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Asha Rawal Vs. Basant Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 379 of 1984
Judge
Reported in27(1985)DLT428
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482; Medical Termination of Pregnancy Act - Sections 58
AppellantAsha Rawal
RespondentBasant Lal and anr.
Advocates: D.C. Mathur,; M.R. Chawla and; D.R. Sethi, Advs
Cases ReferredState of Karnataka v. L. Muniswamy and
Excerpt:
.....mtp act reads as under :no suit or other legal proceeding shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this act. mathur's contention is that in the first place neither lack of good faith nor malafides are imputed to the petitioner and in the second place on a bald and barren application by respondent no. 1 had urged that tripta sharma is her wife and she has been wrongfully confined and there is an apprehension of danger to her life as well as to the unborn child. neither she nor the complainant has imputed any lack of good faith to the doctor. in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of..........that on 24th march 1983 respondent no. 1 filed a complaint against the petitioners other than dr. asha rawal under sections 342/ 323/506/34 1pc wherein respondent no. 1 along with one dalip were examined as pre-summoning witnesses on 26-3-1933. respondent no. 1 also obtained search warrants for recovery of tripta sharma, whom he claimed to be his wife, on 30-3-1983. the matter was then adjourned to 26-4-1983. however, on 6-4-1983 tripta sharma was produced in the court and her statement was recorded on the same day wherein she stated that respondent no. 1 was her husband and that she was wrongfully confined by her father and brothers and her abortion was got done by her father and brothers against her will at the society. on 26th april 1983 the case was again adjourned to 16th may 1983.....
Judgment:

Malik Sharief-Ud-Din, J.

(1) This petition has been filed under section 482 Criminal Procedure Code . for quashing order dated 18th May 1983 passed by Shri Rajesh Kumar Metropolitan Magistrate, Shahdara, Delhi, and for quashing the complaint filed by respondent No. 1 and proceedings pending on the said complaint before Shri Sat Pal Metropolitan Magistrate, Shahdara, Delhi.

(2) It may be noticed that this Cr. Misc. (M) petition was originally moved by petitioner Dr. Asha Rawal who is working as the Medical Coordinator of M/s. Marie Stops Society Clinic (hereinafter for short known as Society) affiliated to Population Services, a charitable institution based in U.K. with population and family welfare programmes, One of the objects of the Society is to educate and adherence to the Medical. Termination of Pregnancy 430 Act, 1971 (hereinafter known as Mtp Act). The other three petitioners, Bal Kishan Sharma, Naresh Kumar Sharma and Rajeev Kumar Sharma, father and brothers of one Smt. Tripta Sharma, were permitted to join as petitioners later on after they presented Crl. M. 1739/84 in this court. This was done by an order of this court dated 21-11-1984.

(3) Brief facts are that on 24th March 1983 respondent No. 1 filed a complaint against the petitioners other than Dr. Asha Rawal under sections 342/ 323/506/34 1PC wherein respondent No. 1 along with one Dalip were examined as pre-summoning witnesses on 26-3-1933. Respondent No. 1 also obtained search warrants for recovery of Tripta Sharma, whom he claimed to be his wife, on 30-3-1983. The matter was then adjourned to 26-4-1983. However, on 6-4-1983 Tripta Sharma was produced in the court and her statement was recorded on the same day wherein she stated that respondent No. 1 was her husband and that she was wrongfully confined by her father and brothers and her abortion was got done by her father and brothers against her will at the Society. On 26th April 1983 the case was again adjourned to 16th May 1983 when another witness Dr. Amina Hussain was examined and she in her statement said that she was attending to the pregnancy of Tripta Sharma who had been brought to her by respondent No. 1 and that on her examination after her recovery she found her no more pregnant. After recording the statement of Dr. Amina Hussain the case was again adjourned to 18th, May 1983,

(4) On 18th May 1983 an application was moved by respondent No. 1 for summoning Dr. Asha Rawal who allegedly had committed offences under sections 313, 315, 316/34 IPC. It was on this application that the learned trial Magistrate ordered that Dr. Asha Rawal including the other accused should be summoned for facing the charges under sections 313, 315, 316/34 1PC. This the learned Magistrate has done without recording any evidence as to how petitioner No. 1, Dr. Asha Rawal was involved in the commission of the aforesaid offences.

(5) It will be seen that on 6-4-1983 when Tripta Sharma was examined in the court she made no allegations against Dr. Asha Rawal. All she had stated then was that her father and brothers got her pregnancy terminated at the Society against her will. The allegations made by respondent No. 1 against Dr. Asha Rawal petitioner in the application dated 18-5-1983 were not substantiated, Only an application on that date was made for seizure of the records of the Society regarding which orders were passed on 20-5-1983. It is under these circumstances that Dr. Asha Rawal has invoked the power of this court under section 482 and has appealed that since the order by which she was summoned amounts to gross abuse of the process of court, this court should intervene in the matter. This intervention is particularly sought in view of the fact that no allegation of malafide of lack of good faith was made against her.

