Bail & Anticipatory Bail

A criminal complaint being filed against a medical professional, as well as an arrest, a search and seizure, bail, and anticipatory bail:
There is always a chance that the victims, their family members or other relatives, or any other person, could begin the legal process for criminal legislation if an accident or other incident occurs. The following paragraphs provide an overview of the steps and procedures mandated by law.

  • Suppose the patient or his family members believe that the treatment they received resulted in a simple/grievous injury or death owing to criminal negligence on the part of the medical provider. In that case, they may submit First Information Reports (F.I.R.) and non-cognizable (N.C.) reports to the police station.

  • Typically, a complaint must be made in the court of the Judicial Magistrate with jurisdiction in the case of a non-cognizable (N.C.) offense. In such cases, the police would not take further action after registering N.C.

  • The case is not regarded as cognizable if the police are hesitant or unwilling to file the F.I.R. in a cognizable case. A method for filing a complaint like this may be employed even when the offense is cognizable.

  • Cognizable criminal offenses are frequent and provide authorities the right to detain suspects without a warrant. If the offense is not deemed cognizable, the magistrate must issue an arrest warrant before one can be made.

  • Section 304A of the Indian Penal Code is frequently invoked when someone dies due to the offense.

  • Section 337 of the Indian Penal Code allows for the registration of trivial injury cases.

  • A claim for a serious injury may be made under section 338 of the Indian Penal Code.

  • The police may detain the doctor without a warrant for any of the three offenses mentioned above; however, in any of these situations, the doctor may be freed on bond.


  • A bail is an option for the offenses mentioned above for which doctors are accused.

  • The police must inform the doctor of the grounds or reasons for the arrest by subsection (2) of section 50 of the Criminal Procedure Code.

  • At the beginning of the police investigation, the doctor has the legal right to be released on bond. In exchange for an Rs. 1500 personal release bond, the police are permitted to release the doctor.

  • The doctor might be able to make arrangements for extra sureties of a reasonable amount by police policy if the police want a greater number of sureties.

  • The doctor has the legal right to be freed on bail by the police department as soon as they receive the required sureties.

  • The doctor has the right to receive all information regarding the crime for which he is being detained at the time of the arrest and any additional justifications for the detention. At the time of the arrest, this right is in effect.

  • According to Section 167 of the Criminal Procedure Code, the police must take the doctor before the closest magistrate within twenty-four hours of his arrest if the doctor cannot make arrangements for the sureties. The time it takes to get from the scene of the arrest to the magistrate is not included in this time restriction.

  • The doctor will be eligible for bail and freed by the police or on the magistrate's orders if he can make the required arrangements for the sureties by that time. According to the provision, a professional expert's medical care is a necessary and urgent service.

  • A person's family must also be informed if they are brought into custody without a warrant, according to police policy.

Anticipatory bail

  • The doctor has the right to ask for anticipatory bail in instances when it is likely that a criminal complaint would be made against him, preventing the police from arresting him.

  • The High Court and the court of sessions have the jurisdiction provided to them by Section 438(1) of the Criminal Code to grant anticipatory bail if the applicant has reason to believe that he may be apprehended on suspicion of committing "a non-bailable offense.

  • If an offense cannot be released on bail, it does not matter whether it is cognizable or not, whether it is one under the Indian Penal Code or another law, or any other law, for section 438. This only applies if the crime cannot be erased with bail. (The BMW Act, the PNDT Act, or the MTP Act).

  • Even for offenses that have not yet been reported to the authorities, anticipatory bail can still be obtained even though there is a chance of being detained.

  • The defendant has the legal right to ask for anticipatory bail when the police issue a summons under section 161 of the Criminal Procedure Code for investigation and questioning.

  • Executing one's powers under Section 438 does not require the submission of a First Information Report.

  • It is feasible to show a reasonable basis for anticipating an arrest, even in cases where a police report has not yet been filed.

Interrogation and recording of statements

  • It is advisable to document any statements made by the patient's companions, hospital professionals during the procedure, or others who are regarded as knowledgeable about the case's facts and circumstances.

  • The police must inform the doctor of the grounds or reasons for the arrest by subsection (2) of section 50 of the Criminal Procedure Code.

Legal advice during police investigation

  • The doctor has the right, but only when required and at his request, to be permitted to consult with his counsel while being questioned. This entitlement does not cover the duration of the interrogation.

  • The lawyer may see both the manner and technique of the interrogation and the treatment given to the doctor who is the subject of the interrogation. However, suppose any action or inaction threatens the doctor's right to life and personal liberty on the part of the interrogating officer. In that case, he may take adequate measures to safeguard himself. For instance, if the doctor's right to life and health is in jeopardy, the attorney may take the necessary actions to safeguard the doctor.

  • Due to the attorney-client privilege, the lawyer cannot be questioned by the police or the court as a witness in his client's case. As a result, conversations with an attorney are confidential.

  • The constitution guarantees the right to a pleader's representation in court to anybody charged with a crime or against whom proceedings have been initiated in line with the Code of Criminal Procedure. Clauses (1) and (2) of Article 22 of the Constitution contain this provision. It has been determined that this provision not only assumes that the accused should be free to be represented by a pleader during the actual proceedings, but it also suggests that, if the police are holding him, he should have a reasonable opportunity to contact his attorney to prepare his defense. This is so that the clause calls for the accused to be free to be defended by a pleader during the proceedings. In addition, it has been determined that the accused should have access to legal representation even while the police are holding him in jail.

Searches and Seizures

  • The police have the right to enter a hospital or an operating room, and they can ask for an expert to inspect the facility's equipment and the operating room or intensive care unit.

  • Regardless of whether they have search warrants issued by a Magistrate, investigative police officers are permitted to conduct searches under section 102 of the Code of Criminal Procedure.

  • They must always have "at least two reputable people of the community" with them when doing so, according to the law.

  • The following phase is making a list of everything found during the search and writing a thorough description of everything that happened. These "respectable neighbors must sign the resulting paper," sometimes called "Panchas."

  • Every time a location is searched, the person being searched must be given a chance to be present during the search and must also receive a copy of the list of goods that were seized.

  • The medical equipment used during the procedure or treatment may also be the subject of a police inquiry. Any such tools or instruments may be seized by law enforcement to present them as evidence in court if a criminal complaint is made.

  • In addition to having this power, the police can seize records and papers by following the steps provided in section 102 of the Code of Criminal Procedure.

  • The police can obtain the accused doctor's sample writing and signature during the investigation, but they cannot force him to give them so that they may compare them to the disputed handwriting and signatures.

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