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Team Code CC Memo For Defence

TEAM CODE CC MEMO FOR DEFENCE[1]

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0% found this document useful (0 votes)

37 views55 pages

Team Code CC Memo For Defence

TEAM CODE CC MEMO FOR DEFENCE[1]

Uploaded by

pravin awalkonde

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TEAM CODE: CC

School of Law Online Intra Moot Court Competition, 2020

Before the Hon’ble Sessions Court of SATPURA

State (Prosecution)

Dr. Anurag & DDC Hospital (Respondent)

(Under section 209 of the Code of Criminal procedure, 1973)

CASE NO.[ ]

MEMORIAL ON BEHALF OF DEFENCE

School Of Law, Intra Online Moot Court Competition,2020

TABLE OF CONTENTS

Contents
1 STATEMENT OF JURISDICTION ------------------------------------------------------------------ 9

2 STATEMENT OF FACTS ---------------------------------------------------------------------------- 10

3 ISSUES RAISED --------------------------------------------------------------------------------------- 12

4 SUMMARY OF ARGUMENTS --------------------------------------------------------------------- 13

4.1 Court of Sessions does not have the power to take cognizance of all the cases ---------- 13

4.2 Bail application under section 167 of Code of Criminal Procedure, 1973 cannot be
rejected ------------------------------------------------------------------------------------------------------ 14

4.2.1 [A] Bail application under section 167 of code of criminal procedure cannot be
rejected as it would lead to grave injustice and violation of fundamental right of life and
personal liberty given by article 21 of the constitution of India, 1950 -------------------------- 14

4.2.2 [B] The order passed by hon’ble supreme court extending period of limitation does
not applies to section 167 of the code of criminal procedure and does not affect right to default
bail 15

4.3 Dr. Anurag cannot be held liable for criminal negligence under Section 304A --------- 15

[A] Dr. Anurag acted in good faith and he was bound by law to treat patients ---------------- 15

4.3.1 [B] Dr. Anurag acted in good faith and there was no negligence on his part ----- 16

4.4 Dr. Anurag can be held liable for culpable homicide under Section 304 of the Indian
Penal Code,1860 ------------------------------------------------------------------------------------------- 17

4.4.1 [A] He neither acted intentionally nor he had knowledge of the consequences of his
act 17

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4.5 The admissions made by Dr. Anurag to the investigation officer cannot be considered as
evidence against him -------------------------------------------------------------------------------------- 18

4.5.2 [B] Confession made to police cannot be proved in court of law -------------------- 19

4.5.3 [C] Section 26 of Evidence Act 1872 excludes confession made in police custody
19

4.5.4 [D] Admissions made by Dr. Anurag cannot be considered as evidence against him
as it leads to violation of right under Article 20(3) of the Constitution of Indian, 1949 ----- 20

4.6 DDC Hospital cannot be held liable to pay fine Under section 304A of the Indian Penal
Code, 1860-------------------------------------------------------------------------------------------------- 21

4.7 ------------------------------------------------------------------------------------------------------------ 21

4.7.1 [A] DDC Hospital is not liable to pay fine under section 304A of the Indian Penal
Code, 1860 as no death is caused due to its act or omission. ------------------------------------- 21

4.7.2 ------------------------------------------------------------------------------------------------------- 21

4.7.3 [B] Act of the DDC hospital is not negligent -------------------------------------------- 22

4.7.4 ------------------------------------------------------------------------------------------------------- 22

5 PLEADINGS/ARGUMENTS ADVANCED ------------------------------------------------------ 23

5.1 Court of Sessions does not have the power to take cognizance of all the cases ---------- 23

5.2 Bail application under section 167 of Code of Criminal Procedure, 1973 cannot be
rejected ------------------------------------------------------------------------------------------------------ 26

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5.2.1 [A] Bail application under section 167 of code of criminal procedure cannot be
rejected as it would lead to grave injustice and violation of fundamental right of life and
personal liberty given by article 21 of the constitution of India, 1950 -------------------------- 26

5.2.2 [B] The order passed by hon’ble supreme court extending period of limitation does
not applies to section 167 of the code of criminal procedure and does not affect right to default
bail 28

5.3 Dr. Anurag cannot be held liable for criminal negligence under Section 304A --------- 31

[A] Dr. Anurag acted in good faith and he was bound by law to treat patients ---------------- 31

5.3.1 [B] Dr. Anurag acted in good faith and there was no negligence on his part ----- 32

5.4 Dr. Anurag can be held liable for culpable homicide under Section 304 of the Indian
Penal Code,1860 ------------------------------------------------------------------------------------------- 36

5.4.1 [A] He neither acted intentionally nor he had knowledge of the consequences of his
act 36

5.5 The admissions made by Dr. Anurag to the investigation officer cannot be considered as
evidence against him -------------------------------------------------------------------------------------- 41

5.5.1 [A] Statements given to investigation officer under section 161 of Code Of Criminal
Procedure , 1973 can only be used for the purposes mentioned in section 162 of code of
criminal Procedure ,1973 ------------------------------------------------------------------------------ 41

5.5.2 [B] Confession made to police cannot be proved in court of law -------------------- 46

5.5.3 [C] Section 26 of Evidence Act 1872 excludes confession made in police custody
48

5.5.4 [D] Admissions made by Dr. Anurag cannot be considered as evidence against him
as it leads to violation of right under Article 20(3) of the Constitution of Indian, 1949 ----- 49

5.6 DDC Hospital cannot be held liable to pay fine Under section 304A of the Indian Penal
Code, 1860-------------------------------------------------------------------------------------------------- 50

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5.6.1 [A] DDC Hospital is not liable to pay fine under section 304A of the Indian Penal
Code, 1860 as no death is caused due to its act or omission. ------------------------------------- 50

5.6.2 [B] Act of the DDC hospital is not negligent -------------------------------------------- 51

6 It was observed in V. Kishan Rao v Nikhil Super Speciality Hospital and another ---------- 52

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INDEX OF AUTHOROTIES

CASES

Achpal vs State of Rajasthan ..................................................................................................... 19

Ambalal D Bhatt v State of Gujarat , .......................................................................................... 38
Chinnama vs state of Kerela ...................................................................................................... 29
D. Mohan and Ors. vs. The State of Jharkhand and Ors........................................................ 36
Dalla Vs State of Rajasthan ....................................................................................................... 30
In Baldev Singh vs State Of Punjab .......................................................................................... 29
IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION .......................................... 19
Ismail Amir Sheikh Vs state of Maharashtra........................................................................... 30
Jacob Mathews case ..................................................................................................................... 38
Jodha Khoda Rabri Vs state Of Gujarat .................................................................................. 30
Khatri and Others v. State of Bihar & Ors. ............................................................................. 29
Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra ..................................... 23
Kusum Sharma & Ors vs Batra Hospital &Medical Researchcertain....................................... 23
Kusum Sharma v. Batra Hospital ............................................................................................. 38
MP sharma vs Satish Chandra .................................................................................................... 35
Nandani sathpathy Vs P L Dani ................................................................................................ 35
Nandani Satpathy vs PL Dani.................................................................................................... 29
Pebam Ningol Mikoi Devi v. State of Manipur and others ..................................................... 30
Q. v. Babu Lal.............................................................................................................................. 34
Q.E. v. Ashootosh Chuckerbutty ............................................................................................... 32
Q.E. v. Ashootosh Chuckerbutty. .............................................................................................. 12
Q.E. v. Babu Lal, ......................................................................................................................... 32
R v. Murugan Ramasay.............................................................................................................. 32
Rabi Mohali Vs State of Assam ................................................................................................. 30

