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CODE: B 10

IN THE HONORABLE

SUPREME COURT OF INDIANA

1)IN THE MATTER OF:

DOCTORS OF SANT LAL CHAUDHRY HOSPITAL………………………………….….APPELLANT

VERSUS

STATE OF CHANDIPUR…………………………………………………….RESPONDENT

AND

2)IN THE MATTER OF:

MEDICAL COUNCIL OF INDIANA ……………………………………………APPELLANT

VERSUS

HC OF CHANDIPUR ON ITS OWN MOTION…...............................RESPONDENT


Whether Suman is a victim within the meanig of section 357-ACrpc and entitled to compensation u/s
357 and 357A Crpc?
Whether the doctors should be ordered to pay compensation to the wife of the deceased where the
couple has already undergone the period of judicial separation and has filed a case for divorce too?

ON SUBMISSION TO THE SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT


UILS INTRA DEPARTMENT MOOT COURT COMPETITION, 2016

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

TABLE OF CONTENTS

INDEX OF AUTHORITIES ___________________________________________________ III

BOOKS REFERRED ________________________________________________________ III


WEBSITES ________________________________________________________________ III
TABLE OF CASES _________________________________________________________ IV

STATEMENT OF FACTS _____________________________________________________ V

STATEMENT OF JURISDICTION ___________________________________________ VII

1. STATEMENT OF ISSUES VIII


Whether Active Euthanasia should be allowed in Indiana in cases of emergency or
in all the cases with the permission of the High Court or in such cases as has
arisen before this Court in this particular case or the verdict of this Court in
ArunaRamachandraShanbaug’s case (supra) should be upheld? PG XX - XVII

2. Whether Suman is a victim within the meanig of section 357-ACrpc and entitled to
compensation u/s 357 and 357A Crpc?
Whether the doctors should be ordered to pay compensation to the wife of the
deceased where the couple has already undergone the period of judicial separation
and has filed a case for divorce too? PG XVII - XXII

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3. Whether the doctors have been rightly convicted u/s 379, 392 and 395 r/w Section 34
of Indiana Penal Code? PG XXII - XXIII

4. IV. That the HC does not have inherent powers, under the Constitution, to order
MCI to .initiate disciplinary proceedings against the doctors while dealing with a
case under the Contempt of Courts Act, 1971. PG XXIII - PG XXVI

SUMMARY OF ARGUMENTS ________________________________________________ IX

ARGUEMENTS ADVANCED __________________________________________________ X

PRAYER ________________________________________________________________XXVII

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INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

 Constitution of India
 Representation of People Act, 1951

BOOKS REFERRED

 Medicine and Law, K.Kannan

 Indian Penal Code, Ratan lal and Dhiraj Lal (31st Ed. 2006)

th
 D.D Basu, Shorter Constitution of India vol.2 (14 ed. 2010) 


th
 H.M. Seervai ,Constitutional Law of India vol.3 (4 ed. 2004) 


 Black’s Law Dictionary, Brayan A. Garner (8th Ed. 2003).

WEBSITES

 www.manupatra.com

 www.judis.nic.in
 www.supremecourtcaselaw.com

 www.indiankanoon.com

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TABLE OF CASES

 Adamji Umar v. State of Bombay, A.I.R. 1952 S.C. 14. Pg.21

 Ankush Vhivaji Gaikwad Vs. State of Maharashtra, (2013) 6 SCC 770


 Aruna Ramachandra Shanbaug v. Union of India, 2011 (4) SCC 454 Pg. 10
 Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. (2007) 6 SCC 528 Pg. 20
 Dr. Kunal Saha vs Dr. Sukumar Mukherjee on National Consumer Disputes Redressal, on
21 October, 2011, Pg 19
 Ganesh Karmakar v. State of Assam Criminal Appeal(j) no.41/2009 (Date of Judgment:
19.1.2012) Pg. 21
 Manish Jalan V. State, (2008) 8 SCC 225 ; Hari Singh and State of Haryana v. Sukhbir
Singh, AIR 1988 SC 2127 Pg. 19
 Nagappa, (1890) 15 Bom 344 Pg. 23
 Nehru Jain v State of NCT Delhi 2005(1) CRIMES 519 AT P 531 pg.19
 Pallav Seth v. Custodian & Ors, 2001 pg. 24
 Pallav Seth v. Custodian & Ors, 2001) 7 SCC 549 pg.24
 Ramadhin (1902) 25 All 129 pg.22
 Re, Adimola Muladir AIR 1960 Mad 186; Guman v State of MP 1989 CrLJ 1424(MP) pg.
23
 Supreme Court Bar Association v. UOI, AIR 1998 SC1895 pg. 24

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STATEMENT OF FACTS

FACTS

Mr. Shekhar Kumar married Mrs. Dipti Kumar and had a son from his marriage named Mohan. Soon after
Mohan was born, they both took divorce by mutual consent. When Mohan was of tender age his father
passed away due to kidney failure. After the death of his father he was put under the custody of Mr.
Prakash, brother of Mr. Shekhar, who bore all his expenses. When Mohan attained the age of majority he
decided to donate both of his kidneys after his death.

