Medical Negligence and Criminal Liability Under
the BNS, 2023:
Is a Medical Board’s Opinion Mandatory Before
Registering an FIR?
A Critical Legal Analysis of Section 106 of the Bharatiya Nyaya
Sanhita, 2023 and the Procedural Framework Under the Bharatiya Nagarik Suraksha Sanhita, 2023
Keywords:
Medical Negligence under BNS 2023, FIR against Doctor in India, Section 106 BNS
Medical Negligence, Medical Board Opinion before FIR, Criminal Liability of Doctors,
Jacob Mathew Case Analysis, BNSS Section 173 Preliminary Inquiry, FIR Registration
in Medical Negligence Cases, Medical Negligence Law India 2026, Registered Medical
Practitioner BNS, Gross Negligence by Doctors, Medical Negligence and Criminal
Prosecution India, Bolam Test, Lalita Kumari v. Government of U.P.
I. Abstract
Every time a patient dies on the operating table, two realities collide: a grieving
family’s legitimate demand for accountability, and a doctor’s equally legitimate expectation
that professional judgment calls will not be converted into criminal cases without fair
scrutiny. India’s new criminal legislation — the Bharatiya Nyaya Sanhita, 2023 (BNS) and
the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — has reopened this old wound.
Section 106(1) of the BNS now expressly names registered medical practitioners for the first
time in codified criminal law. Section 173 of the BNSS governs FIR registration. 2Together,
they create a fresh landscape for one of Indian law’s most contested questions: can the police
register an FIR against a treating doctor without first obtaining a medical board’s opinion?
This article argues that the answer is legally nuanced and practically unsatisfying.
While no statutory provision in either the BNS or the BNSS expressly bars FIR registration
before a medical board’s opinion, the Supreme Court’s binding directions in Jacob Mathew
v. State of Punjab (2005) effectively prohibit coercive action without independent expert
assessment. The statutory interplay, however, leaves a dangerous gap between FIR
registration and arrest — a gap that causes immense professional and personal harm to
doctors even before any court determines guilt. This article critically examines that gap,
identifies drafting anomalies in the new legislation, draws on practical implications for
hospitals, police officers, and patients, and proposes concrete legislative reforms.
II. Background and Legislative Framework
A. From Section 304A IPC to Section 106 BNS: What Changed and Why
It Matters
Under the Indian Penal Code, 1860, Section 304A was the provision that governed
deaths caused by rash or negligent acts not amounting to culpable homicide. It carried a
maximum sentence of two years or a fine, or both.5 The disjunctive ‘or’ was not incidental —
it gave judges the flexibility to impose only a fine in cases where a doctor acted in good faith
and made an honest professional error. Courts exercised this discretion meaningfully. In the
famous Suresh Gupta case (2004), the Supreme Court expressly noted that the standard for
criminal liability in medical negligence must be gross negligence, not mere inadvertence or
error of judgment, precisely because the consequences of criminalising ordinary professional
mistakes are socially corrosive.
Section 106(1) of the BNS fundamentally alters this calculus. It retains the two-year
maximum for registered medical practitioners performing a medical procedure, which is
lower than the five-year maximum now imposed on ordinary persons. This differential is new
and, to that extent, acknowledges the distinct nature of medical practice. However, the BNS
removes the option of imposing only a fine. Under Section 106, a conviction of a registered
medical practitioner mandates both imprisonment and a fine. The removal of judicial
discretion to award only a fine is a significant regression. Parliament has not offered any
legislative statement of reasons or committee report that justifies this change. The Indian
Medical Association (IMA) formally protested this provision in 2024, but the government
declined to revisit it.
The practical consequence is stark. A doctor convicted under Section 106 BNS must
go to jail — even for two months, even where the death was genuinely caused by an
unforeseen complication and not by any conscious disregard of the patient’s safety.
Mandatory imprisonment, even briefly, ends careers, triggers disciplinary proceedings before
the National Medical Commission (NMC), and causes reputational damage that no acquittal
can fully repair. The law, as written, does not adequately reflect the distinction between the
reckless quack and the conscientious specialist who misjudged a split-second clinical
decision.
B. Section 173 BNSS: FIR Registration and the Preliminary Inquiry
Window
Section 173 of the BNSS replaces Section 154 CrPC as the provision governing the
registration of FIRs in cognizable offence cases. 9The general constitutional and statutory
rule — confirmed by the Supreme Court’s Constitution Bench in Lalita Kumari v.
