civil negligence ipc

140. Dr. Suresh Gupta v/s Govt of N.C.T. I am currently pursuing a diploma in paralegal practice. THE REQUIREMENTS OF FILING CRIMINAL LIABILITY OF A PERSON FOR CAUSING DEATH BY NEGLIGENCE UNDER SECTION 304A OF INDIAN PENAL CODE IPC – 1860 Initially, the penal Code had no provision for punishment in cases where person caused death of another by negligence. The law sets parameters but also keeps spaces open for interpretation because each case has a different context. It might give them some closure or at the very least compensate them if there has been a breach of duty that led to irreversible damage or loss of life/property. “In a criminal court, on the contrary, the amount and degree of negligence are the determining questions. Medical negligence cases can be civil as well if the hospital as a whole is held accountable for malpractice. 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. Criminal negligence is gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take. 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. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. A train hit the bus at the railway crossing. 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. A medical practitioner, In claims of negligence, it is extremely important to prove that there, . Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. According to the dictionary meaning ‘reckless’ means ‘careless’, ‘regardless’ or heedless of the possible harmful consequences of one’s acts’. This aspect is also adverted to in paragraph 1374 of Halsbury’s Laws of England, 3rd Edn. There was insufficient evidence of the girl coming out of nowhere and also the fact that the driver was driving on the wrong side. Section 28 “is conduct which falls below the standard established for the protection of others against unreasonable risk of harm”. In civil law negligence means inadvertence, which, if it resulted in injurious consequences to person or property, may involve liability to compensate for the damage. It was held that by itself was no sufficient to warrant a conviction under section 304A. Moreover, It is also an offence under Indian Contracts Act, Consumer Protection Act and many more. The breach of duty has to directly damage the plaintiff. 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. This offence is also compoundable which means that the plaintiff and the defendant can reach an agreement between themselves through their counsel and avoid trial. Apart from criminal negligence, a doctor can also be punished for various other offences as stated in the Indian Penal Code 1860 (45 of Intention criminelle. The number of persons affected by a single act of negligence does not affect the decree of negligence.”. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. 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. In the context of criminal law, the basic question is quite different. It does not create a new offence. If it is merely a case of compensation or reparation for injury or damage caused to a person or property, it is clearly not punishable under either of the sections. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. If so, should the defendant bear the loss in this particular set of circumstances? The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. In most cases where negligence has been established, the answer to the second question will be in the affirmative, unless the doctrine of remoteness or lack of foresee ability militates against a finding of liability, or where there is some policy reason precluding compensation. 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 original Penal Code did not have any provision for dealing with death caused by negligence. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done, either in a different manner or not at all. 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.”. As observed by Sir Lawrence Jenkins, the act causing the deaths “must be the cause causans; it is not enough that it may have been the causa sine qua non”. The essence of criminal liability under Section 304-A IPC is culpable rashness or negligence and not any rashness or negligence. The moral culpability of recklessness is not located in a desire to cause harm. Smith v. Emperor’, AIR 1926 Cal 300 (C), that criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. A medical practitioner can be a doctor as well as a nurse. For instance, using faulty equipment or expired medicines in the hospital. The distinction is often an intricate matter and depends on the particular time, place and circumstances. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. 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. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. the proof, in civil and criminal proceedings. 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. Negligence is both civil as well as criminal wrong. This offence is also, The law sets parameters but also keeps spaces open for interpretation because each case, . We may in this connection refer to Experor V. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows: “To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person’s death is culpable homicide. What constitutes negligence has been analysed in Halsbury’s Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows : “Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. 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. There is, in other words, a disregard for the possible consequences. This has been laid down authoritatively for manslaughter again and again. – That which in a natural and continuous sequence unbroken by any efficient, intervening cause, produces injury and without which the result would not have occurred. There are only two states of mind which constitute mens rea and they are intention and recklessness. We'll assume you're ok with this, but you can opt-out if you wish. Introduction. 