Legal procedures IN iNDIA

1. PROF (DR.) ARIF MASOOD

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.  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.  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.  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. 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.  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.  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.  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. 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.  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.  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.  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.  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. 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. 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.  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.  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.  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.  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.  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.  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. 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.  • 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. 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.  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.  • 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.