Dr. Sheethal C.M. v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 CRL.MC NO. 5707 OF 2020** **CRIME NO.377/2020 OF Nileswar Police Station, Kasargod SC 495/2020 OF ADDITIONAL DISTRICT & SESSIONS COURT - I,** ## **KASARAGODE** ## **PETITIONER/ACCUSED NO.3** DR.SHEETHAL C.M. AGED 42 YEARS D/O. DR. C.M.SASIDHARAN, WORKING AS RADIOLOGIST, LAXMI MEGAN HOSPITAL, KANHANGAD, R/AT CHERIYA MADATHIL, AINGOTH, KANHANGAD, KASARGOD DIST. BY ADVS. SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU ## **RESPONDENTS/STATE AND COMPLAINANT** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM -682 031 2 STATION HOUSE OFFICER, NILESHWAR POLICE STATION, KASARGOD DISTRICT, PIN-671 121 3 ADDL R3 XXX (IMPLEADED AS PER ORDER DATED 17.3.2021 IN CRL.M.A.1/2021) **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **23.11.2021, THE COURT ON 29.11.2021 DELIVERED THE FOLLOWING:** Cr.M.C.No.5707 of 2020 2 ## **ORDER** Dated : 29[th] November, 2021 1. Petitioner is the 3[rd] accused in S.C. No.495/2020 on the file of Additional District & Sessions Judge-I, Kasaragod, which arise out of Crime No.377/2020 of Neeleshwar Police Station, which has been registered for the offecnce punishable under Sections 376(2)(n), 376(3), 376(2)(g), 376(2)(f), 370, 370A and 354 of Indian Penal Code r/w Sections 4, 3, 6, 5l, 5n, 5g, 5j(ii) of Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). 2. According to the learned counsel for the petitioner, in Annexure-A1 FIR, the petitioner is not arrayed as an accused. Annexure-A2 is the subsequent report in which she has been implicated as 3[rd] accused in the above case. She is a Medical practitioner and is working as Radiologist at Laxmi Megha Hospital, Kanhangad. Petitioner is a qualified Radiologist, having post graduate degree in General Surgery (MS) and Radiology (DNB). She had been performing her duties as Radiologist in accordance with the terms of Cr.M.C.No.5707 of 2020 3 registration and licence granted by the competent authority under the provisions of Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 as amended by Act No.14 of 2003 and Rules thereunder. 3. The allegation against the petitioner is that she has committed offence punishable under Sections 21 r/w 19(1) of the POCSO Act. The relevant portion of allegation so as to connect the petitioner with the offence in the FIS is that since menstruation of the victim was delayed by two months, the parents took the victim to Thaikadapuram Government hospital. The Doctor after consultation had given medicines to her. Since menstruation did not happen even after taking medicines for three days, she was taken to Dr.Komalam, who advised the patient to have scanning test. Accordingly the girl was taken to the District Hospital, Kanhangad, but scanning test was not conducted from there, and instead some tablets were prescribed again. After taking these tablets, she collapsed and started vomiting. Thereafter she was taken to Laxmi Meghan Hospital for scanning, as Cr.M.C.No.5707 of 2020 4 already prescribed by Dr. Komalam. After obtaining scanning report, Dr. Komalam was again consulted, who revealed that the survivor has pregnancy of four months. On the same day, she was taken to Arimala hospital at Kanhangad, and consulted Dr. Ambujkashi with scanning report. Doctor gave some tablets after consultation. Next day she had bleeding, and was taken to hospital where she had been treated for the day, and discharged in the evening. On arrival from hospital same day, the maternal uncle came to the house, and when asked about, she narrated the incidents to him. He thereupon brought her to the polcie station. The female Civil Police Officer, Smt.Jayasree recorded her statement and then registered FIR. 4. According to the learned counsel for the petitioner, there is no mention in the FIS about the involvement of the petitioner and in the subsequent records produced from the side of the prosecution also, there is nothing to inculpate the petitioner as an accused and it is also his contention that the doctors who have prescribed for scanning test had been arrayed Cr.M.C.No.5707 of 2020 5 as witness. There is nothing to add this petitioner as an accused. According to him, incorporation of the petitioner as 3[rd] accused is a clear abuse of process of court. Hence, he seeks quashment of the proceedings against the petitioner. 5. Petitioner produced copy of the scan report as Annexrue-A6. Copy of the PNDT register as AnnexrueA6. Annexure-A7 is the scanning report. 6. The learned Public Prosecutor on the other hand would contend that in the scan report which is produced as Annexure-A7, the age of the victim is clearly stated as 15 years and the scan impression as per AnnexureA7 of USG abdomen of the patient is also stated as early intrauterine gestation corresponding to 12 weeks 6 days of gestational age. 7. According to the learned Public Prosecutor, on getting such an impression, the petitioner will have clear knowledge about the pregnancy of the child and hence as per Section 21 r/w 19(1) there is a duty cast upon the petitioner to intimate the authorities. So prima facie there are materials, according to the learned Public Prosecutor, to attract the offence Cr.M.C.No.5707 of 2020 6 against the petitioner. 