Delhi High Court
Dr. Poonam Misra vs State And Anr on 5 August, 2026
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CRL.M.C. 2900/2021and CRL.M.A. 18263/2021
Between:
DR. POONAM MISHRA
R/O E-144, GREATER KAILASH-II,
NEW DELHI-110048 .....PETITIONER
(Through: Mr. Faraz Maqbool, Ms. A Sahitya Veena and Ms.
Deepshikha, Advocates.)
Versus
1. STATE OF NCT OF DELHI
(THROUGH ITS STANDING COUNSEL)
NEW DELHI. .....RESPONDENT NO.1
2. MS. Y ...RESPONDENT NO.2
(Through:Ms. Shubhi Gupta, APP for State with SI Rahul Lamba, PS
Saket.)
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% Reserved on: 17.07.2026
Pronounced on: 05.08.2026
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JUDGMENT
The Medical Termination of Pregnancy Act, 1971 (“MTP Act“) was
not enacted to create an unqualified license to terminate pregnancy on
demand. It was enacted to carve out the circumstances in which what would
otherwise be an offence under Sections 312 to 316 of the Indian Penal Code,
1860 (“IPC“) ceases to be punishable, provided the termination is performed
strictly in the manner the Act contemplates. Section 3 of the MTP Act, as it
stood at the relevant time in July 2019, before the 2021 amendment,
permitted termination up to twelve weeks on the opinion of a single
registered medical practitioner formed in good faith, and between twelve
and twenty weeks on the concurring opinion of two such practitioners, in
either case only where the specified grounds under Section 3(2) were
satisfied.
2. Section 3(4)(a) of the MTP Act provides that no pregnancy of a
woman who has not attained the age of eighteen years shall be terminated
except with the consent in writing of her guardian. Section 3(4)(b)
separately requires that, save in the case of a lunatic, no pregnancy shall be
terminated without the consent of the pregnant woman herself. The two
requirements are cumulative, where the pregnant person is a minor; her own
assent is necessary but is not sufficient. The guardian’s written consent is an
independent precondition without which the “consent” spoken of by the
MTP Act simply does not exist in the eye of law, regardless of how many
signatures may appear on a hospital’s own consent form.
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3. The reason this distinction matters is that a minor’s purported consent
to invasive medical treatment is, throughout the general law, treated as no
consent at all. Section 90 of the IPC itself excludes, from the definition of
valid consent, consent given by a person under twelve years of age, and the
jurisprudence surrounding consent of minors more generally treats a minor
as incapable of appreciating the nature and consequences of the act to which
she is asked to agree.
4. The MTP Act‘s insistence on guardian consent for a minor is a
legislative recognition of this incapacity. It follows that where a registered
medical practitioner terminates the pregnancy of a person who is, in fact, a
minor, without obtaining the guardian’s written consent because the
practitioner has not ascertained, or has been misled about, the true age of the
patient, the termination is not saved by Section 3 of the MTP Act merely
because a document styled as”consent form” bears a signature.
5. The MTP Act and Regulations therein did not leave the mechanics of
ascertaining age, consent, and the practitioner’s opinion to informal practice.
Section 6 of the MTP Act empowers the Central Government to make rules
to carry out the purposes of the Act, and Section 7 of the MTP Act
empowers the State Government to make regulations, not directory
guidelines, but regulations having the force of subordinate legislation,
prescribing, among other things, the manner in which the opinion under
Section 3 is to be certified and the records that a registered medical
practitioner and the place at which the termination is performed are obliged
to maintain.
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6. Pursuant to this rulemaking power, the Medical Termination of
Pregnancy Regulations, 2003 (“the MTP Rules 2003”) prescribe Form-I as
the form in which the opinion of the registered medical practitioner(s) under
Section 3 of the MTP Act must be certified before a termination is
undertaken.The registered medical practitioner is not permitted to certify an
opinion under Section 3 in the abstract; the form requires that the opinion be
anchored to one of five specified grounds set out on its face, to be selected
as applicable, including, at item (iv), that “the pregnancy is alleged by
pregnant women to have been caused by rape.” The form thus obliges the
practitioner to identify and commit to writing the specific ground on which
the termination is being carried out. Where that origin is stated to be an
assault, the practitioner is not left free to record the opinion under a more
general head.The structure of the form directs the practitioner’s attention
specifically to that circumstance and requires it to be noted down as the
basis of the certified opinion. Form I, in other words, is not merely a record
of the practitioner’s conclusion that a termination may lawfully proceed. It is
a record of the reason offered for that conclusion, and where rape is that
reason, the form is drafted to require it to appear in writing rather than
remain unstated.
Rule 9 and Form I of the MTP Rules is reproduced as under:
“9. Form of consent.
The consent referred to in sub-section (4) Of section 3 shall be given in
Form C.”
RMP OPINION FORM
FORM I
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I___________________________________________________________
(Name and qualifications of the Registered Medical practitioner in block
letters)
(Full address of the Registered Medical practitioner)
I___________________________________________________________
(Name and qualifications of the Registered Medical practitioner in block
letters)
(Full address of the Registered Medical practitioner) hereby certify that
*I/We am/are of opinion, formed in good faith, that it is necessary to
terminate the pregnancy of
(Full name of pregnant women in block letters) resident of
(Full address of pregnant women in block letters)
for the reasons given below**.
*I/We hereby give intimation that *I/We terminated the pregnancy of the
woman referred to above who bears the serial no. ________________ in
the Admission Register of the hospital/approved place.