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Rajendra singh vs. State of U.P ................................................................................................. 30

Ram Bali v. State ......................................................................................................................... 29
Ramesh Kumar vs State Of Rajasthan ..................................................................................... 33
Re Elukuri Seshapani Chetty ..................................................................................................... 32
S.P. Raj Kumar vs. Central Bureau of Investigation, ............................................................. 32
Sheik Kalesha v. Emperor .......................................................................................................... 29
Suleman Rahiman Mulani v State of Maharashtra ................................................................... 38
Suresh Gupta (Dr) v Govt of NCT of Delhi & Another .......................................................... 23
V. Kishan Rao v Nikhil Super Speciality Hospital .................................................................. 37
Vikram Singh and ors. v. State of Punjab ................................................................................ 13
VK Mishra Vs State Of Uttarakhand ....................................................................................... 30

STATUTES

Code of Criminal Procedure, 1973 .............................................................................................. 6

Constitution of India ............................................................................................................. 22, 35
Indian Evidence Act 1872 ........................................................................................................... 34
Indian Evidence Act, 1872 .................................................................................................... 14, 30
Indian Evidence Act,1872 ..................................................................................................... 15, 36
Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 ... 12
Indian penal code ........................................................................................................................ 27
Indian Penal Code ................................................................................................................. 25, 38
Indian Penal Code, 1860 ....................................................................................................... 10, 13
Indian Penal Code,1860 .............................................................................................................. 23
the constitution of India, 1950.................................................................................................... 11
The Indian Penal Code, 1860 ..................................................................................................... 29

TREATISES

PSA Pillai: Criminal Law,12th Edition ---------------------------------------------------------------- 40

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Stephens Digest ---------------------------------------------------------------------------------------------- 14

Legal Database

www.manupatrafast.com

www.westlawIndia.com

www.indiankanoon.com

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1 STATEMENT OF JURISDICTION

Counsel for the defence have approached this court under sections 1931 & 2092 of the Code of
Criminal Procedure, 1973

1
193.Cognizance of offences by Courts of Session.—Except as otherwise expressly provided by this Code or
by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of
original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
2
209. Commitment of case to Court of Session when offence is triable exclusively by it.—When in
a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall—
1[(a) commit, after complying with the provisions of section 207 or section 208, as the case may
be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand
the accused to custody until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during,
and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to
be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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2 STATEMENT OF FACTS

1. Flu 2.0 is a dangerous infectious disease caused by newly discovered Flu virus. This
disease has spread in the whole in the whole world, the European countries are worst
affected of this virus and a large number of deaths were reported therein. India a South
Asian Country has managed to contain this virus and has declared nationwide lockdown
under Disaster Management Act, 2005.
2. Dr. Anurag Mehta is a well known Doctor at DDC hospital satpura, during last week of
February he visited spain to attend Medical Conference, the issue of Virus was not rampant
there. When he returned he informed the government authorities of his journey, the
authorities advised him to observe 28 days of home quarantine. In the month of March
three patients were tested Flu 2.0 positive, among them one was Raghunath Shukla aged
aged 65 years and another was Mr. Rao, aged 60 years. While tracing his contact history
Mr. Shukla admitted that he has visited Dr. Anurag’s home for treatment during first week
of march. Dr. Anurag was tested Flu 2.0 positive thereafter. Later on Mr. Shukla died at
govt. Hospital satpura and his main cause of Death was Flu 2.0
3. There after The son of Mr. Shukla filed a complaint to Satpura police station against Dr.
Anurag. The Police registered a case under Section 304A read with Section 269, 270 and
284 of the I.P.C.
4. On investigation Dr. Anurag admitted that he treated Mr. Shukla at his home but later he
denied this admission
5. Later on the second patient Mr. Rao also died a case under Section 304 read with Section
270 and 284 of the IPC was also registered against Dr. Anurag.
6. Mr. rao also Visited Dr. Anurag’s home. This fact was admitted by Dr. Anurag but was
later denied.
7. Subsequently, On March 20th, 2019 five more Flu 2.0 positive cases were reported in
Satpura region. All of these patients claim that they had a visit to Dr. Anurag’s house for

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treatment during the first week of March. The police has registered a case suo moto against
Dr. Anurag for violation of quarantine rules thereby providing treatment in home.
8. Later on 40 more Flu 2.0 cases were reported in satpura Region but the source of this Virus
to many was not known. Some of the patients claimed that they had a visit to DDC Hospital
During First week of March and Dr. Anurag was Present there.
9. On investigation it is revealed that immediately after return about 5 days, Dr. Anurag has
attended the DDC Hospital and has served as a duty doctor in OP department. A suo moto
case was registered against the Hospital also.
10. Dr. Anurag was arrested by the police and he was detained in judicial custody. After
completion of 90 days, he moved a bail application under Section 167, Cr.P.C. which was
rejected by the Court on the ground that Hon’ble Supreme Court has passed an order for
extension of limitation period.
11. During interrogation Dr. Anurag had contended that, though he provided medical treatment
in house during his quarantine, it was with good intention to save the lives of people and
also pointed out that, Mr. Shukla and Mr. Rao never visited his home for treatment during
those days.
12. In all these cases charge-sheets were filed and now the case is before Court of Sessions.

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3 ISSUES RAISED

I. Does Court of Sessions has the power to take cognizance of all the cases
II. Can the bail application under Section 167, Cr.P.C. be rejected?
III. Whether Dr. Anurag can be held liable for criminal negligence under Section 304A?
IV. Whether Dr. Anurag can be held liable for culpable homicide under Section 304?
V. Whether the admissions made by Dr. Anurag to the investigation officer can be
considered as evidence against him?
VI. Whether DDC Hospital can be held liable under Section 304A to pay fine?

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4 SUMMARY OF ARGUMENTS

ISSUE I

4.1 Court of Sessions does not have the power to take cognizance of all the cases
It is contended before the honorable court of sessions that it is not empowered to take cognizance
of all the offences as

4.1.1 [A] Offences under section 304A, section 269 ,section 270, section 284 of the indian Penal
Code,1860 are not triable by it as no case under section 304 is being made out against my
client Dr. Anurag
On the perusal of the schedule I of the Code Of Criminal Procedure ,1973 counsel observed that
the offence under section 304A of the code is triable by Judicial Magistrate first class and offences
under section 269,270 and 284 of the code are triable by any magistrate, whereas no case under
section 304 is made out against Dr. Anurag, hence the honorable court does not holds power to try
the same.

Section 299 of the Indian Penal Code, 1860 is produced for the perusal of the Honorable sessions
court-

299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Thus the Essentials of the offence of culpable homicide are-

(1) There must be death of a person

(2) The death must be caused by an intentional act; or
(3) There must be intention to cause death by a bodily injury which is likely to cause death;or
(4) The death of a person must be caused by doing an act with knowledge that such act is likely
to cause death.

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Dr. Anurag has acted in good faith without any malice in treating his patients as it was his duty to
treat them. He neither had intention to cause death of anyone nor he had knowledge that his act is
likely to cause death. Infact there was negligence on the part of government authorities as they got
Dr. Anurag tested too late, after the death of one patient Mr. Shukla.