Mohan got married to Suman on 4/08/1985 but some time after the marriage, there were tensions
among them and they filed a case for judicial separation and a decree to that effect. They were unable to
continue cohabitation so Suman filed a case in the Family Court again to get divorce from Mohan on
26/03/1996.

Mohan met with a terrible accident on 28/01/1998, as a result of which he went in comma. There was
no improvement in his condition till March 2012. The doctors treating him decided to turn off his life
support system. On the request of the doctors, his wife filed a petition in the High Court of Chandipur for
passive euthanasia and the High Court allowed the petition.

On 10/04/2012, a young girl, Meera, was admitted to the same hospital and had multiple organ failure
and required an urgent kidney transplant for which a kidney could not be arranged in the required time
span of 3 hours. When the doctors did some tests, they found that Mohan’s Kidney would be a perfect
match. Mohan had only one functioning kidney and the doctors knew that taking out the kidney would
lean to an instant death. But to save Meera’s life, a team of 7 doctors took out his kidney and
transplanted it into the young girl as result of which Mohan died.

Prakash registered the FIR against the doctors. All the seven doctors were charged and convicted under
section 302, 379, 392 and 395 r/w section 34 of the Indiana Penal Code, 1860 by the trial court and
sentenced to death.

The doctors filed an appeal before the HC. But the HC upheld the decision of the trial court and also
ordered compensation of Rs. 20 lakhs to be given to Suman by the doctors under S.357 CRPC. The Court
also ordered a compensation of Rs. 10 Lakh to be paid by the Government of UT of Chandipur under its
Victim Compensation Scheme and also reduced the punishment to that of life imprisonament.

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Simultaneously, a case was instituted in the HC, as the doctors did not obey the decision. The division
bench of the HC punished them with fine and ordered MCI to initiate disciplinary proceedings against
them terming it to be the inherent powers of the HC.

Doctors filed an SLP in the SC against the judgment dated 02/02/2016 of the High Court and raised the
following issues:

 That there was an act of necessity


 That active euthanasia should be allowed and should be held to be constitutional in cases of
emergency, raising a question mark on the validity of the judgment of the SC delivered by
division bench in Aruna Ramachandra Shanbaug v. Union of India1.
 That they should not be bound to give any compensation to the wife of the deceased.
Another appeal was filed against the judgment of the HC dated 26/02/2016 by the MCI contending that
the HC does not have any such inherent powers to direct the MCI to initiate disciplinary proceedings
against a doctor.

As both the matters included some substantial question of law, the matters were referred to a
constitutional bench of five judges and the constitutional bench decided to hear the SLP filed by the
doctors and also the appeal filed by the MCI.

1
Aruna Ramachandra Shanbaug v. Union of India1, 2011 (4) SCC 454

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STATEMENT OF JURISDICTION

It is most humbly and respectfully submitted that this Hon’ble Court has the requisite territorial and
subject matter jurisdiction to entertain and adjudicate this matter under Article 136 of the Constitution
of Indiana. It is further submitted that all procedural requirements have been adhered to in the
prescribed manner. The present memorandum sets forth the facts, contentions and arguments in the
present case.

136. Special leave to appeal by the Supreme Court –

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant Special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed forces.
134. Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal
proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order
of acquittal of an accused person and sentenced him to death; or has withdrawn for trial before
itself any case from any court subordinate to its authority and has in such trial convicted the accused
person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided
that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf
under clause ( 1 ) of Article 145 and to such conditions as the High Court may establish or require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the
territory of India subject to such conditions and limitations as may be specified in such law

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STATEMENT OF ISSUES

1. Whether Active Euthanasia should be allowed in Indiana in cases of


emergency or in all the cases with the permission of the High Court or in such
cases as has arisen before this Court in this particular case or the verdict of
this Court in ArunaRamachandraShanbaug’s case (supra) should be upheld?

2. Whether Suman is a victim within the meanig of section 357-ACrpc and entitled
to compensation u/s 357 and 357A Crpc?
Whether the doctors should be ordered to pay compensation to the wife of the
deceased where the couple has already undergone the period of judicial
separation and has filed a case for divorce too?

3. Whether the doctors have been rightly convicted u/s 379, 392 and 395 r/w Section
34 of Indiana Penal Code?

4. Whether the HC does not have inherent powers, under the Constitution, to
order MCI to .initiate disciplinary proceedings against the doctors while dealing
with a case under the Contempt of Courts Act, 1971.

