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2025 Supreme(Gau) 1697
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MANISH CHOUDHURY, J.
Dr. Mahmud Hussain, S/o Alhaj Keramat Ali – Appellant
Versus
The State Of Assam And Anr. – Respondents
Crl.Pet.999 of 2025
Decided on : 18-08-2025
For the Petitioner: MR F HAQUE, MR A ISLAM
For the Respondent: PP, ASSAM
Court affirmed that unauthorized medical procedures leading to death constitute criminal negligence under the MTP Act, necessitating credible evidence for prosecution.
Headnote:(A) Medical Termination of Pregnancy Act, 1971 - Sections 2(e), 3, and 4 - Criminal Procedure Code, 1973 - FIR regarding death of a woman after MTP by unauthorized personnel - The court highlighted that termination of pregnancy must adhere to legal standards, and unauthorized procedures constitute a violation of the MTP Act. - The standard for criminal negligence was discussed emphasizing the necessity of credible evidence for prosecution of medical professionals. - The Joint Director of Health Services lodged the FIR as a result of an Enquiry Report indicating negligence leading to death. (Paras 1, 12, 14, 16)
(B) The court clarified that issues pertaining to the qualifications of the medical practitioner involved and compliance with MTP regulations are evidentiary matters that cannot be resolved in a petition. (Paras 17)
Facts of the case:
The petitioner, a Senior Medical Officer (Ayurvedic), was accused in the death of Basaton Nessa following an illegal MTP conducted at his residence, following a complaint lodged by the Joint Director of Health Services based on an inquiry.
Findings of Court:
The court found insufficient basis to quash the FIR based on evidence presented and reaffirmed the requirement for compliance with the MTP Act.
Issues: Whether the petitioner performed the MTP legally and was authorized under the MTP Act.
Ratio Decidendi: The court ruled that medical practitioners must adhere to the MTP Act's provisions, and any unauthorized practice leading to complications can result in liability for negligence.
Result: Criminal petition dismissed.
| Table of Content |
|---|
| 1. factual basis for the alleged medical negligence. (Para 2 , 8 , 9) |
| 2. contentions regarding absence of complaint and negligence standards. (Para 5 , 6) |
| 3. guidelines on prosecuting medical professionals for negligence. (Para 12 , 13) |
| 4. regulations under the medical termination of pregnancy act. (Para 14 , 15) |
| 5. court's decision on dismissing the petition. (Para 18) |
JUDGMENT :
MANISH CHOUDHURY, J.
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 [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 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 [