ISSUE II

4.2 Bail application under section 167 of Code of Criminal Procedure, 1973 cannot be rejected
4.2.1 [A] Bail application under section 167 of code of criminal procedure cannot be rejected as
it would lead to grave injustice and violation of fundamental right of life and personal
liberty given by article 21 of the constitution of India, 1950
The counsel humbly submits before the honourable sessions court that rejecting the bail application
of the accused would amount to miscarriage of justice and violation right given under article 21of
the constitution which says-

Protection of life and personal liberty- “No person shall be deprived of his life or personal liberty
except according to procedure established by law”3

3
Article 21 in the constitution of India, 1950

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4.2.2 [B] The order passed by hon’ble supreme court extending period of limitation does not
applies to section 167 of the code of criminal procedure and does not affect right to default
bail
1. Order given by the honorable supreme court does not specifically mentions that it is
applicable to investigation also.

The counsel humbly pleads before the honourable Court of Session that the order passed by the
hon’ble Supreme court does not apply to the limitation given under section 167(2) of Code of
Criminal Procedure as the order does not expressly mentions the same.

There is no limitation of time for the completion of investigation and filing of final police report,
so making order for the extension of time of 60 days or 90 days as specified in section 167(2)
would be irrelevant.

The Hon'ble Supreme Court has not mentioned that police investigations would also be covered
by the said order.

ISSUE III

4.3 Dr. Anurag cannot be held liable for criminal negligence under Section 304A
It is submitted before the honorable Court of Sessions that Dr.Anurag cannot be held liable for
criminal negligence under section 304A of the Indian Penal Code,1860 as

[A] Dr. Anurag acted in good faith and he was bound by law to treat patients.

It is contended before the Honorable Court of Session that Dr. Anurag has not acted Negligently
in treating Patients. Profession of Doctor is considered as one of the noble professions in the world
and doctors are the last hope of people after God. There are some duties which a doctor is required
to observe to his patients, one of the duty is to treat each and every patient who needs services of
a doctor.

The counsel would like to mention some of the regulations of Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002 -

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“In case of emergency a physician must treat the patient. No physician shall arbitrarily refuse
treatment to a patient. However for good reason, when a patient is suffering from an ailment which
is not within the range of experience of the treating physician, the physician may refuse treatment
and refer the patient to another physician.”4

“Though a physician is not bound to treat each and every person asking his services, he should not
only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the
high character of his mission and the responsibility he discharges in the course of his professional
duties. In his treatment, he should never forget that the health and the lives of those entrusted to
his care depend on his skill and attention.”5

4.3.1 [B] Dr. Anurag acted in good faith and there was no negligence on his part
For the perusal of the court relevant section are produced here,

Section 304-A. Causing death by negligence.— Whoever causes the death of any person by
doing any rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or with
both.

To bring a case of homicide under section 304A, I.P.C. the following conditions must exist, viz.:
(i) There must be death of the person in question;
(ii) The accused must have caused such death; and
(iii) That such act of the accused was rash and negligent and that it did not amount to culpable
homicide.

This section implies that act must be of such nature that there is neither any intention nor
knowledge that the act would in all probability cause death.

4
Regulation 2.1 in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
5
Supra Note 10

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ISSUE IV

4.4 Dr. Anurag can be held liable for culpable homicide under Section 304 of the Indian Penal
Code,1860
It is submitted before the honorable Sessions Court that Dr. Anurag can be Held liable for Culpable
homicide not amounting to murder under Sectiom 304A of the Indian Penal Code ,1860 as

4.4.1 [A] He neither acted intentionally nor he had knowledge of the consequences of his act
It is contended before the Honorable court that Dr. Anurag did not intend to cause the death of any
one as he was acting in good faith in providing treatment and he had no knowledge of the
consequences of his act.

It is the duty of the doctor to treat everyone, who comes to him in pain. The act of the doctor is
completely justified here.

Section 299 of the Indian penal code Defines Culpable Homicide as follows-

Culpable homicide.—Whoever causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.6

From the perusal of the above definition it becomes clear that in order to convict a person for
Culpable homicide the prosecution must prove that the accused caused the death of the person
either intentionally or with knowledge.

In the Present case Dr. Anurag was acting in good faith and had no intention to kill anyone nor he
had knowledge that his act of treating people can lead to there death.

4.4.1.1 Lack of knowledge on the part of Dr. Anurag

6
Section 299 in the Indian Penal Code, 1860

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rampant and serious, yet he after coming back from Spain inform authorities about this.
And authorities without complete check up allowed him to go and only advised him, which
shows that there is no obligation on Dr. Anurag to stay at home as they are only persuasive
in nature.

“knowledge means the personal knowledge of a person who does the act. The word 'knowledge' is
a strong word and imports a certainty and not merely a probability. So here in this particular case
there is not a certainty that Dr. anurag is under flu virus because of the absence of any symptoms
further authorities has also give him clean chit on mere advise of staying home and nothing else.
So by this we can conclude that he is completely unaware about he fact that he might be spreading
virus.”7
4.4.1.2 DR. ANURAG HAS ACTED IN GOOD FAITH, NOT INTENDED TO CAUSE DEATH,
WITH THE CONSENT OF PERSON FOR HIS BENEFITS
Section 888 of the code provides that “Nothing, which is not intended to cause death, is an
offence by reason of any harm which it may cause, or be intended by the doer to cause, or
be known by the doer to be likely to cause, to any person for whose benefit it is Done in
good faith, and who has given a consent, whether express or implied, to suffer that harm, or
to take the risk of that harm.”

ISSUE V

4.5 The admissions made by Dr. Anurag to the investigation officer cannot be considered as
evidence against him
Admission is defined in section 17 of the Indian Evidence Act, 1872 as follows-
Admission defined.––An admission is a statement, [oral or documentary or contained in

7
MANUPATRA
8
Section 88 in The Indian Penal Code, 1860

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electronic form], which suggests any inference as to any fact in issue or relevant fact, and which
is made by any of the persons, and under the circumstances, hereinafter mentioned9
Thus admission is a kind of statement whether given orally or in written form or in electronic form

It is contended before the honorable court of sessions that the admissions made by Dr. Anurag to
the investigation officer cannot be considered as evidence against him as-

4.5.1 [A] Statements given to investigation officer under section 161 of Code Of Criminal
Procedure , 1973 can only be used for the purposes mentioned in section 162 of code of
criminal Procedure ,1973
4.5.2 [B] Confession made to police cannot be proved in court of law
It is humbly contended before the honorable court of sessions that the word confession has not
been defined in the Indian Evidence Act,1872 .

According to Sir James Stephen10 it is “An admission made at any time by a person charged with
a crime stating or suggesting the inference that he committed a crime”.

Thus as per Stephen’s definition the commission of crime may not be directly admitted by the
accused but even if it can be inferred from his statement, the statement would amount to a
confession.

It is clear from the above definition that confession is a kind of admission. Generally confession
means any statement made by the accused which proves his guilt.

Confession is a species of admission.11

4.5.3 [C] Section 26 of Evidence Act 1872 excludes confession made in police custody
For the kind perusal of the honorable Court section 26 of the Indian Evidence Act,1872 is
mentioned below-
26. Confession by accused while in custody of police not to be proved against him. ––“ No

9
Section 17 in the Indian Evidence Act, 1872
10
Stephens Digest Article 21
11
Q.E. v. Ashootosh Chuckerbutty. I.L.R., 4Cal. 483, 492 (1878).