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SUMMARY OF ARGUMENTS

1. That Active Euthanasia should be allowed in Indiana in cases of emergency or in


all the cases with the permission of the High Court or in such cases as has arisen
before this Court in this particular case or the verdict of this Court in
ArunaRamachandraShanbaug’s case (supra) should be upheld?
a.) That the accused have committed the most humane act by saving the life of a small
girl who wouldn’t have if the accused would not have acted in the way they did.
b.) That the deceased had already been authorized to be euthanized and had no brain
function what so ever, hence the accused chose to save 1 life as it is his obligatory duty
rather than let both his patients die.

2. That Suman is a victim within the meaning of section 357-ACrpc and entitled to
compensation u/s 357 and 357A Crpc?
a). That Suman is not the victim but a beneficiary out of the death of her husband.
b) That she is not entitled to any compensation
3. That the doctors have been rightly convicted u/s 379, 392 and 395 r/w Section 34 of
Indiana Penal Code?
a) That doctors are not liable for theft as neither organ is a movable property nor did they
move it dishonestly.
b) That there being no theft, consequently neither liable for robbery nor dacoity.

4. That the HC does not have inherent powers, under the Constitution, to order MCI
to initiate disciplinary proceedings against the doctors while dealing with a case
under the Contempt of Courts Act, 1971.
a.) That the u/Article 215 of Indian Constitution the court can give order in case of
contempt but not any other order thereto.
b.) That even though the High Court does have the inherent power inferred to it by Article
226 it shall not be applicable in the instant case.

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ARGUEMENTS ADVANCED

Most respectfully Showeth:

Whether Active Euthanasia should be allowed in Indiana in cases of emergency or in all


the cases with the permission of the High Court or in such cases as has arisen before this
Court in this particular case or the verdict of this Court in ArunaRamachandraShanbaug’s
case (supra) should be upheld?

A. “Arrey oh baabumushoy hum to rangmanchkikathputliyanhainjiskidor us upar wale


kehaathon main haikab, kaunkahanuthega ye koi nahinjanta” – ANAND

The said quote brings to fore the fact that life and death are both part and parcel of life and
only the almighty has the power to end a life or to create one.
B. The aforestated issue raises a pivotal question of law which may very well change the very
fabric of the way life is viewed in our country. In many countries including ours life is treated
as a gift but in all its magnitude what is ignored is the fact that no matter how important or
sacrosanct life may be it is important for that person to be able to, have the power to enjoy it.
C. Euthanasia a term borrowed from the two greek words eu meaning good and thanatos
meaning death. The Black’s law Dictionary has also defined the same as under:-
“Euthanasia is an act or practice of killing or bringing about the death of a person who suffers
from an incurable disease or condition especially a painful one, for reasons of mercy. “
D. Euthanasia has been divided into two parts, which The Hon’ble Supreme Court in Aruna
Ramachandra Shanbaug V Union Of India2 have attempted to explain. The Hon’ble Court
has held as under:-
“it may be noted that euthanasia is of two types : active and passive. Active euthanasia
entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a
person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding
of medical treatment for continuance of life, e.g. withholding of antibiotics where without
giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.”
E. The observations of the Hon’ble Supreme Court make the distinction between the two
phenomenon’s crystal clear, but in order for this Hon’ble Court to reach a conclusion of the

2
2011 (4) SCC 454

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matter at hand it is imperative that the law and factsof this case are viewed in context with
one and another.
F. Euthanasia presents a paradox to the Hippocratic oath which serves as a code of medical
ethics. The oath includes both a promise to protect and elongate life and to relieve pain.
When a patient is in the last and most painful stages of a fatal disease, to prolong life is to
violate the promise to relieve pain and suffering but to relieve pain is to violate the promise to
elongate and protect life. Professionally, this puts the doctor in a difficult situation.
G. The accused in the case at hand are decent respectable citizens of our country who have
not only performed their duty to the best of their abilities but in doing so have also been able
to save a life of a young girl, for which they are being rewarded by life imprisonment. The
accused’s in the case at hand are doctors.Every doctor in our country before joining their
profession are made to take an oath also termed as the Hippocratic Oath. The Hippocratic
Oath in its para 3 and 4 reads as under: -
“I will apply, for the benefit of the sick, all measures which are required, avoiding those twin
traps of overtreatment and therapeutic nihilism. I will remember that there is art to medicine
as well as science, and that warmth, sympathy, and understanding may outweigh the
surgeon's knife or the chemist's drug.”
Every doctor in our country is taught that it is not only a doctors legal but also his moral
obligation to apply all measures necessary for the benefit of the sick.
H. In the instant case the accused have been punished for harvesting the deceased’s kidney,
the deceased himself had been ordered by the Hon’ble High Court to be euthanized. The
kidney harvested had been used to save the life of a young girl who wouldn’t have survived
without it. The accused in every sense have committed the most humane act a person could
by saving a young girls life. The act is one, which has not been committed in vain, or with
any kind of malice or for any self benefit to the contrary the act of the accused was a sacred,
sacrosanct act completely focused on saving the life of One.
It is humbly submitted that the doctors acted in the best interest of one of the person who
was dying and the other who was declared as one eligible to be given passive euthanasia
and for whom the process was already initiated. That as men of prudence and imbibed with
medical ethics, they found it ethical to save atleast one person out of two and in case would
have not acted that way, a young girl and her family would be in the most deplorable state .
They acted in good faith and in state of emergency/ necessity to save atleast one rather than
none at all. That even if this be called active euthanasia, the acusreus falls within the
exception under the Indiana Penal Code, Section 81 wherein on the sudden and extreme

