Dr. MC Gupta explains whether a doctor can be arrested without an FIR and clarifies which cases warrant a preliminary enquiry.

Question—Can the police arrest a doctor/person u/s 304A of the IPC without registering an FIR?

Dr. MC Gupta answers...

1—The criminal procedure to arrest a person can be set into motion only after registering an FIR.

2—An offence under section 304A, IPC, is a cognizable offence which means that the police can arrest a person without a warrant.

3—The question arises –Whether the police can arrest a person without registering an FIR?

4—This issue came up before a Constitution Bench of the SC in: Lalita Kumari vs Govt.Of U.P.& Ors, Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 (http://indiankanoon.org/doc/10239019/)

The opening paragraph of this judgment reads...

"1) The important issue which arises for consideration in the referred matter is whether “a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?”

5—The court answered the question—“whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to the commission of a cognizable offence” in the affirmative, meaning thereby that the registration of FIR is a must.

6—However, the SC held that in special situations, listed in the operative para no. 111 of the judgment, the police may conduct a preliminary inquiry before registering an FIR. The list includes medical negligence cases.

7—The police has no means or capacity to conduct a preliminary inquiry in medical negligence cases. That is why the SC, in the Jacob Mathew case, directed that a doctor cannot be arrested for medical negligence under section 304A, IPC, in the absence of an expert report that there was gross medical negligence.

8—The direction to obtain an expert opinion as above has to be equated with the direction to carry out a preliminary inquiry.

9—The following is reproduced from the Lalita Kumari judgment:

“Conclusion/Directions:

111) In view of the aforesaid discussion, we hold:

1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses the commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether the cognizable offence is disclosed or not.
3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

• Matrimonial disputes/family disputes
• Commercial offences
• Medical negligence cases
• Corruption cases
• Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for the delay

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

10—Summary:

1. The police must register an FIR before arresting a doctor under section 304A, IPC.
2. Before registering an FIR, the police must get an expert opinion/report that there was gross medical negligence. [Such expert opinion/report may be deemed to be in the nature of a preliminary inquiry.]

Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Content from the writer has been directly replicated on the website. No edits have been made.

The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at the National Institute of Health and Family Welfare, New Delhi, before pursuing law.