Criminal Procedure Summed Up

The Code of Criminal Procedure, 1973 (the Code), as the name suggests is the law relating to criminal procedure and is applicable to all criminal proceedings in India (except in the States of Jammu and Kashmir, Nagaland and Tribal Areas of Assam). The Code, which first came into being in 1898, was completely revamped in 1973 to simplify procedures and speed up trials as far as possible.

Provided hereunder is an attempt to summarize the vast Code and to provide an outline for procedural formalities in criminal offences.

HIERARCHY OF COURTS:

The Indian Judiciary is active at three distinct levels, a hierarchy of which, in descending order, is provided hereunder: 

1. Supreme Court of India
2. High Courts of concerned states
3. District Courts:

• Civil District Court (civil matters)/Court of Sessions (criminal matters) 
• Chief Metropolitan Courts 
• Court of Metropolitan Magistrate – I (the Magistrate) 
• Court of Metropolitan Magistrate - II 

SOME DEFINITONS:

1. Bailable Offence: According to Section 2(a) of the Code, an offence which is shown as “bailable” in the First Schedule of the Code or any other law in force is a bailable offence. In common parlance, bailable offence means an offence which is generally not of serious nature, in which bail is granted to the accused as a matter of right.

2. Non-Bailable Offence: Section 2(a) of the Code states that a non-bailable offence is any other offence. The Court or the Police Officer in that cases, can even refuse to grant bail to the accused. These offences are generally of a serious nature.

3. Cognizable Offence: According to Section 2(c) of the Code, an offence under which arrest of the accused can be made without a warrant.

4. Complaint: Section 2(d) of the Code defines a complaint as any allegation made orally or in writing to a MAGISTRATE with a view to his taking an action under this Code that some person has committed an offence and it does not include a Police Report or a First Information Report.

5. Inquiry: Section 2(g) of the Code defines inquiry as any inquiry conducted by a Magistrate or Court other than a trial.

6. Investigation: Section 2(h) the Code states that investigation includes all proceedings made for collection of evidence conducted by a Police Officer or any other person who is not a Magistrate.

7. Non-Cognizable Offence: Section 2(l) of the Code describes a non-cognizable offence as an offence in which a Police Officer has no authority to arrest without warrant.

8. Offence: Any act or omission thereof becomes an offence only when the State provides for it in any Act or Statute. There are two types of offences:

• Offences of personal nature: where the parties to a case remain two individual legal persons and it includes an artificial person. 
• Offences against the State: Offences which are of serious nature, which disturb the public order. The State takes over from the complainant/victim and represents the case on their behalf. 

9. Police Report: According to Section 2(r) of the Code, a report forwarded by a Police Officer to a Magistrate. In common parlance, it is also known as a Challan or a Chargesheet.

10. Public Prosecutor: A person who is the Counsel for the State. The Public Prosecutor can never represent a case on behalf of the accused.

11. Summons Case: Section 2(w) of the Code defines summons case as a case relating to an offence which is not a warrants case.

12. Warrants Case: Section 2(x) of the Code states that a warrants case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

THE PROCEDURE:

1. Filing of FIR/Complaint

• Initiation of any criminal case begins with filing of an FIR or a Complaint. Sections 154-156 of the Code provides for provisions for filing an FIR with a Police Officer. According to Lalita Kumari v. Govt. of U.P. [2013 (13) SCALE 559], a Police Officer cannot refuse to register a FIR in case the offence is cognizable. Moreover, no preliminary investigation is permitted in such a situation. However, the precedent also provided that in cases of offence against public servants or in relation to medical negligence, corruption, or matrimonial discord a preliminary investigation is must. 
• If a Police Officer refuses to register the FIR, the aggrieved can send such piece of information in writing to the Superintendent of the Police who shall investigate the case himself or order the Police Officer to register an FIR.
• The aggrieved person can also make a complaint to the Magistrate who shall take cognizance of the case by himself or order the Police Officer to investigate the said case.

2. Arrest and Bail

• The arrested person also has rights which are laid down in sections 157, 41A-41D, 46-47, 51-54A, 55A, 56-57 and 60A of the Code.
  
