Tripura High Court
Mr. A.C. Bhowmik vs Mr. S. Debnath on 24 August, 2020
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
A.B. No.94 of 2020
For Petitioner (s) : Mr. A.C. Bhowmik, Sr. Adv.
Mr. D. Sarkar, Adv.
For Respondent (s) : Mr. S. Debnath, Addl. PP
HON'BLE MR. JUSTICE S. TALAPATRA Order 24.08.2020 Heard Mr. A.C. Bhowmik, learned senior counsel assisted by Mr. D. Sarkar, learned counsel appearing for the petitioner as well as Mr. S. Debnath, learned Addl. PP. appearing for the State.
This is a petition under Section 438 of the Cr.P.C. for pre-arrest bail of the petitioner namely, Dr. Bishnu Chandra Dey, hereinafter referred to as the petitioner.
Dr. T.K. Debnath, the District Magistrate & Collector, Gomati Tripura, Udaipur informed the Officer-in-Charge R.K. Pur Police Station, Udaipur that the petitioner has been carrying out illegal termination of the pregnancy in his chamber which is not approved in terms of Section 4 (b) of the Medical Termination of Pregnancy Act,1971 by the Government. On his visit to his chamber for purpose of inspection, he found the women were waiting for such termination. It has been also stated in the information dated 06.08.2020 that at his request Dr. Nistha Das was also present during his inspection of the said chamber of the petitioner. One Urmila Debnath, resident of Bishalgarh was found therewith history of 4 months' Amenorrhea. Page 2 of 6 Dr. Nishtha Das took all prescriptions and reports of Urmila Debnath and informed the informant that Urmila Debnath was carrying 4 months' pregnancy and she had come for pregnancy termination. Dr. Das had examined other patients who had admitted that they had come to that chamber for termination of pregnancy. When the informant asked for the order of approval or license from the Government for his chamber for purpose of termination of the pregnancy, he had admitted in writing that he did not have any license or approval from the Government.
On the basis of the said information and on due inquiry made by the committee formed by the Chief Medical Officer, Gomati Tripura, R.K. Pur PS Case No.2020/RKP/113 under Section 315 of the IPC and Section 4 of the Medical Termination of Pregnancy Act was registered and taken up for investigation.
It appears that having aware of the said case, the petitioner has approached this court for the pre-arrest bail on the ground that the allegations as made were totally concocted inasmuch as he did not carry on any termination of pregnancy in his chamber. The petitioner is a registered medical practitioner as he is registered with Orissa Council of Medical Registration vide the registration No.8754 dated 28.12.1983. The petitioner had retired from Tripura Health Service as the Grade-III Officer on 30.11.2017.
Mr. Bhowmik, learned senior counsel appearing for the petitioner has submitted that the petitioner is a reputed medical practitioner and he has all Page 3 of 6 the qualifications to carry on the profession in medicine and surgery etc. Mr. Bhowmik, learned senior counsel has drawn attention of this court to a certificate under No.F.2(238)-IGM/Estt.(G)/90 dated 24.06.1991 [Annexure-7 to the petition]. From the said certificate it appears that the Medical Superintendent, IGM Hospital, Agartala has certified to the effect that the petitioner had worked as the Jr. Medical Officer [Grade-V] of Tripura Health Service in the department of obstetrics and gynecology from 05.05.1989 to 09.05.1991. Mr. Bhowmik, learned senior counsel has again submitted that the District Magistrate & Collector does not have any authority to inspect the chamber of the petitioner. His inspection being entirely unlawful cannot be the basis of any prosecution. That apart, Mr. Bhowmik, learned senior counsel has submitted that there is no evidence that the petitioner was carrying on illegal termination of pregnancy in the said chamber. To protect the reputation of the petitioner, Mr. Bhowmik, learned senior counsel has urged this court to extend the benefit of pre-arrest bail under Section 438 of the Cr.P.C. with any condition in favour of the petitioner.
Mr. Debnath, learned Addl. P.P. has produced the case diary. He has categorically submitted that the chamber/clinic of the petitioner was not approved under Section 4(b) of the Medical Termination of the Pregnancy Act, 1971 and as such, carrying out termination of pregnancy in that chamber was grossly illegal and punishable under the Indian Penal Code in terms of Section 5(2) of the said Act. Having drawn the notice of this court to the statement so far collected by the investigating agency and the records of Page 4 of 6 inquiry as had been carried out at the behest of the Chief Medical Officer of the District, Mr. Debnath, learned Addl. PP has submitted that there cannot be any amount of doubt that the petitioner had been terminating the pregnancy in complete disregard to Section 4 of Medical Termination of Pregnancy Act, 1971. Mr. Debnath, learned Addl. PP has particularly referred to the statements of the medical officer who accompanied the informant to the chamber of the petitioner. The statement of the attendant of the petitioner and also the statement of one woman who has stated to the police that her pregnancy was terminated by the petitioner on 02.08.2020 in his chamber beside the building of UBI at Udaipur town. She has also stated that on that day, 4 [four] other women came for termination of their pregnancy and they were waiting for their turn. At the time of termination of the pregnancy of one Bengali woman, the police entered into the chamber. One woman Doctor came with them asked them about their illness. Mr. Debnath, learned Addl. PP has submitted that the investigation committee [the inquiry committee] having afforded opportunity to the petitioner filed their report to the Chief Medical Officer observing that the infrastructure, equipment and medicines for minor gynecological procedures were found in the chamber, but neither the petitioner nor the patients, Dr. Nistha Das talked to did appear before the inquiry committee. Mr. Debnatht, learned Addl. PP has submitted that the materials so far collected are adequate enough to substantiate the allegation that without approval of the government the petitioner was running an unauthorized clinic for illegal termination of Page 5 of 6 pregnancy and he had terminated pregnancies of several women. Thus, he is liable to be punished under Section 315 of the IPC read with Section 4 of the Medical Termination of Pregnancy Act, 1971 after due trial. The investigation is in its fledging state. Even the inquiry committee failed to obtain the attendance of the petitioner. It shows absence of bona fide.
Mr. Bhowmik, learned senior counsel has referred to a decision of the apex court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, reported in AIR 2011 SC 312 where the apex court had occasion to observe in respect of the scope of Section 438 of the Cr.P.C. as follows:
...When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.
Mr. Bhowmik, learned senior counsel has submitted that the presumption of innocence be made available to the petitioner having regard to his deep social root as the medical practitioner.
We cannot be oblivious that the very purpose of Section 438 of the Cr.P.C. is to extend pre-arrest bail for protecting the innocent from the harassment by police. In Siddharam Satlingappa Mhetre (supra), the apex court has further observed that:
"It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided."Page 6 of 6
Having perused the case diary as produced before this court by Mr. Debnath, learned Addl. PP appearing for the State and considered the gravity of the materials so far collected in the investigation, this court is of the view that this is not a case where this court should exercise its discretion to enlarge the petitioner on pre-arrest bail. The petitioner, may however, surrender before the court of the Magistrate and obtain regular bail therefrom inasmuch as the conduct of the petitioner as reflected in the report of the Chief Medical Officer, Gomati District does not instill confidence in respect of his cooperation to the investigation. Moreover, the nature of the offence is heinous as a life is aborted by defying the due process as laid down in the Medical Termination of Pregnancy Act, 1971. Hence, this petition stands rejected.
The case diary as produced be returned forthwith.
JUDGE Sujay