PARENTS WHO LENT OVA AND SPERM QUALIFY FOR BOTH MATERNITY AND PATERNITY LEAVE: BOMBAY HIGH COURT.

• Shajeeda Tajdeen
• Legal Article
• Tue, 16 Jul 2019 11:47 AM

The Division Bench of Bombay High Court comprising of Chief Justice Pradeep Nandrajog and Justice NM Jamdar on 14/07/2019 stated that parents of a child born through surrogacy are allowed to avail both maternity and paternity leave. The above judgment was given while hearing a writ petition filed by Dr. Pooja Doshi, wherein she was seeking relief on the rejection of maternity leave by her employer on the ground that leaves rules and policies which govern those rules do not apply to a child born through or out of surrogacy. 

Brief fact of the case:

• The petitioner had a son, named Saurav and she felt he needed a sibling, but she was unable to conceive on her own.

• Because of which she opted for surrogacy after contemplating with her husband.

• Subsequently, a girl child was born through surrogacy on 5th November 2012.

• However, when the petitioner applied for maternity leave to take care of the child with the expected date of delivery, the same was rejected.

While entertaining the petition the court stated that ‘the issue is no longer res-Integra. In the decision dated 22nd July 2015 in Writ Petition No.3288 of 2015 Dr. Mrs. Hema Vijay Menon vs State of Maharashtra, a Division Bench of this Court relying upon a decision of the Delhi High Court dated 17th July 2015 in the case of Rama Pande vs Union of India, held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother is entitled to maternity leave and father paternity leave.’

After considering and referring the above-mentioned quote the Court allowed the petition on the same lines and stated that maternity and paternity leave is also applicable in situations where the child is born through surrogacy. 

This decision of the Bombay High Court has no doubt added one more plus point to the surrogacy laws in the country and it has also given a huge amount of relief the parents opting for the procedure as it gives them time to prepare themselves mentally, emotionally. 

Dr.Ms.Pooja Jignesh Doshi Vs

The State of Maharashtra and another

VIOLENCE AGAINST THE DOCTORS IN INDIA: IS THIS A WAKE UP CALL TO SAVE THE MEDICAL PROFESSION?

• Advocate Ms Pinny Pathak
• Legal Article
• Mon, 15 Jul 2019 12:56 PM

On the night of 10th June 2019 after Mohammed Shaheed, a 75-year-old patient from Tangra, Calcutta, passed away at NRS Medical College, eleven relatives of the deceased were upset over the patient's death and alleged that he died due to medical negligence. A mob reached NRSMCH at around 11 pm and fought with the junior doctors. The clashes turned the premises into a "battleground" at night and the morning after as doctors at the facility alleged that over 200 people arrived on trucks to assault doctors and destroy hospital property. Two intern doctors, Paribaha Mukhopadhyay, and Yash Tekwani were injured in the ensuing clashes. Yash was admitted at NRSMCH with Paribaha being admitted in an intensive care unit at the Institute of Neurosciences in Kolkata after they both suffered head injuries.

What followed was a total of 119 doctors of North Bengal Medical College and Hospital in Darjeeling have resigned, various medical bodies called doctors' strike across the country as a mark of protest over the rising violence against their fraternity. The Indian Medical Association (IMA) called for a nationwide withdrawal of non-emergency services including OPD on 17th June to protest against the assault on a junior doctor in Kolkata and sought a central law for ensuring protection to doctors against violence in hospitals. Interestingly there was political angle brought into the picture whereby Chief Minister of West Bengal Mamata Banerjee had asked agitating junior doctors in the state to resume work within four hours. She branded the striking doctors as ‘outsiders’ and attributing the strike as a political motive to out throw her government. At the end Chief Minister of West Bengal Mamata Banerjee, unconditionally, accepted all demands of the doctors ensuring them of steps like getting police protection at hospitals, a grievance redressal system, having helplines, and also restricting the entry of persons in government hospitals especially with patients.

This unfortunate incident raises questions such as- Are the doctors and medical profession truly respected and protected in India? Does this profession continue to have the same respect as it had earlier? Are doctors today “servants” fitting in the bracket of “contract of services” rather than the usual “contract for services”? Do doctors have no rights and laws to protect themselves from the wrath of the people? What is the fate of the medical profession in India? And importantly does beating the doctors remedy the wrongs and therefore the solution to all the problems?

There are many causes for the increase in violence against medical personnel in India. Some of them are elaborated as under. 

Poor image of doctors and the role of the media: In India, doctors have traditionally been regarded highly by society. The present impression of private business-mindedness of some in the profession has led to a poor image of doctors. One of the factors that contribute to this poor image of doctors is the sensationalization of every news item, often ignoring information that would gloss over mundane details, exonerating a doctor in an incident of alleged medical negligence. 