*Strike out whichever is not applicable,
** of the reasons specified items (i) to (v) write the one which is
appropriate.
(i) in order to save the life of the pregnant women,
(v) in order to prevent grave injury to the physical and mental health of
the pregnant women,
(v) in view of the substantial risk that if the child was born it would
suffer from such physical or mental abnormalities as to be
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(iv) as the pregnancy is alleged by pregnant women to have been
caused by rape,
(v) as the pregnancy has occurred as result of failure of any
contraceptive device or methods used by married woman or her husband
for the purpose of limiting the number of childrenNote :Account may be taken of the pregnant women’s actual or reasonably
foreseeable environment in determining whether the continuance of her
pregnancy would involve a grave injury to her physical or mental health.
Signature of the registered Medical Practitioner
Signature of the registered Medical Practitioners
Place :
Date :
[Emphasis Supplied]
7. Separately, Form C, read with Rule 9 of the MTP Rules, is the form
of consent prescribed where the pregnant person is a minor or a person of
unsound mind.It is the document through which the guardian’s consent
under Section 3(4)(a) of the MTP Act is to be recorded, distinct from and in
addition to the pregnant person’s own consent. Where the treating
practitioner has not established that the patient is an adult capable of giving
her own valid and complete consent, Form C is not an optional formality; it
is the sole statutory mechanism by which the termination of a minor’s
pregnancy can lawfully proceed at all. Form C of MTP Rules 2003 is
reproduced as under:-
FORM C
(Consent Form)I …………………………………………… daughter/wife of…………………………aged
about ……………………………………….Years of …………………………………………
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(here state the permanent address)
at present residing at …………………………………………………….. do herebygive
my consent to be termination of my pregnancy at…………………………..
(State the name of place where the pregnancy is to be terminated).
Place :
Date :
Signature
(To be filled in by guardian where the woman is a lunatic or minor).
I …………………………………………… son/daughter/wife of ……………………..
aged about …………………………………… Years of ……………………………….. at
present residing
at…………………………………………………………………………..(permanent
address)………… do hereby give my consent to the termination of my
pregnancyof my ward ………………………….. who is a minor/lunatic at
…………………………
(Place of termination of pregnancy).
Place :
Date :
Signature
8. The unavoidable inference from this scheme is that verification of age
is 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.
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9. This scheme also intersects with the Protection of Children from
Sexual Offences Act, 2012 (“POCSO Act“). Every pregnancy in a girl
below eighteen years is, as a matter of law, traceable to a penetrative sexual
act that the POCSO Act treats as an offence irrespective of any question of
consent on the part of the minor. Section 3 read with Section 5 of the
POCSO Act does not recognise the concept of a minor’s consent to sexual
activity as a defence. It follows, ineluctably, that any registered medical
practitioner attending upon a pregnant minor is, by that very fact, in the
position of a person who has or ought reasonably to have “knowledge”,
within the meaning of Section 19(1) of the POCSO Act, that an offence
under that Act is likely to have been committed.
10. Section 19(1) of the POCSO Act operates as a mandatory reporting
obligation imposed on the ordinary practice of obstetric medicine wherever
a minor’s pregnancy is involved, and Section 21 of the POCSO Act visits
penal consequence,i.e., imprisonment extending to six months, or fine, or
both, on a failure to discharge that obligation.Sections 19 and 21 of the
POCSO Act are reproduced as under:-
“Section 19: Reporting of offences
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) any person (including the child), who has
apprehension that an offence under this Act is likely to be committed or
has knowledge that such an offence has been committed, he shall provide
such information to,–
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be–
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(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child, the same
shall be recorded under subsection (2) in a simple language so that the
child understands contents being recorded.
(4) In case contents are being recorded in the language not understood by
the child or wherever it is deemed necessary, a translator or an
interpreter, having such qualifications, experience and on payment of such
fees as may be prescribed, shall be provided to the child if he fails to
understand the same.
(5) Where the Special Juvenile Police Unit or local police is satisfied that
the child against whom an offence has been committed is in need of care
and protection, then, it shall, after recording the reasons in writing, make
immediate arrangement to give him such care and protection including
admitting the child into shelter home or to the nearest hospital within
twenty-four hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall, without
unnecessary delay but within a period of twenty-four hours, report the
matter to the Child Welfare Committee and the Special Court or where no
Special Court has been designated, to the Court of Session, including need
of the child for care and protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or criminal, for giving
the information in good faith for the purpose of sub-section (1).”
“Section 21: Punishment for failure to report or record a case:
(1) Any person, who fails to report the commission of an offence under
sub-section (1) of section 19 or section 20 or who fails to record such
offence under sub-section (2) of section 19 shall be punished with
imprisonment of either description which may extend to six months or
with fine or with both.
(2) Any person, being in-charge of any company or an institution (by
whatever name called) who fails to report the commission of an offence
under sub-section (1) of section 19 in respect of a subordinate under his
control, shall be punished with imprisonment for a term which may extend
to one year and with fine.
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(3) The provisions of sub-section (1) shall not apply to a child under this
Act.
[Emphasis Supplied]
FACTUAL MATRIX
11. FIR No. 400/2019 was registered on 04.10.2019 at PS: Saket, Delhi
under Sections 376/313/506/34 IPC and Section 6 POCSO Act, on the
complaint of the prosecutrix, who alleged that she was administered an
intoxicant and sexually assaulted by the main accused, Rishipal Chaudhary,
and thereby conceived.
