Gauhati High Court
Page No.# 1/8 vs The State Of Assam And Anr on 18 August, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/8
GAHC010180232025
2025:GAU-AS:11849
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./999/2025
DR. MAHMUD HUSSAIN
S/O ALHAJ KERAMAT ALI
VILL- K RISHNAI CHARIALI
P.S. KRISHNAI
DIST. GOALPARA, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:RAFIKUL ISLAM
SON OF HAREJ UDDIN
VILL- SOUTH DARIRPARA
P.O. BAGUAN
P.S. BAGUAN
DIST. GOALPARA
ASSA
Advocate for the Petitioner : MR F HAQUE, MR A ISLAM
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/8
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT
Date : 18-08-2025 Heard Mr. F. Haque, learned counsel for the petitioner and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent no. 1, State of Assam.
2. A First Information Report [FIR] was lodged before the Officer In-Charge, Sadar Police Station Goalpara on 08.08.2024 by the Joint Director of Health Services, Goalpara reporting about death of one Basaton Nessa, wife of Rofiqul Islam, resident of South Darirpara, P.O. and P.S. - Baguan, Goalpara. In the FIR, it was reported that Basaton Nessa died at 03-30 p.m. on 16.07.2024 at FAA Medical College & Hospital, Barpeta as a consequence of Medical Termination of Pregnancy [MTP] by unauthorised personnel on 15.07.2024 at his residence.
3. On receipt of the FIR, the Officer In-Charge, Sadar Police Station, Goalpara registered General Diary Entry No. 15 dated 17.08.2024. Finding that the place of occurrence was Baida SHC under Lakhipur Police Station, the Officer In-Charge, Sadar Police Station, Goalpara treated the FIR as Zero FIR and forwarded the same to the Officer In-Charge, Lakhipur Police Station. On receipt of the FIR, the Officer In-Charge, Lakhipur Police Station registered the same as Lakhipur Police Station Case no. 221/2024 under Sections 106[1]/125/90 of the Bharatiya Nyaya Sanhita.
4. The petitioner has averred that he is serving as a Medical Officer Page No.# 3/8 [Ayurvedic] under the Block PHC, Gojarikandi and his place of work is at Kakripara S/D.
5. One of the contentions raised is that there was no written and verbal complaint from the victim's family or relatives and the information was based on the sole statement of an ASHA worker. It is further contended that the FIR was lodged by the Joint Director of Health Services, Goalpara after submission of an Enquiry Report dated 06.08.2024 by the Sub-Divisional Medical & Health Officer [SDMHO], O/o Joint Director of Health Services, Goalpara.
6. It has been contended that a medical professional may be held liable for negligence on one of the two findings - [i] either he was not possessed of the requisite skill which he professed to have possessed,or [ii] he did not exercise, with reasonable competence in the given case, the skill which he did possess.The standard to be applied for judging is whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. The learned counsel for the petitioner has placed reliance in the decision of the Hon'ble Supreme Court in Jacob Mathew vs. the State of Punjab and another, reported in [2005] 6 SCC 1.
7. A copy of an Enquiry Report submitted by the Sub-Divisional Medical & Health Officer [SDMHO], O/o Joint Director of Health Services, Goalpara is found annexed to the criminal petition as Annexure-2.
8. From the contents of the Enquiry Report, it can be noticed that the alleged victim named Basaton Nessa [since deceased], wife of Rofiqul Islam Page No.# 4/8 expired on 16.07.2024 at FAA Medical College & Hospital, Barpeta.
9. The alleged victim, Basaton Nessa had two children. On 15.07.2024, Basaton Nessa asked her husband Rafiqul Islam to take her to Baida SHC for health checkup. As per the Hospital Admission Register Record, their registration ID was 599. During the checkup, it was confirmed by the hospital that the deceased was pregnant. The deceased, Basaton Nessa attended Baida SHC with her husband for Medical Termination of Pregnancy [MTP] on 15.07.2024. As per the statement of the ASHA worker, Hafiza Khatun, MTP was conducted on the residence of the Doctor concerned namely, Dr. Mehmud Hussain, Senior Medical Officer [Ayurvedic] assisted by a cleaner namely, Renuka Rabha. On 15.07.2024 itself, the deceased had to be taken to Seven Sister Hospital at Goalpara at 10-30 p.m. and the doctors at Seven Sister Hospital, Goalpara noted in the history sheet the conditions of the patient as 'P3L3 with pain abdomen and bleeding PV 1 day, H/O D & E outside on 15.07.2024' and 'P3L3 with ruptured entopic perforation' as provisional diagnosis. USG screening was noted as Echogenic Ascites seen; impression? Ectopic?Perforation. The deceased was thereafter, referred at around 12-30 a.m. on 16.07.2024 after stabilization. The deceased was later on shifted to FAA Medical College & Hospital, Barpeta on 16.07.2024 itself and she was declared dead by the Medical College authority with note as 'Immediate cause of death ? Septic Shock' and morbid condition as 'P1 L2 A1 with pain abdomen due to or as a consequence by H/O D&E done by quack in shock'. Along with the Enquiry Report, the following were enclosed as enclosures :- [i] MDR Summary Report prepared by concerned CHO along with Medical Certificate of death from FAA Medical College and Hospital, Barpeta; [ii] In Patient Medical Record File, Seven Page No.# 5/8 Sisters Hospital and Research Center, Goalpara; [iii] Statement given by Dr. Mehmud Hussain, SMO [Ayurvedic], Baida SHC; and [iv] Photocopy of Admission Register of Baida SHC.
