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Synopsis

The Kerala High Court has directed the Director of the State Health Department to ensure that all doctors in Kerala mandatorily preserve the fetus of minor victims undergoing medical termination of pregnancy (MTP) for investigative purposes.

The court, presided over by Justice A. Badharudeen, also directed that the written permission from the Investigating Officer or the District Police Superintendent must be obtained before the fetus can be destroyed. The court emphasised that the measure is essential “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.”

The court also highlighted the legislative gap, noting the absence of any statutory requirement mandating doctors to automatically preserve the fetus in cases of MTP involving minor victims where POCSO Act offences are prima facie established. The court urged the legislature to address this aspect at the earliest.

The case involved the petitioner and the second accused, who performed an MTP on a minor victim between in April 2021. The primary allegation against him was the unauthorized and illegal abortion of a 17.2-week-old fetus and the subsequent destruction of the fetus without preserving it for investigation. The petitioner was charged under Section 5(3) of the Medical Termination of Pregnancy Act, 1971 and Section 201 of the Indian Penal Code (IPC), dealing with causing the disappearance of evidence of an offence or giving false information to screen the offender.

The petitioner sought quashing of the proceedings against him, arguing that the MTP was performed bonafidely to save the life of the victim. The petitioner also claimed compliance with Section 19(1) of the POCSO Act, asserting that the crime was reported to the police on April 12, 2021, demonstrating no intent to shield the offender. It was further contended that the hospital, wherein the MTP was conducted, had valid approval to conduct MTPs up to 16 weeks of gestational age as per the Form B certificate issued by the District Medical Officer.

The Public Prosecutor, on the other hand, opposed the quashment, emphasising that the hospital’s license was not renewed, rendering the MTP unauthorized. It was also argued that the average gestational age of 17.2 weeks exceeded the hospital’s permitted limit of 16 weeks, thereby justifying the charges under Section 5(3) of the MTP Act.

The court examined two primary questions:

1. Whether the offence under Section 5(3) of the MTP Act was made out?
2. Whether the offence under Section 201 of the IPC, concerning the disappearance of evidence or giving false information to shield an offender, was attracted?

Answering the first question in the negative and rejecting the argument of the prosecution about the non renewal of the hospital’s license, the court cited Rules 5 and 7 of the MTP Rules and stated, “the MTP Rules do not provide any validity period for the certificate of approval and a certificate issued will be valid, unless the same is cancelled or suspended by the procedure provided in Rule 7 of MTP Rules.”

The court found that the license of the hospital, was neither cancelled nor suspended and thus, it could not be held that there was no authorisation to the hospital to conduct MTP upto 16 weeks of gestational age. The court noted: “the same would justify MTP done by the petitioner that too after informing the same to the Police. Therefore, prima facie offence under Section 5(3) of the MTP Act not made out against the petitioner.”

The court further held that Section 5(1) of the MTP Act permits termination of pregnancy without adhering to the usual procedural requirements if it is necessary to save the life of the pregnant woman. In this case, a medical opinion indicated that the MTP was necessary to prevent grave physical and mental injury to the minor victim.

In addressing the second question, the court observed that the doctor informed the police about the crime on April 12, 2021, without undue delay. Despite this, the police only directed the preservation of the fetus on April 16, 2021, three days after the MTP was performed on April 13, 2021, following medical advice from another medical practitioner. However, by then, the fetus had already been destroyed. The court held, “there is no legal mandate to preserve the fetus voluntarily by the doctor and such preservation would be done, only when there was instruction. Therefore, there is no deliberate attempt on the part of the petitioner to cause disappearance of evidence of offence or giving false information to screen offender, prima facie.”

Consequently, the court allowed the petition and quashed the proceedings against the petitioner doctor.

 

Cause Title: Dr. Hafeez Rahman P. A. v. State of Kerala and Others [Crl.M.C 4372 of 2022]

Appearance: For the Petitioners: Advocates P. T. Mohankumar, George Cherian, Rajesh Cherian Kaippaparambil, Maneesha Joy; For the Respondents: Advocate Jibu T. S. (Public Prosecutor)