Abdul Naser and Issudheen v. State of Kerala and Perinthalmanna Police Station

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940** **Bail Appl..No. 2681 of 2018** **CRIME NO. 121/2018 OF PERINTHALMANNA POLICE STATION , MALAPPURAM DISTRICT -----------** ## **PETITIONER(S)/ACCUSED :** **1 ABDUL NASER,** **S/O.MOHAMMED, AGED 60 YEARS, OTTUKATH HOUSE, VELLIYANCHERI P.O., MELATTUR, MALAPPURAM DISTRICT.** - **2 ISSUDHEEN,** - **S/O.ABDUL NASAR, AGED 25 YEARS, OTTUKATH HOUSE, VELLIYANCHERI P.O., MELATTUR, MALAPPURAM DISTRICT.** **BY ADV.SRI.K.RAKESH** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **2. THE STATION HOUSE OFFICER, PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT, PIN-679 322.** **BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07-06-2018, THE COURT ON 12-06-2018 PASSED THE FOLLOWING:** **Msd.** **12.06.2018** **“CR”** **R.NARAYANA PISHARADI, J** ************************* B.A.No.2681 of 2018 --------------------------------------------Dated this the 12[th ] day of June, 2018 ## **O R D E R** The petitioners are the first and the second accused in the case registered as Crime No.121/2018 of the Perinthalmanna police station under Sections 341 and 323 read with 34 IPC and also under Section 3 read with 4 of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (hereinafter referred to as 'the Act'). They seek the protection of pre-arrest bail envisaged under Section 438 of the Code of Criminal Procedure, 1973 in the event of arrest by the police in the case. 2. The prosecution case can be briefly stated as follows: On 20.01.2018, at about 06.30 hours, a patient by name Irshad was admitted in the M.E.S Medical College, Perinthalmanna for treatment of appendicitis. Before, admitting him in the hospital, the de facto complainant, who was the duty doctor in the B.A.No.2681/2018 2 casualty ward, had examined him. At about 15.15 hours on the same day, the father and the brother of the patient (the first and the second accused) reached the nursing section of the ward in which he was admitted and abused the de facto complainant. They threatened him that if surgery to the patient was not conducted within half an hour, they would not allow him to leave the hospital alive. The second accused caught hold of the collar of the shirt of the de facto complainant and grabbed the stethoscope from his neck and beat him with the stethoscope. The first accused beat and hit him on the chest with his hand. The de facto complainant fell down. He lost his stethoscope. He was not able to continue his duty in the hospital. 3. I have heard the learned counsel for the petitioners and the learned Public Prosecutor and perused the case diary. 4. Learned counsel for the petitioners would submit that the patient was admitted in the hospital due to acute appendicitis and he was under excruciating pain but surgery was not conducted and no other treatment was also given to him. Learned counsel also submitted that the accused requested the duty doctor to B.A.No.2681/2018 3 discharge the patient so that he could be taken to some other hospital but the request so made was also not heeded to and then, only a commotion occurred. Learned counsel would further submit that the first accused was not in the hospital at the time of the incident and he has been falsely implicated in the case. On the other hand, learned Public Prosecutor submitted that attack on the doctors and other hospital staff cannot be viewed lightly and if pre-arrest bail is granted, it would give a wrong message to the society. ## 5. The non-bailable offence alleged against the accused is under Section 3 read with 4 of the Act. Section 3 of the Act reads as follows: _“3. Prohibition of violence. — Any act of violence against healthcare service persons or damage or loss to property in a healthcare service institution is hereby prohibited.”_ ## 6. Section 4 of the Act reads as follows: _“4. Penalty and other consequence for violation of section 3. — (1) Any offender who commits any act in contravention of_ B.A.No.2681/2018 4 _Section 3, shall be punishable with imprisonment for a period which may extend to three years and with fine which may extend to fifty thousand rupees._ _(2) In addition to the punishment specified in sub-section (1), the offender shall be liable to pay to the healthcare service institution a compensation of twice the amount of purchase price of medical equipment damaged and the loss caused to the property as may be determined by the Court trying the offence._ _(3) If the offender has not paid the compensation under sub-section (2), the said sum shall be recovered under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968), as if it were an arrear of land revenue due from him._ (4) _Any offence committed under Section 3 shall be cognizable and non-bailable”._ ## 7. The definitions given under Section 2 of the Act may also be noticed _._ _“2_ _**.