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confession made by any person whilst he is in the custody of a police-officer, unless it be made in
the immediate presence of a Magistrate, shall be proved as against such person.”12

A confession made by an accused whilst he is in police custody to any person be it a fellow

prisoner, a doctor or a visitor is inadmissible in evidence.”13

Mehmood J. has observed in Q. v. Babu Lal, 14 that “Section 25 and 26 lay down two clear and
definite rules. In Section 25 the criteria for excluding a confession is the answer to the query. To
whom was the confession made ?if the answer is that it was given to a police officer, the confession
is enormously excluded from evidence. On the other hand the criterion adopted in Section 26 is
the answer to the question. Under what circumstances was the confession made? If the answer is
that it was made whilst the accused was in custody of a police officer the law lays clown that such
confession shall be excluded from evidence unless it was made in the immediate presence of a
Magistrate.”

4.5.4 [D] Admissions made by Dr. Anurag cannot be considered as evidence against him as it
leads to violation of right under Article 20(3) of the Constitution of Indian, 1949
It is submitted before the honorable court that admissions made by Dr. Anurag in investigation
leads to violation of his right against Self incrimination under article 20(3). An accused cannot be
compelled to be a witness aginst himself. In the present case Dr. Anurag has been compelled by
the police officers to act as witness against himself.

The Indian Constitution provides immunity to an accused against self-incrimination under Article
20(3) – ‘No person accused of an offence shall be compelled to be a witness against himself’. It is
based on the legal maxim “nemo teneteur prodre accussare seipsum”, which means “No man is
obliged to be a witness against himself.”

12
Section 26 in the Indian Evidence Act,1872
13
Vikram Singh and ors. v. State of Punjab, AIR 2010 SC 1007.
14
6 A 509 (F.B.).

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ISSUE VI
4.6 DDC Hospital cannot be held liable to pay fine Under section 304A of the Indian Penal
Code, 1860
4.7
4.7.1 [A] DDC Hospital is not liable to pay fine under section 304A of the Indian Penal Code,
1860 as no death is caused due to its act or omission.
4.7.2
Section 304A of the Indian Penal Code reads as follows-
Causing death by negligence.—Whoever causes the death of any person by doing any rash
or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

The main essentials of this section are-

a) Death of a person
b) Death must be due to rash and Negligent Act
Thus it is clear from the above definition that in order to fasten liability under this section it is
necesassy that some person should have died but in present case no one has died in hospital or due
to negligent act of Hospital.
4.7.2.1 Dr. Anuarg was not acting under Course of employment
It is an undisputed fact that Mr. Shukla and Mr. Rao contracted Flu 2.0 Virus and died of this
Virus. Both of them have admitted that they have visited Dr. Anurag’s home for treatment, but
Dr. Anurag was soley acting in his personal capacity as a doctor and was not acting on behalf
of the Hospital in the Course of his Employment.
Therefore Criminal liability of Hospital Under section 304A of the Code cannot be fastened.
Also there is no provision in criminal Law for Vicarious Liability-

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4.7.3 [B] Act of the DDC hospital is not negligent

4.7.4
It is contended before the Honorable court of Sessions that DDC hospital cannot be held liable to
pay fine under section 304A as the hospital was acting in good faith as the hospital authorities
were not aware about the recent visit of Dr. Anurag nor were they aware about the fact that Dr.
anurag has been advised to observe quarantine for 28 days.
As the whole region of satpura was under the influence of Flu 2.0 virus, there were only few
doctors left who could provide their services for the normal deadly diseases.
Thus DDC Hospital is Completely Justified in their Decision to allow Dr. Anurag to provide
services for the mankind.

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5 PLEADINGS/ARGUMENTS ADVANCED

ISSUE I

5.1 Court of Sessions does not have the power to take cognizance of all the cases
It is contended before the honorable court of sessions that it is not empowered to take cognizance
of all the offences as

5.1.1 [A] Offences under section 304A, section 269 ,section 270, section 284 of the indian
Penal Code,1860 are not triable by it as no case under section 304 is being made out
against my client Dr. Anurag
On the perusal of the schedule I of the Code Of Criminal Procedure ,1973 counsel observed that
the offence under section 304A of the code is triable by Judicial Magistrate first class and offences
under section 269,270 and 284 of the code are triable by any magistrate, whereas no case under
section 304 is made out against Dr. Anurag, hence the honorable court does not holds power to try
the same.

Section 299 of the Indian Penal Code, 1860 is produced for the perusal of the Honorable sessions
court-

Thus the Essentials of the offence of culpable homicide are-

(5) There must be death of a person

(6) The death must be caused by an intentional act; or
(7) There must be intention to cause death by a bodily injury which is likely to cause death;or
(8) The death of a person must be caused by doing an act with knowledge that such act is likely
to cause death.

Dr. Anurag has acted in good faith without any malice in treating his patients as it was his duty to
treat them. He neither had intention to cause death of anyone nor he had knowledge that his act is

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likely to cause death. Infact there was negligence on the part of government authorities as they got
Dr. Anurag tested too late, after the death of one patient Mr. Shukla.

As the act of Dr. Anurag doesnot satisfy any of the following essential, no case of Culpable
Homicide not amounting to murder is made against him.

It is contended before the honorable sessions court that when no case triable by sessions court is
made against the accused the court must transfer it to the Chief Judicial Magistrate or to appropriate
magistrate.

Section 228 of the Code Of Criminal Procedure, 1973 can be quoted in Support of the above
Argument.

Section 228 of the Code reads as follows-

228. Framing of charge--

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground
for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief
Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-
cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be
read and explained to the accused and the accused shall be asked whether he pleads guilty of the
offence charged or claims to be tried.

Thus this section makes it clear that after hearing both Prosecution and the Accused and after
examining records under section 227 of the code, the judge is of opinion that the case is not
exclusively triable by it, it may after framing charges transfer the case of the CJM.

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In present situation as no case under section 304 of the Indian Penal Code, 1860 is made against
Dr. Anurag so the sessions judge may transfer the case to the chief Judicial Magistrate.

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ISSUE II

5.2 Bail application under section 167 of Code of Criminal Procedure, 1973 cannot be
rejected
5.2.1 [A] Bail application under section 167 of code of criminal procedure cannot be rejected as
it would lead to grave injustice and violation of fundamental right of life and personal
liberty given by article 21 of the constitution of India, 1950
The counsel humbly submits before the honourable sessions court that rejecting the bail application
of the accused would amount to miscarriage of justice and violation right given under article 21of
the constitution which says-

Protection of life and personal liberty- “No person shall be deprived of his life or personal liberty
except according to procedure established by law”15

Subsection (2) of section 167 reads as follows-

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he
has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused
in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody
of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for

15
Article 21 in the constitution of India, 1950

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doing so, but no Magistrate shall authorise the detention of the accused person in custody under
this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case may be, the accused person shall be released on
bail if he is prepared to and does furnish bail, and every person released on bail under this sub-
section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes
of that Chapter16

It is clear from the facts that the accused had already undergone detention for the period of 90
days and a mere plain reading of subsection (2) of section 167 of Code of Criminal Procedure,1973
makes it clear that on expiry of the period of 60 days or 90 days of detention bail has to be granted
to the accused if he is prepared to and does furnish bail.

The counsel would like to draw the attention of the honourable sessions court that the provision of
bail after the exipiration of 60 days or 90 days provided in section 167(2) (a) (ii) is mandatory as
the word “shall” is used there in.

