Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 14 (ORI)

Binod Bihari Naik v. State of Orissa

2018-01-02

S.K.SAHOO

body2018
JUDGMENT : S. K. SAHOO, J. A doctor sometimes assumes the role of a creator, a healer of the sufferings and a saviour of life. He is adored as he understands his responsibility and attempts to bring back smile on the face of the patient with all the ability at his command. Hippocrates said, “Whenever a doctor cannot do good, he must be kept from doing harm”. Here is the case of an unfortunate victim who consciously chooses to be a mother on assurance of marriage by her lover and expecting her dream of possibilities coming to realities. When the unborn was anxiously waiting in her womb to see the new world, to touch the warm skin of mother with his little fingers, the doctor succumbed to the dirty tricks played by the lover, assumed the role of a destroyer and stopped the movement of life within womb even without the knowledge and consent of the victim making her frozen, broken and shattered. In case of Dr Jacob George Vrs. State of Kerala reported in (1994) 3 SCC 430 , it is held as follows:- “1. Life is said to be the most sublime creation of God. It is this belief and conception which lies at the root of the arguments, and forceful at that, by many religious denominations that human beings cannot take away life, as they cannot give life. This idea is so intense with some religious leaders that they would even oppose any measure of birth control. Abortion or miscarriage would be opposed with greater force by these persons. 2. Mahatma Gandhi, Father of the Nation, urged long back in Harijan that God alone can take life because He alone gives it. For the Jains, taking away of even animal life is a sin, as, according to them, animals are as much part of God as human beings. Buddhists too preach Ahimsa. 3. Our Reg Veda II recites: “Grant us a hundred autumns that we may see the manifold world. May we attain the long lives which have been ordained as from yore.” Atharva Veda I contains the following: “May we be enabled to see the sun for a longtime.” The aforesaid shows that life is beyond price and it is not only a legal wrong, but a moral sin as well, to take away life illegally.” 2. May we attain the long lives which have been ordained as from yore.” Atharva Veda I contains the following: “May we be enabled to see the sun for a longtime.” The aforesaid shows that life is beyond price and it is not only a legal wrong, but a moral sin as well, to take away life illegally.” 2. In this application under section 482 of Cr.P.C., the petitioner Dr. Binod Bihari Naik has challenged the impugned order dated 06.09.2003 of the learned S.D.J.M., Kuchinda passed in G.R. Case No.281 of 2002 in taking cognizance of offences under sections 493/503/313/34 of the Indian Penal Code and issuance of process against him. The said case arises out of Kuchinda P.S. Case No.85 of 2002. It appears that the petitioner filed an application before the learned S.D.J.M., Kuchinda to quash the prosecution launched against him on the ground that he is not only a registered medical practitioner but also a Government doctor and therefore, he is a public servant and since the alleged act of termination of pregnancy was committed by him in due discharge of his official duty, without sanction under section 197 of Cr.P.C., the case is not maintainable in the eye of law. The learned S.D.J.M., Kuchinda considered such petition and vide order dated 30.09.2004, he has been pleased to hold that no clear cut case has been made out to show that the petitioner is entitled to protection under section 197 of Cr.P.C. and accordingly, the petition filed by the petitioner was dismissed. The said order dated 30.09.2004 has not been challenged before this Court. 3. The prosecution case, as per the first information report lodged by the victim on 16.08.2002 before the officer in charge, Kuchinda police station is that she was aged about twenty years and the co-accused Lochan Pujhari kept physical relationship with her on the assurance of marriage for which she became pregnant. It is further stated that she was taken to a doctor by the co-accused Lochan Pujhari, his elder brother Gobinda, his mother and brother-in-law as per their previous plan giving false impression to her for formal check up of the child in the womb. It is further stated that she was taken to a doctor by the co-accused Lochan Pujhari, his elder brother Gobinda, his mother and brother-in-law as per their previous plan giving false impression to her for formal check up of the child in the womb. The co-accused persons talked with the doctor and left the victim with the doctor who administered some medicines to her for which she became senseless and after one hour when she got back her senses, she found that her six months pregnancy had been terminated. She was told by the co-accused persons not to disclose about the same before anybody and threatened with dire consequence. On the basis of such first information report, Kuchinda P.S. Case No.85 of 2002 was registered on 16.08.2002 under sections 493/506/313/34 of the Indian Penal Code and section 3 of the SC & ST (PA) Act and after completion of investigation, charge sheet was submitted on 24.08.2003 against the petitioner as well as the co-accused persons under sections 493/506/313/34 of the Indian Penal Code and section 3 of the SC & ST (PA) Act. 4. Mr. J.R. Dash, learned counsel appearing for the petitioner fairly submitted that the provision under section 197 of Cr.P.C. would not be applicable in the case as the allegation against the petitioner is that in a private clinic, he aborted the pregnancy of the victim and therefore, it cannot be said that the act was done in due discharge of his official duty as a public servant. However it is contended by the learned counsel for the petitioner that the victim was brought to the clinics of the petitioner where she was accompanied by others including her lover and with the consent of the victim, the pregnancy was terminated and therefore, the ingredients of the offence under section 313 of the Indian Penal Code are not attracted. Mr. Mr. Prem Kumar Patnaik, learned Additional Government Advocate for the State on the other hand submitted that even though the other offences like under sections 493 and 506 of the Indian Penal Code are not attracted against the petitioner but the statement of the victim and other materials clearly reveal that at the relevant point of time, the victim was pregnant for six months and the victim has categorically stated that she was administered with some medicines for which she became senseless and by the time she got back her senses after one hour, the termination had already been completed and therefore, there is no material on record that the victim consented for causing the miscarriage and therefore, the ingredients of the offence under section 313 of the Indian Penal Code is clearly applicable against the petitioner. 