Gujarat High Court
Mahendrabhai Lallubhai Patel vs State Of Gujarat on 17 April, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/12267/2013 ORDER DATED: 17/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 12267 of 2013
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MAHENDRABHAI LALLUBHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
MR LB DABHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 17/04/2023
ORAL ORDER
1. By this application under Section 482 of the Code of Criminal Procedure, the applicant - original accused no. 2 Dr. Mahendra Patel, seeks to invoke inherent powers of this Court praying for quashment of FIR being I.CR. No 52 of 2013, registered with Khatodara Police Station, Surat, for the offences punishable under Sections 376, 506(1), 312, and 201 of the Indian Penal Code.
2. Facts and circumstances giving rise to file present application are that, the applicant Dr. Mahendra Patel is registered Medical Practitioner and having maternity home in the name of 'Pramukh Hospital' at Surat. The FIR filed by the prosecutrix for the offence of Section Page 1 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023 NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined 376, 506(1) against the accused no. 1, who had allegedly committed raped upon her without will and her consent. It is alleged by the victim that, the accused no. 1 is her maternal uncle aged about 60 years old, lured her that he will do something for her marriage and under that influence, she had been physically exploited and between 2004 to 2012, the accused no. 1 indulged in physical relationship with her without her consent. It is further alleged that, during the period of the offence, she was conceived four times and she was taken at different hospitals for abortion purpose. The FIR in question came to be filed on 26.02.2013. Initially, the applicant is not named in the FIR. During the course of investigation, it was revealed that, the victim was twice taken to hospital of present applicant herein for abortion and accordingly, he performed the abortion at the instance of accused no. 1. It is further alleged against the applicant that, he failed to maintain proper case records and after the act of abortion, the papers were destroyed so as to screen the principal accused.
3. In the aforesaid facts, the applicant herein along with principal accused chargesheeted for the offences as referred above.
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4. Mr. Mahesh Poojara, learned advocate for Mr. Ashish Dagli, learned counsel appearing for and on behalf of the applicant, would submit that, the applicant has been falsely implicated in the offence. There is distinction between term 'miscarriage' and 'abortion'. The applicant is running maternity home and abortion with the consent of the victim and in the presence of her near relatives carried out, as hospital is approved by the Government and same is done under the Medical Termination of Pregnancy Act, 1971.
5. In the aforesaid contention, learned counsel Mr. Poojara submitted that, Section 312 of the IPC which provides the punishment of causing of miscarriage with the consent of a woman, is not attracted in the present case. Thus, the contents of the FIR as they stand do not make out an offence within the meaning of Sections 312 and 201 of the IPC. Referring to the statutory provisions of the Medical Termination of Pregnancy Act, 1971, the counsel Mr. Poojara submitted that, if the pregnancy is terminated by the Doctor in accordance with the provisions of the Act, then, doctor cannot be held liable of any offence under the IPC or under any other law.
6. Relying on the judgment of the Apex Court in the case of State of Haryana vs. Bhajan Lal reported in Page 3 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023 NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined (1992) Supp 1 SCC 335, he would urge that, when there is a legal express bar, to the institution of the proceedings, the criminal proceedings filed contrary to the statutory provisions, liable to the quashed.
7. On the other hand, learned counsel Mr. Deep Vyas and State Counsel Mr. L.B. Dabhi, vehemently opposed the application and submitted that, the provision of Medical Termination of Pregnancy Act, 1971 is not applicable to the facts of the present case. There is a specific allegation made in the FIR that, the accused caused miscarriage to her with child without consent of her. The contentions raised by the applicant herein relate to the disputed question of facts, which cannot be adjudicated at this stage and it is tried and tested at the time of trial and therefore, the application is misconceived and liable to be dismissed.
8. Having heard the learned counsel for the respective parties and upon perusal of the allegations leveled in the FIR, the issue falls for my consideration is whether the contents of the FIR and chargesheet as they stand, make out an offence within the meaning of Sections 312 and 201 of the IPC?
