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Tripat Chaudhary vs Arundhati Sapru Mehra & Anr. on 26 October, 2018

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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11th October, 2018
Decided on : 26th October, 2018

+ CRL.M.C. 1223/2015 and Crl. M.A. 4484/2015
TRIPAT CHAUDHARY ….. Petitioner
Through: Mr. Shri Singh Ms. Schuchi
Dwivedi, Advs.

versus

ARUNDHATI SAPRU MEHRA ANR. ….. Respondents
Through: Respondent in person
Mr. Mukesh Kumar, APP for the State

+ CRL.M.C. 947/2016 and Crl. M.A. 4009/2016 and 4529/2018
YASH MEHRA ….. Petitioner
Through: Mr. Mohit Mathur, Sr. Adv.
with Mr. Ashish Aggarwal, Adv. with
petitioner in person.

versus

THE STATE AND ANR ….. Respondents
Through: Mr. Mukesh Kumar, APP for the
State
R-2 in person
CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

Crl. M.C. 1223/2015 and 947/2016 Page 1 of 17
ORDER (ORAL)

1. Arundhati Sapru Mehra, first respondent in Crl. M.C
1223/2015 and the second respondent in Crl. M.C. 947/2016 was
married to Yash Mehra (petitioner in Crl. M.C. 947/2016) on
12.07.2001. She (hereinafter, referred to as “the complainant”) had
lodged a criminal complaint case (CC no.19496/2008 – new
no.6/2/15) on 17.03.2008 in the court of the Additional Chief
Metropolitan Magistrate, New Delhi alleging offences punishable
under Sections 315, 328, 329, 406, 420, 498A, 506 read with Section
120 B and 34 of Indian Penal Code, 1860 (IPC) impleading Yash
Mehra (hereinafter referred to as “the first accused”), Ashok Khurana
(“second accused”), Dr. Tripat Chaudhary, petitioner in Crl. M.C.
1223/2015 (“third accused”) and Dr. Raj Kumar Saxena (“fourth
accused”). On the said criminal case, the Metropolitan Magistrate held
preliminary inquiry in the course of which the complainant examined
herself (as CW-1), also examining D.R. Tiwari, Medical Record
Officer of Kailash Hospital, Noida (CW-2) and B.K. Pandey, Sr.
Executive Medical Records, Sitaram Bharatiya Institute of Science
and Research (also CW-2). The Magistrate, by order dated
03.11.2014, declined to issue any process against the second accused.
She, however, found sufficient grounds to proceed against the first
accused (petitioner Yash Mehra) for offences under Sections 498A,
315, 328, 420, 406, 506, 120B IPC. She also found sufficient grounds
to proceed against the third accused (petitioner Dr. Tripat Chaudhary)
for offences under Sections 315, 120B IPC. It may be added that

Crl. M.C. 1223/2015 and 947/2016 Page 2 of 17
summoning order was also issued against the fourth accused for
offences under Sections 506 and 120B IPC.

2. The first and third accused, as aforesaid, feeling aggrieved by
the aforementioned order, have come up to this court by the petitions
at hand invoking the inherent power and jurisdiction of this court
under Section 482 Cr. PC to seek the said order issuing process
against them to be quashed and vacated.

3. The complainant had initially appeared in these proceedings
with a counsel representing her. On 19.07.2018, she informed the
court that she did not want the services of any counsel. All sides have
been heard at length and the record has been perused.

