NATIONAL MOOT COURT COMPETITION 2019

IN THE HON’BLE HIGH COURT OF MADHYA PRADESH, INDORE BENCH

IN THE MATTER OF

THE STATE OF MADHYA PRADESH

Vs.

THE SANTRAM INSTITUTE OF MEDICAL SCIENCE

DR. GULATI

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2019

TABLE OF CONTENTS

LIST OF ABBREVIATIONS - - - - - - - - II

INDEX OF AUTHORITIES - - - - - - - - III

STATEMENT OF JURISDICTION - - - - - - - VII

STATEMENT OF FACTS - - - - - - - - VIII
STATEMENT OF ISSUES - - - - - - - - IX
SUMMARY OF ARGUMENTS - - - - - - - - X
ARGUMENTS ADVANCED - - - - - - - - 1
I. DOCTOR GULATI AND MANAGEMENT ARE NOT LIABLE FOR CULPABLE HOMICIDE NOT
AMOUNTING TO MURDER U/S 304- - - - - - - - 1
II. DOCTOR M. GULATI AND OTHER TEAM MEMBERS ARE NOT LIABLE FOR CRIMINAL
NEGLIGENCE OF MURDER U/S 304A- - - - - - - 3

A. THE ACT OF RESPONDENT WAS UNDER MEDICAL NECESSITY - - 4

B. THE RESPONDENT DID THE ACT WITH REASONABLE CARE - - - 5
C. FLAWED INVESTIGATION REPORT - - - - - - 6
D. THE ACT WAS DONE IN GOOD FAITH - - - - - - 6

E. PROFESSIONAL NEGLIGENCE - - - - - - 7
F. DIFFERENCE IN CIVIL AND CRIMINAL NEGLIGENCE - - - 8

PRAYER - - - - - - - - - - XI

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LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Co. Company

CompLJ Company Law Journal

Corpn. Corporation

Cr. Criminal

Edn. Edition

Govt. Government

Hon‟ble Honourable

i.e. That is

Ltd. Limited

No. Number

Pvt. Private

QB Queens‟ Bench

SC Supreme Court

SCC Supreme Court Cases

v. Versus

Vol. Volume

www World Wide Web

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INDEX OF AUTHORITIES

A. Table of Cases

S. No. Name of the Cases and Case Citation Page No.

1. Andrews v. Director of Public Prosecutions [1937] A.C. 576 5
2. Arun Balakrishnan Iyer v. Soni Hospital AIR 2003 Mad 389 4
3. Bhalchandra Waman Pather v. State of Maharashtra, Mh L.J. 423 8
4. Bolam v. Friern Hospital, (1957) 2 All ER 118 3
5. Dr. Gangadhar Behra v. State of Orissa 2001 CrLJ 2643 (Ori) 1,6,8
6. Dr. Lakshmanan Prakash v. State, 2001 ACJ 1204 7

7. Dr. Mrudla Suresh Deshpande v. The State of Maharashtra 2001 2

(3) BOMLR 205
8. Hucks v. Cole and Anr (1968) 118 New LJ 469 2,6
9. Indian Medical Association v. V.P. Shantha, 1995 (8) JT 119 7
10. Jacob Mathew vs. State of Punjab 2005 (3) CPJ 9 3,6
11. K.Sadanand v. Lisie Hospital 2006 (1) CPJ 24 7

12. Kusum Sharma and Ors. v. Batra Hospital and Medical Research 2
Centre and Ors., AIR 2010 SC 1050
13. Lakshmanan Prakash v. State, 2001 ACJ 1204 3
14. Mahadev Prasad Kaushik v. State of U.P AIR 2009 SC 125 1,7

15. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 3

1162
16. Michael Hyde and Associates v. J.D. Williams & Co. Ltd. [2001] 7
P.N.L.R. 233
17. P.B. Desai v. State of Maharashtra, AIR 2014 SC 795 3,7,8
18. Pt. Parmanand Katara v. Union of India and Ors 1990 CriLJ 671 4
19. R v. Adomako [1994] (3) All E.R. 79 2

