Relevant sections of IPC[i] & Cr. PC[ii] where Medical Professionals are likely to be arrested by police under Criminal Law

by Dr. Mahesh Baldwa, Mumbai

Filing of criminal complaint against medical professional [iii], 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.

Bail

Above-stated offences for which doctors are charged are bailable.
1. The police is under legal obligation to inform the doctor for the grounds / reason of arrest under section 50(2) Cr. PC
1. 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/=
1. Police may ask higher amount sureties then in such event doctor may arrange for the other sureties of reasonable amount as per police procedure.
1. Once doctor furnishes the required sureties, the doctor has a right to be released on bail at once by the police itself.
1. 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.
1. 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
1. 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.
1. If any person is directly arrested then police has to inform their family members also.

Anticipatory bail

1. 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

2. 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”.

3. 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)

4. Even with apprehension of arrest also the anticipatory bail can asked even when offence which is not registered with the police.

5. Anticipatory bail can be asked when summons are issued u/s 161 of Cr. PC by the police for investigation and interrogations

6. The filing of FIR is not a condition precedent to the exercise of the power under section 438.

7. 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

1. During the course of investigation, police can interrogate the doctor.

2. 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

1. 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.

2. 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.

3. The communication with lawyer is privileged communication and even court / police can not ask for his witness in his own client’s case

4. 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

1. Police has a right to enter the hospital premises/operation theatre and get the operation theatre/ICU, equipment, etc., inspected by an expert concerned.

2. 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.

3. Whenever they do, they must be accompanied by “at least two respectable inhabitants of the locality”.

4. 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 ‘.

5. 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.

6. 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.

7. 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

8. 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.

^{RELEVANT SECTIONS OF IPC}

³⁰[34. Acts done by several persons in furtherance of common intention

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]

120. Concealing design to commit offence punishable with imprisonment

Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment,

voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design,

If offence be committed-if offence be not committed- shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.

³²[CHAPTER VA : CRIMINAL CONSPIRACY

120A. Definition of criminal conspiracy

When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

³²[120B. Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, ⁵¹[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

177. Furnishing false information

Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;

or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Illustrations

(a) A, a landholder, knowing of the commission of a murder within the limits of his estate, wilfully misinforms the Magistrate of the district that the death has occurred by accident in consequence of the bite of a snake. A is guilty of the offence defined in this section.

(b) A, a village watchman, knowing that a considerable body of strangers has passed through his village in order to commit a dacoity in the house of Z, a wealthy merchant residing in a neighbouring place, and being bound under clause, 5, section VII,⁹⁶[Regulation Ill, 1821], of the Bengal Code, to give early and punctual information of the above fact to the officer of the nearest police station, wilfully misinforms the police officer that a body of suspicious characters passed through the village with a view to commit dacoity in a certain distant place in a different direction. Here A is guilty of the offence defined in the later part of this section.

⁹⁷[Explanation- in section 176 and in this section the word “offence” includes any act committed at any place out of ⁹⁸[India], which, if committed in ⁹⁸[India], would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and the word “offender” includes any person who is alleged to have been guilty of any such act.]

178. Refusing oath or affirmation when duly required by public servant to make it

Whoever refuses to bind himself by an oath ⁹⁹[or affirmation] to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

179.Refusing to answer public servant authorised to question

Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

180. Refusing to sign statement

Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

274. Adulteration of drugs

Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medical purpose, as if it had not undergone such adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

275. Sale of adulterated drugs

Whoever, knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

276. Sale of drug as a different drug or preparation

Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or medical preparation, as a different drug or medical preparation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

¹²⁰[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.]

312. Causing miscarriage

Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall he punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation- A woman who causes herself to miscarry, is within the meaning of this section.

313. Causing miscarriage without woman’s consent

Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with¹⁰⁴[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

314. Death caused by act done with intent to cause miscarriage

Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term may extend to ten years, and shall also be liable to fine;

If act done without woman’s consent- And if the act is done without the consent of the woman, shall be punished either with ¹⁰⁴[imprisonment for life], or with the punishment above mentioned.

Explanation- It is not essential to this offence that the offender should know that the act is likely to cause death.

315. Act done with intent to prevent child being born alive or to cause it to die after birth

Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

316. Causing death of quick unborn child by act amounting to culpable homicide

Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

327. Voluntarily causing hurt to extort property, or to constrain to an illegal act

Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

328. Causing hurt by means of poison, etc. with intent to commit an offence

Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

337. Causing hurt by act endangering life or personal safety of others

Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

338. Causing grievous hurt by act endangering life or personal safety of others

Whoever causes grievous hurt to any person to doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

RELEVANT SECTIONS OF Cr. PC

ARREST OF PERSONS

S. 41.When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

S. 42.Arrest on refusal to give name and residence.- (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required:

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.

(4) (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

S. 43.Arrest by Private person and procedure on such arrest.- (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

Provisions of FIR

INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

S. 154.Information in cognizable cases.- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

160.Police officers power to require attendance of witnesses.- (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.

161.Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

relevant sections for anticipatory bail

438. Direction for grant of bail to person apprehending arrest:—(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and

when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise

to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the

Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were

granted under that section.

(2) If such person is thereafter arrested without warrant by an officer in charge of a police station on such

accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to

give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a

warrant should be issued in the first instance against that person, he shall issue a bailable warrant in

confirmity with the direction of the Court under sub-section (1).

[i] Indian Penal Code1860

[ii] Criminal Procedure code 1973

[iii] Registered under statutory state or central councils like under , The Maharashtra Medical Council Act 1965, Indian Medical Council Act 1956, THE HOMOEOPATHY CENTRAL COUNCIL ACT, 1973, THE INDIAN MEDICINE CENTRAL COUNCIL ACT, 1970