Bombay High Court
Dr. Bhagyashri W/O. Milind Dunakhe vs The State Of Maharashtra on 11 September, 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.330 OF 2018
Dr. Bhagyashri w/o Milind Dunakhe,
Age : 40 years, Occu. Medical Practitioner,
R/o Plot No.9, Dunakhe Hospital,
In front of District and Sessions Court,
Aurangabad, Taluka and District
Aurangabad PETITIONER
VERSUS
The State of Maharashtra,
through the Medical Superintendent,
Sub-District Hospital, Gangapur,
Taluka Gangapur, Dist. Aurangabad RESPONDENT
AND
CRIMINAL WRIT PETITION NO.496 OF 2018
Dr. Mrs. Madhuri w/o Ashish Kothari,
Age : 39 years, Occu. Medical Practitioner,
R/o Kothari Hospital, Vedantnagar,
Aurangabad PETITIONER
VERSUS
The State of Maharashtra RESPONDENT
----
Mr. Rajendra S. Deshmukh, Advocate for the petitioner
in Cri. Writ Petition No. 330/2018
Mr. S.G. Ladda, Advocate for the petitioner in
Cri. Writ Petition No.496/2018
Ms. R.P. Gaur, A.P.P. for the respondent/State
in both Writ Petitions
----
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CORAM : SANGITRAO S. PATIL, J.
JUDGMENT RESERVED ON : 28th AUGUST, 2018
JUDGMENT PRONOUNCED ON : 11th SEPTEMBER, 2018
COMMON JUDGMENT :
Rule, made returnable forthwith. With the
consent of the learned counsel for the petitioners and
the learned A.P.P., heard finally.
2. Both of the above numbered Criminal Writ
Petitions have arisen out of the common judgment and
order dated 15th January, 2018, passed by the learned
Additional Sessions Judge, Vaijapur in Criminal
Revision Petition Nos.9 of 2015 and 21 of 2015,
confirming the common order dated 17th January, 2015,
passed by the learned Judicial Magistrate, First Class
(Court No.2), Gangapur below applications (Exh.3-A, 3-B
and 6) in Regular Criminal Case (RCC) No.395 of 2013,
by which the applications filed by the petitioners for
their discharge of the offences punishable under
Sections 5 (2) (3) and (4) of the Medical Termination
of Pregnancy Act, 1971 ("MTP Act", for short), under
Section 6 of the Maharashtra Nursing Homes Registration
Act, 1949 ("MNHR Act", for short) and under Sections
109, 111 and 113 of the Indian Penal Code ("IPC", for
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short) were rejected.
3. It is alleged that accused No.1 Dr. Mahendra
Jain started Pooja Nursing Home at Ranjangaon
(Shenpunji), Taluka Gangapur, District Aurangabad and
did not renew the registration thereof. He further
started the Centre for Medical Termination of Pregnancy
("MTP", for short) in the names of the present
petitioner Dr. Bhagyashri Dunakhe (accused No.6) and
accused No.5 namely Dr. Sandhya Pantoji and carried out
MTPs with the help of the petitioner Dr. Madhuri
Kothari (accused No.7). According to the prosecution,
the petitioners abetted accused No.1 Dr. Mahendra Jain
in running MTP Centre unauthorizedly.
4. Initially, the chargesheet was filed against
Dr. Mahendra Jain (accused No.1) and three others for
the above mentioned offences on 27th July, 2013. After
conducting further investigation, supplementary
chargesheet came to be filed against Dr. Sandhya
Pantoji and the present petitioners on 2nd October,
2014 for the same offences.
5. The learned counsel for the petitioners submit
that both the petitioners are qualified registered
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Medical Practitioners, as defined under Section 2 (d)
of the MTP Act. The MTP Centre was duly registered by
Dr. Sandhya Pantoji, who was M.D. (Gynecology) and as
such a Registered Medical Practitioner. They submit
that though the petitioners, in fact, did not conduct
MTPs in the MTP Centre of Dr. Sandhya Pantoji, but even
if it is accepted for a while that they conducted MTPs,
they being the qualified Registered Medical
Practitioners and the MTPs being conducted at the MTP
Centre duly approved by the Government, they cannot be
connected with the offences punishable under Sections 5
(2) and (3) of the MTP Act.
