Dr. Usha Sharma vs State
2006 Latest Caselaw 2068 Del

JUDGMENT

A.K. Sikri, J.

1. Petitioner is a doctor by profession who did her MBBS from Lady Harding Medical College and also diploma in cology and Obstetrics from Maulana Azad Medical College. She claims that she has almost 20 years of experience to her credit as a senior medical practitioner with specialization in Gynaecology and Obstetrics. Her husband is also a doctor and both of them set up, in the year 1984, a clinic called Bharat Hospital in Nangloi area of Delhi. In the year 1996, this hospital was accorded approval by the Directorate of Family Welfare for the purpose of medical termination of pregnancy as per the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the 1971 Act').

2. Against the petitioner, one Shri Vijender Kumar (complainant) has lodged written complaint to the SHO, Nangloi, which is registered as FIR No. 728/1999. In this complaint it is alleged that his wife Rani Devi was taken to the petitioner for aborting her pregnancy on 21.6.1999, when Rani Devi was carrying pregnancy of 141/2 weeks. Petitioner charged Rs. 2,500/- from him and conducted the operation for abortion. It is alleged that the petitioner acted negligently by conducting incomplete operation, wrongly cut the parts of the body and discharged Rani Devi on 22.6.1999 at 7.00 pm, i.e. on the very next date. The complainant brought his wife to the petitioner on 23.6.1999 in the morning and she again examined his wife and charged Rs. 400/-. However, despite giving the medicine as prescribed by the petitioner, complainant's wife could not get any relief. On 24.6.199, complainant again met the petitioner and complained that his wife was not getting relief from pain. The petitioner yet again charged Rs. 400/- and prescribed one injection and some other intoxicant medicines. The complainant requested the petitioner for referring the patient to a Government Hospital but the petitioner refused to do so. When the patient was not getting relief from pain, the complainant took his wife to Jai Prakash Narayan Hospital on 25.6.1999 where she was got admitted and operated upon. There the complainant was told that his wife was operated upon by some inexperienced person and the doctors in the said hospital took out the remaining portion of the embryo which was operated by the petitioner. However, the complainant's wife could not survive and died on 27.6.1999.

3. On filing of the charge sheet the petitioner was summoned as accused. Parties were heard and the learned ASJ passed order dated 26.4.2004 framing the charge against the petitioner under Section 314 of the Indian Penal Code (for short 'IPC'). It may be mentioned that though at the initial stage, on the complaint of the complainant, case was registered under Section 304-A IPC, but later it was converted into Section 314 IPC at the direction of Senior Public Prosecutor. It may also be mentioned that no postmortem was conducted after the demise of Rani Devi. Against the framing of this charge, the petitioner filed Criminal Writ Petition No. 1342/2004, however, vide order dated 17.11.2004, it was treated as petition under Section 482 of the Code of Criminal Procedure and that is how this petition is heard by this Bench. It would be necessary to note at this stage that the petitioner had also filed Crl. Revision Petition No. 337/2004 under Section 397 IPC against the framing of the charge which was dismissed as withdrawn on 28.5.2004.

4. Submission of Learned Counsel for the petitioner is that no offence under Section 314 IPC, even prima facie, is made out. Before I take note of the submissions on the basis of which the aforesaid argument is raised, let me first reproduce the provisions of Section 314 IPC:

314. Death caused by act done with intent to cause miscarriage. - Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;

If act done without woman's consent. - And if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above mentioned.

5. As is clear from the aforesaid provision, following ingredients are to be proved to bring the case within the four corners of Part-I of Section 314 IPC: (a) the woman was with child, (b) the accused did an act to cause miscarriage, (c) he did so with such intention, (d) such act caused the death of the women. To bring the case under Part-II of Section 314 IPC, it is also to be proved that act was done without woman's consent. We are not concerned with that part in this case as admittedly the complainant's wife Rani Devi had given her consent as she had gone to the petitioner for getting her pregnancy aborted.