12. On 26.07.2019, the prosecutrix, accompanied by co-accused Anita
(who presented herself as the prosecutrix’s aunt), presented at Bhatia
Medical Centre, Ambedkar Nagar (“BMC”), where the petitioner examined
her and, finding her six weeks pregnant, referred her to Talwar Medical
Centre, Greater Kailash-II (“TMC”), where the petitioner held a rented
consulting chamber and performed termination there itself.
13. In her medico-legal examination at AIIMS on 04.10.2019, and in her
statement under Section 164 CrPC on 10.10.2019, the prosecutrix made no
allegation against the petitioner. She stated instead that co-accused Anita
had told the hospital staff that the child belonged to the prosecutrix’s
boyfriend, and had caused her age to be recorded as twenty though it was, in
reality, sixteen. Statements recorded under Section 161 CrPC on 16.10.2019
and 18.10.2019 are, likewise, silent qua the involvement of the petitioner.
14. The main chargesheet, filed on 13.12.2019, arrayed Rishipal
Chaudhary, Anita, and Nitin Aggarwal as accused under Sections
376AB/312/201/506/34 IPC and Sections 6/21 POCSO Act. The petitioner
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featured only as a prosecution witness and cognisance post that was taken
vide order dated 17.12.2019.
15. On 22.02.2020, the prosecutrix filed a protest petition alleging, for the
first time, that the doctors at TMC had performed the termination in
conspiracy with the main accused, by forging her signatures on the TMC
papers, and misplacing the form recording her true date of birth from the
documents relied upon in the chargesheet. When the protest petition was
argued, the Investigating Officer informed the Trial Court that no
incriminating evidence had been found against the doctors, and that the
prosecutrix had not, until then, questioned any TMC document.
16. By the impugned order dated 29.09.2020, the Trial Court allowed the
protest petition and directed further investigation into “whether the doctors
at Talwar Medical Center had carried out the abortion of the victim against
the law/rules while knowing the fact that the victim was a minor girl and in
collusion with the main accused persons and they consciously did not report
the matter to the police in terms of Section 19 of the POCSO Act,
2012.Paragraph 9 of the order dated 29.09.2020 is reproduced as under:-
“9. Accordingly, the IO of the case is directed to further investigate the
matter with respect to the fact that whether the doctors at Talwar Medical
Centre had carried out the abortion of the victim against the law/rules
while having knowledge of the fact that the victim was a minor girl and in
collusion with the main accused persons, namely, Rishipal and Anita and
they consciously did not report the matter to the police in terms of Section
19 of the POCSO Act, 2012″.
17. Pursuant to this direction, the Investigating Officer recalled the
petitioner on 03.10.2020 and seized the admission register of BMC. The
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investigation stood transferred, at the instance of the prosecutrix, from PS
Saket to PS Malviya Nagar. On 19.11.2020, a further Section 161 statement
of the prosecutrix was recorded, in which she stated, for the first time, that
she had herself filled an admission slip at TMC, recording her date of birth
as 03.09.2003. Prosecutrix in her 161 CrPC statement also affirmed the
incident of hospital staff recording her age, to which the petitioner
responded “marvaogekyaise 20 years karo”.
18. On interrogation, the petitioner stated that no identity, residence, or
age proof of the prosecutrix had been obtained, and that Form I, the form of
certified opinion contemplated for a termination of pregnancy, had not been
completed. The supplementary chargesheet treats this as attracting “Section
7 of the Medical Termination of Pregnancy Act, 1971 read with Rule 3 of
MTP Regulation, 2003,” and records that, the prosecutrix being a minor, she
was incapable in law of consenting to the procedure, rendering the question
of her signature immaterial and attracting Sections 313 and 201 IPC.
19. The supplementary chargesheet dated 19.02.2021 was filed on this
basis, arraigning the petitioner as sole accused under Sections 313 and 201
IPC and Section 7 MTP Act. Vide order dated 31.07.2021, the Trial Court
took cognizance, additionally invoked Section 21 POCSO Act, and
summoned the petitioner. The petitioner joined proceedings on 11.10.2021,
applied for bail the same day, and was enlarged on regular bail on
30.10.2021.
II. SUBMISSIONS ON BEHALF OF THE PARTIES:
(i) On behalf of the Petitioner:
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20. Learned counsel for the petitioner submits that the petitioner stood
exonerated across the prosecutrix’s MLC, Section 164 CrPC statement, and
two Section 161 CrPC statements, and that the allegation against the
petitioner surfaces for the first time only in a solitary statement recorded
over a year later.
21. It is submitted that the petitioner had no knowledge of the
prosecutrix’s minority and was expressly told, at both BMC and TMC, that
she was twenty years old. Reliance is placed on Dr. Sr. Tessy Jose v. State
of Kerala1, where the Supreme Court held that the “knowledge” required to
trigger the reporting obligation under Section 19 POCSO Act “cannot be
that they ought to have deduced from circumstances that an offence has
been committed”and that there is “no obligation on this person to investigate
and gather knowledge” by placing reliance on Dr. Jenbagalakshmi v. State
of Tamil Nadu2.
22. On Section 313 IPC, the petitioner submits that she had no occasion
to seek a guardian’s consent when the prosecutrix was represented and
recorded as an adult, and that the prosecutrix herself was present, ambulant,
and cooperative throughout. It is submitted that the provisions of the IPC
relating to miscarriage stand subservient to the MTP Act by virtue of the
non-obstante clause in Section 3, and that the petitioner, having acted in
good faith throughout, is entitled to the protection available under Section 8
of the MTP Act to a practitioner so acting.