(6) Mr. D.C. Mathur, learned counsel for the petitioner has urged before me that section 8 of the Mtp Act provides complete protection to Dr. Asha Rawal, petitioner particularly, when no lack of good faith and, malafides are imputed. Section 8 of Mtp Act reads as under : 'No suit or other legal proceeding shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.'

(7) Mr. Mathur's contention is that in the first place neither lack of good faith nor malafides are imputed to the petitioner and in the second place on a bald and barren application by respondent No. 1, the Magistrate without following the provisions of section 200 Criminal Procedure Code . directed summoning of Dr. Asha Rawal even though there was no material before him pointing to her involvement in the commission of the offences.

(8) It may be noticed that in his complaint, respondent No. 1 had urged that Tripta Sharma is her wife and she has been wrongfully confined and there is an apprehension of danger to her life as well as to the unborn child. While it is clear from the statement of Tripta Sharma that pregnancy was terminated against her will at the Society at the instance of her father and brothers it is nowhere stated by her as to who did it and that it was terminated by the doctor despite she having objected to it. It is only in the application dated 18-5-1983 that the respondent No. 1 has stated for the first time that Smt. Tripta Sharma was having pregnancy of more than six months and that miscarriage was performed on 22-3-1983 by Dr. Asha Rawal and they entered the name of Tripta Sharma as Manjit in the record. Mr. D.C. Mathur submitted that the allegations of Tripta Sharma which she has almost substantially retracted in the next case was that abortion was done to her at the Society and this was done at the instance of her father and two brothers against her will but she had never named Dr. Asha Rawal. It was thus under these circumstances that even the complainant in his application dated 18-5-1983 felt uncertain about it when he said that Dr. Asha Rawal and her colleagues performed that miscarriage. Mr. Mathur states that even the records which were seized on 20th July 1983 long after the summons were issued against Asha Rawal show that neither the name of Tripta Sharma figures in the records of the society nor of Manjit. In fact, the name recorded is Manju Bhargava and not Manjit.

(9) It will be noticed that Smt. Tripta Sharma he definitely not named any doctor. Neither she nor the complainant has imputed any lack of good faith to the doctor. All that she has said was that her father and brothers got her pregnancy terminated against her will at the society. She has nowhere stated that she objected to the termination but the doctors terminated her pregnancy despite her objection and resistance. The mere fact that the complaint in her application dated 18-5-1983 does not name any specific doctor responsible for termination of pregnancy goes to suggest that petitioner Dr. Asha Rawal is only roped in as a Coordinator of the Institution. It is exactly on this lifeless allegation made in this application dated 18-5-1983 that the learned Magistrate found it necessary to issue summons against Dr. Asha Rawal, petitioner. The only evidence at that time on record was about the pregnancy having been terminated against her will at the instance of her father and brothers at the Society. There was nothing to indicate as to which particular doctor did it nor was there even a suggestion by Tripta Sharma in her statement that she told the doctors that she was a against termination but the doctors did it in spite other objection. It has to be borne in mind that this Society is only helping the people out of distress as a charitable institution That being the objective it is unimaginable that any doctor of the Society would have terminated the pregnancy against the wishes of the lady. In fact, there is no temptation for them to do so. Unfortunately, despite all this the learned Magistrate still went on to say that there is sufficient material on record to proceed against Dr. Asha Rawal petitioner. In fact, the learned Magistrate has acted in hot haste and has proceeded against a respectful doctor on the mere application of respondent No. 1 without caring to ask respondent N0. 1 432 to substantiate his allegations as provided by section 200 Criminal Procedure Code . The offences under section 313 to 316 Indian Penal Code are triable by a court of Sessions. It was, there- force, all the more necessary for the learned Magistrate to first ensure that there was at least some sort of evidence on the basis of which summons against the doctor could be issued. It will be seen that while issuing summons even records of the Society were not with the learned Magistrate. The order to summon the petitioner No. 1 was thus palpably erroneous and illegal.

(10) Having said so in respect of the case of petitioner No. 1, lam yet concerned with another aspect of the case. It is regarding the development that look place on 15-4-1983 i.e. long before summons against Dr. Asha Rawal were issued. Respondent No. 1 preferred another complaint against Bal Kishan Sharma, father of Tripta Sharma and one Shri Khushi Ram S.I. Delhi Police under sections 363, 368, 343, 506/34 Indian Penal Code with a prayer for issuance of search warrant for recovery of Tripta Sharma. In pursuance of this search warrant Tripta Sharma appeared in the court of the learned Magistrate on 26-4-1983 and made a statement wherein she emphatically denied her marriage with respondent No. 1. On 15-4-1983 she also had given a signed statement to the Sho Police Station Krishna Nagar that her statement in the court on 6-4-1983 was made by her under pressure and coercion. This complaint was dismissed. Smt. Tripta Sharma in this regard has also filed an affidavit in this court Along with the intervention application of petitioners 2, 3 and 4 arrayed vide order of this court on Criminal Miscellaneous No. 1739/84.