The hon’ble Supreme Court of India observed in the case of Uday Mohanlal Acharya vs State
of Maharashtara17-

“on the expiry of the said period of 90 days or 60 days (under section 167), as the case may be, an
indefeasible right accrues in favor of the accused for being released on bail on account of default
by the investigating agency in the completion of the investigation within the period prescribed and

16
Section 167(2) in the Code of Criminal Procedure,1973
17
(2001) 5 SCC 453

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the accused in entitled to be released on bail, if he is prepared to and furnishes the bail as directed
by the magistrate”

The ruling given by supreme court in Uday Mohanlal case has been followed consistently in in
State of West Bengal v/s Dinesh Dalmia, ; Sanjay Kumar Kedia v/s Intelligence Officer, Narcotics
Officer & Anr ; Union of India v/s Nirala Yadav and Rambeer Shoken v/s State (NCT Of Delhi).

If the bail application of the accused is rejected it will amount to violation of fundamental right to
life and personal liberty, as the detention would not be in accordance with the procedure
established by law.

It has been observed by the Hon’ble Madras High court in Settu s/o Govindraj vs State18 as
under-

5.2.2 [B] The order passed by hon’ble supreme court extending period of limitation does
not applies to section 167 of the code of criminal procedure and does not affect right
to default bail
1. Order given by the honorable supreme court does not specifically mentions that it is applicable
to investigation also.

18
CRL OP (MD). No.5291 of 2020 PARA 14 DATED 08/05/2020

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The Hon'ble Supreme Court has not mentioned that police investigations would also be covered
by the said order.

For the ease of understanding the following excerpt of the order given by hon’ble Supreme Court
can be mentioned-

“To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to
file such proceedings in respective Courts/Tribunals across the country including this Court, it is
hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation
prescribed under the general law or Special Laws whether condonable or not shall stand extended
w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings”.19

It has been held by the honorable Supreme Court in Achpal vs State of Rajasthan20

“ on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right
accrues in favour of the accused for being released on bail on account of default by the
investigating agency in the completion of the investigation within the period prescribed and the
accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by
the Magistrate.”

The honorable justice GR Swaminathan of high court of Madras observed in Settu s/o Govindraj
vs State21

19
SUO MOTU WRIT PETITION (CIVIL) No(s).3/2020 dated 23/03/2020 IN RE : COGNIZANCE FOR
EXTENSION OF LIMITATION
20
(2019) 14 SCC 599
21
CRL OP (MD). No.5291 of 2020 PARA 14 DATED 08/05/2020

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“ Personal liberty is too precious a fundamental right. Article 21 states that no person shall be
deprived of his personal liberty except according to procedure established by law. So long as the
language of Section 167(2) of Cr.Pc remains as it is, I have to necessarily hold that denial of
compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right
under Article 21 of the Constitution of India. The noble object of the Hon'ble Supreme Court's
direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of
the respondent police, the direction of the Hon'ble Supreme Court which is intended to save and
preserve rights would result in taking away the valuable right that had accrued to the accused
herein.”

The counsel would also like to mention the order of honorable Uttarakhand High Court in the case
of Vivek Sharma vs State of Uttarakhand22 wherein hon’ble justice Alok Kumar Verma
observed-

“The Hon’ble Supreme Court has not mentioned in the said Orders that investigation will be
covered under these Orders. The Orders of the Hon’ble Supreme Court are binding on all the courts
including High Courts. No court has the right to interpret the Orders passed by the Hon’ble Apex
Court. Therefore, the police investigation is not covered under the Orders of the Hon’ble Supreme
Court.”

22
First Bail Application No.511 of 2020 ORDER DATED 12/05/2020

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ISSUE III

5.3 Dr. Anurag cannot be held liable for criminal negligence under Section 304A
It is submitted before the honorable Court of Sessions that Dr.Anurag cannot be held liable for
criminal negligence under section 304A of the Indian Penal Code,1860 as

[A] Dr. Anurag acted in good faith and he was bound by law to treat patients.

The counsel would like to mention some of the regulations of Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002 -

23
Regulation 2.1 in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
24
Supra Note 10

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Regulation 1.1.2- “The prime object of the medical profession is to render service to humanity;
reward or financial gain is a subordinate consideration. Who- so-ever chooses his profession,
assumes the obligation to conduct himself in accordance with its ideals. A physician should be an
upright man, instructed in the art of healings. He shall keep himself pure in character and be
diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty
without anxiety; conducting himself with propriety in his profession and in all the actions of his
life.”25

2.4 The Patient must not be neglected:

“A physician is free to choose whom he will serve. He should, however, respond to any request
for his assistance in an emergency. Once having undertaken a case, the physician should not
neglect the patient, nor should he withdraw from the case without giving adequate notice to the
patient and his family. Provisionally or fully registered medical practitioner shall not willfully
commit an act of negligence that may deprive his patient or patients from necessary medical
care.”26

It is submitted before the honorable court that as Flu 2.0 was prevalent in the whole country, all
the doctors were involved in treating the Flu 2.0 Virus and there were only few doctors left to
treat the other deadly diseases. So it could be considered an urgent situation.
As far as qualifications of Dr. Anurag are concerned, he was a qualified doctor of a reputed hospital
and he treated the patients in good faith as their diseases were in the range of his expertise.

5.3.1 [B] Dr. Anurag acted in good faith and there was no negligence on his part
For the perusal of the court relevant section are produced here,

25
Regulation 1.1.2 in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
26
Regulation 2.4 in Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.

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This section implies that act must be of such nature that there is neither any intention nor
knowledge that the act would in all probability cause death.

In order to impose criminal liability under this section, it is essential to establish that death is the
direct result of the rash and negligent act of the accused.27

And in view of this pronouncement we can say that the reason for death of MR. shukla is not only
the flu virus but his age and his medical background as per the reports of the FLU virus it mostly
affects the aged and person with medical history that can be cocluded as that there will be no death
if there had been some other person is there instead of him.

As far as negligence is concerned regarding profession of doctor which is considered as one of

the sacred profession. In profession of doctor negligence may only be said when there is any
deficiency in performing operation or treatment. Since mr shukla went to DR. for consultation of
stomach pain and dr. dealt very well there and mr shukla will not die because of the stomach
problem .He died because of Flu after 13 days of his ,meeting, Since he has no symptoms of flue

27
Md Rangawalla v State of Maharashtra AIR 1965 SC 1616 [LNIND 1964 SC 355].

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which can be concluded as error of judgment and error of judgment is not crime neither under civil
law or criminal law

Courts have repeatedly held that great care should be taken before imputing criminal rashness or
negligence to a professional man acting in the course of his professional duties. A doctor is not
criminally liable for a patient’s death, unless his negligence or incompetence passes beyond a mere
matter of competence and shows such a disregard for life and safety, as to amount to a crime
against the state.28

In the case of Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra29 while

dealing with Section 304A of IPC(death caused by negligence) , the statement of law by Sir
Lawrence Jenkins in Emperor v. Omkar Rampratap , was cited with approval:
“To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death
should have been the direct result of a rash and negligent act of the accused, and that act must be
the proximate and efficient cause without the intervention of another’s negligence. It must be
the causa causans; it is not enough that it may have been the causa sine qua non.” 30,

In Kusum Sharma & Ors vs Batra Hospital &Medical Research 31certain principles were
enumerated one of them are-
“Negligence is an essential ingredient of the offence. The negligence to be established by the
prosecution must be culpable or gross and not the negligence merely based upon an error of
judgment.In profession of doctor negligence may only be said when there is any deficiency in
performing operation or treatment.”
Since Mr Shukla went to Dr. for consultaiion of stomach pain and doctor dealt very well.

