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Mr. Awadhesh
- - - - - - - - - - - - - - - - - - - - - - - - - -Petitioner
V.
TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATION
ii
INDEX OF AUTHORITIES
iii
STATEMENT OF JURISDICTION
vi
STATEMENT OF ISSUES
vii
STATEMENT OF FACTS
viii
SUMMARY OF ARGUMENTS
ix
PLEADINGS
1. THE STATE HAS NOT VIOLATED ANY FUNDAMENTAL RIGHT OF THE DECEASED
UNDER ARTICLE 21
OF
CONSTITUTION OF TRANVENIA
2. THE ACT OF MORX FLOD HOSPITAL IS NOT VIOLATING THE FUNDAMENTAL RIGHTS
3
DECEASED Under Article 21
2.1 Morx Flod Hospital is not a State
2.2 Morx Flod Hospital is not violating Right to life and personal liberty -
3.2
PRAYER
BIBLIOGRAPHY
10
13
xi
i
MEMORANDUM ON BEHALF OF THE RESPONDENTS
LIST OF ABBREVIATIONS
Art.
Article
Sec.
Section
Paragraph
IPC
Anr.
Another
Ors.
Others
v.
Versus
WHO
AIR
Cr.
Criminal
Cr.P.C
SC
DPSP
&
COPD
Hon'ble
Honorable
Pvt.
Govt.
ICESCR
Private
Government
International Covenant on Economic, Social and Cultural Rights
ii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
INDEX OF AUTHORITIES
DOMESTIC CASES CITED
S R.
NO.
CITED
NAME OF THE CASE
AT
1.
Ajay Hasia v. Khalid Mujib Sehravardi & Ors, AIR 1981 SC 487 (496)
04
2.
10
3.
13
4.
08
5.
04
6.
07
7.
03
8.
9.
04
10.
13
11.
11
12.
04
13.
ITC Ltd. v. George Joseph Fernandes and anr., AIR 1989 SC 839
08
14.
10
15.
10
16.
01
17.
Life Insurance Corporation v. Escorts and ors, AIR 1986 SC 1370(para. 100).
04
18.
12
iii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
11
20.
Manju Kumar Chaudhary & Anr. v. S.K. Ghosh, 1997 (3) CPJ 246.
06
21.
14
22.
13
23.
Padam Singh v. Chief Secretary, Indian Institute of Banker, 2005 AIHC 3670
04
24.
04
25.
12
26.
Pt. Parmanand Katara v. Union Of India & Ors, 1989 AIR 2039.
07
27.
05
28.
29.
05
30.
Santosh Hospitals Pvt Ltd, Chennai v. State Human Rights Commission, T.N.
and ors, AIR 2005 Mad. 348
08
31.
Santosh Vishwakarma & Anr. v. State Of Madhya Pradesh, 2004 (3) MPHT 57
CG.
11
32.
04
33.
Smt. Premwati Soni Jain And Ors. v. The State Of Rajasthan and Ors., AIR 1977 08
Raj. 116.
34.
10
35.
11
36.
07
37.
02
38.
Tekraj Vasandi alias K.L. Basandhi v. Union of India (UOI) and Ors. 1988 1
SCC 236.
03
iv
MEMORANDUM ON BEHALF OF THE RESPONDENTS
12
40.
01
CITED
CASE CITED
AT
1.
Alma W. v. Oakland Unified School Dist. (1981) 123 Cal. App. 3d 133, 143144.
09
2.
06
3.
09
4.
James D. ASKEW, Ginger Buck, Phillip Mahan v. DCH Regional Health Care
Authority, 995 F.2d 1033.
04
5.
08
6.
09
7.
Miner v. Farm Bureau Mut. Ins. Co., 841 P.2d 1093, 1102 (Kan. Ct. App. 1992).
06
8.
08
9.
08
10.
06
v
MEMORANDUM ON BEHALF OF THE RESPONDENTS
STATEMENT OF JURISDICTION
The present petition has been filed by the Petitioner in the matter Mr. Awadhesh v. Republic of
Tranvenia & Anr. under Art. 2261 of the Constitution of Tranvenia for the violation of
fundamental rights. The Respondent reserves the right to challenge the same. The Present
Memorandum sets forth the Facts, Contentions and Arguments.
1) The laws of The Republic of Tranvenia are in 'pari materia' with the laws of India.
2) Reservation and treaties entered into by India are to be assumed as reservations and
treaties by the Republic of Tranvenia to UDHR.
