Karnataka High Court
Dr. Smt. Anitha vs State Of Karnataka on 28 June, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.26098 OF 2022 (GM-RES)
BETWEEN:
DR. SMT. ANITHA
W/O LATE RAMALINGA
AGED ABOUT 63 YEARS
OCCUPATION DOCTOR
SHIVAM VISHWA HOSPITAL
2ND BLOCK, HBR LAYOUT
BENGALURU - 560 043.
... PETITIONER
(BY SRI VEERANNA G.TIGADI, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
REP. BY INSPECTOR OF POLICE
K.R.PET TOWN POLICE STATION
DISTRICT MANDYA.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2 . SMT. SAKAMMA
W/O LATE PUTTEGOWDA
AGED ABOUT 68 YEARS
R/O AKKIMANACHANAHALLI VILLAGE
K.R.PET TALUK,
DISTRICT MANDYA - 571 426.
2
3 . CRIME INVESTIGATION DEPARTMENT (CID)
REPRESENTED BY
DEPUTY SUPERINTENDENT OF POLICE
CARLTON ROAD, PALACE ROAD
BENGALURU - 560 001.
... RESPONDENTS
(BY SMT.K.P.YASHODA, HCGP FOR R-1 AND R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA AND READ WITH SECTION
482 OF THE CR.P.C., PRAYING TO ALLOW THE PETITION AND
ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT
QUASHING THE ORDER DATED 09.11.2022 IN SPECIAL C.C.NO.
14/2019 DECLINING TO DISCHARGE THE PETITIONER/ACCUSED
NO.4 OF THE OFFENCES PUNISHABLE UNDER SECTION 363, 363A,
370A(1), 326, 365, 367, 465, 468, 376, R/W 34 OF INDIAN PENAL
CODE, 1860, AND SECTIONS 6 AND 21 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012 AND 75 OF
JUVENILE JUSTICE ACT, 2000 PASSED BY THE LEARNED ADDL
DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT - II,
MANDYA.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.06.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioner is before this Court calling in question proceedings in Special C.No.14 of 2019 whereby Additional District and Sessions Judge, Fast Track Court-II, Mandya declines to discharge the petitioner from the array of accused as accused No.4 for offences punishable under Sections 363, 363A, 370A(1), 326, 365, 367, 465, 468, 376 read with 34 of the IPC; Sections 6 & 21 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) and Section 75 of the Juvenile Justice Act, 2000.
2. Shorn of unnecessary details, facts in brief, are as follows:-
The petitioner is a doctor by profession. On 11-02-2018 the 2nd respondent seeks to register a crime before the K.R.Pet Town Police Station in Crime No.59 of 2018 for offences punishable under Section 363 of the IPC. It was a missing complaint that was registered on the ground that the grandson of the 2nd respondent had gone missing. Investigation was handed over to the Crime Investigation Department ('CID') and on completion of investigation, the CID filed a charge sheet before the concerned Court. It is then, the petitioner comes into picture as accused No.4 4 and the charge sheet alleged several offences against all the accused. The petitioner then files a petition before this Court in Criminal Petition No.8213 of 2019 seeking quashment of proceedings insofar as the petitioner is concerned. This Court by its order dated 24-08-2022 dismisses the petition reserving liberty to the petitioner to file a discharge application before the concerned Court. The petitioner then knocks at the concerned Court seeking her discharge from the proceedings. The concerned Court, in terms of the order impugned dated 09-11-2022, rejects the plea of discharge of the petitioner. It is this order that drives the petitioner to this Court in the subject petition.
3. Heard Sri Veeranna G.Tigadi, learned counsel appearing for petitioner and Smt. K.P.Yashodha, learned High Court Government Pleader appearing for respondents 1 and 3.
4. Learned counsel appearing for the petitioner submits that the petitioner has done no wrong. The surgery that the petitioner performed was without any criminal intent and such acts are protected under Section 81 of the IPC. It is the case of the petitioner that 3 to 4 transgenders brought the grandson (who will 5 be hereinafter referred to as the 'the victim') of the 2nd respondent and asked surgery to be performed of reassignment of sex. Looking at the condition of the victim and the body parts, the surgery was performed. It is his case that no fault can be laid at the hands of the petitioner and no criminal proceedings should be permitted to be continued.
