IMPORTANT POINT
The main legal point established is that the accused doctor's actions in not carrying out the termination of pregnancy were a key factor in the court's decision to grant bail.

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. 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