Bombay High Court
Dr Shailaja Kumarsingh Kadam vs The State Of Maharashtra Police Station ... on 4 February, 2025
2025:BHC-NAG:1064
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION No.68 OF 2023
Dr. Shailaja w/o. Kumarsingh Kadam,
Aged about 79 years,
Occupation at present retired Medical Practitioner,
R/o. Vasant Nagar, Arvi,
Tahsil Arvi, District Wardha. : APPLICANT
...VERSUS...
1. The State of Maharashtra,
Through Police Station Officer,
Arvi Police Station, Arvi,
District Wardha.
2. XYZ, Complainant in Crime No.25 of 2022,
registered at Arvi Plice Station,
Arvi, Distt. Wardha. : NON-APPLICANTS
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Mr. Chinmay Dharmadhikari and Mr. Raghav Bhandarkar, Advocate for
applicant.
Mrs. Swati Kolhe, Additional Public Prosecutor for non-applicant No.1/State.
Ms. Akanksha Wanjari, Advocate for non-applicant No.2 (Appointed).
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 4th FEBRUARY, 2025.
JUDGMENT :
1. By this petition the applicant has challenged the order dated 14.2.2023, passed by the Special Judge, Wardha, below Exhibit-60 rejecting the discharge application filed under Section 227 of the Code of Criminal Procedure in Special Case No.36/2022.
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2. Brief facts which are necessary to dispose of the present revision application are as under :
The applicant is a Medical Practitioner but due to old age she has stopped her practice since 10 to 11 years. She is prosecuted as offence is registered at Arvi Police Station against her and seven other accused under Sections 376(3), 376(2)(n), 312 and 313, 315, 341, 201 and 506 read with Section 34 of the Indian Penal Code and under Sections 4,6 and 21 of the Protection of Children from Sexual Offences Act, 2012. After completion of investigation charge-sheet is submitted and case is numbered as Special Case No.36/2022.
3. As per the allegations on 1.1.2022 the minor daughter of the complainant complained of stomachache, but she has not taken her in the hospital. On the next day again victim made a similar complaint, therefore, the informant mother has taken her to the private hospital of Dr. Gulhane, wherein it was revealed that minor daughter of complainant is pregnant of five months. It further revealed child in conflict with law subjected her for forceful sexual assault when she had been to answer the nature's call and thereafter repeatedly on multiple occasions. On 3.1.2022 co-accused Kishor and Nalu took the victim to Dr. Rekha Kadam, who is daughter in law of the present applicant for aborting the child. Dr. Rekha Kadam admitted the child and gave her medicine which led to termination a pregnancy. As the applicant is the owner of Kadam Hospital and the Nursing Centre, she was made an accused.
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4. The present applicant filed an application under Section 227 of Code of Criminal Procedure for discharge contending that she is the owner of medical termination of pregnancy centre situated at Kadam Hospital and the same is registered in her name. However, now her son Neeraj Kadam and daughter in law Dr. Rekha Kadam are looking after the said Centre. Now she is not practicing and except her ownership of the Hospital she is not concerned with the alleged offence. The allegation of causing miscarriage or abortion is against co-accused Dr. Rekha Kadam. None of the statements discloses that either present applicant is visiting the Hospital or looking after the affairs of the Hospital no offence is made out against her. As far as the offence under Sections 376(3), 376(2)(n), 341 of the Indian Penal Code and under Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 are not attracted against her. The offence punishable under Section 312 is regarding causing miscarriage. Section 313 is causing miscarriage without woman's consent and Section 315 relates to act done with intent to prevent child being born alive or to cause it to die after birth. None of these offences are attracted against her as none of the witnesses have stated that the present applicant has caused any miscarriage or abortion. As far as the offence under Sections 201 and 506 are concerned are also not applicable as there is no single allegation against her. None of the witnesses have stated that either the present applicant was present at the time of miscarriage or having any knowledge of the admission of the victim at the centre or causing miscarriage to her. The statements of the employees of the Hospital also J-cri.revn68.23.odt 4/16 nowhere reflect that either applicant is practicing or aware of any of the activities. Even offence under Section 21 is also not made out against her as none of the statements discloses that though she was aware about the fact of sexual assault on victim she has not reported the said incident to the Police. Thus, for all above grounds, as no prima facie case is made out against the present applicant, she be discharged from the charges.
