Sale Of Medical Termination Of Pregnancy Kit Alone Not An Offence Under MTP Act: Punjab & Haryana High Court Reiterates

The Punjab and Haryana High Court has reiterated that the sale of the Medical Termination of Pregnancy (MTP) kit alone does not constitute an offence punishable under the MTP Act.

Justice Pankaj Jain relied on the precedent in Dr. Vandana Malik v. State of Haryana and quashed the FIR and subsequent proceedings against the petitioner as the allegations did not establish a case against the accused. 

"In view of the aforesaid settled proposition of law, this Court finds that sale of MTP Kit itself cannot be said to be an offence punishable under the MTP Act. Finding it to be a case which would fall within the parameters of law laid down by Apex Court in the case of State of Haryana and others vs. Ch. Bhajan Lal and others, this Court finds that the present FIR and the proceedings subsequent thereto cannot be allowed to continue." 

An FIR was registered against the petitioner under Sections 15(2) and 15(3) of the Indian Medical Council Act, and Sections 3 and 4 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) at the Civil Line Police Station in Sonipat.

The FIR alleged that a raid was conducted at Gandhi Memorial Clinic based on secret information suggesting illegal abortion practices. They sent a decoy pregnant woman to the clinic, and the petitioner allegedly agreed to perform an abortion for a sum of Rs. 500. The police then gave the decoy woman the money, which was subsequently found with the petitioner. Various medical items were seized during the raid.

The main question at hand was whether the mere sale of a Medical Termination of Pregnancy kit constitutes an offence under the MTP Act. The court referred to a previous case, Dr. Vandana Malik vs. State of Haryana, where it was established that the Act primarily aims to regulate and restrict abortion procedures to registered medical practitioners or approved locations.

The court found that the allegations against the petitioner, even if taken at face value, did not constitute an offence under the MTP Act. It noted that no evidence had been collected during the investigation to prove that the petitioner had actually conducted an abortion. Additionally, the presence of medical instruments in a hospital does not automatically imply illegal activity.

Citing the judgment in State of Haryana and others vs. Ch. Bhajan Lal & Ors, the court emphasized that the power to quash proceedings can be exercised when the allegations, even if accepted as true, do not prima facie establish an offence against the accused.

"...Counsel for the State of Haryana otherwise failed to cite any provision in law or a precedent that if instruments which may be used for termination of pregnancy are found in a hospital, it raises a legal presumption against the doctor running that hospital or the owner of the place that the said hospital is being used for termination of pregnancy or any person has terminated the pregnancy. In this view of the matter, I find force in the contention of the petitioner that even if the allegations raised against the petitioner are accepted to be true on face value, the same do not constitute any offence charged against the petitioner, therefore, the proceedings are liable to be quashed."

Based on this reasoning, the court allowed the petition and quashed the FIR and all subsequent proceedings against the petitioner related to the alleged offences.

Appearance: Kamal Deep Sehra, Advocate for the petitioner.

Ashok K. Sehrawat, DAG, Haryana.

Citation: 2023 LiveLaw (PH) 190