[Violence against Doctors] Kerala High Court| Pre-arrest bail in offences under Kerala Healthcare Act incongruous to legislative mandate

Kerala High Court

   

Kerala High Court: In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public.

Apprehending his arrest in a non-bailable case, the petitioner had approached the Court for pre-arrest bail.

The Petitioner was alleged to have wrongfully restrained a doctor, the de-facto complainant herein, and threatened her while she was on her way from the doctor’s room to the casualty of the hospital, thereby causing obstruction to her official duty and committing the offences under Sections 341, 353 and 506 of the Penal Code, 1860 and Sections 3 and 4(1) of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (‘Healthcare Act').

Assailing the allegations, the petitioner contended that he had met with an accident on 10-04-2022 and due to persistent pain, was advised to obtain an X-ray report of his spine. However, despite waiting for more than 1½ hours, his X-ray was not taken, and unmindful of his condition, the de-facto complainant reacted in a hostile manner and threatened not to treat him. Later, he came to know that a complaint was filed against him, resulting in the registration of the present crime.

To ascertain the apprehension of offence against the petitioner, the Court relied on the definition of the word ‘violence’ under Section 2(e) of the Healthcare Act, which reads as below:

“Section 2(e) “violence” means activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.”

Thus, the Court opined that every harm, intimidation, obstruction or hindrance to a healthcare service person, in discharge of duty is treated as violence. Noticing that Section 4(4) of the Healthcare Act, violence against healthcare service persons is made non-bailable, the Court held that the salutary objective behind the Healthcare Act and the wide meaning ascribed to the word violence, cannot be ignored while considering an application for pre-arrest bail.

The Court remarked,

“The statute regards even an obstruction or hindrance if committed on a healthcare person as a grave offence. Thus, it cannot be held that absence of an assault on the doctor entails a person accused of an offence under the Healthcare Act to be released on pre-arrest bail.”

Considering the wide definition of the term ‘violence’, nestled under the umbrella of a non-bailable offence, the Court held that granting pre-arrest bail to an accused who is alleged to have committed an offence under the Healthcare Act would be incongruous to the legislative mandate.

A physician with trepidation, a surgeon with trembling hands and a disquiet nurse can lead to the wrong diagnosis, failed surgeries and improper nursing care. Life of several patients could fall into peril. Consequently, the public at large can become prejudiced.”

Therefore, the Court denied granting pre-arrest bail to the petitioner. However, the Court added that if the petitioner surrenders himself before the Investigating Officer within seven days, the officer shall subject him to interrogation and if after interrogation petitioner is arrested, the Investigating Officer shall produce him before the jurisdictional Magistrate immediately, and if any application for bail is preferred, the same shall be considered by the Magistrate in accordance with the law.

[Arun P. v. State of Kerala, Bail Appli. No. 3186 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

R. Sreehari, Advocate, for the Petitioner;

Noushad K.A., Public Prosecutor, for the State of Kerala.


*Kamini Sharma, Editorial Assistant has reported this brief.

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