4. From the averments in the complaint and the documents which
have been filed therewith or the material submitted with the petitions
at hand, there seems to be no dispute as to the fact that the
complainant was married to the first accused (Yash Mehra) on
12.07.2001. While the complainant had a failed previous marriage, it
having been dissolved by a decree of divorce, Yash Mehra was a
widower at the time of his marriage with the complainant. It appears
that on account of their cohabitation, the complainant had become
pregnant, she having developed some urinary track infection (UTI) in
July / August 2001. She was taken for medical treatment, she
eventually coming up for such purposes before the third accused (Dr.
Tripat Chaudhary) who was consultant in Sita Ram Institute of
Science and Research in Mehrauli Institutional Area, New Delhi, by
the end of July 2001. There is material to show that some

Crl. M.C. 1223/2015 and 947/2016 Page 3 of 17
complications arose on or about 28.07.2001 for which she had
consulted the third accused. On 15.09.2001, she was again examined
by the third accused in the aforementioned hospital. There is material
to show that on 17.10.2001, she was subjected to ultrasound
examination by the person mentioned as second accused (not
summoned) who found that there was no heart beat in the foetus. The
report was seen by the third accused and on the basis of her medical
examination, the complainant underwent a procedure described as
Dilatation and Evacuation (D E) on 18.10.2001 at the said hospital.
The complainant herself has proved the discharge document (Ex.
CW1/E) dated 19.10.2001 pertaining to the said procedure. The
material would show that the pregnancy was of the duration of eight
weeks plus six days. The ultrasound examination had revealed the
“gestational sac in the fundus with a pulseless embryo”, it being
described as “missed abortion”.

5. The allegations of the complainant relevant to the accusations
for laying the charge for offences under Sections 315 and 328 IPC,
may be extracted from the complaint as under :-

“4. That in July 2001 the complainant went to
Dr. Prabha Manchanda at Defence Colony clinic
for UTI (Urinary Track Infection). By mid
August, 2001 the complainant became pregnant,
however, she did not know it then. The
complainant was coerced to change her doctor
from Prabha Manchanda to Tripat Choudhary by
the accused No.1. The OB/Gyn Dr. Tripat
Choudhary, whom the complainant started
seeing from 28.07.2001, accused No.3 told the

Crl. M.C. 1223/2015 and 947/2016 Page 4 of 17
complainant that she imagined muscular
trembling, blurred vision, uncontrollable
paralysis like lethargy, unexplainable anxiety /
fear symptoms depression etc. and she must
control them herself. The symptoms continued to
bewilder the complainant.

6. That on 15th September, 2001 the
complainant saw Dr. Tripat at Sitaram Bhartia
as the UTI was not cured. She told the
complainant that she was 4 weeks pregnant, she
said that the complainant could be given
injections twice-daily by her male nurse, like a
diabetic. The accused No.1’s first wife died from
complications from diabetes at 31 years. The
complainant balked at the suggestion and refused
so she said she would try Cefturn, etc., which
cured it. During this time, the complainant got
high fever, acute stomach pain and Urinary
burning constantly, which had not been as acute
as in previous Months.

7. That on October 17, 2001 the complainant
was taken for her first ultrasound to Dr. Ashok
Khurana, accused no.2 who informed her that he
could not hear the heartbeat of the foetus and
that it was a miscarriage and he would tell Dr.
Tripat Choudhary, accused No.3 to perform a
Dilatation and Evacuation immediately. Dr.
Tripat Choudhary, accused No.3 called it a
“missed abortion”, another term for a
miscarriage, and ordered a D E (Dilatation
Evacuation) the next day, October 18th, 2001, as
Sitaram Bhartia Hospital in Delhi. The
complainant did not get her periods for 3 months
after that and the physical symptoms continued.

8. That on January 5th 2002 the complainant
took her jewellery out of the locker to keep at
home, this was the last time she used the locker

Crl. M.C. 1223/2015 and 947/2016 Page 5 of 17
during the marriage, as accused wanted her to
keep all that at home, as befitting his
businessman’s status among his colleagues and
friends. In January itself the complainant also
called Accused no.3, Dr. Tripat and told her that
she had not got her periods and when could she
start a family. She showed her surprise that the
complainant had not started both. Immediately
after, surprisingly immediately thereafter the
complainant got her periods as normal cycle,
again. However, accused continued to delay in
starting the family.

