HC relief to gynaecologist, says Investigating Officers Should Be Extra Cautious Before Implicating Doctors under POCSO Act

Ernakulam: Highlighting the mental trauma that the doctors have to face for falsely being implicated as accused under the POCSO Act for failing to report the commission of a crime against a minor, the Kerala High Court has asked the investigating officers to be extra cautious. With this, the bench granted relief to the gyanceologist.

The Court issued this direction after noting that doctors got arrayed as accused with Section 19 of the POCSO Act mechanically, without applying the mind of the investigating officer.

Terming it to be "absolute injustice", the HC bench highlighted how it puts the doctors under mental trauma of criminal prosecution, ultimately preventing them from discharging their duties promptly.

"...it is inevitable to observe that I had occasion to come across many cases where doctors being inveigled into criminal cases under the POCSO Act within the sweep of Section 21 r/w Section 19, urging that there was failure to report the crime as stipulated in Section 19. In this regard, it is high time to address on this issue. Doctors are bestowed with the duty to save the life of the patients and have been busily engaged in their vow. Therefore, while implicating doctors in criminal cases with the aid of Section 19 of the POCSO Act, the investigating officer must apply his mind from the materials collected and form an unbiased opinion to see, prima facie, that there is deliberate intention or omission to report the crime. Unless the said deliberate intention not divulged from the records, unwanted implication of doctors in crime shall be avoided," observed the HC bench comprising Justice A. Badharudeen.

"It is noticed that doctors got arrayed as accused with the aid of Section 19 of the POCSO Act mechanically, without applying the mind of the investigating officer. This is nothing but absolute injustice and putting the doctors under mental trauma of criminal prosecution and the same would stand as a rider for the doctors in doing their duties promptly," the bench further noted.

Also Read: HC grants relief to doctor accused under POSCO Act for not informing police about offence within time-limit, says Doctors should get reasonable time

"Therefore, the investigating officers are specifically directed to be more cautious when doctors’ involvement is doubted in POCSO offences and implication of doctors in criminal cases under the POCSO Act shall be avoided unless relevant materials do not justify the same," the Court ordered.

While Section 19 of the POCSO Act puts a legal obligation on a person to inform the relevant authorities when there is knowledge that an offence under the POCSO Act has been committed, Section 21 deals with the punishment for failing to report or record a sexual offence.

The High Court made these observations while considering a case alleging that a minor was subjected to repeated sexual intercourse by the first accused. In this case, the petitioner, who is a 68-year-old gynaecologist was arrayed as another accused for allegedly failing to report about the pregnancy of the minor to the police.

It was further alleged that after examining the minor, when the doctor came to know about the pregnancy, she conducted an abortion without the minor's consent. Accordingly, the doctor was booked for committing offences under Section 19 (reporting of offences), 21 (punishment for failure to report or record a case) of the POCSO Act and Sections 312 (causing miscarriage), 313 (causing miscarriage without woman's consent) of the IPC.

Challenging this, the doctor approached the High Court and submitted that it was the victim's parents who brought her to the doctor in an advanced stage of pregnancy. Further, the doctor claimed that she was also informed that the girl was 18 years old and married. Further, the doctor clarified that she had no reason to suspect that it was a POCSO case. 

Apart from this, the doctor also submitted that the victim was brought with severe bleeding with symptoms of a possible miscarriage and as a doctor, her primary aim was to save the minor's life, without intentionally causing an abortion. Further, the doctor claimed that the minor's parents as well as the minor herself, who posed as a major, consented to the treatment.

While adjudicating the issue, the Court referred to the Supreme Court's order in the case of Tessy Jose & Ors. v. State of Kerala, where the Court had held that mere likelihood of suspicion was not sufficient but there must be grave suspicion that the doctors knowingly failed to report the POCSO offence. In that particular case, the Apex Court had exonerated the accused doctors, who were booked for committing an offence under Section 19 of the POCSO Act, by stating that it was not their obligation to investigate and gather knowledge regarding the victim's age.

Relying on this, the HC bench, after perusing the consultation and hospital records, noted that the victim's age was mentioned as 18 years. Therefore, the Court stated that the doctor did not deliberately fail to inform the police as she had no occasion to find that the victim was a minor.

"As a natural phenomenon when a patient meets a doctor, the doctor would act upon the age disclosed by her and no rowing enquiry in this regard is mandated by law…. Fastening criminal liability under Section 21 of the POCSO Act r/w Section 19(1) cannot be based on irrelevant materials and subsequent facts brought into, for which the accused has no nexus…There is no need to scrabble about the age rather than believing it for the purpose of proceeding further," noted the Court.

"Regarding the offences under Sections 312 and 313 of IPC, it is discernible from the statement of the victim and the witnesses that the victim reached the hospital with profused bleeding and on the verge of miscarriage. Then the doctor had given treatment to complete the process of miscarriage with a bona fide attempt to save the victim. Thus, prima facie, offences under Sections 312 and 313 of IPC also would not attract, against the petitioner. In such view of the matter, prosecution against the petitioner is liable to be quashed," the Court observed.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/kerala-hc-pocso-270840.pdf

Also Read: HC quashes FIR against Gynaecologist for not reporting POCSO Case: Doctors Not Liable for Verifying Victim's Age