X vs The State Of Jharkhand Through Its ...
2023 Latest Caselaw 710 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Criminal Writ Jurisdiction)

                         W.P(Cr.) No. 13 of 2023

X, minor (victim) aged about 17 years, d/o Raju Sahu, r/o village-Harmu
Road, Nadiya, PO-Harmu, PS-Lohardaga, District-Lohardaga, Jharkhand
represented through her father Raju Sahu, S/o Late Bihari Sahu, r/o village-
Harmu Road, Nadiya, PO-Harmu, PS-Lohardaga, District-Lohardaga,
Jharkhand                                                 ..........Petitioner
                                 Versus
1.The State of Jharkhand through its Secretary, Department of Women,
Child Development and Social Security having its office at Project Building,
Dhurwa, PO-Dhurwa, PS-Jagarnathpur, District-Ranchi, Jharkhand
2. Sadar Hospital, through the Civil Surgeon, Lohardaga, PO+PS-
Lohardaga, District-Lohardaga, Jharkhand
3. Civil Surgeon, Sadar Hospital, Lohardaga, PO+PS-Lohardaga, District-
Lohardaga, Jharkhand
4. Superintendent of Police, Lohardaga, PO+PS-Lohardaga, District-
Lohardaga, Jharkhand
5. Officer-in-charge, Mahila Police Station, PO+PS-Lohardaga, District-
Lohardaga, Jharkhand                                     .......Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner        : Mr. Abhishek Kumar Dubey, Advocate
                            Mr. Arvind Prajapati, Advocate
For the State of Jharkhand :Dr.(Mrs.) Vandana Singh, Sr.SC-III
                                  -------

Order No.03 /Dated: 10th February 2023

This petition under Article 226 of the Constitution of India has been filed by 'X', a minor, who is victim of the sexual crime in respect of which a First Information Report has been lodged against Sumit Sahu, Amit Sahu and Babli Sahu vide Lohardaga (M) PS Case No.41 of 2022 for the offence under sections 323, 341, 376, 313, 504, 506, 109 r/w section 34 of the Indian Penal Code, and section 4/6 of the Protection of Children from Sexual Offences Act, 2012.

2. Through this petition, the victim girl has made a prayer for a direction upon the Civil Surgeon of Sadar Hospital, Lohardaga to take appropriate steps in terms of the Medical Termination of Pregnancy Act, 1971 as amended in 2021 (hereinafter referred to as 'MTP Act') so as to facilitate termination of her pregnancy caused on account of sexual assault

upon her by Sumit Sahu.

3. The present petition has been supported by an affidavit of Raju Sahu who is the father of 'X'.

4. The statement of 'X' recorded under section 164 of the Code of Criminal Procedure in Lohardaga (M) PS Case No.41 of 2022 pursuant to a direction issued by this Court on 3rd February 2023 has been transmitted to the Registry of this Court.

5. In her statement under section 164 of the Code of Criminal Procedure, 'X' has stated that she does not want to continue with the pregnancy and her decision to terminate the pregnancy has concurrence of her parents.

6. Under sub-section (2-C) of section 3 of the MTP Act, 1971, every State Government or Union Territory, as the case may be, is under a duty to constitute a Board through a notification in the Official Gazette to be called a "Medical Board" for the purposes of the Act and to exercise such powers and functions as may be prescribed by the rules made under this Act.

7. Section (2-D) of section 3 of the MTP Act, 1971 provides composition of the Medical Board to comprise (a) a Gynaecologist, (b) a Paediatrician, (c) a Radiologist or Sonologist, and (d) such other members as may be notified in the Official Gazette by the State Government or Union Territory, as the case may be.

8. In the case of "Ms. X Vs. Union of India & Ors." in Writ Petition (C) No. 593 of 2016, the Hon'ble Supreme Court on a consideration of Sections 3 and 5 of the MTP Act, 1971 has held that the termination of pregnancy which is necessary to save the life of the pregnant woman is permissible.

9. In "X v. Health & Family Welfare Department" 2022 SCC OnLine SC 1321, the Hon'ble Supreme Court has observed that the right to terminate pregnancy is a fundamental right under Article 21 of the Constitution of India.

10. The Hon'ble Supreme Court has observed as under:

"103. In K S Puttaswamy v. Union of India, a nine-judge bench of this Court recognized the right to privacy as a constitutionally protected right under Article 21 of the Constitution. In Puttaswamy (supra), this Court held that the right to privacy enables individuals to retain and exercise autonomy over the body and mind. The autonomy of the individual was defined as "the ability to make

decision on vital matters of concern to life." The judgment delivered on behalf of four judges described the right to privacy in the following terms:

"297. ... Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt."

(emphasis supplied)

104. Importantly, Puttaswamy (supra) also deals with facets of reproductive autonomy. Chelameshwar, J. held that a "woman's freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy."This Court recognized the right to bodily integrity as an important facet of the right to privacy. Puttaswamy (supra) considered Suchita Srivastava v. Chandigarh Administration to reiterate that the statutory right of a woman to undergo termination of pregnancy under the MTP Act is relatable to the constitutional right to make reproductive choices under Article 21 of the Constitution."

11. While the above is the legislative intendment and the decision of the Hon'ble Supreme Court, we allow this petition with a direction to the Principal Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand to constitute a Medical Board and, if in the opinion of the Medical Board the termination of pregnancy of 'X' is possible and permissible to take necessary steps so as to facilitate termination of pregnancy of 'X' as early as possible.

12. The doctors involved in the procedure shall undertake the procedure of termination of pregnancy keeping every pre-caution while aborting the fetus so that the life of 'X' is not put to a risk. The Civil Surgeon, Sadar Hospital, Lohardaga shall provide the best post-operative care available to 'X' and release her from the hospital after she fully recovers from the operation.

13. The State of Jharkhand shall bear all the expenses necessary for the operation including medicines, food, accommodation of 'X' and to her parents in the hospital premises itself.

14. The Civil Surgeon, Sadar Hopital, Lohardaga shall ensure that the terminus fetus is preserved as it may be necessary for the purpose of conducting a DNA test.

15. As soon as the patient fully recovers and is discharged, the Deputy Commissioner, Lohardaga shall make necessary arrangements for her transportation to her residence. The respondent nos. 4 and 5 shall make necessary security arrangements.

16. The Secretary of the District Legal Services Authority, Lohardaga shall involve himself in the entire process and also ensure that the benefits of the schemes framed by NALSA and the State of Jharkhand are provided to 'X'.

17. Let statement of 'X' recorded under section 164 of the Code of Criminal Procedure be kept in the records of this case.

18. W.P(Cr.) No.13 of 2023 stands allowed.

19. Let a copy of this order be handed over to the learned State counsel and transmitted to the Deputy Commissioner, Lohardaga.

(Shree Chandrashekhar, J.) sudhir