6. They further submit that Pooja Nursing Home
seems to have been registered in the name of accused
No.1 Dr. Mahendra Jain. The petitioners had no concern
whatsoever with Pooja Nursing Home. Therefore, if the
registration certificate of the said Nursing Home was
not renewed by accused No.1, the petitioners cannot be
connected with the offence punishable under Section 6
of the MNHR Act.
7. The learned counsel for the petitioners
further submit that there is no provision in the MTP
Act for renewal of the registration certificate for MTP
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Centre. As per Rule 6 of the Maharashtra Termination
of Pregnancy Rules, 2003 ("MTP Rules", for short), the
place approved under Rule 5 has to be inspected by the
Chief Medical Officer of the District as often as may
be necessary with a view to verify whether termination
of pregnancies is being done therein under safe and
hygienic conditions. As per Rule 7, if, after
inspection of any place approved under Rule 5, the
Chief Medical Officer of the District is satisfied that
the facilities specified in Rule 5 are not being
properly maintained therein and the termination of
pregnancy at such place cannot be made under safe and
hygienic conditions, he shall make a report of the fact
to the committee giving the detail of the deficiencies
or defects found at the place and the committee might,
if it is satisfied, suspend or cancel the approval
provided that the committee should give an opportunity
of making representation to the owner of the place
before the certificate issued under Rule 5 is
cancelled.
8. The learned counsel for the petitioners submit
that the MTP Centre in question has been started under
the certificate of approval dated 9th March, 2006. It
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was inspected by the Chief Medical Officer of the
district from time to time. It is only on 13 th June,
2012 that the informant namely Dr. Dilip Dange, Medical
Superintendent, Sub-District Hospital, Gangapur found
the deficiencies in the MTP Centre. Instead of Dr.
Sandhya Pantoji and the petitioner Dr. Bhagyashri
Dunakhe, the petitioner Dr. Madhuri Kothari was found
to have conducted the MTPs in the said Centre.
According to them, if any unauthorised Medical
Practitioner conducts MTP, he/she would be liable to be
punished under the provisions of the MTP Act. Since
Dr. Madhuri Kothari was a Registered Medical
Practitioner, it cannot be said that she committed any
offence under the said Act.
9. According to the learned counsel, the
petitioners cannot be said to have abetted Dr. Mahendra
Jain (accused No.1) in running MTP Centre
unauthorizedly and conducting MTPs therein. These
petitioners have been falsely implicated in this case.
No prima facie case is made out against them. If they
are asked to face the trial, it would be nothing but an
abuse of process of law. The learned Magistrate as
well as the learned Additional Sessions Judge did not
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consider the facts of the case properly and wrongly
rejected the applications of the petitioners for their
discharge of the above mentioned offences. The learned
counsel, therefore, pray that the petitioners may be
discharged of the said offences.
10. The learned A.P.P. strongly resisted the
petitions. She submits that Pooja Nursing Home is
registered in the name of accused No.1 Dr. Mahendra
Jain as its owner, while in the MTP Centre approval
certificate, accused No.5 Dr. Sandhya Pantoji is shown
as the owner of Pooja Nursing Home. In the certificate
of approval of MTP Centre, the name of the petitioner
Dr. Bhagyashri Dunakhe is shown as the Surgeon. The
name of the petitioner Dr. Madhuri Kothari is not
mentioned in the certificate. However, from the papers
of investigation and the statements of the witnesses,
it would be clear that instead of Dr. Sandhya Pantoji
(accused No.5) and the petitioner Dr.Bhagyashri
Dunakhe, the petitioner Dr. Madhuri Kothari was
conducting MTPs in the said Centre. Since the name of
Dr. Madhuri Kothari was not mentioned in the
certificate, she was not authorized to conduct MTPs in
that Centre. The learned A.P.P. submits that Dr.
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Bhagyashri Dunakhe got the certificate registered by
showing her to be the Surgeon, who was going to conduct
MTPS, but did not actually conduct MTPs. She
facilitated accused No.1 Dr. Mahendra Jain and Dr.
Madhuri Kothari to conduct MTPs unauthorizedly.
Therefore, Dr. Bhagyashri Dunakhe has been rightly
connected with the offence of abetting accused No.1 Dr.
Mahendra Jain and Dr. Madhuri Kothari in committing the
offence under Section 5 (2), (3) and (4) of the MTP
Act. There is strong prima facie case made out against
the petitioner Dr. Bhagyashri Dunakhe for the said
offence.
