Karnataka High Court Refuses To Quash FIR Against Doctor Accused Of Forcefully Performing Sex Change Operation On Minor

The Karnataka High Court has refused to quash the FIR and chargesheet filed against a doctor under POCSO Act for allegedly conducting a forcible sex change operation on a minor boy, after kidnapping him.

A single judge bench of Justice Suraj Govindaraj dismissed the petition filed by Dr. Anitha Patil seeking to quash the FIR registered against her in February 2018 and the chargesheet filed against her.

The bench said,

"The petitioner in the present matter is a Doctor, who is alleged to have conducted the sex change operation, and the other offences have not been alleged against the petitioner. Learned counsel for the petitioner though has contended that the petitioner has not performed the operation, I am of the considered opinion that this cannot be a matter which can be decided in a proceeding under Section 482 of Cr.P.C. that is a matter which is required to be left for trial."

The petitioner denied the allegations and claimed that she was wrongfully implicated in the matter. Her counsel submitted that no criminal prosecution could be initiated against a doctor, without following the guidelines laid down by the Apex Court in the case of Jaco Mathew Vs. State Of Punjab & Anr., 2005 (6) SCC 1. Placing reliance on the judgment it was said that unless there is a credible opinion given by another doctor against the accused-Doctor, no criminal case ought to be registered against the Petitioner.

The prosecution opposed the plea saying that Jaco Mathew (supra) would not be applicable to the present case since it relates to medical negligence whereas, the present matter, the allegation is not one of negligence but of forcible sex change operation which is a criminal offence both under the IPC and under the POCSO Act.

Findings:

The bench noted that several persons have been implicated in the charge sheet, many of whom are transgender persons, who are alleged to have got a forcible sex change operation due in order to make use of (victim) for the purpose of prostitution as also for extortion of money etc.

Referring to the apex court judgments relied by the petitioner the bench said, "It is clear from a reading of the extracted portion that it is only when there is criminal rashness and/or criminal negligence which is alleged against the Doctor that the opinion of another Doctor is required to be obtained which could establish whether there is in fact criminal rashness or negligence or whether the treatment mode adopted by the Doctor is the normal and regular treatment mode which does not amount to rashness or negligence. In the present matter, there is no allegation of any rashness or negligence."

Further it said, "The allegations are that the said operation has been conducted without the consent and that he (victim) could not have concern that since he was a minor at that point of time. These are matters which are required to be strictly left for trial with all defences left open for the petitioner to be agitated before the trial Court."

It then held, "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, reserving liberty to the petitioner to raise all the defences before the trial Court, the petition stands dismissed."

Case Title: DR. (SMT.) ANITHA PATIL And STATE OF KARNATAKA

Case NO: CRIMINAL PETITION NO. 8213 OF 2019

Citation: 2022 LiveLaw (Kar) 357

Date of Order: 24TH DAY OF AUGUST, 2022

Appearance: Advocate VIJETHA R. NAIK for petitioner; HCGP MAHESH SHETTY for respondent