5. On perusal of the available materials on record, certain factual aspects are not disputed i.e. (i) the victim was pregnant for six months (ii) the termination of pregnancy was done in a private clinic situated at Majhipali by the petitioner. 6. Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereafter ‘MTP Act’) reads as follows:- “3. When pregnancies may be terminated by registered medical practitioners.-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed 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 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. Explanation I.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation II.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment. (4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.” In view of sub-section (2) of section 3, it is very clear that even if the pregnancy does not exceed twelve weeks then also the only on the ground that the continuance of the pregnancy would involve the risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is substantial risk that if the child were born, it would suffer from such physical and mental abnormalities as to be seriously handicapped, the pregnancy can be terminated by a registered medical practitioner. If it exceeds twelve weeks but does not exceed in twenty weeks then also such opinion of not less than two registered medical practitioners is necessary. Section 4 of the MTP Act deals with the place where the pregnancy can be terminated. If it exceeds twelve weeks but does not exceed in twenty weeks then also such opinion of not less than two registered medical practitioners is necessary. Section 4 of the MTP Act deals with the place where the pregnancy can be terminated. Section 5 of the MTP Act lays down that the length of the pregnancy as noted down in the sub-section (2) of section 3 and the opinion of not less than two registered medical practitioners so also the place of termination of pregnancy as provided under section 4 shall not apply to the termination of pregnancy by a registered medical practitioner in a case where the opinion has been formed in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. Thus in view of sub-section (2) of section 3 of the MTP Act, there can be no termination of pregnancy if the length of the pregnancy had exceeded twenty weeks. The only exception is found in section 5 of the MTP Act under which the pregnancy can be terminated immediately to save the life of the pregnant woman at any stage of pregnancy, if the opinion of the registered medical practitioner is formed in good faith. Section 5 of the MTP Act strictly restricts to the cases where the life of the pregnant woman would be in danger in case the pregnancy is not terminated and does not refer to any other circumstances. Undoubtedly, the opinion in that regard has to be formed by a registered medical practitioner and such opinion should be in good faith. The expression "good faith" discloses that the opinion has to be based on the necessary examination required to form such an opinion. 7. In this case, not only the pregnancy period of the victim was six months and therefore has exceeded twenty weeks but also there is absolutely no material that to save the life of the victim, the termination of pregnancy was necessary. 7. In this case, not only the pregnancy period of the victim was six months and therefore has exceeded twenty weeks but also there is absolutely no material that to save the life of the victim, the termination of pregnancy was necessary. The victim has categorically stated that she was taken to the private clinics situated at Majhipali by the family members of co-accused Lochan Pujhari by giving an impression of formal check up of the child in the womb where the doctor gave some medicines to her for which she became senseless and after one hour, when she regained her senses, she came to know that there has been termination of her pregnancy. When she confronted about such termination to the co-accused persons, they told her not to disclose the incident before anybody and threatened her with dire consequence. Therefore, it is apparent from the statement of the victim that her consent had not been taken before termination of pregnancy. It is prima facie clear from the available materials on record that neither the procedure as laid down under sections 3, 4 and 5 of the MTP Act have been followed nor the consent of the victim has been taken for termination of her six months pregnancy. Therefore, when there is no material that the miscarriage was done in good faith for the purpose of saving the life of the victim and the victim’s consent for such miscarriage has not been obtained but it was done in a clandestine manner making the victim senseless by administering some medicine, I am of the view that the prima facie ingredients of the offence under section 313 of the Indian Penal Code is made out so far as the petitioner is concerned. 8. Therefore, I am not inclined to invoke my inherent power to interfere with the impugned order. Accordingly, the CRLMC application being devoid of merits, stands dismissed. Any observation made in this judgment shall not influence the learned trial Court in adjudicating the case and the learned trial Court shall go by the evidence to be adduced by the respective sides during course of trial. Lower Court records be sent back immediately.