The Uttar Pradesh Medicare Service Persons And Medicare Service Institutions (Prevention Of Violence And Damage To Property) Act, 2013 was enacted by the Legislature to prevent violence against medicare service persons and damage to property of medicare service institutions.
This law was enacted taking cognizance of the rampant acts of violence causing injury or danger to life of Medical Service Persons and damage to property of Medicare Service Institutions causing unrest in medicare professionals resulting in serious hindrance in such services in the State.
Section 3 – Violence against Medicare Service Person and damage to property
Section 3 of the Act provides as follows:
Whoever,-
(a) commits an act of violence against a Medicare Service person; or
(b) causes any damage to the property of any Medicare Service Institution;
shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to fifty thousand rupees or with both.
Two distinct offences have been carved out in the statute, i.e. Offence under Section 3(a), and under Section 3(b) of the Act. Offences punishable under Section 3(a) and 3(b) of the Act are cognizable and non-bailable.
Furthermore, to add to the deterrent effect, Section 5 provides that the Court shall order for penalty of twice the amount of purchase price of medical equipment damaged and loss caused to the property of the Medicare Service Institution.
In case the compensation under Section 5(1) of the Act is not paid, then it may be recovered as arrears of land revenue.
Is protection from arrest in light of Arnesh Kumar vs. State of Bihar stripped in the case of FIR under Section 3(a) or 3(b) of the Act?
No. The Investigating Officer must comply with the provisions of Section 41 and 41-A of the Cr.P.C./ 35 B.N.S.S. before effecting arrest. Hence, the accused persons are protected from arrest via Arnesh Kumar.
In the case of 2023:AHC-LKO:34648-DB, the Hon’ble Allahabad High Court in a case registered under Sections 323, 427, 452, 504, 506 IPC and Section 3a of the Medicare Service Persons & Medicare Service Institutions (Prevention of Violence & Damage to property) Act, 2013 held as follows:
“The investigating agencies and their officers are duty bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of the Apex Court, which is on the touchstone of Article 21 of the Constitution of India (Ref. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.) This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offence. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. The same has been elaborately dealt with in paragraphs 7.1 to 12 of the judgment in Arnesh Kumar‘s case (supra).
We have gone through the impugned first information report and we are of the opinion that the guidelines framed by this Court in the above noted judgement are equally applicable to the facts of the instant case.”
Quashing of criminal case registered under Sections 3(a) or 3(b) of the Act of 2013
Since the offence under the Act of 2013 is cognizable and non-bailable, a first information report can be registered under Section 173 of B.N.S.S.
A First Information Report under Section 173 B.N.S.S. can be challenged by means of filing a Criminal Writ Petition before the Allahabad High Court.
In case the chargesheet is filed and the process is issued, one may also file an Application under Section 528 of Bhartiya Nagarik Suraksha Sanhita 2023 praying for quashing the entire proceeding arising out of the First Information Report including the order by means of which process is issued.
In the case of State of Haryana and others vs. Ch. Bhajan Lal and others, the Hon’ble Apex Court provided certain categories wherein the powers under Section 482 Cr.P.C./ 528 BNSS may be applied, which is as follows:
1. Where the allegations made in the First Information Report F or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.l.R. do not disclose G a cognizable offence, justifying an investigation by police officers under Section 156( 1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with ma/a fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Bail in a case under provisions of the Medicare Service Persons & Medicare Service Institutions (Prevention of Violence & Damage to property) Act, 2013
Since the offence under Section 3(a) and (b) of the Act are non-bailable, one must apply for bail before the Sessions Court, and if rejected, to the High Court under Section 483 of B.N.S.S.
Anticipatory Bail can also be sought under Section 482 of B.N.S.S. in case of anticipation of arrest. Interim Anticipatory Bail can also be sought for, in case the matter requires consideration, or counter affidavit is called for by the Hon’ble Allahabad High Court.
Important Factors to be considered while granting bail are as follows:
- Prima Facie Case
- Role of the applicant
- Criminal History
- Whether the attendance of the accused can be secured or not
- Nature and gravity of the offence
- Any other aspect, depending upon the facts and circumstances of the case.