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Emergency, one or other of the two evils is inevitable, it is lawful so to direct events that the
smaller only shall occur. Law of necessity dispenses with things which otherwise Are
not lawful to be done. But it is a defence provided the harm was not otherwise avoidable.
That in the race against time to save a young girl, they found the perfect match of kidney for
the girl from a man who had earlier expressed his wishes to donate his kidneys and was also
removed from ventilator and was counting his last breath and legally dead.
There are not enough solid organs available to meet the needs of patients with organ failure.
Thousands of patients every year die on the waiting lists for transplantation. Yet there is one
currently available, underutilized, potential source of organs. Many patients die in intensive
care following withdrawal of life-sustaining treatment whose organs could be used to save the
lives of others. At present the majority of these organs go to waste. Organ transplantation
saves a large number of lives and improves the quality of life of many more. But there is a
major shortfall in the availability of organs. This leads to potentially preventable death and
morbidity in a large number of people. Yet the resources needed to meet the demand for
organs are potentially available. Every day there are a large number of patients, who die in
controlled circumstances in hospital, whose organs could potentially save the lives of others.
I. The Hon’ble Supreme Court in Paramanand Katara V Union Of India3 1989 observed that
“the primary duty of the doctors is to provide treatment and to save the life whenever an
injured person is brought to the hospital or clinic and not otherwise.
J. The court in Achutrao Haribhau Khodawa and others V State of Maharashtra4 and others
has also observed as under: -
“45. The higher the acuteness in an emergency and the higher the complication, the more
are the chances of error of judgment. At times, the professional is confronted with making a
choice between the devil and the deep sea and has to choose the lesser evil. The doctoris
often called upon to adopt a procedure which involves higher element of risk, but which he
honestly believes as providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Which course is more
appropriate to follow, would depend on the facts and circumstances of a given case but
a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure.
The usual practice prevalent nowadays is to obtain the consent of the patient or of the

3
1989 4 SCC 286
4
AIR 1996 SC 2377

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person in-charge of the patient if the patient is not in a position to give consent before
adopting a given procedure.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation
or prescribes a treatment which has never been tried before to save the life of a patient when
no known method of treatment is available. If the patient dies or suffers some serious harm,
should the doctor be held liable? In our opinion he should not. Science advances by
experimentation, but experiments sometime end in failure”
K. The aforementioned observation makes it crystal clear that it is the duty of the doctor to save
a patients life and the choice made by the doctor to save a patients life cannot be called into
question. The primary job of the doctor is that to save his or her patients life and for which he
may adopt any procedure he deems fit.
L. The issue regarding the fact that Active Euthanasia should be allowed in Indiana in cases of
Emergency or in the instant case is one which is of utmost concern. The law laid down
regarding Active Euthanasia by the Supreme Court in Aruna Ramachandra Shanbaugs is
observed as under: -
“41. As already stated above active euthanasia is a crime all over the world except where
permitted by legislation. In India active euthanasia is illegal and a crime under section 302 or
at least section 304 Indian Penal Code. Physician assisted suicide is a crime under
section306 Indian Penal Code (abetment to suicide).
42. Active euthanasia is taking specific steps to cause the patient's death, such as injecting
the patient with some lethal substance, e.g. sodium pentothal which causes a person deep
sleep in a few seconds, and the person instantaneously and painlessly dies in this deep
sleep.
43. A distinction is sometimes drawn between euthanasia and physician assisted dying, the
difference being in who administers the lethal medication. In euthanasia, a physician or third
party administers it, while in physician assisted suicide it is the patient himself who does it,
though on the advice of the doctor. In many countries/States the latter is legal while the
former is not.
44. The difference between "active" and "passive" euthanasia is that in active euthanasia,
something is done to end the patient's life' while in passive euthanasia, something is not
done that would have preserved the patient's life.”
M. A perusal of the aforementioned observation of the court make it lucid that the reason why
the Supreme Court have put a bar on Active Euthanasia is because “active euthanasia,
something is done to end the patient's life”. In the instant case the kidney of the deceased

