Kerala High Court
Dr.Natarajan vs State Of Kerala on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
CRL.MC NO. 8364 OF 2018
CRIME NO.703/2018 OIF PALAKKAD TOWN NORTH POLICE STATION, PALAKKAD
PETITIONER/ACCUSED NO.2
DR.NATARAJAN, AGED 78 YEARS
S/O.AYYAVU IYER, KAILAS VINAYAKA COLONY, THAREKKAD, NEAR
VICTORIA COLLEGE, PALAKKAD III VILLAGE, PALAKKAD TALUK
AND DISTRICT.
BY ADVS.
S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENT/STATE
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
(CRIME NO.703/2018 OF PALAKKAD TOWN NORTH POLICE STATION,
PALAKKAD DISTRICT)
PP SRI. RENJIT GEORGE
PP RENJIT GEORGE,SR GP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.M.C.8364/18
2
ORDER
Dated : 25th November, 2021
1. This Crl.M.C has been filed seeking to quash the entire
further proceedings in Crime No.703/2018 of Palakkad
Town North Police Station which has been registered for
the offence punishable under Section 21 of the
Protection of Children from Sexual Offence Act, 2012
(PoCSO Act).
2. Prosecution allegation is that on 15.5.2018 accused
conducted D&C upon the minor victim aged 17 years in
spite of knowing the fact that she is a minor aged 17
years and failed to intimate the fact to the concerned
authorities and thereby committed the offence
aforementioned.
3. Annexure-VI is the copy of the FIR. According to the
learned counsel for the petitioner, at the time when
the victim came for consultation, her age was revealed
as 18 years and Annexure-I is the copy of Form No.C
Crl.M.C.8364/18
under the Medical Termination of Pregnancy Rules, 1957.
Annexure-II is the copy of the certificate prepared as
per Form No.1 of Medical Termination of Pregnancy
Rules. Annexure-III is the copy of consent form given
by the victim and her mother. Annexure-IV is the copy
of relevant page of the Admission Register of the
hospital.
4. Annexure-I would go to show that the age of the victim
has been shown as 18 years and her mother also has
signed in it. Anneuxre-IV also would show that the age
of the victim is shown as 18 years. According to the
petitioner, he was informed by the family members that
the girl is aged 18 years and there is nothing to
suspect with regard to the age of the victim and it is
also his contention that he has 55 years' practice in
medical field and there is no complaint against him
till date. The learned counsel also contended that
since the age of the victim has been stated as 18 years
by the victim and her mother, there is no question of
attracting the offence under Section 21 of the PoCSO
Crl.M.C.8364/18
Act to the fact situation of this case.
5. Heard both sides.
6. At the time of argument, the learned counsel for the
petitioner also produced copy of the judgment in
S.C.622/2018 dated 30.1.2021 which arose out of Crime
No.495/2018 which was registered against the original
accused which ended in acquittal under Section 232
Cr.P.C. It would go to show that the victim as well as
the mother turned hostile and there was no evidence
whatsoever to connect the accused in the case with the
offence. It is in connection with that crime, this
Crime No.703/2018 has been registered against the
petitioner under Section 21 of the PoCSO Act.
7. In this context the learned counsel brought to my
attention Sreelatha K.V. v. State of Kerala (2019 KHC
971) wherein while dealing with Section 19 and 21 of
the PoCSO Act this Court categorically held in
paragraph 35 that "in order to successfully secure
conviction of the person, who is alleged to have
committed the so-called secondary offence as per
Crl.M.C.8364/18
section 19(1) of the PoCS Act one of the prime
requirements is that the prosecution will have to
establish that the principal offender has in fact
committed the principal offence as per the PoCSO Act.
In other words, if the principal offender is acquitted
of the principal offence then there is no question of
securing any conviction of the secondary offender, who
is said to have committed the offence as per Sec.19(1)
of the PoCSO Act."