Government of Uttar Pradesh (2014) 2 SCC 1 — is that if the information received discloses
a cognizable offence, FIR registration is mandatory. The police have no discretion to refuse
registration or to conduct an inquiry before registering the FIR in such cases.
Section 173(3) of the BNSS introduces a statutory preliminary inquiry mechanism for
offences punishable with three years or more but less than seven years imprisonment. This
window allows police to pause and assess before committing to FIR registration. It codifies part of what Lalita Kumari had already permitted as a judicial exception. However, a critical drafting anomaly emerges when this provision is applied to medical negligence. Section
106(1) BNS prescribes a maximum of two years for registered medical practitioners — which
falls below the three-year threshold in Section 173(3). On a strict textual reading, the
preliminary inquiry window under Section 173(3) does not apply to FIRs against registered
doctors under Section 106(1) BNS.
This creates a perverse incentive. A complainant can frame the allegation under the
general clause of Section 106(1), which carries five years for any person, rather than the
doctor-specific clause. By framing it this way — describing the accused simply as a ‘person’
rather than as a ‘registered medical practitioner’ — the complaint falls within the three-toseven-year bracket, triggering the Section 173(3) preliminary inquiry protection 10 , or
alternatively, avoiding the lower maximum that would otherwise apply to a doctor. Ironically,
the drafting intended to benefit doctors can end up denying them the preliminary inquiry
safeguard, while complainants who choose to frame their case broadly can, paradoxically,
trigger a harsher offence category. This anomaly is a clear legislative drafting error that needs
urgent correction.
C. Constitutional Underpinnings: Article 21 and the Dual Rights
Framework
Articles 14, 19, and 21 of the Constitution of India 11form the foundational layer over
which the entire debate about medical negligence and FIR registration rests. Article 21’s
guarantee of the right to life operates in two directions simultaneously. The patient who dies
because of gross negligence has been denied the full protection of Article 21. But the doctor
who is arrested and prosecuted on the basis of a frivolous complaint, without any independent
expert assessment of whether negligence even occurred, is equally a victim of an arbitrary
state action that Article 21 was designed to prevent.
The Supreme Court has recognised this dual operation of Article 21 at least since the
Jacob Mathew judgment. 12What is striking is that twenty years after that decision, the
legislature still has not codified its safeguards into statute. The result is that the protection of doctors against hasty arrest rests entirely on judicial directions — directions that are binding
on courts, but whose enforcement depends on police compliance and prosecutorial restraint,
both of which remain inconsistent across India’s vast and varied law enforcement apparatus.
III. Critical Legal Analysis and Case Studies
A. Jacob Mathew v. State of Punjab (2005): The Foundation and Its Limits
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, arose from the tragic death of
Jeevan Lal Sharma,13 a patient admitted to CMC Hospital, Ludhiana. When he suffered a
respiratory crisis, an empty oxygen cylinder was brought to his room. By the time a working
cylinder was arranged, the patient had died. An FIR was registered against the treating doctors
under Section 304A read with Section 34 IPC. The Supreme Court, in proceedings that
eventually reached a three-judge bench, quashed the criminal proceedings and issued what
have since become the governing guidelines for medical negligence prosecutions.
The Court’s holding rested on a crucial distinction: negligence in civil law is
actionable on a preponderance of probabilities; negligence in criminal law requires proof of
a gross or very high degree of negligence before any conviction can follow. A doctor who
makes an honest mistake, even one with fatal consequences, is not automatically a criminal.
The Bolam Test — whether the doctor acted in accordance with practice accepted by a responsible body of medical professionals — was adopted as the standard, subject to the additional requirement of gross negligence for criminal liability.
The Court further directed that no doctor should be arrested merely on the basis of an
allegation of medical negligence without prior independent medical opinion from a doctor in
government service. It directed that private complaints should be supported by credible expert
evidence before they are proceeded with16. These are critical safeguards. However, a careful
reading of Jacob Mathew reveals that the directions address arrest and prosecution — they
do not expressly prohibit FIR registration itself. This is the gap that causes practical harm: a
doctor against whom an FIR is registered, even if not immediately arrested, suffers serious
professional consequences. The FIR becomes a public record, triggers media coverage,
invites NMC disciplinary scrutiny, and requires the doctor to engage lawyers and courts for
years — all before any expert has assessed whether there was any negligence at all.
