Punjab-Haryana High Court
Bashir Khan vs State Of Punjab And Another on 2 August, 2014
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 150, (2015) 2 PUN LR 737 (2014) 4 RECCRIR 148, (2014) 4 RECCRIR 148
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.14058 of 2014
Date of decision:02.08.2014
Bashir Khan ... Petitioner
versus
State of Punjab and another .... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Keshav Pratap Singh, Advocate,
for Mr. Raj Mohan Singh, Advocate,
for the petitioner.
Ms. Vandana Malhotra, Additional Advocate General,
Punjab.
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ?Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
K.Kannan, J. (Oral)
1. The writ petition is at the instance of the parent of a minor girl, called 'the victim' here, who is reported to have been raped as a consequence of which, she has become pregnant. A case has been registered against a person, who was alleged to have committed the rape in FIR No.29, dated 03.04.2014 for offences under Sections 363, 366-A, 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012.
Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -2-
2. The petitioner has approached the SDJM, Balachaur, through an application under Section 3 for termination of her pregnancy. It has been stated in the petition that the victim is only 14 years of age, that she had been illegally abducted and raped. The victim is in fragile health and she did not want to retain the foetus. It was claimed on her behalf by the parent that continuance of pregnancy would involve risk to the life of the victim and cause grave injury to physical and mental health. A statement had been recorded from the victim's mother Alima that she does not want to carry foetus and that she wanted to terminate the pregnancy. The Magistrate has recorded the statement of the victim herself that she had been raped and that she did not want the pregnancy. A doctor by name Kiran Kaushal, Gynaecologist, attached to the Government Hospital at SBS Nagar, has certified that the termination of pregnancy was possible, though the person was anaemic and a minor. The doctor has also given a status report which was called for from the doctor stating that she was anaemic with RH -Ve Blood group. She has observed that before termination of pregnancy, her hemoglobin count would require to be built up to ensure availability of blood and that termination could be effected in a hospital where there were two or more gynaecologists as teenage pregnancy termination carries many risks to the patient. Apart from even the risk of surgery to gynaecologist who perform the procedure. It is Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -3- also suggested in the report that she would require NDT injection to ensure her future obstetric carrier.
3. The Sub Divisional Magistrate, however, was of the view that the application was not maintainable before a Judicial Magistrate since there was no specific provision empowering the Judicial Magistrate to pass an order granting permission to terminate the pregnancy. The petitioner has approached the court after an adverse order of the Magistrate declining to terminate the pregnancy.
4. There can be no two opinions that the conditions necessary for terminating the pregnancy do exist. There is prima facie case material available through lodging of FIR for offences under Section 376 and other related provisions. Section 3 of the Medical Termination of Pregnancy Act, 1971 sets out the circumstances when pregnancy may be terminated by registered medical practitioner. Clause 2 states that 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 the opinion, formed in good faith, that the continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health, medical termination of pregnancy could be performed. Explanation 1 lays down that where pregnancy is alleged by the pregnant woman to have been caused by rape, the Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -4- anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. In this case, there is a statement recorded by the Magistrate from the victim that she had been raped and that she does not want to retain the foetus. Since she is woman who has obtained the age of puberty and the party is a Muslim, the father is the guardian. He has also expressed that he would desire the pregnancy to be terminated. The mother's statement has also been given before the Magistrate that she wanted to terminate the pregnancy for her daughter.
