Karnataka High Court
Dr S Ravikumar vs The State Of Karnataka on 6 January, 2016
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRIMINAL REVISION PETITION NO.207/2015
BETWEEN:
DR S RAVIKUMAR
S/O B SURENDRA NAIK
AGED ABOUT 35 YEARS
RESIDENT OF GURUKRUPA
1ST STAGE, 4TH CROSS
60 FT ROAD
VINOBANAGAR, SHIMOGA-577201
... PETITIONER
(By Sri: B S PRASAD, ADV.)
AND
1. THE STATE OF KARNATAKA
BY ITS WOMEN POLICE STATION
DAVANAGERE-573201
2. SMT. SOWMYA S.O
W/O DR. S. RAVIKUMAR
D/O OMKARAPPA
AGED ABOUT 33 YEARS
R/O DOOR NO. 1946/03
RENUKA NILAYA, 5TH MAIN,
15TH CROSS, VIDYANAGARA
DAVANAGERE-577001.
(AMENDED VIDE ORDER DATED 27.4.15)
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... RESPONDENTS
(By SRI. S. RACHAIAH, HCGP FOR R1
SMT. RASHMI JADHAV, ADV FOR
M/S JADHAV LAW ASSTS. ADVS. FOR R2)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE ORDER DTD.08.12.2014 PASSED BY THE I-
ADDL.DIST. AND SESSIONS JUDGE AT DAVANAGERE IN
S.C.NO.100/2014.
THIS CRL. RP COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed against the order dated 8.12.2014 in a criminal case in S.C.110/14 filed under Section 227, Cr.P.C. This petitioner is the 1st accused in the said case. Charge sheet is filed against this petitioner for the offences punishable under Sections 498A, 506 and 313, I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act.
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2. The petitioner herein had filed an application under Section 227, Cr.P.C. seeking discharge in respect of all the offences alleged against him. The said application was objected to by filing detailed objections on behalf of the prosecution. Ultimately the learned judge has chosen to dismiss the said application.
3. Heard the learned counsel for the petitioner and learned HCGP.
4. Learned counsel for the petitioner does not press for any order insofar as the charges framed for offences under Sections 498A, 506, I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act are concerned. His main grievance is that there is absolutely no materials to proceed further in order to frame the charge for the offence for the offence punishable under Section 313, I.P.C.
5. Section 313, I.P.C. reads as follows: 4
313. Causing miscarriage without woman's consent.- Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The sentence of imprisonment can extend upto 10 years and is a cognizable offence and exclusively triable by the sessions court.
6. What is argued that Sri Rachaiah, learned HCGP is that abortion of the pregnancy of the victim lady, i.e. wife of this petitioner was got done without her consent and this petitioner had colluded with the doctors in getting the pregnancy terminated
7. Perused records. The learned judge has held that there are prima facie materials with regard to the charges to be framed under Section 313, I.P.C. Paragraphs 12 and 13 of the judgment are relevant 5 which indicate the mind of the court, and are extracted below:
12. In this regard, Learned Counsel for the accused has relied on the decisions reported in:-
1) AIR 1989 KERALA, 184 (Full Bench),
2) Crl.L.J 2007 149, (BOMBAY HIGH COURT)
3) Cr.L.J 2002 1874, DELHI HIGH COURT.
13. I have gone through the dictum laid down by their lordships in the decisions cited supra. However, having regard to the averments made in the complaint as well as in the charge sheet, at the stage it cannot be said that there are no prima facie materials as against the accused in respect of the alleged offences. Moreover, whether there are materials as against the accused in respect of Sec.313 of IPC shall have to be decided only after full fledged trial. Therefore, with great respect to their lordships. I am of the opinion that the citations relied by learned counsel for the accused, are not applicable to the case on hand.
After going through the charge sheet, it is seen that the Circle Inspector who conducted investigation had sought an opinion from the doctors of City Hospital, Shivamogga, where the pregnancy was aborted. Two doctors, viz., Dr.Mallesh Hullamani and Dr.Shashikala Mallesh have answered all the questions put to them in 6 writing by the IO. Their reply was received by the inspector on 5.9.2012. The contents of the said letter found in ink page 75 of this petition are as follows:
Date: 05.09.2012 To The Circle Inspector of Police Office of the Circle Inspector of Police Central Circle Davanagere.
Sir, Subject: Termination of Pregnancy of Smt. Sowmya- in the matter of funishing of a report and the documents.
