Any Hindrance To Medical Workers Qualify As Violence: Kerala High Court Denies Pre-Arrest Bail To Man Accused Of Obstructing Doctor

The Kerala High Court on Monday denied anticipatory bail to a man accused of obstructing a doctor from performing her official duty finding that under the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, even an obstruction or hindrance committed on a healthcare person is a grave offence.

Justice Bechu Kurian Thomas observed that violence against a medical professional was a non-bailable offence and granting anticipatory bail to the petitioner would defeat the legislative mandate. 

"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."

The Court also added that the Act was implemented by the State considering the increasing instances of attacks on healthcare professionals:

"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  was enacted to curb the evil of such violence." 

The petitioner allegedly wrongfully restrained a doctor and threatened her while she was on her way to the casualty, thereby causing obstruction to her official duty and committing the offences under Sections 341, 353 and 506 of IPC and Sections 3 and 4(1) of the Healthcare Act.

Advocate R. Sreehari appearing for the petitioner vehemently contended that he is innocent of the allegations and that he had not committed any of the offences alleged. It was also contended that as per the FIR, no injury or assault had taken place, and hence the allegation constitutes only a minor offence for which the petitioner ought to be released on pre-arrest bail.

Senior Public Prosecutor Noushad K.A submitted that though the offences under the IPC are bailable, the provisions under the Healthcare Act are non-bailable and that granting pre-arrest bail to the petitioner would prevent the custodial interrogation, which is essential in the peculiar circumstances.

The Court noted that every harm, intimidation, obstruction or hindrance to a healthcare service person in discharge of duty is treated as violence. Moreover, as per Section 4(4) of the Healthcare Act, violence against healthcare service persons is a non-bailable offence, which makes the intention of the legislature unambiguous. 

"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."

The Court also found 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. It was further observed that such attacks can have a detrimental effect on the medical professionals, the loss of which would ultimately be borne by the patients.  

"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."

Therefore, considering the nature and gravity of the offence, the Judge was not inclined to exercise the discretion of granting pre-arrest bail to the petitioner. 

However, it was clarified that if the petitioner surrenders himself before the Investigating Officer within seven days, the officer shall subject him to interrogation. If he is arrested after interrogation, the Officer shall produce him before the jurisdictional Magistrate immediately, and any bail application preferred by him shall be considered by the Magistrate in accordance with law. 

Case Title: Arun P. v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 295

Click Here To Read/Download The Order