** Definitions. — In this Act, unless the context otherwise requires,—_ B.A.No.2681/2018 5 _(a) “healthcare service institutions” mean all institutions providing healthcare to people which are under the control of the State or the Central Government or Local Bodies etc., including any private hospital having facilities for treatment of the sick and used for their reception or stay; any private maternity home where women are usually received and accommodated for the purpose of confinement and ante-natal and post-natal care in connection with child birth or anything connected therewith; and any private nursing home used or intended to be used for the reception and accommodation of persons suffering from any sickness, injury or infirmity whether of body or mind and providing treatment or nursing or both of them and include a maternity home, convalescent home, clinic, residence and consulting rooms of healthcare service persons;_ _(b) “healthcare service persons” in relation to a healthcare service institution shall include,_ _—_ _(i) Registered Medical Practitioners, working_ B.A.No.2681/2018 6 _in healthcare service institutions, including those having provisional registration;_ _(ii) Registered Nurses;_ _(iii) Medical Students;_ _(iv) Nursing Students;_ _(v) Para Medical Workers employed and working in medical service institutions;_ _(c) “offender” means any person who, either by himself or as a leader or as a member of a group of persons or organisations, commits or attempts to commit or abets or incites the commission of violence under this Act;_ _(d) “Property” means any property, movable or immovable, or medical equipment or medical machinery owned by or in possession of or under the control of any healthcare service person or healthcare service institution;_ _(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.”_ B.A.No.2681/2018 7 8. The preamble of the Act indicates that the main object of the Act is to prohibit violence against healthcare service persons and to prevent damage and loss to property in healthcare service institutions. It was in the wake of occurrence of frequent attacks against doctors and other hospital staff in various places in the State, the legislature thought it fit to enact a separate law to protect doctors and other employees working in healthcare institutions. It is to be noted that as per the definition of “healthcare service institutions” given under Section 2(a) of the Act, all institutions providing healthcare to people which are under the control of the Government or Local Bodies including any private hospital having facilities for treatment of the sick and used for their reception or stay and any private nursing home used or intended to be used for the reception and accommodation of persons suffering from any sickness, injury or infirmity whether of body or mind and providing treatment or nursing, come under the purview of the Act. 9. Recently, violence against doctors and other hospital employees is on the rise. It is an epidemic invading the corridors B.A.No.2681/2018 8 of hospitals. There are many reasons. Deficiency in service in the hospitals, negligence in treatment of patients, delay in providing treatment etc. are some of them. Sometimes, even without any genuine reason, kins and by-standers of the patients get provoked and attack the doctors. It is also a reality that illiterate laymen, without really knowing or understanding the real reasons for the poor condition of the patient, blame the doctors. 10. Apart from the agony and anguish being experienced by the doctors who are victims of violence, attack on a doctor who is on duty in a hospital adversely affects the treatment of all the patients. This may happen in government primary health centres or small nursing homes where there would be only one doctor on duty at a time. Attack on the doctor in such a healthcare institution practically leads to a grinding halt of its functioning and it may result in jeopardizing the health of many persons. This is a matter of grave concern. 11. While considering the application for anticipatory bail filed by a person accused of an offence under the Act, generally the aforesaid factors have to be kept in mind. The following B.A.No.2681/2018 9 matters specifically require consideration in such a case: (1) The nature and gravity of the injury, if any, sustained by the doctor or other hospital employee (2) The extent of damage, if any, caused to the property (3) The circumstances under which the acts of violence were committed. 