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WHY CASES AGAINST THE DOCTORS AND MEDICAL ESTABLISHMENT IS RISING DAY BY DAY?

• VIJAYALAKSHMI RAJU
• Legal Article
• Mon, 22 Apr 2019 11:51 AM

The Doctor-Patient relationship had changed over the time and thus, it needs new guidelines to be followed. Of the cases violence against the medical establishments by the aggrieved patient families which are on the rise, most are in the emergency departments and on doctors and medical staff when on duty.

And quite often, they end up with the medical staff going on strike, protesting the violence. The Indian Medical Association (IMA) supports a doctor’s right to protest and it should not be at the cost of patients. Under the no circumstances there should be emergency services which are to be disrupted. But the IMA feels that the administration and the government should be taken to task for allowing the situation to get out of hand.

The IMA in its report states that, over 75% of doctors had faced mental or physical violence at least once and in another survey of 1,246 patients it found that 70.4% of them expect their physicians to tell their patients about themselves, 90.1% want doctors to listen to them in great detail during the first consultation, 80.4% want the doctor to explain in detail about the drugs, investigations and the treatment, and also 39.4% expect the doctor too to greet them.

The expectations from the patients are impossible to meet, given by the doctors workload. Mostly, the resident doctors work more than the allotted hours, often for 36 hours at a stretch. India needs twice as many doctors as who are available, three times as many nurses and four times as many paramedics. There has been a paradigm shift in the expectations of the patients too. Earlier, the patients had a faith in their doctor but today, they want to be involved in every medical decisions made. Gone are the days when the doctors used to take decisions by assessing the risk on behalf of the patients.

There was a time when the doctors were treated as Gods. Doctors are expected to maintain their cool at every stage, even when the patients and their relatives are in acute distress or in any emergency situations. Even if the patients misbehave, or give way to road rage type of violence, doctors are expected to treat them calmly, and not react to the provocations.

The Hon'ble Supreme Court of India had ruled that in all the emergency situations, any mistake committed by a doctor may not amount to negligence. There is little or no justification for the public to take the law into their own hands. The protection provided by the state to the health care professionals that they need to be strictly implemented and a central law should enforce which to be enacted at the earliest.

In any cases, medical establishments need to deploy the security at their clinics and at hospitals. They are at high risk zones as they are likely to encounter the drug addicts, substance abusers, injured criminals running away from the police, cases of murder, rapes, child sexual abuse and so on.

One of the quick fix solutions is to deploy the CCTV cameras mandatorily in all the emergency areas and record all the conversations between the doctors and relatives in high risk medical areas. Recently, The Medical Council Of India (MCI) had suggested that there must be video recordings of all the consent secured from the patients or their relatives for the conduct of medical procedures.

Medical colleges also need to redefine the teachings in MBBS. The focus needs to be on knowledge, skill and behaviour. The lessons need to incorporate modules on humanitarian conduct, including etiquette and ethics. However, the focus has to be in the acquisition of skills and knowledge.   

Today in Supreme Court: Does selective ban of Tik Tok App is violation of Article 14?

• Amaresh Patel
• Exclusive Legal Update
• Mon, 22 Apr 2019 09:15 AM

The world fastest growing, 15 sec video making app, Tik Tok, with 0.5 billion users around the world, of which 119 million are of India itself, banned on 18 August 2019 by I &T Ministry after Madras High Court order on 3 April 2019. The world’s most valuable startup, raised to $ 75 billion in 2018, faces allegation for allowing ‘pronographic’ and ‘sleazy’ content to propagate, especially among its younger audience.

In an application filed by TikTok through PLR Chambers & Co., it has contended that the removal of app from Google, Apple App Stores, and imposing complete ban, violates the fundamental right to free speech and expression, the right to livelihood to numerous citizens and right to equality granted under article 19 (1) (a), 21 and 14 respectively. Trio is the basic structure of the constitution of India, and no one is allowed under law to take arbitrary decision on it without due consideration.

That, TikTok is only an intermediary app which enables users to upload content and not the content developer. Hence, it is exempted under section 79 of the IT Act which reads as under;

“Section 79. INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES

        (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.

        (2) The provisions of sub-section (1) shall apply if—

                (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

                (b) the intermediary does not—

                        (i) initiate the transmission,

                        (ii) select the receiver of the transmission, and

                        (iii) select or modify the information contained in the transmission;

                (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

        (3) The provisions of sub-section (1) shall not apply if—

                (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;

                (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

        Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.”

Also, action against TikTok is “selective”, as functioning of TikTok is similar to that of FaceBook and YouTube. They are intermediary app and promotes users to upload content on their platform as TikTok. Also, problem faced by TikTok are exactly the same as that of FaceBook, YouTube or any similar platform. And therefore, a complete ban only on TikTok is violation of Article 14 of the Constitution of India.

It has therefore, prayed for Status Quo as it existed prior to the order of Madras High Court of 3^rd April 2019 and order digital distribution platform such as Google and Apple App Store to make the app available on their respective platform.

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.)

Death and grievous injuries occurring in police encounters & guidelines of Supreme Court for effective and independent investigation

• Amaresh Patel
• Legal Notes
• Sun, 31 Mar 2019 11:34 PM

In the event of extra judicial killings and causing of grievous injuries in police encounters, the Hon'ble Supreme Court has issued following guidelines for effective and independent investigation of such incidents :

(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some from (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(2) If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed.

(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek :

(a) To identify the victim; colour photographs of the victim should be taken;

(b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;

(c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;

(d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;

(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;

(f) Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be videographed and preserved;

(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.

(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code. (5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be. (6) The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness. (7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned court. (8) After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the charge-sheet submitted by the Investigating Officer, must be concluded expeditiously. (9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest. (10) Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statement may be sent in the following format along with post-mortem, inquest and, wherever available, the inquiry reports : (i) Date and place of occurrence. (ii) Police Station, District. (iii) Circumstances leading to deaths. (a) Self-defence in encounter. (b) In the course of dispersal of unlawful assembly. (c) In the course of affecting arrest. (iv) Brief facts of the incident. (v) Criminal Case No. (vi) Investigating Agency. (vii) Finding of the Magisterial Inquiry/Inquiry by Senior Officers; (a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and (b) whether use of force was justified and action taken was lawful. 13 (11) If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension. (12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied. (13) The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution. (14) An intimation about the incident must also be sent to the police officer's family and should the family need services of a lawyer/counseling, same must be offered. (15) No out-of-term promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt. (16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above-mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein. The above guidelines will also be applicable to grievous injury cases in police encounter, as far as possible. Accordingly, we direct that the above requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India. See : Peoples' Union for Civil Liberties Vs. State of Maharashtra, 2015 CrLJ 610 (SC)(paras 31, 32 & 33)