B. Lalita Kumari v. Government of U.P. (2014): The Mandatory FIR
Rule and Its Medical Exception
The Constitution Bench in Lalita Kumari confirmed the mandatory nature of FIR
registration with considerable clarity. 17The court acknowledged, however, that in certain
categories of cases — including medical negligence, matrimonial disputes, commercial
offences, and corruption cases — the police may conduct a preliminary inquiry before FIR
registration, solely to determine whether the information received discloses a cognizable
offence at all. This inquiry was required to be completed within seven days. It was not
intended as a full investigation;18 it was a narrow filter to screen out complaints that do not
even make out a prima facie case.
What Lalita Kumari does not say is equally important. It does not direct the police to
obtain a medical board’s opinion before registering an FIR. The preliminary inquiry
contemplated is a police inquiry, not a medical inquiry. The distinction matters because a
police officer is not equipped to assess whether a particular clinical decision constituted gross
negligence.
medical negligence case is unlikely to produce any expert medical assessment.19 The
judgment, therefore, creates a procedural window but does not specify the content of the
inquiry in medical cases, leaving police officers with neither the tools nor the guidance to
conduct it meaningfully.
C. Vijay Kumar Dhawan v. Gurpreet Singh (P&H; HC, 2026): The Most
Recent Reaffirmation
The Punjab and Haryana High Court’s 2026 decision in Vijay Kumar Dhawan v.
Gurpreet Singh20 is the most recent judicial reaffirmation of the Jacob Mathew principles in
the post-BNS era. The case involved the death of a woman following childbirth. The family
filed a complaint against the treating doctors, and a Magistrate issued summons without
engaging with the medical board findings that had already concluded the death was natural
and not attributable to negligence. The Magistrate had also failed to obtain any independent
expert opinion as required by Jacob Mathew.
The High Court set aside the summons and reaffirmed that courts cannot proceed with
criminal trials against doctors for alleged medical negligence without ensuring the existence
of credible expert evidence establishing gross negligence. The decision is significant in at
least two respects. First, it confirms that Jacob Mathew’s protections survive the transition
from IPC/CrPC to BNS/BNSS 21— the Court did not treat the new legislation as having
displaced the earlier judicial framework. Second, it illustrates the reactive nature of the
protection: the doctor had already been through the ordeal of a Magistrate’s summons,
presumably had to engage counsel, and had to litigate before the High Court to obtain relief
that, ideally, should have been available at the threshold.
D. Practical Implications: Who Bears the Cost of Legal Uncertainty?
The legal uncertainty around FIR registration in medical negligence cases does not
affect abstract entities — it falls on specific human beings whose lives are shaped by the
outcome. Consider four categories of stakeholders.
For the patient’s family, the inability to obtain a quick and credible expert assessment
means that justice is either too fast (police register FIR without any scrutiny) or too slow
(procedures drag on for years). In many states, there is no accessible mechanism for grieving
families to get a transparent expert review of what went wrong. This breeds frustration and
drives them toward criminal complaints as the only visible avenue.
For the doctor, an FIR — even one that ultimately leads to no conviction — is careeraltering. The National Medical Commission has the power to take disciplinary action against a registered practitioner against whom a criminal case has been registered. Insurance
premiums rise. Colleagues distance themselves. Hospitals may suspend operating privileges
pending investigation. The harm is front-loaded and largely irreversible, regardless of the
eventual legal outcome.
For police officers, the absence of clear statutory guidance creates personal legal
exposure. If an officer refuses to register an FIR citing lack of expert opinion, and a court
later holds that the refusal was unlawful, the officer faces contempt and departmental
proceedings. If the officer registers the FIR without obtaining any expert assessment and the
court finds the prosecution frivolous, the officer may face scrutiny for enabling harassment.
The law offers no clear safe harbour.
For hospitals and healthcare institutions, the legal uncertainty discourages goodfaith incident reporting and quality improvement processes. Hospitals that transparently
investigate adverse outcomes fear that their internal reports may be used as evidence in
criminal prosecutions. This chilling effect on transparency is directly contrary to patient
safety objectives.
