Legal Procedures in India for Doctors

• Doctors are an integral part of the country.
• They have role in dispensing justice by the court of law while dealing with civil or criminal matter affecting life and social cause
• Medical men or doctors have to appear in the court of law to give evidence in matters related to medico-legal cases
• Thus, its important that the doctors are acquainted with the law, legal procedures, legal terms and court procedures.
• In fact every citizen has duty to assist the court of law whenever required.

Legal system

• It consist of civil law and criminal law
• Accordingly the matters are either civil cases or criminal cases.
• Article 21 of constitution guarantees the citizen right of protection of life and personal liberty

Civil cases

• Such cases are not related with any offense or crime
• It includes disputes between two individuals or parties
• Examples are land matters, contract breach, copyright issues, debt matters
• In such cases court do not award punishments
• The affected person is called as “plaintiff” and the other person against whom the action is brought is called “defendant”
• For dealing such cases Civil Procedure Code is required

Criminal cases

• These are the cases related with some offense or crime.
• The Government wants to ensures peace of citizens by law and order.
• This is maintained via Police
• Examples  of criminal cases are robbery, murder, rape etc.
• Case is related with commission of crime by one person with another
• In such cases court awards punishments and sometimes punishment plus fine.
• If the accused is arrested by the police, he/she is presented in the court by Govt. lawyer
• The case is labelled as, ‘accused verses the Government of (state)’ or the ‘accused verses the Government’

Classification of criminal cases

• Warrant cases: the offenses punishable with death sentence, imprisonment for life or a term exceeding 2 years are termed warrant cases
• Summons cases: in such cases punishment does not exceeds 2 years.

Offenses

Any act made punishable by the law in respect of which a complaint can be made

They are:

• Cognizable
• Non cognizable
• Bailable Offences
• Non-bailable offences

Cognizable: in which the police can arrest the accused without a warrant from the magistrate. E.g. rape, murders, dowry death, ragging

• When the police station is informed about such an offence, it is written in a separate register or a book (as per section 154 of CrPC) and read over to the complainant
• The signature of the complainant is also taken.
• This piece of information is called as First information report (FIR)
• The officer in charge of the police station may do the investigation without the order of the magistrate in such cases (section 156 CrPC)
• Cognizable offences can be bailable and non-bailable

Non-cognizable:

• A warrant is needed from the magistrate. E.g. attempt to suicide, quarrel between two women at public tap, attempt to suicide, cheating, forgery, defamation
• When such an offence is reported the information is taken as such and recorded in the registered prescribed for this purpose
• Such cases are referred to the magistrate for information
• Police officer cannot investigate the case without the order of the magistrate. (section 155 of CrPC)

Bailable Offence:

• Bailable offence is an offence in which bail can be granted
• The bail can be granted either by the police officer investigating the case or by the court.
• The bail is given on the basis of bond known as ‘Bail bond’.
• It contains certain terms and conditions which are to be followed by the accused.
• These are offences which have imprisonment for less than 3 years or with fine only
• Examples are: causing public nuisance, bribery, death by rash and negligent act

Non-Bailable offences:

• The offence in which the bail is not a matter of right
• In this case the accused has to apply to the court directly for bail and it is the decision of the court to give bail or not.
• Such offences have punishment of death, imprisonment for life or more than 3 years.
• Examples are: ragging, dowry death, murder, rape etc.

Punishments

• As per section 53 of IPC the various punishments are:
• Death sentence
• Imprisonment for life
• Imprisonment with hard labor or simple imprisonment
• Forfeiture of property
• Fine

Basics of law

The forensic medicine and the laws for doctors (medicolegal cases) is mostly concerned with criminal law. Have a look at some of the basics of these laws and terms used in the system of law.

Indian penal code:

• Penal means punishment
• In this code the offenses are defined and thereafter punishments are also defined
• E.g. rape is defined under section 375 of IPC and punishment under section 376 of IPC
• Police uses these sections to register an offense or crime
• Court decides its right description and accordingly awards punishment.

Criminal Procedure Code (CrPC):

• Deals with how a criminal case should be dealt by the police
• Basically it deals with the procedure of investigating a given case

Indian Evidence Act (IEA)

• This act deals with the collection and interpretation of the evidences produced before the court of law
• It deals with the procedure of collecting and demonstrating various evidences before the court of law.

Other acts used by the police

• Protection of Children from sexual Offences Act 2012
• MTP act 1971
• Transplantation of Human Organs Act 1994
• Motor vehicles Act 1988
• Drugs and Magic Remedies Act 1954
• Environment protection Act 1986

Statute law or codified law

• These laws are prepared by legislatures and parliament or published in gazette of India.
• IPC, IEA, CrPC are examples of statute law or codified law

Case Law

• When a judgement is given by a supreme court, it is followed by all the lower courts
• And the judgement then becomes the law.
• For e.g. Homeopathy practitioners will be liable for compensation if he practices allopathic treatment.

Common Law

• These are used in certain matters which are not covered under statute law.
• These are made by a body of judges
• Some of these laws were formed before independence and are still followed as they are followed in England
• For e.g. “law of Tort”
• Certain injuries caused by one person to another is not covered in criminal law or any other statute law.

Subordinate legislation

• They are in the form of rules, regulations, standing orders, resolutions, notification circulars and by laws.
• These are made by the central government or state government or local bodies like municipal corporation or gram Panchayats
• These subordinate legislations are made as per the need of the situation.