3) Reports of Law commissions of the Republic of Tranvenia are analogous to those of Law
Commission reports of India.
vi
MEMORANDUM ON BEHALF OF THE RESPONDENTS
STATEMENT OF ISSUES
The following issues are presented before the Hon'ble High Court of Carakun :-
2.WHETHER
THE
VIOLATED THE
FUNDAMENTAL RIGHTS
OF THE
DECEASED?
2.1 Morx Flod Hospital is not a State as prescribed under Art. 12 of Constitution of
Tranvenia.
2.2 Morx Flod Hospital has not infringed the Fundamental Right of the deceased as
prescribed under Art. 21 of the Constitution of Tranvenia.
3. WHETHER
3.1 Hospital Authorities are not liable for abetment of suicide of Mr. Awadhesh.
3.2 Police is not liable for abetment of suicide of Mr. Awadhesh.
vii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
STATEMENT OF FACTS
1. In the capital, Carakun of the Republic of Tranvenia where problem of corruption persists,
Awadhesh, a poor sweeper developed chronic obstructive pulmonary disease (COPD) due to
occupational exposure to dust. He was illiterate and ignorant about govt. insurance schemes.
2. He went to govt. hospital for checkup on 30th September 2014, where he was advised to go for a
tuberculin skin test, other scans and X-rays, surgical biopsy in a private clinic, because X ray
machines in the govt. hospitals were out of order and pathological tests/blood test facility was
not there because of unavailability of Doctors as they were on leave for 3 days.
3. Dr. Gabbaria asked him to go to Morx Flod hospital with a written reference for free checkup.
4. 3rd July- Dr. Daygem asked him to admit for a week assuring him minimum cost for treatment.
He gave his thumb impression on a form; details of which was not read out. It authorized the
Doctor to perform tests and surgeries involved to cure his issues and if in this course he dies, the
Hospital shall not be responsible. It was accompanied with an undertaking to pay 14000/- INR in
toto for the accommodation and treatment. The two attendants Mr. Jeane and Mr. Greye made
fun of his poverty and even gave him unnecessary sleeping pills.
5. 4th July- He was not allowed to leave to feed his family because of treatment as well as non
realization of the sum.
6.
5th July- His family committing suicide due to hunger. But he was restricted to his room by the
hospital security guard. He threatened to commit suicide by saying that if he is not let free,
abetment of suicide would be filed against them and this was ignored by the hospital staff.
7. 6th July His health was better. He was allowed to leave but by paying the sum assured added 13
% tax in toto Rs. 15820. They scared him that a criminal complaint will be lodged for assault as
well as for non-payment of dues. He decided to sell his kidney for INR 75000 as he was not in a
condition to pay. The doctor discussed with others and agreed but he was not paid later.
8. 7th July- After discharging, he went to police station and reported the entire incident and that he
was abetted to commit suicide by those hospital attendants but no FIR was lodged.
9. He then went to the Magistrate but was refused. He committed suicide by hanging in his house.
10. The son of the deceased lodged an FIR against the hospital authorities and the police officers for
abetment of suicide. The Hon'ble District Court held that it was a case of suicide as hospital
authorities succeeded in proving that his mental condition was not good. The matter is listed for
hearing before the High Court of the Republic of Tranvenia.
viii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
SUMMARY OF ARGUMENTS
1.THAT THE STATE HAS NOT VIOLATED ANY FUNDAMENTAL RIGHT OF THE DECEASED UNDER
ART. 21 OF THE CONSTITUTION OF TRANVENIA.
It is humbly submitted before the Honble Court that the Government Hospital representing State
has not violated Fundamental Right of the deceased as under Art. 21 of the Constitution of
Tranvenia as best possible arrangements in the unforeseeable situation of lack of facilities was
made by the Government Hospital hence all efforts were made to save the Right to Health of the
deceased and hence they have not violated the art. 21 of the Constitution of Tranvenia.
2.THAT
THE
FUNDAMENTAL RIGHT
OF THE
3. THAT
THE
AND
POLICE OFFICIALS
ix
MEMORANDUM ON BEHALF OF THE RESPONDENTS
ARGUMENTS ADVANCED
1. WHETHER
THE
STATE
OF
CARAKUN
HAS
VIOLATED
ANY
FUNDAMENTAL RIGHT
OF
MR.
AWADHESH?
