Ernakulam: Setting aside the bail granted to two persons, who had allegedly attacked a doctor, the Kerala High Court bench recently expressed concern about the continued attacks on the healthcare professionals.
The HC bench of Justice Bechu Kurian Thomas also pointed out the casual approach taken by the courts in this regard and noted, “The trembling hands of a surgeon and the shivering mind of a physician do not augur well for the patients at large. Doctors continue to face threats, when a mishap occurs to a patient. Even for the slightest provocation, health personnel are attacked. Despite legislation prevailing in the State of Kerala and the repeated court orders to treat attacks on health personnel as a serious crime, violence against them recur.”
“The casual approach adopted by the courts while dealing with instances of attacks on health personnel also contribute to the tendency to resort to such violence,” further noted the HC bench.
Such observations were made by the HC bench while considering a plea filed by a doctor, who had allegedly been assaulted by some people, and an FIR was lodged at Nadakkavu Police Station under sections 323, 325, 427, 506 and 308 r/w section 34 of the Indian Penal Code, 1860, apart from sections 3 and 4 of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damages to Property) Act, 2012.
After the wife of one of the accused persons gave birth to a still-born child at the Fathima Hospital, Kozhikode, the accused persons had allegedly destroyed the hospital property and attacked the petitioner doctor causing a fracture to his nasal bone.
When the accused persons approached the Additional Sessions Court, Kozhikode, the anticipatory bail was denied on the ground that custodial interrogation of the accused persons was necessary.
However, after the accused approached the Principal Sessions Court a few days later and surrendered, they had been granted bail. Challenging this, the petitioner doctor approached the HC bench and contended that the bail order was granted without application of mind, and without considering the seriousness of the allegations.
It was argued by the counsel for the petitioner doctor, Adv. S. Rajeev argued the offences under the Healthcare Act had not been referred to in the bail order and no reasoning of any nature has been given for the grant of bail.
According to the counsel, bail was granted on the day of surrender itself by the Principal Sessions Court without even considering that three days ago the Additional Sessions Judge had rejected the bail application specifically mentioning that custodial interrogation of the accused is essential.
On the other hand, the counsel for the accused persons submitted that the one of the accused was the father of the foetus which died during childbirth and therefore any act committed by him was only an emotional outburst and cannot be characterised as a criminal act.
It was further submitted that there was no assault or any violence and that a flowerpot had fallen down, and it merely scraped the back of one of the persons, which is now being projected as an attack against the doctor.
Further, the counsel for the accused persons submitted that the medical records regarding the fracture of the nasal bone and the other injuries are all concocted and has no connection with the incident
After considering the submissions, the HC bench referred to the judgment in the case of Arun P. v. State of Kerala and Others, where the HC bench had held that every harm, intimidation, obstruction or hindrance to a healthcare service person in discharge of duty is treated as violence and is made non-bailable as per section 4(4) of the Act and prohibited under section 3 of the Healthcare Act.
Referring to the previous orders, the HC bench noted,
“Despite these observations, the learned Sessions Judge, without verifying even the nature of offences alleged in the FIR, which also included sections 3 and 4 of the Healthcare Act, observed that the only offence which is non-bailable is under section 308 IPC and granted bail. No reasoning of any nature is seen stated. Nonapplication of mind is glaringly evident. The circumstances that led to the crime or the factual narration of the crime have not been mentioned. All these and more compel this Court to observe that perversity is writ large in the order of the learned Sessions Judge.””A glance at the impugned order reveals that neither has the learned Sessions Judge mentioned the facts of the case, or the date of surrender, or the provisions under which offences have been alleged nor even any reasons for granting bail. The offence alleged is also not fully correct and even the factual aspects mentioned, like defacto complainant leading the gynaecology department are also wrong,” further noted the bench.
Setting aside the bail order, the HC bench further observed, “In view of the above, I am satisfied that perversity is writ large in the impugned order, and the same is liable to be set aside.”
Medical Dialogues had earlier reported that recently the State Government of Kerala has informed the High Court that the Government is proposing to amend the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act 2012.
During the course of hearing of a plea filed by Kerala Private Hospitals Association, the HC bench had referred to the reports of ‘routine’ attacks on Healthcare personnel and observed that even though Kerala Healthcare Service Act 2012 has provision for strict penalties for assault against healthcare workers, the legal provision was not sufficient to stop the assaults.
Apart from this, taking note of the increasing number of attacks upon doctors, the HC bench had earlier directed the police authorities to ensure that a First Information Report (FIR) gets registered on every incident of violence within one hour. Besides, in a landmark move, the HC bench also decided to directly take cognizance of the complaints regarding violence against doctors, nurses or other healthcare professionals.
To read the HC order, click on the link below: