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2024 DIGILAW 778 (MP)

Seema Bai v. State of Madhya Pradesh

2024-12-12

SUBODH ABHYANKAR

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ORDER : SUBODH ABHYANKAR, J. 1] This petition has been filed under Article 226 of the Constitution of India, under the provisions of Medical Termination of Pregnancy Act, 1971 (hereinafter to be referred to as “Act of 1971”) for termination of the pregnancy of the petitioner’s daughter, a minor girl, aged 15 years, who is a victim of gang rape in Crime No.532/2024 registered at P.S. Mehidpur, Dist. Ujjain for offences under Section 6 4 (2), 65(1), 372(2), 351(3) of BNS, 2023 and 3, 4(2), 5j(ii), 5L, 6 of POCSO Act, 2012. 2] Heard counsel for the parties and perused the documents filed on record. 3] On the last date of hearing, i.e., 9/12/2024, this Court had directed the victim to appear before the Chief Medical and Health Officer, Charak Hospital, District Ujjain on 10.12.2024, for her medical checkup. 4] Today, learned counsel for the State has placed on record the report received from the office of Civil Surgeon, Chief Health Officer/Superintendent District Ujjain, whereby, it has been found that the petitioner’s daughter is found to be fit for medical termination of her pregnancy, with written and informed consent with due procedural risk. 5] In such facts and circumstances of the case, this Court finds it expedient to allow this petition and permit the petitioner’s daughter (victim) to have her pregnancy medically terminated by following the due procedure at Civil Surgeon, Chief Health Officer/Superintendent District Ujjain. 6] Accordingly, the Superintendent, Civil Surgeon, Chief Health Officer/Superintendent District Ujjain is directed to do the needful and medically terminate the pregnancy of the petitioner’s daughter (victim) at the earliest. 7] Needless to say, the victim's identity shall not be disclosed. It is further directed that samples/viscera of the fetus shall be preserved for DNA sampling, to be produced before the competent Court where criminal case is pending. 8] Counsel for the State is also directed to ensure that no inconvenience is caused to the victim due to procedural delays. REGARDING THE ORDER PASSED BY THE DISTRICT COURT ON THE APPLICATION FOR MTP. 8] Counsel for the State is also directed to ensure that no inconvenience is caused to the victim due to procedural delays. REGARDING THE ORDER PASSED BY THE DISTRICT COURT ON THE APPLICATION FOR MTP. 9] It is also found that earlier, on 04.12.2024, the petitioner had also approached the learned Judge of the trial Court for termination of her daughter’s pregnancy, however, the same has been rejected by the learned judge of the trial Court vide its order dated 05.12.2024, only on the ground that the petitioner has not produced medical documents in support of her application, the same reads as under :- 10] First of all, there is no provision in the Act of 1971 that such an application can be filed and entertained before the District Court. However, since the medical termination of pregnancy is a matter of life and death touching upon Article 21 of the Constitution, such an application can only be entertained by the High Court under Article 226 of the Constitution. Thus, the application itself ought not to have been considered on merits by the learned Judge of the District Court. 11] Secondly, the aforesaid finding, in the considered opinion of this Court, also shows the acute insensitive approach displayed by a Judge, who was required to show utmost empathy to a minor, who was a victim of gang rape. It is rather cruel for a court, any court, to expect from a rape victim to produce her medical documents. 12] It is an old saying that ‘procrastination is the thief of time’, for instance in the present case, it is found that the victim was first examined by the doctor on 30.11.2024, showing around 19 weeks pregnancy, thus, only due to procedural delays, two crucial weeks have been lost to the utter prejudice of the minor victim, which could have been avoided by the swift action of the all the parties concerned. However, the mother of the victim was wise enough to at least file such application before the District Court. PROCEDURE TO BE ADOPTED BY THE POLICE, DISTRICT COURTS AND THE REGISTRY OF THIS COURT. 13] Thus, the question is what procedure should be adopted in such cases? However, the mother of the victim was wise enough to at least file such application before the District Court. PROCEDURE TO BE ADOPTED BY THE POLICE, DISTRICT COURTS AND THE REGISTRY OF THIS COURT. 13] Thus, the question is what procedure should be adopted in such cases? 14] This Court, time and again has emphasized the need to expedite the MTP cases where the time is crucial owing to the provisions as contained in S.3 of the MTP Act, which prescribes the outer limit of twenty weeks for termination of pregnancy. It is also a common knowledge that most of the victims and their parents residing in remote areas, are oblivious of their right to terminate the pregnancy. 15] Hence, with a view to streamline the procedure and to ensure that timely legal and medical help reaches to such victims when it is needed the most, it is directed that henceforth, whenever a case of rape is registered in any police station, the following procedure shall be adopted :- (i) The SHO of the said police station, on the basis of the MLC of the victim indicating that she is pregnant, shall forthwith forward the victim to the concerned District Court; (ii) the learned Judge of the District Court, regardless of any application for termination of pregnancy, though not maintainable, filed before it or not, shall refer the victim to the concerned medical officer/Board to expeditiously submit its report, if the pregnancy of the victim can be terminated; (iii) the District Court, after obtaining the said medical report, under intimation to the victim and her parents, directly refer such case and report to the nearest Registry of the High Court; (iv) the Registry of this Court, in turn, shall register such reference as a Writ Petition under Article 226 of the Constitution, Suo Moto, and list the matter immediately before the concerned Bench having the roster, so that appropriate orders regarding termination of pregnancy can be passed by this Court without any undue delay. 16] Let a copy of this order be sent to the Registrar General of this Court at Jabalpur, as also to the Director General of Police, Bhopal to be circulated to all the Police Stations for its proper compliance. 17] With the aforesaid directions, the writ petition is allowed and disposed of.