Himachal Pradesh High Court
Gaurav Sinha vs State Of Himachal Pradesh on 24 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:6178 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.209 of 2024 with Cr. Revision No.232 of 2024 .
Date of Decision: 24.07.2024 _______________________________________________________
1. Criminal Revision No.209 of 2024 Gaurav Sinha .......Petitioner Versus State of Himachal Pradesh ... Respondent
2. Criminal Revision No.232 of 2024 Bhawna Jain .......Petitioner Versus State of Himachal Pradesh ... Respondent Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes.
For the Petitioner(s): Mr. Anirudh Sharma and Mr. Pavinder, Advocates.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Since both the petitions arise out of the same order, they were taken up together for hearing and are being disposed of vide this common order.
2. Instant Criminal Revision petitions filed under Section 397 read with Section 401 of the Code of Criminal Procedure, lay challenge to orders dated 11.01.2024 passed by learned Additional Sessions Judge-I, Solan, District Solan, Himachal Pradesh in ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 2 2024:HHC:6178 Sessions Trial No.25ASJ-II/7 of 2019, titled as State of Himachal Pradesh vs. Vikram and others, whereby Court concerned, while .
rejecting the applications, having been filed by the petitioners under Section 227 Cr.P.C for their discharge, proceeded to frame charges against the petitioners under Section 312, 419, 468, 471, 201 and 120-B of IPC.
3. Precisely, the facts of the case, as emerge from the record are that on 31.12.2018, complainant namely, Smt. Veena Kumari (hereinafter referred to as the complainant), lodged a complaint at police Station Sadar, District Solan, Himachal Pradesh, alleging therein that her elder daughter (hereinafter referred to as the victim/prosecutrix)( name withheld to protect her identity) after having completed her B.Sc had been visiting petitioner namely, Gaurav Sinha for learning painting. Complainant alleged that initially her daughter i.e. victim/prosecutrix had been coming to her home, but after May, 2018, she stopped coming. She alleged that in the month of September, 2018, she alongwith other family members had gone to the room of her daughter at Gatta Factory, Solan and accused namely, Gaurav Sinha, not only misbehaved and hurled abuses, but also stopped her and other family members from taking her daughter back to their home. She alleged that subsequently with the intervention of the police, her daughter agreed to come back to her ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 3 2024:HHC:6178 house, but then suddenly, it transpired that she had gone to Delhi.
Complainant alleged that while her daughter was not present in the .
room, she checked her bag and found certain medical prescription slips, perusal whereof, revealed that her daughter is eight months pregnant. She alleged that she has apprehension that some wrong has been committed upon her daughter and petitioner namely, Gaurav Sinha may also be involved. After having received aforesaid complaint, police started investigation and found that daughter of the complainant had gone to Delhi to get her pregnancy terminated from Jain Child Maternity Hospital, Delhi. Since record revealed that at the time of termination of pregnancy, petitioner herein had signed on the consent form filled up by the victim/prosecutrix and he had disclosed himself to be in close relation of the victim/ prosecutrix, police after having recorded the statement of the victim/prosecutrix under Sections 161 Cr.P.C, registered the case against the petitioners under aforesaid provisions of law. In aforesaid statements, victim/prosecutrix categorically stated that she was pregnant on account of her being raped by accused namely, Vikram, who otherwise her brother in relation. She deposed before the learned Judicial Magistrate in her statement recorded under Section 164 Cr.P.C.,as well as police that since aforesaid factum of her having become pregnant after being raped by accused Vikram, was not believed by her mother and she ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 4 2024:HHC:6178 had apprehension that there can be bloodshed among relatives on account of disclosure of aforesaid fact, if any, she requested .
petitioners, who were known to her, to assist her in getting the pregnancy terminated. She also stated in her statement recorded under Section 164 Cr.P.C., that she used to treat petitioner namely, Gaurav Sinha to be her Mamu and as such, he rightly disclosed himself to be her Mamu, while filling up consent form at the time of termination of pregnancy. In nutshell, victim/prosecutrix categorically stated before the police as well as Judicial Magistrate while getting her statements recorded under Sections 161 and 164 Cr.P.C, respectively that she got the pregnancy terminated of her own volition and there is no fault, if any, of the petitioners, who were only present on the spot on her request.
