Bombay High Court
Dr. Omprakash Lalbaji Kingaonkar vs The State Of Maharashtra on 23 February, 2026
2026:BHC-AUG:7690
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 185 OF 2025
Dr. Omprakash s/o Lalbaji Kingaonkar
Age 71 years, Occupation Medical Practitioner,
R/o. Samatanagar, Nanded Road, Ahmedpur,
Taluka Ahmedpur, District Latur. ... Applicant
[Orig. Accused]
Versus
The State of Maharashtra
Through the Police Station Officer,
Ahmedpur, District Latur. ... Respondent
.....
Mr. U. L. Telgaonkar, Advocate for the Applicant.
Mr. S. G. Sangle, APP for Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 18.02.2026
Pronounced on : 23.02.2026
JUDGMENT :
1. Revision petitioner-original accused in Crime No. 545 of 2022
registered at Ahmedpur Police Station, District Latur for offence
under sections 315 and 316 of IPC as well as Sections 3(2)(a)(b) and
5 of the Medical Termination of Pregnancy Act, 1971 [for short, “MTP
Act“], hereby takes exception to the order dated 06.03.2025 thereby
rejecting application Exhibit 6 in Sessions Case No. 27 of 2024, which
was filed by the revisionist seeking discharge under Section 227 of
Cr.P.C.
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2. In short, prosecution was launched against present petitioner
on the premise that, he had conducted medical termination of
pregnancy of patients whose gestation and pregnancy was beyond 20
weeks, which is impermissible. Therefore, having violated provisions
of the Penal code as well and the MTP Act, after registration of crime
on a complaint by authorized medical officer, above crime was
registered and on completion of investigation, he was duly
chargesheeted and is about to face trial vide above Sessions Case, in
which an application for discharge has been rejected giving rise to
present revision application by invoking Section 397 of Cr.P.C.
3. Learned counsel for the revision petitioner would point out
that, applicant has served at various places on various positions such
as Medical Officer and Superintendent for a period of almost 30
years. That, after superannuation, he set up a hospital at Ahmedpur
and is a senior-most gynic surgeon with vast experience under his
belt. It is pointed out that, his hospital is the only hospital in the
entire taluka of Ahmedpur where there is authorization for
conducting abortion over 20 weeks gestation period and he receives
referrals from all corners from various medical practitioners and is
thus a trusted medical practitioner.
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4. Learned counsel further pointed out that, a surprise visit was
allegedly paid to his hospital by one serving medical superintendent
on 15.02.2022, and it is claimed that during said inspection and
verification of documents, it was revealed that termination of
pregnancies exceeding 20 weeks were performed without intimation
to the authority or constituted committee. That, there are allegations
that prior opinion of constituted committed was not obtained and on
self determination, risky operations were conducted thereby violating
the very provisions of the MTP Act. However, according to learned
counsel, at the threshold, only a Chief Medical Officer or Civil
Surgeon is authorized to conduct such raid. Here, complainant was
mere Medical Superintendent and was not holding required
designation to verify or lodge complaint.
5. Learned counsel pointed out that, hospital of the revision
petitioner is equipped with all medical equipments and his hospital
has been duly recognized by Government to conduct termination of
pregnancies.
6. It is further pointed out that there are allegations that, medical
termination of pregnancy of one lady namely Pooja Samukhrao was
conducted even when it had gone to the advanced stage i.e. beyond
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24 weeks and on such accusations, followed by illegal raid, above
crime has been registered.
7. Learned counsel pointed out that though the MTP Act permits
termination of pregnancy up to 12 or 20 weeks, by way of
amendment the said period has been extended to 24 weeks.
Moreover, according to him, when there is risk to the life of the
mother, there is no cap of gestation or stage of pregnancy. Therefore,
the above referred medical case which was conducted by revision
petitioner, involved a medical exigency of saving life of the patient
whose blood pressure had abnormally shot up and there was oedema
over the entire body. That, ultra sonography report had indicated that
the fetus was already stillborn as no fetal heart sounds were heard or
detected. That, it was an emergent case necessitating urgent surgery
to save life of the pregnant woman. That even provisions of MTP Act
have given latitude to a registered medical practitioner to undertake
such procedure. Consequently, it is his submission that, there was no
irregularity or illegality. He pointed out that, patient had come on
referral and after obtaining consent of relatives and patient, above
procedure was undertaken after following due procedure
contemplated under the MTP Act. That, said medical procedure was
even successful. However, merely on the basis of verification and
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examination of register maintained by the hospital, certain anomalies
and irregularities are alleged to be detected and a senior doctor like
revision petitioner is sought to be prosecuted.