  Provisions of bail are contained in Sections 436-439 of the Code.
• In cases of bailable offence, bail is granted to the accused as a matter of right. Bail in such cases can be granted by both Police Officer and a Magistrate, depending on which stage the case is on. Bail is granted to the accused after he executes a bail bond with surety (guarantee). 
• In case of a non-bailable offence, bail is granted to the accused, either by the Police Officer or by the Magistrate, if he is arrested without a warrant but subject to certain conditions as provided in the Code. 
• If however the offence pertains to an offence against the State, against human body or against property as provided in the Indian Penal Code (IPC), or an offence punishable with imprisonment which may extend to seven years, only the Court has the power to release the accused on bail subject to the conditions prescribed in the Code. 
• Anticipatory Bail: Where a person has a reason to be believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply for bail in the High Court or Court of Sessions for a direction that on his arrest he shall be released on bail on conditions as imposed by the above mentioned Courts. 

3. Pre-Trial Proceedings

• A Magistrate can take cognizance of an offence either on the basis of complaint made to him, FIR or a Police Report or suo moto (upon his own knowledge). 
• Once the Magistrate takes cognizance of the offence, the complainant is examined on oath and substance of such examination is reduced to writing.
• Depending upon the nature of the case, the Magistrate issues a summon or a warrant to the accused, after payment of relevant process fees. The summon or a warrant is accompanied by a copy of the complaint so registered.
• Charge is framed on the accused for the offence committed by him, stating the particulars of the offence he is accused of committing. 

4. Trial: Aquittal or Conviction
A brief outline of a how a case proceeds in a trial is provided hereunder:

• Public Prosecutor/Complainant initiates the trial.
• The accused is produced by way of a summon or a warrant.
• Charge is framed by the Court for the offence committed by the accused.
• If, after production the accused pleads guilty, the Court can pass an order for conviction.
• If the accused does not plead guilty, a date is fixed for examination of witnesses and evidences of the Prosecution.
• The pleaders by due permission of the Court, cross-examines the witnesses. 
• The Counsel for accused then provide their witnesses and evidences.
• After the witnesses are examined, the prosecutor sums up his case by way of arguments to which accused or his pleader is entitled to reply.
• After the arguments, the Court gives a judgement of conviction or acquittal.
• The Code also provides for Summary Trials in Sections 260-265 of the Code, a topic that is vast enough to be covered in subsequent blogs. 

5. Other means of disposal of cases

• Compounding of Offences:
  Compounding of offences means disposing off the case between two parties without any prosecution. Section 320 of the Code calls for compounding of offences. It provides for offences that can be compounded without the permission of the Court, offences which can be compounded only by the permission of the Court and who can compound the said offences. It is to be noted that only those offences mentioned in the Code can be compounded.
• Plea Bargaining:
  Plea Bargaining is one of the means whereby the accused, on conviction can plead for a lesser punishment. The provisions of plea bargaining were added in the Code as a new Chapter XXIA and is applicable in respect of those offences for which punishment is upto a period of seven years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence committed is committed against a woman or a child below 14 years. Also, once the Court passes an order in this case, no appeal lies to any Court against the order.

6. Inherent powers of High Courts:
Section 482 of the Code provides for inherent powers of the High Court meaning thereby that High Court of the concerned state can be directly approached. The inherent power of High Court may be exercised:

• To give effect to an order under the Court 
• To prevent abuse of the process of Court 
• To secure the ends of justice.

SOURCES:
The Code of Criminal Procedure, 1973
Case Material on Law of Crimes – II, Faculty of Law, University of Delhi

Legal Recourse in Cases of Medical Negligence

Not defined in any Indian Act or Statute per se, medical negligence, in common parlance, is negligence by act or omission by a health care provider in which the treatment provided to a patient falls below the accepted standard of practice in the medical community and causes injury or death to the patient.
Since medical profession is the noblest of all professions, a medical practitioner requires a certain degree of skills and knowledge, due to which the standard of care is generally high. They can only be held liable, when the standard of care is reasonably less than the standard of care that is generally exercised by a competent practitioner.

Provided hereunder is an analysis of medical negligence in India and the legal recourse, both civil and criminal in nature, which can be sought in such cases.

The essential elements in any kind of negligence are:

1. Legal duty of care towards the plaintiff;
2. Breach of that duty;
3. Consequential damage caused to the plaintiff.

Doctors are said to be in a fiduciary relationship with their patients and it is on the basis of this relationship that the doctors can also be accused of negligence, which has now come to be known as medical negligence.

MEDICAL NEGLIGENCE: AS A TORT AND AS AN OFFENCE

The landmark case of Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], provides answers to the two most important issues concerning medical negligence:

1. Whether there is a distinction between civil and criminal laws of negligence?
2. Whether a different standard is applicable for recording a finding of negligence when a medical practitioner in particular is to be held guilty of negligence?