1
(2018) 8 SCC 292.
2
2024 SCC OnLine Mad 8254.
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23. It is further submitted that Section 7 MTP Act creates no offence at
all, being confined to the delegation of regulation-making power, and that
the invocation of Rule 3 of the MTP Regulation, 2003 discloses further
confusion, since no such age-verification requirement is to be found in that
provision. It is urged that the petitioner’s meticulous contemporaneous
documentation is inconsistent with any consciousness of guilt and that she
alone among the three doctors involved has been sent up for trial despite an
identical finding of “no collusion” against all three, and that continuation of
proceedings against her is accordingly an abuse of the process of the Court.
(ii) On behalf of Respondent
24. Learned Counsel for the respondent submits that the consent
contemplated by the MTP Act, for a minor, is that of the guardian alone, and
that the prosecutrix’s physical presence and cooperation cannot substitute
for that statutory consent. A minor’s apparent willingness is precisely the
vulnerability the guardian-consent requirement is designed to guard against,
and cannot be treated as curing its absence. It is further submitted that Form
I was admittedly never completed, that this omission is not a mere labelling
error but the absence of a document the law requires the treating practitioner
personally to prepare, and that its absence, taken with the untraced
admission slip and the misrecorded age, discloses a pattern that can be
evaluated during the trial.
25. It is submitted, further, that Section 482 CrPC does not permit this
Court to conduct a preliminary trial on competing versions and documents,
and that the material gathered pursuant to an order grounded in the power
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upheld in VinubhaiHaribhai Malaviya& Ors. v. The State of Gujarat &
Anr.3 discloses, prima facie, triable allegations that ought not to be short-
circuited at the threshold.
(III) ANALYSIS
26. The question that comes up for consideration is whether a direction
for further investigation can be extended by a Magistrate or a Special Judge
after taking cognizance of the offences at the stage of the framing of charge.
This issue has been dealt with by the Supreme Court in Ram Lal Narang v.
State (Delhi Administration)4 while referring to the ratio laid down by the
Supreme Court in its previous judgment H.N. Rishbud v. State of Delhi5, it
was held as under:-
17. In H. N. Rishbud v. The State of Delhi, this Court contemplated the
possibility of further investigation even after a Court had taken cognizance
of the case. While noticing that a police report resulting from an
investigation was provided in Section 190 Criminal Procedure Code as the
material on which cognizance was taken, it was pointed out that it could
not be maintained that a valid and legal police report was the foundation
of the jurisdiction of the Court to take cognizance. It was held that where
cognizance of the case had, in fact, been taken and the case had proceeded
to termination, the invalidity of the precedent investigation did not vitiate
the result unless miscarriage of justice had been caused thereby. It was
said that a defect or illegality in investigation, however serious, had no
direct bearing on the competence of the procedure relating to cognizance
or trial. However, it was observed:
“It does not follow that the invalidity of the investigation is to be
completely ignored by a Court during trial. When the breach of
such a mandatory provision is brought to the knowledge of the
Court at a sufficiently early stage, the Court, while not declining
cognizance, will have to take the necessary steps to get the
illegality cured and the defect rectified, by ordering such re-
investigation as the circumstances of an individual case may call3
2019 SCC OnLine SC 1346.
4
(1979) 2 SCC 322.
5
AIR 1955 (SC) 196.
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for”. This decision is a clear authority for the view that further
investigation is not altogether ruled out merely because cognizance
of the case has been taken by the Court; defective investigation
coming to light during the course of a trial may be cured by a
further investigation, if circumstances permit it.”
27. The power of a Magistrate to direct further investigation under
Section 156(3), read with Section 173(8), of the CrPC does not extinguish
itself the moment cognizance is taken, or process is issued. The Supreme
Court, in paragraph no. 38 ofVinubhaiHaribhai Malaviya(supra) held that:-
“38.There is no good reason given by the Court in these decisions as to
why a Magistrate’s powers to order further investigation would suddenly
cease upon process being issued, and an accused appearing before the
Magistrate, while concomitantly, the power of the police to further
investigate the offence continues right till the stage the trial commences…
What is not given any importance at all in the recent judgments of this
Court is Article 21 of the Constitution and the fact that the Article
demands no less than a fair and just investigation. To say that a fair and
just investigation would lead to the conclusion that the police retain the
power… to further investigate an offence till charges are framed, but that
the supervisory jurisdiction of the Magistrate suddenly ceases midway
through the pre-trial proceedings, would amount to a travesty of justice,
as certain cases may cry out for further investigation so that an innocent
person is not wrongly arraigned as an accused or that a prima facie
guilty person is not so left out… Whether further investigation should or
should not be ordered is within the discretion of the learned Magistrate
who will exercise such discretion on the facts of each case and in
accordance with law. If, for example, fresh facts come to light which
would lead to inculpating or exculpating certain persons, arriving at the
truth and doing substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding the criminal
proceeding…”
[Emphasis Supplied]
28. The Supreme Court in Vinubhai Haribhai Malaviya (supra) held that,
even textually, the term “investigation” referred to in Section 156(1) of
CrPC would, as per the definition of “investigation” under Section 2(h),
include all proceedings for collection of evidence conducted by police.
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Accordingly, this would undoubtedly include proceedings by way of further
investigation under Section 173(8) of the CrPC. Therefore, the Magistrate
empowered under Section 156 of CrPC to order investigation, shall also be
empowered to order further investigation under Section 173(8) of CrPC.
29. It is, therefore, well settled that the power to direct further
investigation is not a licence for a Court to dictate the outcome or
micromanage the manner of that investigation. The police retains the
freedom, expressly protected in law, to reach whatever conclusion the
material supports, including a conclusion adverse to the very hypothesis that
prompted the direction.
30. The petitioner’s grievance is that the order dated 29.09.2020 crossed
this line by framing the further investigation in terms that presupposed the
doctor’s guilt. This submission does not survive scrutiny of the order as a
whole. Immediately after framing the scope of further investigation, the
Additional Sessions Judge, ASJ recorded, in terms that directly answer the
petitioner’s grievance:-
“…the IO shall not be influenced by any observations made in this order
and shall conduct independent investigation in this regard, although the
points raised by the victim (by way of her protest petition and otherwise)
shall be taken into account by the IO and all those issues shall be
investigated independently.”
31. The Supreme Court in Nirmal Singh Kahlon v. State of Punjab &
Ors.6held as under:-
6
2009 (1) SCC 441.
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“An order of further investigation in terms of Section 173(8) of the Code
by the State in exercise of its jurisdiction Under Section 36 thereof stands
on a different footing. The power of the investigating officer to make
further investigation in exercise of its statutory jurisdiction Under Section
173(8) of the Code and at the instance of the State having regard to
Section 36 thereof read with Section 3 of the Police Act, 1861 should be
considered in different contexts. Section 173(8) of the Code is an enabling
provision. Only when cognizance of an offence is taken, the learned
Magistrate may have some say. But, the restriction imposed by judicial
legislation is merely for the purpose of upholding the independence and
impartiality of the judiciary. It is one thing to say that the court will have
supervisory jurisdiction to ensure a fair investigation, as has been
observed by a Bench of this Court in Sakiri Vasu v. State of U.P. [
MANU/SC/8179/2007 : (2008) 2 SCC 409: (2008) 1 SCC (Cri) 440],
correctness whereof is open to question, but it is another thing to say that
the investigating officer will have no jurisdiction whatsoever to make any
further investigation without the express permission of the Magistrate.”
[Emphasis Supplied]
32. It is imperative to mention that an order that identifies a line of
inquiry which the prior investigation had not pursued, while expressly
disclaiming any binding effect on the investigating officer’s ultimate
findings, is not a direction usurping the investigative function. It is the
ordinary and correct exercise of the supervisory jurisdiction.
33. Caution presented vide impugned order dated 29.09.2020 was not
merely formal as demonstrated by the outcome of the further investigation
itself. Had the 29.09.2020 order truly operated as a predetermined verdict
awaiting only its formal recording, the further investigation would have
returned precisely the collusion finding the order appeared to anticipate.
34. The status report expressly records that no material was found
connecting the petitioner, Dr. Talwar, or Dr. Chhabra to the main accused,
and that “no collusion” was found. This outcome, is itselfan evidence that
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the investigation proceeded independently and was not merely dictated to a
foregone conclusion. What the further investigation did establish, on
independent examination of documents and witnesses, was a separate and
distinct set of facts such as:the absence of age verification, the statutorily
mandated Form-I, and the specific allegation of contemporaneous
knowledge reflected in the victim’s supplementary statement.
35. It is also necessary to record that the further investigation was not
sought by the State suo motu to reopen a settled matter, but was directed on
a protest petition moved by the prosecutrix herself, drawing attention to
specific documentary anomalies, the mismatched relationship entries, the
absence of any age document, the missing date-of-birth slip, that were
plainly discoverable only once she was in possession of the chargesheet and
its annexures, a possession she did not have during the four statements
recorded in 2019. The delay in raising these specific documentary objections
is thus explained by the sequence of disclosure of documents to her, and
does not taint the further investigation with the vice of afterthought that the
petitioner attributes to it.
36. For these reasons, this Court finds no illegality in the order dated
29.09.2020. It was passed within jurisdiction, on a correct application of the
principle in VinubhaiHaribhai Malaviya (supra), expressly safeguarded the
independence of the ensuing investigation, and has, on the material this
Court has examined, produced results that confirm rather than undermine
that independence.
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37. The issue here is not whether doctors, as a class, must be treated with
suspicion whenever a patient’s age later turns out to have been misstated. It
is a narrower and more exacting question, i.e., at what point does a doctor’s
silence about a patient’s age stop being an innocent consequence of having
been misled, and become a punishable failure to report an offence she knew,
or had been told, had occurred.
38. Section 19(1) of the POCSO Act supplies the statutory language, it
obliges “any person who has apprehension that an offence under this Act is
likely to be committed or has knowledge that such an offence has been
committed” to report it to the police, and Section 21penalises the failure to
do so with imprisonment extending to six months, or a fine, or both. But the
statutory language alone does not tell a Court where, on the facts of a given
case, apprehension ends and knowledge begins, or where a doctor’s
professional role ends, and a citizen’s civic duty begins.
39. The statutory text of Section 19(1) of the POCSO Act requires close
attention, because both the petitioner’s defence and the prosecution’s case
turn on its precise formulation. It provides that “notwithstanding anything
contained in the CrPC, 1973… any person who has apprehension that an
offence under this Act is likely to be committed or has knowledge that such
an offence has been committed, he shall provide such information to the
Special Juvenile Police Unit or the local police”. Failure to comply attracts
prosecution under Section 21, which prescribes imprisonment extending to
six months, or fine, or both.