8. lastly he submits that, even on studying entire chargesheet,
there is no material suggesting availability of ingredients for which
revision petitioner is framed. Therefore, according to him, making
him face trial or its ordeal would amount to injustice. Consequently
he urges to set aside the order of learned trial court by allowing the
revision.
9. In support of his contentions, learned counsel for the revision
petitioner places reliance on the decisions of the Hon’ble Apex Court
in P. Vijayan v. State of Kerala and Another AIR 2010 SC 663 and
Captain Manjit Singh Virdi (Retd.) v. Hussain Mohammed Shattaf
and Others AIR 2023 SC 2480.
10. Per contra, learned APP would point out that, going by the
nature of proceedings and accusations, there is more than sufficient
material which has been gathered upon thorough investigation. That,
medical experts, who themselves were part of the raiding team, have
noticed prominent irregularities and illegalities in violation of the
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MTP Act. That, voluminous documents are seized from the hospital
run by the revision petitioner and that, it is a fit case to make
petitioner face trial. According to him, whatever grounds are raised in
the revision are not tenable at this stage. For above reasons, he seeks
rejection of revision.
11. Heard. Perused the papers. This Court is called upon to exercise
revisionary powers available under Section 397 r/w 401 of Cr.P.C. As
there are prayers for discharge under Section 227 of Cr.P.C., it would
be desirable to give a brief account on the settled legal precedent to
be borne in mind while dealing with an application for discharge.
In the case of Sajjan Kumar v. CBI MANU/SC/0741/2010 :
(2010) 9 SCC 368, on the scope of Section 227 of Cr.P.C., the Hon’ble
Apex Court observed in para 21 as under :
“21. On consideration of the authorities about scope of Sections
227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the
charges under Section 227 of the Cr.P.C. has the undoubted
power to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the accused
has been made out. The test to determine prima facie case would
depend upon the facts of each case.
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(ii) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained, the Court will be fully justified in framing a charge
and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities etc.
However, at this stage, there cannot be a roving enquiry into the
pros and cons of the matter and weigh the evidence as if he was
conducting a trial.
(iv) If on the basis of the material on record, the Court could
form an opinion that the accused might have committed offence,
it can frame the charge, though for conviction the conclusion is
required to be proved beyond reasonable doubt that the accused
has committed the offence.
(v) At the time of framing of the charges, the probative value of
the material on record cannot be gone into but before framing a
charge the Court must apply its judicial mind on the material
placed on record and must be satisfied that the commission of
offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to
evaluate the material and documents on record with a view to
find out if the facts emerging therefrom taken at their face value
discloses the existence of all the ingredients constituting the
alleged offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or the broad probabilities of the case.
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(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal.”
The Hon’ble Apex Court, on the limited power of sifting the
material on record at the stage of charge, in case of Dipakbhai
Jagdishchandra Patel v. State of Gujarat MANU/SC/0595/2019 :
(2019) 16 SCC 547, observed as under:
“23. At the stage of framing the charge in accordance with
the principles which have been laid down by this Court,
what the Court is expected to do is, it does not act as a
mere post office. The Court must indeed sift the material
before it. The material to be sifted would be the material
which is produced and relied upon by the prosecution. The
sifting is not to be meticulous in the sense that the Court
dons the mantle of the Trial Judge hearing arguments after
the entire evidence has been adduced after a full-fledged
trial and the question is not whether the prosecution has
made out the case for the conviction of the accused. All
that is required is, the Court must be satisfied that with the
materials available, a case is made out for the accused to
stand trial…”
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In Asim Shariff v. National Investigation Agency MANU/SC/
0863/2019 : (2019) 7 SCC 148 the Hon’ble Apex Court has observed
that at the stage of framing of charge, the trial court is not expected
or supposed to hold a mini trial for the purpose of marshalling the
evidence on record. The relevant observations in this regard read as
under:
“18. Taking note of the exposition of law on the subject laid
down by this Court, it is settled that the Judge while
considering the question of framing charge under Section
227 CrPC in sessions cases (which is akin to Section 239
CrPC pertaining to warrant cases) has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out; where the material placed
before the Court discloses grave suspicion against the
accused which has not been properly explained, the Court
will be fully justified in framing the charge; by and large if
two views are possible and one of them giving rise to
suspicion only, as distinguished from grave suspicion
against the accused, the trial Judge will be justified in
discharging him. It is thus clear that while examining the
discharge application filed under Section 227 CrPC, it is
expected from the trial Judge to exercise its judicial mind to
determine as to whether a case for trial has been made out
or not. It is true that in such proceedings, the Court is not
supposed to hold a mini trial by marshalling the evidence
on record.”