11. The learned A.P.P. further submits that since
the name of Dr. Madhuri Kothari was not mentioned in
the certificate of approval, she cannot be said to be
an authorized Medical Practitioner to conduct MTPs in
the MTP Centre standing in the name of Dr. Sandhya
Pantoji. As such, a strong prima facie case is made
out against Dr. Madhuri Kothari under Section 5 (2) of
the MTP Act.
12. The learned A.P.P. submits that there are
sufficient grounds to proceed against the petitioners
for the above mentioned offences. The learned
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Magistrate and the learned Additional Sessions Judge
have rightly rejected the claim of the petitioners for
their discharge of the above mentioned offences. She
supports the impugned orders and prays that the Writ
Petitions may be dismissed.
13. As per Section 3 (1) of the MTP Act,
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 the provisions
of this Act.
14. As per Section 4 of the MTP Act, no
termination of pregnancy shall be made in accordance
with the Act at any place other than -
(a) a hospital established or maintained by
Government, or
(b) a place for the time being approved for
the purpose of this Act by Government........
15. Sub-section (2) of Section 5 of the MTP Act
prescribes punishment for termination of pregnancy by a
person who is not a Registered Medical Practitioner,
while sub-section (3) provides that whoever terminates
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any pregnancy in a place other than that mentioned in
section 4 shall be punishable.
16. From the above provisions, it is crystal clear
that if a Registered Medical Practitioner terminates
pregnancy in accordance with the provisions of the MTP
Act at any place for the time being approved for the
purpose of this Act by the Government or the competent
authority, it would not be any offence.
17. Registered Medical Practitioner is defined in
Section 2(d) of the MTP As under :-
"Registered Medical Practitioner" means a
medical practitioner who possesses any
recognised medical qualification as defined in
clause (h) of section 2 of the Indian Medical
Council Act, 1956, whose name has been entered
in a State Medical Register and who has such
experience or training in gynecology and
obstetrics as may be prescribed by rules made
under this Act.
18. There is no dispute that the petitioners Dr.
Bhagyashri Dunakhe and Dr. Madhuri Kothari, each, are
having qualification M.B.B.S., D.G.O. Their names have
been registered in the State Medical Register. There
is no dispute that they have requisite experience as
well as training in gynecology and obstetrics as
prescribed under Rule 4 of the MTP Rules. As such,
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they are Registered Medical Practitioners as defined in
Section 2(d) of the MTP Act.
19. The MTP Centre has been registered in the name
of Dr. Sandhya Pantoji, who is M.D. (Gynecology), as
the owner thereof as seen from the certificate of
approval dated 9th March, 2006 issued by the Joint
Secretary, Public Health Department, Government of
Maharashtra. The papers of investigation show that Dr.
Sandhya Pantoji had filed an application in the
prescribed form for seeking approval to the proposed
MTP Centre. In Clause No. (8) of that application, she
had given the names of the petitioners Dr.Bhagyashri
Dunakhe and Dr.Madhuri Kothari as the registered
Medical Practitioners employed in the MTP Centre, who
were having the requisite qualifications and experience
in Gynecology and Obstetrics. In Clause No. (10), again
the names of both of these petitioners were mentioned
as the full-time trained Doctors working at the Centre.
The inspection report of the Civil Surgeon shows that
Dr.Bhagyashri Dunakhe was named against Clause No. (4)
as the Registered Medical Practitioner having
experience in Gynecology and Obstetrics, while in
Clause No.(6), the petitioner Dr. Madhuri Kothari was
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shown as the Assistant having the requisite
qualification and experience. In Clause No.(8) also,
there is reference of the petitioner Dr. Madhuri
Kothari as the person assisting the MTP with minimum
three years experience. It is, thus, clear that Dr.
Sandhya Pantoji had mentioned the names of both of
these petitioners in her application as the persons who
were going to conduct MTPs in the proposed MTP Centre.
20. As per Rule 5 (2) of the MTP Rules, every
application for the approval of a place shall be in
Form "A" and shall be addressed to the Chief Medical
Officer of the District. Form "A" does not contain any
clause asking for the names of the Registered Medical
Practitioners who would conduct MTPs therein.
21. In the present case, as stated above, both the
petitioners are Registered Medical Practitioners. They
were authorized to conduct MTP in any approved MTP
Centre. Even if it is accepted that Dr. Madhuri
Kothari conducted MTPs in the MTP Centre standing in
the name of Dr. Sandhya Pantoji, the said Centre being
approved one, she cannot be said to have committed any
offence either under sub-section (2) or sub-section (3)
of Section 5 of the MTP Act.
