Preface
While ruling on a most significant legal topic directly affecting victims of sexual assault, the Delhi High Court has in a most learned, laudable, landmark and latest judgment titled Nabal Thakur v. The State in Bail Appln. 2128/2023 that was reserved on July 31 and then finally pronounced on August 9, 2023 has clearly directed that the investigating officer concerned should produce the sexual assault 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. The Single Judge Bench comprising of Hon’ble Ms. Justice Swarana Kanta Sharma lamented sharply noting that:
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 has now been lost due to the negligence of the doctor concerned. It was the duty of the doctor to have not discharged the victim till the termination of pregnancy and preservation of the fetus.
The Court issued several commendable directions to address the inadequacies in handling such cases which includes the circulation of existing guidelines, preserving the fetus, recording reasons for the discharge without termination and recording detailed treatment for medical treatment of pregnancy. The Court also very rightly underscored the extreme importance of the legible medical records. The Court asked these directions to be circulated in all Delhi hospitals and compliance reports were asked to be filed within 2 months. Accordingly, the bail application was disposed of.
Introduction
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms. Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
The instant application under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of applicant seeking regular bail in case FIR bearing no. 472/2020, registered at Police Station Kirti Nagar, Delhi for the offence punishable under Section 363 of the Indian Penal Code, 1860 (‘IPC’).
Facts Of The Case
To put things in perspective, the Bench then envisages in para 2 that:
Briefly stated, the facts of the present case are that the father of prosecutrix had lodged a complaint with the police, whereby he had stated that upon returning home on 24.11.2020 at 1:30 PM, he had found that his daughter had gone missing. Thereafter, about two months later, the father of prosecutrix had produced her daughter i.e. prosecutrix before the investigating officer on 30.01.2021, after which, medical examination of prosecutrix was conducted at DDU Hospital, Hari Nagar. During the medical examination, UPT of prosecutrix was found to be positive and in her MLC, the prosecutrix stated that the present applicant/accused, i.e. Nabal Thakur had established physical relations with her without her consent.
The statement of prosecutrix under Section 164 Cr.P.C. was recorded on 03.02.2021 and the present accused/applicant was arrested on 04.02.2021. Thereafter, the counselling of 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, chargesheet was filed by the police and charges were framed by the learned Trial Court under Sections 363/366/376(2)(n) of IPC.
Analysis And Findings
Needless to say, the Bench states in para 5 that:
This Court has heard arguments addressed by both sides and perused the material on record.
As we see, the Bench mentions in para 6 that:
Succinctly, the case of prosecution is that the present accused/applicant, who used to reside near the house of prosecutrix, had called the prosecutrix to his house on some false pretext on 24.11.2020 and had then told her that he would not let her go till she attains the age of majority. It is alleged by the prosecutrix that she had stayed in the house of applicant/accused for about two months and the applicant had established physical relations with her on several occasions. Thereafter, on 22.01.2021, the brother of present applicant, i.e. co-accused Rajiv Thakur had brought the prosecutrix to her parent’s house in Delhi, after which the father of prosecutrix had taken her to the police station.
As it turned out, the Bench enunciates in para 7 that:
In the present case, a perusal of record reveals that the prosecutrix was only 16 years of age at the time of incident. Further, when her medical examination was conducted, the prosecutrix was found to be pregnant. Further, the prosecutrix had informed the concerned doctor during her medical examination, as recorded in the MLC, that the present applicant had forcibly established physical relations with her. This Court also notes that 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. As regards the contention raised on behalf of applicant that co-accused Rajiv Thakur has already been granted bail, it can be noted that the role attributed to co-accused is different than that of the present accused/applicant and thus, bail cannot be granted to the applicant on grounds of parity.
While denying bail, the Bench observes in para 8 that:
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, this Court finds no ground for grant of bail at this stage.
Negligence On Doctor’s Part
Be it noted, the Bench notes in para 12 that:
As regards the medical records of the case, only discharge summaries are available before this Court. It is not mentioned in the discharge summaries as to what treatment was administered to the prosecutrix when she was admitted in the hospital for the purpose of medical termination of pregnancy. The most crucial admission date is of 09.02.2021 to 12.02.2021 as the Child Welfare Committee had directed for termination of pregnancy by way of order dated 04.02.2021.
However, the prosecutrix had not been produced before the concerned doctor till 09.02.2021. 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 has now been lost due to the negligence of the doctor concerned. It was the duty of the doctor to have not discharged the victim till the termination of pregnancy and preservation of the fetus.
Directions
Most notably, the Bench minces just no words to direct clearly in para 17 that, This Court notes with a sense of disappointment that despite repeated directions, standing orders and several judgments, the Courts are still confronted with instances as the present one. In such circumstances, this Court is constrained to pass directions, while exercising judicial restraint from passing any order against the doctors concerned, which read as under:
- 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;
- Regarding additional directions issued vide this judgment:
The abovesaid 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;
- 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;
- 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;
- 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;
- Recording of details of treatment for medical termination of pregnancy:
It shall be the 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;
- Difficulty faced by the Courts in reading MLCs and the 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 for the Court;
- 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.
Do note, the Bench notes in para 18 that:
These guidelines will be read in addition to the guidelines issued by this Court in Minor R Thr Mother H v. State NCT of Delhi, W.P. (CRL.)221/2023 decided on 25.01.2023.
Adding more to it, the Bench directs in para 19 that:
The aforesaid directions of this Court be circulated, within 15 days of issuance of this order and its receipt by the Ministry of Health and Family Welfare, Government of India, and Department of Health and Family Welfare, Government of NCT of Delhi in all the hospitals in Delhi. Compliance report be filed within 2 months before this Court.
As a corollary, the Bench hastens to add in para 20 stating that:
In view of the above, the present application stands disposed of.
For sake of clarity, the Bench clarifies in para 21 that:
It is, however, clarified that nothing expressed herein above shall tantamount to an expression of opinion on merits of the case.
What’s more, the Bench directs in para 22 that:
A copy of this judgment be forwarded by the Registry to (i) Ministry of Health and Family Welfare, Government of India, (ii) Department of Health and Family Welfare, Government of NCT of Delhi, (iii) Commissioner of Police, Delhi, for information and compliance.
Conclusion
Finally, the Bench concludes by holding in para 23 that:
The judgment be uploaded on the website forthwith.
In sum, the Delhi High Court Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma has very rightly flagged the key concerns in sexual assaults cases and issued commendable directions to strictly ensure that victim of sexual assault is taken to hospital within 24 hours of order on pregnancy termination. These commendable directions must be implemented most strictly in totality. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut -250001, Uttar Pradesh