9. The applicant herein is Medical Practitioner doing his practice in the name of 'Pramukh Hospital' at Surat.
Page 4 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined He has been charged for the offence of causing miscarriage and causing disappearance of evidence with an intention of screening the offender. It is not in dispute that, the State Government granted recognition to the applicant for undertaking the work of Medical Termination of Pregnancy as provided under the Act 1971. The admitted prescription dated 01.02.2012, produced at page-39, of this petition shows that, after detection of the pregnancy, the victim came to the hospital of the applicant with the complaint of pain in lower abdomen and bleeding. She was advised to Dilation and Curettage and with the consent of her and other relatives present at the hospital, the applicant performed DNE procedure and removed the material from the uterus.
10. In the aforesaid facts, this Court is of the opinion that, the ingredients of Section 312 so far as applicant is concerned, are not attracted, as being a Doctor, he did not have cause miscarriage to the victim. The Section 312 deals with the causing of miscarriage with consent of the woman. The Medical Termination of Pregnancy Act, 1971 provides for medical termination by registered medical practitioner. In the facts of present case, when victim was taken to the hospital of the applicant, there was already miscarriage found to her by the applicant and accordingly, he performed Page 5 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023 NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined the necessary procedure. As per the medical terminology, three distinct terms i.e. abortion, miscarriage and pre-mature labor are used to denote the expulsion within the first three months of pregnancy before the placenta is found, miscarriage is used when the fetus is expelled from the forth to seven month of gestation before it is visible, while pre- mature labor is a delivery of a visible child possibly capable of doing reared, before it has become fully mature.
11. The scope and power of the High Court to quash the first information report is well settled. The power under Section 482 of the Code has to be exercised sparingly and cautiously to prevent the abuse of process of Court and to secure the ends of justice. The High Court should refrain from giving a prima-facie decision, unless there are compelling circumstances to do so. Taking the allegations, as they are, without adding or subtracting anything, if no offence is made out, only then, the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C.
12. The Apex Court in case of State of Haryana vs. Bhajan Lal reported in (1992) Supp 1 SCC 335 has laid down the guidelines that must be adhered to Page 6 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023 NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph reads thus:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.Page 7 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023
NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
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13. In Zandu Pharmaceuticals Works Ltd Vs. M.D. Sharaful Haque (2005) 1 SCC 122, the Apex Court, has held that, it would be an abuse of process of court to allow any action which would result in injustice and prevent promotion of justice.
14. In light of the settled proposition of law on the subject quashing of the criminal proceedings and applying to the facts and circumstances of the present case, this Court is of the opinion that, the victim has not alleged against the applicant herein that, the applicant caused miscarriage though there was consent on her part. It needs to be noted that, four times, she had gone the procedure of abortion and /or miscarriage at different hospitals. Thus, prima-facie, it appears that the investigation agency with ulterior motive, without sufficient evidence, implicated the applicant Doctor in the alleged offence. The case papers of the victim placed on record by the applicant herein, shows that the allegations of destroying the evidence to screen the offender are also not tenable and therefore, ingredients of Section 201 also not attracted.
15. In view of the aforementioned discussions made hereinabove, the allegations made in the first information report and chargesheet are taken at their Page 9 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023 NEUTRAL CITATION R/CR.MA/12267/2013 ORDER DATED: 17/04/2023 undefined face value and accepted in their entirety do not prima- facie constitute any offence or a make out a case against the applicant and therefore, in order to prevent the misuse of process of law and court, this is the fit case to invoke the inherent powers under Section 482 of the Cr.P.C to quash the criminal proceedings.
16. Resultantly, this application is allowed and the impugned FIR being I.CR. No 52 of 2013, registered with Khatodara Police Station, Surat filed against present applicant is hereby quashed and set aside and all other proceedings arising out of the aforesaid FIR are also quashed and set aside. Direct service permitted.
(ILESH J. VORA,J) P.S. JOSHI/25/04 Page 10 of 10 Downloaded on : Sun Sep 17 18:35:31 IST 2023