Ernakulam: Observing that even an act of intimidation or obstruction or hindrance to a healthcare service person is a non-bailable offence under the Kerala Healthcare Service Persons and Healthcare Service Institutions Act 2012 (Healthcare Act), the Kerala High Court recently denied granting anticipatory bail to a person who allegedly restrained a doctor from performing her duty.
The "No" from the High Court bench comprising of Justice Bechu Kurian Thomas came as it opined that granting anticipatory bail to a person booked for committing an offence under Healthcare Act would send wrong message to public.
Further referring to the increasing instances of violence against doctors in the last decade, the bench noted, "Attacks against doctors and medical institutions have been on an unprecedented rise in the last decade and a half. Mindful of the pernicious effect of such attacks, Kerala became the pioneer in enacting a law on violence against doctors."
"The Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (for short 'the Healthcare Act') was enacted to curb the evil of such violence. The definition of the word 'violence' in the statute is clearly indicative of the purpose behind the Act. The preamble to the aforementioned Act states that it is enacted to prohibit violence against healthcare service persons and to prevent damage and loss to property in healthcare service institutions," it added.
Dismissing the bail application, the bench remarked, "In this context this Court bears in mind that, by granting pre-arrest bail in a non-bailable offence, the court is in effect, converting a non-bailable offence into a bailable offence."
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The bench was considering the bail application of a 23-year-old man, who allegedly wrongfully restrained a doctor on 12.04.2022 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 Indian Penal Code, 1860 and section 3 and 4(1) of the Healthcare Act.
In his plea, the petitioner submitted that after meeting with an accident on 10.04.2022, he had approached the Taluk Hospital, Pattambi for pain in his body. After consultation, the Casualty doctor advised him to take an X-ray of his spine. Despite waiting for more than 1½ hours, since his X-ray was not taken, he approached the Public Relations Officer of the hospital, who directed the petitioner to meet the duty Doctor at casualty.
It was submitted by the petitioner that because of the pain, the petitioner could not wait any further and therefore he met the concerned doctor (the defacto complainant) and apprised her about the painful condition. The petitioner alleged, that unmindful of the condition of the petitioner, the doctor reacted in a hostile manner and threatened not to treat him.
Following this, the complainant came to learn that a complaint had been filed against him, resulting in the registration of the present crime. Therefore, the petitioner contended in his plea that he had not committed any offence as alleged. The counsel for the petitioner claimed that the petitioner was innocent of the allegations and he had not committed any of the offences. He further contended that as per the FIR, no injury or assault had taken place. Therefore, the petitioner's counsel argued that the allegation constitutes only a minor offence and the petitioner should be released on pre-arrest bail.
On the other hand, the counsel for the State submitted that even though the offences under the IPC are bailable, the provisions under the Healthcare Act are nonbailable and
granting pre-arrest bail to the petitioner would prevent the custodial interrogation, which is essential in the peculiar circumstances.After considering the submissions, the HC bench referred to the Healthcare Act and also pointed out the purpose for its enactment. At this outset, the bench referred an abstract of the Statement of Objects and Reasons of the Act that mentioned,
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1. Various organisations complained that there were attacks against doctors, hospitals and other employees working in hospitals and, submitted representations before the Government to enact a separate law to protect doctors and other employees working in healthcare service institutions and hospitals in the wake of attacks on them at various parts of the State. 2. The Government became convinced that there is situation necessitating a legislation to be made to prohibit violence against helathcare service persons and to prevent damage and loss to property in healthcare service institutions. Hence, Government decided to define violence against hospitals and to bring such activities within the ambit of a separate law."
Referring to this, the bench noted, "
The aforestated abstract of the statement of objects and reasons, indicate that the Act has been enacted to curb violence against doctor and medical institutions."The High Court also pointed out that the word 'violence' has been defined under Section 2(e) of the Act. It reads,
"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."Relying on this, the bench noted,
"Thus, every harm, intimidation, obstruction or hindrance to a healthcare service person, in discharge of duty is treated as violence. Section 3 of the Healthcare Act prohibits violence against healthcare service persons and is made non-bailable as per section 4(4) of the Act. The intention of the legislature is unambiguous."
"Any act of intimidation or obstruction or hindrance to a healthcare service person must be curbed. 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," it further added.
Clarifying that the absence of an assault would not allow the petitioner to be released on pre-arrest bail, the bench observed,
"The legislative intent is manifest from the definition of the word 'violence' and the offence having been made non-bailable. 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."
Referring to the wide definition of the term 'violence', the bench clarified,
"A physician with trepidation, a surgeon with trembling hands and a disquiet nurse can lead to wrong diagnosis, failed surgeries and improper nursing care. Life of several patients could fall into peril. Consequently, the public at large can become prejudiced. If the Act is to achieve its purpose, Courts must bear in mind the wide definition of the term 'violence', which is nestled under the umbrella of a non-bailable offence."
"Protecting an accused who is alleged to have committed an offence under the Healthcare Act, with an order of pre-arrest bail, will be incongruous to the legislative mandate. Bearing in mind the objective of the Act, if pre-arrest bail is granted to the petitioner, a wrong message will also be sent to the public. Reckoning the nature and gravity of the offence committed by the petitioner, I am not inclined to exercise the discretion of granting pre-arrest bail to the petitioner," noted the bench as it dismissed the bail application.
"However, if the petitioner surrenders himself before the Investigating Officer within seven days from today, the officer shall subject him to interrogation. 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 law," further read the order.
To read the order, click on the link below.
In its recently released RMP Professional Conduct Regulations, the NMC has implied that doctors can refuse to treat in case of abusive, unruly and violent patients or relatives.
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