Madras High Court
Brindha vs The Inspector Of Police on 15 September, 2022
Crl.O.P No.19641 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.O.P No.19641 of 2021 and
Crl.M.P.No.10721 of 2021
1.Brindha
2.Ramasubbu ... Petitioners
Vs.
1. The Inspector of Police
D2 Podhanur Police Station
Coimbatore City
(Crime No.469 of 2021)
2. Raghuraaman ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, praying to call for the records relating to Crime No.469 of
2021 on the file of the 1st respondent, the Inspector of Police, D3 Podhanur
Police Station, Coimbatore and quash the same.
For Petitioners : Mr.B.Kumarasamy
For Respondents : Mr.A.Damodaran for R1
Additional Public Prosecutor
Ms.S.Poojashree for R2
for Mr.Parthasarathy
1/14
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Crl.O.P No.19641 of 2021
ORDER
This Criminal Original Petition has been preferred, seeking to call for
the records relating to Crime No.469 of 2021 on the file of the 1st
respondent, the Inspector of Police, D3 Podhanur Police Station,
Coimbatore and quash the same.
2. Heard the learned counsel for the petitioners and the learned
Additional Public Prosecutor.
3. The facts of the case of the prosecution:
The 1st petitioner is the wife and the 2nd petitioner is the father-in-
law of the 2nd respondent/de-facto complainant. A private complaint has
been filed by the 2nd respondent under Section 200 of Cr.P.C before the
Additional Mahila Court (Magistrate level, Coimbatore) seeking for a
direction under Section 156(3) Cr.P.C., and consequently, a direction was
given by the Additional Mahila Court on 15.02.2021, to register a case and
investigate the complaint. In pursuance of that, the 1st respondent police
has registered a case in Crime No.469 of 2021 for the offences punishable
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Crl.O.P No.19641 of 2021
under Sections 120, 120B, 202, 203, 312, 315, 316 and 318 IPC.
4.The allegations made by the 2nd respondent in the complaint is that
the 1st petitioner had undergone miscarriage of 5 months fetus in the
hospital without his consent; according to the 2nd respondent, he was
informed by his wife / 1st petitioner, that the doctor examined her by taking
a scan and told that the child in her womb had only one kidney; so the 1 st
petitioner was adamant that the fetus should be aborted; but the de-facto
complainant wanted to get a second opinion; but the 1st petitioner got a
reference letter from Kiruba Hospital for abortion; the subsequent scan done
at Sonoscan centre revealed that the kidneys of the child was good though it
is a bit abnormal; but he came to know from his friend that on 14.01.2020,
the 1st petitioner had undergone miscarriage; when he enquired the 1st
petitioner's father, who is the 2nd petitioner herein, he told him that the child
got aborted because the 1st petitioner got stressed out; but the abortion is not
for any valid reason.
5.(i) The learned counsel for the petitioners submitted that the
complaint itself is a misconceived one and it is not maintainable. There is
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Crl.O.P No.19641 of 2021
no prima facie materials to make out a case against the petitioners. The
discharge summary of the 1st petitioner would show that the 1st petitioner
had a intrauterine fetal demise at admission. The 1 st petitioner seem to have
got admitted in the hospital on 08.01.2020. After getting due consent, the
dead fetus was expelled on 09.01.2010. If the fetus is dead in the womb, it
is dangerous not to expel it from the womb of the 1st petitioner. The 1st
petitioner had undergone the said procedure only after giving due consent.
5.(ii) The 1st petitioner had given complaint against the 2nd
respondent for domestic violence. There are other matrimonial proceedings
pending between the couples. The complaint has been given by the 2 nd
respondent, just to harass the 1st petitioner. However, the matrimonial
dispute and all other disputes pending between the couple were settled
amicably. Infact, joint memo of compromise have been entered into
between the couples. The de-facto complainant himself is not serious to
pursue the complaint given by him for the purpose of this case.