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22. It is alleged that the petitioner Dr.
Bhagyashri Dunakhe and Dr. Sandhya Pantoji got the MTP
Centre approved, but they did not actually conduct
MTPs. They abetted accused No.1 Dr. Mahendra Jain to
conduct MTPs unauthorizedly. I do not find any
substance in these allegations. As per Rule 6 of the
MTP Rules, a place approved under rule 5 may be
inspected by the Chief Medical Officer of the District,
as often as may be necessary with a view to verify
whether termination of pregnancies is being done
therein under safe and hygienic conditions.
23. As per Rule 7, if, after inspection of any
place approved under rule 5, the Chief Medical Officer
of the District is satisfied that the facilities
specified in rule 5 are not being properly maintained
therein and the termination of pregnancy at such place
cannot be made under safe and hygienic conditions, he
shall make a report of the fact to the committee giving
the detail of the deficiencies or defects found at the
place and the committee may, if it is satisfied,
suspend or cancel the approval provided that the
committee shall give an opportunity of making
representation to the owner of the place before the
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certificate issued under rule 5 is cancelled.
24. It is stated that the MTP Centre in question
was registered on 9th March, 2006. As per Rule 6 of the
MTP Rules, it must have been inspected by the Chief
Medical Officer of the district periodically. He must
have inspected the registers maintained in the said
Centre. However, it is strange to note that the Chief
Medical Officer of the district never found any
deficiencies or defects in the said Centre. It is only
on 13th June, 2012 that the said Centre was inspected by
Dr. Dilip Dange, the Medical Superintendent and it was
alleged that the petitioner Dr. Bhagyashri Dunakhe did
not conduct MTPs herself but abetted Dr. Mahendra Jain
(accused No.1) in conducting MTPs unauthorizedly though
the said Centre was approved on her giving undertaking
that she would conduct MTPs therein. It seems that Dr.
Sandhya Pantoji had given the name of the petitioner
Dr. Bhagyashri Dunakhe in her application for approval
of the Centre and her name accordingly was mentioned in
the approval certificate. There is nothing on record to
show that Dr. Bhagyashri Dunakhe was gaining anything
wrongfully from Dr. Mahendra Jain for facilitating him
to conduct MTPs in the said Centre. No patient has
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made any allegation against Dr. Bhagyashri Dunakhe.
Prima facie, Dr. Bhagyashri Dunakhe cannot be said to
have abetted Dr. Mahendra Jain to do so. On the
contrary, the concerned Medical Officer, who was
supposed to periodically inspect the said Centre, seems
to be responsible in allowing Dr. Mahendra Jain to
conduct MTPs therein because even after inspecting the
said Centre, no deficiency or defect was brought by him
to the notice of the Committee as required under Rule 7
(1) of the MTP Rules.
25. So far as the offence under Section 6 of the
MNHR Act is concerned, it will be against Dr. Mahendra
Jain only since he is shown to be the owner of Pooja
Nursing Home. In case he fails to renew registration
thereof every year as required under sub-section (1) of
Section 4 of the MNHR Act, the present petitioners
cannot be connected with the offence under Section 6 of
the said Act.
26. In the above facts and circumstances of the
case, prima facie, no offences are disclosed against
the petitioners. They have been wrongly connected with
the above mentioned offences. The learned Magistrate
as well as the learned Additional Sessions Judge did
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not consider the facts of the case in their proper
perspective and wrongly held that there are sufficient
grounds to frame charges against the petitioners for
the above mentioned offences. In the circumstance,
asking the petitioners to face the ordeal of trial
would be nothing but an abuse of process of law. For
the reasons mentioned hereinabove, the impugned orders
cannot be said to be legal, proper and correct. They
are liable to be quashed and set aside. In the result,
I pass the following order:-
ORDER
(i) The Writ Petitions are allowed.
(ii) The impugned orders are quashed and set aside.
(iii) The petitioners are discharged of the offences alleged against them.
(iv) The bail bonds of the petitioners are cancelled. They are set at liberty.
(v) Rule is made absolute in the above terms.
(vi) The Writ Petitions are disposed of.
[SANGITRAO S. PATIL] JUDGE npj/criwp330-496-2018 ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:51:46 :::