civil negligence ipc

Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The apex court relied on Jacob’s case (6) , in which it was held that the degree of liability for negligence in criminal law has to be higher than that in civil law. In explaining to juries the test which they should apply to determine whether the negligence in a particular case, amounted or did not amount to a crime, Judges have used epithets such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. Legal Document Management System for Law Firms. “A higher degree of negligence is necessary to render a person guilty of manslaughter than to establish civil liability against him. “Negligence”, says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. The following observations of the Supreme Court are worth taking note of. of Delhi Landmark Judgment by the Supreme Court. Causing death by negligence. The essence of criminal liability under Section 304-A IPC is culpable rashness or negligence and not any rashness or negligence. Application No. But the nature and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence under the sections. While it was near a Railway crossing, an accident took place. Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. Pursuing compensation for damages from your accident is a civil matter between private parties. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without ‘intention’ or ‘knowledge’. This supplies an omission providing for the offence of manslaughter by negligence which was originally included in Draft Code, but omitted from the Code when it was finally enacted in 1860. Generally speaking, 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. It is no doubt true that the Supreme Court was dealing with an issue whether the role of the appellant as a doctor in that case amounted to a rash or a negligent act as to endanger the life of the patient. This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S.304-A. According to the dictionary meaning ‘reckless’ means ‘careless’, ‘regardless’ or heedless of the possible harmful consequences of one’s acts’. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed”. In many cases of medical negligence, the professional might, proving that the plaintiff’s injury is a result of partaking in a dangerous recreational activity like drugs. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. The degree of negligence must be much higher, i.e., gross one of a very high degree in criminal negligence. Section 304(a) uses the words “rash or negligent act” as the deciding elements to charge any person under this section Therefore it is important to understand these terms and its various connotations. In the accident, the bus which was being driven by the appellant was badly damaged and as a result of the accident, several passengers got injured and two persons died. 139. Simple lack of care such as will constitute civil liability is not enough. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. Court : Supreme Court of India Brief : Penal Code, 1860, Section 304A - Negligence - Death of deceased by electrocution - Defence of accused that to prevent wild animals from going into filed, he had put the wire - Probability of defence version is borne out from various factors - Two poles were placed to which wire was fastened - Seizure of wooden stick - Accused rightly convicted u/s 304A IPC. A train hit the bus at the railway crossing. This is because in civil law two questions are at issue: Was the defendant negligent? The burden of proof lies with the doctor to prove that they behaved in a reasonable way only in the interest of the patient. In such a case, the Court allows the defendant to make bail by paying a surety amount along with a bail bond at the police station. This is a very different question from the civil context and must be answered in terms of mens rea. The defence claimed that the girl entered the road out of nowhere. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury.”. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. In Halsbury’s Laws of England, 3rd Edn. Négligence criminelle Responsabilité pénale pour imprudence: Notices thématiques en relation (8 ressources dans data.bnf.fr) Termes plus larges (3) Culpabilité (droit) Faute (droit) Infractions contre la personne. In a prosecution for an offence under section 304A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. Stated differently, Part-II comes into play when death is caused by doing an act with the knowledge that it is likely to cause death and when such act is the infliction of a bodily injury, the infliction must not be intentional. In order to objectify the law’s abstractions like “care” “reasonableness” or “foreseeability” the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform. IPC Chapter 5A - Criminal Conspiracy 2 IPC Section 120A. Termes plus précis (1) Omission (droit pénal) Termes reliés (4) Hommes politiques -- Responsabilité pénale. In this context the following passage from Kenny’s Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted : “Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. For negligence to amount to an offence, the element of mens rea must be shown to exist. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. Negligence is both civil as well as criminal wrong The moral culpability of recklessness is not located in a desire to cause harm. If a reasonable man would not, then there is no liability and the harm must lie where it falls. Though the term ‘negligence’ has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. A negligent act could be civil or criminal depending on the gravity and the nature of the crime along with the degree of intention or lack thereof in a particular case. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.”. Accept Read More, Section 304 a – Death by Negligence : Law and Legality, India’s criminal system follows the Indian Penal Code in matters of dealing with crime. The difference between the two is what marks off a civil from a criminal liability. According to Lord Atkin, “the principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Under the civil law, victims of negligence can get relief in the form of compensation from a civil court or the consumer forum. Intention criminelle. In civil proceedings, a mere preponderance of probability is sufficient, and the — defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. the proof, in civil and criminal proceedings. The provision relates to offences outside the range of Sections 299 and 300 IPC. Cases under IPC 304A and other. It is noteworthy that the complainants in the above two cases, could not get any relief under the provisions of the Consumer Protection Act, 1986, but in such kinds of cases the relief was available in the law of tort if they would have filed suits for damages for the tort of negligence in the civil court. On the contrary, a rash act is, Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to look after his/her patient. Professional Negligence Is the absence of reasonable care and skill, or willful negligence of a doctor in the treatment of a patient, which may result in injury or death. According to IPC Section 304A – whoever causes the death of any person by a rash act not amounting to culpable homicide gets punished by imprisonment for up to two years or fine or both. Any rash or negligent act whereby death of any person is caused becomes punishable. If so, should the defendant bear the loss in this particular set of circumstances? A professional is a all in all expert specialized in the respective field. The section deals with homicidal death by rash or negligent act. Firstly, the Act being mentioned above should be causa causans,i.e, the primary cause of death and not merely causa sine qua non,i.e, an indirect act. The number of persons affected by a single act of negligence does not affect the decree of negligence.”. Civil negligence; Negligence under consumer protection Act ; Different provisions regarding the remedy in the form of punishment and the compensation are covered under these three laws. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.”