5. Said grounds raised in the petition are strongly opposed by the State on the ground that during the investigation it revealed that applicant is the owner of said medical termination of pregnancy centre. The Investigating Agency has conducted the seizure panchanama. At the time of spot inspection in the area of Dr. Kadam's Hospital at backside in gas chamber one skull and 54 bones were found and huge biomedical waste material was also found. The certificate of registration of MTP Centre in Kadam Hospital is not cancelled till today. The illegal termination of pregnancy of the victim is carried out without consent of the parents and without following proper procedure. Thus, the material on record sufficiently shows the involvement of the present applicant in the alleged offence. In view of that, revision being devoid of merits, liable to be dismissed.
6. Heard Mr. Chinmay Dharmadhikari, learned counsel for the applicant and Mrs. Swati Kolhe, learned Additional Public Prosecutor for the non-applicant No.1-State. Learned counsel for the applicant took me through the entire statements of the witnesses and submitted that the victim J-cri.revn68.23.odt 5/16 allegedly sexually assaulted by son of accused Nos.1 and 2. The accused No.3 Dr. Rekha is the daughter in law of the present applicant who allegedly terminated the pregnancy of the minor victim. The only allegations against the present applicant is that said medical termination of pregnancy centre is in the name of present applicant. The applicant has stopped practice long back. Even applicant is not named in the F.I.R. There is nothing on record to show that the applicant was aware about termination of the pregnancy of the victim by the said centre. The summary of the charge-sheet itself shows that only because the applicant is the owner of the said centre, she is implicated as an accused. None of the statements of the witnesses discloses the involvement of the present applicant in the alleged offence. Therefore, none of the charges levelled against the present applicant are sustainable and, therefore, applicant has filed an application before the Special Court for discharge which came to be rejected without considering the grounds raised by the present applicant.
7. Per contra, learned Additional Public Prosecutor strongly opposed the said application and submitted that in view of Section 2(d) of the Medical Termination of Pregnancy Act, 1971, the definition of owner is given and applicant is the owner of the said centre, therefore, she is responsible for the activities which are carried out in the said centre and, therefore, the application is rightly rejected by the Special Court and no interference is called for.
8. Before entering into the controversy, it is necessary to consider J-cri.revn68.23.odt 6/16 the relevant provisions Sections 226, 227 and 228 of the Code of Criminal Procedure. Section 226 deals with opening case for prosecution. Section 226 is re-produced as under :
"226. Opening case for prosecution.-
When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."
9. Section 226 of the Code of Criminal Procedure Code permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the Code of Criminal Procedure, the prosecution would be doing itself a disfavour. If the accused is to contain that the case against him has not been explained owing to the non-compliance with Section 226 of the Code of Criminal Procedure, the answer would be that Section 173(2) of the Code of Criminal Procedure, report in the case would give a fair idea thereof and that the stage of framing of charges under Section 228 of the Code of Criminal Procedure is reached after crossing the stage of Section 227 of the Code of Criminal Procedure, which affords both the prosecution and the accused a fair opportunity to put forward their rival contentions. Section 227 of the Code of Criminal Procedure reads as under :
"227. Discharge.-
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this J-cri.revn68.23.odt 7/16 behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
Section 228 of the Criminal Procedure Code deals with framing of charge. The purpose of framing a charge is to intimate to the accused, the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of trial. The case may be a sessions case, a summons case, the point is that a prima facie case must be made out before a charge can be framed. Basically there are three sections in the Code of Criminal Procedure relating to the sessions trial i.e. Sections 226, 227 and 228 whereas Sections 239 and 240 deals with the trials of warrants cases and Section 245(1)(2) with respect to trial of summon cases.