10. Any person can report regarding commission of an offence before the Police authority and there is no bar under Section 154, CrPC or under Section 173, BNSS.
11. Section 106, BNS has defined an offence of causing death by negligence. Section 125, BNS has prescribed for an offence for the crime of an act endangering life or personal safety of others. Section 19 has provided for the offence of death caused by an act likely to cause harm, but done without criminal intent and to prevent other harm.
12. In Jacob Mathew [supra], the Hon'ble Supreme Court has examined the matter of indiscriminate prosecution of medical professionals for criminal negligence. It has been observed that a medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. It is for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or preceded criminally. The subject of negligence in the context of the medical profession calls for a treatment with a difference. It has been held that to impose criminal liability of causing death by negligence for the offence under Section 304A, Indian Penal Code [IPC], which is pari materia to Section 106 of the BNS, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that Page No.# 6/8 act must be the proximate and efficient cause without the intervention of another's negligence.
13. As guidelines, it has been observed that a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused- doctor. The Investigating Officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion. A doctor accused of rashness or negligence, may not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the Investigating Officer feels satisfied that the doctor proceeded against would not make himself available to fact the prosecution unless arrested, the arrest may be withheld.
14. The termination of pregnancies is governed and regulated by the Medical Termination of Pregnancy [MTP] Act, 1971. The MTP Act is the statute which regulates the manner in which the pregnancies may be terminated. The MTP Act has been brought in after having found that termination of pregnancies carried out in an illegal manner was one of the major factors for the untimely death of pregnant mothers. As per Section 2[e] of the MTP Act, 'termination of pregnancy' means a procedure to terminate a pregnancy by using medical or surgical methods. Section 3 of the MTP Act has prescribed that notwithstanding Page No.# 7/8 anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under the Indian Penal 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 the MTP Act. The definition of 'registered medical practitioner' has been defined in Section 2[d] of the MTP Act.
15. Section 4 of the MTP Act has mentioned the place where pregnancy can be terminated. As per Section 4, no termination of pregnancy shall be made in accordance with this Act at any place other than [a] a hospital established or maintained by Government, or [b] a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee.
16. In the case in hand, it is the Joint Director of Health Services, Goalpara who had lodged the FIR. The FIR was lodged after directing an enquiry through the Sub-Divisional Medical & Health Officer [SDM&HO]. The SDM&HO had submitted an Enquiry Report on 06.08.2024 along with supporting documents, as noted above. As per the Enquiry Report, there is a statement given by the petitioner himself. It transpires that the SDM&HO has reported that the immediate cause of death was septic shock and the death was as a consequence of H/O D&E done by quack in shock. The petitioner though is a Senior Medical Officer [Ayurvedic], has not been able to place on record that as a Ayurvedic Doctor, he is authorized to undertake a procedure to terminate a pregnancy by using medical or surgical methods with the help of a cleaner. The Enquiry Report has further indicated that the MTP was conducted by the Page No.# 8/8 petitioner in his residence which act is prima facie in violation of the statutory provision contained in Section 4 of the MTP Act.
17. The issue whether the petitioner can be termed as a registered medical practitioner under Section 2[d] of the MTP Act having the experience and training as set forth in Rule 4 of the Medical Termination of Pregnancy Rules, 2003 for carrying out a procedure to terminate a pregnancy by using medical or surgical methods is an issue which is a matter of evidence and such an issue cannot be gone into in a criminal petition under Section 528, BNSS. The other relevant issue whether the procedure to terminate the pregnancy of the deceased woman by using medical or surgical methods by the petitioner at a place permitted by law under Section 4 of the MTP Act or not is also a matter of evidence and similarly, such issue cannot be adjudicated in a criminal petition under Section 528, BNSS.
18. Having regard to the findings of the Enquiry Report dated 06.08.2024 and the disputed issues involved as discussed hereinabove, this Court does not find any reason, much less good and sufficient reason, to entertain the instant criminal petition seeking quashing of the FIR registered as Lakhipur Police Station Case no. 221/2024. Consequently, the criminal petition is dismissed.
JUDGE Comparing Assistant