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2021 DIGILAW 59 (MEG)

Grikjang Sunny R. Marak v. State of Meghalaya

2021-09-24

W.DIENGDOH

body2021
JUDGMENT 1. Matter is taken up via video conferencing. 2. This is an application u/s 439 Cr.PC filed by the Petitioner herein on behalf of Dr. Bolen S. R. Marak accused person in Baghmara Women PS Case No. 14(8)2021 u/s 376(2)(f)(n)/365/312/325/201 IPC r/w Section 5(j)(ii)(1)(n) POCSO Act, section 23 Pre-Conception and Natal Diagnostic Technique Prohibition of Sex Selection Act, 1994 and Section 5(3) of the Medical Termination of Pregnancy Act, 1971 with a prayer for grant of bail to the accused person. 3. The Petitioner has stated that his brother Dr. Bolen S.R. Marak who has recently joined as a Sr. Specialist in the District Maternal Child Health Hospital, Tura was arrested from his clinic on 13.08.2021 and was produced before the learned Spl. Judge (POCSO) Baghmara, South Garo Hills District on 14.08.2021 and thereafter, he was forwarded to judicial custody. However, he is presently hospitalized at the Baghmara Civil Hospital since 15.08.2021. 4. The factual aspect of this matter as could be understood from the instant application and the materials on record gathered from the case diary which was produced before this Court is that the accused is running a clinic known as ‘Life Care Clinic’ at Williamnagar, East Garo Hills which according to him was duly approved by the Government of Meghalaya with certificate of approval dated 18.09.2013 for the purpose of medical termination of pregnancy. 5. It is also stated that one girl along with her boyfriend came to the clinic and filled up the required register stating that her age is 19 years and that she wanted that a pregnancy test be carried out for which the accused doctor had conducted the same under the prescribed procedure by giving T.T (Tetanus Toxoid) injection and required gel was applied. Since there was no bed available in the clinic she was asked to wait for some time, however, the girl and her friend made a request to be shifted to Tura Civil Hospital to which the accused doctor consented but with a caution that since the girl was carrying a foetus of 14-15 weeks and the road being in a pathetic and horrible condition, she has to be careful while travelling. 6. 6. The accused doctor had then made enquiries about the patient from reliable sources and colleagues at Tura Civil Hospital and was informed that the foetus is healthy as well as the mother as per the ultrasound conducted at Tura Civil Hospital. 7. It is asserted that the accused doctor has not committed any offence and as such, has prayed for his release on bail with any conditions that this Court may impose. 8. Heard Mr S.P. Mahanta, Learned Sr. Counsel who has submitted that the accused doctor is in judicial custody for more than a month and being innocent of any offence alleged against him, he may be enlarged on bail on any conditions deemed proper. 9. It is further submitted that the fact of the matter is that the Clinic, that is, “Life Care Clinic” is duly approved for carrying out any termination of pregnancy as per procedure of law and the accused being a senior Gynecologist, a specific license for termination of pregnancy is not required. 10. Again, Mr. Mahanta has submitted that the alleged victim girl on her visit to the said clinic has entered her age in the Register as 19 years and that she has indicated her consent for termination of her pregnancy after which the accused doctor has conducted the prescribed procedure by giving T.T. (Tetanus Toxiod) injection and application of gel. However, the fact remains that the said alleged victim girl has refused to continue with the procedure and has made a request to be shifted to Tura Civil Hospital which was duly acknowledged by the accused doctor who has warned her to be cautious while travelling given her physical condition. Therefore, there was no termination of pregnancy of the said victim girl by the accused Doctor and as such, the offence alleged is not applicable. 11. Mr K.P. Bhattacharjee the Learned GA appearing on behalf of the State Respondent has submitted that from the records it is clear that when the victim girl had visited the clinic of the accused Doctor, the intention is for termination of pregnancy for which the necessary procedure was duly carried out, however due to certain reasons, the same could not be done on the same day for which she was advised to come the next day but she declined to do so. The fact that there is a clear intention for termination of pregnancy of the said victim girl would render the accused doctor liable for prosecution and as such, bail is opposed at this stage. 12. Having heard the learned counsel for the parties, what can be understood is that an FIR was filed by the complainant on 12.08.2021 to the effect that one person by the name of Shri Bokseng N. Sangma had sexually assaulted her minor sister over a period of time to the extent that her minor sister became pregnant. Thereafter, the said perpetrator forcefully took her minor daughter for pregnancy test to Williamnagar without the knowledge of the parents and relatives. In due course, a criminal case was registered at the Nongalbibra Police Station, South Garo Hills District and the said perpetrator was arrested. In course of investigation, the doctor who has allegedly conducted the pregnancy test at Williamnagar was also arrayed as an accused and was arrested in this connection. The offence alleged against the said doctor is u/s 23 Pre-Conception and Natal Diagnostic Technique (Prohibition of Sex Selection) Act, 1994 and Section 5(3) of The Medical Termination of Pregnancy Act, 1971. The said doctor on whose behalf this instant application was filed was forwarded to judicial custody but because of his health condition, he is under treatment at Baghmara Civil Hospital. 13. Again from the record it is seen that the alleged victim girl accompanied by the accused/perpetrator had voluntarily visited the ‘Life Care Clinic’ where the accused doctor on enquiry came to know that she had come for termination of her pregnancy. Accordingly, the accused Doctor had made preliminary preparation for the required procedure, however, as mentioned above the victim girl decided not to go ahead with the procedure and had accordingly went back and was admitted at Tura Civil Hospital. It may also be mentioned that while filling up the registration form at the said clinic, the victim girl had given her age as 19 years. This is corroborated by her statement u/s 164 Cr.PC, though she had stated that she was forced to record her age as 19 years. Be that as it may, the accused Doctor could not be faulted if the victim girl had identified herself as an adult. 14. This is corroborated by her statement u/s 164 Cr.PC, though she had stated that she was forced to record her age as 19 years. Be that as it may, the accused Doctor could not be faulted if the victim girl had identified herself as an adult. 14. For whatever reasons, what can be seen is the accused Doctor had not actually carried out the termination of pregnancy and the question of whether the same is illegal or not can only be ascertained at the time of trial. 15. This being the case this Court is convinced that the accused Doctor can be enlarged on bail at this stage. 16. This application is accordingly allowed and it is hereby directed that the accused doctor, Bolen S. R. Marak be released on bail on the following conditions: - (i) That he shall not abscond or tamper with the evidence or witnesses. (ii) That he shall co-operate with the I/O or the court concerned as and when required. (iii) That he shall not leave the jurisdiction of India without prior permission of the I/O of the court concerned. (iv) That he shall furnish a personal bond of Rs.50,000/- along with two sureties of like amount to the satisfaction of the I/O or the trial court as the case may be. 17. With the above, this petition is disposed of. No cost. 18. Registry is directed to return the case diary.