The Gauhati High Court on 14.11.2022 allowed the bail plea of three doctors who were in custody for the alleged offence of fabrication of post mortem reports in the Dhula rape & murder case, after allegedly having accepted bribe. The High Court stated that “By virtue of Section 120B of the IPC, the present accused cannot be roped with the substantive offences ie, U/S 376 & 302 of the IPC, which were allegedly committed by accused Krishna Kamal Baruah, who has already been charge sheeted after investigation.” Case Title: Dr. Anupam Sarma and 2 Others v. State of Assam, Case No: Bail Application No. 3015 of 2022, Coram: Justice Robin Phukan.
FACTS OF THE CASE
The bail plea was moved by the accused-doctors, namely, Dr. Anupam Sarma, Dr. Arun Chandra Deka & Dr. Mrs. Ajanta Bordoloi for the grant of bail U/S 439 CrPC. The aforesaid accused persons had been in custody in connection with the rape & murder of a 13 year-old girl, under Sections 376, 302, 1208, 201 & 218 of the IPC read with section 10 of POCSO Act along with Sec 14 of the Child Labour (Prohibition & Regulation) Act 1986.
The applicants argued that they were in no way connected with the main offence under Sections 376 & 302 of IPC & that the Investigating Officer had forwarded them mainly for the commission of the alleged offences under sections 120B, 218 & 201 of IPC, which offences were bailable in nature.
It was also their claim that they were never served with the notice under sec 41(A) of the CrPC & that they had been cooperating with the investigating agency. They claimed that they were not experts in forensic medicine and as such there may have been some commission or omission on their part, which however did not disentitle them from bail.
The Public Prosecutor conceded to the fact that the 10 did not comply with the provision of Sec 41(A) of the CrPC
However, the State contended that reference to the statement of one of the co-accused suggested that the present accused persons received some amount of money for giving false post mortem reports.
The Court, while allowing the bail plea on grounds that the accused persons could not be roped in the charges for substantive offence of rape & murder, stated the following
“It also appears that though sec 409 IPC is added by the 10 at a later stage, yet, there appears to be inadequacy of materials in the case diary to rope the present accused with the said charge. And it also appears from the case diary as well as from the forwarding report of the 10 as well as from the bail objection petition dated 14.11.2022, filed by the 10 that if any offence at all is made out against the accused persons the same are U/S 120(B)/201/218 IPC which are bailable in nature.”
The single bench of Justice Robin Phukan added that
Admittedly also here in this case the 10 has not complied with the provision of sec 41(A) CrPC. And admittedly also no reason has been assigned for such non-compliance. The learned court below also failed to record its satisfaction on compliance or non-compliance of Section 41 & 41A CrPC and to follow the observation made by Hon’ble SC in the case of Satender Kumar Antil v. Central Bureau of Investigation & Anr, while the accused were produce before him. Be it noted here that in paragraph No.73 (C) in the judgment of Satender Kumar Antil (supra) Hon’ble SC has held that the court will have to satisfy themselves on the compliance of sec 41 & 41A of the Code Any non-compliance would entitle the accused for bail.
JUDGEMENT
On the basis of non-compliance of Sec 41A, along with balancing the right to personal liberty of the accused with that of the societal interest, the HC noted that further custodial detention of the accused was unwarranted.
Accordingly, the Court allowed the bail plea upon furnishing a bond of Rupees 1 lac with one surety of like amount, each, to the satisfaction of Special POCSO Court.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
JUDGEMENT REVIEWED BY YAKSHU JINDAL.