5. On the other hand, the learned High Court Government Pleader would seek to vehemently refute the submissions of the learned counsel for the petitioner by contending that the petitioner without the consent has performed major surgery and due to the impact of various surgeries performed, the victim dies. Therefore, the petitioner is involved in an unpardonable act, albeit, prima facie. It is, therefore, that the petitioner should be tried in a full blown trial and it is for her to come out clean in the said trial. She would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
6
7. The afore-narrated facts are not in dispute. The 2nd respondent registers a complaint before the jurisdictional Police on the ground that one Chandan Kumar, her grandson was missing. The complaint so registered on 11-02-2018 reads as follows:
"EAzÀ:
¸ÁPÀªÀÄä PÉÆÃA ¥ÀÄmÉÖÃUËqÀ CQ̪ÀÄAZÀ£ÀºÀ½î jUÉ mË£ï ¥ÉÆðøï oÁuÉ ¸À¨ï E£ïì¥ÉPÀÖgï ¸À¤ßzÁ£ÀUÀ½UÉ, ¸Áé«Ä, vÀªÀÄä°è F ªÀÄÆ®PÀ PÉÆÃjPÉ K£ÉAzÀgÉ £ÀªÀÄä ªÉƪÀÄäUÀ£ÁzÀ ºÉZï.J.ZÀAzÀ£ÀPÀĪÀiÁgï ©£ï C±Àéxï PÀĪÀiÁgÀ£ÁzÀ EªÀgÀÄ ²Ã¼À£ÉÃj ºÉÆç½ CQ̪ÀÄAZÀ£ÀºÀ½î UÁæªÀÄzÀ°è ªÁ¹AiÀiÁVzÀÄÝ, ¸ÀjAiÀĵÉÖ, FUÀ ºÁ° ¨ÉAUÀ¼ÀÆgÀÄ ©.©.JA.¦ ²æêÀÄw ¥Àæ«Ä¼Á ¨Á¬Ä © © JA ¦ ¥ËæqÀs±Á¯É «zÁågÀtå £ÀUÀgÀ «dAiÀÄ£ÀUÀgÀ - 560023, ºÁUÀÆ nÃZÀgï ¥ÉÆÃ£ï £ÀA.7411025108 DVzÀÄÝ, £À£Àß ªÉƪÀÄäUÀ D ¸ÀÆÌ¯ï £À°è 10£Éà vÀgÀUÀwAiÀÄ°è «zÁå¨Ás å¸À ªÀiÁqÀÄwÛzÀÄÝ, ¢£ÀAPÀ: 30-01-2018 gÀAzÀÄ ¨ÉAUÀ¼ÀÆj¤AzÀ HjUÉ CAzÀgÉ CQ̪ÀÄAZÀ£ÀºÀ½îUÉ §A¢zÀÄÝ, ¢£ÁAPÀ:04-2-18 gÀAzÀÄ ¨É½UÉÎ 8-30 UÀAmÉ CQ̪ÀÄAZÀ£ÀºÀ½î¬ÄAzÀ ¨ÉAUÀ¼ÀÆjUÉ ºÉÆÃUÀĪÀÅzÁV ºÉý ºÉÆÃVgÀÄvÁÛ£É. ºÀÄqÀÄUÀ£À ºÀwÛgÀ EzÀÝ ¥ÉÆÃ£ï £ÀA/7022064092 EzÀÄÝ, 4£Éà vÁjÃQ¤AzÀ ¥ÉÆãÀ ªÀiÁrzÀgÆ À ¹éZï D¥sï DVgÀÄvÀÛzÉ. ¸ÀÆÌ°UÉ ºÉÆÃV «ZÁj¹zÀgÉ ¸ÀÆÌ°UÉ §A¢gÀĪÀÅ¢®è. £ÁªÀÅ J¯Áè PÀqÉUÉ «ZÁj¹zÀgÉ J®Æè PÁt°®è. £ÀªÀÄä HjUÀÆ §A¢gÀĪÀÅ¢®è. EªÀ£ÀÄ ºÉÆÃUÀĪÁUÀ ªÉÄgÀÆ£ï PÀ®gï CAV §Æèöå f£ïì ¥ÁåAlï PÀ¥ÀÄà PÀ®gï PÁ¯ÉÃdÄ ¨ÁåUï ªÀÄvÀÄÛ EªÀ£ÀÄ 5-5" JvÀÛgÀ JqÀ¨sÀÄd ºÁUÀÆ §®¨sÀÄdzÀ ªÉÄÃ¯É UÁAiÀÄzÀ UÀÄgÀÄvÀÄ EzÉ ºÁUÀÆ PÀ¥ÀÄà ªÀÄZÉÑ EzÉ, ªÀÄvÀÄÛ ºÉÆmÉÖ ªÉÄÃ¯É UÁAiÀÄzÀ UÀÄgÀÄvÀÄ EzÉ. PÁ°£À°è UÁAiÀÄzÀ ªÀÄZÉÑ ¸ÀºÀ EgÀÄvÀÛzÉ. EzÀĪÀgÉUÆ À ºÀÄqÀÄPÀÄwÛzÀÄÝ PÁgÀt vÀqÀªÁV zÀÆgÀÄ Cfð ¤ÃrgÀÄvÉÛêÉ. zÀAiÀĪÀiÁr £ÀªÀÄä ªÉƪÀÄäUÀ£À£ÄÀ ß ºÀÄqÀÄQ¹ PÉÆqÀ¨ÉÃPÁV F ªÀÄÆ®PÀ PÉýPÉƼÀÄîvÉÛêÉ.
¢£ÁAPÀ:11-2-18."