20. Suresh Gupta v. Government of N.C.T of Delhi AIR 2004 SC 3,5

4091
21. Syad Akbar v. State of Karnataka 1979 CriLJ 1374 8
22. Umesh Chandra Samal v. State of Bihar 2006 (39) AIC 453 (Pat) 3

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B. Treatises, Books, Reports And Digests

1. A. N. Saha, Supreme Court On Criminal Law, (New Delhi, Ashoka Law House)
nd
Vol. 4 (ed. 2 ) 2008

rd
2. Anderw Grubb, Priciple of medical Law, Oxford University Press, 3 Edn 2010

3. ARCHBOLD, Criminal Pleading Evidence & Practice, (ed. 41th)

nd
4. B. M. Gandhi, Indian Penal Code, (Eastern Book Company) (ed. 2 ) 2006

5. Batuk Lal‟s Commentary On The Indian Penal Code, (Orient Publishing

nd
Company) Vol. 2 (ed. 2 ) 2011

6. Criminal Manual (Delhi: Universal Law Publishing Co. Pvt. Ltd.) 2008

7. Dr Lily Srivastava, Law & Medicine, Universal Law Publishing, Edn 2010

8. Dr. Hari Singh Gour‟s, Penal Law Of India (Law Publisher (India) Pvt. Ltd. Vol. 3
th
(ed. 11 ) 2007

9. Dr. Jagdish Singh, Medical Negligence and Compensation, Bharat Law

rd
Publication, 2014 Edn. 4
nd
10. Emily Jackson, Medical law, Orford Publication, Edn 2 2010
rd
11. Jonathan Herring, Medical Law and Ethics, Orford Publication, Edn 3 2010

12. Justice K Kannan, A Text Book of Medical Jurisprudence and Toxicology, Lexis
th
Nexis, Edn 24 2011
13. Justice M. L. Singhal & Sabiha Revised by S. K. GULATI Ray, The Indian Penal
nd
Code 1860, (Premier Publishing Company) Vol.2 (ed. 2 )

14. K. D. Gaur, A text Book on Indian Penal Code, (Universal Law Publishing co.)
rd
(ed. 3 ) 2003

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15. Lord Mackay of Clashfern, Halsbury‟s Laws of England, Lexis Nexis, Vol. 30 (1)
th
Edn 4 2005
rd
16. Marc Stauch and Kay Wheat, Medical Law, Routledge Cavendish, Edn 3 2006
th
17. Prof T D Dogra, Medical Jurisprudence & Toxicology, Delhi Law House, Edn 11
2008

18. Ram Jethmalani & D S Chopra, The Indian Penal Code, Thomson Reuters, Vol. 1,
2014

st
19. Ratanlal & Dhirajlal, The Indian Penal Code (Nagpur, Wadhwa) (ed. 31 ) 2007

rd
20. S P Sengupta, Indian Penal Code 1860, Kamal Law House, Vol 1 Edn 3 2015

21. S. C. Sarkar, The Indian Penal Code (Allahabad, Dwivedi Law Agency) 2007

22. Smith J.C. Mercy Killing, Justification and Excuse in Criminal Law, (The Hamlyn
Lecture) 40th Series, 1989.

th
23. Sweet & Maxwell, Medical Negligence, South Asian Edition, 2010, Edn 5 .

24. Tapas Kumar Koley, Medical Negligence and The Law in India, Oxford
Publication, Edn 2010

C. Journals Referred

1. All India Reporter

2. Supreme Court Cases

3. Indian Law Reporter

4. Company Law Journal

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D. Database Referred

1. www.judis.nic.in

2. www.lexisnexis.com

3. www.manupatrafast.com

4. www.scconline.com

5. www.westlaw.com

E. Legal Dictionary

1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009)

3. Greenberg Daniel, Stroud‟s Judicial Dictionary of Words and Phrases, (4th ed.),

Sweet and Maxwell, Vol. 4

4. Oxford Advanced Learners Dictionary, (7th ed., 2008)

F. Statutes Referred

1. Indian Penal Code, 1860

2. Code of Criminal Procedure, 1973

3. The Medical Council Act, 1956

4. Delhi Medical Council Act, 1997

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STATEMENT OF JURISDICTION

THE APPELLANT HAS APPROACHED THIS HON‟BLE HIGH COURT OF DELHI UNDER
SECTION 3781 OF THE CODE OF CRIMINAL PROCEDURE 1973.

