Filing of criminal complaint against medical professional, arrest, search & seizures along with bail, anticipatory bail:
Whenever there is an accident or any incident taking place there are chances that the victims or their family members or relatives
or any third party can set a criminal law in motion. Following are the different stage and procedures as prescribed under law.
If patient or his relations feel that there has been criminal negligence in treating causing simple / grievous injury / death, he may file a First information Report (F.I.R.) or non-cognizable (N.C.) in the police station.
Usually non-cognizable (NC) offence a complaint has to be filed in the court of Judicial Magistrate having jurisdiction, police will not take any further initiative in such cases after registering NC.
Where the police are reluctant or refuse to register the F.I.R. in a cognizable case. Similar procedure is for filing a complaint may be adopted even in a case of cognizable offence
Cognizable offences are usually serious in nature and in which police has power to arrest without warrant. In case of a non-cognizable offence, the arrest can be made only after the Magistrate issues a warrant.
If death is caused, the case is usually registered under section 304A IPC.
For simple injury case may be registered under section 337 IPC
For grievous injury the case may be registered under section 338 IPC.
All these above-said three offences are, no doubt, cognizable (in which police can arrest the doctor without warrant) but at the same time bailable.
Above-stated offences for which doctors are charged are bailable.
The police is under legal obligation to inform the doctor for the grounds / reason of arrest under section 50(2) Cr. PC
Doctor is entitled to be released on bail at the police level itself. Police has power to release the doctor on execution a Personal Release bond of Rs 1500/=
Police may ask higher amount sureties then in such event doctor may arrange for the other sureties of reasonable amount as per police procedure.
Once doctor furnishes the required sureties, the doctor has a right to be released on bail at once by the police itself.
At the time of arrest the doctor has a right to be told with full particulars of the offence for which he is being arrested or other ground for such arrest.
In case the doctor is unable to arrange for the sureties, the police is legally bound to produce him before the nearest Magistrate within 24 hours of his arrest excluding the time required for journey from the place of arrest to the Magistrate under S. 167 of Cr.PC
If the doctor is able to arrange for the sureties by that time he shall be released on bail either by the police itself or by orders of the Magistrate. As the provisio says that the doctor’s professional is essential and emergency service.
If any person is directly arrested then police has to inform their family members also.
When there is likelihood of a criminal complaint being filed against a doctor he can apply for anticipatory bail so as to avoid arrest by the police
Section 438(1) confers on the High Court and the court of sessions the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on the accusation of having committed "a non-bail able offence".
If the offence is non-bailable, it is immaterial for the purpose of section 438 whether the offence is cognizable or non-cognizable, or whether it is one under the Indian Penal Code or under any other law. (MTP or PNDT or BMW Act)
Even with apprehension of arrest also the anticipatory bail can asked even when offence which is not registered with the police.
Anticipatory bail can be asked when summons are issued u/s 161 of Cr. PC by the police for investigation and interrogations
The filing of FIR is not a condition precedent to the exercise of the power under section 438.
The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
Interrogation and recording of statements
During the course of investigation, police can interrogate the doctor.
Record statements of the attendants of the patient or hospital staff present at the time of operation or other persons who are supposed to be acquainted with the facts and circumstances of the case.
Legal advice during police investigation
At the time of his interrogation the doctor has a right to be permitted to meet his lawyer though not throughout the interrogation, as and when required and as per his request.
The lawyer may not only be a witness of the manner and method of interrogation but also to the treatment which is meted out to the doctor who is interrogated but he may take appropriate steps for the purpose of protecting him if his right to life and personal liberty is imperiled by any act or omission of the interrogating officer.
The communication with lawyer is privileged communication and even court / police can not ask for his witness in his own client's case
According to clauses (1) and (2) of Article 22 of the Constitution any person accused of an offence, or against whom proceedings are instituted under the Code of Criminal Procedure, may, of right, be defended by a pleader. It has been held that this provision not only contemplates that the accused should be at liberty to be defended by a pleader at the time the proceedings are actually going on, but also implies that he should have a reasonable opportunity, if in custody of the police, of getting into communication with his legal adviser for the purpose of preparing his defence. It has been further held that the accused should be given access to legal advice even while he is in police custody.
Searches and Seizures
Police has a right to enter the hospital premises/operation theatre and get the operation theatre/ICU, equipment, etc., inspected by an expert concerned.
According to the u/s 102 of Code of Criminal Procedure, investigating police officers may conduct searches with or without search warrants from a Magistrate.
Whenever they do, they must be accompanied by "at least two respectable inhabitants of the locality".
A memorandum enumerating all the items found and describing all that happened during the search is thereafter required to be drawn up and signed by these "respectable inhabitants of the locality", known as the' Panchas '.
The occupant of the place searched must in every instance, be permitted to attend during the search and a copy of the memorandum of articles seized must be delivered to him.
The police can also get examined the surgical instruments which were used in the treatment/operation. Such instruments or equipment can also be seized by the police for being used as a piece of evidence in the event of filing a criminal case in the court.
The police have also power to seize the record and documents by following the procedure prescribed under the u/s 102 of Code of Criminal Procedure
During investigation police obtain but cannot compel the accused doctor to give his specimen writing or specimen signature for comparison with disputed writing or signatures.