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40. The Supreme Court in State of Maharashtra v. Dr. Maroti,7a case in
which, as in the present matter, a doctor to whom minor victims of sexual
assault had disclosed the assault directly, failed to report the matter either to
the Special Juvenile Police Unit or the local police. The Supreme Court,
restoring the prosecution the High Court had quashed, held that:-
“15. Prompt and proper reporting of the commission of offence under the
POCSO Act is of utmost importance and we have no hesitation to state
that its failure on coming to know about the commission of any offence
thereunder would defeat the very purpose and object of the Act. We say so
taking into account the various provisions thereunder. Medical
examination of the victim as also the accused would give many important
clues in a case that falls under the POCSO Act. Section 27(1) of the
POCSO Act provides that medical examination of a child in respect of
whom any offence has been committed under the said Act, shall,
notwithstanding that a First Information Report or complaint has not been
registered for the offence under the Act, be conducted in accordance with
Section 164A of the Cr.P.C, which provides the procedures for medical
examination of the victim of rape. In this contextual situation, it is also
relevant to refer to Section 53A of Cr.P.C that mandates for examination
of a person accused of rape by a medical practitioner. It is also a fact that
clothes of the parties would also offer very reliable evidence in cases of
rape. We refer to the aforesaid provisions only to stress upon the fact that
a prompt reporting of the commission of an offence under POCSO Act
would enable immediate examination of the victim concerned and at the
same time, if it was committed by an unknown person, it would also enable
the investigating agency to commence investigation without wasting time
and ultimately to secure the arrest and medical examination of the culprit.
There can be no two views that in relation to sexual offences medical
evidence has much corroborative value.”
41. In Dr. Ditto TomP. v. State of Kerala8 the accused doctor had on the
prosecution’s version, been informed by the victim’s mother, that the minor
had become pregnant through sexual assault and had already undergone an
attempted termination through unqualified means. The doctor, despite this
7
2022 INSC 1152.
8
2025:KER:15952.
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disclosure, did not report the matter to the police, and the registration of the
FIR was consequently delayed. Rejecting the plea for discharge, the Court
held that:-
“Even though the facts were suppressed initially before the revision
petitioner, the mother informed the Doctor that there was pregnancy to the
victim and the victim had been taking medicine from a Homoeo doctor.
Thus as on 25.11.2020, the revision petitioner got knowledge regarding
the offence under the POCSO Act. Be it so, he is duty bound to report the
same to the police in view of mandate under Section 19(1) of the POCSO
Act. Otherwise, the same is an offence punishable under Section 21 of the
POCSO Act. Even though it is argued by the learned counsel for the
revision petitioner that no deliberate omission could be noticed in this
matter and the doctor was not inclined to report the same acceding to the
humble request of the victim and her mother, the same is not sufficient to
avoid prosecution of the revision petitioner. It is discernible that, in this
matter crime was registered only on 12.12.2020 because of the failure of
the revision petitioner in informing the matter to the police on 25.11.2020.
As held by the Apex Court in State of Maharashtra v. Dr. Maroti‘s case
(supra), prompt and proper reporting of commission of the offence under
the POCSO Act is of utmost importance and the same would enable
immediate registration of case and examination of the victim concerned so
as to trace even an unknown accused when on bail. Therefore, even
though in cases where deliberate omission is not noticeable, quashment
is liable to be allowed as held in Radhakrishna S. Naik (Dr.) v. State of
Kerala‘s case (supra), when deliberate omission was perceivable, the
prayer for quashment or discharge must fail. In the instant case, the
revision petitioner, who got knowledge regarding the crime on
25.11.2020, failed to inform the same and accordingly registration of
crime was delayed for a period of three weeks. That must have
attenuated timely investigation of the case without elements of lacuna. In
the instant case, the prosecution materials would show that the offence
alleged against the revision petitioner is made out, prima facie, from
prosecution records, warranting trial.”
42. In Dr. Ditto Tom (supra), the interval of non-reporting attributable to
the doctor was some three weeks, and the Court held this sufficient to
warrant trial rather than discharge. Here, on the prosecution’s specific case,
the interval during which the petitioner is alleged to have possessed
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knowledge without reporting runs from the date of the termination itself, i.e.,
26.07.2019, to the date the FIR eventually came to be registered on
04.10.2019, a period more than four times as long.
43. The Kerala High Court made this explicit in George P.O. v. State of
Kerala9, holding that “the mandate to report does not relate to his official
character… it is to be performed in his private capacity”, a mandate, that
attaches the moment knowledge is acquired, by whatever means, and does
not wait upon the doctor’s professional role or her diligence in seeking that
knowledge out. The scheme that emerges thus is that Section 21 liability
does not attach to a doctor who was deceived and had no occasion to know
better. It does attach to a doctor who was told, and did not act on what she
was told. The dividing line is not diligence, but disclosure, i.e., whether the
truth was placed before her and she turned away from it. Paragraph no. 18 of
George P.O. (supra) envisaged the intention behind Section 19 POCSO and
held that:-
(a) The mandate to report the apprehension that an offence is likely to be
committed is a preventive measure intended to stall the possibility of
commission of the offence.
(b) The mandate to report is a legislative tool to overcome the tendency of
witnesses of child abuse to be silent, giving undue weightage to factors like
social stigma, community pressure, difficulties of navigating the criminal
justice system, dependency on the perpetrator emotionally and
economically and so on.
(c) The legislative mandate is intended to overcome the tendency of even
the parents and other members of the family not to report such crimes
believing that non reporting of the same would protect the child from
social stigma which they believe would do more harm to the victim.
(d) The legislative mandate subserves the purpose of curbing the growing
tendency not to report the offences, which in turn encourages the
perpetrator to remain silent and prowl for the next victim.
9
2025 (1) KHC 32.
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(e) The mandate to report the offence is intended to obviate such tendency
and to weed away any such loophole that would facilitate the perpetrator
committing/repeating an offence, encouraged by the remote possibility of
reporting the commission of offence.
(f) Being a child-centric legislation, prompt reporting facilitates both
prevention or commission of the offence and ensuring that in such cases
the tormentor, shall not go scot- free.
(g) To make the reporting effective and not dependent on the nature of the
office on whom the statutory mandate to report is cast.
(h) Section 19 casts such mandate on any person, including a child, who
has knowledge about the commission of an offence/apprehension that an
offence is likely to be committed, irrespective of the nature of the office
held by such person. Hence the Act casts a mandate on every person who
has knowledge of the commission of offence/apprehension that the
offence is likely to be committed to report such offence, unlike Section
21(2) of the POCSO Act, which casts a mandate on any person being in
charge of a company or institution to report the commission of an
offence, under Section 19 (1) of the POCSO Act by his/her subordinates.
44. This Court is conscious that the material grounding the “Marwaoge
kya ise 20 saal karo” allegation is a solitary statement, recorded during
further investigation, and that its evidentiary strength is a matter that goes to
the ultimate finding of guilt or innocence at trial. This Court expresses no
opinion on whether the allegation will be proved. What this Court is required
to determine, at the Section 482 CrPC stage, is narrower: whether the
material, taken at face value, discloses a prima facie case.
45. The supplementary chargesheet does not allege that the petitioner
failed to ask; it alleges that she was shown the answer, in the victim’s own
handwriting on the admission slip, and is recorded as having responded,
“Marwaoge kya ise 20 saal karo.” If that allegation is accepted, it is not a
case of inferred or constructive knowledge eat all rather it is a case of
disclosure, of exactly the kind that placed the doctor in Dr. Maroti (supra)
and the doctor in Dr. Ditto Tom P. (supra) outside the protection the law
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extends to the deceived and within the liability the law imposes on the
informed. Additionally, specific, first-hand attribution of a verbal instruction
to falsify prosecutrix’s recorded age is qualitatively different from the
generalised suspicion, retrospective inference, or bare failure-to-investigate.
Relevant part of the supplementary chargesheet dated 19.02.2021 is
reproduced as under:-
I also did not say anything to Doctor Poonam because I was very scared.
After normal check up she referred me to Talwar Medical Center GK-II.
Rishipal left me and Anita at Pushp Bhawan using his own vehicle, from
where Anita took me in Auto to Talwar Medical Centre GK-II. Thereafter
at reception I was made to fill a small form where I myself filled the form
and wrote my DOB as 3-9-2003& returned the form to Receptionist.
Thereafter Nurse given me injection and medicine. At that time I called my
elder brother Nitin there and he remained present during the operation.
After some time Dr. Poonam Mishra came there and a hospital staff also
came there who told Dr. Poonam that DOB is written 3-9-2003 in the
Form. On this, Dr. Poonam said “Marwaogekyaise 20 yrs karo”. And
thereafter I was taken to OT. My ultrasound was done and some medicine
was given because of which I became unconscious.
[Emphasis Supplied]
46. The object of Section 19 of the POCSO Act, read alongside the MTP
framework, is not merely punitive. It exists because prompt reporting is the
trigger for an entire protective apparatus around a child victim: medical
examination, forensic evidence collection, referral to the Child Welfare
Committee, and the commencement of an investigation that can identify and
apprehend a perpetrator before evidence degrades or the perpetrator
absconds. Non-reporting by one professional in a position to have set this
apparatus in motion does not merely constitute a technical default; it
withholds from a child victim of rape the protection, the law specifically
intended for her.
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47. The termination was performed on 26.07.2019 and the FIR was
registered on 04.10.2019. Seventy days lie between these two dates. On the
case set up by the prosecution, this was not merely the ordinary time a
criminal justice system takes to set itself in motion; it was an interval during
which the one person outside the circle of the offence who is alleged to have
known the prosecutrix’s true age said nothing, while the machinery that a
timely report would have triggered remained unset in motion. This Court
notes that, if the prosecution’s version is accepted, the seventy day interval
is not a peripheral detail, but the very consequence Section 19 of the POCSO
Act exists to prevent.
48. The petitioner’s answer to this seventy day interval is that she came to
know of the prosecutrix’s minority status only in October2019, through
concerned officials of the Investigating Agency, i.e., after the FIR already
existed, advancing the submission that no opportunity to report ever arose
before the police had already taken the matter in hand. The supplementary
chargsheet discloses that the specific case is not qua the petitioner getting
aware of the minority status in October, from the police. Conversely, that the
petitioner learned of it on 26.07.2019, from the victim’s own admission slip,
at the very moment of initiating termination procedure.
49. The prosecution’s version places knowledge in the petitioner’s hands
more than nine weeks before the FIR came to exist at all, which means the
premise of her defence, that no opportunity to report ever arose, is not
merely disputed but is chronologically impossible.
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50. It follows from this that the consequence of the petitioner’s alleged
silence was not a mere technical lapse in paperwork. It was, in its operative
effect, a period during which the ordinary consequences of committing an
offence against a child were held in abeyance. Whether that effect was the
product of a deliberate choice to protect herself, or of something more
innocent that a trial may yet reveal, is not for this Court to decide today.
