Criminal Complaint No . of 2019: Before Submission To Hon'Ble Judicial Magistrate Ist Class, District Court, Chandigarh
Criminal Complaint No . of 2019: Before Submission To Hon'Ble Judicial Magistrate Ist Class, District Court, Chandigarh
CHANDIGARH
BEFORE THE
VERSUS
BEFORE SUBMISSION TO
NAME- RAHUL
GROUP- C4
INDEX
1. List of Abbreviations 3
2. Index of Authorities 4
3. Statement of Jurisdiction 6
4. Statement of Facts 7
5. Statement of Issues 8
6. Summary of Arguments 9
7. Arguments Advanced 10
8. Prayer 15
2
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
LIST OF ABBREVIATIONS
2. Anr. Another
4. CHD Chandigarh
5. Govt. Government
6. Hon’ble Honourable
7. i.e. That is
8. SC Supreme Court
10. v. Versus
3
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
INDEX OF AUTHORITIES
A. Table of Cases
B. BOOKS
1. Ratanlal & Dhirajlal’s, The Indian Penal Code, 30th Edition, Re- print 2009.
2. K. D. Gaur, A Textbook on the Indian Penal Code, Third Edition, Universal Law
Publishing Co. Pvt. Ltd., 2004.
C. DICTIONARIES REFERRED
1. Black’s Law Dictionary, Ed.8th
2. Judicial Dictionary, J. L.P. Singh & P.K. Majumdar, Ed. 2nd
3. Oxford Dictionary, Ed.3rd
4. Lexion law dictionary (1979), Ed. 3, West Group.
4
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
D. STATUTES REFERRED
5
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
STATEMENT OF JURISDICTION
The present complaint is lodged by the complainant under section 1901 of the Code of Criminal
Procedure, 1973. The magistrate initiated an issue of process under Section 204. The case is
triable by the Judicial Magistrate First Class, Chandigarh under Section 1772 of the Code of
Criminal Procedure, 1973 as the offence under Section 304-A of the Indian Penal Code has been
commited within the territorial jurisdiction of Chandigarh.
1
190- Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or try.
2
177-Ordinary place of inquiry and trial.—Every offence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed
6
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
STATEMENT OF FACTS
For the sake of brevity and convenience of this Hon’ble Court the facts of the present case
are summarise as follows:
1. That Ms. Sunita, a student of Govt Model School, Sector-14, Chd used to commute
in CTU bus from her home to school.
2. That on 14.12.2018 while she was waiting for the bus outside her school a CTU bus
negligently driven by the driver Ved Bhushan crushed her foot. As a result of the
accident, she sustained injuries for which she was taken to PGI for treatment.
3. That five days after the accident, gangrene developed in her leg and Dr. Ramesh
Kumar was assigned duty to operate upon her leg Immediately.
4. That due to heavy blood loss and gangrene Ms. Sunita died on 22.12.2018
5. Now Father of Sunita, Jeevan ram, has filed a criminal complaint against Dr. Ramesh
Kumar, the respondent under section 304-A, IPC .
7
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
STATEMENT OF ISSUES
8
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
SUMMARY OF ARGUMENTS
For proving negligence under the criminal law, the prosecution must prove that there
exists a duty, there was breach of the duty causing death and that breach to be
characterized as gross negligence. To impose criminal liability, under Section 304A, it is
necessary that the death would be direct result of the negligent act of the doctor, and the
act must be proximate and efficient cause without the intervention of another’s
negligence. Dr. Ramesh acted in a professional manner, trying his best to redeem the
patient out of his suffering and in spite of 40 patients pending for surgery; she was put on
priority list among 12 patients of serious open fractures for which he could not be held
criminally liable.
9
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
ARGUMENTS ADVANCED
For proving negligence under the criminal law, the prosecution must prove- that
there exists a duty, there was breach of the duty causing death and that breach to be
characterized as gross negligence.3 In order to constitute negligence, simple lack of
care is not sufficient, the negligence must be of high degree to amount an offence
with element of mens rea4. The Supreme Court in the case of Jacob Mathew vs.
State of Punjab5 that the essential ingredient of mens rea cannot be excluded from
consideration when the charge in a criminal court consists of criminal negligence.6
In the case of Umesh Chandra Samal v. State of Bihar7 the complaint was filed
against the doctor for negligence in treatment of the deceased but the order of
cognizance was quashed as the negligence alleged was not of the nature to fasten
criminal liability on the doctor. In another such case, of Suresh Gupta v.
Government of N.C.T of Delhi8 it was held that the act attributed to the doctor
though could be best described as negligent but not so reckless or grossly negligent
as to make him criminally liable.
