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2017 DIGILAW 114 (KER)

Santhi v. State of Kerala

2017-01-13

K.P.JYOTHINDRANATH

body2017
ORDER : 1. This is a petition filed under Section 482 of the Code of Criminal Procedure to quash all the proceedings in C.C.No.286/2012 on the file of the Judicial First Class Magistrate Court, Chavakkad. 2. When the petition came up for hearing, the learned counsel for the petitioner submitted that here is a case where the petitioner herein was facing prosecution for an offence under Section 304 A of IPC. It is the submission that the petitioner is a Doctor by profession and the allegation was that she treated the defacto complainant herein during her pregnancy. The petitioner was a Gynecologist attached to Taluk Government Hospital, Chavakkad. Later, it was found that the foetus was dead and it was noticed only after a period of 5-5 ½ months. It is also the case of the prosecution that the growth of the foetus was only 10–12 weeks i.e. about three months. After investigation police filed a charge for an offence under Section 304 A of IPC. 3. The contention of the learned counsel is that for attracting an offence under Section 304 A of IPC, there should be a death of any person. It is the submission that in this case, it was only a foetus and at the most, what can be inferred was that a foetus died, not because of any of the positive acts or omissions of the petitioner herein. The only aspect highlighted in the police charge is that it was not detected at the appropriate time by the Doctor while treating the defacto complainant. 4. I heard the learned Public Prosecutor. The learned Public Prosecutor submitted before me that, in this case, it is a fact that the petitioner treated the defacto complainant. The defacto complainant got no case that the petitioner was not pregnant. The victim's last mensuration period was about more than five months back to the detection of the death of the foetus. The scanning report revealed the fact that the child was having only the growth of three months. Then prima facie, a case was made out regarding the negligence aspect of the Doctor. A dead foetus detected. If that be so, when the expert committee examined the facts of the case and pointed out the negligence of the Doctor, the only inference that can be drawn is that there was negligence as well as there was death of a child. A dead foetus detected. If that be so, when the expert committee examined the facts of the case and pointed out the negligence of the Doctor, the only inference that can be drawn is that there was negligence as well as there was death of a child. When these two aspects were seen found during investigation, at this stage, an interference by this court is not warranted. 5. I have considered the submissions on both sides. It is a fact that as per the prosecution case itself, the death occurred when the child was only having a growth of three months. The prosecution got no case that it actually crossed 12 weeks. Thus, it can be only considered as a foetus and by no stretch of imagination, it can be said that foetus can be equated with a person. The quickening of a child will take place only at the gestational age of 20 weeks. It is relevant to note that as per the provisions of MTP Act, in ordinary circumstance, a termination of pregnancy can be effected till 12 weeks, for the reasons and grounds stated therein. Under special circumstances, outer limit is 20 weeks. Thus, it is apparent that the concept of person hood has not been extended to include a foetus, though the 'life' will be there from the moment of conception. Apparently, at this stage, the constitutional right to 'life' is not seen extended. But at the same time, destruction of foetus not in accordance with law, is an offence. Prosecution got no case that petitioner herein committed any of the offence relating to the destruction of the foetus. Fetal rights are also protected by laws. Prosecution got no case that petitioner herein committed any criminal negligence which directly caused the death of foetus. The only allegation was that there was negligence in detecting the death of foetus. During clinical examination the death of the foetus was not detected. Due attention and care required to be given to a patient was not seen given by the petitioner. That cannot be a reason for criminal prosecution for an offence under Section 304 A of IPC. Thus, considering the fact that the main ingredients of Section 304 A of IPC is missing in this case, it may not be proper to prosecute the petitioner for an offence under Section 304A of IPC. That cannot be a reason for criminal prosecution for an offence under Section 304 A of IPC. Thus, considering the fact that the main ingredients of Section 304 A of IPC is missing in this case, it may not be proper to prosecute the petitioner for an offence under Section 304A of IPC. Surely, I am not saying that there was no negligence aspect. Thus, prima facie, when Section 304 A of IPC will not lie, it may not be proper to prosecute the petitioner herein for an offence under Section 304 A of IPC. It can be only treated as an unwarranted proceeding which can be equated with abuse of process of court. Under such circumstances, all the proceedings in C.C.No.286/2012 now pending before the Judicial First Class Magistrate, Chavakkad is hereby quashed.