6. If one looks into the aforesaid ingredients in isolation, probably prima facie case against the petitioner is made out inasmuch as the deceased was admittedly carrying the child and the petitioner did an act to cause miscarriage with intention to do so. The dispute is as to whether it is the act of the petitioner which has caused the death of Rani Devi. That apart, the provisions of Section 314 IPC are not to be read in isolation in the instant case. The petitioner is a registered medical practitioner and her clinic has been accorded approval by the Directorate of Family Welfare for the purpose of medical termination of pregnancy under the 1971 Act. This Act not only permits the termination of unwanted pregnancies by the authorized medical practitioners but accords protection to such medical practitioners against legal proceedings. Therefore, it becomes imperative to take note of the provisions of the 1971 Act and the effect of those provisions on Section 314 IPC. The 1971 Act was enacted by the Parliament to provide for the termination of certain pregnancies by registered medical practitioners. The Statement of Objects and Reasons stated therein, which will indicate the rationale behind passing such an enactment by the Parliament, would be important for our purposes and are reproduced below:

The provisions regarding the termination of pregnancy in the Indian Penal Code which were enacted about a century ago were drawn up in keeping with the then British Law on the subject. Abortion was made a crime for which the mother as well as the abortionist could be punished except where it had to be induced in order to save the life of the mother. It has been stated that this very strict law has been observed in the breach in a very large number of cases all over the country. Furthermore, most of these mothers are married women, and are under no particular necessity to conceal their pregnancy.

2. In recent years, when health services have expanded and hospitals are availed of to the fullest extent by all classes of society, doctors have often been confronted with gravely ill or dying pregnant women whose pregnant uterus have been tampered with a view to causing an abortion and consequently suffered very severely.

3. There is thus avoidable wastage of the mother's health, strength and, sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure - when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds - such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; and (3) eugenic grounds - where there is substantial risk that the child, if born, would suffer from deformities and diseases.

7. It is clear that when this Act was passed, the Parliament was conscious of the provisions regarding termination of the pregnancy in the IPC including Section 314 IPC. The Legislature noted that abortion was made a crime for which the mother as well as the abortionist could be punished except where it had to be induced in order to save the life of the mother. The Parliament had found that this very strict law had been observed in the breach in a very large number of cases all over the country. The three reasons, as stated in the Statement of Objects and Reasons, which prompted the Legislature to liberalize the existing provisions of IPC relating to termination of pregnancy were: a) as a health measure, b) on humanitarian grounds, and c) eugenic grounds.

8. Over a period of time, fourth reason which has emerged is unwanted pregnancies to check population growth. This is the policy of the Government as well for the last number of years.

9. Section 3 of the 1971 Act lays down the circumstances when pregnancies may be terminated by the registered medical practitioners. Sub-section (2) of Section 3 gives those circumstances. It is not necessary to go into these circumstances inasmuch as in the present case, as per the complainant's own version, the complainant wanted termination of his wife's pregnancy. It is not known as to what was the reason but at the same time it is not the case of the complainant that there was a necessity for such an operation. Thus, it is obvious that the petitioner, who is a registered medical practitioner, terminated the pregnancy under the 1971 Act. For us, Sub-section (1) of Section 3 becomes important, which gives immunity to such a medical practitioner and reads as under:

3. When pregnancies may be terminated by registered medical practitioners. - (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), 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.

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10. There is, then, Section 8 of the 1971 Act which also provides protection taken by the medical practitioners acting in good faith and is worded as under:
 8. Protection of action taken in good faith. - No suit or other legal proceedings shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.
 

