NISHA MALVIYA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Parties are heard finally.

(2.) The applicants, who are Doctors, have been charge-sheeted by the learned Sessions Judge, Raisen in S.T. No. 227/98, for offences punishable under Sections 313, 201 and 376 of the I.P.C. There are five accused standing trial, these two are Doctors. One of the accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that two other co-accused took this girl, who was carrying five months pregnancy, to Bhopal to these two doctors, i.e. applicants. They terminated her pregnancy. So the charge on them is firstly causing miscarriage without consent of girl or even her guardian and thus causing disappearance of evidence of rape, which was committed by the accused Riyaz Ahamad. Secondly they committed miscarriage.

(3.) There are two fold submissions made by the learned counsel for the applicants against the framing of charges - one that the rape was committed allegedly in Raisen District while the miscarriage had taken place at Bhopal. It is argued that carrying out miscarriage without consent is a distinct offence and not connected with rape in any manner, and not a part of the same transaction. So far the offence of miscarriage is concerned, these two Doctors, i.e. applicants, allegedly terminated the pregnancy. The second argument is that in fact, there is a consent of the mother of the girl that she will be in a mental worry for the girl of 12 years to deliver a child, but particularly when she was a unmarried girl and in such circumstances, Section 3 of the Medical Termination of Pregnancy Act, 1971 provides protection to these doctors, even if they carried out miscarriage.