The new Code and the Criminal Liability of Doctors, no need to get panic : Adv. ROHiT ERANDE ©
The new Code and the Criminal Liability of Doctors :
Adv. ROHiT ERANDE.
It will not be an overstatement to say that, these days the
Doctors are doing Defensive practice. There are umpteen number of
incidences wherein if a patient dies, then the Doctors may face
Civil Action for damages i.e. cases in a consumer court and/or Criminal Action,
wherein the Doctors may get arrested on the alleged ground of Medical
Negligence and previously charges
under Section 304-II instead of Sec.304-A of IPC used to be imposed.
However, now the Bharatiya Nyaya
Sanhita Act, 2023 (BNS) received approval from the Hon’ble President and
it came into effect since 1st July 2024 and the new Code has brought
many changes and as far as Doctors is concerned, we will try to compare these
changes.
Whether under old regime or the new one, it is the
prerogative of Police Authorities to put the sections in the FIR, but
ultimately it's legality is decided by the Courts.
Lets' see in nutshell ;
304. Punishment for culpable
homicide not amounting to murder— Whoever commits culpable homicide not amounting to murder shall be
punished with 1[imprisonment for life], or imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine, if
the act by which the death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause death, or
with imprisonment of either description for a term which may extend to ten
years, or with fine, or with both, if the act is done with the knowledge that
it is likely to cause death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death.
There is a famous adage which
says, "Every murder is culpable homicide, but every culpable
homicide is not a murder". The Medical Negligence cases fall under
the later part.
This section is now replaced by Sec.105 of BNS as under :
It provides for statutory minimum of 5 years as there was no
minimum punishments earlier under IPC in this case.
Section 105 : Whoever commits culpable homicide not
amounting to murder, shall be punished with imprisonment for life, or
imprisonment of either description for a term which shall not be less than five
years but which may extend to ten years, and shall also be liable to fine, if
the act by which the death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause death; or with
imprisonment of either description for a term which may extend to ten years and
with fine, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such injury as is
likely to cause death.
So if this Section is imposed like
earlier 304 of IPC, then it becomes a non-Bailable offense and punishment is 10
years.!! The job of the Police Authorities is very important in such cases as
to which sections are to be imposed. If Sec.304 is imposed, then Doctors
have to go for anticipatory bail for avoiding arrest.
The Doctor community is talking
about new Sec.106 of BNS which is
similar to the earlier provision of Sec.304A.
304A. Causing death by negligence.—Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
Now let’s see Sec.106 -
106. (1) Whoever causes death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description and shall also State Medical Register under
that Act for a term which may extend to five years, and shall also be liable to
fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be
punished with imprisonment of either description for a term which may extend to
two years, be liable to fine.
• Explanation.— For the purposes of this sub-section, “registered
medical practitioner” means a medical practitioner who possesses any medical
qualification recognized under the National Medical Commission Act, 2019 and
whose name has been entered in the National Medical Register or a State Medical
Register under that Act.
(2) Whoever causes death of any person by rash and negligent
driving of vehicle not amounting to culpable homicide, and escapes without reporting
it to a police officer or a Magistrate soon after the incident, shall be
punished with imprisonment of either description of a term which may extend to
ten years, and shall also be liable to fine.
For the 1st time, the Doctors or that matter perhaps
any such profession has been directly mentioned in the section and this section
would be applicable to all the registered Doctors whether they are Allopaths or
not. (only quacks are not included !)
Further this section would come into play only when some mishap
happens while performing medical
procedure and not otherwise.
In a way it is good that the punishment
has been fixed for Doctors. Previously the Fine was optional, but in the
current situation the Fine is mandatory, even if no punishment is saddled upon.
Nevertheless, the Judicial Principles in case of
Arrest of Doctors would remain the same !
Be that so, but the Principles
laid down by Hon’ble Supreme Court in case of case of arrest of Doctors in Medical
Negligence Cases, would be applicable even after implementation of new Code
The Hon. Supreme Court in its 5 judges constitutional Bench judgment, in the celebrated case
of Lalita Kumari V/s. state of
U.P. (2014 (2) SCC 1) - ( https://indiankanoon.org/doc/10239019/) has given solace to
Doctors in the matters of arrest. The bench was dealing with mandatory
lodging of FIR in cognizable offenses, it was observed,
"Although, we, in unequivocal terms, hold that Section 154 of
the Code postulates the mandatory registration of FIRs on receipt of all
cognizable offence, yet, there may be instances where preliminary inquiry may
be required owing to the change in genesis and novelty of crimes with the
passage of time. One such instance is in the case of allegations relating to
medical negligence on the part of doctors. It will be unfair and inequitable to
prosecute a medical professional only on the basis of the allegations in the
complaint."
