Kerala High Court Directs State Doctors To Preserve Foetus Of POCSO Victims; Suggests Legislature To Amend Existing Legislation In MTP Cases
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has directed the doctors in the State to preserve the foetus of minor victims and has suggested the State and Central Legislature to amend the existing legislation to incorporate such a provision mandating the same.
The Court was dealing with a Criminal Miscellaneous Case seeking to quash the proceedings pending before the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
A Single Bench of Justice A. Badharudeen ordered, “… the State legislature and the Central legislature may consider appropriate legislation or to amend the existing legislation to incorporate such a provision, mandating preservation of the fetus in MTP cases involving minor victims, where POCSO Act offences are made out, prima facie. Till then, in order to protect the interest of the minor victims and to avoid flee of the accused from trial, for want of vital piece of evidence, there shall be a direction to the Director, Health Department, State of Kerala, to communicate this order in the form of a circular to all the doctors in the State, directing them to preserve the fetus of minor victims mandatorily, without being destructed and in order to destruct the fetus, the doctors should get written permission from the Investigating Officer or from the District Police Superintendent concerned.”
Advocate P.T. Mohankumar represented the Petitioner while Public Prosecutor Jibu T.S. represented the Respondents.
Facts of the Case
A crime was registered alleging that the first accused had committed offences punishable under Sections 363, 449, 376(3), 376(2)(n), 354A(I)(i), and 354A(2) of the Indian Penal Code (IPC), under Sections 4(2) read with 3, 6(1) read with 5(l)(j)(ii), 10 read with 9(l), 12 read with 11(iv) of the POCSO Act, and under Sections 3(1)(w)(i), 3(2)(v), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 2015 (SC/ST Act).
The allegation against the Petitioner i.e., the second accused/doctor who treated the victim, was that he had done MTP (Medical Termination of Pregnancy) and aborted the pregnancy of the victim illegally knowing that the gestational age of the foetus was 17.2 weeks. Further allegation was that, the Petitioner destroyed the foetus, without being preserved for the purpose of investigation. Accordingly, the prosecution alleged commission of offences punishable under Section 5(3) of the Medical Termination of Pregnancy Act, 1971 (MTP Act) and under Section 201 of the IPC.
Court’s Observations
The High Court in the above regard, observed, “… the criminal prosecution as against the petitioner in this crime, alleging commission of offences punishable under Section 5(3) of the MTP Act and under Section 201 of IPC is unwarranted and without any justification, prima facie. Therefore, the quashment prayer at the instance of the petitioner is liable to succeed.”
The Court said that when a doctor is doing MTP of a minor victim, as of now, there is no law or rule, which would mandate the doctor to preserve the foetus automatically, in such cases and therefore, this aspect is to be addressed by the legislature, at the earliest.
The Court, therefore, directed the Registry to forward a copy of its Order to the Law Secretaries of the State of Kerala and Union of India and also to the Director, Health Department, Thiruvananthapuram, forthwith, for further steps.
Accordingly, the High Court allowed the Petition, quashed the proceedings against the accused, and issued necessary directions.
Cause Title- Dr. Hafeez Rahman P.A. v. State of Kerala & Anr. (Neutral Citation: 2025:KER:13879)
Appearance:
Petitioner: Advocates P.T. Mohankumar, George Cherian, Rajesh Cherian Karippaparambil, and Maneesha Joy.
Respondents: PP Jibu T.S.
