Crl.O.P No.19641 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.O.P No.19641 of 2021 and
Crl.M.P.No.10721 of 2021
1.Brindha
2.Ramasubbu ... Petitioners
Vs.
1. The Inspector of Police
D2 Podhanur Police Station
Coimbatore City
(Crime No.469 of 2021)
2. Raghuraaman ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, praying to call for the records relating to Crime No.469 of
2021 on the file of the 1st respondent, the Inspector of Police, D3 Podhanur
Police Station, Coimbatore and quash the same.
For Petitioners : Mr.B.Kumarasamy
For Respondents : Mr.A.Damodaran for R1
Additional Public Prosecutor
Ms.S.Poojashree for R2
for Mr.Parthasarathy
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https://www.mhc.tn.gov.in/judis
Crl.O.P No.19641 of 2021
ORDER
This Criminal Original Petition has been preferred, seeking to call for the records relating to Crime No.469 of 2021 on the file of the 1st respondent, the Inspector of Police, D3 Podhanur Police Station, Coimbatore and quash the same.
2. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor.
3. The facts of the case of the prosecution:
The 1st petitioner is the wife and the 2nd petitioner is the father-in- law of the 2nd respondent/de-facto complainant. A private complaint has been filed by the 2nd respondent under Section 200 of Cr.P.C before the Additional Mahila Court (Magistrate level, Coimbatore) seeking for a direction under Section 156(3) Cr.P.C., and consequently, a direction was given by the Additional Mahila Court on 15.02.2021, to register a case and investigate the complaint. In pursuance of that, the 1st respondent police has registered a case in Crime No.469 of 2021 for the offences punishable 2/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 under Sections 120, 120B, 202, 203, 312, 315, 316 and 318 IPC.
4.The allegations made by the 2nd respondent in the complaint is that the 1st petitioner had undergone miscarriage of 5 months fetus in the hospital without his consent; according to the 2nd respondent, he was informed by his wife / 1st petitioner, that the doctor examined her by taking a scan and told that the child in her womb had only one kidney; so the 1 st petitioner was adamant that the fetus should be aborted; but the de-facto complainant wanted to get a second opinion; but the 1st petitioner got a reference letter from Kiruba Hospital for abortion; the subsequent scan done at Sonoscan centre revealed that the kidneys of the child was good though it is a bit abnormal; but he came to know from his friend that on 14.01.2020, the 1st petitioner had undergone miscarriage; when he enquired the 1st petitioner's father, who is the 2nd petitioner herein, he told him that the child got aborted because the 1st petitioner got stressed out; but the abortion is not for any valid reason.
5.(i) The learned counsel for the petitioners submitted that the complaint itself is a misconceived one and it is not maintainable. There is 3/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 no prima facie materials to make out a case against the petitioners. The discharge summary of the 1st petitioner would show that the 1st petitioner had a intrauterine fetal demise at admission. The 1 st petitioner seem to have got admitted in the hospital on 08.01.2020. After getting due consent, the dead fetus was expelled on 09.01.2010. If the fetus is dead in the womb, it is dangerous not to expel it from the womb of the 1st petitioner. The 1st petitioner had undergone the said procedure only after giving due consent.
5.(ii) The 1st petitioner had given complaint against the 2nd respondent for domestic violence. There are other matrimonial proceedings pending between the couples. The complaint has been given by the 2 nd respondent, just to harass the 1st petitioner. However, the matrimonial dispute and all other disputes pending between the couple were settled amicably. Infact, joint memo of compromise have been entered into between the couples. The de-facto complainant himself is not serious to pursue the complaint given by him for the purpose of this case.
6. On perusal of the materials available on record, especially the discharge summary of the 1st petitioner, it is seen that she was admitted on 4/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 08.01.2020 at G.Kuppuswamy Naidu Memoral Hospital, Coimbatore. At that time, she was diagnosed to have intrauterine ultra fetal demise. Since the 1st petitioner had demised fetus in her womb, she was advised to expel the fetus. In the discharge summary, the diagnosis detail is given as under:
“PRIMI/ 22 WEEKS 1 DAY / PPROM / INTRAUTERINE DEATH / FETUS WITH RIGHT RENAL AGENESIS AND LEFT ECTOPIC KINEDY”
7. The course advised an admission to the 1st petitioner as seen in the discharge summary is as follows:
COURSE IN HOSPITAL She was admitted in view of PPROM. Diagnosed to have intrauterine fetal demise at admission. This was explained to patient and family. After written informed consent, she was induced with misoprostol. Induction abortion interval was 12 Hours. She expelled fetus on 9.01.2020 at 9 hours. Placenta was retained and the same removed with ovum forceps. Check scan showed empty uterine cavity. She developed spike on day of abortion which settled with antipyretics. High vaginal swab showed no growth. Repeat blood counts showed mild decreasing trend and iv antibiotics continued for 5 days. She had a fever spike on postabortal day 2. Procalcitonin negative for bacterial 5/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 infection, urine routine was normal and leukocyte count in decreasing trend. Inview of repeated low grade fever spikes with antibiotics physician opinion (Dr.Binu) was sought, throat swab taken and switched to 4th generation cephalosporins and empirical treatment fo flu initiated.
Repeat procalcitonin was normal(0.13) No further fever spikes for 24 hours, hence discharged with following advise”
8. After having undergone the treatment, the 1st petitioner was discharged from the hospital on 14.01.2020. The medical records would show that the above treatment was given to the 1st petitioner by the department of Obstetrics and Gynaecology through a qualified team of doctors. When the medical condition of the first petitioner requires immediate medical attention by getting admitted in the hospital, the 1st petitioner cannot be careless or negligent.
9. The 1st petitioner had taken ultra sonogram on 04.01.2020, in which the following impression was recorded:
Intrauterine pregnancy with a single live fetus of about 21 Weeks 2 Days gestation in correlation with first trimester scan done elsewhere.6/14
https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 Fetus shows bilateral ectopic presacral kidneys (Pancake kidneys) – for Postnatal evaluation.
EDD by Ultrasound 14 – May -2020.
In the fetal urosonogram report, the following impression is recorded:
Bilateral ectopic presacral kidneys (Pancake kidneys)
10. The above scan report and other medical reports would only show that the fetus of the petitioner had some issues. Though it is stated by the de-facto complainant that the 1st petitioner had undergone abortion without his consent, the records would only show that the 1st petitioner got admitted in the hospital with the demised fetus and on the advise of the doctor she needed to expel the fetus by undergoing appropriate course of treatment.
11. It would have been an informed decision taken by the couple had they maintained a cordial relationship between themselves. Due to misunderstanding between the couples, the first petitioner was forced to take a decision on her own. And she is expected to take such decision when things went worse and that she should save her health. However, it is sated by the first petitioner that the medical complication suffered by her was informed to the de-facto complainant and his family members, but they did 7/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 not come and see her.
12. A woman has got bodily autonomy upon herself and if anything goes wrong with her health, she should take a decision in order to safeguard herself. The life and liberty of a person is a fundamental human right which cannot be taken away by any one. Since the 1st petitioner had the risk to carry the demised fetus in her womb, she was rightly advised by her doctor to take appropriate treatment for expelling the same. The de-faco complainant who was not with the first petitioner, when she was undergoing the treatment at the hospital, had raised his own doubts and had given the complaint.
13. The averments of the de-facto complainant that there is no acceptable reason for abortion is totally baseless. Had he consulted the doctor who had treated the 1st petitioner, he would have known the exact medical condition of the 1st petitioner. Without doing that, he had given the complaint with his own imagination. The medical records completely justify the reason for which the 1st petitioner had undergone the treatment at the hospital for expelling her fetus. There is no iota of reliable materials to sustain the case of prosecution for the registering the FIR against the 8/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 petitioners on the complaint of the second respondent for the offences under Sections 120, 120B, 202, 203, 312, 315, 316 and 318 IPC. This is an appropriate case where the Court has to exercise its powers under Section 482 of Cr.P.C. in order to secure the ends of justice.
14. In this regard, it is appropriate to extract the relevant portion of the judgment of the Hon'ble Supreme Court held in Parbatbhai Aahir Vs. State of Gujarat [AIR 2017 SC 4843]:
"15.The Broad Principles which emerge from the precedents on the subject, may be summarised in the following propositions:-
(i) Section 482 Cr.P.C preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inherent in the High Court.
(ii) The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While 9/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised
(i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.
(v) the decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulate.
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as 10/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in Propositions (viii) and (ix) above. Economic 11/14 https://www.mhc.tn.gov.in/judis Crl.O.P No.19641 of 2021 offences involving the financial and economic well- being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
15. The materials on record would only show that no useful purpose will be served, if the investigation is conducted on the false case given by the second respondent. In order to secure the ends of justice, the impugned FIR is liable to be quashed.
16. Accordingly, the Criminal Original Petition stands allowed and the FIR in Crime No.469 of 2021 on the file of the 1st respondent is hereby quashed. Consequently, connected Miscellaneous Petition is closed.
15.09.2022
Index : Yes/No
Speaking Order : Yes / No
uma
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https://www.mhc.tn.gov.in/judis
Crl.O.P No.19641 of 2021
To
1. The Inspector of Police
D2 Podhanur Police Station
Coimbatore City
2. The Public Prosecutor
High Court of Madras.
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https://www.mhc.tn.gov.in/judis
Crl.O.P No.19641 of 2021
R.N.MANJULA, J.,
uma
Crl.O.P No.19641 of 2021 and
Crl.M.P.No.10721 of 2021
15.09.2022
14/14
https://www.mhc.tn.gov.in/judis