Xyz vs State Of Mah. Thr. Its Secretary ...
2022 Latest Caselaw 3495 Bom

                                                   1                924 crwp166.22.odt




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

              CRIMINAL WRIT PETITION NO. 166 OF 2022


     XYZ                                                       ... PETITIONER

           ---VERSUS---

1. State of Maharashtra,
   through its Secretary,
   Public Health Department,
   Mantralaya, Mumbai-32.

2. State of Maharashtra,
   Through Police Station Officer,
   Police Station, Dabki Road,
   District Akola

3. Chief Medical Officer,
   Govt. Medical College and Hospital,
   Akola                                                       ...RESPONDENTS

-------------------------------------------------------------------------------------------
Shri A.S. Thotange, Advocate for petitioner.
Shri M.K. Pathan, Additional Public Prosecutor for respondents.
-------------------------------------------------------------------------------------------
             CORAM :          V. M. DESHPANDE AND
                              AMIT BORKAR, JJ.

             DATE         :   30th MARCH, 2022 .


JUDGMENT : (PER - AMIT BORKAR, J.)


1.           Heard.
                                      2            924 crwp166.22.odt


2.       Rule. Rule made returnable forthwith.

3. By this petition under Articles 227 and 227 of the

Constitution of India the petitioner is seeking a direction to the

Medical Board to terminate the pregnancy of the petitioner. The

petitioner has lodged report against one Siddhant Anil Chandak

for an offence punishable under Sections 376, 376(2) (n) of the

Indian Penal Code and under Sections 3, 4 and 5(j)(2) of the

Protection of Children from Sexual Offences Act, 2012 with

respondent no.2-Police Station.

4. It is alleged in the First Information Report (FIR) that

out of love relationship between the accused and petitioner, on the

pretext of marriage the accused had sexual intercourse resulting

into her pregnancy. It is alleged that thereafter accused started

avoiding the petitioner. With the result, she lodged FIR against

the accused.

5. After registration of FIR, the petitioner was referred to

the Government Medical College and Hospital, Akola and she was

admitted from 15.02.2022 to 20.02.2022. After examination of

the petitioner by Doctor at the said hospital, it was communicated 3 924 crwp166.22.odt

to the petitioner that she is pregnant of 12 to 13 weeks. However,

in view of provisions of the Medical Termination of Pregnancy

(Amendment) Act, 2021 unless there is an order of the Court, her

pregnancy cannot be terminated. The petitioner therefore filed the

present writ petition seeking direction against the respondent no.3

to terminate medical pregnancy of the petitioner.

6. This Court by order dated 21.03.2022 directed the

respondent no.3-Chief Medical Officer, Government Medical

College and Hospital, Akola to constitute a Board in accordance

with law to examine the petitioner and give detailed report giving

clear opinion as to whether pregnancy can be safely terminated.

7. Accordingly, respondent no.3- Dr. Aparna Whane,

Professor and Head of Department, Obgy. and Gynecology,

Government Medical College and Hospital, Akola has filed

affidavit-in-reply stating that the case of petitioner is not required

to be considered by the Board as provisions of Medical

Termination of Pregnancy (Amendment) Act, 2021 require the

pregnancy beyond 24 weeks to be examined by the Board and in

the facts of the present case the petitioner's pregnancy is being of 4 924 crwp166.22.odt

12 weeks, constitution of Board is not necessary. The respondent

no.3 clearly stated in paragraph 5 of the affidavit that she has

conducted relevant examinations of the petitioner and as per her

opinion pregnancy of the petitioner can be safely terminated.

8. Shri M.K. Pathan, learned Additional Public Prosecutor

placed on record the copies of examination papers of petitioner

and the documents to show various investigations done by the

respondent no.3. The said documents are taken on record and

collectively marked as "Exhibit-X" for identification.

9. After having considered the provisions of Medical

Termination of Pregnancy Act, 1971 and the clear opinion

rendered by the respondent no.3 - Chief Medical Officer, in our

opinion, there is no impediment in directing the respondent no.3

to perform the necessary procedure for medically termination of

pregnancy of petitioner. Considering, however, that the pregnancy

in the present case has been result of alleged rape, which has led

to filing of FIR, appropriate directions for preservation of tissue

and blood sample of fetus for carrying out requisite medical tests 5 924 crwp166.22.odt

including DNA finger printing/mapping would have to be passed.

We, therefore, pass the following order:

i. Petitioner is permitted to undergo the procedure of

medically termination of pregnancy as per opinion of

respondent no.3. The respondent no.3 shall carry out the

necessary procedure for termination of pregnancy of

petitioner as early as possible and in accordance with law.

ii. The blood sample and tissue sample of the fetus shall be

preserved for the purpose of carrying out necessary medical

tests including DNA and other tests, as may be ordered.

iii. The respondent no.2/investigating officer shall collect the

blood samples of accused for the purpose of sending the

same for DNA examination.

The petition stands disposed of. Rule is made absolute in

above terms.

Pending application(s), if any, stand(s) disposed of.

                                               JUDGE                                   JUDGE




                Wagh


Signed By:SURESH RAOSAHEB
WAGH
Personal Assistant
to the Hon'ble Judge
Signing Date:30.03.2022 17:16