28
Jacob Mathew v. State of Punjab & Another (2005) 6 SCC 1
29
(1965) 2 SCR 622
30
(1902) 4 BLR 679
31
II (2010) SLT 73

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In Suresh Gupta (Dr) v Govt of NCT of Delhi & Another Supreme Court held that “for fixing
criminal liability of a doctor, the standard of negligence should not merely be lack of 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’. Further , “Where a patient’s death results
merely from error of judgment or an accident, no criminal liability should be attached to it. Mere
inadvertence or some degree of want of adequate care and caution might create civil liability but
would not suffice to hold him criminally liable”

In Martin F. D’Souza v Mohd. Ishfaq

It endorsed the concept of gross negligence delved in Jacob Mathew and stressed that the degree
of negligence sufficient to fasten criminal liability for medical negligence has to be higher than
that required to fasten civil liability. For holding a medical practitioner guilty under se 304A, gross
negligence on his part amounting to recklessness needs to be pr

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ISSUE IV

5.4 Dr. Anurag can be held liable for culpable homicide under Section 304 of the Indian
Penal Code,1860
It is submitted before the honorable Sessions Court that Dr. Anurag can be Held liable for Culpable
homicide not amounting to murder under Sectiom 304A of the Indian Penal Code ,1860 as

5.4.1 [A] He neither acted intentionally nor he had knowledge of the consequences of his
act
It is contended before the Honorable court that Dr. Anurag did not intend to cause the death
of any one as he was acting in good faith in providing treatment and he had no knowledge of
the consequences of his act.

It is the duty of the doctor to treat everyone, who comes to him in pain. The act of the doctor is
completely justified here.

Section 299 of the Indian penal code Defines Culpable Homicide as follows-

In the Present case Dr. Anurag was acting in good faith and had no intention to kill anyone nor he
had knowledge that his act of treating people can lead to there death.

The counsel would like to mention some of the regulations of Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002 -

32
Section 299 in the Indian Penal Code, 1860

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2.4 The Patient must not be neglected:

DR. ANURAG DO NOT HAVE KNOWLEDGE OF THE CONSEQUENCE OF THE ACT

The term 'knowledge' under section 299, IPC postulates the existence of positive mental attitude
and this mental condition is the special mens rea necessary for the offence, which contemplates
the likelihood of the death of the person. Here, knowledge means the personal knowledge of a
person who does the act. The word 'knowledge' is
a strong word and imports a certainty and not merely a probability.36

33
Regulation 2.1 in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
34
Supra Note 10
35
Regulation 2.4 in Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
36
MANUPATRA

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Dr. anurag Mehta is well known doctor and there is no history of rivalry between Dr. Agrawal and
mr. Rao which clearly shows that there is no intention behind the death of Mr. Rao. So,first
essential of culpable homicide i.e. intention is not present in the instant case.

5.4.1.1 Lack of knowledge on the part of Dr. Anurag

Further, there is no Knowledge about the flu on the behalf Dr. Anurag as there were no
symptoms of flu until his test was conducted. Along with this he had strong reason to
believe that he is not infected from virus as when he visited Spain the flu in Spain was not
rampant and serious, yet he after coming back from Spain inform authorities about this.
And authorities without complete check up allowed him to go and only advised him, which
shows that there is no obligation on Dr. Anurag to stay at home as they are only persuasive
in nature.

5.4.1.2 DR. ANURAG HAS ACTED IN GOOD FAITH, NOT INTENDED TO CAUSE
DEATH, WITH THE CONSENT OF PERSON FOR HIS BENEFITS
Section 8838 of the code provides that “Nothing, which is not intended to cause death, is an
offence by reason of any harm which it may cause, or be intended by the doer to cause, or
be known by the doer to be likely to cause, to any person for whose benefit it is Done in

37
MANUPATRA
38
Section 88 in The Indian Penal Code, 1860

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good faith, and who has given a consent, whether express or implied, to suffer that harm, or
to take the risk of that harm.”
In Suraj bali’s39 case where a lady lost her eyes and she has given consent for her eye treatment
and doctor has acted in good faith for her benefits.
The doctors-patient relationship has been defined as “a consensual relationship in which the patient
knowingly seeks the physician assistance and in which the physician knowingly accepts the person
as patient”40 at its core the doctor-patient relationship represents a fiduciary relationship.

So we can conclude that Mr. Rao has given consent to Dr. anurag for his treatment. Since there is
no proof that that he has any intention he can have the defence of section 88
Section 270 of the code cannot be applied upon Dr. Anurag as he did not have any strong belief
that he is having any flu and here evil intention to spread infection of disease dangerous to life is
not present then he shall not be liable.
Section 284 this talks about poison but here in the case nothing is poison as flu is infectious disease
so this section shall also not applied against Dr. Anurag.

39
28 A.W.N. 566.
40
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4732308/ Last accesed on 30th MAY 2020

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ISSUE V

5.5 The admissions made by Dr. Anurag to the investigation officer cannot be considered
as evidence against him
Admission is defined in section 17 of the Indian Evidence Act, 1872 as follows-
Admission defined.––An admission is a statement, [oral or documentary or contained in
electronic form], which suggests any inference as to any fact in issue or relevant fact, and which
is made by any of the persons, and under the circumstances, hereinafter mentioned41
Thus admission is a kind of statement whether given orally or in written form or in electronic form

It is contended before the honorable court of sessions that the admissions made by Dr. Anurag to
the investigation officer cannot be considered as evidence against him as-

5.5.1 [A] Statements given to investigation officer under section 161 of Code Of Criminal
Procedure , 1973 can only be used for the purposes mentioned in section 162 of code
of criminal Procedure ,1973
Section 16242 of code of criminal procedure can be mentioned here-

162. Statements to police not to be signed: Use of statements in evidence.—

(1) No statement made by any person to a police officer in the course of an investigation under
this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial
in respect of any offence under investigation at the time when such statement was made.

Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may
be used by the accused, and with the permission of the Court, by the prosecution, to contradict
such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872);

41
Section 17 in the Indian Evidence Act, 1872
42
Section 162 in the code of criminal procedure 1973

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and when any part of such statement is so used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only of explaining any matter referred to in his
cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions
of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions
of section 27 of that Act.

Explanation.—An omission to state a fact or circumstance in the statement referred to in sub-

section (1) may amount to contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission occurs and whether any omission
amounts to a contradiction in the particular context shall be a question of fact

The counsel humbly submits before the Honorable Court that Sub-section (1) and provisio to this
section43 makes it clear that the statements given by any accused to the police officer shall not be
used for any purpose except by the accused or the prosecution to contradict such witness who has
made statements in writing or whose statements have been reduced to writing in the manner given
in section 145 of the Indian Evidence Act, 1872.

It was held in Nandani Satpathy vs PL Dani44 that the word “any person” includes accused also.

In Sheik Kalesha v. Emperor 45 Jackson and Cornish, JJ., decided that a statement made by an
accused person to the Police in the course of their investigation of the case could not be used at
the trial for any purpose and section section 162 of Code Of Criminal Procedure applies to both
witnesses and accused.

It was held in Chinnama vs state of Kerela46 that “statements given to police during investigation
cannot be used as substantive evidence, they can only be used for raising suspicion against
credibility of the witness.”

43
Ibid
44
1978 Crl.J.968SC
45
(1931) 62 M.L.J. 71
46
1995 CrLJ1711(ker)

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A statement recorded by the police under s. 162 can be used for one purpose and one purpose only
and that of contradicting the witness.47

Tahsildar Singh and Ors. vs. The State of Uttar Pradesh (05.05.1959 - SC) : MANU/SC/0053/1959

In the case of Khatri and Others v. State of Bihar & Ors.48, Honorable Supreme Court has held
that Section 162 Cr.P.C. bars the use of any statement made before the police officer in the course
of an investigation under Chapter XII, whether recorded in the police diary or otherwise.