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was harvested to protect the life of a young girl. It would be extremely farce to say that the
accused had a choice. The act done by the accused was a necessity as it was the only, last
recourse to protect the life of the young girl. Active Euthanasia is a process which can not
only be quicker and cleaner also less painful. The distinction between the two is also one
which makes little to no sense as stopping treatment is a deliberate act, and so is deciding
not to carry out a particular treatment. Active Euthanasia is about taking an action to end
someone’s suffering whereas passive euthanasia is concerned more with the doctor giving a
bling eye to the health care of the patient until and unless he dies. When the patient is left to
die that in it is also an action, which is done with the end motive of ending the suffering of the
patient. Thus the two processes have little to no difference. It is thus the need of the hour
that legislation is made regarding the legalization of euthanasia in all its form even if it is
dependent on a case-to-case basis.
N. In the instant case, the deceased had been in a coma for the last 14 years where his brain
had shown no activity or response many tests were conducted over the years but when none
showed any brain activity whatsoever the doctors asked the deceased’s wife to move an
application for passive euthanasia for the deceased which was granted by the Hon’ble High
Court after taking into consideration the condition of the deceased
O. The term brain death has been defined by the NCBI as follows: -
“Brain death is defined as the irreversible loss of all functions of the brain, including the
brainstem. The three essential findings in brain death are coma, absence of brainstem
reflexes, and apnoea. An evaluation for brain death should be considered in patients who
have suffered a massive, irreversible brain injury of identifiable cause. A patient determined
to be brain dead is legally and clinically dead. The diagnosis of brain death is primarily
clinical. No other tests are required if the full clinical examination, including each of two
assessments of brain stem reflexes and a single apnoea test, are conclusively performed.”
The term was also given meaning by the Supreme Court in ArunaRamachandraShanbaugs
case where the Apex Court observed as under: -
“Brain death A state of prolonged irreversible cessation of all brain activity, including lower
brain stem function with the complete absence of voluntary movements, responses to
stimuli, brain stem reflexes, and spontaneous respirations.”
Harvard Medical School also went on to define the said phenomenon Harvard Medical
School defined brain death as “Irreversible Coma”.
P. When the aforementioned definitions are read in collocation with the facts of the case it is
apparent that the deceased had been rendered brain dead.

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The declaration of death through the determinant brain-stem death raises two interesting
questions, according to N.K Sethi and P.K Sethi. First, if the relatives refuse the donation of
organs in a brain stem-dead certified patient, can life support systems be disconnected and
switched off? Second, if the relatives request more time to decide about organ donation
during which the cardiopulmonary function of the deceased patent ceases, what time does
one record as the dime of death? Can one die more than once first when the brains stops
and second when the heart stops. Unfortunately the Human Organs Act 1994 does not
clearly give any answers to the above questions hence The Supreme Court in
ArunaRamachandraShanbaugs case have finally laid down the law as to whether a man who
is brain dead be declared dead inpara 106 to para 108.The Hon’ble Apex Court have
observed as under: -
“A person's most important organ is his/her brain. This organ cannot be replaced. Other body
parts can be replaced e.g. if a person's hand or leg is amputed, he can get an artificial limb.
Similarly, we can transplant a kidney, a heart or a liver when the original one has failed.
However, we cannot transplant a brain. If someone else's brain is transplanted into one's
body, then in fact, it will be that other person living in one's body. The entire mind, including
one's personality, cognition, memory, capacity of receiving signals from the five senses and
capacity of giving commands to the other parts of the body, etc. are the functions of the
brain. Hence one is one's brain. It follows that one is dead when one's brain is dead.
107. As is well-known, the brain cells normally do not multiply after the early years of
childhood (except in the region called hippocampus), unlike other cells like skin cells, which
are regularly dying and being replaced by new cells produced by multiplying of the old cells.
This is probably because brain cells are too highly specialised to multiply. Hence if the brain
cells die, they usually cannot be replaced (though sometimes one part of the brain can take
over the function of another part in certain situations where the other part has been
irreversibly damaged).
108. Brain cells require regular supply of oxygen which comes through the red cells in the
blood. If oxygen supply is cut off for more than six minutes, the brain cells die and this
condition is known as anoxia. Hence, if the brain is dead a person is said to be dead.”
Hence, the aforestated observations of the Hon’ble Supreme Court make it luminous that a
person whose brain is supposedly termed as dead is also said to be dead.
Q. Further, The Transplantation Of Human Organs And Tissues Act also concerns itself with the
aspect of brain death and when the organs of a man who is brain dead can be harvested the
Section 3(6) of the said act reads as under: -

