@JUDGMENTTAG-ORDER
A.K. Shrivastava, J.@mdashThis revision u/s 397/401, Cr.P.C. has been filed by the accused assailing the order dated 8-6-2011 passed by learned Fourth Additional Sessions Judge, Katni in S.T. No. 77/2009 thereby framing charge against her for the offence punishable u/s 314 of the Indian Penal Code (in short "IPC"). The facts necessary for the disposal of this revision application lie in a narrow compass. One Smt. Sunita Vishwakarma (hereinafter referred to as "the deceased"), who was a major married woman having the age of 30 years and was the wife of Rajkumar Verma came to Baba Madhav Shah Hospital, Madhav Nagar, Katni (hereinafter referred to as "Baba Madhav Shah Hospital") along with her husband on 22-5-2008 for her treatment and she was referred to the petitioner/accused who was giving her services in the said hospital as a Gynaecologist. The petitioner/accused is having Medical Degree of Master in Surgery (in short "M.S.").
2. As per the history, which the accused had noted down and which was also told by the deceased to her is that she had already taken some medication for termination of her pregnancy 15 days earlier before admitting to the said Baba Madhav Shah Hospital. The deceased, without any medical advice, left the hospital, which in medical terminology is called as LAMA (Leave Against Medical Advice). Thereafter, on 26-5-2008, she was admitted in the Government Hospital in Katni where she passed away on the same date.
3. After the death of the deceased case was registered and after investigation was over a charge-sheet has been filed. Learned Trial Judge has framed the charge punishable u/s 314, IPC against the applicant by passing the impugned order. Hence, this revision application has been filed by the accused.
4. De jure, Shri Rohit Jain, learned Counsel for the applicant submits that as per the prosecution''s own case on 22-5-2008 the deceased was brought to the said Baba Madhav Shah Hospital and it was a case of incomplete abortion. According to him, she had taken some medication for termination of pregnancy 15 days earlier to the admission in the said hospital and some intervention was also made just two days before admitting in the said hospital on 22-5-2008. Thereafter, by adopting the method of LAMA the deceased left the hospital on 24-5-2008 and ultimately she died on 26-5-2008. Learned Counsel submits in these facts and circumstances, nowhere Section 314, IPC would come into picture and if that is the position learned Trial Judge has erred in framing the charge u/s 314, IPC against the applicant.
5. Learned Counsel further submits that admittedly the petitioner is a Gynaecologist having the degree of M.S. and therefore, in the present case, the provision of Section 314, IPC is to be read conjointly with Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short "the Act of 1971"). which speaks about when pregnancy may be terminated by a registered medical practitioner. In these circumstances, particularly when by adopting the method of LAMA the deceased left the said Baba Madhav Shah Hospital, and thereafter, admitted herself in Government District Hospital, Katni where she breathed her last, even prima facie it cannot be said that the applicant has committed any offence. In support of his contention, learned Counsel has placed heavy reliance upon the decision of Supreme Court in
6. Per contra, Shri Anubhav Jain, learned Public Prosecutor argued in support of the impugned judgment and submitted that because while undergoing the treatment, which was being provided by the applicant to the deceased on account of medical negligence she had died, therefore, rightly the charge u/s 314, IPC has been framed. Hence, prayed that this revision application be dismissed.
7. Having heard learned Counsel for the parties, I am of the view that this revision application deserves to be allowed.
8. In the present case, as per the prosecution''s own case the petitioner is a well-qualified registered medical practitioner having the degree of M.S''. (Gold Medal) and she is a Gynaecologist. The Act of 1971 provides when pregnancy may be terminated by registered medical practitioners. It will be profitable to quote Section 3 of the Act of 1971, which reads thus:--
3. When pregnancies may be terminated by registered medical practitioners.--(1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation I:--Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II:--Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman''s actual or reasonably foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.''
9. On bare perusal of the aforesaid provision it is clear that sub-section (1) of Section 3 of the Act of 1971 protects the registered medical practitioner from the clutches of the Indian Penal Code. Thus, in order to bring the case within the ambit and scope of sub-section (4) of Section 3 of the Act of 1971 the prosecution is obliged to bring the case within the clause (a) or (b) of sub-section (2) of Section 3 of the Act of 1971, which authorises the registered medical practitioner to terminate the pregnancy where the month of pregnancy does not exceed 12 weeks and if the pregnancy exceeds twelve weeks, but it does not exceed twenty weeks, the opinion of two registered medical practitioners is required who shall give their opinion in good faith that:--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Admittedly, the deceased is a major married woman.
