Gujarat High Court
Anuradha W/O Roopkishormahesh ... vs State Of Gujarat on 20 February, 2020
Author: S.H.Vora
Bench: S.H.Vora
R/SCR.A/788/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 788 of 2020
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ANURADHA W/O ROOPKISHORMAHESH SHRIVASTAV D/O
KAMLESHBHAI SHANKARLAL SHRIVASTAV
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS URMILA N DESAI(5609) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 20/02/2020
ORAL ORDER
1. With the consent of learned advocate for the applicant and learned APP, present application is taken up for final disposal, in view of short but serious issue involved in the petition.
2 Present petition is preferred by the petitioner - victim under Article 226 of the Constitution of India read with the provisions of the Medical Termination of Pregnancy Act, 1971.
3. On 03.02.2020, this Court has passed the following order :-
"Notice returnable on 11.02.2020. Learned APP waives service of notice on behalf of the respondent - State. Meanwhile, let the victim - Ms.Anuradha w/o. Roopkishormahesh Shrivastav be examined by the empaneled Doctors at General Hospital, Sola, Ahmedabad. She should be admitted immediately and medical examination shall be carried out to let this Court know as to whether termination of pregnancy is Page 1 of 6 Downloaded on : Fri Feb 21 03:56:14 IST 2020 R/SCR.A/788/2020 ORDER medically feasible considering the fact that she is allegedly victim of rape and she inclines to terminate her pregnancy. Doctors concerned shall follow settled guidelines to know her mental and psychological preparedness.
Copy of this order be provided to learned APP forthwith. Direct service is permitted today."
4. Pursuant to the order dated 03.02.2020, learned APP had received report of panel of two Doctors, Asst. Professor, GMERS Medical College, Sola, Ahmedabad dated 05..02.2020. They have opined as under :-
"The victim was examined by Consultant from Gynecology, Medicine, Psychiatric, Orthopedic, Respiratory Medicine and Anesthetist. Ms. Anuradha Roopkirshore Shirvastava was examined by Dr. Nidhi Patel (Gynaecologist). She is 13 weeks pregnancy confirmed by Sonagraphy. Medical Termination of pregnancy can be performed as per MTP law provided she is fit medically.
Dr. Harsh Jivrajani Associate Professor has examined the Victim. Pt. Has old lacunar infarct in right periventricular region confirmed by MRI Brain. She has also diffuse bulge thickening at C5-C6 and C6-C7 with mild desiccation in L3-L4 and L4-L5. She has S Antinuclear antibody positive with dilution 01:1000 and 1:200. In view of the above condition the Dr. Harsha Jivrajani has sought the opinion of Neurophysican and Rhematologist. She has given the opinion that it is safe to terminate this pregnancy where this specialist is available.
The psychiatrist Dr. Prakash Mehta has examined the victim and found to be suffering from persistent depressive depression disorder. This is likely to aggravate after medical termination of pregnancy. Respiratory medicine consultant Dr. Kaushal Bhavsar has detected no abnormality in respiratory system. Orthopaedic Consultant Dr. Somesh Singh has evaluated MRI Brain and spine and opine that pt can be taken for surgery.
We are of the opinion that Medical termination of the pregnancy can be done after the opinion of Neurophysician and rheumatologist. As civil hospital, Sola Page 2 of 6 Downloaded on : Fri Feb 21 03:56:14 IST 2020 R/SCR.A/788/2020 ORDER does not have this specialist it is advisable to refer the patient to Civil Hospital Asarwa, Ahmedabad."
5. Thereafter, on 11.02.2020, this Court has passed following order :-
"Pursuant to report of Dr. Nidhi Patel, Asst. Professor, GMERS Medical College, Sola, Ahmedabad and Dr. Ajesh Desai, Professor and Head, GMERS Medical College, Sola, Ahmedabad, respondent - State is directed to obtain opinion of Neurophysician and Rheumatologist, Civil Hospital, Asarwa, Ahmedabad. Such report shall be placed before this Court for further consideration of the matter on 17.02.2020. Stand over to 17.02.2020. Copy of this order be provided to learned APP for onward communication."