E. Comparative Perspective: How Other Jurisdictions Handle This
India’s approach compares unfavourably with several other common law
jurisdictions. In the United Kingdom, the Crown Prosecution Service applies a two-stage test
before prosecuting a doctor: 22 first, whether there is sufficient evidence (including independent expert medical evidence), and second, whether prosecution is in the public interest. Expert opinion is built into the prosecutorial decision, not treated as a post-FIR
safeguard. In Australia, most states have statutory protections that require independent expert
review before criminal prosecution for medical negligence can proceed23. In the United
States, grand juries in major medical negligence prosecutions routinely hear expert medical
testimony before any indictment issues.
What unites these approaches is the recognition that medical negligence prosecutions
require expert gatekeeping at the threshold, not remediation after the criminal process has
already commenced. India’s reliance on judicial directions rather than statutory mandate for
this gatekeeping is an outlier that leaves its doctors — and its patients — worse served than
they deserve.
IV. Addressing Counterarguments
Any balanced analysis must engage seriously with the counterarguments to
mandatory medical board opinion before FIR registration.
The strongest counterargument is that mandatory pre-FIR expert opinion creates a
structural barrier for patients who are already socially and economically disadvantaged
relative to hospitals and doctors. A grieving family from a rural area, with no legal
representation and no understanding of medical procedures, cannot easily access an expert
opinion. If expert opinion is a prerequisite to FIR registration, the practical effect may be that only wealthy, urban complainants with legal counsel can successfully navigate the process.
This is a legitimate concern that any reform proposal must address.
A second counterargument is that requiring expert opinion before FIR registration
creates an ‘expert guild’ problem: doctors will opine on behalf of other doctors, and the
process will become a mutual protection racket rather than a genuine quality filter. This
concern is real but addressable through structural design — experts drawn from government
medical colleges, independent of the accused, with published opinions and accountability for
false or negligent assessments.
A third counterargument is that FIR registration is constitutionally mandatory under
the Lalita Kumari framework once a cognizable offence is disclosed, 25and that adding a preFIR expert opinion requirement would require a constitutional amendment or at least a
reconsideration by a larger bench. However, this argument is weakened by the fact that Lalita
Kumari itself carved out medical negligence as a preliminary inquiry category — meaning
the Constitution Bench already recognised that this is a category where the mandatory FIR
rule yields to procedural caution.
V. Recommendations for Legislative and Judicial Reform
1. Statutory Amendment to BNSS — Mandatory Expert Opinion
Section 173 of the BNSS should be amended to add a specific sub-section for medical
negligence cases. The provision should require that before an FIR is registered against a
registered medical practitioner for an offence under Section 106 BNS arising from a medical
procedure, the police must obtain a preliminary expert opinion from an expert panel
constituted under the National Medical Commission Act, 2019. This opinion should be
obtained within fourteen days. The amendment should also provide that if no expert opinion
is received within fourteen days, the police shall register the FIR and note the absence of
expert opinion.
2. Restore Judicial Discretion in BNS Section 106
Parliament should amend Section 106(1) of the BNS to restore the option of imposing
only a fine in cases where the court, after hearing expert evidence, concludes that the doctor acted in good faith and the negligence, while culpable, was not of such a degree as to warrant imprisonment. This is not a concession to impunity; it is a recognition that the criminal law
should calibrate its response to the degree of moral blameworthiness involved.
4. Free Legal Aid for Complainants
To address the access-to-justice concern, state legal services authorities should be
directed to provide legal assistance to complainants in medical negligence cases, including
assistance in approaching the expert committee. This ensures that the procedural safeguards
for doctors do not become barriers for patients.
5. Fix the Section 173(3) Drafting Anomaly
The threshold in Section 173(3) BNSS should be amended to expressly include
medical negligence cases regardless of the quantum of punishment, ensuring that the
preliminary inquiry window applies to all FIRs against registered medical practitioners under
Section 106 BNS. This closes the strategic loophole that allows complainants to frame cases
under the general clause to sidestep the reduced sentence and procedural protections for
doctors.
VI. Conclusion
The question this article set out to answer — whether an FIR can be registered against
a doctor for a patient’s death without a medical board’s opinion under the BNS, 2023 — yields
an answer that is legally accurate but practically inadequate: yes, technically, but the police
should not proceed to coercive action without independent expert assessment, and the FIR
itself causes harm that begins the moment it is registered.