10. It is settled principal of law that at the stage of considering an application for discharge, the Court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. The Hon'ble Court in the case of Criminal Revision Application No.174/2024, decided on 15.1.2025 reproduce para Nos.11,12 and 13 as under :
11. The Hon'ble Apex Court in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/SC/1113 2023, adverting to the earlier propositions of law in its earlier decisions in the cases of State of Tamil Nadu vs. N.Suresh Rajan and ors, reported in (2014) 11 SCC 709 and The State J-cri.revn68.23.odt 8/16 of Maharashtra vs. Som Nath Thapa, reported in (1996) 4 SCC 659 and The State of MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC 338, has held as under :
"10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the J-cri.revn68.23.odt 9/16 accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
12. Thus, the defence of the accused is not to be looked into at this stage when the application is filed for discharge. The expression "the record of the case" used in Section 227 of the Code of Criminal Procedure is to be understood as the documents and materials, if any, produced by the prosecution. The provisions of the Code of Criminal Procedure does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. At the stage of entertaining the application for discharge under Section 227 of the Code of Criminal Procedure, the court cannot analyze or direct the evidence of the prosecution and defence or the points or possible cross examination of the defence. The case of the prosecution is to be accepted as it is.
13. In the case of Union of India vs. Prafulla Kumar Samal and anr, reported in (1973)3 SCC 4, the Hon'ble Apex Court considered the scope of Section 227 of the Code of Criminal Procedure. After adverting to the various decisions, the Hon'ble Apex Court has enumerated the following principles:
"(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a J-cri.revn68.23.odt 10/16 charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
11. With the above principles if the material in the present case collected during the investigation is discussed, there is no dispute as to the fact that the present applicant was a medical practitioner and now due to the old age she stopped practice. It is undisputed fact that she is the owner of the medical termination of pregnancy centre situated at Kadam Hospital. The said centre is registered in her name. Now accused No.3 Rekha Kadam is her daughter in law and accused No.6 Neeraj Kadam is her son, who are looking after said medical termination and pregnancy centre which is owned by the present applicant. Even the summary of the charge-sheet shows that the present applicant is shown to be an accused as said centre is in her J-cri.revn68.23.odt 11/16 name. It further reveals from the summary of the charge-sheet that accused No.6 Dr. Kurmarsingh Jagjivanrao Kadam was running Kadam Hospital at Arvi as a Pediatrician and once in a week he is visiting said Hospital who is husband of the present applicant. On perusal of the recitals of the F.I.R. it reveals admittedly the name of the present applicant is not mentioned in the F.I.R. The allegations as to the miscarriage or abortion is against the accused No.3 Rekha Kadam. It is specifically alleged that the co-accused Kishor Sahare and Nalu Sahare took minor victim in the hospital of co-accused Rekha Kadam. Dr. Rekha Kadam admitted her and assured that she will treat the victim for causing the abortion and asked for the amount of Rs.30,000/-. Thereafter, it was Dr. Rekha Kadam who administered her some medicines which resulted into miscarriage. During the investigation various statements of the witnesses are also recorded including statements of the employees of the Hospital. The statements of the employees of the Hospital also discloses it was Dr. Rekha Kadam who admitted the patient i.e. victim girl and treated her and thereafter caused her miscarriage. The various panchanamas are also drawn by the Investigating Agency during the investigation. As far as present applicant is concerned none of the witnesses have stated that either present applicant is looking after the affairs of the said centre or she is treating the patients in the said Hospital, particularly, the statement of Maya Harish Agrawal, who is serving in the said Hospital as a sweeper which also discloses as to the role of accused No.3 Dr. Rekha Kadam and Dr. Neeraj Kadam. The said statement nowhere reveals that J-cri.revn68.23.odt 12/16 either present applicant is on visiting terms to the said Hospital. Another statement of Nanda Pralhad Thakare, who is serving as a Nurse in the said Hospital also not disclosed any role of the present applicant as far as miscarriage or the earlier acts of termination of the pregnancy. The statement of Vaishali Manohar Dongre, who is also serving in the said Hospital, nowhere discloses any role of the present applicant. It only states about the fact that all the family members of applicant's family are medical practitioners and they are staying on the upstair portion and Hospital is at the downstair. As far as the knowledge of the present applicant regarding admission of the victim in the said Hospital or previous act of the co-accused as to the illegal termination of the pregnancy none of the witnesses have stated any role to the present applicant. The report of the Civil Surgeon also shows that it was Dr. Rekha Neeraj Kadam practicing in the said Hospital alongwith her husband Dr. Neeraj Kadam. There is no N.M.C. registration certificate in the name of Dr. Rekha Neeraj Kadam.