1. The Respondent humbly submits before the Honble High Court of Carakun that the State has
fulfilled all its duties as prescribed by the Constitution of Tranvenia and has not neglected in
any matter thereof. State has fulfilled its duty to provide adequate health and has not violated
the Deceased right to health. The contentions of the State are based on the following basis:
2. Capital Carakun, Tranvenia is by far the most advanced city having rich infrastructure and
best medical facilities2. For a country to be so advanced it is understandable that its state
machinery is capable enough. It is the Government of Tranvenia that functions so efficiently
that the City of Carakun is having such a high regard in infrastructure and health facilities.
3. The Respondent would like to submit before the Hon'ble High Court that the State wholly
agrees with the fact that it is duty bound in respect of providing the basic fundamental rights
to the Citizens3, but the State would also like to mention that not every right can be availed
absolutely, similarly the State is bound by its duty till an extent but after that point the state
cant be held liable for not performing its Duty.
4. It is assumable that in such a developed country the insurance & medical schemes of the State
are predominantly functioning in the Country and the Deceased was ignorant about govt.
insurance schemes4 and it cannot be expected from the State to go to each and everyone and
make them aware about the schemes. Sufficient measures of awareness were taken by the
State but still if the Deceased was the one who was ignorant about the various government
insurance schemes then the state cant be held duty bound for the same.
5. The State in its contention is not disputing the fact that on the date of 30th September, 2014
when the Deceased headed to the Govt. hospital, the X-Ray machines and blood test facility
were out of order and the doctors were unavailable. In the case of V.K. Abbi v. Director
General of Health Services5 the Court stated that State government does not have unlimited
resources in discharging its obligation to ensure the creation and the sustaining of conditions
congenial to the good health of all its citizens. It can be reasonably presumed that all the
2
Fact Sheet 1.
Lata Singh v. State of U.P, (2006) 5 SCC 475.
4
Fact Sheet 2.
5
CWP No.6658/2002.
1
MEMORANDUM ON BEHALF OF THE RESPONDENTS
Fact Sheet 3.
Fact Sheet 4.
8
AIR 1998 SC 1703.
9
2013 (1) SCT 62 (Madras).
7
2
MEMORANDUM ON BEHALF OF THE RESPONDENTS
2.WHETHER
THE
VIOLATED THE
FUNDAMENTAL RIGHTS
OF THE
DECEASED?
9. The counsel humbly submits before the Hon'ble High Court of Carakun that Morx Flod
Hospital has not violated the fundamental rights as prescribed under the Constitution of
Tranvenia. The counsel bases its arguments on two premises. First, that Morx Flod Hospital is
not a State or Instrumentality of State as prescribed under Article 12 of Constitution of
Tranvenia and also not performing any public function. Secondly, Morx Flod Hospital has not
violated the Right to Life and Personal Liberty as prescribed under the Article 21 of
Constitution of Tranvenia.
2.1 Morx Flod Hospital is not a State as prescribed under Art. 12 of Constitution of
Tranvenia.
10. The respondents submit before the Hon'ble High Court that "Art. 12 should not be interpreted
so widely so as to bring in every autonomous body which has some nexus with the
government within the sweep of expression "State". A wide enlargement of the meaning must
be tempered by a wise limitation.10 That obviously would not serve the purpose and may be
far from reality. A broad picture of the matter has to be taken and a discerning mind has to be
applied keeping the realities and human experiences in view so as to reach a reasonable
conclusion.11
11. There is no straitjacket formula to judge whether an authority or person comes under the
ambit of state, but factors such as mode of funds, functioning, and its creation are to be
10
11
Chander Mohan Khanna v. The National Council of Education Research and Training, AIR 1992 SC 76.
Tekraj Vasandi alias K.L. Basandhi v. Union of India (UOI) and Ors. 1988 1 SCC 236.
3
MEMORANDUM ON BEHALF OF THE RESPONDENTS
Ibid.
Padam Singh v. Chief Secretary, Indian Institute of Banker, 2005 AIHC 3670 (All) see also Pradeep Kumar
Biswas v. Union Of India (2002 5 SCC 111).
14
Delhi Voluntary Hospital Forum v. Delhi Electricity Regulatory Commission, 2015ELR(APTEL)0112.
15
Central Inland Water Corpn v. Brojo, AIR 1986 SC 1571.
16
Ajay Hasia Etc v. Khalid Mujib Sehravardi & Ors, AIR 1981 SC 487 (496); Life Insurance Corporation v.
Escorts and ors, AIR 1986 SC 1370(para. 100).
17
Shyam Lal v. State Of U.P. And Ors., 1998 CriLJ 2879.
18
Gujarat State FInancial Corpn. v. Lotus Hotels, AIR 1983 SC 848.