8. The learned counsel further brought to my attention
Sr.Tessy Jose (Dr.) and Others v. State of Kerala (2018
KHC 6564) wherein while dealing with Sections 19 and
meaning of the word "knowledge" it has been held that
there is no obligation to investigate and gather
knowledge. Paragraph 9 of the said decision is relevant
to quote which reads as follows :-
".......................The provisions of Section
19(1), reproduced above, put a legal obligation on a
person to inform the relevant authorities, inter alia,
when he/she has knowledge that an offence under the Act
had been committed. The expression used is "knowledge"
Crl.M.C.8364/18
which means that some information received by such a
person gives him/her knowledge about the commission of
the crime. There is no obligation on this person to
investigate and gather knowledge. If at all, the
appellants were not careful enough to find the cause of
pregnancy as the victim was only 18 years of age at the
time of delivery. But that would not be translated into
criminality.
9. In this case the prosecution allegation is that the
petitioner in spite of knowing that 17 year old victim
is pregnant on examination, failed to intimate the fact
to the authorities as provided under Section 19(1) of
the PoCSO Act. The main contention of the petitioner is
that information given by the mother of victim and
victim was that she was 18 year old. Even otherwise as
per the dictum laid down in Sr.Tessy Jose's case, mere
fact that petitioner treated the patient is not a
reason to say that petitioner has knowledge about the
rape of the victim. There is no obligation on the
petitioner and gather information about the act of
rape. A Doctor's prime duty is to treat the patient. If
at all there was any negligence on his part to gather
Crl.M.C.8364/18
information about the cause of pregnancy,that can not
be translated to any criminal liability also.
10. More over, in this case, the alleged perpetrator of
this crime ie, rapist has been acquitted under Section
232 Cr.P.C as per the judgment dated 30.1.2021 in
S.C.No.622 of 2018 of the Court of Session, Palakkad
(copy of which is made available for perusal). In
Sreelatha's case referred supra, a learned Single Judge
of this Court has held that in order to secure
conviction of the person who alleged to have committed
secondary offence as per Section 19(1) one of the prime
requirement is that the principal offender has
committed the principal offence. When the principal
offender himself has been acquitted for the reason that
there is no evidence to connect him with the offence,
the liability of the secondary offender like the
petitioner vanishes in air.
11. For the reasons stated above, I am of the
considered view that there is no material whatsoever to
attract the offence under Sections 19 and 21 of the
Crl.M.C.8364/18
PoCSO Act as against the present petitioner. Hence
criminal prosecution against the petitioner would be an
abuse of process of Court.
12. In the result, Crl.M.C allowed and the entire
proceedings in Crime NO.703/2018 of Palakkad Town North
Police station, Palakkad, is hereby quashed.
Sd/-
M.R.Anitha, Judge
Mrcs/25.11.
Crl.M.C.8364/18
APPENDIX OF CRL.MC 8364/2018
ANNEXURES
ANNEXURE I TRUE COPY OF FORM NO.C UNDER THE MEDICAL
TERMINATION OF PREGNANCY RULES, 1957, SIGNED
BY THE VICTIM AS WELL AS HER MOTHER.
ANNEXURE II TRUE COPY OF THE CERTIFICATE DATED 16.5.2018
PREPARED AS PER FORM NO.1 OF MEDICAL
TERMINATION OF PREGNANCY RULES.
ANNEXURE III TRUE COPY OF CONSENT FORM GIVEN BY THE
VICTIM AND HER MOTHER DATED 15.5.2018.
ANNEXURE IV TRUE COPY OF THE RELEVANT PAGE OF THE
ADMISSION REGISTER OF THE HOSPITAL.
ANNEXURE V TRUE COY OF THE MARRIAGE CERTIFICATE DATED
25.10.2018 ISSUED BY THE DEPARTMENT OF
PANCHAYATH, GOVERNMENT OF KERALA.
ANNEXURE VI CERTIFIED COPY OF THE FIRST INFORMATION
REPORT IN CRIME NO.703/2018 OF PALAKKAD TOWN
NORTH POLICE STATION.
