Doctors should not be mechanically implicated under POCSO Act for failure to report offences: Kerala High Court

The Kerala High Court recently quashed criminal proceedings against a female doctor accused of failing to report a minor's pregnancy under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and for conducting an abortion without consent [Dr T Ambujakshi v State of Kerala].Justice A Badhurudeen cautioned investigating officers against implicating doctors under the provisions of POCSO Act without a prima facie finding of deliberate intent or omission to report a crime against a minor."Doctors are bestowed with the duty to save the life of the patients and have been busily engaged in their vow. Therefore, while implicating doctors in criminal cases with the aid of Section 19 of the POCSO Act, the investigating officer must apply his mind from the materials collected and form an unbiased opinion to see, prima facie, that there is deliberate intention or omission to report the crime," the single-judge said.Mechanically implicating doctors in criminal cases for alleged failure to report offences under Sections 19 and 21 of the POCSO Act would amount to 'absolute injustice' to medical practitioners and cause significant mental trauma and adversely affecting their ability to perform their professional duties, the Court reminded."This is nothing but absolute injustice and putting the doctors under mental trauma of criminal prosecution and the same would stand as a rider for the doctors in doing their duties promptly. Therefore, the investigating officers are specifically directed to be more cautious when doctors’ involvement is doubted in POCSO offences and implication of doctors in criminal cases under the POCSO Act shall be avoided unless relevant materials do not justify the same," the judge said..The case before the Court involved a 68-year-old gynecologist accused of failing to report the pregnancy of a minor, allegedly a victim of repeated sexual assault.The doctor was charged under Sections 19 (reporting of offences) and 21 (punishment for failure to report) of the POCSO Act and Sections 312 (causing miscarriage) and 313 (causing miscarriage without consent) of the Indian Penal Code (IPC).The doctor sought to quash the proceedings initiated against her and approached the Court, stating that she was unaware that the victim was a minor since the victim and her parents claimed that she was 18 years old and married..She contended that the victim was brought to her with severe bleeding and symptoms of a possible miscarriage and therefore, her primary focus was to save the victim's life.Seeing that there was no reason to suspect the victim as her age was documented as 18 years in the hospital records and the consent forms signed by her father agreeing to the procedure, she conducted an abortion to save her life.However, the prosecution argued that the petitioner knew the victim was under 18 and alleged that the abortion was conducted without consent, violating the POCSO Act and IPC provisions. .After examining the case diary and evidence, the Court noted that all available records, including the victim's age in hospital documents, stated she was 18 years old.The Court referred to the Supreme Court's observations in Tessy Jose v State of Kerala and noted that the expression 'knowledge' in Section 19(1) of the POCSO Act implied actual information about a crime, which according to the Court, was absent in this case as the doctor believed the parents and the victim while performing her duty.Thus, when there was no material on record to show that the doctor was informed or otherwise made aware that the victim was a minor, then criminal liability could not be imposed against the doctor in the absence of clear evidence of knowledge, the Court concluded.It also observed that offences under Sections 312 and 313 of IPC would also not lie against the doctor as she had completed the abortion only as an act of good faith to save the victim's life, after the victim's father had given written consent for the medical procedure..Therefore, the Court quashed the criminal proceedings against the doctor and directed the registry to forward a copy of the order to the Director General of Police for necessary action..Advocates Sooraj T Elenjickal, Aswin Kumar MJ, Arun Roy and Shahir Showkath Ali appeared for the doctor.Public Prosecutor Jibu TS represented the State..[Read Order]