4. Being not satisfied with aforesaid explanation rendered on record by the victim/prosecutrix, coupled with the fact that petitioners herein had signed on the consent form, claiming themselves to be in close relation of the victim/prosecutrix, police lodged FIR bearing No.6 of 2019, dated 6.01.2019 under Sections 376, 312, 419, 468, 471, 201 and 120-B of IPC. After completion of the investigation, police though has presented the challan in the competent Court of law, but before charges, if any, could be framed against the petitioners as well as other accused namely, Vikram, ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 5 2024:HHC:6178 petitioners herein filed two separate applications under Section 227 of Cr.P.C, seeking therein their discharge on the ground that pregnancy .
of the victim/prosecutrix was terminated with her consent. Petitioners claimed before the trial Court that at the time of pregnancy, victim/prosecutrix was major and as per provisions contained under Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the MTP Act), victim/prosecutrix on account of her being raped could always get the pregnancy terminated, especially when same was of less than 20 weeks. Petitioners also averred before the trial Court that once victim/ prosecutrix in her statement recorded under Section 164 Cr.P.C has already stated that pregnancy was on account of her being raped by accused Vikram and she of her own volition, decided to get her pregnancy terminated, there is no reason, if any, to charge them under the provisions of law, as mentioned in the FIR.
5. Learned trial Court on the basis of the pleadings adduced on record by the respective parties, rejected the applications filed by both the petitioners vide common order dated 11.01.2024. Vide aforesaid order, trial Court charged accused Vikram under Section 376 of IPC and petitioners herein came to be charged under Sections 312, 419, 468, 471, 201 and 120-B of IPC. In the aforesaid background, petitioners have approached this Court in the instant ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 6 2024:HHC:6178 proceedings, praying therein to set-aside aforesaid orders, whereby they have been charged under Sections 312, 419, 468, 471, 201 and .
120-B of IPC.
6. Precisely, the grouse of the petitioners as has been highlighted in the petitions and further canvassed by Mr. Anirudh Sharma, learned counsel for the petitioners, is that no case muchless under Sections 312, 419, 468, 471, 201 and 120-B of IPC is made out against the petitioners. Learned counsel for the petitioners, while making this Court peruse statements of the victim/prosecutrix recorded under Section 161 and 164 Cr.P.C, vehemently argued that at no point of time petitioners impersonated, rather they rightly disclosed in the consent form filled up by the victim/prosecutrix at the time of termination of her pregnancy that they are in close relation of the victim/prosecutrix. Learned counsel for the petitioners further submitted that victim/prosecutrix, who at the time of termination of pregnancy was major, was otherwise not required to furnish consent of the family members, rather she being major, could herself give her consent and approach Hospital with a prayer to terminate her pregnancy and hospital concerned could proceed merely on the basis of the consent, if any, given by the victim/prosecutrix. While making this Court peruse Section 3 of the Medial Termination of Pregnancy Act, 1971, learned counsel for the petitioners vehemently argued that ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 7 2024:HHC:6178 otherwise also petitioners could not be charged under Section 312 of IPC for the reason that pregnancy of the victim/prosecutrix was .
terminated when it had not exceeded the period of 20 weeks. He submitted that as per Section 3 of the MTP Act, Medical Practitioner shall not be guilty of any offence under the provisions contained in IPC or any other law for the time being in force, if the pregnancy is terminated in accordance with the provision of MTP Act. He further submitted that since pregnancy was caused on account of rape committed upon the victim/ prosecutrix by accused Vikram, she in terms of Section 3 of the MTP Act was well within her rights to get the pregnancy terminated and for that purpose, consent of family members was otherwise not required, rather in such situation, consent, if any, required was of victim/ prosecutrix.
7. Learned counsel for the petitioners further submitted that no evidence, worth credence, ever came to be adduced on record that documents, if any, were ever forged by the petitioners and as such, it is not understood on what basis, police proceeded to register case against the petitioners under Sections 468, 471 and 120-B of IPC. He submitted that since victim/prosecutrix categorically disclosed to the police as well as Judicial Magistrate while deposing under Section 161 and 164 Cr.P.C that she of her own volition got the pregnancy terminated and there was no role, if any, of the petitioners, ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 8 2024:HHC:6178 no case muchless under Section 312 IPC otherwise could have been registered against the petitioners.