The Apex Court held that it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea (the guilty mind) cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.

Therefore, it is only when a person fails to give any thought to the possibility of there being any such risk, and nevertheless goes on to do it would be considered gross negligence. In other words, it is a complete disregard for possible consequences.
It was also held that the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

CIVIL RECOURSE:

Civil suits in case of medical negligence can be filed for damages in torts (civil wrong) in the Consumer Disputes Redressal Forums established under the Consumer Protection Act, 1986 (the Act).

Ques: Whether services rendered by a medical practitioner falls within the ambit of service as defined in section 2(1) (o) of the Act?

The Act defines service as following:
Service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

The Apex Court in Indian Medical Association v. V.P. Shantha [AIR 1996 SC 550], held that the service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of service as defined in section 2(1) (o) of the Act. Distinguishing between contract of personal service and contract for personal service, the Court held that in absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a contract of personal service and are contracts for personal service and therefore is not covered by exclusionary clause of the definition of service contained in the Act.

The procedure for approaching Consumer Dispute Redressal Forum is mentioned as under:

1. Complaints may be made to:
   District Forums in case of complaints where value of goods or services rendered along with the compensation, if any, claimed does not exceed Rs. 20 lakhs;
   State Commission where value of goods or services rendered along with the compensation, if any, claimed is more than Rs. 20 lakhs but does not exceed Rs. 1 crore, and;
   National Commission where value of goods or services rendered along with the compensation, if any, claimed exceeds Rs. 1 crore.
2. The complaint to these statutory bodies has to be made within 2 years from the date of cause of action.
3. According to section 15 (Appeal) of the Act, any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order. However, State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
4. As per provisions laid down in section 19 (Appeals) of the Act, any person aggrieved by an order made by the State Commission in exercise of its powers may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed. However, the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
5. Further appeal may be made to the Supreme Court within a period of 30 days from the date of order passed by the National Commission.

CRIMINAL RECOURSE:

Any act or omission thereof, becomes an offence only when the State considers it so. Because of the reasons abovementioned, the act done by medical practitioners in course of their duties, is to an extent protected by the Indian Penal Code, 1860 (IPC) under Chapter IV (General Exceptions) in its sections 80 (accident in doing a lawful act), 81 (act likely to cause harm but done without criminal intent), 88 (act not intended to cause death, done by consent in good faith for a person’s benefit), and 92 (acts done in good faith for benefit of a person without consent). The interpretation for above is that if established that the act or omission thereof is falls in the ambit of any of the above sections, then the same is not an offence under IPC.
This does not mean that medical practitioners can never be held criminally liable for any act of negligence committed by them. Grave medical negligence is not protected under IPC and the medical practitioner can be held liable for an offence if his/her act or omission thereof falls under sections 304A (death by negligence), 337 (causing hurt by act endangering life or personal safety of others) and 338 (causing grievous hurt by act endangering life or personal safety of others) of IPC.

The complaint mechanism in cases of criminal offence involves registering a First Information Report in a Police Station and then the Courts taking cognizance of the same. In Lalita Kumari v. Govt. of Uttar Pradesh [2013 (13) SCALE 559], it was held that under section 154 of the Code of Criminal Procedure, 1973, a Police Officer cannot refuse to register a First Information Report in cases concerning cognizable offence. The said judgement however provided exception, inter alia, in cases of medical negligence.

The judgement quoted Jacob Mathew Case and given below are the points for consideration while making a complaint/FIR accusing a medical practitioner of criminal negligence:

1. A professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
2. No private complaint will be entertained against any medical practitioner for prosecution against offences of which criminal rashness or negligence is an ingredient, unless the complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor.
3. FIR can be refused to register till the time a preliminary enquiry is duly conducted and some credible evidence is found for such cases.
4. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
5. The famous Bolam Test as laid down in Bolam v. Friern Hospital Management Committee, [(1957) 1 W.L.R. 582, 586] would be applied while deciding the culpability of a medical practitioner:
   “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

SOURCES:

Case Material on Law of Crimes – II, Faculty of Law, University of Delhi;
Case Material on Law of Torts, Faculty of Law, University of Delhi;
The Consumer Protection Act, 1986;
The Indian Penal Code, 1860;
www.indiankanoon.org