Delhi High Court: In a case that highlighted negligence on the part of medical authorities to conduct timely medical termination of pregnancy of a 16-year-old prosecuterix, resulting in loss of crucial piece of evidence i.e., preservation of fetus which plays a major role in sexual assault investigations, Swarana Kanta Sharma, J., laid down directions relating to the care and caution to be exercised by the doctors as well as the investigating authorities ensuring timely medical procedures considering the potential risks to the sexual assault survivors and thorough investigation.
In the case at hand, a complaint was filed by the father of the prosecutrix with the police alleging that the applicant had established physical relations with her without her consent. The statement of the prosecutrix under Section 164 CrPC was recorded and the present accused/applicant was arrested on 04-02-2021. Thereafter, the counselling of the prosecutrix was conducted and she was produced before the Child Welfare Committee (CWC), Hari Nagar, and on 04-02-2021, permission for medical termination of pregnancy of prosecutrix was given by CWC and she was taken to DDU Hospital, Hari Nagar for carrying out the procedure. After investigation, the chargesheet was filed by the police and charges were framed by the learned Trial Court under Sections 363, 366, 376(2)(n) of IPC.
The Court noted that a perusal of the record reveals that the prosecutrix was only 16 years of age at the time of the incident. Further, when her medical examination was conducted, the prosecutrix was found to be pregnant. Further, the prosecutrix had informed the doctor concerned during her medical examination, as recorded in the MLC, that the present applicant had forcibly established physical relations with her. The testimonies of the material witnesses i.e. the prosecutrix and her father have been recorded and both the witnesses have supported the case of prosecution.
Thus, the Court refused bail considering the overall facts and circumstances of the case, and the fact that the prosecutrix who was a minor at the time of commission of offence, was repeatedly raped by the present applicant.
The Court noted that the prosecutrix, who was aged about 16 years, had conceived allegedly due to sexual assault, however, no order for termination of pregnancy from CWC was given in proper time. On 09-02-2021, when she was admitted for termination of pregnancy, the medical record does not reveal what transpired during that period and why the pregnancy was not terminated and as to why she was discharged from the hospital though, there were clear directions for preservation of the fetus. It was duty of the doctor concerned to have complied with the order of CWC with care, caution and seriousness as the fetus was one of the most crucial pieces of evidence in a sexual assault case. This evidence was lost due to the negligence of the doctor concerned.
On the aspect of duty of doctors to take precautions in cases of medical termination of pregnancy of sexual assault victims, the Court observed that doctors play a crucial role in such sensitive cases, especially when minors are involved. It is essential for doctors to uphold the highest standards of medical ethics, compassion, and professionalism. In such cases, doctors must prioritize the health and well-being of their patients while being mindful of the legal and ethical complexities surrounding the procedure. When a minor seeks medical termination of pregnancy, such cases must be approached with empathy, ensuring that the minor feels safe and supported throughout the process. Doctors should also provide clear instructions on post-operative care, including any necessary medications, activity restrictions, and signs of potential complications.
The Court laid directions as follows in addition to the guidelines issued by the Court in Minor R Thr Mother H v. State NCT of Delhi, 2023 SCC OnLine Del 383,
(i) Circulation of existing guidelines and SOPs: The Department of Health and Family Welfare, Government of NCT of Delhi and Ministry of Health and Family Welfare, Government of India is directed to ensure that the existing guidelines/Standard Operating Procedure for conducting examination of the victims of sexual assault are circulated in all the hospitals in Delhi;
(ii) Regarding additional directions issued vide this judgment: The above said Ministries are also directed to circulate the additional directions contained in the present judgment which be added to the existing SOPs, that in case the victim is pregnant and there are orders for medical termination of pregnancy including for preservation of fetus, the investigating officer will place such order before the Superintendent of the hospital concerned, who will ensure that the doctor concerned who is assigned the duty of medical termination of pregnancy conducts the same with utmost caution;
(iii) Producing the victim within 24 hours of order of competent authority before the hospital even in pregnancy of less than 20 weeks: The investigating officer concerned will produce the victim for the purpose of medical termination of pregnancy within 24 hours of passing of such order before the Superintendent of the concerned hospital, even in cases where the gestation period of the pregnancy is less than 20 weeks as in the present case;
(iv) Preservation of fetus: It is directed that the doctor concerned will ensure that the fetus is preserved and the victim is not discharged in a hurry, resulting in putting the life of the victim in danger and loss of evidence in a sexual assault case;
(v) Recording of reasons for discharge without termination of pregnancy: The doctor concerned will also mention, in case the victim is discharged without termination of pregnancy, the reasons for the same so that the crucial evidence in the form of fetus is not lost;
(vi) Recording of details of treatment for medical termination of pregnancy: It shall be duty of the doctor concerned also to mention in detail, the treatment given to the victim of sexual assault including any medicines given or procedure carried out for the purpose of termination of pregnancy;
(vii) Difficulty faced by the Courts in reading MLCs and need to file typed MLC in sexual assault cases: The Courts experience difficulty in reading or making out the observations in the MLCs or discharge summaries as they may not be comprehensible due to illegibility of the handwriting of the concerned doctor, medical abbreviations and terminology used, etc. This Court remains aware of the fact that when the MLC is being prepared by the doctor, due to various constraints and reasons of privacy etc., it has to be handwritten. Therefore, it is directed that in cases where medical examination of a victim of sexual assault is conducted, all the hospitals concerned will ensure that along with the original MLC as well as discharge summary of such victim, a typed copy of the same is also prepared by the concerned hospital and provided to the investigating officer within a period of one week. It is essential to do so since though at the time of recording of evidence and trial, the doctor concerned may appear, read and depose about the contents of MLC, when the Court has to read and appreciate it at the stage of consideration of bail or framing of charge, it poses difficulty to the Court;
(viii) Typed copy of MLC may be sent by electronic mode to the IO: The typed MLC can also be sent to the investigating officer through electronic means to save the time of the investigating officer and the concerned hospital.
[Nabal Thakur v. State, 2023 SCC OnLine Del 4765, decided on 09-08-2023]
Advocates who appeared in this case :
Mr. Sunil Kumar and Mr. Giri Raj Singh, Advocates for the Petitioner;
Mr. Manoj Pant, APP for State with SI Meenu, PS Kirti Nagar, Advocates for the Respondents.
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