As per Section 154 of the Criminal Procedure Code, it is mandatory to register the FIR when information about commission of a cognizable offence is given to the police.
I may point out that recently a 5-judge Constitution bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, has held that it is mandatory for the police to register FIR on the basis of an information or complaint which discloses commission of a cognizable offence. However, in this case, the Supreme Court also held as under:
“Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.”
In this regard, the Supreme Court referred to its following observations in the case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1:
“51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
“52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118] to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
So, accordingly, the Supreme Court in the above case of Lalita Kumari held, inter alia, that a preliminary enquiry may be conducted in the case of medical negligence before registration of FIR, if necessary.
In view of this, you may ascertain as to whether such a preliminary enquiry is being conducted by police on your complaint of medical negligence. So, have some patience and meanwhile provide all relevant documents and records, etc., to the police. You may also approach the senior officers of police. If the police fails to register FIR even after the preliminary enquiry (the maximum period for which is 15 days generally and in exceptional cases, by giving adequate reasons, six weeks), then you consider going to the Magistrate under Section 156(3) of the Cr.P.C. or filing a private complaint in court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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