.
8. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned orders, vehemently argued that bare perusal of consent form submitted by the victim/prosecutrix for termination of pregnancy, clearly reveals that petitioners were not related to the victim/prosecutrix in any manner, but yet they with a view to help victim/prosecutrix impersonated themselves to be in close relation of the victim/prosecutrix and as such, rightly came to be booked under section 312 of IPC. Learned Additional Advocate General further submitted that once wrong information came to be furnished by the petitioners on the consent form submitted by the victim/prosecutrix for termination of her pregnancy, they were rightly booked under Sections 468 and 471 of IPC for forgery. While refuting the submissions made by learned counsel for the petitioners that no consent, if any, was required at the time of termination of pregnancy in terms of Section 3 of the MTP Act, learned Additional Advocate General attempted to argue that at the time of termination of pregnancy in the year 2018, no allegation of rape was ever levelled by the victim/prosecutrix against the accused Vikram, rather such allegation came to be levelled after lodging of the FIR, meaning thereby, no benefit, if any, as sought to be taken by the ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 9 2024:HHC:6178 petitioners of the explanation I and II to Section 3 of MTP Act, can be permitted to be taken. Learned Additional Advocate General further .
submitted that whether victim/prosecutrix had consented for termination of pregnancy or pregnancy was terminated by the hospital concerned pursuant to consent given by the petitioners, is a question to be determined by the court below in totality of evidence collected on record by the prosecution and as such, it may not be in the interest of justice to accept the prayer made on behalf of the petitioners to quash the impugned orders, rather quashing of impugned orders would result in precluding the prosecution to prove its case beyond reasonable doubt, which can only be done by way of trial on the basis of evidence adduced on record by the prosecution as well as opposite party. Lastly, learned Additional Advocate General submitted that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that petitioners herein, besides helping victim/prosecutrix to get her pregnancy terminated, also forged the documents and as such, no illegality can be said to have been committed by the Court below while charging the petitioners under Sections 312, 419, 468, 471, 201 and 120-B of IPC.
9. Having heard learned counsel for the parties and perused material available on record, this Court finds that FIR pursuant to which, criminal prosecution came to be launched against the ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 10 2024:HHC:6178 petitioners was lodged by the mother of the victim/prosecutrix, who after having discovered certain medical prescriptions from the bag of .
the victim/prosecutrix came to know about the pregnancy of her daughter i.e. victim/prosecutrix. Since documents recovered from the bag of the victim/prosecutrix disclosed factum of termination of pregnancy at some Hospital at Delhi, police verified the records of the hospital at Delhi and found that at the time of termination of pregnancy of the victim/prosecutrix, petitioners herein had signed on the consent form, disclosing themselves to be in close relation of the victim/prosecutrix. Petitioner namely, Gaurav Sinha disclosed himself to be maternal uncle (Mamu) of the victim/prosecutrix, whereas another petitioner namely, Bhawna Jain, disclosed herself to be attendant. No doubt, on the basis of consent form filled up by the victim/ prosecutrix as well as the petitioners, Hospital concerned proceeded to terminate the pregnancy of the victim/prosecutrix, which admittedly at that relevant time was of less than eight weeks, but question which needs to be determined in the instant case, is whether consent, if any, given by the petitioners on the consent from filled up by the victim/prosecutrix for termination of her pregnancy was of any relevance or not?. Answer to afore question lies in the provision contained under Section 3 of the MPT Act, which reads as under:-
"3. When Pregnancies may be terminated by registered medical practitioners:-::: Downloaded on - 02/08/2024 20:33:11 :::CIS 11
2024:HHC:6178 (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 1.-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 2.-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 ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 12 2024:HHC:6178 eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall .
be terminated except with the consent of the pregnant woman".