In Baldev Singh vs State Of Punjab , 1 that the statement recorded under Section 161 of the CrPC
shall not be used for any purpose except to contradict a witness in the manner prescribed in the
proviso to Section 162 (1)

In Jodha Khoda Rabri Vs state Of Gujarat49 Gujarat High court observed that “the limited use
of such statement is to contradict the maker of it.”

In Ismail Amir Sheikh Vs state of Maharashtra50 the Bombay High Court observed that-

“A statement made by a witness to the police cannot be brought on record even if it were beneficial
to the accused.”

The right granted to the accused under section 162 is total and absolute and no exception can be
taken to it by the prosecution51

It has been held In Rajendra singh vs. State of U.P that “a statement under Section 161 Cr. P. C is
not a substantive piece of evidence. In view of the provision to Section 162 (1) CrPC, the said

47
Ram Bali v. State A.I.R. 1952 All.
48
AIR 1981 SC 1068
49
1992 CrLJ 3298(Guj)
50
1985 CrLJ 273 (Bom)
51
Dalla Vs State of Rajasthan 1988 CrLJ 42 (Raj)

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statement can be used only for the limited purpose of contradicting the maker thereof in the manner
laid down in the said proviso.

In Pebam Ningol Mikoi Devi v. State of Manipur and others52 it was held that-

“The statements recorded by the police u/s.161 CrPC are not evidence for prosecution. They can
be used by the defence for contradicting the prosecution witnesses.”

It was observed by the Honorable Gauhati High Court in the case of Rabi Mohali Vs State of
Assam53

“A statement under Section 161 CrPC is not a substantive piece of evidence and no conviction can
be sustained if it proceeds on the basis of statement under Section 161 CrPC. A statement under
Section 161 CrPC can be used only for the purposes mentioned in Section 162 CrPC.”

As the statement to the police under Section 161 CrPC, not being a substantive piece of evidence,
it cannot form the basis of conviction.54

It was observed in the case of VK Mishra Vs State Of Uttarakhand55 that Section 162 CrPC
bars use of statement of witnesses recorded by the police except for the limited purpose of
contradiction of such witnesses as indicated there. The statement made by a witness before the
police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness
on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements
under Section 161 CrPC, recorded during the investigation, are not substantive pieces of evidence
but can be used primarily for the limited purpose:

(i) of contradicting such witness by an accused under Section 145 of the Evidence Act;

52
(2010) 9 SCC 618
53
Criminal Appeal (j) no.8 of 2014 Para 20
54
Ibid Para 23
55
(2015) 9 SCC 588

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(ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and
(iii) the re-examination of the witness, if necessary.

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5.5.2 [B] Confession made to police cannot be proved in court of law

It is humbly contended before the honorable court of sessions that the word confession has not
been defined in the Indian Evidence Act,1872 .

According to Sir James Stephen56 it is “An admission made at any time by a person charged with
a crime stating or suggesting the inference that he committed a crime”.

Thus as per Stephen’s definition the commission of crime may not be directly admitted by the
accused but even if it can be inferred from his statement, the statement would amount to a
confession.

It is clear from the above definition that confession is a kind of admission. Generally confession
means any statement made by the accused which proves his guilt.

Confession is a species of admission.57

The term appears for the first time in Indian Evidence Act under section 24. The Indian Evidence
Act 1872, when incorporating Sections 24 to 27 placed confession under the category of
admission.58

Section 25 in the Indian Evidence Act,1872 says-

25. Confession to police-officer not to be proved. ––“ No confession made to a police-officer,

shall be proved as against a person accused of any offence.”59

Thus the confession made by Dr. Anurag to the police officer cannot be proved against him in a
court of law.

56
Stephens Digest Article 21
57
Q.E. v. Ashootosh Chuckerbutty. I.L.R., 4Cal. 483, 492 (1878).
58
Q.E. v. Babu Lal, I.L.R., 6 All, 509,529 (1884)
59
Section 25 in the Indian Evidence Act 1872

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In the case of R v. Murugan Ramasay60, the Court identifies the fact that Police authority is
capable of creating menace for those under its scrutiny, this section is framed to protect people
from such an authority.
The words of Section 25 Evidence Act are wide enough to exclude any confession to a police
officer. Thus a confession made to a police officer at any time that is either before commencement
of investigation or after, is inadmissible.61

In Re Elukuri Seshapani Chetty,62 the court said that “the whole spirit of Section 25 of Evidence
Act is to exclude confession to the police and the movement a statement is found to amount a
confession it matters not in the slightest of what crime it is said to be a confession. The provisions
of Section 25 are unqualified. It indicates an absolute rule of exclusion relating to confession made
to a police officer.”

It was observed in Ramesh Kumar vs State Of Rajasthan63 that “Thus provision of law is
enacted to prevent coercive confessions which may be restricted by police officers from persons
accused of any offence. It is a safeguard embodying principles of natural justice as also
fundamental rights contemplated by Article 20 of the Constitution of India. It protects every person
from possible misuse of the power by a police officer in relation to commission of any offence.”

60
(1964) 64 C.N.L.R. 265 (P.C.) at 268.
61
S.P. Raj Kumar vs. Central Bureau of Investigation, S.C.B., Mumbai and ors., MANU/MH/0475/2016.
62
AIR 1937 Mad. 209.
63
1999 CriLJ 871

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5.5.3 [C] Section 26 of Evidence Act 1872 excludes confession made in police custody
For the kind perusal of the honorable Court section 26 of the Indian Evidence Act,1872 is
mentioned below-
26. Confession by accused while in custody of police not to be proved against him. ––“ No
confession made by any person whilst he is in the custody of a police-officer, unless it be made in
the immediate presence of a Magistrate, shall be proved as against such person.”64

A confession made by an accused whilst he is in police custody to any person be it a fellow

prisoner, a doctor or a visitor is inadmissible in evidence.”65

Mehmood J. has observed in Q. v. Babu Lal, 66 that “Section 25 and 26 lay down two clear and
definite rules. In Section 25 the criteria for excluding a confession is the answer to the query. To
whom was the confession made ?if the answer is that it was given to a police officer, the confession
is enormously excluded from evidence. On the other hand the criterion adopted in Section 26 is
the answer to the question. Under what circumstances was the confession made? If the answer is
that it was made whilst the accused was in custody of a police officer the law lays clown that such
confession shall be excluded from evidence unless it was made in the immediate presence of a
Magistrate.”

It was observed by Gauhati High Court in Dulu Basak and Ors. vs. The State of Assam and
Ors67 that “It is well settled law that Sections 25 and 26 of the Indian Evidence Act must be
construed strictly. Therefore, by operation of Section 26 of the Indian Evidence Act, the confession
made by the appellants, while they were in the custody of Police Officer, cannot be proved against
them. This being the legal position, the trial court, in our considered view, committed an apparent
illegality in relying upon the evidence of extra judicial confession made by the appellants, while
they were in the custody of Police. “

64
Section 26 in the Indian Evidence Act,1872
65
Vikram Singh and ors. v. State of Punjab, AIR 2010 SC 1007.
66
6 A 509 (F.B.).
67
MANU/GH/0393/2018 (02.05.2018 - GUHC) :PARA 9

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5.5.4 [D] Admissions made by Dr. Anurag cannot be considered as evidence against him as
it leads to violation of right under Article 20(3) of the Constitution of Indian, 1949
It is submitted before the honorable court that admissions made by Dr. Anurag in investigation
leads to violation of his right against Self incrimination under article 20(3). An accused cannot be
compelled to be a witness aginst himself. In the present case Dr. Anurag has been compelled by
the police officers to act as witness against himself.

