IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Crl.M.C.No. 1067 of 2006(C) -------------------------- CP.8/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... PETITIONER: 7TH ACCUSED -------------------------- DR.UNNIKRISHNAN, "LAKSHMI", KUNNUMPURAM, A.R.NAGAR, THIRURANGADI TALUK. BY ADV. SRI.K.P.MUJEEB RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------- Crl.M.C.No.1067 of 2006 ---------------------------------- Dated this the 16th day of October, 2009 ORDER This petition filed under Section 482(2) of Cr.P.C. to quash the charge sheet made against the petitioner, alleging offences under Sections 346, 347, 313, 376(g), 506(1) read with section 34 I.P.C. & Section 3(2)V of Scheduled Caste/ Scheduled Tribe (Prevention of Atrocities Act, 1989). 2. On a complaint made by a girl aged 17 years that she was raped by several persons, etc., a crime was registered under Sections 346, 347, 313, 376(g), 506(1) read with section 34 I.P.C. & Section 3(2)V of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities Act, 1989). According to the complainant she was taken to the petitioner who is a Doctor by profession, pregnancy was aborted, and thereby he has committed offence under Section 313 I.P.C. 3. According to the petitioner, offence under Section 313 I.PC. will not lie against the petitioner, since the abortion was conducted in good faith believing the words of defacto Crl.M.C.No.1067 of 2006 2 complainant. From the grounds raised, in this petition, it appears that the defacto complainant had an opportunity to raise protest against abortion, since she was all alone in the operation theatre and persons who accompanied her were not there in the theatre. If the abortion was under compulsion by those who accompanied the defacto complainant, she could have brought such fact to the notice of the petitioner, in which case, the pregnancy would not have been aborted. Therefore, offence under Section 313 I.P.C. will not lie, is the contention. 4. On going through the allegation in the First Information Statement and as per the case set up by the police the miscarriage was caused by the petitioner. It is seen from the First Information Statement that the defacto complainant had gone to the petitioner along with the first and fourth accused and some representations were made to petitioner that the defacto complainant was married by a relative of the accused that he is a drunkard and hence the pregnancy may be aborted. Pursuant to this, petitioner has caused the miscarriage. 5. A reading of Section 313 I.P.C. shows that a person will Crl.M.C.No.1067 of 2006 3 be liable for offence under said section, if the offence alleged in Section 312 I.P.C. (ie., miscarriage) is committed, without the consent of the woman. Though the accused raised a contention that there was no objection from the woman and that there is nothing to show that abortion was effected without consent, a reading of Section 312 I.P.C. shows that consent is totally irrelevant for constituting offence section 312 I.P.C. 6. A person who voluntarily causes a woman with child to miscarry shall if such miscarriage is not caused in good faith for the purpose of saving the life of a woman, he can be punished under section 312 I.P.C. A plain reading of section 312 shows that the consent of the woman is not relevant and hence, even if miscarriage was conducted with consent, it may not take the petitioner out of the purview of the section 312 I.P.C. 7. The learned Public Prosecutor submitted that even if offence under section 313 I.P.C. may not lie, as contended by the accused, the facts disclosed from records will attract section 312 I.P.C. and therefore there is no ground to quash the proceedings. I fully agree with the submissions made and reading of section Crl.M.C.No.1067 of 2006 4 312 I.P.C. will show that if voluntarily causes miscarriage and if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, he will be liable for punishment under section 312 I.P.C. 8. In such circumstances on the face of records, I find no sufficient ground to quash the complaint. I make it clear that I am not deciding in this order whether the offence under Section 312 or under Section 313 I.P.C. is made out in this case. The whole records and the case diary are not before this court and hence it cannot be ascertained whether during the course of investigation it is made out that the abortion was effected without consent and whether the offence falls under section 312 or 313 I.P.C. There are allegations made against the petitioner that he has voluntarily caused miscarriage to a woman and there is nothing on record to show that such miscarriage was not caused in favour for the purpose of saving the life of the woman. Therefore, I am not inclined to quash the complaint as prayed. 9. However, I make it clear that this order may not stand in the way of the petitioner in moving the Sessions Court for Crl.M.C.No.1067 of 2006 5 discharge, if he so advised, in which event a decision may be taken untrammeled by any of the observations made in this order, especially, since the relevant documents are not before that court. Petition is dismissed. K.HEMA, JUDGE Skj.