1378. Appeal in case of acquittal.

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),
the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court
from an original or appellate order of acquittal passed by any Court other than a High Court or an order of
acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946)
or by any other agency empowered to make investigation into an offence under any Central Act other than
this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the
provisions of sub-section (3), to the High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the
High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court,
on an application made to it by the complainant in this behalf, grants special leave to appeal from the
order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal
shall be entertained by the High Court after the expiry of six months, where the complainant is a public
servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an
order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1) or under
sub-section (2).

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STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case are
summarise as follows
I. Mr Prateek Patil met with an accident on 10.10.2012
II. Mr. Prateek Patil got fractured in the mid shaft of the right femur
III. Operation was conducted by Dr Gulati
IV. After operation Mr Prateek was shifted to ICU. After 24 hrs he was referred to
Bindra Multi-Speciality Hospital Bhopal
V. While transportation ambulance got stuck for a while due to LSJP state party due
to which MR Prateek reached few hrs later than expected time

MEMORANDUM FOR THE RESPONDENTS-VIII

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STATEMENT OF ISSUES

I. DOCTOR GULATI AND MANAGEMENT ARE NOT LIABLE FOR CULPABLE HOMICIDE NOT
AMOUNTING TO MURDER U/S 304
II. DOCTOR M. GULATI AND OTHER TEAM MEMBERS ARE NOT LIABLE FOR CRIMINAL
NEGLIGENCE OF MURDER U/S 304A

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SUMMARY OF ARGUMENTS

I. DOCTOR GULATI AND MANAGEMENT ARE NOT LIABLE FOR CULPABLE HOMICIDE NOT
AMOUNTING TO MURDER U/S 304.

For proving an offence under culpable homicide not amounting to murder the prosecution
must prove- that there exists knowledge of the act which in proximity likely to cause death. It
is unreasonable to consider that the purported act has been done by Doctor GULATI with the
knowledge that in all probability it would result in the death of the patient.

II. DOCTOR M. GULATI AND OTHER TEAM MEMBERS ARE NOT LIABLE FOR CRIMINAL
NEGLIGENCE OF MURDER U/S 304A.

For proving negligence under the criminal law, the prosecution must prove- that there exists a
breach of duty, there was breach of the duty causing death and that breach to be characterized
as gross negligence. To impose criminal liability, under Section 304A

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ARGUMENTS ADVANCED

I. DOCTOR GULATI AND MANAGEMENT ARE NOT LIABLE FOR CULPABLE HOMICIDE
NOT AMOUNTING TO MURDER U/S 304.
1. Section 304 provides punishment for culpable homicide not amounting to murder-
“Whoever commits culpable homicide not amounting to murder shall be
punished with imprisonment of either description for a term which may extend to ten
years, or with fine, or will be liable to fine, if the act by which the death. or of causing
such bodily injury as likely to case death; or with imprisonment of either description
for a term which may extend to ten years, or with fine, or withboth, if the act is done
with the knowledge that it is likely to cause death, but without any intention to cause
death, or to cause such bodily injury as is likely to cause death.
II. DOCTOR GULATI AND MANAGEMENT ARE NOT LIABLE FOR DEATH DUE TO NEGLIGENCE U/S

304A.
1.304A. Causing death by negligence, whoever cause the death of any person by
doing any rash or negligent act not amounting to culpable homicide shall be
punished with imprisonments of either description for a term which may extend to two
years, or with fine, or with both
III.DOCTOR GULATI AND MANAGEMENT ARE NOT RESPONSIBLE OF THE ACCIEDENT IN

DOING THE LAWFUL ACT U/S 80.ACCIDENT IN DOING LAWFUL ACT.

1.Accident in doing a lawful act,- - Nothing is an offence which is done by
accident or misfortune, and without any criminal intention or knowledge in
the doing of a lawful act in lawful manner and with proper care and caution.
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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Respondents humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. The Appeal is dismissed.

Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Respondents shall as duty
bound ever pray.

Sd/- _______________________

Counsels for Respondents.

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