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Legal procedures

  1. 1. PROF (DR.) ARIF MASOOD
  2. 2. Medical men have to appear in Court of law to give evidence in matters related with medicolegal cases. Therefore it will be helpful if doctors are acquainted with legal procedure, legal terms and court procedures
  3. 3.  Inquest (in = in, quest = to seek) Definition  An inquest is a legal inquiry or investigation to ascertain the circumstances and cause of death. It is conducted in sudden, suspicious or unnatural deaths. There are four types of inquests:  1. Police inquest  2. Magistrate inquest  3. Coroner inquest  4. Medical Examiner’s system Only Police and Magistrate’s inquest are held in India.
  4. 4.  Police Inquest  The inquest is held under section 174 of Criminal Penal Code (CrPC). It is conducted by the police officer, usually not below the rank of police subinspector. The officer conducting the inquest is called as “Investigating Officer” (IO).  On receipt of information about any sudden, suspicious or unnatural death of any person, the IO forwards the information to the nearest Magistrate and proceeds to the place where the dead body is lying. At that place, the IO in presence of two or more responsible persons of the area (called as Panchas) makes an investigation and prepares a report called as Panchnama.
  5. 5.  The Panchnama (inquest report) includes the description of scene of crime, apparent cause of death and presence of any injuries over body. The IO and the panchas then sign the report. The IO then forwards the dead body to the nearest government doctor with the requisition and a copy of inquest report (Panchnama).
  6. 6. Magistrate Inquest  Magistrate inquest is held under section 176 CrPC. The Magistrate empowered to hold inquests are: District magistrate, Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this on behalf of the State Government or the District Magistrate. It is considered to be superior to police inquest. Magistrate inquest is done in following circumstances:  – Death in prison/jail  – Death in police custody  – Death due to police firing  – Exhumation  – Dowry death (Under section 304 B of IPC)  – Death in mental hospital Similarly in any case of death, the Magistrate can conduct an inquest instead of police inquest or in addition to the police inquest.
  7. 7.  Police inquest  1. Conducted by police  2. Cannot hold inquest in  3. Investigation is 3. Investigation is considered  considered inferior to  Magistrate investigation  4. Cannot order for exhumation  Difference between police and  magistrate inquest  Police inquest Magistrate inquest  1. Conducted by police 1. Conducted by District  Magistrate, Sub-divisional  Magistrate or Executive  Magistrate  2. Cannot hold inquest in 2. Can hold inquest in death  death in jail, police in jail, police custody,  custody, due to police due to police firing or  firing or dowry death dowry death  3. Investigation is 3. Investigation is considered  considered inferior to superior to police  Magistrate investigation investigation  4. Cannot order for 4. Can order for exhumation  exhumation
  8. 8.  Coroner’s Inquest  Under Coroner’s Act 1871, previously it was held at Kolkata (Calcutta) and Mumbai (Bombay). However itwas abolished in Kolkata way back and was discontinued on 29 July 1999 in Mumbai.  A Coroner was an Officer of the rank of First Class Magistrate, appointed by State Government. The Coroner may be a doctor or a lawyer or both. Under Coroner’s Act, the Coroner was empowered to inquire all unnatural or suspicious deaths and death occurring in jail.  After examining a body he then decide whether an autopsy is required and if necessary he holds an inquiry and forward the body to government doctor for postmortem examination. He had also power to order for exhumation.
  9. 9.  Coroner’s court is only court of inquiry into the cause of death. In pursuance of investigation, the Coroner examines witnesses on oath and records their evidence.  After completion of an inquiry, the Coroner finds a verdict as to the cause of death. If the coroner founds a verdict of foul play, he issues warrant to the concerned accused and then handed over the case to the concerned Metropolitan Magistrate. When the accused was not found, the Coroner returns an open verdict. Open verdict means an announcement of the commission of crime without information regarding the accused.
  10. 10. Medical Examiner System  Medical examiner system is a type of inquest prevalent in most states of USA.  This type of inquest is done by a Medical Examiner who is a Forensic Pathologist. All sorts of sudden, unnatural or suspicious deaths are analyzed by Medical Examiner.  This type of investigation is considered to be superior to all other type of investigations. In India this system is not followed
  11. 11.  Summons or Subpoena  A summons is a writ compelling the attendance of the witness in a court of law, at a specified place and time, and for a specified purpose under penalty (Subpoena, sub = under, poena = penalty). These are of two types :  1. Subpoena adtestificandum  2. Subpoena duces tecum.
  12. 12.  These are of two types and are:  1. Subpoena adtestificandum  2. Subpoena duces tecum.  Subpoena adtestificandum is a type of summons where a person is directed to appear personally before court to give evidence.  Subpoena duces tecum is a type of summons served to witness only to submit a document
  13. 13.  Medical Evidence  Evidence means and includes 1. All statements which the court permits or requires to be made before it by a witness in relation to matters of fact under inquiry (such statements are called as oral evidence).  2. All documents produced for the inspection of the court (such documents are called as documentary evidence). Types Medical evidence is of following types:  1. Documentary evidence  2. Oral evidence
  14. 14.  It comprises of documents produced before the court and includes:  1. Medical certificate  2. Medico-legal report  3. Dying declaration etc.  1. Medical Certificates • These are the certificates issued by the doctor regarding ill- health (sickness certificate), unsoundness of mind, death certificate, birth certificate, fitness certificate etc. These certificates are the simplest forms of documentary evidence. Only certificates given by registered medical practitioners (RMP) registered with state medical council are accepted in the court of law as evidence. Doctors should exercise due care while issuing such certificates. Issuing a false certificate is an offense
  15. 15. Medicolegal reports are the documents prepared and issued by doctors on the request of the investigating officer (Police or Magistrate), usually in criminal cases such as assault, rape, murder etc. • Examples of such reports are: Injury certificate, age report, postmortem reports, reports regarding examination of exhibits such as weapons, clothes etc.