Their Lordships had asked Central
/State Govt. to frame guidelines in these regards in consultation with MCI, but
till date no one has taken any steps. Their lordships further relied upon the
famous judgment of Jacob Mathew as mentioned herein above. The Court gave
guidelines as under :
The category of cases in which
preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family
disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal
delay/laches in initiating criminal prosecution, for example, over 3 months
delay in reporting the matter without satisfactorily explaining the reasons for
delay.
Thus in Medical Negligence
cases, Preliminary enquiry is a must and before that No arrest can be made,
even in the era of BNS.
In the above case also,
their Lordships relied upon the Celebrated judgment of Hon’ble
Supreme Court (3 Judges bench) , in the case of Jacob Mathew v/s. State of
Punjab (AIR 2005 SC 3180 = 2005(6) SCC 1), itself has given clear cut
guidelines on arrest of Doctors in case of Medical Negligence Cases. Please see
the following link.
http://judis.nic.in/supremecourt/imgs1.aspx?filename=27088
In this case Sec304A was applied against the
Doctors and after going through the law of Negligence on this Point and after
considering various legal texts, their lordships observed :
48. ….(5) The jurisprudential
concept of negligence differs in civil and criminal law. What may be negligence
in civil law may not necessarily be negligence in criminal law. For negligence
to amount to an offence, the element of mens rea (criminal
intent) must be shown to exist. For an act to amount to criminal negligence,
the degree of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree may
provide a ground for action in civil law but cannot form the basis for
prosecution.
(6) The word “gross” has not been
used in Section 304-A IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree as to be “gross”.
The expression “rash or negligent act” as occurring in Section 304-A IPC has to
be read as qualified by the word “grossly”.
Regarding Arrest of Doctors, it
has been observed :
“52. …we propose to lay down
certain guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence is an
ingredient.
i) A private complaint may not be
entertained unless the complainant has produced prima facie evidence before the
court in the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the accused doctor.
ii.) The investigating officer
should, before proceeding against the doctor accused of rash or negligent act
or omission, obtain an independent and competent medical opinion preferably
from a doctor in government service, qualified in that branch of medical
practice who can normally be expected to give an impartial and unbiased opinion
applying the Bolam test to the facts collected in the investigation.
iii.) A doctor accused of
rashness or negligence, may not be arrested in a routine manner (simply because
a charge has been levelled against him).
iv.) Unless his arrest is
necessary for furthering the investigation or for collecting evidence or unless
the investigating officer feels satisfied that the doctor proceeded against
would not make himself available to face the prosecution unless arrested, the
arrest may be withheld.”
This Celebrated judgment has been
followed and referred to by all the Courts thereafter.Also See A.S.V. Narayanan
Rao V/s. Ratnamala & ors. You may see following the link :
http://judis.nic.in/supremecourt/imgs1.aspx?filename=40762
In another celebrated and much
referred judgment of Apex Court Martin F. D’Souza Vs. Mohd. Ishfaq, AIR
2009 SC 2049, wherein the Apex Court held as under:
“A medical practitioner is not
liable to be held negligent simply because things went wrong from mischance or
misadventure or through an error of judgment in choosing one reasonable course
of treatment in preference to another. He would be liable only where his
conduct feel below that of the standards of a reasonably competent practitioner
in his field"
Remedy for action U/Sec.105 and 106
On the other hand, Sec.106 itself
is a Bailable offense. But technically, the above referred guidelines of Hon.
Apex Court are in respect of 106 (earlier Sec.304-A), but the judgment of
Lalita Kumari (supra) is applicable in Sec.105 (earlier Sec.304 as well as
Sec.304-A.) Thus, in my opinion, the Doctors can move for anticipatory Bail or
can approach Hon. High Court U/Sec.226 r/w Sec.482 of Cr.P.C. for quashing of
FIR when charges U/Sec.105 are imposed. But at times Hon' High Court asks to
apply for anticipatory bail and if that is refused then to approach high
Court. In the States like Uttar Pradesh, there is no provision of
anticipatory Bail, in such cases, approaching Hon’ble High Court is the only
remedy.
It is also to be remembered there
may be some cases, where Doctors might have done some Acts that may attract
Sec.105. So also a lot depends upon the facts of each independent case. Further
civil remedies for claiming compensation against the Doctors may be exercises
independently. In any of such cases first approach the expert Lawyer for
further steps.
Removal of a wrong charge :
As mentioned earlier, it is the
prerogative of the investigation authorities to apply the section. But previously
U/Sec.216 of Cr.P.C., it was the right
of the Courts to alter /amend /remove such charge during the trail, before the
pronouncement of the judgment. Now the CRPC has been replaced with Bharatiya Nagrik Suraksha Sanhita and now
Sec. 239 deals with the alteration of Charge.
Comments
Post a Comment