Meager health budget and poor quality healthcare: Among other causes of violence against doctors in India are the pathetic conditions in which patients are treated in government hospitals. There is overcrowding, long waiting time to meet doctors, absence of a congenial environment, multiple visits to get investigations done as well as consult doctors, sharing a bed by two and sometimes three patients and poor hygiene and sanitation. There is frustration with systemic problems of government hospitals, from dysfunctional equipment to shortage of staff. Given the poor budgetary allocation for health in India, these problems are unlikely to change. 

Lack of faith in the judicial process: A person with a grievance does not trust the mechanisms of redressal provided by law. There is sometimes a perception that doctors being well connected will get away and hence there is a tendency to take the law into their own hands by resorting to violence. There is also a belief that the patient's attendants who assault doctors will go unpunished.

Mob mentality: Mob mentality frequently snowballs into a violent crisis in hospitals. In India, emotional turmoil due to the death of a loved one is sometimes used by local politicians as an opportunity to demonstrate their political relevance by orchestrating violence at the clinical establishment. The 2-minute of fame and news coverage drives these antisocial elements to often damage the social fabric during a medical accident. Unique to India, the unfortunate death of a patient is sometimes given religious and caste color by some miscreants, especially if the doctor belongs to a different caste or religion than the patient.

Lack of security: Violence is easily orchestrated in Indian healthcare establishments partly because security staff in the government and private sectors is non-existent due to lack of funds. With meager budgets, not sufficient to hire enough doctors and nurses, it would be unrealistic to expect adequate security in Indian hospitals except in a few corporate hospitals.

The violence against doctors in India comprises in the form of (i) telephonic threats; (ii) intimidation; (iii) oral/verbal abuse; (iv) physical but non- injurious assault; (v) physical assault causing injury: simple and grievous; (vi) murder; and (vii) vandalism and arson. These actions have a huge impact on the Doctors. Studies show the doctors facing violence have been known to go into depression, develop insomnia, post-traumatic stress, fear, and anxiety. 

Speaking about the laws in India for the medical institutions and doctors, there are various laws dealing with it. Of all the laws they can register a case under the special law- Protection of Medicare Service Persons and Medicare Service Institutions (Prevention Of Violence And Damage To Property) Act, also known as the Medical Protection Act (MPA). The Act, covering doctors affiliated to institutions as well as independent practitioners, outlaws attacks against physicians and damage to their property. Offenders can get a jail term of up to three years and a fine of Rs 50,000. This Act is in operation in about 19 States in India. However as stringent as it sounds, the Act, however, fails to really protect doctors because it features neither in the Indian Penal Code (IPC) nor in the Code of Criminal Procedure (CrPC). This makes it difficult for victims to approach the police for help or the latter to file a complaint against suspects. 

Hence the doctors take recourse of going on strike to let their voices be heard. It is unfortunate that instead of answering to their demands and hearing their grievances, people question their morals, ethics and remind them of their “duty as a doctor” and the “Hippocratic oath”. Nobody questions the assaulters and reminds them of their morals. This attitude and unruly behavior of the public is pushing the doctors in a helpless state which is not beneficial to the profession and for the society as a whole. It is important that the Government- both Central and State step up to protect and provide safety for the doctors and medical institutions. There are reports which show that the condition in the government hospitals are poor and the doctor has to attend nearly 35-50 patients. Add to it there is a lack of medical infrastructures and facilities. Therefore a failure or shortage of the equipment should not be dumped upon the shoulders of the doctors nor should they made to be paid for it. 

One can safely say looking at the present scenario that the profession is under danger. In the near future there may come a time where out of fear of the reaction of people, nobody will opt for this profession. Definitely, nobody likes to work in an uncertain and unsecured environment where threats are giving of killing and raping because of the unsuccessful results. 

Evidentiary value of extra judicial confession

• Amaresh Patel
• Legal Notes
• Mon, 22 Apr 2019 12:09 PM

The needs of extra judicial confession actually creep in when the urgency of the matter exceed fair judicial process. These are made by the party elsewhere then before a magistrate or in the court. The word used by the accused in such a confession weight the higher value that such exact words would be necessary to give the court an impression of what the true confession was. It can be made before a Magistrate who is not especially empowered to record confession u/s 164 CrPC or before a private individual. However unlike other form of confession extra judicial confession u/s 26 has its own limitations. Extra judicial confession made before persons with whom the accused had no relationship could not be relied upon. In Tarseeem Kumar v. Delhi Administration, 1995 the accused was acquitted on the ground that the extra judicial confession, as claimed, was made before stock witness who was casually knowing the accused. Such a extra judicial confession lacks credibility before the court. In state of Haryana v. Ved Prakash 1994 it was alleged that the accused made extra judicial confession to a Doctor and another person, both the strangers and the same was tape-recorded as if it was anticipated and the tape-recorder kept ready. Such a statement was not a confession in nature because of denoted influence and involuntariness of the accused to state such fact whether true or not. The nature of the confession is always voluntary where accuse submit himself before the fair people in just belief. Where extra judicial confession was made to a stranger and the excat words were not recorded and corpus delicit i.e, substance or foundation of an offence was not available, it was held that the confession could not be relied upon.