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"(6) Where any human organ is to be removed from the body of a person in the event of his
brain-stem death, no such removal shall be undertaken unless such death is certified, in
such form and in such manner and on satisfaction of such conditions and requirements as
may be prescribed, by a Board of medical experts consisting of the following, namely :-
(i) the registered medical practitioner, in charge of the hospital in which brain-stem death has
occurred;
(ii) an independent registered medical practitioner, being a specialist, to be nominated by the
registered medical practitioner specified in clause (i), from the panel of names approved by
the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner
specified in clause (i), from the panel of names approved by the Appropriate Authority; and
(iv) the registered medical practitioner treating the person whose brain-stem death has
occurred".
R. When the aforementioned observations of the court and the law provided under The
Transplantation Of Human Organs And Tissues Act are read in juxtaposition with the facts of
the case the question then arises can a man commit murder of a man who is technically
already dead?
S. To provide a satisfactory answer to the aforementioned question and to draw a conclusion its
crucial that the bare provisions of murder read in context with the facts of the case.
Section 300 of the Indian Penal Code reads as under: -
“Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done with the intention of causing death, or—(Secondly) —If
it is done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,
or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid. ”
T. A bare glance at the aforementioned section makes it coherent that in order for a person to
commit murder he must perform an act with the INTENTION of killing him or with the
knowledge of the fact that that act would in all its probability lead to the said persons death.

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In the instant case the acts committed were not with the intention of killing a man but the
intention for saving as many lives as those doctors could because it wasn’t just there duty
but there moral obligation.
Furthermore, the acts of the accused were not against the law, the law permits any doctor
who is of appropriate authority to transplant, harvest any organ of a man whose brain is dead
under the purview of the restrictions prescribed in the aforementioned Section of the Organ
Transplant Act. When the law mentioned above is read in concurrence with the facts of the
instant case it is crystal clear that the act done by the accused was completely in the purview
of law. Nowhere have the violated any law. Not only the law but morality also suggests that
euthanasia is extremely subjective and the fact that the act of the accused is morally correct
cannot be ignored. The act of the accused rather than losing 2 lives saved 1. The act of the
accused gave life to a little girl who has her entire life ahead of her. Further, by saying that
the accused took the life away from the deceased and chose to give life to a younger girl
would be completely incorrect as in the instant case the accused had no choice. The
deceased was dead much before his kidney was harvested as his brain cells had died and
had no function left. Hence, the doctors harvested the kidney of a man whose brain had
completely died, whose condition was irreversible and was authorized to be euthanized by
the Hon’ble High Court. The chance of survival of the deceased was none to the contrary the
young girl survived due to the work of the accused. Therefore, the fact that the act done by
the accused is one of the most humane, selfless acts any body could ever do cannot be
refuted or denied.

II.

a) Whether Suman is a victim within the meanig of section 357-ACrpc and entitled to
compensation u/s 357 and 357A Crpc?
b) Whether the doctors should be ordered to pay compensation to the wife of the
deceased where the couple has already undergone the period of judicial separation
and has filed a case for divorce too?

Respectfully Showeth:

That the relationship between Suman and Mohan is a perfect example of how the pious institution
of marriage is being mocked at today. Unlike how it was considered in yester years as two souls

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being one, it is now like a profit making business wherein you profit while together in name of
either immense maintenance and when not, under the garb of being victimised by such isolation.

That in the present case the couple went through judicial separation, at the failure of which ,
Suman filed for divorce. At that point of time all emotional bonds and sentiments between the two
were completely snapped as they fall against what is generally said that You don’t marry someone
with whom you can live with but with someone whom you cannot live without. It was unfortunate
for Suman, whose petition for divorce is still pending at the behest of Mohan going in coma
before the decree was passed. When the doctors were convicted for murder, the HC on appeal to
the decision, granted compensation to Suman to the tune of Rs 20 lakhs u/s 357 CrPC and Rs 10
Lakh u/s Victim Compensation Scheme of UT Chandipur. Thus in the light of the compensation
ordered , it is contended that Suman is not the victim in the present case and hence not entitled to
any compensation.

3.1 That she is not a victim in the present case

That for the purpose of who is a victim reference should be made to definition u/s 2 (w a) CrPC
which means a person who has suffered any loss or injury caused by reason of the act or omission
for which the accused person has been charged and the expression “victim” includes his or her
guardian or legal heir. Section 44 of the IPC defines "injury" as "any harm whatever illegally
caused to any person, in body, mind, reputation or property." "Loss" is defined in terms of
"wrongful loss", and refers to "loss by unlawful means of property to which the person losing it is
legally entitled."

Also United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power (United Nation General Assembly, 1985) describes 'victims' as including those who,
individually or collectively, have suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their fundamental rights, through acts or
omissions that are in violation of criminal laws operative within Member States, including those
laws proscribing criminal abuse of power.

That in the light of such definitions, Suman is not a victim. She suffered no loss or injry because
of the act of doctors of giving passive euthanasia and then harvesting the kidney into Meera. That

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she had herself got the orders from HC for giving passive euthanasia to Mohan and was not
coerced to do so. Thus, when the doctors acted as per their protocol and call of their medical
ethics, Suman had got nothing to lose or suffer for as she herself sought for such consequences.

Further there is no point of any economic losses to her as she was to be benefitted largely from
death of her husband as she gets to enjoy his estate completely as an heir to him. She was in a
win-win situation as she got off the burden of her husband with whom she wanted to end all ties
but as alimony couldn’t have got all of what Mohan had but now she could benefit solely for
Mohan’s mother, Dipti not being in picture at all.