10. Aforesaid provision, if read in its entirety, suggests that notwithstanding anything contained in the Indian Penal Code, 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 aforesaid provision of the Act. Pregnancy by a medical practitioner can be terminated subject to the provision of sub-Section 4, which provides that 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 (2) save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
11. As per aforesaid provisions of law, where the length of pregnancy does not exceed twelve weeks and medical practitioner is of an opinion that 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 there is substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 13 2024:HHC:6178 seriously handicapped, may proceed to terminate the pregnancy, however subject to provision of sub section 4 of the MTP Act, as has .
been taken note hereinabove, meaning thereby even if there is imminent danger to the life of the pregnant woman or newly child born, Medical Practitioner would not proceeded to terminate the pregnancy in case woman seeking termination of pregnancy is less than 18 years or she is not of sound mind, rather in such situation, consent of her guardian would be material. If aforesaid conditions do not exist than consent, if any, of pregnant woman would be required not of the guardian.
12. Explanations I and II given to aforesaid provision of law are of great significance as far as adjudication of the case at hand is concerned, especially when it is to be read in context of Section 3(2) (a & b) of the MTP Act. Explanation-I clearly provides that 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, meaning thereby, if pregnancy is caused to a pregnant woman on account of her being raped, the anguish caused by such pregnancy shall be presumed to constitute gave injury to the mental health, if it so, Doctor approached for termination of pregnancy may proceed to terminate the pregnancy in terms of Section 2(b)(1), which specifically ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 14 2024:HHC:6178 speaks about grave injury to her physical or mental health. If Doctor is of opinion that continuance of the pregnancy would involve a risk of .
grave injury to the physical or mental health of the pregnant woman, he/ she can proceed to terminate the pregnancy subject to provisions contained under sub-Section 4 of the MTP Act, which specifically bars termination of pregnancy in case of woman of having less than 18 years age and of unsound mind and in that situation, if there is a risk to the life of pregnant woman or there is risk of grave injury to her physical or mental health on account of her being raped, Doctor though may proceed to terminate the pregnancy, but with the consent of the guardian.
13. If the case of the prosecution is examined in light of aforesaid provision of law, there appears to be merit in the contention of learned counsel for the petitioners that since pregnancy of the victim/ prosecutrix at the time of termination was less than eight weeks, coupled with the fact that victim/prosecutrix was major, consent form, if any, signed by the petitioners is of no consequence, rather in that situation, doctor having taken note of the fact that victim/prosecutrix is major and she has become pregnant on account of her being raped could straightway proceed to terminate the pregnancy without recording consent, if any, of her family members.
It is none of the case of the prosecution that at the time of termination ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 15 2024:HHC:6178 of pregnancy, victim/ prosecutrix was minor or she was of unsound mind. It can also not be disputed that pregnancy was caused to the .
victim/prosecutrix on account of her being raped by accused Vikram.
14. Though, learned Additional Advocate General attempted to argue that at the time of termination of pregnancy in the year 2018, there was no allegation of rape against accused Vikram, rather such allegation for the first time came to be levelled against the accused, named hereinabove, in the year 2019, but such fact, if any, may not be of much relevance for the reason that victim/prosecutrix in her statements given to police and Judicial Magistrate under Sections 161 and 164 Cr.P.C, has categorically stated that she became pregnant on account of her being raped by accused Vikram.
15. In the instant proceedings, Court is not required to ascertain the paternity of the child got terminated by the victim/prosecutrix in the Hospital at Delhi, rather in these proceedings, Court is only required to see whether child in the womb of victim/prosecutrix, which she got terminated, was on account of her being raped. Once victim/ prosecutrix in her statement recorded under Section 164 Cr.P.C confirmed before the Judicial Magistrate that she became pregnant on account of her being raped by accused Vikram, coupled with the fact that she was major at the time of her filing up form for termination of pregnancy, this Court is persuaded to agree ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 16 2024:HHC:6178 with learned counsel for the petitioners that no consent, if any, of family members was required. If it is so, consent, if any, given by the .
petitioner Gaurav Sinha, may not be of any consequence.