The BNS has taken a step forward by expressly recognising registered medical
practitioners in the criminal law framework and prescribing a lower maximum sentence for
them. But it has simultaneously taken a step backward by mandating imprisonment upon
conviction, removing the judicial flexibility that the old law permitted. The BNSS has
codified a preliminary inquiry window in Section 173(3) but the drafting anomaly that
excludes the doctor-specific clause from this window is an unforced error that Parliament
must correct.
The Supreme Court’s directions in Jacob Mathew remain the most meaningful
protection available to doctors, and the Punjab and Haryana High Court’s 2026 decision in
Vijay Kumar Dhawan confirms that courts continue to enforce these protections. But judicial
enforcement is reactive. It rescues doctors after the harm has already been done. What India’s
medical negligence jurisprudence urgently needs is proactive statutory protection: a
mandatory, time-bound, accessible, and accountable expert opinion mechanism built into the
law itself, not dependent on whether a given police officer or Magistrate has read the Jacob
Mathew judgment.
Until that reform is enacted, patients seeking accountability and doctors seeking
protection from frivolous prosecution will continue to navigate a legal terrain that is neither
fair nor predictable — a terrain that serves neither justice nor medicine.
VII. References
1. Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 (Supreme Court of India,
decided August 5, 2005,Criminal Appeal Nos. 144–145 of 2004).
2. Lalita Kumari v. Government of Uttar Pradesh and Others, (2014) 2 SCC 1 (Supreme
Court of India, ConstitutionBench, decided November 12, 2013, Writ Petition (Criminal)
No. 68 of 2008).
3. Suresh Gupta v. Government of NCT of Delhi and Another, (2004) 6 SCC 422.
4. Vijay Kumar Dhawan and Others v. Gurpreet Singh, Punjab and Haryana High Court
(2026) — citation to be verifiedon SCC Online or Manupatra.
5. Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582 (QB).
6. State of Andhra Pradesh v. Punati Ramulu and Others, (1993) 4 SCC 68.
7. Imran Pratapgadhi v. State of Gujarat, Supreme Court of India (2025) — interpreting
Section 173(3) BNSS.
8. Bharatiya Nyaya Sanhita, 2023, No. 45 of 2023 (Gazette of India, Extraordinary,
December 25, 2023), enforced fromJuly 1, 2024. Section 106(1).
9. Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46 of 2023 (Gazette of India,
Extraordinary, December 25, 2023),enforced from July 1, 2024. Sections 173 and
173(3).
10. Indian Penal Code, 1860, Section 304A (now replaced by Section 106, BNS 2023).
11. Code of Criminal Procedure, 1973, Section 154 (now replaced by Section 173, BNSS
2023).
12. National Medical Commission Act, 2019, No. 30 of 2019 — Section 2(28) (definition of
Registered MedicalPractitioner).
13. Constitution of India, 1950 — Articles 14, 19, and 21.
14. Indian Medical Association, Representation on Bharatiya Nyaya Sanhita, 2023 (July
2024).
15. National Law School of India University Blog, ‘Impact of New Criminal Laws on
Prosecution for Medical Negligence'(October 28, 2024), available at
https://www.nls.ac.in/blog/.
16. Live Law, ‘From Lalita Kumari to Section 173(3) BNSS: Navigating the New Frontier of
FIR Registration’ (March 9,2026).
17. SCC Online Blog, ‘Section 173(3) BNSS Explained: FIR, Preliminary Enquiry and
Legislative Intent’ (January 17,2026).
18. Drishti Judiciary, ‘Medical Negligence Under BNS’ (September 25, 2024).
19. Lawbhoomi, ‘Medical Negligence under Bharatiya Nyaya Sanhita’ (June 5, 2025).
20. KSANDK Law Office, ‘The Constitutional Lens on Preliminary Enquiry: Navigating
Section 173(3) of BNSS'(September 1, 2025).
21. iPleaders Blog, ‘Jacob Mathew v. State of Punjab (2005): Case Analysis’ (May 19,
2024).
22. iPleaders Blog, ‘Critical Analysis of Lalita Kumari v. Government of U.P.’ (May 19,
2024).
23. ETV Bharat, ‘IMA Demands Withdrawal of New Criminal Law BNS; Centre Says No
Change’ (July 9, 2024).
24. India Law, ‘Medical Negligence vs Criminal Liability: HC Draws the Line’ (January 27,
2026).
Author: Prafull Shelake
.