Inquest

• In=in; Quest=to seek
• “An Inquest is a legal inquiry or investigation to ascertain the circumstances and cause of death”
• Done in sudden, suspicious, unnatural deaths
• It is a document prepared by the police

Inquest are of 4 types

1. Police inquest
2. Magistrate Inquest
3. Coroner inquest
4. Medical examiner’s system

Police Inquest

• It is conducted under section174 of CrPC
• Conducted by police officer (at least Sub-inspector rank)
• In some areas or state, it is even conducted by head constable
• The officer conducting the inquest Is called as Investigating officer (IO)
• On information about death, IO proceeds for Inquest with information to the Magistrate
• At the scene IO prepares Panchnama or Inquest report after investigating the scene along with other responsible person of the area
• The panchnama includes the description of the scene, apparent cause of death, presence and extent of injuries etc
• Then the IO and panchas signs the report
• The body is forwarded to Govt. Doctor with a requisition and copy of Inquest report for post mortem examination.

Magistrate Inquest

• Conducted under section 176 CrPC
• District magistrates or district collectors, Sub divisional Magistrate or Executive Magistrate (tehsildar) holds power to conduct Inquest
• It is superior to police Inquest
• It is done under following:
  • Death in police custody
  • Death in prison
  • Dowry death
  • Exhumation
  • Death due to police firing
• In any case of death magistrate can conduct an inquest instead of police

Coroner’s Inquest

• Under Coroner’s Act 1871
• Was practiced in Kolkata and Mumbai
• Discontinued in July 1999
• Coroner is an officer of First class rank Magistrate by the state govt.
• The coroner may be a doctor, a lawyer or both
• Coroner can conduct inquest for all unnatural or suspicious death occurring in Jail.
• He can order for post-mortem if required or even order exhumation
• Coroner examines the witness and records evidences
• Gives a verdict about the cause of death
• If the accused in not found or identified, he declares it as open verdict
• Open verdict is announcement of commission of crime without information regarding the accused

Medical Examiner’s System

• Not followed in India
• Followed in most states of US
• It is done by medical examiner who is a forensic pathologist
• All types of sudden, unnatural or suspicious deaths are analyzed by the medical examiner
• Considered superior to all.

Courts

There are 2 types of court of law in India

1. Civil courts
2. Criminal courts

Criminal courts deals with criminal cases and are of 4 types

1. The supreme court
2. The high court
3. The sessions court
4. The magistrate court

Supreme court

• Located in New Delhi
• Highest judicial tribunal of India
• Supervises all other courts
• For criminal cases, it acts as appeal courts
• It can sustain or alter the punishment given by lower courts

High court

• Located in the capital of the states
• Highest tribunal in that state
• Deal with appeals of criminal cases
• Confirms death sentence passed in a session court

Sessions court

• Presided by senior judge known as Principal Sessions Judge
• Other courts are called Additional courts of sessions
• The session court can pass any judgment or sentence authorized by law
• In case of death sentence, it has to be authorized by high court

Assistant session courts:

• Located at sub-division in a district
• Presiding officer is called assistant sessions judge
• Can pass sentence of imprisonment up to 10 years and unlimited fine

Magistrate courts

They are of three types

• Chief judicial magistrate or chief metropolitan magistrate
• First class judicial magistrate or metropolitan magistrate
• Second class judicial magistrate

Special courts

• In some districts Mahila courts have been formed which are presided by Female Judge
• They are additional court of sessions
• Special courts for offenses under STSC, Prevention of terrorism act (POTA), Terrorists and disruptive activities act (TADA) etc.

Juvenile courts

• Under Care and Protection of children Act 2000.
• Juvenile is a child not completed age of 18 years.
• Juvenile justice board are constituted under juvenile system
• Understanding the growth needs of juvenile.
• Juvenile justice board consist three person
  • One metropolitan magistrate or first class judicial magistrate
  • Two social workers out of which one is woman.
• The bench holds power conferred by CrPC
• If juvenile does not remain juvenile during trial, it remains in the same bench

Summons or Subpoena

• A summon is a writ (written court order) compelling the attendance of the witness in a court of law, at specified date, time and place, and for a specified purpose under penalty
• Sub=under; Poena=Penalty

Procedure of serving summons

• Issued by the court with Signature of Judge and seal
• Served to witness by a Police officer of the court or any govt servant
• After receiving the summon, the witness must sign at the back as a receipt and keep a copy with him or her
• The witness may obey the court in any condition
• If the witness have some valid or urgent reason, he/she can inform the court in writing
• If the witness is in government service, the summon is sent to the head of the office.
• In case of absenteeism of the witness in spite of summons, the court issues Bailable or Non-bailable warrant
• In bailable warrant the witness has to provide sufficient security
• In non-bailable warrant the police arrests the witness and produce before the court.
• Proclamation for person absconding (under section 82 (1) of CrPC)
• Attachment of property of person absconding (under section 83 (1) of CrPC)
• Section 350 CrPC
• Disobedience of summons is a punishable offense (imprisonment for 6 months or fine of Rs. 100 or both)
• The doctor should give priority to the criminal court with information to civil court if he receives summon from civil and criminal court
• If the witness receives summons from a higher and a lower court, higher court should be given the priority
• If courts are of same status, the summon received first should be given the priority

Conduct Money

• It is the amount paid to the witness
• Given in case of civil cases
• Paid by the party who called the witness through court
• A receipt is taken
• In criminal cases its responsibility of the citizen
• Conveyance charges given to Doctors
• Govt. Drs are given conveyance charges by the head of institution or organization.