16. Since victim/prosecutrix specifically stated in her statement recorded under Section 164 Cr.P.C., that she used to consider petitioner Gaurav Sinha as her maternal uncle (Mamu), it is difficult to agree with the prosecution that petitioner Gaurav Sinha impersonated and wrongly disclosed himself to be Mamu of the victim/prosecutrix at the time of filling up consent form, which otherwise not required, as has been discussed hereinabove. Similarly, this Court finds that petitioner Bhawna Jain nowhere claimed herself to be in relation of the victim/prosecutrix, rather she disclosed her to be attendant. Any person being in relation or friend can be attendant to some patient. Similarly, there is nothing on record that consent form on the basis of which, Hospital concerned proceeded to terminate the pregnancy of the victim/prosecutrix was forged or manufactured by the petitioners, rather they simply filled the same, disclosing themselves to be in close relation of the victim/ prosecutrix, which fact subsequently came to be verified from her own statement given under Section 164 Cr.P.C. Since victim/prosecutrix was major at the time of her approaching Hospital concerned for termination of pregnancy and such pregnancy was caused on account of her being ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 17 2024:HHC:6178 raped, mere visiting the petitioners alongwith the victim/ prosecutrix in the Hospital otherwise cannot be construed to be voluntarily causing a .
woman by the petitioner that too in good faith to terminate the pregnancy.
17. In case titled X versus The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and another 2022 Live Law (SC 809), Hon'ble Apex Court, while holding that all women are entitled to safe and legal abortions, held that there is no rationale in excluding unmarried women from ambit of Rule 3B of MTP Rules, which mentions the categories of women, who can seek abortion of pregnancy in the term 20-24 weeks. In the afore judgment, Hon'ble Apex Court held that a narrow interpretation of Rule 3 B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty four weeks) from assessing abortion, while allowing married women to assess them during the same period would fall foul of the spirit guiding Article 140.
18. At this stage, it would be profitable to reproduce following paras of aforesaid judgment herein below:-
"23. These extra-legal requirements have no basis in law. As noted above, it is only the woman's consent (or her guardian's consent if she is a minor or mentally ill) which is ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 18 2024:HHC:6178 material. RMPs must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law. They need only ensure that the .
provisions of the MTP Act (along with the accompanying rules and regulations) are complied with.
62. Courts in the country have permitted women to terminate their pregnancies where the length of the pregnancy exceeded twenty weeks (the outer limit for the termination of the pregnancy in the unamended MTP Act) by expansively interpreting Section 5, which permitted RMPs to terminate pregnancies beyond the twenty week limit when it was necessary to save the life of the woman. In X v. Union of India,(2017)3 SCC458, Mamta Verma v. Union of India, (2018) 14 SCC 289, Meera Santosh Pal v. Union of India, (2917) 3 SCC 462. Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339, this Court permitted the termination of post twenty week pregnancies after taking into account the risk of grave injury to the mental health of a pregnant woman by carrying the pregnancy to term.
63. The grounds for approaching courts differ and include various reasons such as a change in the circumstances of a woman's environment during an ongoing pregnancy, including risk to life, risk to mental health, discovery of foetal anomalies, late discovery of pregnancy in case of minors and women with disabilities, and pregnancies resulting from sexual assault or rape. These are illustrative situations thrown up by cases which travel to the court. Although the rulings in these cases recognized grave physical and mental health harms and the violation of the rights of women caused by the denial of the option to terminate unwanted pregnancies, the relief provided to the individual petitioner significantly varied.
64. The expression "mental health" has a wide connotation and means much more than the absence of a mental impairment or a mental illness. The World Health ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 19 2024:HHC:6178 Organization defines mental health as a state of "mental well-being that enables people to cope with the stresses of life, realize their abilities, learn well and work well, and .
contribute to their community."The determination of the status of one's mental health is located in one's self and experiences within one's environment and social context. Our understanding of the term mental health cannot be confined to medical terms or medical language, but should be understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting "grave injury to her physical or mental health", account may be taken of the pregnant woman's actual or reasonably foreseeable environment. The consideration of a woman's "actual or reasonably foreseeable environment" becomes pertinent, especially when determining the risk of injury to the mental health of a woman.
65. There have been numerous decisions of the High Courts where a purposive interpretation is given to the phrase mental health as used in the MTP Act. In High Court on its Own Motion v. State of Maharashtra, 2016 SCC online Bom.8426, the High Court of Bombay correctly held that compelling a woman to continue any unwanted pregnancy violates a woman's bodily integrity, aggravates her mental trauma and has a deleterious effect on the mental health of the woman because of the immediate social, financial and other consequences flowing from the pregnancy.