6. On perusal of the materials available on record, especially the
discharge summary of the 1st petitioner, it is seen that she was admitted on
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Crl.O.P No.19641 of 2021
08.01.2020 at G.Kuppuswamy Naidu Memoral Hospital, Coimbatore. At
that time, she was diagnosed to have intrauterine ultra fetal demise. Since
the 1st petitioner had demised fetus in her womb, she was advised to expel
the fetus. In the discharge summary, the diagnosis detail is given as under:
“PRIMI/ 22 WEEKS 1 DAY / PPROM /
INTRAUTERINE DEATH / FETUS WITH RIGHT RENAL
AGENESIS AND LEFT ECTOPIC KINEDY”
7. The course advised an admission to the 1st petitioner as seen in the
discharge summary is as follows:
COURSE IN HOSPITAL
She was admitted in view of PPROM. Diagnosed to
have intrauterine fetal demise at admission. This was
explained to patient and family. After written informed
consent, she was induced with misoprostol. Induction
abortion interval was 12 Hours. She expelled fetus on
9.01.2020 at 9 hours. Placenta was retained and the same
removed with ovum forceps. Check scan showed empty
uterine cavity. She developed spike on day of abortion which
settled with antipyretics. High vaginal swab showed no
growth. Repeat blood counts showed mild decreasing trend
and iv antibiotics continued for 5 days. She had a fever spike
on postabortal day 2. Procalcitonin negative for bacterial
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Crl.O.P No.19641 of 2021
infection, urine routine was normal and leukocyte count in
decreasing trend. Inview of repeated low grade fever spikes
with antibiotics physician opinion (Dr.Binu) was sought,
throat swab taken and switched to 4th generation
cephalosporins and empirical treatment fo flu initiated.
Repeat procalcitonin was normal(0.13) No further fever
spikes for 24 hours, hence discharged with following advise”
8. After having undergone the treatment, the 1st petitioner was
discharged from the hospital on 14.01.2020. The medical records would
show that the above treatment was given to the 1st petitioner by the
department of Obstetrics and Gynaecology through a qualified team of
doctors. When the medical condition of the first petitioner requires
immediate medical attention by getting admitted in the hospital, the 1st
petitioner cannot be careless or negligent.
9. The 1st petitioner had taken ultra sonogram on 04.01.2020, in
which the following impression was recorded:
Intrauterine pregnancy with a single live fetus of about
21 Weeks 2 Days gestation in correlation with first trimester
scan done elsewhere.
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Crl.O.P No.19641 of 2021
Fetus shows bilateral ectopic presacral kidneys (Pancake
kidneys) – for Postnatal evaluation.
EDD by Ultrasound 14 – May -2020.
In the fetal urosonogram report, the following impression is recorded:
Bilateral ectopic presacral kidneys (Pancake kidneys)
10. The above scan report and other medical reports would only show
that the fetus of the petitioner had some issues. Though it is stated by the
de-facto complainant that the 1st petitioner had undergone abortion without
his consent, the records would only show that the 1st petitioner got admitted
in the hospital with the demised fetus and on the advise of the doctor she
needed to expel the fetus by undergoing appropriate course of treatment.
11. It would have been an informed decision taken by the couple had
they maintained a cordial relationship between themselves. Due to
misunderstanding between the couples, the first petitioner was forced to
take a decision on her own. And she is expected to take such decision when
things went worse and that she should save her health. However, it is sated
by the first petitioner that the medical complication suffered by her was
informed to the de-facto complainant and his family members, but they did
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Crl.O.P No.19641 of 2021
not come and see her.
12. A woman has got bodily autonomy upon herself and if anything
goes wrong with her health, she should take a decision in order to safeguard
herself. The life and liberty of a person is a fundamental human right which
cannot be taken away by any one. Since the 1st petitioner had the risk to
carry the demised fetus in her womb, she was rightly advised by her doctor
to take appropriate treatment for expelling the same. The de-faco
complainant who was not with the first petitioner, when she was undergoing
the treatment at the hospital, had raised his own doubts and had given the
complaint.
13. The averments of the de-facto complainant that there is no
acceptable reason for abortion is totally baseless. Had he consulted the
doctor who had treated the 1st petitioner, he would have known the exact
medical condition of the 1st petitioner. Without doing that, he had given the
complaint with his own imagination. The medical records completely
justify the reason for which the 1st petitioner had undergone the treatment at
the hospital for expelling her fetus. There is no iota of reliable materials to
sustain the case of prosecution for the registering the FIR against the
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Crl.O.P No.19641 of 2021
petitioners on the complaint of the second respondent for the offences under
Sections 120, 120B, 202, 203, 312, 315, 316 and 318 IPC. This is an
appropriate case where the Court has to exercise its powers under Section
482 of Cr.P.C. in order to secure the ends of justice.