The complaint then becomes a crime in crime No.59 of 2018 initially for offences punishable under Section 363 of the IPC before the 7 K.R.Pet Town Police Station. Nobody was named as accused at the time of registration of crime; it was a missing complaint against unknown persons. Due to sensitivity of the complaint, the matter was entrusted to the Crime Investigation Department (CID). The CID conducts investigation and the investigation revealed horrendous acts of several accused, one of whom is the petitioner who was shown as accused No.4, owner of Shivam Vishwa Hospital, Bengaluru.
8. The allegation against the petitioner is that the petitioner has unauthorisedly conducted a reassignment of sex of the victim Chandan Kumar, without consent and Chandan Kumar at that point in time was a minor aged 14 years. On filing of the charge sheet and dragging the petitioner into the proceedings, the petitioner immediately rushes to this Court in Criminal Petition No.8213 of 2019 contending that the petitioner was wrongly implicated and she has not performed any surgery. It was the contention of the petitioner in the aforesaid petition that the petitioner has been implicated without following the guidelines laid down by the Apex Court in the case of JACOB MATHEW V. STATE OF PUNJAB AND 8 ANOTHER - (2005) 6 SCC 1. A co-ordinate Bench of this Court declines to entertain the petition and disposed of the matter permitting the petitioner to avail all such remedies as are available in law. The order of the co-ordinate Bench reads as follows:
"13. As regards the decisions relied upon by the learned counsel for the petitioner in the cases of Jacob Mathew (supra) and Martin F. D'Souza (supra), which have been extracted hereinabove. It is clear from a reading of the extracted portion that it is only when there is criminal rashness and/or criminal negligence which is alleged against the Doctor that the opinion of another Doctor is required to be obtained which could establish whether there is in fact criminal rashness or negligence or whether the treatment mode adopted by the Doctor is the normal and regular treatment mode which does not amount to rashness or negligence. In the present matter, there is no allegation of any rashness or negligence. In fact, the allegation is that there was a successful sex change operation conducted by the petitioner, changing the sex of Chandan Kumar from male to female.