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Some other rulings on this aspect can be named as State of
Maharashtra and others v. Som Nath Thapa and others (1996) 4 SCC
659; State of M.P. v. Mohanlal Soni (2000) 6 SCC 338; Amit Kapoor
v. Ramesh Chander and another (2012) 9 SCC 460; Asim Shariff v.
National Investigation Agency (2019) 7 SCC 148.
The ratio that is culled out is that, while dealing with an
application under Section 227 of Cr.P.C., strong suspicion against the
accused cannot take the place of proof of his guilt at the conclusion of
the trial. But at the initial stage, if there is a strong suspicion which
leads the court to think that there is ground for presuming that the
accused has committed an offence, then it is not open to the court to
say that there is no sufficient ground for proceeding against the
accused. The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. Where the material placed before the
Court disclose grave suspicion against the accused which has not been
properly explained, the court will be fully justified in framing a charge
and proceeding with the trial. By and large however, if two views are
equally possible and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not grave suspicion
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against the accused, he will be fully within his right to discharge the
accused.
12. Further, this being revision, there is limited scope to this Court,
i.e. to ascertain whether impugned order suffers from any patent
illegality or error so as to interfere.
13. In above backdrop, charge-sheet placed on record is studied
and it is noticed that, precise accusation against present revision
petitioner is that, while running a hospital by name ‘Kingaonkar
Hospital’ at Ahmedpur, there is violation of rules and regulations of
the MTP Act whereby limit of 20 weeks pregnancy circumscribed by
the Act has been violated and pregnancy terminations are done
without obtaining prior approval or permission of District MTP
Advisory Committee, and thereby he has committed offence under
Sections 315 and 316 of IPC and Sections 3(2)(a)(b) and 5 of the
MTP Act.
14. The FIR seems to be on the basis of report dated 25.11.2022
lodged on one Dattartraya Kalidas Birajdar, Medical Superintendent,
Rural Hospital, Ahmedpur. Substance of his report is that, being
working as a Medical Superintendent since 2020, he has been
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authorized to inspect all MTP centers and sonography centers.
According to him, on 15.02.2022, he himself and one Doctor
Kishanrao Surajmal paid a surprise visit to the petitioner’s hospital
situated at Nanded road, Ahmedpur for trimester MTP Center
inspection, and on going through the register and the case papers, it
was revealed that on 02.02.2021, 02.06.2021 and 30.08.2021,
termination of pregnancies which were above 20 weeks were shown
to be conducted. On 29.09.2021, 27 weeks pregnancy was shown to
be terminated. On 20.11.2021, termination of 22 weeks pregnancy
was noticed and on 20.01.2022, 24 weeks pregnancy was terminated.
Lastly, on 20.02.2022 also pregnancy of over 24 weeks was shown to
be terminated. Informant claims that, this revealed that there was
violation of rules and regulations of the MTP Act and therefore, Civil
Surgeon at Latur was duly reported and at his instance, inspection
squad was constituted comprising of Dr. Pathak, Dr. Soudale, Dr.
Birajdar, legal advisor Mekale and staff Thange, which again paid visit
to the petitioner’s hospital on 08.03.2022 and after inspection
submitted report to the Civil Surgeon, who thereafter constituted
special meeting on 23.03.2022, i.e. meeting of District MTP Advisory
Committee, wherein revision petitioner was summoned to offer
explanation, i.e. both oral and written, and thereafter above
complaint has been lodged for above offence.
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15. Charge-sheet shows that thereafter, investigation commenced
which comprised of collection of various documents from the hospital
and recording statements of officials who were party to the flying
squad and raid. Necessary Circulars, Notifications and amended
Gazette are also placed along with the charge sheet. On gathering
sufficient evidence, charge-sheet seems to have been filed in the Court
of Additional Sessions Judge, Ahmedpur for trial.
16. Submissions advanced in favour of relief are already dealt in
aforesaid para. Precise and fundamental objections raised by learned
counsel for the revision petitioner are that, firstly, raid being
conducted by incompetent authority; secondly, petitioner’s center to
be approved and authorized by the Government to conduct
termination of pregnancy; and thirdly, the cases, which prompted
termination of pregnancy beyond permissible cap of pregnancy, to be
done only due to medical exigency and to save life of the concerned
patient.
