MINU AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been filed against the order dated 11. 3. 2008 passed by the II Additional District & Sessions Judge, Gautam Budh Nagar, in S. T. No. 688 of 2007, State of U. P. Vs. Faizi alias Faizal and others, whereby the learned Judge proceeded to frame charges u/s 315, 420, 467, 468, 471 I. P. C. against the revisionists. It appears from the facts of the case that the prosecutrix Tanvi Verma, a pregnant girl of about 15 years of age was brought to Sahdeo Hospital in District Gautam Budh Nagar, where she was admitted by the name of Meenu wife of Rakesh. The revisionist Dr. Minu Agarwal attended her in the hospital as a doctor and revisionist nos. 2 and 3, Miss. Pavitra Sharma and Rashid Khan assisted the doctor as nursing staff. It is said that the doctor with the assistance of revisionists no. 2 and 3 caused the abortion of the child, which Km. Tanvi was having. For their alleged act a case was registered against them in which after investigation charge sheet was submitted. After committal of the case the trial court found that a case u/s 315, 420, 467, 468, 471 I. P. C. was made out against the revisionists and therefore, it proceeded to frame charges for these offences. Feeling aggrieved by the order of the trial court dated 11. 3. 2008 this revision has been filed. I have heard Mr. V. P. Srivastava, learned Senior Counsel, assisted by Mr. Lav Srivastava, learned counsel for the revisionists, learned AGA for the State, Mr. Manish Tiwari, learned counsel for O. P. No. 2, and perused the record. It has been argued by Mr. Srivastava that from the evidence on the record no case punishable u/s 315, 420, 467, 468, 471 of the I. P. C. can be said to have been made out and therefore, the trial court was unjustified in proceeding to frame the charges under these sections. In this regard he argued that by the time the victim was brought to the hospital and the revisionist Dr. Minu Agarwal attended her, the child had already died in the womb and there was no occasion for the doctor or any of the revisionists to prevent a child from being born alive or causing it to die after its birth, which is necessary to constitute the offence punishable u/s 315 Cr. P. C. He also argued that no evidence was collected to the effect that the revisionists had ever forged any document or cheated anyone hence the offences u/s 420, 467, 468, 471 of the I. P. C. can also not be made out. I do agree with the arguments of Mr. Srivastava. A bare reading of section 315 I. P. C. would show that an accused can be charged for an offence punishable u/s 315 I. P. C. only when he or she does any act with the intention of thereby preventing the child from being born alive or causing it to die after its birth and does by such act prevent that child being born alive or causes it to die after its birth. This section also says that the act must be done before the birth of any child. Therefore, the crux of this section is that the act must bring the destruction of the child's life. If the child had already died in the womb, there could be no occasion for the destruction of the child's life by the act of the accused- revisionists. In the light of the definition of section 315 I. P. C. , if we go through the evidence on the record we would find that this offence can not be said to have been committed. From the postmortem report it appears that the foetus had died in the womb about 24-36 hours before the delivery (Annexure no. 8 attached to the affidavit ). In such view of the matter only this much can be said that the doctor had intended to bring out the dead foetus which was the prime duty of a doctor in order to save the life of the patient. There could neither be any intention nor any capability of the doctor to cause the destruction of a child's life. Therefore, in my view, there was no evidence whatsoever on the record to prima-facie make out a charge u/s 315 I. P. C. against the doctor i. e. revisionist no. 1 or the paramedical staff i. e. revisionist nos. 2 and 3 and the trial court wrongly proceeded to frame the charge. So far as the charges u/s 420, 467, 468, 471 I. P. C. are concerned, in that regard only this much has been stated that the victim was admitted in the hospital by a forged name. Her actual name was not recorded in the hospital's record. Even if it be assumed that the patient was admitted in the hospital by a fake name, none of the revisionists can be found guilty for the aforesaid offences till it is shown that they were instrumental in recording the fake name of the victim in the hospital record and because there is no such evidence available in this regard, hence no charge for the aforesaid offences can be framed against them. Thus, in the light of the above discussions, I am of the view that there was no material at all to frame the charges u/s 315, 420, 467, 468, 471 I. P. C. against the revisionists and the trial court had wrongly proceeded to frame such charges. The impugned order dated 11. 3. 2008 is definitely an improper order liable to be set aside and the revision is liable to be allowed. The revision is allowed, the impugned order dated 11. 3. 2008 passed by the trial court is hereby quashed and the revisionists are discharged from the offences punishable u/s 315, 420, 467, 468, 471 I. P. C. .