3
Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162: AIR 2010 SCW 769: 2009 (10) SCALE 675: 2009 (9) SCC
221: 2009 (3) CPJ 17 (SC)
4Bolam v. Friern Hospital, (1957) 2 All ER 118.
5 2005 (3) CPJ 9: 2005 ACJ 1840: 2005 (3) CPR 70: 2005 (1) CTJ 1085:AIR 2005 SC 3180: 2005 (6) SCC 1
6 P.B. Desai v. State of Maharashtra, AIR 2014 SC 795: 2013 (4) CPJ 63: 2013 (12) JT 425: 2013 (11) SCALE 429 (SC).
7 2006 (39) AIC 453 (Pat.).
8 AIR 2004 SC 4091: 2004 Cri LJ 3870: 2004 SCC (Cri) 1785
10
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
A. STANDARD OF NEGLIGENCE
In Suresh Gupta(dr) v Gov of Delhi & Ano9, the Supreme Court held that for
fixing criminal liability of a doctor, the standard of negligence should not merely
be a lack necessary care, attention and skill. The standard of negligence required
to be proved should be so high as can be described as ‘gross negligence’ or
‘recklessness’.
In the instant matter, Dr Ramesh kumar was assigned duty to operate upon
Ms.Sunita on 14.12.2018 and due to heavy rush of patients requiring open
fracture surgeries there was delay in her surgery. On average in those days were
50-60 patients admitted in Department of Orthopedics in advance trauma centre
against available 10 beds. Out of these 12 similar serious open fracture surgeries
were pending and only 1 operation table was dedicated to these serious open
fracture surgeries and it is further stated that Ms Sunita can’t be given preference
over these 12 as it would have amounted to sacrificing other 12 patients interest
and in spite of approximately 40 patients were pending for surgery, she was put
on priority list among 12 patients of serious open fracture surgeries. Thus it is
humbly submitted that Dr Ramesh was not negligent in his conduct.
Circumstances were such that he had no other option but to treat those emergency
cases first.
9
AIR 2004 DC 4091, (2004) 6 SCC 422.
10
2013 (11) SCALE 429.
11
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
The Court in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr.11
opined that the carelessness or want of due attention and skill cannot be described
to be reckless or grossly negligent as to make the doctor criminally liable.
Thereby, any act performed in furtherance of lack of care even does not amount to
criminal liability on the medical professionals. Further, Lord Atkin, in case of
Andrews v. Director of Public Prosecutions12 stated that simple lack of care in
imposing criminal liability is not enough as a very high degree of negligence is
required to be proved before commission of an offence is established.
In Kusum Sharma & Ors v Batra Hospital and Medical Research centre & Ors,13
the Supreme Court laid down a set of guidelines for deciding as to whether the
medical professional is guilty of medical negligence or not and advised courts
subordinate to it to keep them in mind while deciding liability of doctors for
professional negligence. They are :
11
2004 crilk 3870.
12
[1937] A.C.576.
13
(2010) 3 SCC 480, AIR 2010 SC 1050, 2010(2) SCALE 267
12
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
The patient was given due medical attention and gangrene could also set in
following severe wound contamination due to the mechanism of injury (crushing)
and place of injury (road side accident).
It is further submitted that the dressing was changed three times and blood was
oozing from the dressing was because of wound.
In the instant matter the patient was put on priority list for open surgery among
12 other similar cases and on 21.12.2018 the patient was taken to operation
theatre but since she was haemodynamically unstable, she was transfused 4 units
14
Section 52, Indian Penal Code, 1860
13
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
The degree of negligence as requisite for the criminal liability is higher than as
required in tort. The act to be imposed under criminal negligence needs to be
gross.The Supreme Court in the case of Syad Akbar v. State of Karnataka 15
opined- “in the criminal proceedings, the persuasion of guilt must amount to such
a moral certainty as convinces the mind of the Court, as a reasonable man,
beyond all reasonable doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be gross and not
the negligence merely based upon an error of judgment."
Section 304A of the Indian Penal Code, 1860 while pondering upon the aspect of
“gross negligence”enumerates that the act should be reckless in nature as to
constitute criminal negligence having higher degree, wherein even the element of
mens rea must be shown to exist. Thus considering all the averments made in this
regard, it is thereby established that no such case of criminal rashness or
negligence on the part of Dr. Ramesh can be made.
15
1979 CriLJ 1374
14
UILS ACADEMIC MOOT, 2019
MEMORIAL ON BEHALF OF RESPONDENT 1
PRAYER
Therefore in the light of facts of the instant case, written pleadings and
authorities cited, it is humbly prayed before this Hon’ble Court that it may be
pleased to hold, adjudge and declare that:
AND/OR
Pass any other order, direction, or relief that this Hon’ble Court may deem
fit in the interests of justice, equity and good conscience.
Sd/-
15