17. For ready reference it would be fruitful to reproduce the
relevant provisions for which petitioner is chargesheeted.
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i. Section 315 of IPC deals with an act done with intent to
prevent child being born alive or to cause it to die after birth, whereas
Section 316 of IPC deals with causing death of quick unborn child by
act amounting to culpable homicide.
As regards to above provisions are concerned, it is submitted
that, these provisions are not applicable to the revision petitioner, he
being a registered medical practitioner and moreover, none of the
ingredients for above Sections are available in the charge-sheet.
ii. The other provisions of the MTP Act for which revision
petitioner is charged are Sections 3(2)(a)(b) and Section 5.
The entire statutory regime of the MTP Act shows that it
comprises of only eight sections. Section 3 of the MTP Act deals with
important issue as to when pregnancies are permitted to be
terminated by medical practitioners. Here, there is no dispute that
revision petitioner is a registered medical practitioner and indeed, as
pointed out, he also has vast experience to his credit.
iii. Section 3(1) of the above Act provides that not withstanding
anything contained in the IPC, a registered medical practitioner shall
not be guilty of any offence under that Code or under any other law
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for the time being in force, if any pregnancy is terminated by him in
accordance with the MTP Act. In the light of such provision, probably
learned counsel for revision petitioner could be justified in saying that
provisions of IPC are not applicable to revision petitioner he being
registered medical practitioner.
iv. However, further provisions of Section 3 (2) spell out other
contingencies which permit termination of pregnancy by a registered
medical practitioner, subject to the provisions of sub-section (4), i.e.
(a) where the length of the pregnancy does not exceed twelve
weeks, if such medical practitioner is,
or
(b) where the length of the pregnancy exceeds twelve weeks but
does not exceed twenty weeks, if not less than two registered
medical practitioners are,
of opinion, formed in good faith, that, –
(i) the continuance of the pregnancy would involve a risk
to the life of the pregnant woman or of grave injury to her
physical or mental health; or
(ii) there is a substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to
be seriously handicapped.
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Explanation I. – Where any, pregnancy is alleged by the pregnant
woman to have been caused by rape, the anguish caused by such
pregnancy shall be presumed to constitute a grave injury to the
mental health of the pregnant woman.
Explanation II. – Where any pregnancy occurs as a result of failure
of any device or method used by any married woman or her
husband for the purpose of limiting the number of children, the
anguish caused by such unwanted pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant
woman.
v. Section 3(3) of the MTP Act provides that, in determining
whether the continuance of pregnancy would involve such risk of
injury to the health as is mentioned in sub-section (2), account may
be taken of the pregnant woman’s actual or reasonable foreseeable
environment.
vi. Section 5 of the MTP act deals with the circumstances in which
the provisions of Sections 3 and 4 of the MTP Act will not apply.
vii. Section 5(1) of the MTP Act provides that, the provisions of
section 4, and so much of the provisions of sub-section (2) to section
3 of the MTP Act as relate to the length of the pregnancy and the
opinion of not less than two registered medical practitioners, shall not
apply to the termination of a pregnancy by the registered medical
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practitioner, in a case where he is of opinion, formed in good faith,
that the termination of such pregnancy is immediately necessary to
save the life of the pregnant woman.
viii. Section 5 (2) of the MTP Act, as amended in 2002, provides,
that notwithstanding anything contained in the Indian Penal Code,
the termination of pregnancy by a person who is not a registered
medical practitioner shall be an offence punishable with rigorous
imprisonment for a term which shall not be less than two years but
which may extend to seven years under that code, and that Code
shall, to this extent, stand modified.
ix. Section 5 (3) of the MTP Act provides that, whoever terminates
any pregnancy in a place other than that mentioned in section 4, shall
be punishable with rigorous imprisonment for a term which shall not
be less than two years but which may extend to seven years.
x. Section 5(4) of the MTP Act provides that, any person being
owner of a place which is not approved under clause (b) of section 4
shall be punishable with rigorous imprisonment for a term which shall
not be less than two years but which may extend to seven years.
The first explanation to section 5 of the MTP Act provides, that
for the purpose of this section, the expression ‘owner’ in relation to a
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place means any person who is the administrative head or otherwise
responsible for the working or maintenance of a hospital or place, by
whatever name called, where the pregnancy may be terminated under
the MTP Act.