12. Applying the principles laid down by the catena of decisions and even accepting the case as it is, it reveals that there is no material collected during the investigation to show that it was the present applicant, who has either treated the victim or she was aware about the admission of the victim in the said Hospital. The entire investigation papers only discloses that being she is owner of the said centre she is shown as an accused. As far as the applicability of Section 312 of the Indian penal Code is concerned which deals with causing miscarriage, the wording of Section 312 states that J-cri.revn68.23.odt 13/16 whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman be punished with imprisonment of either description for a term which may extend to three years, years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
13. Thus, Section 312 deals with the causing of miscarriage with the consent of woman, while the next section deals with the causing of miscarriage without such consent. The Medical Termination of Pregnancy Act, 1971 provides for termination of the pregnancy by registered medical practitioner were its continuance would revolve a risk to the life of the pregnant woman or grave injury to her physical or mental health or where there is a substantial risk that if the child were born, it would suffer from the physical or mental abnormalities as to the seriously handicapped. Where the pregnancy is alleged to have been caused by rape or result of failure of a contraceptive used by married woman or her husband, it would be presumed to constitute a grave injury to the mental health of the pregnant woman. The termination of pregnancy by a person who is not registered medical practitioner will be an offence under the Indian Penal Code.
14. Thus, as far as present applicant is concerned, she is the registered practitioner as far as the MTP Centre is concerned. The Investigating Officer has collected certificate of her registration during the J-cri.revn68.23.odt 14/16 investigation. Thus, she is a registered Medical Practitioner as far as the MTP Center is concerned.
15. Section 313 of the Indian Penal Code deals with causing miscarriage without woman's consent whoever commits the offence defined in Section 312 without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life or imprisonment of either description for term which may extent to ten years and also be liable to fine.
16. Under this Section the act should have been done without the consent of the woman and Section 315 deals with act done with intent to prevent child being born alive or to cause it to die after birth. Section 315 reads as under :
"315. Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment or either description for a term which may extend to ten years, or with fine, or with both."
17. On perusal of the ingredients of Sections 312, 313 or 315 the person who causes either miscarriage or causes miscarriage without woman's consent or does an act with intend to prevent child being born alive or to cause it to die after birth are the punishable offence. Here entire charge-sheet nowhere discloses that it was the present applicant who caused either miscarriage or miscarriage without the consent or prevented a child J-cri.revn68.23.odt 15/16 from being born. Thus, except the fact that she is the owner of the said centre no other act is attributed to her.
18. After having shifted, weigh though the evidence on record and gone through the investigation papers and considering the materials on record, it is difficult to hold that inference of grave suspicion can be raised against the applicant on the basis of evidence on record. The material appears to be insufficient for subjecting the applicant to try. On the basis of evidence on record, it cannot be said that the material is sufficient for the prosecution to establish the charge against the applicant. Subjecting the applicant to try on the basis of abovesaid evidence would not only be a mere formality but also abuse of process of law. Learned Sessions Judge ought to have appreciated this position while deciding the application for discharge. Even if it is assumed that the material collected by the prosecution is true. At the most it would show that the applicant is the owner of the said centre and no further act is attributable to the present applicant. Therefore, I am of the view that the order impugned is liable to be set aside.
19. In this view of the matter, Criminal Revision Application deserves to be allowed. Hence, I proceed to pass following order :
ORDER
(i) Criminal Revision Application is allowed.
(ii) The order dated 14.2.2023 passed by the Special Judge, Wardha, below Exhibit-60 rejecting the discharge application filed under Section 227 of the Criminal Procedure Code in Special Case J-cri.revn68.23.odt 16/16 No.36/2022 is quashed and set aside.
(iii) The applicant is hereby discharge of offences punishable under Sections 376(3), 376(2)(n), 312, 313, 315, 314, 201, 506 read with Section 34 of the Indian Penal Code and under Sections 4, 6 and 21 of the Protection of Children from Sexual Offences Act.
(iv) The Criminal Revision Application is disposed of.
(URMILA JOSHI-PHALKE, J.) okMksns Signed by: Mr. Devendra Wadode Designation: PA To Honourable Judge Date: 04/02/2025 16:08:10