70. Rule 3B(a) is based on an acknowledgement of the reality that survivors of sexual assault, rape, or incest may face immense stigma if and when they share the fact of their assault with others, including family members. It is no secret that a culture of shame surrounds sexual violence in India. Survivors are often hesitant to speak about the violence ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 20 2024:HHC:6178 inflicted upon them. This is doubly the case with victims of incestuous sexual assault or rape, whose close relatives abuse their power and authority over the woman and other .
family members oftentimes being unwilling to believe that the perpetrator (that is to say, their relative) is guilty of sexual violence. Many survivors, including minors, may not even be aware that pregnancy is a possible consequence of rape.
Hence, the delay in revealing the fact that a man has raped them may lead to a delay in discovering the pregnancy. Alternatively, the woman in question may be unable to access medical facilities in a timely fashion and may therefore find herself unable to terminate the pregnancy before the completion of twenty weeks.
75. Notwithstanding Exception 2 to Section 375 of the IPC,85 the meaning of the words "sexual assault" or "rape" in Rule 3B(a) includes a husband's act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.
76. In order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. In fact, Explanation 2 triggers the ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 21 2024:HHC:6178 legal presumption as to mental trauma "where any pregnancy is alleged by the pregnant woman to have been caused by rape."
.
121. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes "permissible sex", which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman."
19. Having scanned entire material adduced on record vis-à-
vis reasoning assigned in the impugned orders, whereby court below proceeded to frame charge against the petitioners under Sections 312, 419, 468, 471, 201 and 120-B of IPC, this Court has no hesitation to conclude that court below, while framing charges failed ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 22 2024:HHC:6178 to take note of relevant provisions of law as well as other material adduced on record, as a result thereof, great prejudice has been .
caused to the petitioners, who on account of framing of charge against them shall be unnecessarily put to ordeal of protected trial , which otherwise bond to fail for the reasons stated in the earlier part of the judgment.
20. Though, at this stage, Mr. Rajan Kahol, learned Additional Advocate General referred certain judgments passed by Hon'ble Apex Court to contend that while exercising revisionary jurisdiction under Section 397 this Court has very limited scope to re-appreciate the evidence, as such, this court, at the first instance, deems it fit to deal with the scope of revisional and inherent jurisdiction of this Court under S.397 Cr.P.C.
21. Bare perusal of S.397 Cr.P.C, reveals that the court having revisional jurisdiction has power to call for and examine the record of any proceedings before any inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. Object of this provision is to set right a patent defect or an error of jurisdiction or law, however, there has to be a well-founded error and it may not be proper or appropriate for court to ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 23 2024:HHC:6178 scrutinize order which on the face of it appears to be passed on careful consideration of material available on record. Revisional .
jurisdiction can be invoked, where decision under challenge is grossly erroneous and there is no compliance with the provision of law.
Besides above, court can also exercise revisional jurisdiction if it finds that the order sought to be laid challenge is based on no evidence and the court passing the same has ignored the material evidence. By now it is well settled norm that the revisional jurisdiction is not to be exercised in a routine manner rather, court should keep in mind that the exercise of revisional jurisdiction should not lead to injustice ex-
facie. Reliance is placed upon judgment rendered by Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, wherein Hon'ble Apex Court has held as under:
"13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C"
22. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 24 2024:HHC:6178 Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case .
court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
"8.
The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
23. In the case at hand, no case under Sections 312, 419, 468, 471, 201 and 120-B of IPC is made out against the petitioners and prosecution, if permitted, is bound to fail in all probabilities.
Evidence collected on record to prove allegation against the ::: Downloaded on - 02/08/2024 20:33:11 :::CIS 25 2024:HHC:6178 petitioners is not sufficient to connect them with the offence alleged to have been committed by them and as such, this Court sees no reason .
to put the petitioners to suffer ordeal of protracted trial, which in any eventuality will culminate in the acquittal of the petitioners.
24. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petitions and accordingly same are allowed.
Orders dated 11.01.2024 is quashed and set-aside and the petitioners-accused are discharged of the offences alleged in the FIR.
Pending applications, if any, also stand disposed of.
(Sandeep Sharma) Judge 24th July 2024 (shankar) ::: Downloaded on - 02/08/2024 20:33:11 :::CIS