9. That on May 15th, 2002 accused No.1 told
the complainant that he was going to adopt a girl
child and that the complainant had no say in it.
The complainant was distressed and said she
wanted her own child and the accused No.1
could not make a unilateral decision in the
adoption. Accused No.1 said he would divorce
her if she would not also adopt the child. The
complainant was acutely distressed that accused
No.1 continued to deny her a child and as
threatening her with divorce.

13. That on July 4th, 2002 accused NO.1
forced the complainant to leave early morning to
visit her sister who had arrived from Hong Kong
on July 3rd night. He told her to stay with her for
two days at her parent’s home in Gurgaon. The
complainant left with two sets of clothes. She
had left without any jewellery on her, leaving
behind a box full of her jewellery in her
cupboard at D-272, Defence Colony, New Delhi.
When the complainant called accused No.1 on
July 6th to send her the car to come home, he told
her to stay another two days and use the same
clothes. He arrived at her parent’s home on July
8 and told her he wanted a divorce. He also told

Crl. M.C. 1223/2015 and 947/2016 Page 6 of 17
the complainant that he was too angry with her
and changed his mind about having a child while
she was pregnant and had wanted to get out of
the marriage so he had actually told the doctors,
Dr. Ashok Khurana and Tripat Choudhary to tell
the complainant that if had been a miscarriage,
while they had really done an abortion on the
complainant on October 18th, 2001 further
enabled by the mega, dosing with drugs.

39. That when the complainant was pregnant
the accused No.1 with the conspiracy of accused
No.2 and accused No.3 caused the miscarriage /
abortion of the complainant with the intention of
preventing the child from being born alive. Until
after the eviction from the marital home in July
2002, the complainant had no suspicion that the
miscarriage was an abortion. Only when the
accused No.1 wrote about the “abortion” per se
in his 12.09.2003 petition in Tis Hazari, the
complainant had confirmed. They have thus
caused offence punishable under section 120B
read with 315 of the Indian Penal Code.”

6. It is the argument of both the petitioners that the mere ipse dixit
of the complainant that it was a case of forced abortion cannot be
accepted against the medical record that has been presented by the
complainant herself. The counsel submitted that there is no material
from which it could be deducted even prima facie that the foetus
which the complainant was carrying on 17/18.10.2001 was alive or
that there was any act of commission or omission indulged in by any
person including the petitioners to bring an end to the said pregnancy.
It is pointed out that contrary to the claim of the complainant, the
ultrasound report clearly reveals that the embryo had no pulse which is

Crl. M.C. 1223/2015 and 947/2016 Page 7 of 17
the reason why the urgent medical procedure known as DE had to be
performed in the best interest of the woman (the complainant). It is
submitted that since it was a foetus which was less than twelve weeks
old, it not having survived, its continuation within the body of the
complainant being obviously a matter of risk to her life, the medical
termination of such pregnancy was even otherwise protected by
Section 3 of the Medical Termination of Pregnancy Act, 1971. It was
further submitted that Section 3 of the said law opens with a non-
obstante clause and, therefore, excludes the application of offence
under Section 315 of IPC to be invoked in such fact-situation.

7. Section 315 IPC reads thus :-

315. Act done with intent to prevent child being
born alive or to cause it to die after birth :

Whoever before the birth of any child does any act
with the intention of thereby preventing that child
from being born alive or causing it to die after its
birth, and does by such act prevent that child from
being born alive, or causes it to die after its birth,
shall, if such act be not caused in good faith for
the purpose of saving the life of the mother, be
punished with imprisonment of either description
for a term which may extend to ten years, or with
fine, or with both.

8. It is clear that in order to attract the offence under Section 315
IPC, the embryo must have the possibility of resulting in a child being
born alive. It is inherent in this that a lifeless foetus cannot be covered
by the said penal clause.