(11) One of the most significant things thereforee is that in the application dated 18-5-1983 made before the learned Magistrate by respondent No. 1 these developments appear to have been deliberately suppressed. Here I may also notice that in yet another petition Crl. Misc. No. 285/84 filed by respondent No. 1, he has shown his wife one Smt. Kusum. One may ask if even in 1984 Smt. Kusum continues to be the wife of respondent No. 1 how is it that he represented Tripta Sharma to be his wife while filing complaint This fact is important also for the reason that while leading defense in the complaint there is no cogent evidence that marriage of respondent No. 1 was ever performed with Smt. Tripta Sharma according to law.

(12) Learned counsel for respondent No. 1, Mr. M.R. Chawla stated that if the petitioners were aggrieved they could file a revision before the Sessions Judge or in the alternative they could seek discharge under section 245 Cr.P.C. When committed to Sessions Court. I do not, however, agree. I would rather prefer to follow the line of reasoning adopted by Mr. D.C. Mathur, learned counsel for the petitioners. Mr. Mathur has invited my attention to the case. State of Karnataka v. L. Muniswamy and others : 1977CriLJ1125 to support his contention that the weapon of inherent power has been handed over to High Court with a definite object to prevent gross abuse of process of court and to prevent judicial proceedings from degenerating into persecution. He has particularly invited my attention to paragraph 7 wherein the Hon'ble Supreme Court has been pleased to observe as follows: 'In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continues would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts' inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be 433 permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.' This indeed is an eloquent commentary on the inherent powers of the court vested in the High Court and it speaks for itself. The inherent power of the High Court is essentially meant to prevent an abuse of the process of the court and to secure the ends of justice and there is no reason why this power should not be made use of if the court comes to the conclusion that prosecution has only a nuisance and harassment value.

(13) Let me now examine if the proceedings sought to be quashed can serve the interest of justice. Admittedly, Tripta Sharma has resoled from the stand taken by her on 6-4-1983 when she made her first statement and this she has done by deny ing her marriage with respondent No. 1 and has also attributed her first statement to coercion and pressure. Otherwise also there is no evidence on record regarding her marriage with respondent No. 1. There is no evidence even to suggest that Dr. Asha Rawal terminated her pregnancy or that it was done against her will. Normally, no doctor would do so. If the pregnancy was terminated against her will she normally would not take it lying down. One may ask as to what was she doing from 22nd March 1983 till 6th April 1983 In short there is no evidence to support that she was confined against her will by her father and brothers. In her statement dated 6-4-1983 she has not identified Dr. Asha Rawal or any other doctor of the Society as being the person responsible for termination of the pregnancy against her will. In fact. Clinic alone is named. It is, in fact, respondent No. 1 who has named Dr. Asha Rawal and the staff of the Society in his application and this he has done without any basis. The other evidence is the record of the hospital in which neither her name nor the assumed name (Manjit) figures anywhere She is, no doubt, entitled to show that Manju in fact cam'e to be written on record for her but now that she has turned her back and has said that her statement dated 6-4-1984 was a result of coercion and pressure it will only be an exercise in futility to allow the proceedings to drag on for years. That is bound to cause harassment and persecution. Looking at Dr. Amina Hussain's statement it is difficult to believe that Tripta Sharma was not pregnant but it may not be possible with this type of evidence to say that pregnancy was terminated against her will or that she was wrongfully confined.

(14) The question that arises for consideration is as to whether the accused on the basis of this evidence could be charged.

(15) I have yet another reason to hold that abortion was not against her will. If she is not married to respondent No. 1 then the child definitely was an illegitimate, though it may be of the respondent and in her desperate condition she herself probably would be keen enough to get rid of the pregnancy to save herself and her innocent parents from disrepute. If a doctor 434 has helped her to get out of this situation this would be rather in keeping with the object of the Mtp Act. My attention was invited to the statement Objects and Reasons for liberalising termination of pregnancy. The Objects and Reasons state as under : 'The proposed measure which seeks by liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure-When there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds -such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman etc. and (3) eugenic grounds- where there is substantial risk that the child, if born, would suffer from deformities and diseases.' In Explanationn 1 to section 3 of the Mtp Act it is laid down : 'Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.'

(16) I have made a mention of the Objects and Reasons for liberalising termination of pregnancy with a singular purpose to indicate that when admittedly Tripta Sharma was not married and was carrying a baby she herself would be very anxious to get rid of the pregnancy and if a doctor has come to her rescue in such a situation she cannot be said to have performed miscarriage.

(17) With these observations and under these circumstances it is not possible for this court to allow the proceedings to drag on indefinitely as they would essentially amount to gross abuse of the process of court and it is not likely to secure any body's interest. The only proper thing to do in such circumstances would be to quash the proceedings.

(18) The petition as such is accepted and the orders directing summoning of the petitioner Dr. Asha Rawal as also Bal Krishan Sharma, Naresh Kumar and Rajeev Kumar Sharma petitioners are set aside and the complaint filed by respondent No. 1 under sections 342, 323, 506, 314, 315 and 316/34 Indian Penal Code . is quashed. It will stand dismissed.


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