HC refuses to interfere with criminal proceedings against doctor over minor’s abortion

The Delhi High Court has refused to interfere with the criminal proceedings against a doctor for allegedly illegally terminating a 16-year-old girl’s six-week pregnancy and failing to report the matter to the authorities.

While the petitioner-doctor claimed that the minor’s age at the time of abortion was stated to be 20 years and she consented to the procedure, Justice Purushaindra Kumar Kaurav underscored that under the law, age has to be “ascertained and recorded”, and “not merely accepted on an unverified oral representation”.

Justice Kaurav held that the Medical Termination of Pregnancy (MTP) Act provides that a minor is incapable of independently consenting to termination and her pregnancy cannot be medically terminated without the guardian’s consent in writing.

“A registered medical practitioner performing an invasive procedure that the MTP Act itself conditions on the patient’s age is not absolved of the obligation to seek some documentary anchor for that age merely because an escort volunteers a figure. The entire statutory architecture examined presupposes that age is a fact to be ascertained and recorded, not merely accepted on an unverified oral representation from an adult accompanying the patient, particularly where that adult, as later investigation revealed, was not in fact in any relation with the prosecutrix at all,” said the court in the judgement passed on August 5.

Before the High Court, the petitioner challenged the trial court’s September 2020 order directing further investigation into whether the doctors terminated the pregnancy while knowing the girl was a minor and then consciously did not report the matter to the police in terms of Section 19 of the POCSO Act.

Subsequently, a supplementary chargesheet was filed, arraigning the petitioner as the sole accused for various offences, including Section 313 (causing miscarriage without woman’s consent) of IPC. While taking cognisance, the trial court additionally invoked Section 21 of the POCSO Act and summoned the petitioner.

Section 19 of the POCSO Act casts an obligation on doctors to report instances of a minor’s pregnancy and Section 21 imposes a penal consequence on a failure to discharge that obligation.

In her statement, the survivor alleged that in July 2019, a co-accused, who pretended to be her aunt, told the hospital staff that the child belonged to the girl’s boyfriend, and caused her age to be recorded as twenty.

In the judgement, the court observed that according to the prosecution, the petitioner became aware of the minor’s age at the time of the termination procedure itself and the FIR under the POCSO Act was registered only 70 days after the termination due to the petitioner’s failure to report it.

Noting that at the time of admission, no identity proof and no residential proof of any kind were obtained at the hospital, the court concluded that the alleged offence against the petitioner was made out from the prosecution records, warranting trial.

The court stated that the MTP Act was “not enacted to create an unqualified license to terminate pregnancy on demand” and verification of a pregnant female’s age was “foundational to the practice of a registered medical practitioner performing terminations”.

“A practitioner who fails to ascertain age, or who proceeds to terminate a pregnancy on the strength of an orally declared age without any document to support it, does not merely commit a procedural lapse; she disables the very mechanism,” the court said.

“This court holds that the order dated 29.09.2020 directing further investigation does not warrant interference and that the order dated 31.07.2021 taking cognisance and issuing summons accordingly does not suffer from any illegality warranting interference under Section 482 CrPC,” it concluded.