12. In the present case, the allegation against the first accused is that he hit and beat on the chest of the de facto complainant with his hand. The de facto complainant was treated in the very same hospital. The case diary contains the copy of the wound certificate issued by the doctor who examined the de facto complainant. It shows that the de facto complainant sustained only a minor injury, that is, tenderness on the chest. The allegation against the second accused is that he caught hold of the collar of the shirt worn by the de facto complainant and grabbed the stethoscope from his neck and beat him with it. The de facto complainant has given a complaint to the Medical Superintendent of the hospital regarding the incident. In this complaint, he has not stated on which part of his body the second accused beat him with the stethoscope. Anyway, he has B.A.No.2681/2018 10 not sustained any injury other than the injury mentioned above. 13. In the complaint submitted by the de facto complainant to the Medical Superintendent, it is stated that his stethoscope was lost during the incident. But, in the complaint given to the police by the Administrative Officer of the hospital, it is stated that the accused caused damage to the stethoscope. It is not known what happened to the stethoscope. The investigating officer has not seized or recovered any damaged stethoscope. The de facto complainant has no case that the accused had taken away the stethoscope with them. Stethoscope is an article which comes under the purview of the definition of 'property' in Section 2(d) of the Act. At present, there is no tangible material to find that the accused caused damage to any property. 14. Annexure B discharge certificate issued from the Moulana Hospital, Perinthalmanna shows that the patient Irshad was admitted there on 20.01.2018 itself. On that day itself, he was subjected to laparoscopic appendicectomy and peritoneal lavage. Annexure B certificate also shows that the patient had inflammed turgid appendix with gross peritonitis and gross B.A.No.2681/2018 11 contamination of peritoneal cavity with pus and flakes. Therefore, it is highly probable that when he was admitted in the first hospital in the morning on that day, he was under severe pain. No surgery was conducted on the patient even after lapse of hours. In such circumstances, the accused, who are the father and the brother of the patient might have thought that there was lack of attention and care given to the patient. Of course, it cannot be a justification for committing acts of violence in the hospital. 14. The victim doctor has sustained only a minor injury in the incident. There is no tangible material to find that damage was actually caused to any property. There are circumstances to show that the accused committed the acts of violence when they were under the impression that the condition of the patient was serious and there was lack of care and attention given to the patient. Apart from these factors, custodial interrogation of the accused is not necessary to have an effective investigation of the case. The prosecution has no case that the accused have got criminal antecedents. There is no basis for the apprehension of B.A.No.2681/2018 12 the prosecution that on getting bail, the accused would abscond and flee from justice. It is not likely that the accused would repeat or commit similar acts of violence on getting bail. In these circumstances, in the light of the parameters laid down by the Apex Court in **Siddharam Satlingappa Mhetre v. State of Maharashta: (AIR 2011 SC 312** ), I find that this is a fit case in which the discretion of the court can be exercised in favour of the accused to grant them the benefit of pre-arrest bail. 15. In the result, the application is allowed and it is ordered as follows: 1) The petitioners shall be released on bail on executing a bond for Rs.10,000/- (Rupees ten thousand only) each with two sureties each for the like amount in the event of their arrest by the police in Crime No. 121/2018 of Perinthalmanna police station. 2) The petitioners shall appear before the investigating officer between 9 a.m and 11 a.m on all Saturdays for a period of two months from the date of their release on bail. B.A.No.2681/2018 13 3) The petitioners shall not in any manner influence or intimidate the prosecution witnesses. They shall not make any attempt to tamper with the evidence in the case. 4) The petitioners shall not leave the State of Kerala without the prior permission of the jurisdictional court till final report is filed in the case. 5) The petitioners shall appear before the investigating officer as and when directed by him in writing to do so. (6) If the petitioners violate any of the conditions of bail, the jurisdictional court concerned is at liberty to cancel the bail without any further orders of this Court but in accordance with law. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr