Anup S/O Dasaram Pardhi vs The State Of Mha. Thr. Pso Aroli ...
2023 Latest Caselaw 3021 Bom

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

CRIMINAL REVISION APPLICATION NO. 29 OF 2023

 APPLICANT                     :      Anup S/o. Dasaram Pardhi, Aged
                                      about 45 years, Occu: Doctor, R/o.
                                      Yerola, Tah: Tumsar, District-
                                      Bhandara.

                                           //VERSUS//

 NON-APPLICANT : 1. The State of Maharashtra, through
 NO.1               PSO Aroli, Dist. Nagpur.

                                   2. XYZ (Victim), through Informant in
                                      the Crime No.11 of 2021 registered
                                      with Police Station Aroli, Dist.
                                      Nagpur.

**************************************************************
  Mr. H.G. Katekar, Advocate for the Applicant.
  Mr. A.R. Chutke, APP for Non-applicant No.1/State.
  Ms. A.M. Kshirsagar, Advocate (Appointed) for Non-applicant
  No.2.
**************************************************************
                       CORAM : G. A. SANAP, J.
                       RESERVED ON : 1st MARCH, 2023.
                       PRONOUNCED ON : 28th MARCH, 2023.

       JUDGMENT

Heard.

02] Admit. Matter is taken up for final disposal by consent

of the learned advocates for the parties.

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03] In this criminal revision, challenge is to the order dated

23rd October, 2021 passed by the Extra Joint District Judge-4 and

Additional Sessions Judge, Nagpur, whereby the learned Judge

rejected the application at Exh.13 made by the applicant, who is

accused No.2, for his discharge in Special Case (POCSO)

No.206/2021.

04] The relevant facts for deciding this revision application

are as follows:

The applicant will hereinafter be referred to as the

accused No.2. The accused No.2 is Electro Homeopathy Doctor.

The victim is the daughter of the informant. The accused Nos.1

and 2 are facing the prosecution for the offences punishable under

Sections 376(2)(n), 312 and 313 of the Indian Penal Code, 1860

and Sections 4 and 6 of the Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as "the POCSO Act").

The accused No.1, as per the case of the prosecution, has sexually

assaulted the victim and, therefore, the victim was conceived.

05] It is the case of the prosecution that when the victim

came to know that her menstrual period had stopped, she informed

about it to the accused No.1. It is the case of the prosecution that

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before taking the victim to the accused No.2, the accused No.1 met

the accused No.2 and apprised him about his problem. The

accused No.1, as per the case of prosecution, assured the victim that

he had already spoken to the accused No.2 and the accused No.2

would give her medicine and thereafter there would be miscarriage.

The accused No.1 took the victim to the accused No.2. The

accused No.2 gave her medicines/tablets like HP4, Destam, Ome

Tab, Dashmularist etc. The victim consumed the medicines. On

the next day, there was vaginal bleeding. The informant, the

mother of the victim carried the victim to the Government

Hospital, Bhandara. The Medical Officer apprised the mother of

the victim about the pregnancy and miscarriage. It is the case of the

prosecution that the accused No.2 gave the medicines/pills to the

victim and, therefore, the miscarriage was caused. The accused

Nos.1 and 2 are, therefore, facing the prosecution.

06] The accused No.2 made an application before the

Sessions Court, Nagpur for his discharge. According to him, he has

not committed any offence. There was love affair between the

accused No.1 and the victim. The victim was brought to him by

the accused No.1. The accused No.2 examined the victim for

stomach pain. He gave the medicine to the victim and he

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prescribed the medicine to the victim. It was his duty to protect the

victim who was brought to him as a patent. He has acted in a good

faith. He has not committed any offence. The final report given by

the experts stating that the miscarriage was caused due to the

medicines, is vague and cannot be accepted.

07] The prosecution has filed reply and opposed the

application before the Sessions Court. It is the case of the

prosecution that during the course of investigation, the tablets were

seized from the victim and sent for analysis and examination. The

report has been received. The report clearly indicates that the

miscarriage can be caused by the medicines prescribed by the

accused No.2. It is further stated that the accused No.2 was not

authorised to prescribe the medicine. He is not Gynecologist. He

did not refer the victim to the Gynecologist. It was, therefore,

contended that the accused No.2 has not made out a case for

discharge.

08] The learned Additional Sessions Judge on the basis of

the material placed on record found that the complicity of the

accused No.2 has been prima facie made out. The learned Judge,

therefore, rejected his application.

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09] I have heard Mr. H.G. Katekar, learned advocate for

the accused No.2, Mr. A.R. Chutke, learned Additional Public

Prosecutor for the State and Ms. A.M. Kshirsagar, learned advocate

for the victim. Perused the record and proceedings.

10] The learned advocate for the accused No.2 submitted

that the accused No.2 on the say of the accused No.1 in good faith

prescribed the medicine to the victim. The learned advocate

submitted that the accused No.1 prescribed the medicine for the

acute pain in the stomach of the victim. The learned advocate

submitted that at the relevant time he was not aware that the victim

was carrying pregnancy. The learned advocate submitted that the

report submitted by the expert stating that the medicines

prescribed by the accused No.2 caused miscarriage, is vague and,

therefore, cannot be made the basis of the prosecution. The learned

advocate submitted that the learned Additional Sessions Judge has

not taken all these aspects into consideration and as such has come

to a wrong conclusion. The learned advocate further submitted

that the provisions of the POCSO Act cannot be applied against

the accused No.2, in view of the mandatory provisions of Section

41 of the POCSO Act.

