Page No.# 1/7 GAHC010004312025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/107/2025 GOLAP CHANDRA DUTTA S/O LATE GANGADHAR DUTTA, PERMANENT RESIDENT OF SHIVANAGAR NEAR SHIV MANDIR, AMOLAPATTY, P.S. NAGAON SADAR, DIST. NAGAON, ASSAM, PIN-782003 VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:RESIM ALI SON OF MD. SIRAJ ALI R/O BORIGAON UNDER MORIGAON P.S. IN THE DISTRICT- NAGAON ASSAM PIN- 78200 Advocate for the Petitioner : MR. A K BHATTACHARYYA, MR D K BHATTACHARYYA,MS R B DEB Advocate for the Respondent : PP, ASSAM, MS. D L DEKA(R-2),MS. I DAS(R-2),MR. D UPAMANYA (R-2) Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 14.02.2025 1. Heard Mr. A. K. Bhattacharyya, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor for the State respondent as well as Mr. D. Upmanyu, the learned counsel appearing for the respondent No.2. 2. This application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has been filed by the petitioner, namely, Dr. Golap Chandra Dutta, who has been apprehending his arrest in connection with Nagaon P.S. Case No.1141/2024 corresponding to G. R. No. 3963/2024 under Section 61(2)/65/90/105/106/238 of the BNS, read with Section 6/21 of the POCSO Act, 2012, for grant of pre-arrest bail. 3. The gist of the accusation in this case is that on 02.12.2024 one Resim Ali, the brother-in-law of the deceased had lodged an FIR naming four accused, therein including the petitioner, inter-alia, alleging that the accused No.1 named in the FIR had love affairs with his deceased sister-in-law. On 30.11.2024, the accused No.1, named in the FIR, took the sister-in-law of the first informant to the house of accused No.2, who is a nurse in Metro Hospital, Nagaon. 4. Later on, on the same day, i.e., on 01.12.2024, at around 11.00 pm, the informant came to know through the villagers that his sister-in-law has died in Gohain Nursing Home, Nagaon. It also came to the knowledge of the informant that his sister-in-law was pregnant by five months and the accused No.2, who is a nurse, has contacted the present petitioner and who took his sister-in-law to his clinic, namely, Pragati Maternity Clinic and conducted the Page No.# 3/7 abortion, during which the condition of the sister-in-law of the first informant deteriorated and she was taken to Gohain Nursing Home at Nagaon. 5. The learned senior counsel for the petitioner has submitted that the petitioner has retired as Additional Chief Medical & Health Officer in the year 2018, and he is now having his private practice at Nagaon. It is further submitted by the learned senior counsel that the allegations levelled in the FIR against the present petitioner are not true and he has been falsely implicated therein. 6. It is submitted by the learned senior counsel for the petitioner that on 01.12.2024, the accused No.1 with his wife and one Taslima Begum, who is a nurse by profession, brought the sister-in-law of the first informant to his clinic and they introduced themselves as the relative of the victim. 7. It is further submitted by the learned senior counsel that after examining the patient, she was found to be profusely bleeding and the petitioner directed the husband of the patient, i.e., the accused No. 1, to immediately shift the victim to a nursing home and she was taken to Gohain Nursing Home. 8. The learned senior counsel for the petitioner has submitted that the petitioner did his professional duty when the patient was brought before him in a critical condition. The learned senior counsel for the petitioner has also submitted that as regards the allegation under POCSO Act, 2012 is concerned, no accusation has been made against the present petitioner in the FIR. He also submits that there was no criminal negligence on the part of the petitioner in rendering proper medical advice for the victim girl as required, considering her condition. 9. The learned senior counsel for the petitioner has further submitted that Page No.# 4/7 in the cases where accusation of criminal negligence is made against doctors, the Apex Court has issued certain guidelines in the case of “Martin F. D’Souza vs. Mohd. Ishfaq”, reported in “(2009) 3 SCC 1”, which were not followed in this case before initiating criminal prosecution against the present petitioner. 10. The learned senior counsel for the petitioner submits that the petitioner is ready and willing to cooperate in the investigation. Therefore, he may be allowed to go on anticipatory bail. 11. On the other hand, Mr. R. J. Baruah, the learned Additional Public Prosecutor has vehemently opposed the grant of anticipatory bail to the present petitioner on the grounds that there are incriminating materials against the petitioner in the case diary as some of the witnesses have implicated the present petitioner of having conducted an illegal abortion on the deceased before her death. 12. He also submits that the post-mortem report of the deceased is not conclusive, as the FSL Report regarding examination of the viscera of the deceased is still awaited. 13. On the other hand, Mr. D. Upamanyu, the learned counsel for the respondent has submitted that the respondent filed this complaint after coming to know about the death of the victim girl. However, he submits that he has no objection if the anticipatory bail is granted to the present petitioner. 14. I have considered the submissions made by the learned counsel for all the parties, as well as gone through the case diary which is available before the Court. 15. Apparently, on perusal of the materials available on record, no case under the provisions of POCSO Act, 2012 is made out against the present petitioner. Further, as regards the allegation of criminal negligence and the Page No.# 5/7 offence under Section 90 of the BNS are concerned. It appears that the guidelines of the Apex Court in the case of Martin F. D’Souza Vs. Mohd. Ishfaq (Supra), were not followed in this case. The guidelines with regard to the protection to doctors in criminal cases as laid down by the Apex Court in the aforesaid case are reproduced herein below. “47. In para 52 of Jacob Mathew case the Supreme Court realising that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection: (i) A private complaint should 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. (ii) 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 opinion applying the Bolam test. (iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been levelled 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 Page No.# 6/7 against would not make himself available to face the prosecution unless arrested, the arrest should be withheld.” 16. On perusal of the case diary, it also appears that the investigation has fairly progressed and the Investigating Officer has collected relevant medical documents regarding the death of the deceased except the FSL report. 17. In this case, no offence is made out under POCSO Act, 2012 against the present petitioner and apparently the guidelines of the Apex Court in the case of Martin F. D’Souza Vs. Mohd. Ishfaq (Supra) has not been followed. Now any notice under Section 35 of the BNSS has been issued to the petitioner, hence, this anticipatory bail application is disposed of with a direction to the petitioner to appear before the Investigating Officer of Nagaon P.S. Case No.1141/2024 within a period of 7 days from the date of this order and to cooperate in the investigation. 18. If he does so within the stipulated period of time, in the event of his arrest in connection with the Nagaon P.S. Case No.1141/2024, the petitioner, namely, Dr. Golap Chandra Dutta, shall be allowed to go on bail of Rs. 30,000/- (Rupees Thirty thousand only), with one surety of like amount to the satisfaction of the arresting authority subject to the following conditions: i. That the petitioner shall co-operate in the investigation. ii. That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts of the case before the Investigating Officer. Page No.# 7/7 19. This anticipatory bail application is accordingly disposed of. 20. Send back the case diary. JUDGE Comparing Assistant