No HC relief to Doctor accused of performing forcible sex change surgery on minor after kidnapping him

Bengaluru: The Bengaluru bench of Karnataka High Court recently denied quashing an FIR and case proceedings against a doctor for her alleged involvement in the sex-change operation on a minor boy.

Observing that it was not possible to "come to a conclusion that there are no offences which have been made out, there are no grounds which have been made out for quashing of the proceedings", the High Court bench comprising of Justice Suraj Govindraj directed the concerned doctor, Dr Patil raise all the defences before the trial court.

"These are matters which are required to be strictly left for trial with all defences left open for the petitioner to be agitated before the trial Court," the bench clarified in its order dated August 24.

Currently, the matter is being probed by the Crime Investigation Department (CID). Although the petitioner doctor had also prayed to restrain CID from further investigating the matter, the court refused to grant any relief.

The matter involves an alleged forcible sex change operation on a minor. It was the grand mother of the minor who had lodged the complaint and claimed that the petitioner doctor had changed the sex of the minor from male to female by kidnapping him. PTI adds that the doctor from K R Pet was also accused in the case, wherein the minor was abducted by transgenders to be used for prostitution and for extortion.

Therefore, the doctor and other accused had also been booked for offences under Section 376 of IPC and Sections 6 and 21 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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After the completion of the investigation, a charge sheet was filed including the petitioner doctor. However, approaching the HC bench the counsel for the petitioner submitted that the petitioner was only a doctor who had wrongfully been implicated in the matter. She also submitted that the petitioner doctor had not performed any operation as alleged. 

The counsel for the doctor further argued that no criminal prosecution could be initiated against the petitioner doctor without following the guidelines laid down by the Supreme Court in the case of Jacob Mathew Vs. State of Punjab and Another.

By relying on the above decision, she submitted that unless there is a credible opinion given by another Doctor against the accused-Doctor, no criminal case should be registered against the petitioner doctor.

At this outset, the doctor's counsel further relied upon the top court's decision in the case of Martin F. D'souza Vs. Mogd. Ishfaq and submitted that there had been no opinion obtained by the complainant before filing of the complaint and no such opinion had been obtained by the investigating officer before laying the charge sheet. Therefore the charge sheet had been laid in violation of the top court's order in the cases of Jacob Mathew and Martin F. D'Souza argued the doctor's counsel and demanded to quash all the proceedings.

On the other hand, the counsel for the Karnataka Government submitted that the decisions of the top court bench would not be applicable since they relate to medical negligence, whereas in the concerned case, there are no allegations regarding medical negligence. In this case, the allegation is of forcible sex change operation which is a criminal offence both under the IPC and under the POCSO Act, argued the Government pleader.

Perusing the details of the case, the bench observed that "The allegations that have been made in the complaint state that a forcible sex change operation has been conducted on *****, who is the grandson of the complainant. On that basis, the investigation has been taken up. Several person have been implicated in the charge sheet, many of whom are transgenders, who are alleged to have got a forcible sex change operation due in order to make use of ***** for the purpose of prostitution as also for extortion of money etc."

Although the doctor's counsel contended that the petitioner doctor has not performed the operation, the bench observed, "I am of the considered opinion that this cannot be a matter which can be decided in a proceeding under Section 482 of Cr.P.C. that is a matter which is required to be left for trial."

Referring to the top court orders in the cases of Jacob Mathew (supra) and Martin F. D'Souza (supra), the HC bench observed,

"It is clear from a reading of the extracted portion that it is only when there is criminal rashness and/or criminal negligence which is alleged against the Doctor that the opinion of another Doctor is required to be obtained which could establish whether there is in fact criminal rashness or negligence or whether the treatment mode adopted by the Doctor is the normal and regular treatment mode which does not amount to rashness or negligence. In the present matter, there is no allegation of any rashness or negligence. In fact, the allegation is that there was a successful sex change operation conducted by the petitioner, changing the sex of ***** from male to female."

Therefore, directing the doctor to raise all the challenges before the Trial Court, the bench dismissed the petition and observed,

"The allegations are that the said operation has been conducted without the consent of the said ***** and that he could not have concern that since he was a minor at that point of time. These are matters which are required to be strictly left for trial with all defences left open for the petitioner to be agitated before the trial Court. I am unable to come to a conclusion that there are no offences which have been made out, there are no grounds which have been made out for quashing of the proceedings, as such, reserving liberty to the petitioner to raise all the defences before the trial Court, the petition stands dismissed."

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