Not Justified To Frame A Charge U/S. 5 MTP Act Just Because Consent Forms Weren’t Filled In Properly: Bombay High Court
The Bombay High Court said that a person can be prosecuted for non-compliance of the guidelines only when there is a penal provision prescribed as per the relevant Act passed by the Parliament.
Justice S.M. Modak, Bombay High Court
The Bombay High Court held that it would not be justified to frame a charge against the accused under Section 5 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) just because consent forms were not filled in properly.
The Court held thus in a Criminal Revision Application filed by two Doctors who were accused of performing abortion without following proper procedure.
A Single Bench of Justice S.M. Modak observed, “If we read the above quoted provisions, we do not find anywhere any punishment prescribed if the consent is improper. So, it would not be justified to frame a charge against both these Applicants under section 5 of MTP Act just because consent forms were not filled in properly. Whereas, section 313 of IPC talks about consent. If we read the statements of 13 pregnant women, we can find they have consented for abortion.”
The Bench said that a person can be prosecuted for non-compliance of the guidelines only when there is a penal provision prescribed as per the relevant Act passed by the Parliament.
Senior Advocate Manoj Mohite and Advocate Vishwanath Talkute appeared on behalf of the Applicants/Accused while Advocate General (AG) Birendra Saraf, APPs Avinash Kamkhedkar, and Sangita Phad appeared on behalf of the Respondent/State.
Brief Facts
There were 13 abortion cases noticed by the First Informant attached to Rural Hospital, Sangola. It was alleged that the Applicants-accused being the Medical Practitioners had aborted/did procedure on 13 pregnant women in their Dhanashree/New Dhanashree Hospital. As per the said Informant, there was no justification for performing abortion and the procedure was also not followed. The Informant was a doctor working as a Medical Practitioner and he was authorised to raid the hospitals and centres to verify the implementation of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act).
He got an information about the alleged illegal termination of pregnancies performed in the New Dhanashree Hospital. Hence, he raided the said hospital and noticed two lady patients admitted in the hospital for the purpose of termination. Hence, an FIR was registered against the accused doctors. There was a charge-sheet filed for the offences under Sections 312, 313, 201 read with 34 of the Indian Penal Code, 1860 (IPC) and under Section 5 of the MTP Act before the Additional Sessions Judge. Both the accused pleaded for discharge and the same was rejected. Being aggrieved, they were before the High Court.
Reasoning
The High Court in view of the above facts, noted, “… it can very well be said that even though there is neither a Regulation issued by State Government nor adopted by the State Government, there are guidelines issued by the Medical Authorities. They were in force at the time of lodging of an FIR. Certainly, it has got a binding force but there is a difference in between the law made by the Parliament and the guidelines issued by the concerned Authorities.”
The Court further noted that the approval under MTP Act is neither cancelled nor suspended and as per Section 4 of MTP Act, the place must be approved by the concerned authorities.
“After reading the provisions of section 5 of the Act, we do not find anywhere any penalty prescribed for not keeping the register in proper manner . Regulation 3 lays down a penalty but as said above, it is not applicable to our State. I am not inclined to accept the submission made by Dr.Saraf”, it remarked.
The Court was of the view that the requirement of registration under Nursing Homes Act and requirement of approval under MTP Act are different and the same has got different purposes.
“There is a rider. It says “approved for the purpose of this Act”. As said above, the certificate in the name of Dhanasharee Hospital as per the MTP Act was in force when the hospital was inspected by the First Informant on 7th February 2018”, it also said.
Moreover, the Court noted that there is a form and application for getting approval prescribed in Form-A of the MTP Rules which talks about category of duration of pregnancy, requirement of facilities available.
“For the above discussion, it is difficult to accept the submission of learned AG and learned APP that the place where pregnancies are terminated is not approved place as per the provisions of MTP Act. … It is true, as per the provisions of section 312 of IPC, the only exception provided is when there is a good faith for saving the life of woman. As per said provision, a person who terminates pregnancy whether is a Registered Medical Practitioner or not can be prosecuted if there is absence of good faith. By passing of the Act, termination of certain pregnancies having prescribed duration if done by Registered Medical Practitioner at approved place with consent are legalized”, it added.
The Court refused to accept the submission that the provisions of Section 312 of IPC can be invoked if MTP Act does not provide for any prosecution in case the provisions of Rules and Regulations are violated, which can be accepted only when Section 312 of IPC provides for punishment.
“We cannot read that contingency in section 312 of IPC. This is a penal law and it has to be interpreted strictly. So, the Applicants have made out a case for dropping of a charge for an offence for non-compliance of the provisions of Rules and Regulations in respect of not keeping the consent in proper manner, disclosing the details of patient in Admission Register”, it added.
Conclusion and Directions
The Court observed that the charge for non-compliance of the provision relating to consent form, maintaining the register and termination at non-approved place needs to be dropped.
“For rest of the issue, that is to say, about violation of the provisions of section 312 of IPC, the matter needs to be remanded”, it clarified.
The Court, therefore, issued the following directions –
• The charges against both the Applicants for non-compliance of the provisions of MTP Rules and MTP Regulations on account of not keeping the consent forms properly, allegations relating to maintaining the registers and termination at non-approved place are dropped.
• The matter is remanded to the Court of Additional Sessions Judge – Pandharpur.
• The Trial Court shall hear both the sides on aspect of the cases of missed abortion/incomplete abortion as depicted in the Evacuation Register.
• The Trial Court shall consider all the materials including Evacuation Register, the opinion given by the Medical Superintendent on March 26, 2018.
• The Investigating Agency is at liberty to place the opinion of the Medical Superintendent, if any, obtained on the basis of endorsement in Evacuation Register.
• If, the Investigating Agency chose not to produce it in a reasonable period not more than two months, the Trial Court is at liberty to give a finding on the cases of missed/incomplete abortion on the basis of available record.
• For rest of the cases of abortion, the Trial Court is at liberty to proceed for violation of the provisions of Section 312 of IPC and to take decision on charge under Section 201 of IPC.
Accordingly, the High Court partly allowed the Revision Application, set aside the impugned Order, and remanded the case for rest of the issue.
Cause Title- Dr. Suhas Sampat Jadhavar & Anr. v. The State of Maharashtra (Neutral Citation: 2025:BHC-AS:22712)
