Dr. Natarajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 CRL.MC NO. 8364 OF 2018** **CRIME NO.703/2018 OIF PALAKKAD TOWN NORTH POLICE STATION, PALAKKAD PETITIONER/ACCUSED NO.2** DR.NATARAJAN, AGED 78 YEARS S/O.AYYAVU IYER, KAILAS VINAYAKA COLONY, THAREKKAD, NEAR VICTORIA COLLEGE, PALAKKAD III VILLAGE, PALAKKAD TALUK AND DISTRICT. BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) ## **RESPONDENT/STATE** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.703/2018 OF PALAKKAD TOWN NORTH POLICE STATION, PALAKKAD DISTRICT) PP SRI. RENJIT GEORGE PP RENJIT GEORGE,SR GP **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.M.C.8364/18 2 ## **ORDER** ## **Dated : 25[th] November, 2021** 1. This Crl.M.C has been filed seeking to quash the entire further proceedings in Crime No.703/2018 of Palakkad Town North Police Station which has been registered for the offence punishable under Section 21 of the Protection of Children from Sexual Offence Act, 2012 (PoCSO Act). 2. Prosecution allegation is that on 15.5.2018 accused conducted D&C upon the minor victim aged 17 years in spite of knowing the fact that she is a minor aged 17 years and failed to intimate the fact to the concerned authorities and thereby committed the offence aforementioned. 3. Annexure-VI is the copy of the FIR. According to the learned counsel for the petitioner, at the time when the victim came for consultation, her age was revealed as 18 years and Annexure-I is the copy of Form No.C Crl.M.C.8364/18 3 under the Medical Termination of Pregnancy Rules, 1957. Annexure-II is the copy of the certificate prepared as per Form No.1 of Medical Termination of Pregnancy Rules. Annexure-III is the copy of consent form given by the victim and her mother. Annexure-IV is the copy of relevant page of the Admission Register of the hospital. 4. Annexure-I would go to show that the age of the victim has been shown as 18 years and her mother also has signed in it. Anneuxre-IV also would show that the age of the victim is shown as 18 years. According to the petitioner, he was informed by the family members that the girl is aged 18 years and there is nothing to suspect with regard to the age of the victim and it is also his contention that he has 55 years' practice in medical field and there is no complaint against him till date. The learned counsel also contended that since the age of the victim has been stated as 18 years by the victim and her mother, there is no question of attracting the offence under Section 21 of the PoCSO Crl.M.C.8364/18 4 Act to the fact situation of this case. 5. Heard both sides. 6. At the time of argument, the learned counsel for the petitioner also produced copy of the judgment in S.C.622/2018 dated 30.1.2021 which arose out of Crime No.495/2018 which was registered against the original accused which ended in acquittal under Section 232 Cr.P.C. It would go to show that the victim as well as the mother turned hostile and there was no evidence whatsoever to connect the accused in the case with the offence. It is in connection with that crime, this Crime No.703/2018 has been registered against the petitioner under Section 21 of the PoCSO Act. 7. In this context the learned counsel brought to my attention **Sreelatha K.V. v. State of Kerala (2019 KHC 971)** wherein while dealing with Section 19 and 21 of the PoCSO Act this Court categorically held in paragraph 35 that “in order to successfully secure conviction of the person, who is alleged to have committed the so-called secondary offence as per Crl.M.C.8364/18 5 section 19(1) of the PoCS Act one of the prime requirements is that the prosecution will have to establish that the principal offender has in fact committed the principal offence as per the PoCSO Act. In other words, if the principal offender is acquitted of the principal offence then there is no question of securing any conviction of the secondary offender, who is said to have committed the offence as per Sec.19(1) of the PoCSO Act.” 8. The learned counsel further brought to my attention **Sr.Tessy Jose (Dr.) and Others v. State of Kerala (2018 KHC 6564)** wherein while dealing with Sections 19 and meaning of the word “knowledge” it has been held that there is no obligation to investigate and gather knowledge. Paragraph 9 of the said decision is relevant to quote which reads as follows :- “.......................The provisions of Section 19(1), reproduced above, put a legal obligation on a person to inform the relevant authorities, inter alia, when he/she has knowledge that an offence under the Act had been committed. The expression used is “knowledge” Crl.M.C.8364/18 6 which means that some information received by such a person gives him/her knowledge about the commission of the crime. There is no obligation on this person to investigate and gather knowledge. If at all, the appellants were not careful enough to find the cause of pregnancy as the victim was only 18 years of age at the time of delivery. But that would not be translated into criminality. 9. In this case the prosecution allegation is that the petitioner in spite of knowing that 17 year old victim is pregnant on examination, failed to intimate the fact to the authorities as provided under Section 19(1) of the PoCSO Act. The main contention of the petitioner is that information given by the mother of victim and victim was that she was 18 year old. Even otherwise as per the dictum laid down in **Sr.Tessy Jose** 's case, mere fact that petitioner treated the patient is not a reason to say that petitioner has knowledge about the rape of the victim. There is no obligation on the petitioner and gather information about the act of rape. A Doctor's prime duty is to treat the patient. If at all there was any negligence on his part to gather Crl.M.C.8364/18 7 information about the cause of pregnancy,that can not be translated to any criminal liability also. 10. More over, in this case, the alleged perpetrator of this crime ie, rapist has been acquitted under Section 232 Cr.P.C as per the judgment dated 30.1.2021 in S.C.No.622 of 2018 of the Court of Session, Palakkad (copy of which is made available for perusal). In **Sreelatha's** case referred supra, a learned Single Judge of this Court has held that in order to secure conviction of the person who alleged to have committed secondary offence as per Section 19(1) one of the prime requirement is that the principal offender has committed the principal offence. When the principal offender himself has been acquitted for the reason that there is no evidence to connect him with the offence, the liability of the secondary offender like the petitioner vanishes in air. 11. For the reasons stated above, I am of the considered view that there is no material whatsoever to attract the offence under Sections 19 and 21 of the Crl.M.C.8364/18 8 PoCSO Act as against the present petitioner. Hence criminal prosecution against the petitioner would be an abuse of process of Court. 12. In the result, Crl.M.C allowed and the entire proceedings in Crime NO.703/2018 of Palakkad Town North Police station, Palakkad, is hereby quashed. Sd/- M.R.Anitha, Judge Mrcs/25.11. Crl.M.C.8364/18 9 ## **APPENDIX OF CRL.MC 8364/2018** ANNEXURES ANNEXURE I TRUE COPY OF FORM NO.C UNDER THE MEDICAL TERMINATION OF PREGNANCY RULES, 1957, SIGNED BY THE VICTIM AS WELL AS HER MOTHER. ANNEXURE II TRUE COPY OF THE CERTIFICATE DATED 16.5.2018 PREPARED AS PER FORM NO.1 OF MEDICAL TERMINATION OF PREGNANCY RULES. ANNEXURE III TRUE COPY OF CONSENT FORM GIVEN BY THE VICTIM AND HER MOTHER DATED 15.5.2018. ANNEXURE IV TRUE COPY OF THE RELEVANT PAGE OF THE ADMISSION REGISTER OF THE HOSPITAL. ANNEXURE V TRUE COY OF THE MARRIAGE CERTIFICATE DATED 25.10.2018 ISSUED BY THE DEPARTMENT OF PANCHAYATH, GOVERNMENT OF KERALA. ANNEXURE VI CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.703/2018 OF PALAKKAD TOWN NORTH POLICE STATION.