  16. 16. Generally these reports are made of three parts viz.: 1. Part I – Introduction (Preamble): Comprising of preliminary data such as name of person, age, sex, address, identification marks, date and time of examination etc. 2. Part II – Examination (Observation): Consisting of the findings observed and recorded by doctor and  entered in the report.  3. Part II – Opinion (Inference): Consisting of opinion  or inference drawn by the doctor from the medical  examination.  • The report should be written with great care and should  bear the signature and name of the examining doctor.  • Any exhibits, e.g. clothes or weapons etc. sent for medical  examination should be described in detail with appropriate  diagram/sketches whenever applicable then these  articles should be properly sealed, labeled and returned  to the investigating officer
  17. 17.  Dying Declaration  Definition: A dying declaration is a statement, verbal or written, made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death (Section 32 IEA)  Whenever such patients are admitted and who are going to die, the doctor should call the Magistrate to record dying declaration. Before recording the statement, doctor should certify that the person is conscious and have sound mind (compos mentis). If the dying person is serious and there is no time to call the Magistrate, then doctor should record the dying declaration. When doctor or Magistrate is not available, dying declaration recorded by investigating officer is also admissible under section 32 of IEA. No oath is administered while recording a dying declaration since it is believed that the dying person tells the truth only.
  18. 18.  Procedure of Recording  • The dying declaration, if possible, should be written by the person who is recording it. The statement be recorded in the man’s (dying man’s) own words and in the language in which the person prefers to speak. It must be recorded in the presence of two or more witnesses. No addition of words or phrases should be made or altered. No prompting or suggestions should be made and no undue influence must be placed on the person.  • No information must be sought by asking leading questions.  • After recording a declaration, it should then be read over to the declarant who should affix his signature or thumb impression. The doctor and witness should also sign the declaration.
  19. 19.  Procedure of Recording  • While recording a statement if the person becomes unconscious, the doctor recording it must record as much information as he has to obtained and sign it.  • If the person prefers to write the statement himself then the statement should be signed and attested by witness,  • If the person is unable to speak and can only make signs in answer to questions put to him then the questions and signs can be recorded as verbal statement.  • The dying declaration should be forwarded to the Magistrate in a sealed envelope.  • A dying declaration can also be written in ink on hand also.  • A dying declaration is accepted in court as evidence after the death of a person who made it. However, if the declarant (person who make the statement) survives, he declaration is not admitted as dying declaration but the declaration has corroborative value.
  20. 20.  Dying Deposition  • It is a statement or deposition made by a dying person on oath. The Magistrate in the presence of accused or his lawyer records it.  • The procedure of dying deposition is not followed in India.  • Dying deposition has more value then dying declaration in the court as it is recorded by the Magistrate in presence of accused.
  21. 21.  Dying declaration Dying deposition  1. Always recorded by magistrate  2. Oath is administered  3. Superior to dying declaration  4. Statement is always recorded in presence of accused a statement or his lawyer  5. Cross examination is allowed  6. Retains full legal value even if the person survives
  22. 22.  Dying declaration  1. Recorded by magistrate or doctor or investigating officer  2. No oath is administered  3. Inferior to dying deposition  4. Accused or his lawyer is not necessary while recording  5. No cross examination 6. Has corroborative value if patient survives  Dying deposition  1. Always recorded by magistrate  2. Oath is administered  3. Superior to dying declaration  4. Statement is always recorded in presence of accused a statement or his lawyer  5. Cross examination is allowed  6. Retains full legal value even if the person survives
  23. 23. Definition  • Witness is a person who gives sworn testimony or evidence in the court of law in relation to matters of fact under inquiry.  • Any person can testify as witness or give evidence in the court if the said witness is able to understand the nature of questions put to him or is able to give rational answers to the questions asked. Such difficulty may arise in witnesses who are of tender age (say for example boy of 6 years) or of extreme old age or affecting from any disease of body or mind.  Types There are two types of witnesses and they are:  1. Common  2. Expert
  24. 24.  • Common witness is one who testifies or gives evidence  to the facts observed or heard or perceived by him.  • The common witness cannot draw inferences or form  opinions
  25. 25. An expert witness is a person who, by virtue of his professional training, is capable of forming opinions or draws conclusions from the facts observed by him or noticed by others.  • Examples are doctor, handwriting expert, fingers print expert, ballistic expert, and chemical analyzer.  • A doctor is both common and expert witness. For example, if a doctor is giving evidence in relation to injuries, when he mentions size, shape or position of injury he is acting as common witness. When the doctor says that the injury is antemortem or postmortem, caused by such type of weapon etc. then he is acting as expert witness.  • The Indian Medical Council Act 1956 in section 15 (2) (C) states that no person other than a medical practitioner enrolled on a state medical register shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of IEA on any matter relating to medicine.
  26. 26.  Hostile Witness  • A hostile witness is one who purposely makes statements  contrary to facts or does not give his evidence fairly and  with a desire to tell the truth to the court.  • The common or expert witness may turn hostile.  • While examining a hostile witness, leading questions  are permitted even during examination-in- chief.
  27. 27.  • Perjury means willful utterance of falsehood by a witness under oath.  • It is false evidence tendered by witness and he fails to tell what he knows or believes to be true (Section 191 of IPC).  • A witness is liable to be prosecuted for perjury under section 193 of IPC.

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