11. Thus, Section 3(1) of the 1971 Act provides immunity against criminal action and Section 8 provides protection against civil action for damages. Coming back to the working of Sub-section (1) of Section 3, it is a non-obstante provision which specifically excludes whatever is contained in the IPC and this intention is clear in the opening words of Sub-section (1) of Section 3 which read - 'Notwithstanding anything contained in the IPC...'. Thus, if the pregnancy is terminated by a qualified doctor in accordance with the provisions of this Act, such a doctor is not to be treated as guilty of any offence under the IPC, or for that matter under any other law for time being in force. Obviously this provision was intended to protect the medical practitioners from charging with offence under Section 314 or the like and clearly mandates that no such prosecution could be launched against the registered medical practitioners who act under the provisions of the 1971 Act. Interestingly, in the present case charge is not under Section 304-A IPC. Thus, there is no charge of negligence against the petitioner while performing the operation. Though there are stringent requirements for attraction of Section 304-A when negligence is attributed on the part of a qualified registered medical practitioner, the Supreme Court has now categorically held that for every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. [See - Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. 2004 SCC (Crl) 1785].

12. The effect of the non-obstante clause is clear and unambiguous. It becomes an overriding provision and is to prevail over anything contained in any relevant existing law which is inconsistent with the new enactment. A non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment. The purpose is to avoid the operation of all contrary provisions. It is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it, will have its full operation or that the provisions indicated in the non-obstante clause will not be an impediment for the operation of the enactment {See - Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. ; Maruti Udyog Ltd. v. Ram Lal ; State of Bihar v. Bihar Rajya M.S.E.S.K.K. Mahasangh 2005 (9) SCC 129; and Parayankandiyal Eravath Kanapravan v. K. Devi }.

13. As noticed above, the learned senior counsel had also argued that, but for the allegation of the complainant, there is not even an iota of evidence on record to substantiate the said bald allegation. Admittedly, there was no post mortem and there is no such report giving the cause of death. There is no medical opinion on record giving the cause of death and no X-Ray was also performed showing that part of the aborted child was left in the womb of the deceased. There is a novus actus interveniens, namely, treatment of the deceased by the LNJP Hospital and it would not be known as to whether the death occurred due to faulty operation performed by the petitioner or due to improper treatment given by the doctors at LNJP Hospital. Further, even for civil liability, on the basis of the aforesaid principle, it is held that a person is not liable for damage done if the chain of causation between his act and the damage is broken by the intervening act of a third person unless it is a foreseeable consequence of his own act. In the absence of any independent medical opinion or the post mortem report to determine the cause of death, it may not be possible to fasten the liability upon on the petitioner under Section 314 IPC even if it is presumed to be applicable and the position under the 1971 Act is to be ignored. The order of the learned ASJ mentions that the doctors at LNJP had remarked that Rani Devi was operated upon by some inexperienced person which is falsified inasmuch as the petitioner is not only a qualified doctor and registered medical practitioner, but has 20 years experience in the field with specialisation in Gynaecology and Obstetrics. There may be force in this submission. But it is not necessary to give any conclusive opinion on this aspect as the petition warrants to be allowed on the aforesaid legal submission itself.

14. As the case relates to legal embargo in framing the charge against the petitioner, merely because the petitioner had earlier preferred the criminal revision, which the petitioner withdrew, would not be a bar for the petitioner to file the present petition, more so when the said criminal revision was not dismissed on merits.

15. In view of the aforesaid legal position, I am of the opinion that charge framed by the learned MM is not legally sustainable. The learned trial court did not take into consideration the provisions of Section 3(1) of the 1971 Act at all as per which Section 314 IPC cannot even be invoked in the case of the petitioner who acted under the provisions of the 1971 Act and, therefore, she could not be charged under the aforesaid provision as there is legal bar for charging the petitioner under Section 314 IPC. It is a fit case where provisions of Section 482 Cr.P.C. should be invoked having regard to the principles laid down by the Supreme Court in R.P. Kapoor v. State of Punjab, and State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335.

16. The impugned order framing the charge against the petitioner is hereby set aside; the proceedings arising out of FIR No. 728/1999 are quashed; and the petitioner is discharged in the said FIR.

17. Petition and the application stand disposed of.