Karnataka High Court: While deciding the instant petition for quashment of complaint, the Bench of Suraj Govindaraj, J., held that in the instant case where it has been alleged that the petitioner (a doctor) had conducted the sex change operation upon a minor without their consent, such allegations are not something that can be considered by the High Court under Section 482, CrPC and should be strictly left open for trial, with the petitioner having the liberty to raise appropriate defense.
Facts and Contentions: A complaint was filed on 11-02-2018 whereby it was alleged that the petitioner had conducted a sex change operation on the complainant’s grandchild and had changed his sex from male to female. There are other allegations which have been levied upon the petitioner, such as kidnapping and offences under Section 376, IPC and Sections 6 and 21 of the Protection of Children from Sexual Offences Act, 2012.
The counsel for the petitioner argued that the petitioner is a doctor, who has wrongfully been implicated in the matter. It was submitted that the petitioner has not performed any operation as alleged or otherwise; furthermore, no criminal prosecution could be initiated against the petitioner, without following the guidelines laid down by in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, which had stated that unless there is a credible opinion given by another doctor against the accused doctor, no criminal case ought to be registered against such doctor.
Per contra, the respondents argued that the instant case is not about medical negligence. The allegations are regarding a forcible sex change operation, which is a criminal offence both under the IPC and under the POCSO Act.
Observations and Decision: Perusing the allegations and contentions, the Court noted that allegations of forcible sex- change operation has been made against the petitioner and the investigations are ongoing for the same. Several parties have been implicated in the charge sheet, many of whom are transgenders, who also alleged to have got a forcible sex change operation, so that they can be used for extortion and prostitution.
The Court further observed that guidelines in the Jacob Mathew case are applicable when there is an alleged criminal negligence on part of a doctor and opinion of another doctor is required to establish such criminal rashness or negligence. The Court pointed out that in the instant case, no allegations of medical negligence have been made against the petitioner.
With the afore-stated observations, the Court noted that, “I am unable to come to a conclusion that there are no offences which have been made out, there are no grounds which have been made out for quashing of the proceedings, as such“.
Holding that the allegations must be strictly left for trial; the Court dismissed the instant petition.
[Dr. Anitha Patil v. State of Karnataka, 2022 SCC OnLine Kar 1487, decided on 24-08-2022]
Advocates who appeared in this case:
Vijetha R. Naik, Advocate, for the Petitioner;
Mahesh Shetty, HCGP, Advocate, for the Respondent.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.