Also the fact that, Suman never contested the act of the doctors or sought for compensation,
somehow shows her consent and also no liability on part of the doctors. It is humbly submitted
that the ramification of the act of doctors was no direct proximate physical harm or even
emotional harm to Suman and hence she is no victim.

3.2 That she is not entitled to compensation u/s 357or 357-A of CrPC

That Compensation is anything given to make things equivalent, a thing given to make amends
for loss, recompense, remuneration or pay. It also accounts for Physical or mental harm, including
pain, suffering and emotional distress; lost opportunities including education; Material damages
and loss of earnings, including loss of earning potential; Harm to reputation or dignity and costs
required for legal or expert assistance, medicines and medical services.5

That to be eligible for compensation, there has to be some injury or loss to person.6 That when a
death occurs the nature of crime7; the loss accruing to the dependent must be taken into account;;
the balance of loss and gain to him must be ascertained as the position of each dependent in each
case may have to be considered separately8. Thus it is Humbly submitted that in event of no loss
or injury to Suman on account of the act of the doctors she should not be entitled to any
compensation. That this is nothing but a case of misplaced sympathy wherein doctors are

5
Ankush Vhivaji Gaikwad Vs. State of Maharashtra, (2013) 6 SCC 770
6
Nehru Jain v State of NCT Delhi 2005(1) CRIMES 519 AT P 531
7
Manish Jalan V. State, (2008) 8 SCC 225 ; Hari Singh and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127
8
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on National Consumer Disputes Redressal, on 21 October, 2011,

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encountering a no fault liability, in face of which they shouldn’t be further overburdened with the
pecuniary pressure when their entire career, repute is already at stake. That it is sheer violation of
principles of social or economic justice as those acting in good faith have to pay the price of them
being bound by the directives of their profession.

Further it is contented that Compensation may be withheld or reduced if the victim himself is
injured because of his own conduct9. That it should be determined based upon nature of crime,
justness of claim and capacity of the accused to pay.10 It is averred that no right of Suman has
been infringed because of any arbitrary or capricious action on part of doctors as they acted in
good faith and as contended already aren’t liable for any murder or theft.

It is averred that Section 357 CrPC has been wrongly invoked in light of Suman not being the
victim. That the Apex Court in the case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd.
and Anr11 observed that :

“.... The purpose of imposition of fine and/or grant of compensation to a great extent must be
considered having the relevant factors therefore in mind. It may be compensating the person in
one way or the other. The amount of compensation sought to be imposed, thus, must be
reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of
accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary
way may be necessary. Some reasons, which may not be very elaborate, may also have to be
assigned; the purpose being that whereas the power to impose fine is limited and direction to pay
compensation can be made for one or the other factors enumerated out of the same; but sub-
Section (3) of Section 357 does not impose any such limitation and thus, power there under
should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the
whims and caprice of a judge.”

Further Section 357-A CrPC, objective of which is to provide for inadequacy in compensation in
event of loss or injury and need for rehabilitation does not come into play at all. That in Adamji

9
Vibhute K.I., Criminal Justice – A Human Rights Perspective of the Criminal Justice Process in India, 365 Eastern
Book Company, Lucknow Ist Edition (2004)
10
Supra 1
11
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. (2007) 6 SCC 528

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12
Umar v. State of Bombay SC observed that while passing a sentence the court has always to
bear in mind the proportionality between an offence and the penalty. In imposing a fine it is
necessary to have as much regard to the pecuniary circumstances of the accused person and to the
character and magnitude of the sentence, where a substantial term of imprisonment is imposed, an
excessive fine could not accompany it except in exceptional cases.

That since there is no victim who needs rehabilitation, therefore the amount of Rs 10 Lakhs be
refunded to the Govt of UT Chandigarh without them recovering it from the doctors. 13 It is
humbly contended that awarding such mindless compensations is like opening a floodgate of
claims which in present case undermine the rights of the doctors.

III. Whether the doctors have been rightly convicted u/s 379, 392 and 395 r/w Section 34 of
Indiana Penal Code?

Respectfully showeth :

It is Humbly submitted that the doctors have been wrongly convicted u/s 379, 392 and 395 of
Indiana Penal Code. It is contended that the doctors have merely fallen prey to the essential
goodness of mankind and the hyppocratic oath, under the pressure of which they saved the life of
a young girl who needed a kidney at an urgent basis. Moreover, the act of theirs was not arbitrary,
rather it was as per the wishes of Mohan (deceased) as he had expressed his wish to donate his
kidneys earlier and the doctors had taken out his kidney only after a week of the process for
passive euthanasia being initiated after the orders from the HC of Chandipur.

That the doctors are not liable to be prosecuted u/s 378 which deals with theft and under section
379 which deals with punishment for theft. It is clear from the definition that there are following
five essential elements of theft:
 The intention on the part of the offender must be to take the property dishonestly.
 The property of which theft is committed must be movable.
 The property must be in the possession of some person.

