Suresh Gupta vs Govt Of NCT of Delhi

He went for a very simple surgery. Incorrect incision cut made which lead to asphyxiation
Medical board was referred later and is not very clear about it.
[304A. 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.] 
Sidey-Criminal law and interpretation understanding
How to read a statute - focus on significance of each word
Whoever- covers all people (general statute); causes death- there is a causation requirement
by whoever’s act ( infection developed after some operation, but the operator didn’t cause the
death, but if there is no precaution taken, operator could have caused); any person- any
human; Rash or Negligent act-,  not amounting to culpable homicide- there is a reason that it
is not culpable homicide. Therefore, the essential difference between 304 and 304A.
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.
There is a requirement of intention or knowledge in 299. Intention or knowledge(knew
that it could happen and still went ahead and did it.) vs Rash or Negligence. 3 ingredients
of negligence- duty, breach of duty, and injury. 
Mens rea- guilty mind; malicious intention; 3 different levels of mens rea
-Express intention- you do the act that you want to do, if you kill me by planning to do the
same. Fact of mind can be proved through evidence. Mens rea can be inferred through the
actions. 
- Knowledge - did not intend, but I knew and still did it which means that I was reckless. 
- Negligence- it has been the grey area of mens rea; I ought to have known that it was
dangerous, and still did it. 
Ex- you are cleaning the gun, but you don’t know that there is a bullet in the gun, but by the
nature of the thing that you are doing, you should ideally have checked. Now while cleaning
it, it misfires and kills someone-OUGHT to have known. 

Coming back to the case- 

After being alleged of it- petition under S. 482 (and get a stay on the other proceedings) of
CrPC is filed saying that there is no case. It was rejected by the HC, because there is some
prima facie case. He files an appeal under art 136. There is a substantive question of law that
has to be decided under this case. 
Only if all the allegations made in the FIR are taken to be true and even in that case, there is
no offence that can be made out. There are 2 ways in which the case goes- the trial can
mostly be conducted because something is there; or it is quashed. 
Charge is under 304A-  which is quashed. (he is not acquitted but the case is quashed);
discharge is possible after starting the trial. 
[http://www.mondaq.com/india/x/691588/Crime/
Discharge+vs+Quashing+Of+Complaints+In+Criminal+Prosecutions]

How do we understand Gross negligence- it is being introduced- it must be of higher degree

which is apathetic towards patient. R v. Adomako- which introduced the standard of gross
negligence in English law. In order to be morally culpable; you should have intention.
Recklessness is knowledge but not negligence. If it is negligence, which is so reckless, then it
is knowledge, so read it into s. 299. SC is heightening the standards;it is almost making it
impossible to convict medical professions. Quacks can be brought under this xD
In R v. Adomako, they have kept it below reckless and therefore, below knowledge- i.e.
which is known by everyone in the medical profession. 
In this case, they are saying that moral idea that there should be increased moral culpability to
prosecute someone. Policy argument- doctors would stop treating people. 
304A was introduced in 1870- 10 years after its inception.

Point- how did they get this idea that ‘gross’ has to be read into it. ‘Casus omissus ’-
they are supplying the word in the statute. What is the reasoning in justifying this
‘reading in’ of the word. 

Jacob Mathew vs State of Punjab

Absence of cylinders to provide medical assistance to a patient which lead to the patient’s
death. 
Ex- I am deciding it, keeping

Vast majority of cases of 304A come from road accidents - should there be a different
standard for doctors vis a vis motorists. What would FULLER say about it - he would say no
- laws should be generally applicable uniformly - especially in criminal law where stakes are
higher - no categorisation should be done

80, 88 sections of ipc - exceptions - good faith, consent….

So what is the court doing in the gupta and matthew cases - NL?

HOUR 15
Point- the SC reads into the provision the word “Gross”. They’ve also committed an error
here. They have said that it should be “gross negligence” which they have defined to be
“reckless” which has an element of mens rea i.e. “knowledge”. This goes against the idea of
304A which lacked the mens rea element. The substance of this is not important for this class.
But how did the court come to the conclusion.
Reasons- negligence in criminal law must be higher than tort law. Second, they don’t want
doctors to be fearful of being charged with 304A. 
Authority- court looks at several precedents from India and abroad to say that there is a need
for gross negligence from R v. Adomako. We’ve already considered that there is a principle
of statutory interpretation - Casus Omissus - [when the court supplies a word to the statute
which it thinks legislature intended to, but missed due to an error. But the court doesn’t
mention this expressly in its judgement.]
What are these judgments about? 
 Foreign judgments aren’t posited law; but just have a persuasive value. Indian
judgments do not talk about gross negligence. They just take the bolam test which is
also not an Indian standard. 
This sort of reasoning is outside the realms of the posited law.
 Laxman Balkrishna Joshi vs. Trimbak Bapu Godbole 
 Posited- civil and criminal laws have different standards. In criminal law, a general
rule is that mens rea should be there. With this mens rea, the severity of the
punishment goes up.
Where does the proposition of gross comes from?
 Suleman Rehman Mulani vs. State of Maharashtra 
This is in relation to a MV accident and does not concern medical cases.

In this case also, the standard that they’ve looked at is specifically for the medical negligence,
therefore, we cannot use the standard laid in any other case. 
If a previous SC judgment, which approves a foreign case, still that foreign case is not
directly binding. However, SC has gone into different directions.
Ex- kaushal judgment- division bench held that foreign judgment is not to be looked at. In
another case, they have said that foreign judgment can be looked at.