The court ruled that a doctor performing an MTP in good faith to protect a minor's health is not liable for illegal termination or destruction of evidence if no legal mandate exists for preservation.

ORDER :

(A. Badharudeen, J.)

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings in S.C. No.283/2022 on the files of the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], Ernakulam, arose out of Crime No.313 of 2021 of Thrikkakara Police Station, as against the petitioner. The petitioner herein is the 2nd accused in the above case.

2. Heard the learned counsel for the petitioner, in detail and also the learned Public Prosecutor. Perused the records and decision placed by the learned counsel for the petitioner and also referred the provisions pointed out by the learned Public Prosecutor, while opposing quashment.

3. In this matter, the crime was registered by Thrikkakara Police and after investigation Final Report filed alleging that the 1st accused had committed offences punishable under Sections 363, 449, 376(3), 376(2)(n), 354A(I)(i), 354A(2) of the Indian Penal Code, under Sections 4(2) read with 3, 6(1) read with 5(l)(j)(ii), 10 read with 9(l), 12 read with 11(iv) of the POCSO Act and under Sections 3(1)(w)(i), 3(2)(v), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 2015.

4. The allegation against the 2nd accused, the doctor, who treated the victim from 12.04.2021 to 14.04.2021 is that, he had done MTP [Medical Termination of Pregnancy] and aborted the pregnancy of the victim illegally on knowing that the gestational age of the fetus is 17.2 weeks. Further allegation is that, the petitioner destroyed the fetus, without being preserved for the purpose of investigation. Accordingly, the prosecution alleges commission of offences punishable under Section 5(3) of the Medical Termination of Pregnancy Act, 1971 [hereinafter referred as 'MTP Act' for short] and under Section 201 of the Indian Penal Code (hereinafter referred as ‘IPC’ for short].

5. The learned counsel for the petitioner argued that, none of the offences alleged by the prosecution would attract against the petitioner and the petitioner bonafidely attended the victim, who met him with pregnancy, which warranted timely interception to save her life. According to the learned counsel for the petitioner, the petitioner on 12.04.2021, the date on which he met the victim, reported the crime to the Police as per Annexure.A4. So, the petitioner has no intention to screen the offender, since he rightly reported the crime, in tune with the mandate of Section 19(1) of the POCSO Act. According to the learned counsel for the petitioner, the allegation as to commission of the offence punishable under Section 5(3) of the MTP Act would not attract against the petitioner, since the MTP was done at Sunrise Hospital, Kakkanad, where certificate in Form No.B of sub rule (6) of Rule 5 of the Medical Termination of Pregnancy Rules [hereinafter referred as 'MTP Rules' for short] was issued by the District Medical Officer as on 18.07.2014. In the case diary placed by the learned Public Prosecutor, the certificate of approval in Form No.B issued to Sunrise Hospital, Kakkanad is available and the name of the owner is stated as Dr.Hafeez Rahman P.A., who is the 2nd accused/petitioner herein.

6. The learned counsel for the petitioner would submit that, in Annexure.A9, obstetric sonography report dated 12.04.2021, the LMP [Last Menstruation Period] of the victim is recorded as 25.12.2020. But, as per the sonography report, the estimated gestational age is shown as 15.3 weeks and the average gestational age is shown as 17.2 weeks. The learned counsel for the petitioner argued that, the normal method to calculate the gestational age is to count the days from LMP. According to the learned counsel for the petitioner, if the gestational age is counted from 25.12.2020, in the normal method, the gestational age of the fetus of the victim is within 12 weeks and not beyond 12 weeks and as per t