. The Supreme Court argued in favour of the doctors stating that the plaintiff must prove that the medical professionals acted “in disregard of the life and safety of the patient.” A medical professional cannot be held liable if they are following the accepted procedure of medical practice. In other words, a rash act is primarily an over hasty act as opposed to a deliberate act but done without due care and caution. The Session Judge convicted the accused of the death of a 10-year-old girl. Whether such liability is present may depend on the degree of culpability having regard in each case to the particular time, place and circumstances. In criminal negligence cases, the punishment is much more serious and can be convicted for a prison term, fine and probation supervision. How the Marriageable Age Varies Across the World? The law sets parameters but also keeps spaces open for interpretation because each case has a different context. The relevant portion of Section 304 of the IPC reads as under:-, “Whoever commits culpable homicide not amounting to murder shall be punished with, … and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with, …… 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.”. The expression “proximate cause” is defined in the 5th Edition of Black’s Law Dictionary as under: “Proximate cause. It was observed that :- “Nevertheless, to decide whether someone has been ‘reckless’, whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. Every civil negligence is not criminal negligence, and for civil negligence to become criminal it should be of such a nature that it could be termed as gross negligence. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case.”, The Supreme Court has explained in details as to when criminal liability would be attracted in cases of medical negligence. Mere negligence cannot be construed to mean rashness. It was held that by itself was no sufficient to warrant a conviction under section 304A. The consequence flows from a state of mind which is blank or devoid of any advertence, and the liability for such consequence is to be judged from the standpoint of reasonable foreseeability and the failure to exercise the care which such foreseeability necessarily implies. The fore-quoted statement of law in Andrews has been noted with approval. Tel dispose l'article 1382 du Code civil. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. “In a criminal court, on the contrary, the amount and degree of negligence are the determining questions. Though section 304A covers various fields of activity, an offence is committed only if a person charged is shown to have neglected to take such action as he is reasonably expected to take to avoid injury to others and that such reasonable steps that are expected to be taken by him should show that there was a failure to take such elementary steps it was necessary for him to take. Thus, in the civil context while we consider the moral implications of negligent conduct, a clear view of the state of mind of the negligent doctor might not require strictly. This section involves crimes perpetrated with the knowledge of causing death but without any intention of doing the same. He further pointed out that “it is difficult to visualise a case of death caused by “reckless” driving, in the connotation of that term in ordinary speech, which would not justify a conviction for manslaughter, but it is probably not all-embracing, for “reckless” suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.”. Persons subject to certain Acts. This concept of negligence as a tort is explained in the following manner: The jurisprudential concept of negligence defines any precise definition. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. The framework of the Indian Penal Code governs crime with justice and punishment. — 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. It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. The distinction is often an intricate matter and depends on the particular time, place and circumstances. Such a negligent act, normally a tort, may also give rise to criminal liability as well, though it was made clear by the Court in Jacob’s Case (supra) that jurisprudentially the distinction has to be drawn between negligence under Civil Law and negligence under Criminal Law. Mere negligence or rashness is, therefore, not enough to bring a case within the ambit of Section 304A I. P. C. Negligence or rashness proved by evidence must be such as should necessarily carry with it a criminal liability. Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including the Supreme Court: “Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. This aspect is also adverted to in paragraph 1374 of Halsbury’s Laws of England, 3rd Edn. I am working as a content writer to develop my writing skills as well as my knowledge base. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. " Tout fait quelconque de l'homme, qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé, à le réparer". It was observed by Lord Diplock that “the reasonable man” was comparatively late arrival in the laws of provocation. 142. A person who intentionally causes the bodily injury with knowledge that such act is likely to cause death must necessarily be a person who does an act with the intent to cause bodily injury likely to result in death. The legal concepts of negligence and recklessness are found in both criminal and civil law. Whether negligence is to be regarded as of such a nature is a question for the jury, after they have been properly directed by the Judge as to the standard to be applied, and depends on the facts of the particular case. They cannot be reprimanded for not using an alternative method that might or might not have brought the desired result. Moreover, It is also an offence under Indian Contracts Act, Consumer Protection Act and many more. They can be ascertained only from external and visible acts. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself.”. [The above discussion on relevancy of Section 304 IPC quoted from a decision of Gujarat High Court in the case of Girishbhai Maganlal Pandya Vs. State of Gujarat (Criminal Misc. Negligence and rashness are essential elements under Section 304-A. Eminent jurists and leading judgments have assigned various meanings to negligence. Then the question would be whether an offence under Sec. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two”. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. Here, the applicant only needs to prove that an act took place that was wanting in due care and caution, and the victim consequently suffered damage. Any act under Section 304(a) is a bailable offence under the IPC. The common habit of lawyers to qualify the word “negligence” with some moral epithet such as ‘wicked’ ‘gross’ or ‘culpable’ has been most unfortunate since it has inevitably led to great confusion of thought and of principle. Some sections related to the medical negligence laws in India are Section 52, Section 80, Section 81, Section 83, Section 90, Section 91, Section 92, Section 304-A, Section 337, Section 338 of IPC. The words “not amounting to culpable homicide” in the Section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. The proximate cause of an injury is the primary or moving cause, or that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. The two doctors who attended the deceased were Jacob Matthew and Allen Joseph. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. The defence argued that the patient was at the last stage of cancer. Questioning the correctness of the charges framed, the revision petition was filed. This, however, is the classic definition of recklessness, which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability. Attention was also drawn by Lord Atkin to a passage in a considered judgment of Lord Hewart, Lord Chief Justice the passage to which attention was drawn was this: “In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. That which is nearest in the order of responsible causation. The legal concepts of negligence and recklessness are found in both criminal and civil law. A medical practitioner can be a doctor as well as a nurse. It was his case that at the best Section 304A IPC would be attracted. The difference between the two is what marks off a civil from a criminal liability. 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