BAIL AND ANTICIPATORY BAIL
If death is caused by the negligent act of the doctor/ medical practitioner, the case is registered u/s 304A of the Indian Penal Code,1872.In case of simple hurt or grievous hurt caused by the negligent act of the doctor/ medical practitioner, the case is registered u/s 337 and 338 of IPC respectively.All of the above-mentioned offence are cognizable and bailable offence.
A cognizable offence is one in which a police officer can arrest the criminal without a warrant and begin an inquiry without the consent of the court.
In a bailable offence bail is a right, and the arrested person must be released after depositing the bail with the police. In these instances, the police have the authority to give bail. The accused may be freed on bail upon the execution of a “bail bond,” with or without the provision of sureties.
- Section 50(2) Cr. PC authorizes the police to notify the doctor of the grounds / reason for the arrest.
- The doctor has the right to be released on bail at the police station. The police have the authority to release the doctor upon the execution of a Personal Release Bond of Rs 1500/=.
- Police may request higher sureties; in which case the doctor may arrange for extra reasonable sureties in accordance with police practise.
- Once the doctor provides the appropriate sureties, the doctor has the right to be released on bail immediately by the police.
- The doctor has the right to be told the complete details of the offence for which he is being detained, as well as any other grounds for such arrest, at the time of his arrest.
- If the doctor is unable to arrange sureties, the police are legally compelled to produce him before the nearest Magistrate within 24 hours of his detention, omitting the time required for travel from the place of arrest to the Magistrate under Section 167 of the Cr.PC.
- If the doctor is able to arrange for sureties before that time, he will be freed on bail by either the police or the Magistrate. As stated in the provision, the doctor’s professional is vital and emergency service.
- If a person is immediately arrested, the police must also notify their family members.
- When a criminal complaint is likely to be made against a doctor, he might seek for anticipatory bail to avoid arrest by the police.
- Section 438(1) of Cr.PC. empowers the High Court and the courts of sessions to grant anticipatory bail if the applicant has grounds to anticipate he would be arrested on the charge of a “non-bailable offence.”
- If the offence is non-bailable, it makes no difference whether it is cognizable or non-cognizable, or whether it is one under the Indian Penal Code or any other law. (MTP, PNDT, or BMW Act.)
- Even if there is a fear of arrest, anticipatory bail can be requested even if the offence has not been reported with the police.
- When the police issue summons under section 161 of the Cr. PC for investigation and interrogation, anticipatory bail can be requested
- The filing of a FIR is not a prerequisite for exercising the power granted by Section 438 of Cr.PC.
- Even though a FIR has not yet been filed, the imminence of a potential arrest based on a reasonable belief can be proved.
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