Crl. M.C. 1223/2015 and 947/2016 Page 8 of 17

9. Section 3 of the Medical Termination of Pregnancy Act, 1971 to
the extent relevant here reads thus :-

“3. When pregnancies may be terminated by
registered medical practitioners – (1).
Notwithstanding anything contained in the Indian
Penal Code, a registered medical practitioner shall
not be guilty of any offence under that Code or
under any other law for the time being in force, if
any pregnancy is terminated by him in accordance
with the provisions of this Act.

(2). Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered
medical practitioner –

(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.
xxx
(3). In determining whether the continuance of a
pregnancy would involve such risk of injury to the
health as is mentioned in sub-section (2), account
may be taken of the pregnant women’s actual or
reasonable forseeable environment.”

10. This court finds merit in the submissions of the petitioners. The
oral word of the complainant, cannot be accepted against the

Crl. M.C. 1223/2015 and 947/2016 Page 9 of 17
contemporariness medical record, that too after a gap of seven years,
without any medical opinion to the contrary being presented. There
can be no denial of the fact that the embryo carried by her on
18.10.2001 was lifeless. It had to be evacuated by the medical
procedure which was carried out by the third respondent in her own
best interest. Its continuation within her body would have led to grave
risk to her physical well-being. The procedure undergone with
appropriate formalities like consent of the husband who was
accompanying having been taken and apparently with her own tacit
consent cannot be brought in question in this manner. Consequently,
the summoning order of both the petitioners on the accusations for
offences under Section 315 read with Section 120 B IPC cannot be
upheld. The same is bound to be set aside. Ordered accordingly.

11. This court also finds substance in the submission of the first
accused (Yash Mehra) respecting the allegations qua the offences
under Section 328 IPC. The said penal clause reads thus :-

“328. Causing hurt by means of poison, etc. with
intent to commit an offence

Whoever administers to or causes to be taken by
any person any poison or any stupefying,
intoxicating or unwholesome drug, or other thing
with intent to cause hurt to such person, or with
intent to commit or to facilitate the commission
of an offence or knowing it to be likely that he
will thereby cause hurt, shall be punished with
imprisonment of either description for a term

Crl. M.C. 1223/2015 and 947/2016 Page 10 of 17
which may extend to ten years, and shall also be
liable to fine.”

12. There is no medical evidence brought on record to show any
substance in the nature of poison or stupefying, intoxicating or
unwholesome drug having been administered to the complainant. Her
mere oral word cannot suffice. She has referred to she having been
made to use medicines like placidox (diazepam) by the first accused at
the instance of the fourth accused. There is no prescription produced
in this regard. There is nothing indicated as to the medical condition
in which such medicinal prescription may have been recommended,
assuming that there was some such recommendation. In these
circumstances, there is no reliable or cogent evidence brought to the
court to support the complaint about such offence. [see Joseph Korian
Philip Jose vs. State of Kerala, (1994) 6 SCC 535].

13. Thus, the summoning order against the first accused (Yash
Mehra) to the extent thereby he has been called upon to appear and
face proceedings for the offences under Section 328 IPC also must be
set aside. Ordered accordingly.

14. There are allegations set out in the criminal complaint against
the first respondent which prima facie make out a case for offences
under Sections 498A, 420, 406, 506, 120B IPC. The argument of the
said petitioner is that the allegations are highly belated, false,
concocted and motivated. It was pointed out that as per the complaint,
the allegations pertain to the period ending sometime with September
2003. It is submitted that since the complaint was filed on 17.03.2008,

Crl. M.C. 1223/2015 and 947/2016 Page 11 of 17
the same is not only an after-thought, crafted under some legal advice,
but also time barred vis-à-vis the offences under Section 498A, 406
and 506 IPC, if seen from the perspective of Section 468 Cr. PC.

