Criminal Revision No. 635 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Revision No. 635 of 2008 Date of Decision: 19.3.2009 Dr. Lakshmi Garg …Petitioner Versus State of Punjab …Respondent AND 2. Criminal Revision No. 624 of 2008 Dr. Lakshmi Garg …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Ashok Singla, Advocate for the petitioner. Mr. Anter Singh Brar, Deputy Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) By this common order, two revision petitions i.e. Criminal Criminal Revision No. 635 of 2008 2 Revision Nos. 635 of 2008 and 624 of 2008 both titled as “Dr. Lakshmi Garg v. State of Punjab” will be decided together. Before arguments raised in these revision petitioners are dealt with, it will be necessary to notice brief facts of the case. One Ashok Kumar son of Hans Raj Aggarwal had lodged case FIR No. 14 dated 7.2.2004 at Police Station Rampura Phul, under Sections 315, 318 & 34 IPC. In the FIR, it was stated that when Ashok Kumar had opened his shop then at about 10.30 A.M. Sweeper Champa of Dr. Lakshmi Garg, petitioner, had thrown some cotton stained with blood, flesh,some medical waste material in the garbage in front of their shops. When the pigs of locality were attracted, it was found that medically disposed garbage and articles contained a fetus of unborn child. It was stated that abortion was done by Dr. Lakshmi Garg and thereafter the fetus was thrown in the material in the garbage. The above said FIR investigated by the police. The Superintendent of Police, Bathinda, on 17.7.2004 submitted a cancellation report. Cancellation report contained the following submissions:- “Pregnancy of Sabina Begum was not got terminated from Dr. Luxmi Garg rather due to pain. There was natural and sudden abortion. Dr. Luxmi Garg nor Champa has any role to play in it and allegations against them are not proved and for the said reasons, Inspector Des Raj/SHO, Police Station, Rampura has filled the cancellation report dated 17.5.04 which is further verified by Illaqa Officer/DSP, Phul and I agree with the same and Criminal Revision No. 635 of 2008 3 cancellation report be accepted”. Since the Investigating Agency had concluded that it was a natural abortion and unborn child was thrown in the heap of rubbish, the Court of Sub Divisional Judicial Magistrate, Phul, on 12.3.2005, vide Annexure P3, had accepted the cancellation report. Grievance of the petitioner is that after the acceptance of cancellation report, two FIRs were registered against the petitioner, one FIR bearing No. 164 dated 9.9.2006 under Section 4/5 of the Medical Termination of Pregnancy Act (Amended) 2002 (Annexure P4) and another FIR No. 165 dated 9.9.2006 under Section 15 of the Environment Protection Act and Rule 4 of Bio Medical Waste (Management & Handling) Rules, 1998. This FIR has been annexed with the revision petition as Annexure P5. Investigation in both the FIRs was concluded and the accused was sent for trial. On 4.6.1997, the Court of Sub Divisional Judicial Magistrate, Phul, passed identical two orders in the two FIRs. Order has been annexed with the petition as impugned order dated 4.6.2007 passed by the Court of the Sub Divisional Judicial Magistrate, Phul. At the time of framing of charge accused took a plea that since on the same set of allegations cancellation report (Annexure P2) was accepted, petitioner cannot be prosecuted again as there is a complete bar under Section 300 Cr.P.C. and Article 20(2) of the Constitution of India as the same will amount to double jeopardy. The order dated 14.6.2007 passed in relation to two FIRs was assailed before the Court of Additional Sessions Judge, Bathinda. The Additional Sessions Judge, Bathinda, had taken the entire law into consideration and relied upon Criminal Revision No. 635 of 2008 4 judgment of Hon'ble the Apex Court in Mahesh Chand v. B. Janardhan Reddy and Another 2003(1) Recent Criminal Reports 420 and held that second complaint is maintainable in exceptional circumstances as per the ratio of law laid and noticed the following exceptional circumstances: 1) Whether the previous order was passed on incomplete record, or on a misunderstanding of the nature of the complaint; 2) Or it was manifestly absurd or unjust; 3) Or where new facts which could not, with reasonable diligence have been brought on record