19
James D. ASKEW, Ginger Buck, Phillip Mahan v. DCH Regional Health Care Authority, 995 F.2d 1033.
13
4
MEMORANDUM ON BEHALF OF THE RESPONDENTS
2.2 Morx Flod Hospital has not infringed the Fundamental Right of the deceased as
prescribed under Art. 21 of The Constitution of Tranvenia.
19. The respondent submits before the Hon'ble High Court of Carakun that "It is important for the
doctors and medical establishments to maintain proper records of patients for their scientific
evaluation and to make action plans for future treatment. The legal system relies mainly on
documentary evidence in a situation where medical negligence is alleged by the patient or the
relatives."22
20. In the instant case, when the patient was made to sign upon the documents produced, it cannot
be called as unreasonable as it is the duty of the doctors to maintain such indoor records.23
Furthermore, the patient was informed that there would be charges for the treatment, though
minimal but imposition of treatment charges was conveyed to him prior to the treatment.24
20
5
MEMORANDUM ON BEHALF OF THE RESPONDENTS
25
LORD.RICHARD, Williston On Contracts, (West 4th ed. 2009) (1920) Sec 4:2.
Supra Note 22 at p. 5.
27
Miner v. Farm Bureau Mut. Ins. Co., 841 P.2d 1093, 1102 (Kan. Ct. App. 1992).
28
Sutherland v. Sutherland, 358 P.2d 776, 785 (Kan. 1961).
29
Case Of H.L.. v. The United Kingdom, European Court Of Human Rights, 45508/99 (2004) ECHR 471.
30
1997 (3) CPJ 246.
26
6
MEMORANDUM ON BEHALF OF THE RESPONDENTS
31
Fact Sheets 2.
National Heart Lung and Blood Institute, What is COPD, available at www.nhlbi.nih.gov/health/healthtopics/topics/copd <last visited 27-09-2015>.
33
World Health Organization, Chronic obstructive pulmonary disease (COPD) available at
www.who.int/mediacentre/factsheets/fs315/en/ <last visited 25-09-2015>.
34
TRANVENIA CONST., Preamble , Art. 37.
35
De DJ, The Constitution of India, Asia Law House, (1166) 3rd Ed.
36
State of Punjab v. Mohinder Singh Chawla, (1996) 113 PLR 499.
37
Fact Sheet 4.
38
Pt. Parmanand Katara vs Union Of India & Ors, 1989 AIR 2039.
39
CESC Ltd. v. Subhash Chandra Bose, AIR 1992 SC 573,585.
32
7
MEMORANDUM ON BEHALF OF THE RESPONDENTS
40
8
MEMORANDUM ON BEHALF OF THE RESPONDENTS
49
9
MEMORANDUM ON BEHALF OF THE RESPONDENTS
3.WHETHER
THE
HOSPITAL AUTHORITIES
AND
POLICE
ARE
LIABLE
FOR
ABETMENT
OF
3.1 Hospital Authorities are not liable for abetment of suicide of Mr. Awadhesh.
38. Abetment involves a mental process of instigating a person in doing of a thing. Without a
positive act on the part of the accused to instigate or aid in committing suicide, conviction
cannot be sustained. The intention of the legislature and the ratio of the cases decided by the
Supreme Court are clear that in order to convict a person under section 306 IPC there has to
be clear mens rea to commit the offence.52
39. Mr. Awadesh was made fun of by the two attendants and was harassed during his treatment.
Merely on the allegations of harassment, conviction in terms of IPC 306 is not sustainable53.
Merely on allegation of harassment without there being any positive action proximate to the
time of occurrence on the part of accused which led or compelled the person to commit
suicide, conviction in terms of Section 306 IPC is not sustainable.54 In case of alleged
abetment of suicide there must be proof of direct or indirect acts of incitement to the
commission of suicide. The mere fact that the husband treated the deceased wife with cruelty
is not enough.55 In this case the accused defamed deceased that she has relationship with other
ladies but that cannot come under abetment of suicide.56 Therefore, the stand of the court is
52
Malik Surendra and Malik Sudeep, Supreme Court on Penal Code, Eastern Book Company,(150)Volume I.
Kishori Lal v. State of Madhya Pradesh, (2007) 10 SCC 797.
54
Amalendu Pal v State of W.B., 2010 1 SCC 707.
55
Kishangiri Mangalgiri Goswami v. State Of Gujarat, 2009 GLH ( 2 ) 9.
