Trial of Doctors on Medical Negligence – IPC 304A or 304-II ?

Medical Negligence or no medical negligence

Rights of Doctors against criminal action. Recent incidence in Pune stirred up the hornet’s nest among medical fraternity when Doctors were arrested on the alleged ground of Medical Negligence after the death of a patient and raised its voice against the unjust application of IPC Section 304-II instead of Sec.304-A. Later on, charges were amended and the Doctors were released on Bail. Let’s try to understand in Short, the Rights of Doctors in case of Medical Negligence cases and criminal Action…

 

304 II- Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term.

medical negligence

304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

 

Sec.304-A itself is a Bailable offense. But technically, the above-referred guidelines of Hon. Apex Court is in respect of Sec.304-A. Thus, in my opinion, the Doctors can move for anticipatory Bail or can approach Hon. High Court U/Sec.226 r/w Sec.482 of Cr.P.C. for quashing of FIR when charges U/Sec.304-II are imposed. In the States like Uttar Pradesh, there is no provision of Anticipatory Bail, in such cases, approaching Hon’ble High Court is the only remedy. It is also to be remembered there…


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