Apurva D/O Ganesh Mathe vs The Principal Secretary, ...
2021 Latest Caselaw 8087 Bom

                                                     1                     crwp396.21.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                  CRIMINAL WRIT PETITION NO.396/2021

      Ku. Apurva d/o Ganesh Mathe,
      aged about 24 years, Occ. Student,
      r/o Empress Mill No.1, Santra Market,
      Nagpur.                               .....PETITIONER

                               ...V E R S U S...

 1. The Principal Secretary,
    Maharashtra Public Health Department,
    Mantralaya, Mumbai-32.

 2. The Commissioner of Police,
    Nagpur Division, Nagpur,
    Civil Lines, Nagpur.

 3. The Police Inspector,
    Police Station, Ganeshpeth,
    Dist. Nagpur.

 4. The Dean,
      Indira Gandhi Medical College and
      Hospital, C.A. Road, Nagpur.                            ...RESPONDENTS
 -------------------------------------------------------------------------------------------
 Mr. Ashwin Wasnik, Advocate for petitioner.
 Mr. S. M. Ghodeswar, A.P.P. for respondents-State.
 -------------------------------------------------------------------------------------------

                               CORAM : V.M. DESHPANDE AND
                                       AMIT B. BORKAR, JJ.

DATED : JUNE 18, 2021

ORAL JUDGMENT (Per: V. M. Deshpande, J.)

1. Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for the parties. Heard Mr. Wasnik,

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learned counsel for petitioner and Mr. Ghodeswar, learned A.P.P.

for respondents-State. Also perused the report submitted by the

committee, in view of order dated 10.06.2021 passed by this

Court. It is taken on record and marked "X" for the purpose of

identification.

2. By this writ petition, the petitioner is praying for the

following reliefs.

(A) Issue a writ, order or direction thereby directing the Respondent no.1 to 4 to terminate the pregnancy of the petitioner by following the due procedure of law.

3. It is stated by the petitioner that she was sexually

assaulted by one Avinash Dondiram Bhimte. She, therefore,

lodged an FIR with Police Station, Ganeshpeth on 04.05.2021.

Since the report lodged by the petitioner was disclosing

commission of a cognizable offence, the Police Station Officer of

the said Police Station registered an offence under Sections 376

(2) (1), 417 and 323 of the Indian Penal Code against Avinash

Bhimte. The investigation is still in progress.

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4. Mr. Wasnik, learned counsel for the petitioner, submits

that Police Station Officer, Ganeshpeth arrested accused Avinash

and as on today, he is in jail.

5. According to the petitioner, the sexual assault was

against her wish by the accused and due to that she has conceived.

From the intimation letter dated 18.05.2021, which is placed on

record at page no. 15 of the compilation of this writ petition, it is

clear that on 05.05.2021, after registration of the offence, the

petitioner was medically examined at Mayo Hospital and that

time, the Medical Officer gave a written opinion that she is

carrying 13 weeks pregnancy. The petitioner's supplementary

statement was also recorded on 05.05.2021 in which she did state

that she is not ready to carry the pregnancy.

6. This writ petition was listed on 10.06.2021. On the

said day, Court observed to determine as to whether it is feasible

to terminate the pregnancy and for that purpose, a report from the

Medical Board was called. Accordingly, respondent no.4-Dean,

Indira Gandhi Medical College and Hospital, Nagpur constituted a

committee under the chairmanship of Dr. Prashant Ukey, Professor

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and HOD of Department of Obstetrics & Gynaecology, Dr. Alka

Patankar, Associate Professor, Dr.Kshma Kedar, Associate

Professor and Dr. Sachin Wankhede, Associate Professor. The said

Committee examined the petitioner and gave its report to this

Court through Mr. Ghodeswar, learned A.P.P., which is taken on

record at Exh.-X. The Committee's report expresses following

opinion.

"Committee's opinion:

1. Medical termination of pregnancy (MTP) can be done with due risk, as gestational age (17 weeks 6 days) falls well within permissible limit of medical termination of pregnancy act.

2 Before undergoing MTP, necessary blood and radiological investigations and fitness from physician and anesthetist will be required."

From the aforesaid, it is crystal clear that the medical

experts recommended the termination of pregnancy.

7. In view of the experts' opinion, the writ petition is

allowed. The petitioner is permitted to terminate her pregnancy.

The termination of her pregnancy shall be done at Indira Gandhi

Government Medical College and Hospital, Nagpur on 21.06.2021.

The respondent no.4 shall ensure the due care at the time of

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process and shall keep all the emergency services available during

the process to take care of the petitioner.

8. Respondent no.4 is also directed to ensure that blood

samples and tissues of foetus are duly preserved since it will be

medical evidence in the criminal case. The blood sample of the

petitioner shall also be collected.

9. The learned A.P.P. is directed to communicate this

order to the respondent no.4.

10. Parties to act upon the authenticated copy of this

judgment.

Rule is made absolute in the above terms.

                      JUDGE                          JUDGE



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