Reference: 1. Your Crime No.25/2012 on your file
2. Your Letter o./Mahila/PS/CR/25/ 2012, dated 30.08.2012 In the letter under reference No.2 the following questions were framed and we are requested to answer the questions.
1. Q 1: From what date to what date, Smt. Sowmya was admitted and obtained treatment in your hospital?
Reply: Smt. Sowmya was admitted to City Hospital on 08.11.2010 and was discharged on 14.11.2010, and in between she was under our treatement. 7
2. Q 2: Who admitted Smt. Sowmya to the hospital and for what purpose?
Reply: Smt. Sowmya and her husband namely Dr.Ravi Kumar, the parents of Smt. Sowmya and as also the parents of Dr.Ravi Kumar all came together to admit Smt. Sowmya with a history of pregnancy and pain in abdomen and for termination of pregnancy.
3. Q3: Whether Smt. Sowmya was terminated with her pregnancy?
Reply: Yes, Smt. Sowmya was terminated with her pregnancy, since Smt. Sowmya approached us for the purpose on her own volition.
4. Q4: On what date Smt. Sowmya was terminated with her pregnancy and the reason there for? a report Reply: Smt.Sowmya was pregnant by 5 months when she came to us on 08.11.2010. She came along with her husband Dr.Ravi Kumar, her parents and the parents of Dr.Ravi Kumar, on immediate examinations she was found to be pregnant by give months and complaining severe pain in the abdomen. She gave the history of having consumed abortion pills on 10.06.2010 and once again on 10.09.2010. Having regard to the medication of termination of pregnancy and continuation of pregnancy, it was a case of failed medical termination of pregnancy. Therefore, in the context they expressed the fear of the baby being born with a birth defect. In addition thereto they all informed us that Smt. Sowmya was married only about a month ago. In the context, Smt. Swomya desired and insisted that her pregnancy is to be terminated and that was in the presence of her parents and in the presence of her husband Dr. Ravi and cons of the continuation and termination of pregnancy. 8 Even after counseling Smt. Sowmya insisted for the termination of pregnancy. Therefore, we decided to terminate the pregnancy. At the stage she further complained of severe pain in the abdomen for which necessary treatment was given and she was immediately taken to the Operation theatre.
Thereafter, before the commencement of the procedure we have obtained the consent of the husband of Smt.Swomya, namely Dr.Ravi Kumar for the termination of the pregnancy, as Smt.Swomya was not in a position to put her signature in the consent form and as also she had already expressed her willingness and insisted for immediate termination of pregnancy.
5. Q5. To furnish the documents indicating the consent of Smt.Sowmya?
Reply : Self certified Xerox copies of the case sheet is enclosed. The case sheet contains the history of the patient, the procedure done , the drugs advised and given and as also the consent of Dr.Ravi Kumar which was given on behalf of himself and as also on behalf of Smt. Sowmya. It is made clear that Smt. Sowmya herself has given her consent for termination of pregnancy by insisting the pregnancy is to be terminated immediately in the context that she had already taken the drugs for the termination of pregnancy twice, which did not act and that she is pregnant by five months and that she was married only a month ago.
Sd/- Sd/-
Dr. Mallesh Hullumani Dr. Shashikala Mallesh
Consultant Gynecologist Consultant Gynecologist
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8. The Medical Termination of Pregnancy Act, 1971, is a central Act and Section 3 provides for exigencies when pregnancy may be terminated by a registered medical practitioner. Clause (ii) of sub-section (2) of Section 3 of the said Act states that if there is substantial risk that the child were born, it would suffer from physical or mental abnormalities as to be seriously handicapped, pregnancy may be terminated. This material document found in ink page 75 is not referred to by the learned judge while coming to the conclusion about the existence of prima facie case for the offence punishable under Section 313, I.P.C. This is an apparent error on the face of the record and therefore, the matter needs to be remitted to the trial court to pass appropriate orders only in regard to the existence of prima facie case for the offence punishable under Section 313, I.P.C.
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9. In the result, the following order is passed:
ORDER The revision petition is allowed. The matter is remitted to the trial court to pass appropriate orders keeping in mind the answers submitted by the doctors of City Hospital, Shivamogga, and the relevant provision of Section 3 of the The Medical Termination of Pregnancy Act, 1971, in regard to the charges framed under Section 313, I.P.C., preferably at the earliest.
Sd/-
JUDGE vgh*