8. The learned counsel for the petitioner in this context, drew my notice to the fact that the doctor who had prescribed for scanning and to whom the patient actually returned with the result of scanning, has not been made as an accused and she has been arrayed as witness from the prosecution side and the petitioner who is only a radiologist who had conducted the scanning as prescribed by the gynecologist, has been unnecessarily implicated as an accused. On perusing the FIR, the copy of which is Annexure-A1, it is seen that initially the victim was sent to Government Hospital since her menstruation is skipped for two months. The doctor gave some pills even in spite of that, her menstruation has not come. Hence she consulted Dr.Komalam. She also prescribed pills for one week. Even in spite of that, her menstruation has not come and the doctor prescribed scanning. Scanning was not conducted at District Hospital, Kanhangad and again prescribed pills and thereafter she went to Laxmi Meghan Specialty Hospital, Kanhangad, along with father and mother and Cr.M.C.No.5707 of 2020 7 from there scanning was conducted and the result was shown to Dr.Komalam. So it is very clear that after the scanning, the victim and parents shown the result of scanning to Dr.Komalam who had actually prescribed to conduct scanning. It is very pertinent to note that apart from conducting the test of scanning, no other responsibility is actually vested with the doctor who conducts the pre natal Diagnostic test. Scanning is also a process conducted by the radiologist with an equipment and technique and accordingly a result as per that technique, would be received and given to the patient and nothing more than that would be done by a radiologist while conducting scanning. So the question is whether the doctor who conducted scanning can be said to have the apprehension of the offence under the Act is likely to be committed or knowledge that such an offence has been committed and thereby bound to provide information to the authorities provided therein. 9. Section 19(1) starts with a _non obstante_ clause with respect to the provisions of Code of Criminal Procedure and provides that, any person (including Cr.M.C.No.5707 of 2020 8 the child) who has apprehension that an offence under this Act is likely to be committed or knowledge that such an offence has been committed, shall provide the information to Special Juvenile Special Unit or the local police. 10. The learned counsel for the petitioner in this context bring to my attention **Sr.Tessy Jose (Dr.) and Others v. State of Kerala (AIR 2018 SC 4654 = 2018 (18) SCC 292 = 2018 (3) KLT 934)** . That was a case in which a minor victim became pregnant out of sexual assault and when she complained about pain on stomach, thinking to have some problem in relation to stomach, her mother had taken her to a hospital where the appellants in that case and the doctor who attended the victim was working and soon after the victim went to the labour room and delivered the child. The first appellant in that case was the gynecologist who conducted the delivery, appellant No.2 is a pediatrician who attended the baby after delivery and appellant No.3 is the hospital administrative. All of them were roped in under Section 19 along with the first accused, rapist. Cr.M.C.No.5707 of 2020 9 Paragraph 9 and 10 are relevant in this context which read thus :- 9. “.......................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” 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. 10. The term “knowledge”has been interpreted by this Court in AS Krishnan and Others v. State of Kerala to mean an awareness on the part of the person concerned indicating his state of mind. Further, a person can be supposed to know only where there is a direct appeal to his senses.................” 11. So in this particular case, the petitioner/radiologist just conducted the scanning as prescribed by the gynecologist and handed over the scanning report. Since the result the radiologist obtained through scanning cannot be said to have any direct appeal to her senses so as to hold that she Cr.M.C.No.5707 of 2020 10 has knowledge of such offence as contemplated under Section 19 of the PoCSO Act. The radiologist is simply conducting the test of scanning through an equipment and get the result by that process of scanning and it cannot at any moment be taken as a knowledge acquired directly through her senses. It is also very curious to note that the prosecution has made Dr.Komalam, who is the gynecologist who prescribed scanning to the victim as a witness. So a doctor who conducted scanning upon the victim cannot be mulcted with an obligation to gather information from the victim or parents with respect to the cause of pregnancy. If at all there was any element of carelessness to find out the cause of pregnancy upon the radiologist taking into account the fact that the victim was a minor girl as per Ext.P7, it cannot be translated into a criminal liability, as has been held in **Sr.Tessy Jose** 's case, referred supra. 12. So on an evaluation of the totality of the facts and circumstances, I am of the considered view that the petitioner who is a Radiologist who happened to conduct Pre Natal Diagnostic test of the victim Cr.M.C.No.5707 of 2020 11 cannot be implicated as an accused for the offence punishable under Section 21 r/w Section 19 (1) of the PoCSO Act. 13. In the result, Crl.M.C allowed and all further proceedings against the petitioner/3rd accused in Annexure-A3 final report, in Crime No.377/2020 of Nileshwar Police Station which is now pending as S.C.495/2020 in the Court of Additional Sessions Judge-I, Kasargod is hereby quashed. Sd/- **M.R.ANITHA, Judge** SMF/Mrcs/23.11. Cr.M.C.No.5707 of 2020 12 |PETITIONER ANNEXURE|| |---|---| |ANNEXURE A1|CERTIFIED COPY OF FIR NO. 377/2020 OF| ||NILESWAR POLICE STATION.| |ANNEXURE A2|TRUE COPY OF REPORT DATED 17.08.2020 FILED BY| ||THE INVESTIGATING OFFICER, BEFORE THE ADDL.| ||SESSIONS COURT-1, KASARGOD.| |ANNEXURE A3|CERTIFIED COPY OF FINAL REPORT DATED| ||22.10.2020 IN FIR NO. 377/2020 OF NILESHWAR| ||POLICE STATION.| |ANNEXURE A4|TRUE COPY OF SUMMONS ISSUED THE ADDL.| ||SESSIONS COURT-1, KASARGOD.| |ANNEXURE A5|TRUE COPY OF FORM FOR MAINTENANCE OF RECORDS| ||DATED 19.06.2020.| |ANNEXURE A6|TRUE COPY OF EXTRACT OF THE RELEVANT PATIENT| ||ENTRY DATA.| |ANNEXURE A7|TRUE COPY OF ULTRA SONOGRAPHY REPORT DATED| ||19.06.2020.|