15. There is no doubt that offences punishable under Sections 406
and 498A IPC carry the maximum punishment of imprisonment for
three years with or without fine. Similarly, offence under Section 506
(Part-I) carries maximum punishment of imprisonment for two years
with or without fine. Ordinarily, the period of limitation for
cognizance of such offences to be taken in terms of Section 468(2) Cr.
PC is three years. But then, it has to be seen as to when the offences
are alleged to have been actually committed. Having regard to the
narration of facts by the complainant in her criminal complaint and
also in the pre-summoning evidence, all these offences are closely
connected to each other, the events, as brought out by the first accused
through the material submitted by himself, having continued beyond
September 2003. This would need some elaboration.

16. It was pointed out by the counsel for the first accused (Yash
Mehra) himself that the parties at one stage had agreed to resolve the
dispute amicably. They had jointly approached the matrimonial court
(presided over by Additional District Judge) by petitions for divorce
by mutual consent under Section 13-B of Hindu Marriage Act, 1956.
The petition for the first motion (HMA 604/02) came up before the
matrimonial court on 20.09.2002. On that date, joint statement of both
the first accused and the complainant were recorded, the same indeed
including a declaration that all claims and disputes regarding “dowry

Crl. M.C. 1223/2015 and 947/2016 Page 12 of 17
articles, streedhan, maintenance, past, present and future and also for
permanent alimony” had been “settled” and further that “no claim /
dispute” was left to be resolved. It was allowed, by order dated
20.09.2002, leaving the parties to approach the court again by the
second motion petition. It has also been brought out that the parties
again approached the matrimonial court by second motion petition
(HMA 383/2003) on which their joint statements, similar to the above-
mentioned statements at the first motion stage, were recorded on
21.04.2003. Admittedly, the complainant was signatory not only to
the two joint petitions but also to the joint statements recorded by the
matrimonial court on both occasions.

17. The matrimonial court, however, did not pass a decree of
divorce by mutual consent on 21.04.2003 when the joint statement as
above was recorded. The complainant, sometime in May 2003,
moved an application seeking to recall and withdraw her consent.
Noticeably, the reasons set out by her at that stage were that the first
accused (Yash Mehra) had agreed to pay to her an amount of
Rs.70,00,000/- towards permanent alimony and had also undertaken to
return her streedhan articles, he having failed to keep the said promise
in such regard. She also alleged that she had been subjected to threats
that if she were not to sign the petition for mutual consent divorce, the
husband would take steps to have her declared to be a person of
unsound mind. The matrimonial court, by order dated 22.12.2004,
permitted the complainant to withdraw her consent and, thus, declined

Crl. M.C. 1223/2015 and 947/2016 Page 13 of 17
to grant a decree of divorce by mutual consent and consequently
closed the proceedings.

18. It is admitted case of the petitioner (Yash Mehra) that the
above-said order was challenged by him in this court. But, his
application [CM(M) 2631/2005] was eventually dismissed by order
dated 02.02.2009.

19. It is the submission of the petitioner Yash Mehra that the
statements on oath of the complainant before the matrimonial court
affirming that all her claims including towards streedhan articles had
been amicably resolved and settled bind her and, therefore, she cannot
be permitted to bring a charge under Section 406 IPC, that too
belatedly.

20. In the considered view of this court, the accusations of the
complainant on the above score cannot be trashed with reference to
such statements before the matrimonial court for the reason her prayer
for divorce by mutual consent was permitted to be withdrawn, her
grievance having been duly noted, that her streedhan articles had not
been returned even though the husband (first accused) had agreed and
undertaken to do so. The narration of the above facts also brings out
that the issue of return of the streedhan articles had prima facie
remained unresolved till the petition of the first accused – CM (M)
2631/2005 – was disposed of by this court on 02.02.2009.

21. From the above noted sequence of events, it is clear that the
allegations of the complainant about the husband (first accused) not

Crl. M.C. 1223/2015 and 947/2016 Page 14 of 17
having discharged the trust vis-à-vis the streedhan articles cannot be
treated as time barred.

