Safiya Malik

The High Court of Delhi, Single Bench of  Justice Girish Kathpalia, issued an anticipatory bail order on March 25, 2025, granting relief to a female medical practitioner in connection with a criminal case involving serious allegations under the POCSO Act and relevant sections of the Bharatiya Nyaya Sanhita (BNS). The court directed that the petitioner be released on bail in the event of her arrest, subject to specific conditions, after observing the absence of conclusive evidence linking her directly to the alleged offence.

The petitioner, a practicing lady doctor operating a hospital, sought anticipatory bail in FIR No. 0392/2024 registered at PS Neb Sarai. The offences cited included Sections 123, 64, 87, 351(2), and 3(5) of the BNS and Section 6 of the POCSO Act. The case was initially heard on November 5, 2024, by a predecessor bench, which granted interim protection from arrest conditional upon the petitioner joining the investigation. The matter was adjourned multiple times due to ongoing investigation, with the interim relief extended accordingly.

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The core allegation against the petitioner did not concern direct involvement in the alleged rape. Instead, it pertained to the events following the prosecutrix's realization of pregnancy. The prosecution alleged that one of the accused rapists' sisters took the prosecutrix to the petitioner's hospital, where an ultrasound was conducted to confirm the pregnancy, and abortion pills were allegedly administered.

The petitioner denied any such incident, asserting that the prosecutrix had never visited her hospital nor undergone any form of examination or treatment there. The Investigating Officer conducted searches in the hospital but found no documentation of the prosecutrix having been treated or examined. The hard disk of the ultrasound machine was seized and sent to the Forensic Science Laboratory (FSL), but the results were pending as of the hearing date.

Learned counsel for the petitioner submitted that, based on the facts and materials presently available, the only possible offence attributable to the petitioner might be under Section 21 of the POCSO Act, which is bailable. The counsel argued, "as on date there is no evidence at all to connect the petitioner with the alleged offence."

The Additional Public Prosecutor (APP) contended that photographic evidence and Call Detail Records (CDRs) established the presence of the prosecutrix at the petitioner's hospital. Photographs retrieved from a co-accused's mobile phone allegedly showed the prosecutrix lying on a bed attended to by a nurse. The CDRs also indicated communication between the petitioner and a relative of the accused. The APP submitted that a supplementary chargesheet would be filed against the petitioner depending on the FSL report.

The complainant's counsel stated that the prosecution's arguments, submitting that there were clear allegations by the prosecutrix implicating the petitioner in administering abortion pills and conducting the abortion.

However, the court recorded that the complaint was filed by the prosecutrix one and a half years after the alleged incident. No documentary evidence was found during searches, and the photograph did not clearly establish the hospital's identity. The court observed, "Only from the room depicted in the photograph, it cannot be ascertained that the said room is in the hospital being run by the petitioner doctor."

The court further stated that, "In the FIR, the prosecutrix categorically alleged that the abortion pills were administered by accused Sunil," and noted that the petitioner was not charge-sheeted for abortion in the main chargesheet.

Regarding the CDRs, the court observed that the prosecutrix resided in the vicinity of the hospital, and only three phone calls were traced between the petitioner and a relative of the accused. The court recorded, "beyond that, there is nothing to suggest complicity of the present petitioner in any offence."

The hard disk of the ultrasound machine was seized and sent to FSL during the pendency of the bail application, despite the FIR being registered on September 18, 2024. The court noted, "No explanation at all has been advanced for this delay in this vital step of investigation."

Justice Girish Kathpalia, after considering the evidence, recorded: "presently there is no cogent evidence to show that the present petitioner conducted any ultrasound or abortion on the prosecutrix. That being so, I find no reason to curtail the liberty of the petitioner, who is a lady doctor."

The court further stated: "The photographs referred to by learned prosecutor depict only the prosecutrix lying on bed in a room being attended to by a lady in uniform of nurse. Face of the said lady is not visible in the photograph as she is wearing a protective gear."

It was also observed that, "the petitioner has throughout maintained that the prosecutrix was never brought to her hospital and never examined there."

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"The FIR in this case was registered on 18.09.2024 but the hard disk was seized on 24.02.2025 and sent to FSL on 18.03.2025," the court noted, pointing to the unexplained delay in this aspect of the investigation.

The court allowed the anticipatory bail application with the direction that, "in the event of her arrest, the petitioner shall be released on bail subject to her furnishing a personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the IO/SHO." It further directed that the petitioner must join the investigation as and when directed in writing by the Investigating Officer.

It was clarified that, "none of the above observations shall impact the trial of the case."

Advocates Representing the Parties:

For the Petitioner: Ms. Aarushi Singh, Ms. Riya Parihar, and Mr. Ashutosh Kumar Tiwari

For the State: Ms. Priyanka Dalal, APP for the State with SI Rakesh Kumar, PS Neb Sarai

For the Complainant De-Facto: Mr. Krishna Datta and Mr. Piyush Thanvi

Case Title: XXX vs. State N.C.T. of Delhi

Neutral Citation: 2025: DHC:1966

Case Number: BAIL APPLN. 4017/2024

Bench: Justice Girish Kathpalia

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