14. The allegations are that the said operation has been conducted without the consent of the said Chandan Kumar and that he could not have concern that since he was a minor at that point of time. These are matters which are required to be strictly left for trial with all defences left open for the petitioner to be agitated before the trial Court. I am unable to come to a conclusion that there are no offences which have been made out, there are no grounds which have been made out for quashing of the proceedings, as such, reserving liberty to the petitioner to raise all the defences before the trial Court, the petition stands dismissed
15. In view of disposal of the main petition, all pending applications do not survive for consideration. Hence, the same are dismissed."9
Liberty was reserved in the petition to raise all contentions at the appropriate forum. It is then the petitioner files an application seeking her discharge from array of accused, which comes to be rejected by order dated 09-11-2022. The reasons rendered to reject the prayer reads as follows:
".... .... ....
5. Herein, the accused No.4 contends that she has not conducted surgery. So, it requires oral evidence in respect of procedural aspect of hospital authority for confronting the documents produced before the Court. Appreciating the same, herein, it shows the accused No.4 has to prove her innocence in exercise of her duty as a doctor.
6. Further, the prosecution alleges that accused No.4 even knowing the age of C.W.2, has conducted surgery on him without verifying the document. It needs evidence and it can be adjudicated only on merits of the case. Truly, the Investigating officer has furnished certain documents in respect of proof of the case. Whereas, these documents need to be confronted before the Court and the Court cannot presume the innocence of accused No.4 at this stage.
7. Moreover, appreciating the order of Hon'ble High Court of Karnataka, wherein liberty was reserved to accused No.4 to raise all the defences before the trial Court. So, in such aspect, certainly, it needs adjudication on merit. Hence, I hereby reject the prayer of accused No.4."
It is the aforesaid order of declining to discharge is what drives the petitioner to this Court, yet again.
10
9. The learned counsel appearing for the petitioner seeks to take shelter under Section 81 of the IPC. Section 81 of the IPC reads as follows:
"81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.--Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
Explanation.--It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm."
Section 81 protects an act that is performed which is likely to cause harm but done without criminal intent to cause such harm. Section 81 is an exception to the provisions in the IPC that deal with imposition of punishment for various offences committed by an accused - one proven guilty. Taking shelter under Section 81, the petitioner cannot cover herself with the shield of protection from any criminal proceedings.
10. The act of the petitioner is, other accused who according to the learned counsel for the petitioner were transgenders bring a 11 minor boy, the grandson of the 2nd respondent, to her and asked the petitioner to perform a reassignment of sex surgery known as sex change surgery. The petitioner performs the said surgery, changes orientation of the victim from male to female. The surgery, though at that point in time, did not reveal any problem, but the minor victim after the conduct of the surgery goes into several problems in which again surgeries had to be conducted and finally the victim succumbs to those surgeries and dies. In all these acts it is the act of the petitioner that has generated the problem.
11. The performing of surgery of reassignment of sex, that too, without any consent from any of the elder members of the family cannot be pardoned under the shelter of Section 81 of the IPC. The petitioner should have been aware of the fact that she is without consent playing with surgical instruments on a body of minor performing major surgery. Merely because at the time when the surgery was conducted it was successful, it does not mean that aftermath of the surgery should be completely ignored and the petitioner be left of the hook of any problem. The offence alleged against the petitioner, in particular is, knowing fully well that the 12 victim was aged 14 years, for the purpose of gaining hefty fee, the petitioner has indulged in the said act and, therefore, the offences under the POCSO Act and the offences under the Juvenile Justice Act are laid against the petitioner. If these acts of the petitioner are brushed aside as had been done without criminal intent, it will have a chilling effect on such acts that the Doctors indulge in for the purpose of money.
12. The contention of the learned counsel for the petitioner that she would come within the protective umbrella of Sections 79, 81 or 92 of the IPC is noted only to be rejected, as it is fundamentally flawed. Taking umbrage under those provisions of law and seeking benefit of obliteration of the crime cannot be accepted, they are exceptions. Exceptions in any provision cannot override the provision which seek to impose certain punishment, not in all circumstances, but those provisions that the petitioner seeks to rely on to take such benefit, the provisions afore-quoted. 13
13. In the teeth of the aforesaid facts, I do not find any warrant to interfere with the proceedings against the petitioner. It is for the petitioner to come out clean in a full blown trial.
14. For the aforesaid reasons, the petition lacking in merit stands dismissed.
Sd/-
JUDGE bkp CT:SS