraich, whereby the petitioner's application, seeking permission for termination of pregnancy, has been rejected considering the same under the provision of Section 312 of the Indian Penal Code being cognizable offence. 3. Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate raised preliminary objection against the maintainability of the petition on the ground that the case is pre-cognizance stage. Until and unless the cognizance is taken by the learned Magistrate, there is no reason for interference of this Court as prior to stage of the cognizance, no proceeding under the Code of Criminal Procedure can be treated as pending before the learned Magistrate concerned. 4. In reply, learned counsel for the petitioner submits that at the face of the order impugned, it reveals that the learned Magistrate has exercised the power provided under Section 312 of the Indian Penal Code in dealing with the case whereas for the subject in issue, there is a Special Act called as the Medical Termination of Pregnancy Act, 1971 having overriding effect over the Indian Penal Code. He also invited the attention of this Court towards Section 3 of the said Act. 5. So far as the maintainability of the petition under Section 482 of the Code of Criminal Procedure is concerned, I am of the view that there is no bar for the High Court in exercising the inherent power to make any order if it is necessary to give effect to any order passed under the Code of Criminal Procedure. It is not in dispute that she is being tried under Section 14 of the Foreigners Act, 1946 read with Section 3 of the Passport (Entry into India) Act, 1920 in accordance with the procedure provided under the Code of Criminal Procedure. Therefore, to seek remedy under the Special Act also she has to go through the procedure provided under the Code of Criminal Procedure. Therefore, to seek remedy under the Special Act also she has to go through the procedure provided under the Code of Criminal Procedure. Even though the power which has been exercised by the learned Magistrate under Section 312 of the I.P.C., is to be exercised in the proceeding under the Code of Criminal Procedure which empowers the High Court to intervene in the matter if the effective order is required to pass by the High Court keeping in view the facts and circumstances of the case. 6. Apart from the above fact, I am informed that the charge sheet has been filed and the learned Magistrate has already taken cognizance. Therefore, there is no reason for this Court to throughout this petition. Accordingly, the objection is overruled and I hereby entertain the petition on merit. 7. Upon perusal of the record, it appears that the petitioner moved an application before the learned Chief Judicial Magistrate, Bahraich seeking permission for termination of pregnancy which is permitted under the Medical Termination of Pregnancy Act, 1971. The medical certificate of the petitioner shows that the period of pregnancy is 8 weeks, 6 days plus 1 week by Gest Sac Size whereas the termination of pregnancy is permitted by the single registered medical practitioner within the eight to twelve weeks and by not less than two medical practitioners between twelve to twenty weeks, if they form opinion in good faith that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. 8. The petitioner is said to be unmarried. Any how, she has conceived and now she is pregnant. I am informed that being nationality of China, a lady is legally permitted to have one child. Therefore, she is interested to terminate the present pregnancy so that after her marriage she may conceive for child legally permissible under the Government of China. Her case appears to be genuine and bonafide. I am also informed that though she used devices protecting from pregnancy but all failed. She is much interested to terminate her pregnancy. Since she is unmarried, there is no occasion to take consent of her husband. Her case appears to be genuine and bonafide. I am also informed that though she used devices protecting from pregnancy but all failed. She is much interested to terminate her pregnancy. Since she is unmarried, there is no occasion to take consent of her husband. Thus, all the ingredients which are available for termination of pregnancy under the Medical Termination of Pregnancy Act, 1971, are in favour of the petitioner but being foreigners just I invite the learned A.G.A. to seek instructions from the appropriate Government on this point so that matter can be dealt with and appropriate order would be passed. 9. List on 7th March, 2011 as fresh. 10. Let a copy of this order be provided to the learned A.G.A. today for necessary action.