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2025 Supreme(Online)(KER) 7351
HIGH COURT OF KERALA
A. BADHARUDEEN, J
DR. HAFEEZ RAHMAN. P. A. – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 4372/2022
P.T.MOHANKUMAR, GEORGE CHERIAN, RAJESH CHERIAN, KARIPPAPARAMBIL MANEESHA JOY
The court ruled that the doctor acted in good faith during a medical termination of pregnancy, and no prima facie offences were established under the MTP Act or IPC.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Protection of Children from Sexual Offences Act - Medical Termination of Pregnancy Act, 1971 - Sections 5(3) and 201 of IPC - Quashing of proceedings against the petitioner, a doctor, accused of illegal abortion and destruction of evidence - The court found that the petitioner acted in good faith to save the victim's life and reported the crime promptly, thus prima facie offences under the MTP Act and IPC were not made out. (Paras 24, 23)
(B) Medical Termination of Pregnancy - Legal requirements for MTP - The court emphasized that there is no automatic mandate for preservation of the fetus in cases involving minors, highlighting a legislative gap that needs addressing. (Paras 25, 26)
Facts of the case:
The petitioner, a doctor, was accused of performing an illegal abortion on a minor victim and failing to preserve the fetus for investigation. The petitioner argued that he acted to protect the victim's health and reported the incident to the police. (Paras 4, 5)
Findings of Court:
The court held that the prosecution's case against the petitioner was unwarranted and that he acted in accordance with the law, thus allowing the quashment of proceedings. (Paras 23, 24)
Issues: The main issues were whether the petitioner committed an offence under the MTP Act and IPC, and the legal obligations regarding the preservation of the fetus. (Paras 9, 15)
Ratio Decidendi: The court ruled that the petitioner had a valid license for MTP and acted in good faith, thus the charges against him were not substantiated. The court also noted the absence of a legal requirement for automatic preservation of the fetus in such cases. (Paras 13, 24)
Result: Petition allowed; proceedings quashed.
| Table of Content |
|---|
| 1. defense arguments presented (Para 5 , 6 , 7 , 8 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 24 , 25 , 26) |
| 2. court's analysis of evidence (Para 9) |
| 3. proceedings quashed (Para 23) |
ORDER
Dated this the 19th day of February, 2025
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 o 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 Offcer 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