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11] The learned Additional Public Prosecutor for the State

submitted that at this stage the Court has to see the evidence

available on record and not to appreciate the said evidence and

record a finding of fact as to the issue involved in the trial. The

learned Additional Public Prosecutor submitted that there is

overwhelming evidence on record to establish the complicity of the

accused No.2 in the commission of crime. The learned Additional

Public Prosecutor submitted that the protection of Section 41 of

the POCSO Act is not applicable to the case of the accused No.2.

12] It is to be noted that after investigation, the charge-

sheet came to be filed against the accused Nos.1 and 2. During the

course of investigation, the medicines/tablets prescribed by the

accused No.2 to the victim were seized and forwarded to the

Superintendent, Government Ayurvedic College, Nagpur. The

panel consisting of three members on examination of the

tablets/medicines gave the report. In the said report, it has been

categorically stated that the tablets/medicines prescribed by the

accused No.2 to the victim has caused miscarriage. The report

dated 3rd March, 2021 is on record. It is the case of the prosecution

that the accused No.1, who is not the custodian or guardian of the

victim, had taken her to the doctor. It is the case of the prosecution

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that before taking the victim to the doctor-accused No.2, the

accused No.1 had met him and apprised him about the problem he

has been facing on account of the pregnancy of the victim. It is the

case of the prosecution that as per the assurance of the accused

No.2 to take care of his problem, the accused No.1 took the victim

to the accused No.2 and the accused No.2 on examination

prescribed the medicines/tablets to her.

13] It is to be noted that on the very next day of the

consumption of medicine by victim vaginal bleeding started. The

mother of the victim took the victim to the Government Hospital

at Bhandara. In the Government Hospital, Bhandara, the Medical

Officer on examination informed the mother of the victim that the

victim was pregnant. The Medical Officer further informed her

that there was miscarriage. The mother of the victim on being

confronted with the real state of affairs and involvement of the

accused No.1 went to the police station and reported the matter to

the police.

14] During the course of investigation, ample material has

been collected. On the basis of the said material, it has been prima

facie established that the accused No.2 had prescribed the tablets/

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medicines, which resulted into miscarriage of the victim. It is the

case of the accused No.2 that the victim was suffering from acute

stomach pain, when she was brought to him by the accused No.1. It

is his case that he has examined the victim and prescribed the

medicines. It is his case that being a doctor, it was his duty to take

care of the patent. In short, it is his case that he has acted in good

faith. It needs to be stated that whether he has acted in good faith

or not is a question of fact. The said question of fact would be

required to be addressed on appreciation of the evidence led by the

prosecution. It is undisputed that the accused No.2 is not the

Gynecologist. He did not refer the victim to the Gynecologist. The

Medical Board has categorically opined that the medicines/tablets

can cause miscarriage.

15] In my view, therefore, this fact is required to be borne

in mind while considering the submissions advanced on behalf of

the accused No.2. The case of the accused No.2 that he has acted

in good faith is required to be considered in totality of the facts and

evidence. The accused No.2 knew that the victim and the accused

No.1 were not married. It is not his case that this fact is not borne

out from his record. It is also not his case that he had verified the

relationship between the accused No.1 and the victim. It is also not

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his case that the accused No.1 was the guardian or care taker of the

victim. In my view, all these facts are required to be taken into

consideration. In the above background, it would be necessary to

bear in mind and consider the settled legal position applicable at

the stage of deciding the discharge application made by the accused

No.2.

16] In this context, a useful reference can be made to the

decisions of the Hon'ble Apex Court in the cases of Tarun Jit

Tejpal Vs. State of Goa and Another [(2020) 17 SCC 556] ;

Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra

Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Sajjan Kumar

Vs. Central Bureau of Investigation [(2010) 9 SCC 368], wherein it

has been held that appreciation of evidence at the time of framing

of the charge or while considering discharge application, is not

permissible. The Court is not permitted to analyse all the material

touching the pros and cons, reliability and acceptability of the

evidence. In the case of Tarun Jit Tejpal (supra), it is held that at

the time of consideration of the application for discharge, the

Court cannot act as a mouth piece of the prosecution or act as a

post office and may sift evidence in order to find out whether or

not the allegations made are groundless so as to pass an order of

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discharge. It is held that at the stage of consideration of application

for discharge, the Court has to proceed with an assumption that the

materials brought on record by prosecution are true and evaluate

the said materials and documents with a view to find out whether

the facts emerging therefrom taken at their face value disclose the

existence of all the ingredients constituting the alleged offences. At

this stage, the Court is not expected to go deep into the matter and

hold that materials would not warrant a conviction. It is held that

what needs to be considered is whether there is a ground for

presuming that the offence has been committed and not whether a

ground for convicting accused has been made out. It is further

held that the law does not permit a mini trial at the stage of

deciding the discharge application or at the time of framing of

charge.

17] In my view, if the facts culled out from the prosecution

case if examined in the teeth of the legal position as above, it would

show that the learned Judge was right in rejecting the application.

The questions involved in this case are required to be addressed on

merits after recording evidence. The evidence cannot be

appreciated at this stage. On prima facie analysis of the material on

record, the Court has to see whether the said material is sufficient

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to presume that the accused has committed offence or not. If it is

found sufficient to draw such a presumption, then the Court has to

proceed further and frame the charge. It is trite law that the

probative value of the evidence cannot be considered by

appreciating the evidence while deciding the discharge application

or at the stage of framing of charge. In my view, if the submissions

advanced by the learned advocate for the accused No.2 are

accepted and the material is appreciated and its probative value is

tested, then it would be nothing short of holding a mini trial at this

stage. It is not permissible in law. Therefore, I do not find any

substance in the revision application. The revision application

stands dismissed.

(G. A. SANAP, J.)

Vijay