High Court denied the bail to the person who attacked a Doctor. Adv. ROHiT ERANDE ©

The husband assaulted Doctor as the doctor (in presence of two Nurses) placed Stethoscope on the left chest portion of the wife, to observe and evaluate the heart beat.

The Kerala High Court denied anticipatory bail to the husband and observed "How Can a doctor Treat a patient without touching ?"

Important judgment as the Hon.  Court pressed into the Act prohibiting violence against Healthcare workers. 

Adv. ROHiT ERANDE ©

Case Details : 

 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944

BAIL APPL. NO. 834 OF 2023

JAMSHID. P.V.  V/s. State of Kerala 

Facts in Short :

1. The 29 years old Petitioner –Doctor  approached Hon’ble kerala High Court for an anticipatory bail against the allegations of  offences punishable under Sections 341, 323 and 294(b) of the Indian Penal Code as well as under Sections 3 and 4 of the Kerala Healthcare Service Persons and Healthcare Service Institutions(Prevention of Violence and Damage to Property) Act, 2012.

2. It is the case of the prosecution that when the petitioner, was doing on-call duty, he had examined the wife of the accused aged 27 years at casualty attached to Star Med Family Clinic, Karukaputhoor. While so, the accused -husband caught hold on Petitioner’s collar and slapped on his left cheek on the allegation that the Doctor touched on the body of the wife of the accused. On that premise, the prosecution alleges commission of the above offences.

3. It was argued by the learned counsel for the petitioner the petitioner is innocent, on the contrary it was argued by the opposite party that   the doctor misbehaved towards the wife of the accused and for which, complaint was lodged by the wife of the accused and crime alleging commission of offence punishable under Section 354 of IPC also was registered and is on investigation.

4. It is submitted by the learned counsel for the petitioner that the petitioner is innocent and the allegations are false. According to the learned counsel for the petitioner, this case was registered as a counterblast to avoid legal consequence, which would arise out of the case lodged by the wife of the accused.

5. Whereas the learned Public Prosecutor strongly opposed bail, on the submission that, the petitioner herein, who is having criminal antecedents and involvement in four crimes, manhandled the defacto complainant and obstructed his duty, while doctor was examining his wife, on the allegation that, the doctor had touched on her body, as part of examination.

6. According to the learned Public Prosecutor, now attack against doctors are on high alarm and therefore, doctors are under threat and fear, apprehending their implication in crimes, while they will be doing their duty by examining the patients by way of clinical examinations. Therefore, threat against doctors would be detrimental to the interest of people at large. Thus it is submitted that this is not a fit case to grant anticipatory bail, where prosecution allegations are well made out.

Held :

The Hon’ble Court after perusal of the case records along with the scene mahazar and the statements of the witnesses, observed that the prosecution case is i.e. assault against the Doctor is well made out. 

7. The court observed that allegations of indecent behavior was raised after the case of assault against Doctor was registered and these allegations  against the Doctor prima facie appears to be false and cannot be believed  as it alleged to have been  committed in the presence of two sisters and in an open space at the casualty of the hospital cannot be believed prima facie. 

8. The Ld. Court also took into consideration the criminal background of the assaulting husband who has involvement in 4 crimes .

The observations of Hon’ble Court are soothing for Doctors.

9. The Court observed that On evaluation of the factual aspects to be espoused from the case diary materials, the prosecution case is well made out and attack against doctors, while examining the patients, merely because they touched on the body of the patients could not be encouraged at all. Doctors, who had turmoiled their energy and time to learn the method of treating patients, when examining patients clinically, they cannot do the said exercise without touching the patients. 

10. If a patient, who wants treatment, is aggrieved in the matter of touch on the body of the petitioner as part of examination, it is difficult for a doctor to do his medical profession by resorting to clinical examination. The same would include placing of Stethoscope on the left chest portion of the patient to observe and evaluate the heart beat. 

11. At the same time, this Court is conscious of the fact that all allegations on the ground of misbehavior by overstepping the limit of the doctor while examining patients are false. Genuine cases of such nature could not be ruled out in toto. But generally, it could be held that truth of those allegations should be evaluated from the materials and attending circumstances to separate the grain from the chaff.

12. In the case on hand, attack against the doctor at the instance of the petitioner is well made out and in such a case, if the petitioner is granted anticipatory bail, it would lead to a very dangerous situation, thereby, doctors, who are duty bound to treat patients as part of their oath, will not get protection and if so, the proper maintenance of health of the public at large would be in peril. In such case, arrest and custodial interrogation are absolutely necessary to accomplish successful investigation and eventful prosecution.

13. Therefore, in such cases, grant of anticipatory bail, when prima facie the offences are made out, would not only spoil the investigation but would lead to traumatic situation and the Court dismissed the Petition for anticipatory bail. 

This case is of great importance in these days where the Doctor- Patient relationship is going through a vicious circle. It’s quite logical as observed by the Hon’ble Court that without touching a patient even by a stethoscope, how would any doctor examine a patient ?.  The Law passed by Kerala state which prohibits the attack  on Doctors, was also pressed into action. 

In the case in hand there were two sister who were present and it was busy OPD, so who would do such act ? No doubt, the case against the Doctor will be decided on its own merits. But this case has certainly given a strong message that attacking on a doctor will not get unnoticed by the judiciary. But certainly, to avoid these allegations it is always better to have a lady attendant while examining a lady patient by a male Doctor. 

Thanks and regards

Adv. ROHiT ERANDE

Pune.