What this Court can and does decide is that the seventy day gap between the
procedure and the FIR is not a coincidence to be waved off. It is the very
harm Section 19 of the POCSO Act was written to prevent, and the material
on record is sufficient to put the petitioner on trial.
51. Section 3(4)(a) of the MTP Act provides that no pregnancy of a minor
shall be terminated except with the guardian’s consent in writing. Section 7
of the Act, and the Regulations framed under it, prescribe Form-I under Rule
3 as the document through which the practitioner’s statutory opinion, is to be
certified, and Form C as the document through which a guardian’s consent is
to be recorded.
52. It bears emphasis that the default here is not confined to the omission
of Form-I and Form C of the MTP Rules, 2003. The status report
additionally records that no identity proof and no residential proof of any
kind were obtained. 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
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adult accompanying the patient, particularly where that adult, as later
investigation revealed, was not in fact in any relation with the prosecutrix at
all.
53. This Court is not, at this stage, called upon to determine finally
whether the petitioner’s failure to obtain Form-I, Form C, or any identity
document was the product of an honest and reasonable belief in the victim’s
adulthood, or the product of the deliberate concealment, the prosecution
alleges.
54. It is also necessary to record that this default cannot be excused
merely on the ground that TMC’s general clinic practices were informal
across the board. The informality of a clinic’s record-keeping culture may
explain why a particular slip could not later be traced. It does not excuse the
practitioner’s personal, statutorily mandated obligation to complete Form-I
and Form C. Obligations that rest on the registered medical practitioner
individually cannot be discharged by, or excused by reference to, the
surrounding administrative laxity of the institution in which she practices.
56. Section 313 IPC punishes the causing of a miscarriage without the
woman’s consent. The petitioner’s defence is that a consent form bearing the
victim’s signature exists on the TMC record, and that whatever else may be
said of her conduct, an offence defined by the absence of consent cannot be
sustained where a signed consent form is produced. The question this Court
must answer is whether that signature, even assumed genuine, is capable in
law of constituting the consent Section 313 of IPC speaks of, where the
signatory was, in fact, a minor.
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57. Section 3(4) of the MTP Act does not treat a pregnant woman’s own
signature as sufficient consent in every case. It draws a specific distinction,
requiring the woman’s own consent under Section 3(4)(b) in all cases, and
requiring, additionally and separately, the guardian’s written consent under
Section 3(4)(a) wherever the woman is a minor.
58. The MTP Act does not regard a minor as capable of independently
consenting to termination, but the statute itself declares it insufficient. In the
present case, no guardian consent was ever sought because no one at TMC
turned their mind to whether one was required. The signature of a minor
does not supply the consent the MTP Act mandates.
59. It follows that the Forensic Science Laboratory Report’s
(“FSL”)finding on the disputed signature does not resolve this question even
if read most favourably to the petitioner. Authenticity of the signature and
validity of the consent are two different questions. A genuine signature by a
person legally incapable of giving valid consent on her own does not
become valid consent merely because it is genuine. On the footing that the
victim was, in fact, a minor, her signature on the TMC’s form, however
authentic, did not constitute the consent the law required, in the absence of
any guardian consent that was never sought.
60. It is discernible that, in this matter, the FIR was registered only on
04.10.2019 because of the failure of the petitioner in informing the matter to
the appropriate authorities on 26.07.2019. What is relevant, for the purposes
of the present petition, is the legal significance such a delay would carry if
established. As held in Dr. Maroti (supra), “prompt and proper reporting of
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an offence under the POCSO Act is of utmost importance precisely because
it enables the immediate registration of the case and the timely medical
examination of the victim, and may, in a given case, assist in tracing an
accused who might otherwise remain unknown or absconding”.
61. The line drawn is between omissions that appear inadvertent and
omissions that appear deliberate. Where the record discloses no more than
an inadvertent lapse, quashment may be warranted. Whereas, as was held in
Dr. Ditto Tom P (supra), a situation where the record discloses a deliberate
omission to report, the prayer for quashment or discharge cannot succeed.
Whether the omission alleged against the petitioner in the present case falls
on one side of that line or the other is a question this Court is not called upon
to answer at this stage. It suffices, for present purposes, to hold that the
allegation cannot be excluded from consideration as inherently improbable.
62. In the instant case, the petitioner, who got knowledge regarding the
crime on 26.07.2017, failed to inform the same and accordingly registration
of the crime was delayed for a period of almost 70 days. That must have
attenuated timely investigation of the case without elements of lacuna. The
prosecution materials would show that the alleged offence against the
petitioner is made out from the prosecution records, warranting trial.
Therefore, the quashment plea would necessarily fail.
63. For the reasons set out above, this Court holds that the order
dated29.09.2020 directing further investigation does not warrant interference
and that the order dated 31.07.2021 taking cognizance and issuing summons
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accordingly does not suffer from any illegality warranting interference under
Section 482 CrPC.
64. In view of the above, this Court finds no merit in the present petition
and CRL.M.C.2900/2021 is accordingly dismissed. The pending application,
if any, stands disposed of.
65. It is clarified that the observations made in this judgment are confined
to the limited purpose of examining whether a prima facie case exists to
sustain the impugned orders and proceedings, and shall not be construed as
an expression of opinion on the ultimate merits of the case. The Trial Court
shall proceed with the trial uninfluenced by any observation made herein,
and shall decide the matter strictly in accordance with law, on the basis of
the evidence led before it.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
AUGUST 05, 2026
NK
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