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Judgment
Amar Saran, J.—This Division Bench writ petition seeking quashing of the FIR and for staying the petitioner''s arrest has come up before me
sitting singly as vacation Judge under Chapter V, Rule 10(1) of the High Court Rules.
Heard learned Counsel for the petitioner, and the learned A.G.A.
Issue notice to respondent No. 5.
The facts of the present case are that when her husband Kallu was away in village Garhna, in Panna, M.P. to do the work of a labourer, Smt.
Sunita, a Harijan woman, and mother of four children appears to have been induced by the Basic Health Worker, Suman Rai, coaccused,
apparently on a promised incentive of Rs. 150, to get herself sterilized at the health camp at the State Alllopathic Dispensary, Atarra, Banda. Smt.
Sunita was operated on 12304 by the petitioner, who was the incharge, CHC, Atarra. Only the consent of Smt. Sunita appears to have been
taken for this operation, as her husband was absent. Also no laboratory tests appear to have been done before the operation.
It appears that Sunita''s condition deteriorated on the operation table itself. After ligation of both the tubes Smt. Sunita appeared to have started
gasping, her pulse became feeble, skin cold and her respiration slowed down. The petitioner rushed her to the District hospital at Banda on an
ambulance with oxygen after preliminary medication. Written information was also given to the C.M.O. Banda. However the Emergency Officer at
the District hospital, Banda declared her dead on arrival there. The Inspector incharge, Kotwali, Banda was informed and postmortem was
conducted by 3 doctors on Sunita''s deadbody on 13204.
According to the postmortem report, there was no fault with the operation procedures. As the cause of death could not be ascertained, the
viscera was preserved. The mandatory investigation by the Medical Board consisting of the CMO, Banda, an Anesthetist, Gynaecologist, and
Surgeon, opined that cause of death could not be ascertained and that no action was proposed, and no defaulter was indicated. However, this
report also noted a diagnosis of vaso vagal shock.
Initially after the operation the respondent No. 5 appears to have been silenced by the Rs. 10,000 incentive which is the price of life that is paid
after an unsuccessful operation and which was paid to him on 1322004. However, either on his own, or due to motivation from someone the
respondent No. 5 appears to have moved an application under Section 156(3) Cr. P.C. against the health worker and the petitioner on 17404,
before the J.M. 1st, Atarra, after an earlier 156(3) Cr. P.C. application dated 273 04 was rejected by the CJM, Banda for want of jurisdiction.
The J.M. 1, Atarra called for a preliminary report from the SHO P.S. Atarra, who submitted a report on 19404, favouring the doctor and the
Basic Health Worker. The report concluded that whilst the operation had been performed as alleged, however, the deceased had voluntarily opted
for the operation without any illegal inducement from the Health Worker. The petitioner had also not been negligent in the conduct of the operation
and that the team of 3 doctors who conducted the postmortem had exonerated him. In spite of this report the Magistrate was inclined to direct
registration and investigation of a case under Section 304A IPC against the petitioner and the health worker by the police by his order dated 1604.
This has resulted in the present writ petition being filed by the doctor for averting his possible arrest.
At the moment as credible evidence is wanting for showing the complicity of the petitioner in any offence, I have no option but to stay the arrest
of the petitioner in Case Crime No. C5/2004 under Section 304A IPC, P.S. Kotwali, Atarra until further orders or until credible evidence is
available or chargesheet is submitted, whichever is earlier.
However, as we find that an apparently healthy woman of 28 years has died after an operation, and three doctors who conducted the
postmortem have found no fault with the operation procedures, and no cause of death, either natural or unnatural, and they have simply sent the
viscera for chemical examination, and the Medical Board headed by the C.M.O. has also given a clean chit to the petitioner, it becomes incumbent
to look for the circumstances which caused the death of Smt. Sunita, as normally a young healthy woman is not expected to die without cause. The
S.P. Banda, respondent No. 2 is directed to obtain the viscera report within 3 weeks. In case the viscera report is also negative, the respondent
No. 2 is directed to get an investigation made under his supervision by a senior officer for ascertaining the true causes for the death of Sunita, and
whether all the needed medical tests were conducted prior to the operation, whether the deceased was properly motivated, and whether the
precautions needed for the operation and proper procedures were followed. He may seek the opinion of qualified gynaecologists and others in this
regard. He should also probe whether a clean chit has been given to the petitioner by the 3 doctors who conducted the postmortem examination
and by the medical Board in a bona fide manner, or they have acted with improper motives and sought to screen the petitioner or any one else who
may be responsible for the death of Smt. Sunita. In case any material is available suggestive of a conspiracy on part of the doctors who conducted
the postmortem or any other authority to screen the petitioner or anyone else from punishment, if there are reasons to suspect any negligence in the
procedures for sterilization of Smt. Sunita, the respondent No. 2, S.P. Banda will take appropriate action against the petitioner and the offending
doctors or other authorities. The respondent No. 2 is directed to submit a report to this Court on the action taken in compliance with this order
within a period of two months.
Before parting I must point out that this case, in which a woman has died after undergoing sterilization under the Government''s programme for
mass sterilization, illustrates the dangers of forced or induced sterilization of a poor person without taking the needed precautions, health checks,
and without considering whether the person was eligible for sterilization under Government criteria, or informing the patient of the risks of
undergoing the sterilization operation.
The problem appears to have arisen because for promoting the needed and laudable objective of family planning, the Government and its
functionaries have concentrated on a strategy of promoting sterilizations alone, to the exclusion of any other methods of birth control. This is not to
say that this Court is undermining the importance of programmes for sterilization of persons with large families. Family planning is indeed the
absolute need of the hour. But hurried sterilizations, without proper precautions, in defiance of criteria and guide lines set out by Government itself,
without properly motivating and acquainting people of the problems and risks involved, and advising them on the appropriate family planning
technique for persons in varying situations, is proving counterproductive.
Presently family planning staff, doctors etc. are given awards on the basis of the numbers of sterilizations done, and are taken to task for not
meeting sterilization targets, whilst other techniques for birth control are consistently devalued. For meeting these targets poor persons, who may
not be healthy or who would otherwise be ineligible under the official criteria fixed are offered petty incentives, and forced or motivated by hook or
by crook to undergo sterilization.
The present petitioner, who is a doctor, actually seeks credit for being an expert in sterilizations and for having done 50,000 operations, and
for having met 75% of Banda district''s annual target single handedly. Even on the fateful day when Smt. Sunita died 20 persons had been
sterilized. This per se creates a situation of risk, and one is left wondering whether proper attention could be given to individual cases, when
tubectomies are conducted at such a large scale. Where deaths as in the present case or other problems arise, there is a setback and grave
negative publicity for the family planning programme. The backlash provoked by Sanjay Gandhi''s programme of forced sterilizations during the
emergency are still stained in public memory.
List this petition on 23804 for further orders.
A copy of this order may be given free of cost to the learned AGA within a week.