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. Definition of criminal conspiracy. IPC Chapter 5A - Criminal Conspiracy 2 IPC Section 120A. 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 punishment for a person who was liable in a civil negligence case only extends to the extent of damage caused to the plaintiff i.e compensation for the damages. Civil negligence arises – when a patient (or his relative, in case of patient’s death) files suit in a civil court to get compensation from his doctor for the injury or death of the patient due to doctor’s negligence. This is called civil liability or civil negligence. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. The section deals with homicidal death by rash or negligent act. If the patient has suffered because of negligent act/ omission of the doctor, it undoubtedly gives right to the patient to sue the doctor for damages. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death. 28, paragraph 1, it is stated : ”Negligence is a specific tort and in any given circumstances is the failure to exercise that care with which the circumstances demand. In an earlier case Lord Ellenborough had pointed out that to substantiate the charge of manslaughter the prisoner must be found to have been guilty of criminal misconduct arising either from the grossest ignorance or the most criminal inattention. Civil negligence. But in the year 1870, an amendment was made in IPC which inserted a new provision Section 304A. India’s criminal system follows the Indian Penal Code in matters of dealing with crime. Lord Atkin explained this observation of Lord Ellenborough in these words : “The word “criminal” in any attempt to define a crime is perhaps not the most helpful, but it is plain that Lord Ellenborough meant to indicate to the jury a high degree of negligence.”. As to what is meant by causa causans, has been explained by the Supreme Court in the case of Sushil Ansal v. State through Central Bureau of Investigation, (2014)6 SCC 173, as under : “As to what is meant by causa causans we may gainfully refer to Black’s Law Dictionary (Fifth Edition) which defines that expression as under: “Causa causans. This often occurs in cases involving powerful Companies who would settle instead of going through a public trial. Moreover, It is also an offence under Indian Contracts Act, Consumer Protection Act and many more. 2 du Code pénal envisage la faute d'imprudence : « lorsque la loi le prévoit, il y a délit en cas d'imprudence, de négligence ou de mise en danger délibérée de la personne d'autrui ».. 299 and 300, I.P.C. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. But it should now be recognised that at common law there is no criminal liability for harm thus caused by inadvertence……………..The truth may be that he did not foresee the consequences as a reasonable man would have done, and that he was negligent in the true sense of the word, and therefore civilly, although not criminally, liable.”. Owing to the influence of English Law, the original Indian Penal Code had provisions for culpable homicide under Section 299. There must be mens rea…….. Thus Section 304-A was inserted by the lndian penal Code (Amendment) Act […] 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. Therefore this provision is directed at offences outside the range of Ss. The expression “proximate cause” is defined in the 5th Edition of Black’s Law Dictionary as under: “Proximate cause. 138A. 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 framework of the Indian Penal Code governs crime with justice and punishment. Lord Atkin in his speech  stated: (All ER p. 556 C), “Simple lack of care such as will constitute civil liability is not enough. Section 299 deals with any act or bodily injury caused by any person with the intention of causing death. Therefore, the relationship between the act and the death or injury resulted by it, vis-i vis the plaintiff between a negligent act and a rash act. This website uses cookies to improve your experience. The provision of Section 304(a) under the IPC is important to offer a measure of justice to the claimants. The charges were framed in relation to the offence punishable under Section 302 IPC and alternatively, under Sections 304, 325 and 323 of the Penal Code. The provision relates to offences outside the range of Sections 299 and 300 IPC. Section 304 of IPC deals with the provision of culpable homicide not amounting to murder. The words “not amounting to culpable homicide” in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a … The incident of a motor vehicle crash leading to the death of people will not be enough to charge someone under Section 304(a) for negligent driving. LAWSON Négligence in thé civil law Oxford Clarendon Press 1950 341 pages . of Delhi Landmark Judgment by the Supreme Court. 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. The question in the civil context is, therefore, not about moral blame, even though there will be many cases where the civilly liable defendant is also morally culpable. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. It was his case that at the best Section 304A IPC would be attracted. 304-A, I.P.C, is made out? On the contrary, a rash act is the culmination of overhasty decisions and recklessness on the part of the defendant. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. A medical practitioner is liable for negligence if he/she deviates from “the standard treatment” recommended for taking care of his/her patient causing death or injury of the patient. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. 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. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The court has to take into account that if one decides to drive under influence, they are aware of the consequences of their decision. Negligence and rashness are essential elements under Section 304-A. Even though there is protection given to accidents caused during performance of lawful acts [Section 80, IPC] and acts not intended to cause death and done for the person’s benefit by his consent and in good faith [Section 88, IPC], the fear of criminal liability has been lingering while performance of their duty even today. Causing death by negligence. The Session Judge convicted the accused of the death of a 10-year-old girl. This section involves crimes perpetrated with the knowledge of causing death but without any intention of doing the same. Whether such liability is present may depend on the degree of culpability having regard in each case to the particular time, place and circumstances. The charge of criminally negligent driving requires the driver to be solely or entirely responsible for the accident because of their negligence or rashness. Where intention or knowledge is the ‘motivating force’ of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. 2. On September 2, 2011, the Bombay High Court gave a reasoned and detailed order in the civil suit against Dr Desai, awarding compensation to the patient’s relatives in regard to the tort of medical negligence and breach of contract committed by the doctor. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.”. It would thus, appear that if such bodily injury as is likely to cause death is intentionally caused and results in the death of the victim, the case would fall under Part-I and not under Part-II. The difference between the two is what marks off a civil from a criminal liability. The provisions of this Section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Deserter concealed on board merchant vessel through negligence of master. The breach of duty has to directly damage the plaintiff. was gross and culpable neglect of failure to exercise that reasonable and proper care and to take precautions to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances attending the charge, it was the imperative duty of the accused person to have adopted. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. Termes plus précis (1) Omission (droit pénal) Termes reliés (4) Hommes politiques -- Responsabilité pénale. The line between civil and criminal negligence is thin. The legal concepts of negligence and recklessness are found in both criminal and civil law. This is for the reason the law of tort is ultimately not concerned with the moral culpability of the defendant, even if the language of fault is used in determining the standard of care. 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. It is vital for us to know and understand that the concept of negligence is derived out of the basic word that we all have been subject to. The word ‘negligence’, therefore, in our jurisprudence is used to denote blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury, who may sue him in tort for damages. The law, in my view, does not permit a man to be un-cautious on a hope however earnest or honest that hope may be. The first part of the Section is generally referred to as “Section 304 Part-I”, whereas the second part as “Section 304, Part-II”. It must be the causa causans; it is not enough that it may have been the causa sine qua non.”. 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. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.”. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. The framework of the, Any act under Section 304(a) is a bailable offence under the IPC. On the other hand, the state is responsible for bringing any criminal charges related to an automobile crash if they are warranted. Questioning the correctness of the charges framed, the revision petition was filed. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Medical Negligence under Section 304A of IPC. The criminality lies in not taking the precautions to prevent the happening of the consequences in the hope that they may not happen. The death in this case was, therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of another’s negligence. The difference between the two is what marks off a civil from a criminal liability. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. Some of the landmark judgements in cases related to Section 304(a) IPC: The plaintiffs, in this case, were the family of Jivan Lal who was admitted and died in CMC Hospital, Ludhiana. For negligence to amount to an offence, the element of mens rea must be shown to exist. Cause of -action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”. However, to be awarded damages for injuries caused by any accident, you must prove that the individual or entity responsible for the accident: 1. In many cases of medical negligence, the professional might make a decision based on the complicated nature of the case presented to him/her. The two doctors who attended the deceased were Jacob Matthew and Allen Joseph. The Supreme court did allow probation after regarding the context of the case. CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY 141. Another important element which goes to make the offence is that the act of the accused must be found to be the immediate cause of the death, that is to say, the act and the death must be ‘causa causans’. The essence of criminal liability under Section 304-A IPC is culpable rashness or negligence and not any rashness or negligence. The following observations of the Supreme Court are worth taking note of. At that time negligence was nowhere defined in IPC but fall outside the offenses ranging from Section 299 and 300 of IPC. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. In fact, Negligence is an offense under IPC and a tort. Owed you a “duty of care”; 2. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. 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