6. Pursuant to the order dated 11.02.2020, learned APP has received report of Medical Officer, Medico Legal Cases, Civil Hospital, Ahmedabad dated 19.02.2020. The concerned Doctors have opined as under :-
"Opinion of Dr. Vishnu Sharma (Rheumatologist) :-
-No active CTD (connective tissue disorder) at present
-Pt. Had no synovitis pain.
Opinion of Dr. B.R.Patel (Neurophysician) :-
-No active Neurological management needed at present.
- No any active complain at present.
- No any focal neurological deficit."
7. Panel of Doctors in terms opined that victim is 13 weeks pregnant and therefore, suggested that it is advisable to terminate the pregnancy as early as possible.
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8. This Court has heard both the sides and considered the opinion / report duly signed by Assistant Professor and Head, GMERS Medical College, Sola and Medical Officer, Medico Legal Cases, Civil Hospital, Ahmedabad submitted by them through learned APP to this Court.
9. Learned advocate for the petitioner submitted that the termination of pregnancy is permissible upto 20 weeks and at the time of examination by concerned Doctors on 05.02.2020, pregnancy of 13 weeks is noted.
10. Learned APP has urged the Court that the Court may in given set of circumstances of case, issue direction for termination of pregnancy. However, the tissues from foetus may be directed to be handed over for the purpose of DNA sampling in scientific manner to the Investigating Officer.
11. On hearing both the sides, this Court has noticed that the victim is alleged to have been abducted by the accused, named in the FIR being C.R.No.I-98 of 2019 registered with Vapi Town Police Station for the offence punishable under sections 376(2)(K), 385, 323, 504 and 506(2) of IPC and section 25(1)(A) of the Arms Act.
12. The victim is already carrying about 13 weeks of pregnancy with specific report / opinion of panel of Doctors that medical termination of pregnancy can be performed as per MTP law provided she is fit medically. No doubt, pregnancy exceeds 13 weeks, but considering the provisions of Section 5 of the Medical Termination of Pregnancy Act, 1971 and opinion of registered Medical Practitioners, termination of pregnancy is Page 4 of 6 Downloaded on : Fri Feb 21 03:56:14 IST 2020 R/SCR.A/788/2020 ORDER immediately necessary to save mental and physical health of the victim.
13. At this stage, the Court has considered the decision wherein 'the best interest' theory for the victim is settled and considering her trauma, mental agony and possibility of social ostracism, the Court is of opinion that when the medical opinion issued by the Panel of Doctors is taken into consideration, let termination of pregnancy be carried out at the earliest with medical facilities available to the petitioner - victim and on ensuring proper care in pre-termination and post termination period. The Doctors shall take necessary tissue samples from the DNA identification by following scientific practice for DNA identification and such samples shall be handed over to the Investigating Officer concerned.
14. Intimation of this order shall be given to the Civil Hospital, Ahmedabad forthwith by the learned APP. Copy of this order shall also be sent by the Registry to the Chief District Medical Officer cum Civil Surgeon, General Hospital, Sola, Ahmedabad.
15. Since the pregnancy of petitioner victim exceeds 13 weeks as of now, the Court directs three senior most Gynecologists of Civil Hospital, Ahmedabad to examine the petitioner - victim and also by psychologist attached to the Civil Hospital, Ahmedabad. The said team of Doctors shall examine the petitioner - victim Ms.Anuradha w/o. Roopkishormahesh Shrivastav and after having interaction with her, undertake the procedure of surgery on urgent basis along with other required expert Doctors like Physician, Page 5 of 6 Downloaded on : Fri Feb 21 03:56:14 IST 2020 R/SCR.A/788/2020 ORDER Anesthetic etc., if otherwise, there is unanimity amongst the Doctors to the effect that such termination would be carried out safely,
16. Liberty is reserved in favour of the petitioner -victim to apply for interim compensation before the Chairman, District Legal Services Authority, Ahmedabad and on such request being made by the victim in this regard, the concerned Chairman, District Legal Services Authority after following prescribed procedure shall award interim compensation in accordance with law.
With above directions, present petition stands disposed of. Direct service today is permitted.
(S.H.VORA, J) SATISH Page 6 of 6 Downloaded on : Fri Feb 21 03:56:14 IST 2020