The second explanation to section 5 of the MTP Act provides
that, for the purpose of this section, so much of the provisions of
clause (d) of section 2 of the MTP Act as relate to the possession, by
the registered medical practitioner, of experience or training in
gynaecology or obstetrics shall not apply.
18. On taking into account of the above provisions, it is emerging
that, in order that medical practitioner is to be immunized from
prosecution under the law, it is firstly to be by a registered medical
practitioner and that too, at an approved place as provided under
Section 4(d) of the MTP Act. Section 3 primarily provide for
termination of pregnancy of a woman where length of pregnancy is
less than 12 weeks or where it exceeds 12 weeks but does not exceed
20 weeks, and further poses a threat to the life of pregnant woman or
there is imminent or grave danger to her physical and mental health.
The said Act further lays down that the said procedure involves
obtaining opinion of one medical practitioner [in case of contingency
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mentioned in Section 3(2)(a)] or two medical practitioners [in case of
contingency mentioned in Section 3(2)(b)], who are authorized to
perform abortions and they are further satisfied that continuance of
such pregnancy would render considerable risk to the life of woman
or cause grave injury to her physical and mental health.
19. Similarly, on taking into account the above referred provision
of Section 5, for which also present petitioner is booked, it is clear
that this Section is in the nature of an exception to the provision laid
down in Sections 3 and 4 of the MTP Act. However, said exception
would not be applicable in blanket. The exceptions seplt out in section
5 apply only in relation to Section 4 and so much of the provisions of
Section 3(2) which are relatable to the length of pregnancy as well as
the opinion of not less than two registered medical practitioners.
20. The exception apparently comes into play only where the
registered medical practitioner is of firm opinion, which is “formed in
good faith”, that termination of such pregnancy is immediately
necessary for saving life of the pregnant woman. Therefore, the pivot
or linchpin of the above provision is, “good faith”. It is sole opinion of
the medical practitioner which is to be formed in only emergent cases
and not otherwise.
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21. As to what is meant by “good faith”, or how it is to be gauged,
is not clarified or elaborated in the Act. Definition of “good faith” is
also not provided in the Act. In legal parlance, good faith
contemplates or implies doing something honestly and with clear
conscience. It contemplates display of ordinary prudence to have been
exercised with reasonable standards. It contemplates honest effort.
Even the General Clauses Act provides for definition of “good
faith”, but as stated above, in MTP Act at-least, there is no
clarification as to what is meant by “good faith”.
Section 52 of IPC defines “good faith” as, “nothing is said to be
done or believed in ‘good faith’ which is done or believed without
good care and attention”. In Penal Code, this phrase “good faith” finds
place while extending an exception to claim immunity.
Section 88 of IPC provides a defence for the acts done in good
faith and for the benefit of a person, with their consent, even if the act
results in harm, and this Section is invoked in cases of medical
negligence for protecting doctors from liability. However, it is a
matter of trial.
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Section 111 of the Indian Evidence Act provides that, burden of
proving a transaction to be in good faith lies on the party who asserts
it. Therefore, if at all benefit of acting in good faith is to be availed, it
is to be proved at trial by way of evidence, and such plea cannot be
entertained at this stage. It is a question of fact necessitating
procedure of trial. To support such proposition of law, reliance can be
placed on the judgment of Sewakram Sobhani v. R.K. Karanjia and
Ors., reported in MANU/SC/0219/1981 : 1981 INSC 105 and
Harbhajan Singh v. State of Punjab and Another , reported in AIR
1961 Pub 215.
22. Here, both, penal sections as well as the MTP Act, contemplate
proving act to be done in good faith. In the light of above discussion,
conclusion flows is that, it is a matter of trial and not to be dealt at
this stage, it being matter of fact.
23. Here, this Court has to merely ascertain availability of
sufficiency of material. Charge-sheet contains statements of medical
experts who were party to the raid and verification, and voluminous
documents and entire hospital papers are undeniably seized by the
investigating machinery. On prima facie going through the above
material, it is difficult to accept the contention that there is no
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material whatsoever to make accused face trial. There is material for
framing charge. Revision petitioner may have a good case as regards
to charges under IPC, however, more particularly for technical offence
under Section 5 of the MTP Act, conducting trial is essential. The
issue whether the act was done in good faith or otherwise requires
full fledged trial. Resultantly, there is no error on the part of learned
trial court in refusing to discharge. Hence, the following order :
ORDER
The Criminal Revision Application is dismissed.
[ABHAY S. WAGHWASE, J.]
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