Criminal Liability of Doctors Under BNS Section 106

BNS Section 106: the general rule and the specific carve-out for doctors

Effective July 1, 2024, the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the Indian Penal Code, 1860, including its Section 304A provision on causing death by a rash or negligent act. Under the new BNS Section 106(1), causing death by a rash or negligent act not amounting to culpable homicide is generally punishable with imprisonment extending up to five years, together with a fine -- a significant increase from the two-year maximum under the old IPC Section 304A. However, Section 106(1) carries a specific proviso for registered medical practitioners: where the death occurs during the performance of a medical procedure by a doctor registered under the National Medical Commission Act, 2019 framework (meaning their name appears on the National Medical Register or a State Medical Register), the punishment is capped at imprisonment up to two years and a fine -- effectively preserving the older, lower maximum sentence specifically for doctors, reflecting a deliberate legislative choice to treat medical negligence differently from other forms of criminal negligence.

Jacob Mathew safeguards: before an FIR is registered against a doctor

Separately from the substantive punishment provisions, the Supreme Court in Jacob Mathew v. State of Punjab (2005) laid down procedural safeguards intended to prevent doctors from being harassed by frivolous criminal complaints for what may be, at most, ordinary civil negligence or a genuine error of judgment. These guidelines are commonly understood to include that a private criminal complaint against a doctor should not be entertained by a court without prima facie evidence in the form of a credible expert medical opinion, and that a doctor should generally not be arrested in a routine negligence case merely upon receipt of a complaint, without independent verification of a prima facie case. This platform flags that the practical, on-the-ground application of these safeguards has been reported as inconsistent across states and police stations, and recommends that a doctor facing a criminal complaint, or a family considering filing one, obtain legal advice on how these safeguards are currently being applied in the relevant jurisdiction.

Civil, consumer, and criminal proceedings can run in parallel

A single instance of alleged medical negligence can potentially give rise to a Consumer Commission complaint, a civil suit, and a criminal complaint simultaneously, since each addresses a legally distinct question -- deficiency in service, civil damages, and criminal culpability respectively -- and are not generally treated as mutually exclusive remedies. That said, the much higher threshold of negligence required for criminal liability under Jacob Mathew means that many cases which succeed in a Consumer Commission or civil suit would not meet the bar for a criminal conviction. This platform recommends that a family considering a criminal complaint understand this higher threshold clearly before proceeding, since a poorly founded criminal complaint against a doctor can be dismissed at a preliminary stage and may not be the most effective route to the compensation the family may actually be seeking.

Common mistakes people make regarding criminal liability for medical negligence:

• Assuming the same standard of negligence sufficient for a compensation claim automatically supports a criminal complaint -- criminal liability requires a materially higher degree of negligence.
• Not realising that BNS Section 106 caps a doctor's maximum sentence at two years specifically for deaths during a medical procedure, distinct from the general five-year maximum.
• Filing a criminal complaint without first obtaining independent expert medical opinion, which Jacob Mathew's safeguards generally expect before an FIR is registered.