22. The petitioner (Yash Mehra) relies on Nitya Dharmananda
alias K. Lenin and Anr. vs. Gopal Sheelum Reddy, (2018) 2 SCC 93;
Madhavrao Jiwajirao Scindia and Ors. vs. Sambhajirao Chandrojirao
Angre and Ors., (1988) Crl. LJ 853; State of Karnataka vs. L.
Muniswamy and Ors.., (1977) 3 SCR 113; Dr. Jacob George vs. State
of Kerala, (1994) 3 SCC 430; and Rajiv Thapar and Ors. vs. Madan
Lal Kapoor, (2013) 3 SCC 330 to urge that this court quash the
proceedings in the criminal case in entirety because the allegations of
the complainant are false and motivated.

23. The submission of the said petitioner, at their best, give rise to
questions of facts which cannot be properly or effectively addressed or
adjudicated upon in the jurisdiction under Section 482 Cr. PC. In this
context, the following observations of the Supreme Court in Rajiv
Thapar (supra) need to be borne in mind :-

“29. The issue being examined in the instant case is the
jurisdiction of the High Court under Section 482 CrPC,
if it chooses to quash the initiation of the prosecution
against an accused at the stage of issuing process, or at
the stage of committal, or even at the stage of framing
of charges. These are all stages before the
commencement of the actual trial. The same
parameters would naturally be available for later
stages as well. The power vested in the High Court
under Section 482 CrPC, at the stages referred to
hereinabove, would have far-reaching consequences

Crl. M.C. 1223/2015 and 947/2016 Page 15 of 17
inasmuch as it would negate the
prosecution’s/complainant’s case without allowing the
prosecution/complainant to lead evidence. Such a
determination must always be rendered with caution,
care and circumspection. To invoke its inherent
jurisdiction under Section 482 CrPC the High Court
has to be fully satisfied that the material produced by
the accused is such that would lead to the conclusion
that his/their defence is based on sound, reasonable,
and indubitable facts; the material produced is such as
would rule out and displace the assertions contained in
the charges levelled against the accused; and the
material produced is such as would clearly reject and
overrule the veracity of the allegations contained in the
accusations levelled by the prosecution/complainant. It
should be sufficient to rule out, reject and discard the
accusations levelled by the prosecution/complainant,
without the necessity of recording any evidence. For
this the material relied upon by the defence should not
have been refuted, or alternatively, cannot be
justifiably refuted, being material of sterling and
impeccable quality. The material relied upon by the
accused should be such as would persuade a
reasonable person to dismiss and condemn the actual
basis of the accusations as false. In such a situation, the
judicial conscience of the High Court would persuade it
to exercise its power under Section 482 CrPC to quash
such criminal proceedings, for that would prevent
abuse of process of the court, and secure the ends of
justice.”

(emphasis supplied)

Crl. M.C. 1223/2015 and 947/2016 Page 16 of 17

24. There are no special reasons shown as to why there should be a
departure from the normal rule that factual inquiry must be held before
the concerned criminal court.

25. For the foregoing reasons, this court finds no good grounds to
interfere in the proceedings against the petitioner (Yash Mehra) on
charges other than for offences under Section 315 and 328 IPC. His
petition to that extent must be dismissed.

26. In the result, Crl. MC 1223/2015 is allowed. The proceedings
against the petitioner Tripat Chaudhary in the aforementioned criminal
case instituted by Arundhati Sapru Mehra are hereby quashed. The
other petition (Crl. M.C 947/16) of Yash Mehra is partly allowed. The
summoning order passed against him by the Metropolitan Magistrate
on the accusations for offences under Sections 315 and 328 IPC shall
stand set aside. The proceedings for other offences indicated in the
summoning order shall continue against him in accordance with law.

27. Both the petitions and the applications filed therewith are
disposed of in above terms.

R.K.GAUBA, J.

OCTOBER 26, 2018
yg

Crl. M.C. 1223/2015 and 947/2016 Page 17 of 17

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