Where a complaint of rape is lodged and the victim is found to have become pregnant and she does not want to retain the foetus, the pregnancy itself may be treated as involving grave mental injury and the medical assistance must be secured to the rape victim at the nearest hospital with a request through the rape victim or the guardian depending on whether the person is a minor or not to take an opinion from the competent medical personnel about the feasibility of termination of pregnancy and carry out the procedure without wasting any time. The judgment was passed by The High Court of Orissa in the case of Debashis Ghosh Vs the State of Odisha and Ors. [BLAPL No.5249 OF 2020] by Single Bench consisting of Hon’ble Shri Justice. S.K. Panigrahi.
The present application under Section 439 Cr.P.C. has been filed in the Court of the learned Additional District & Sessions Judge, wherein the Petitioner is alleged to have committed an offence punishable under Sections 313/166/201/120(B), IPC read with Sections 17/21 of the POCSO Act and Section 3(2)(v) of the SC/ST (PA) Act.
Learned Counsel for the Petitioner submitted that the petitioner is languishing in jail custody and is aged about 51 years and is a registered medical practitioner. The petitioner has terminated the 7 six weeks old pregnancy of the victim based on the police requisition issued by the IIC of Biramitrapur following the provisions of the Medical Termination of Pregnancy Act 1971.
The petitioner opined in good faith that the continuance of pregnancy of the victim girl would involve a risk to the mental health of the victim as the pregnancy is alleged to have been caused by rape. The petitioner has obtained the signature of the caretaker namely Constable Pramila Ekka on Form-C, as no other guardian of the victim was available then. There is no conspiracy between the IIC of Biramitrapur P.S. and the petitioner to illegally abort the pregnancy of the victim girl and the same was done in good faith.
Learned Counsel for the respondent has submitted that the accused then IIC of Biramitrapur P.S. found a neglected girl and sexually exploited her and when she became pregnant, the accused hatched a conspiracy with the present petitioner Dr Debashis Ghosh and aborted her pregnancy. He further, submitted that the required procedures have not been complied with by the IIC, the Petitioner ought to have preserved the aborted foetus for DNA profiling which was not done. Thus, it is a case of connivance and conspiracy.
While clearing the contentions the learned court held that “in terms of Section 3 of the Act, 1971, pregnancy may be terminated by a registered medical practitioner and the practitioner shall not be guilty under the Penal Code, 1860 if any pregnancy is terminated by him following the provisions of the Act, 1971.”
While allowing the petition, the court noticed that “the present case is meritorious in nature and the petitioner deserves to be enlarged on bail based on the facts and circumstances of the present case.”