in the previous proceedings, have been adduced. The Court held that acceptance of cancellation report cannot be considered as acquittal, therefore, provisions of Section 300 Cr.P.C. and Article 20 of the Constitution are not attracted as submitted by the petitioner. Aggrieved against the order which is identical in both the revision petitions, these two revision petitions have been filed. Criminal Revision No. 624 of 2008 arise out of FIR 165 dated 9.9.2006 where petitioners was sought to be prosecuted for offence under Section 15 of the Environment Protection Act and Rule 4 of Bio Medical Waste (Management & Handling) Rules, 1998, whereas Criminal Revision No. 635 of 2008 has been filed qua FIR No. 164 dated 9.9.2006 under Section 4/5 of the Medical Termination of Criminal Revision No. 635 of 2008 5 Pregnancy Act (Amended) 2002. I have heard the counsel for the parties. Before their contentions are noticed and arguments are dealt with I am of the view that Criminal Revision No. 635 of 2008 whereby petitioner was sought to be prosecuted for offence under Section 4/5 of the Medical Termination of Pregnancy Act (Amended) 2002 arising out of FIR No. 164 dated 9.9.2006 is to be allowed and no proceedings can be initiated against the petitioners for offence under Section 4/5 of the Medical Termination of Pregnancy Act (Amended) 2002, whereas Criminal Revision No. 624 of 2008 whereby petitioner is to be prosecuted under Section 15 of the Environment Protection Act and Rule 4 of Bio Medical Waste (Management & Handling) Rules, 1998, is to be dismissed. A perusal of cancellation report will show that a finding was arrived at by the Investigating Agency that at Garg Maternity and Nursing Home of the petitioner, no medical termination of pregnancy was carried out rather Sabina Begam was admitted for medical care and natural abortion had occurred. This finding had been accepted by the Court of Sub Divisional Judicial Magistrate, Phul, on 12.3.2005. Therefore, later after one & a half years, petitioner cannot be prosecuted that she had medically terminated the pregnancy and had caused abortion. Once cancellation report was accepted and order of acceptance was not assailed, it had attained finality and the petitioner cannot be prosecuted for Medical Termination of Pregnancy. The findings of the Investigating Agency that abortion was natural was accepted by the Court. However, throwing of the medical Criminal Revision No. 635 of 2008 6 waste in the vicinity where other shops are there make the offence under Section 5 of the Environment Protection Act and Rule 4 of Bio Medical Waste (Management & Handling) Rules, 1998, complete. The Maternity & Nursing Home cannot throw a garbage at any place. Therefore, the Investigating Agency had rightly investigated the matter and submitted its report. Earlier acceptance of cancellation report had not taken disposal of medical waste into consideration but only finding returned was that the abortion was natural. Therefore, Criminal Revision No. 624 of 2008 is dismissed. Counsel for the petitioner has submitted that prosecution has not been initiated against the petitioner in compliance with the rules and within stipulated period of limitation and the offence is not cognizable. No such argument was raised before the trial Court or before the Revisional Court. The petitioners may raise all arguments available to her before the trial Court at appropriate stage. Counsel for the petitioners submits that in the present case, occurrence pertains to year 2004 and petitioners is a lady doctor, therefore, her personal appearance before the trial Court be exempted. Taking into consideration the submissions made by counsel for the petitioner, the personal appearance of petitioner is exempted before the trial Court subject to filing an undertaking that she will cause appearance as and when required and the evidence recorded in her absence but in the presence of her counsel shall be binding upon her. Trial Court may also specify any other condition in the undertaking to be furnished by the petitioner. On the furnishing of undertaking, the personal appearance of petitioner shall stand exempted. Criminal Revision No. 635 of 2008 7 With the observations made above, both the petitions are disposed off. (Kanwaljit Singh Ahluwalia) Judge March 19, 2009 “DK”