In MP sharma vs Satish Chandra68 it has been observed-

“The privilege against self-incrimination is available at both trial and pre-trial stage i.e. when the
police investigation is going on and the person is regarded as an accused, or even if his name is
not mentioned in the FIR as an accused.”

“The Supreme Court held that the objective of Article 20(3) is to protect the accused from
unnecessary police harassment and the right against self-incrimination is available to witness and
the accused in the same manner, and it is applicable at every stage where information is furnished.
The privilege under Article 20(3) is applied at the stage of police investigation when the
information is extracted.”69

68
1954 AIR 300
69
Nandani sathpathy Vs P L Dani 1978 AIR 1025

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ISSUE VI
5.6 DDC Hospital cannot be held liable to pay fine Under section 304A of the Indian Penal
Code, 1860

5.6.1 [A] DDC Hospital is not liable to pay fine under section 304A of the Indian Penal
Code, 1860 as no death is caused due to its act or omission.

Section 304A of the Indian Penal Code reads as follows-

Causing death by negligence.—Whoever causes the death of any person by doing any rash
or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

The main essentials of this section are-

c) Death of a person
d) Death must be due to rash and Negligent Act
Thus it is clear from the above definition that in order to fasten liability under this section it is
necesassy that some person should have died but in present case no one has died in hospital or due
to negligent act of Hospital.

5.6.1.1 Dr. Anuarg was not acting under Course of employment

It is an undisputed fact that Mr. Shukla and Mr. Rao contracted Flu 2.0 Virus and died of this
Virus. Both of them have admitted that they have visited Dr. Anurag’s home for treatment, but
Dr. Anurag was soley acting in his personal capacity as a doctor and was not acting on behalf
of the Hospital in the Course of his Employment.
Therefore Criminal liability of Hospital Under section 304A of the Code cannot be fastened.
Also there is no provision in criminal Law for Vicarious Liability-

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It was observed by Honorable High Court of jharkhand in D. Mohan and Ors. vs. The State
of Jharkhand and Ors.70
“The Penal Code, 1860 save and except in some matters does not contemplate any vicarious
liability on the part of a person. Commission of an offence by raising a legal fiction or by
creating a vicarious liability in terms of the provisions of a statute must be expressly stated.
The Managing Director or the Directors of the Company, thus, cannot be said to have
committed an offence only because they are holders of offices. The learned Additional Chief
Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without
taking into consideration this aspect of the mailer. The Managing Director and the Directors
of the Company should not have been summoned only because some allegations were made
against the Company.”

5.6.2 [B] Act of the DDC hospital is not negligent

It is contended before the Honorable court of Sessions that DDC hospital cannot be held liable to
pay fine under section 304A as the hospital was acting in good faith as the hospital authorities
were not aware about the recent visit of Dr. Anurag nor were they aware about the fact that Dr.
anurag has been advised to observe quarantine for 28 days.
As the whole region of satpura was under the influence of Flu 2.0 virus, there were only few
doctors left who could provide their services for the normal deadly diseases.
Thus DDC Hospital is Completely Justified in their Decision to allow Dr. Anurag to provide
services for the mankind.

It is contended before the court that to convict a person or institution of Criminal Negligence a
very high degree of negligent or rash act is to be established by the prosecution. In the present case
the hospital was acting under its obligation to get patients treated by a qualified doctor.

70
2012(3)J.L.J.R.372 Para 13

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6 It was observed in V. Kishan Rao v Nikhil Super Speciality Hospital and another71

“Chief Justice Lahoti, speaking for the unanimous three-Judge Bench in Mathew 2005 Indlaw SC
452 (supra), made a clear distinction between degree of negligence in criminal law and civil law
where normally liability for damages is fastened. His Lordship held that to constitute negligence
in criminal law the essential ingredient of 'mens rea' cannot be excluded and in doing so, His
Lordship relied in the speech of Lord Diplock in R. vs. Lawrence, [(1981) 1 All ER 974 : [1982]
A.C. 510]. The learned Chief Justice further opined that in order to pronounce on criminal
negligence it has to be established that the rashness was of such a degree as to amount to taking a
hazard in which injury was most likely imminent. The neat formulation by Lord Atkin in Andrews
v. Director of Public Prosecutions, [[1937] A.C. 576 : (1937) 2 All ER 552 (HL) at page 556]
wherein the learned Law Lord delineated the concept of negligence in civil and criminal law
differently was accepted by this Court.”

Lord Atkin explained the shades of distinction between the two very elegantly and which is
excerpted below:
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the
criminal law there are degrees of negligence, and a very high degree of negligence is required to
be proved before the felony is established."
Chief Justice Lahoti also relied on the speech of Lord Porter in Riddell vs. Reid [[1943] A.C. 1
(HL)] to further identify the difference between the two concepts and which I quote:
"A higher degree of negligence has always been demanded in order to establish a criminal offence
than is sufficient to create civil liability."72

71
(2010) 5 SCC 513 Para 23
72
Ibid para25 and 26

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“In order to impose criminal liability under s 304A, IPC, it is essential to establish that death is the
direct result of the rash or (and) negligent act of the accused.19 It must be causa causans-—the
immediate cause and not enough that it may be causa sine qua non, i.e. proximate cause.20 There
can be no conviction when rashness or negligence of third party intervenes. In Suleman Rahiman
Mulani v State of Maharashtra 21 and Ambalal D Bhatt v State of Gujarat ,22 the Supreme Court
has approved this rule.”73

It has been observed in Jacob Mathews case74 “The jurisprudential concept of negligence differs
in civil and criminal law. What may be negligence in civil law may not necessarily be negligence
in criminal law. For negligence to amount to an offence, the element of mens rea must be shown
to exist. For an act to amount to criminal negligence, the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form the basis for prosecution.”

“there are number of provisions of law in which it would be physically impossible by a limited
company to commit the offence. A limited company ,therefore, cannot generally be tried for
offences where mens rea is essential.”75

In Kusum Sharma v. Batra Hospital76 Supreme Court observed that “It is a matter of common
knowledge that after happening of some unfortunate event, there is a marked tendency to look for
a human factor to blame for an untoward event, a tendency which is closely linked with the desire
to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A
professional deserves total protection.”

73
PSA Pillai: Criminal Law,12th Edition
74
AIR 2005 SC 3180
75
Indraprastha Medical Corp. Ltd. vs. State NCT Of Delhi & Ors., Crl.
M.C. No. 827 of 2010, High Court of Delhi,
76
(2010) 3 SCC 480

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Prayer for Relief

In the light of the issues raised, arguments advanced and authorities cited, it is humbly submitted
that the Hon’ble Sessions Court be pleased to declare that:

I. Court of Sessions does not have the power to take cognizance of all the cases.
II. The bail application under Section 167, Cr.P.C. is not liable to be rejected.
III. Dr. Anurag is not liable for criminal negligence under Section 304A.
IV. Dr. Anurag is not liable for culpable homicide under Section 304.
V. The admissions made by Dr. Anurag to the investigation officer cannot be considered
as evidence against him.
VI. DDC Hospital is not liable under Section 304A to pay fine.

And pass any other order that it may deem fit in the interest of justice, equity and good conscience.

And for this act of kindness, the Respondent shall duty bound forever pray.

s/d
(Counsel For Defence)

Memorial On Behalf Of Defence P a g e | 55

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