Punjab-Haryana High Court
Vandana Malik vs State Of Haryana on 18 September, 2014
CRM-M No.15860 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM-M No. 15860 of 2014(O&M)
Date of decision :18.09.2014
Dr. Vandana Malik ...... Petitioner
Versus
State of Haryana
........Respondent
CORAM : HON'BLE MR. JUSTICE AJAY TEWARI
Present: Mr.Parminder Singh, Advocate
for the petitioner.
Mr. Gaurav Verma, AAG, Haryana.
****
AJAY TEWARI, J. (ORAL)
1. Whether the Reports of Local papers may be allowed to see the judgment?
2. To be referred to the reports or not?
3. Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (Oral) This is a petition under Section 482 of Cr.P.C for quashing the FIR no. 476 dated 16.09.2013, for offence under Section 3, 4, 5 of MTP Act, 1971 (hereinafter referred to as Act), registered at Police Station Samalkha, District Panipat.
Learned counsel for the petitioner submits that a false case has been registered against the petitioner due to professional rivalry. It is further submitted that even if the allegations raised against the petitioner are taken to be correct on its face value, no offence under Sections 3, 4, 5 of the Act is made out against the petitioner, therefore, the aforesaid FIR and proceedings emanating therefrom are liable to be quashed. SANJAY KHAN 2014.09.26 11:50 I attest to the accuracy and authenticity of this document CRM-M No.15860 of 2014 (O&M) 2
Learned Assistant Advocate General, Haryana, on the contrary, has submitted that during a raid conducted a team of doctors consisting of Dr. Inderjit Dhankar, Civil Surgeon, Panipat along with officials of Health and FDA Department, various equipments used for termination of pregnancy were found from the labour room of Malik hospital Chand Garden, Samalkha run by the petitioner Dr. Vandana Malik and the said hospital is not a place approved for the purpose of the Act by the Government, therefore, the petitioner has been rightly charged for the aforesaid offence. It is further argued that the charge has already been framed against the petitioner and the allegations set up against her are required to be tested during trial for adjudication of culpability of the petitioner.
I have heard the learned counsel for the parties and perused the records.
Section 3 of the Act deals with 'when pregnancies may be terminated by registered medical practitioners'. Section 4 provides for place where pregnancy may be terminated. Sub0sections2, 3 and 4 of Section 5 provide for punishment in certain eventualities. A relevant extract from Section 5 of the Act is quoted hereinbelow;-
5.Sections 3 and 4 when not to apply.-(1) XXX XXX XXX XXX XXX (2)notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall, be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years SANJAY KHAN 2014.09.26 11:50 I attest to the accuracy and authenticity of this document CRM-M No.15860 of 2014 (O&M) 3 under that Code, and that Code shall, to this extent, stand modified.
(3)Who ever terminates any pregnancy in a place other than that mentioned in Section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
(4)Any person being owner of a place which is not approved under clause (b) of Section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
Explanation 1. XXX XXX XXX
Explanation 2. XXX XXX XXX"
A perusal of the aforesaid penal provisions of Section 5 of the Act makes it evident that termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under Section 5(2) of the Act. A person who terminates any pregnancy in a place other than that mentioned in Section 4 of the Act, shall be punished in view of Section 5(3) of the Act. The legislative intent and object behind this actis to restrain termination of pregnancy by a person other than a registered medical practitioner or at a place other than the place provided for in Section 4 of the Act.
In the case at hand, the petitioner has been sought to be indicted in the crime on the allegations that some instruments used for termination of pregnancy, were found in the labour room in Malik Hospital, Chand Garden, Samalkha, Panipat during a raid, conducted by a team of doctors. However, during investigation of the case, no evidence has been collected SANJAY KHAN 2014.09.26 11:50 I attest to the accuracy and authenticity of this document CRM-M No.15860 of 2014 (O&M) 4 that Dr. Vandana Malik petitioner ever conducted termination of pregnancy. No person can be held guilty for committing a crime on the basis of assumptions and presumptions. This apart, there is nothing on record suggestive of the fact that these instruments are not used for conducting delivery or any other medical procedure, much less used only for termination of pregnancy.
Counsel for the State of Haryana otherwise failed to cite any provision in law or a precedent that if instruments which may be used for termination of pregnancy are found in a hospital, it raises a legal presumption against the doctor running that hospital or the owner of the place that the said hospital is being used for termination of pregnancy or any person has terminated the pregnancy. In this view of the matter, I find force in the contention of the petitioner that even if the allegations raised against the petitioner are accepted to be true on face value, the same do not constitute any offence charged against the petitioner, therefore, the proceedings are liable to be quashed. In this context, reference can be made to a judgment of Hon'ble the Supreme Court of India in State of Haryana and others vs. Ch. Bhajan Lal and others, 1991 (1) R.C.R. (Criminal)383. In Ch. Bhajan Lal and others's case (supra), the Apex Court culled out certain categories of cases by way of illustrations wherein power under Article 226 or the inherent power under Section 482 of the Code can be exercised either to prevent abuse of process of any court or otherwise to secure ends of justice with the observations that it may not be possible to lay down any precise, clearly defined and sufficiently chennelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases where such power should be exercised. The SANJAY KHAN 2014.09.26 11:50 I attest to the accuracy and authenticity of this document CRM-M No.15860 of 2014 (O&M) 5 categories of cases by way of illustrations have been described in clauses 1 to 7 of para 107. A relevant extract from clause (1) of the said para reads thus:-
"Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."
For the foregoing reasons, the petition is allowed, FIR no. 476 dated 16.09.2013, for offence under Section 3, 4, 5 of MTP Act, 1971 (hereinafter referred to as Act), registered at Police Station Samalkha, District Panipat, order dated 16.04.2014, charge sheet dated 16.04.2014 and proceedings emanating therefrom are ordered to be quashed.
No order as to costs.
(AJAY TEWARI) 18.09.2014 JUDGE S.khan SANJAY KHAN 2014.09.26 11:50 I attest to the accuracy and authenticity of this document