In Gura Singh v. State of Rajasthan 2001 the evidentiary value attached to the extra judicial confession was explained;

            “it is settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Further, relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the has again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by the way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be found on the evidence alone. In Kishore Chand v. State of H.P. this court held that an unambiguous extra judicial confession possess high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat, or promise envisaged u/s 24 of Evidence Act or was brought about in suspicious circumstances to circumvent section 25 and 26. The court is required to look into surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made the time and place of making it, the circumstances in which it was made have to be scrutinized.”

Thus, in examining the weight of evidentiary value of extra judicial confession it is necessary to check whether the accused was the free man while making such a statement which can in all the probabilities go against him and can criminalise him. 

Rights of an Arrested Person

• Rishabh Kesarwani
• Legal Notes
• Wed, 10 Apr 2019 12:00 PM

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.

4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.

6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

Cheating: Civil Liability Versus Criminal Liability

• Amaresh Patel
• Legal Notes
• Tue, 09 Apr 2019 12:42 PM

The crucial aspect to be noted in the law relating to cheating is the intention of the person accused of cheating. Most often, especially in-issues relating to commercial transactions, the disputes are difficult to separate in terms of their civil and criminal liabilities. As stated earlier, -the crucial difference between a criminal cause of action as against a purely civil transaction is the intention of the-person at the time when the cause of action arose or the alleged offence commenced. The important aspect is to examine whether at that stage, the accused deliberately or intentionally induced the other person to part with property or to do an act or desist from doing an act, or whether it was only subsequently that the dispute arose.

Nageshwar Prasad Sinha Vs. Narayan Singh AIR 1999 SC 1480 the respondent- complainant, Narayan Singh, an advocate, had entered into an agreement of sale of certain properties with the accused in Patna city. Part of the consideration had been paid as earnest money. Possession had also been delivered to the complainant as per the sale deed. However, the complainant had not made the full payment as agreed upon, resulting in delay in completing the legal formalities of the sale. The complainant had also filed a civil suit for specific performance against the accused. Thereafter, the complainant filed a criminal complaint alleging committing of offence under section 420 IPC.

The Supreme Court considered ill(g) to section 415. IPC and stated that the latter part of the illustration showed that:

At the time when the agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainant was cheated of the earnest money, which they passed to the appellants as part consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondent, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter and completing the bargain when admittedly the complainant have not performed their part in making full payment.

Thus, the court held that the liability, if any, was only civil in nature and not criminal.

Breach of contract and cheating: The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution under Sec. 420, I.P.C., unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

Cheating and extortion :The offence of cheating must, like that of extortion be committed by the wrongful obtaining of a consent. The difference is that the extortioner obtains the consent by intimidation and the cheat by deception.

Cheating, criminal breach of trust, and criminal misappropriation: Cheating differs from the last two offences in the fact that the cheat takes possession of property by deception. There is wrongful gain or loss in both cases and in both cases there is inducement to deliver property. In the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of movable property receives it legally but retains it. or converts it to his own use against the terms of the contract.

COMPARISON WITH ENGLISH LAW:

Dishonestly obtaining another’s property by deception with the intention of permanently depriving that person of his property is an offence under Sec. 15(1) of the Theft Act, 1968. This intent to deprive permanently is not an ingredient of the Indian Law. There is no deception unless a person is induced to believe as true what in fact is false. (An operative cause of obtaining the property). In this case certain person came to an elderly widow representing that they were tree surgeons and that they could provide her the “service for a certain money of felling her three deceased trees. She went to withdraw the money and also informed the police. They were arrested and held guilty of attempted deception.) Director of Public. Prosecution Vs. Ray, (1973) 3 AH ER. 131. Deception can also be in an implied form. The-most common example of which is a bouncing cheque. English Courts have held that when a man issues a cheque in favour of another he impliedly represents that he has an account at the bank, that the cheque would be honoured as he has requisite amount in the bank to his credit or he has an overdraft facility' or will immediately arrange it, so that the cheque does not bounce. If things turn out to be otherwise, the accused will have-cheated the other party by impliedly inducing him to accept a valueless cheque which he would not have accepted if he had been aware of the true state of facts is not free from difficulty on this score as decisions are conflicting and in some cases it has been held that if no express representation is made that he has the requisite amount in the bank or if no allegations are made in the complaint that bouncing of the cheque resulted in harm to the complainant in his body mind, reputation or property, the mere fact that the cheque was dishonoured would not make the accused liable for cheating. A contrary view appears to have been taken in Bholanath Arora case 1982 Cr LJ 1482 (Delhi) which is more in accordance with the views taken in the English decision than with the Indian cases cited above. It is felt that the view taken by the English courts on this point are more reasonable for even a fool would not accept a valueless cheque but for the implied representation that the cheque would be honored. It is hoped that law on this point would be brought a par with that of England if necessarily, by suitable legislation. (Necessary legislation was passed in 1988 by amending the Negotiable Instrument Act by providing that a dishonored cheque is a punishable crime.)