14. In this regard, it is appropriate to extract the relevant portion of
the judgment of the Hon'ble Supreme Court held in Parbatbhai Aahir Vs.
State of Gujarat [AIR 2017 SC 4843]:
"15.The Broad Principles which emerge from the
precedents on the subject, may be summarised in the
following propositions:-
(i) Section 482 Cr.P.C preserves the inherent
powers of the High Court to prevent an abuse of the
process of any court or to secure the ends of justice.
The provision does not confer new powers. It only
recognises and preserves powers which inherent in the
High Court.
(ii) The invocation of the jurisdiction of the High
Court to quash a first information report or a criminal
proceeding on the ground that a settlement has been
arrived at between the offender and the victim is not
the same as the invocation of jurisdiction for the
purpose of compounding an offence. While
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Crl.O.P No.19641 of 2021
compounding an offence, the power of the court is
governed by the provisions of Section 320 of the Code
of Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence is
non-compoundable.
(iii) In forming an opinion whether a criminal
proceeding or complaint should be quashed in exercise
of its jurisdiction under Section 482, the High Court
must evaluate whether the ends of justice would justify
the exercise of the inherent power.
(iv) While the inherent power of the High Court
has a wide ambit and plenitude it has to be exercised
(i) to secure the ends of justice, or (ii) to prevent an
abuse of the process of any court.
(v) the decision as to whether a complaint or first
information report should be quashed on the ground
that the offender and victim have settled the dispute,
revolves ultimately on the facts and circumstances of
each case and no exhaustive elaboration of principles
can be formulate.
(vi) In the exercise of the power under Section 482
and while dealing with a plea that the dispute has been
settled, the High Court must have due regard to the
nature and gravity of the offence. Heinous and serious
offences involving mental depravity or offences such as
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Crl.O.P No.19641 of 2021
murder, rape and dacoity cannot appropriately be
quashed though the victim or the family of the victim
have settled the dispute. Such offences are, truly
speaking, not private in nature but have a serious
impact upon society. The decision to continue with the
trial in such cases is founded on the overriding element
of public interest in punishing persons for serious
offences.
(vii) As distinguished from serious offences, there
may be criminal cases which have an overwhelming or
predominant element of a civil dispute. They stand on a
distinct footing insofar as the exercise of the inherent
power to quash is concerned.
(viii) Criminal cases involving offences which arise
from commercial, financial, mercantile, partnership or
similar transactions with an essentially civil flavour
may in appropriate situations fall for quashing where
parties have settled the dispute.
(ix) In such a case, the High Court may quash the
criminal proceeding if in view of the compromise
between the disputants, the possibility of a conviction is
remote and the continuation of a criminal proceeding
would cause oppression and prejudice; and
(x) There is yet an exception to the principle set
out in Propositions (viii) and (ix) above. Economic
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Crl.O.P No.19641 of 2021
offences involving the financial and economic well-
being of the State have implications which lie beyond
the domain of a mere dispute between private
disputants. The High Court would be justified in
declining to quash where the offender is involved in an
activity akin to a financial or economic fraud or
misdemeanour. The consequences of the act
complained of upon the financial or economic system
will weigh in the balance."
15. The materials on record would only show that no useful purpose
will be served, if the investigation is conducted on the false case given by
the second respondent. In order to secure the ends of justice, the impugned
FIR is liable to be quashed.
16. Accordingly, the Criminal Original Petition stands allowed and
the FIR in Crime No.469 of 2021 on the file of the 1st respondent is hereby
quashed. Consequently, connected Miscellaneous Petition is closed.
15.09.2022
Index : Yes/No
Speaking Order : Yes / No
uma
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Crl.O.P No.19641 of 2021
To
1. The Inspector of Police
D2 Podhanur Police Station
Coimbatore City
2. The Public Prosecutor
High Court of Madras.
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Crl.O.P No.19641 of 2021
R.N.MANJULA, J.,
uma
Crl.O.P No.19641 of 2021 and
Crl.M.P.No.10721 of 2021
15.09.2022
https://www.mhc.tn.gov.in/judis