On bare perusal of the charge-sheet, this Court finds that the deceased was admitted in Baba Madhav Shah Hospital, Katni on 22-5-2008 where she was referred to the petitioner who is a Gynaecologist (M.S.) and is also a Gold Medalist. On examining the deceased by the applicant/accused her condition has been mentioned in her examination-sheet, which is the part of the charge-sheet and I think it apt to quote the same in its entirety:--
10. On bare perusal of the aforesaid examination-sheet, it is found that the size of the uterus was eight weeks, hence, the pregnancy was not exceeding 12 weeks as prescribed under sub-clause (a) of sub-section (2) of Section 3 of the Act of 1971. In the aforesaid examination-sheet, it is further gathered that 15 days before her admission in the aforesaid Baba Madhav Shah Hospital, the deceased took some medication for termination of her pregnancy. Not only this, some intervention was also done two days back from the date of admission of the deceased in the said hospital on 22-5-2008. It was also found that her case was of incomplete abortion and uterus was open which often remains open on account of incomplete abortion. That apart, there is one more important document dated 25-5-2008 in the charge-sheet which demonstrates that on 25-5-2008 at 12 Noon by adopting the method of LAMA the deceased left Baba Madhav Shah Hospital. I would like to further quote very important endorsement made by the husband of the deceased on the said examination-sheet, which reads, thus:--
11. At this juncture only, I would like to go through the case diary statement of the deceased dated 26-5-2008 wherein it has been mentioned that she is a major woman having the age of 30 years and is married to Raju Vishwakarma. In her statement, she has stated that she is already having three daughters and one son even then she conceived and the pregnancy was near about six weeks, resultantly she consulted with her husband and thereafter both of them agreed that the treatment be taken for abortion. It is not the case of prosecution that the deceased was a lunatic. Hence, the case of prosecution would also not come within the scope of clauses (a) and (b) of sub-section (4) of Section 3 of the Act of 1971. In case diary statement of the police, she further states that the abortion took place in the said Baba Madhav Shah Hospital but her condition became more deteriorated and by adopting the method of LAMA she got admitted in Government Hospital at Katni on the next day, i.e., 26-5-2008. In these facts and circumstances, I am of the view that sub-section (1) of Section 3 of the Act of 1971 protects the present applicant, who is a well-qualified Gold Medalist Gynaecologist having the degree of M.S. from the provisions of the Indian Penal Code.
12. Indeed, the Act of 1971 is special enactment having the overriding effect over the Indian Penal Code since it is a well-settled principle of interpretation of statute. In these facts and circumstances, the legal maxims Generalia specialibus non derogant and Generalibus specialia derogant shall be applicable and because the aforesaid special enactment (the Act of 1971) would prevail over Section 314, IPC and further the applicant is protected u/s 3(1) of the Act of 1971, hence, the charge framed u/s 314 of the IPC against her cannot be allowed to remain stand and is liable to be quashed.
13. That apart, on bare perusal of Section 314 of the IPC, this Court finds that if an accused is to be prosecuted under this provision, the following ingredients should co-exist to bring the offence within the purview of the Section 314, IPC and I quote:--
(i) The woman was with child;
(ii) the accused committed an act to cause miscarriage;
(iii) he did so with such intention; and
(iv) such act caused the death of the woman.
14. In the present case, the death has been caused on account of the act of the applicant even at the remote, as per the prosecution''s own case does not prima facie appear to be true for the reasons to follow:--
(a) admittedly the applicant is a major married woman;
(b) admittedly she gave her consent along with her husband to terminate the pregnancy;
(c) admittedly she was having the case of incomplete abortion, which already took place before her admission in Baba Madhav Shah Hospital;
(d) admittedly before admission in aforesaid hospital where she was treated by the petitioner (who is a well-qualified Gynaecologist having Gold Medal and is having M.S. in Surgery) on 22-5-2008 she already took some medication for treatment 15 days earlier to her admission in the said hospital;
(e) admittedly there was some intervention done two days before the deceased was admitted in the said hospital and was treated by the petitioner;
(f) admittedly before the treatment was provided by the petitioner the deceased already had an incomplete abortion;
(g) admittedly in case of incomplete abortion the uterus remains open;
(h) admittedly by adopting the method of LAMA on 25-5-2008 the husband of the deceased left the said Baba Madhav Shah Hospital against the medical advice by carrying the deceased with him; and
(i) admittedly one day thereafter on 26-6-2008 the deceased was admitted in Government Hospital at Katni where she had died.
In these facts and circumstances, it cannot be said that prima facie any of the ingredient of Section 314, IPC is made out against the present applicant so as to face the criminal trial and therefore, even to remote extent prima facie, it cannot be said that the applicant was negligent. Not even a single document of the Government Hospital where the deceased had died is on record and therefore, still it is a mystery as to whether the deceased had died on account of negligence of the Government Doctor or not. However, I do not have any scintilla of doubt in my mind in holding that the Act of 1971 is completely protecting the applicant as a strong shell and therefore, Section 314, IPC has no applicability.
Ex consequent, this revision application succeeds and is hereby allowed. The impugned order is set aside and the applicant/accused is discharged from the charge u/s 314, IPC framed against her.