56
Sohan Raj Sharma v. State Of Haryana, AIR2008SC2108.
53
10
MEMORANDUM ON BEHALF OF THE RESPONDENTS
Santosh Vishwakarma & Anr. v. State Of Madhya Pradesh, 2004 (3) MPHT 57 CG.
Gowri Mahesh v. State Rep., 2008 Mad 895.
59
Somnath alias Som Kumar alias Som Pal and ors. v. State of Haryana, AIR 1978 SC 1492 .
60
Mankama v. State of Kerela, AIR2010SC499.
61
S.S.Chheena v. Vijay Kumar Mahajan & Anr, 2011(1)ALD(Cri)227.
58
11
MEMORANDUM ON BEHALF OF THE RESPONDENTS
Malik Surendra and Malik Sudeep, Supreme Court on Penal Code, Eastern Book Company,(152) Volume I.
1995 Supp (3) SCC 438; See Also: Praveen Pradhan v. State Of Uttranchal & Anr, 2013(2)ACR1712.
64
1995 Cr LJ 3066 (Raj.).
65
2003 Cr LJ NOC 50 (MP).
66
Vedprakash Bhaiji v. State Of Madhya Pradesh, 1995 CriLJ 893.
63
12
MEMORANDUM ON BEHALF OF THE RESPONDENTS
67
Ashok Vishnu Davare v. State Of Maharashtra, 2004 (3) ACR 2626 (SC).
Gangula Mohan Reddy v. State Of A.P, AIR 2010 SC 327.
69
(2011) 3 SCC 626.
70
Rukumani v. State represented by the Sub Inspector of Police Coimbatore, 2008-2-LW(Crl)776.
71
Intimidation Mahesh v. State of M.P. 2003 Cr LJ NOC 50 (MP).
68
13
MEMORANDUM ON BEHALF OF THE RESPONDENTS
72
2004(13)CriminalCC591.
Supra Note 69 at p.13.
73
14
MEMORANDUM ON BEHALF OF THE RESPONDENTS
PRAYER
Wherefore in the light of the facts presented, issues raised, arguments advanced and
authorities cited, it is humbly requested that this Honble Court may be pleased to adjudge
and declare:
1. That the State has not violated the fundamental Rights of the petitioner enshrined
under Article 21 of the Constitution of Tranvenia and hence it should not be made
liable for paying any kind of compensation to the petitioner.
2. That the Morx Flod hospital is not state within the meaning of Article 12 of the
Constitution of India therefore the Petitioner has made an error in filing the case
under article 226. And that the Morx Flod Hospital has not violated the Fundamental
Right of the deceased and should not be made liable for the independent act of the
staff.
3. That the respondents are not liable for abetting the suicide of the deceased and hence
has not violated any fundamental right of the petitioner and any provision of the IPC.
And pass any such order, writ or direction as the Honorable Court deems fit and
proper, for this the Appellants shall duty bound pray.
x
MEMORANDUM ON BEHALF OF THE RESPONDENTS
BIBLIOGRAPHY
STATUTES REFERRED
REPORTS REFERRED
BOOKS REFERRED
Durga Das Basu, Comments on the Constitution of India, Lexis Nexis, 8th Ed.
Dr. Jagdish Singh and Vishwa Bhushan, Medical Negligence and Compensation, Bharat
Law Publications, 4th Ed. 2010.
Ganguly, Law relating to Protection of Human Rights and Violation of Human Rights
Problems, Dwivedi Law Agency, 1st Ed, 2010.
K. I. Vibhute, PSA Pillais Criminal Law, Lexis Nexis Butterworths Wadhwa Nagpur,
10th Ed. 2012.
xi
MEMORANDUM ON BEHALF OF THE RESPONDENTS
K.N. Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure, Eastern Book Company,
6th Ed. 2014.
R.P. Kataria & S.K.P. Sriniwas, The Transplantation of Human Organs and Tissues Act,
1994, Orient Publishing Company, 1st Ed. 2014.
Ratanlal and Dhirajlal, The Indian Penal Code, Wadhwa Nagpur, 31st Ed. 2007.
Vinod Nijhawan, Medical Science Helping the Process of Criminal Law, Vinod
Publications(P) Ltd.,1st Ed., 2008.
DJ De, The Constitution of India, Asia Law House, 3rd Ed. 2008.
DATABASES REFERRED
http://www.manupatra.com
http://www.westlawindia.com
https://www.scconline.in/default.aspk
https://www.jstor.com
xii
MEMORANDUM ON BEHALF OF THE RESPONDENTS