The Kerala High Court has remarked that attacks against doctors, while examining the patients, merely because they touched on the body of the patient could not be encouraged at all and has denied bail to accused in one such case.
The single-judge bench of Justice A. Badharudeen opined that if a patient seeking treatment gets aggrieved in the matter of touch on the body as part of examination, it will be difficult for a doctor to practice his medical profession by resorting to clinical examination.
The petitioner-accused herein was booked for offences punishable under Sections 341, 323 and 294(b) of the Indian Penal Code as well as under Sections 3 and 4 of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 for beating a doctor who examined his wife on allegations that the complainant-doctors touched on the body of his wife.
His Counsel pleading for pre-arrest bail argued that the doctor misbehaved towards the wife of the accused and for which, complaint was lodged and crime alleging commission of offence punishable under Section 354 of IPC also was registered and is on investigation.
His further contended that allegations against the petitioner are false and the case on behalf of the complainant-doctor was filed as a counterblast to avoid legal consequence, which would arise out of the case lodged by the wife of the accused.
On the other hand, Public Prosecutor strongly opposed bail, on the submission that, the petitioner herein, who is having criminal antecedents and involvement in four crimes, manhandled the defacto complainant and obstructed his duty, while doctor was examining his wife, on the allegation that, the doctor had touched on her body, as part of examination.
The PP went on to discuss the alarming trend of attacking against doctors and therefore remarked that the doctors are under threat and fear, apprehending their implication in crimes, while they will be doing their duty by examining the patients by way of clinical examinations.
Stating that threat against doctors would be detrimental to the interest of people at large, he urged that present is not a fit case to grant anticipatory bail.
The Court at the outset opined that on perusal of the case records along with the scene mahazar and the statements of the witnesses, the prosecution case is well made out.
It also added, considering that the allegation of misbehaviour was raised, after registration of this crime, the said allegation of misbehaviour at the option of the doctor, alleged to be committed in the presence of two sisters and in an open space at the casualty of the hospital cannot be believed prima facie.
The Court after evaluation of the factual aspects espoused from the case diary materials was of the strong opinion that the prosecution case is well made out and in consonance with the Public Prosecutor's submission, emphasised that such attacks couldn't be encouraged.
"Doctors, who had turmoiled their energy and time to learn the method of treating patients, when examining patients clinically, they cannot do the said exercise without touching the patients. If a patient, who wants treatment, is aggrieved in the matter of touch on the body of the petitioner as part of examination, it is difficult for a doctor to do his medical profession by resorting to clinical examination. The same would include placing of Stethoscope on the left chest portion of the patient to observe and evaluate the heart beat," it noted.
The Court also made it clear that it is conscious of the fact that all allegations on the ground of misbehaviour by overstepping the limit of the doctor while examining patients are not false.
"Genuine cases of such nature could not be ruled out in toto. But generally, it could be held that truth of those allegations should be evaluated from the materials and attending circumstances to separate the grain from the chaff."
With respect to the case in hand, the Court noted that attack against the doctor at the instance of the petitioner is well made out and in such a case, if the petitioner is granted anticipatory bail, it would lead to a very dangerous situation, thereby, doctors, who are duty bound to treat patients as part of their oath, will not get protection and if so, the proper maintenance of health of the public at large would be in peril.
In such case, arrest and custodial interrogation are absolutely necessary to accomplish successful investigation and eventful prosecution, the Court stressed while stating that granting anticipatory bail, when prima facie the offences are made out, would not only spoil the investigation but would lead to traumatic situation.
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