5. Section 4 of the MTP Act sets out the place where the pregnancy may be terminated. It shall be in a hospital established or maintained by government or a place approved for the purpose of this Act by government. Since the pregnancy is reported to be more than 14 weeks, the requisite certification of two registered medical practitioners has not been brought forth before this court in the manner contemplated under Section 3(2)(b). It should have been possible for either the State or the parties themselves to have approached the District Medical Officer and who should have given direction for constitution of a two members committee of doctors to give opinion on the fact that the continuance of pregnancy would have involved risk to the life of the woman and there was grave injury of physical or mental health of the petitioner. The State need not have applied to the magistrate, a procedure which has been Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -5- adopted in this case. On the other hand, if the Investigating Officer comes by information that the offence of rape has resulted in pregnancy and the victim had expressed that she did not want to retain the foetus, the State could have assisted the victim to secure the necessary certification and admitted her in a government hospital or a recognized institution for carrying out the other medical procedure necessary for such termination. The Magistrate was justified in holding that he did not have the competency, but here again, a little more resourcefulness on his part would have helped the party to secure what was redressable through the procedures that were in conformity with law, namely, of a direction to the competent head of medical institution to examine the petitioner by two medical practitioners in the manner contemplated under Section 3(2) and secured their opinion and taken further medical steps for carrying out the opinion, if it were to involve in the medical termination of pregnancy. The dismissal of the petition and an application before this court has again resulted in a needless waste of time by another 10 days.
6. In a matter relating to termination of pregnancy of a minor who is a victim of rape, there needs to be a greater sense of urgency which has been lost in this case. Thankfully things are not far too beyond the period when appropriate reparation is still possible. Between the time when the party has appeared before the Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -6- Magistrate on 01.07.2014 till now, 4 additional weeks have passed.
7. I wanted to assure myself that the victim girl was taking a decision about termination of pregnancy knowing its actual implications. I therefore attempted to wean her from her immediate parents' presence and sought the assistance of Ms. Vandana Malhotra, Additional Advocate General, Punjab, to speak to her and elicit from her whether she was expressing her will to terminate the pregnancy. I also enquired the victim in the presence of the counsel of both sides whether she wanted to retain foetus or terminate the same. She does not want to retain the foetus and though, she looks young, she seems reasonably collected in her faculties to take an informed decision to herself. The father, who is the petitioner, is also in court to state that he stood by what he has stated in the petition regarding his own consent for termination of pregnancy.
8. Considering the fact every passing day could harm her physically and mentally, I am of the view that she must be examined by the two medical practitioners attached to the Obstetric and Gynaecology department at PGI and the Director, PGI, Chandigarh, will immediately constitute an ad hoc Medical Board to examine the petitioner on 04.08.2014 and if they are of the view that the length of pregnancy does not exceed 20 weeks, proceed to terminate the pregnancy by appropriate medical procedure. No further direction is necessary from the court before the actual procedure is done, Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -7- needless to say, care being taken to ensure physical and mental safety of the victim.
9. To ensure that the victim of rape who becomes pregnant does not lose time by applying from court to court, there shall be general instructions given by the Director General of Police to all the police stations who register cases of rape and who come by information that the victim has become pregnant to render all assistance to secure appropriate medical opinions and also provide assistance for admission in government hospitals and render medical assistance as a measure of support to the traumatized victim. The need to apply to the court for permission would arise only in a situation where there is a conflict of whether the pregnancy must be terminated or not or when the opinions of two medical practitioners themselves differ. It is hardly necessary in a situation where there is no contest and the victim gives her own consent and the guardian also gives consent and there is proof of such pregnancy was resultant to an offence of rape. This instruction shall also be circulated to all the Station Inspectors manning police stations in the State of Punjab.
10. Issue copy of the order dasti. Registry may dispatch the order copy to the Director, PGI, Chandigarh, to carry out the directions for immediate constitution of the Medical Board for examination of the patient and to carry out the opinion if it were to Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document Civil Writ Petition No.14058 of 2014 -8- be that the patient requires the medical procedure for termination of pregnancy. Since the birth certificate of the victim is not available, I have taken the age to be 14 years on the assertion of the parent. The medical practitioner may carry out such test as it finds necessary to ascertain her age. This is only by way of caution, for, even without reference to the age and if she was more than 14 years of age if she was a victim of rape, there is not an age restriction for carrying out the termination of pregnancy. There is also a direction to take appropriate samples of the foetus for DNA testing that could be used, if necessary at an appropriate time.
11. Writ petition is disposed of.
(K.KANNAN) JUDGE 02.08.2014 sanjeev Kumar Sanjeev 2014.08.02 16:32 I attest to the accuracy and integrity of this document