12
Adamji Umar v. State of Bombay, A.I.R. 1952 S.C. 14.

13
Ganesh Karmakar v. State of Assam Criminal Appeal(j) no.41/2009 (Date of Judgment: 19.1.2012)

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 The property must be taken without the consent of its possessor.


 The property must be moved in order to such taking.

The intention on the part of the offender must be to take the property dishonestly. The expression
‘dishonestly’ has been defined under section 24 of the IPC according to which whoever does
anything with the intention of causing wrongful gain to one person or wrongful loss to another
person, is said to do that thing dishonestly. ‘Wrongful gain’ and ‘wrongful loss’ have been
defined under section 23 of the IPC which states that ‘wrongful gain’ is gain by unlawful means
of property to which the person gaining is not legally entitled and ‘wrongful loss’ is the loss by
unlawful means of property to which the person losing it is legally entitled. The same section
further says that a person is said to gain wrongfully when such person retains wrongfully, as well
as such person acquires wrongfully. A person is said to lose wrongfully when such person is
wrongfully kept out of property, as well as when such person is wrongfully deprived of property

Therefore it cannot be said that the seven accused doctors had intended to take dishonestly the
second kidney of the victim of the accident, Mohan and thus moved the property in order of such
taking. It is submitted that theft of immovable property is not possible. The expression ‘movable
property’ has the same meaning as given by section 22 of IPC. This definition is an inclusive
definition which says that this expression is intended to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything
which is attached to the earth. Inspite of the explanation which shows that once an immovable
property is converted into a movable property, it becomes a subject of theft; it is submitted that
Human body, whether living or dead, is not a movable property within the meaning of section 22
of the Code. Stealing a dead body thus does not make the accused guilty of theft. But where a
human body has been preserved as a mummy, or where any part of it has been preserved with
some purpose, like for research etc., or where a human body or skeleton is being used as an
article, for research or teaching etc., stealing the same would amount to theft14.

That for the same purpose a separate act has been made that is Transplantation of Human Organs
Act, 1994 which penalises certain acts committed with respect to human organs u/s 19, 20 and 21.

14
Ramadhin (1902) 25 All 129

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The act provides for the regulation of removal, storage, and transplantation of human organs for
therapeutic purposes and for the prevention of commercial dealings in human organs. The Central
Act illegalises the buying and selling of human organs and makes cash-for-kidney transactions a
criminal offence. In juxtaposition to the act, it is submitted that how can an organ be stolen if it is
not property for the purposes of law and, if it can be stolen, from whom is the enjoyment of
property deprived.

That for the same reference should be made to the famous English principle of ‘Dominus
membrorum suorum nemo videtur’ (‘no one is to be regarded as the owner of his own limbs’). It
is further submitted that human organs are res extra commercium (a thing outside commerce) as
the conclusion of them being property would be equivalent to commodification of humans which
is not in consonance with Indiana’s ideals. Thus the conviction for theft outrightly falls for the
organ not being property itself.

It is humbly submitted that removal of a property under a bona fide claim of right cannot amount
to theft because dishonest intention would be absent even if the claim is unfounded.15 Therefore
Section 79 IPC, dealing with mistake of fact is an exception to this section.

Further Section 390 defines robbery which is aggravated form of either theft or extortion. The
charge of theft fails, the other to countenance is extortion u/s 383 IPC which again holds no
ground as no one was put in any fear any injury and wasn’t thereby dishonestly induced. Finally
wrt conviction for dacoity, it is averred that on perusal of the definition of dacoity it shows that
the illegal act of the doctors does not fall u/s 391 IPC and therefore naturally it does not fall u/s
395 IPC. That emphasis be laid on the observation of Madhya Pradesh HC that dead body not
being a person, removing anything from it does not constitute either theft or robbery.16

It is humbly submitted that what the doctors did was not active euthanasia in subterfuge. That they
were in a dilemma and acted as per the calling of their profession when the axe of law fell upon
them.

15
Nagappa, (1890) 15 Bom 344
16
Re, Adimola Muladir AIR 1960 Mad 186; Guman v State of MP 1989 CrLJ 1424(MP)

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IV. That the HC does not have inherent powers, under the Constitution, to order MCI to
.initiate disciplinary proceedings against the doctors while dealing with a case under the
Contempt of Courts Act, 1971.

It is humbly submitted that the HC does not have the inherent powers under the Constitution to
order MCI to initiate disciplinary proceedings against the doctors while dealing with a case under
the Contempt of Courts Act, 1971. Although the HC has inherent powers under Art 215 of the
Constitution to punish for its contempt this power is limited by the Contempt of Courts Act, 1971.
Therefore, the Hon’ble Court cannot punish for contempt in any other manner than provided by
the said Act.

That the object of Contempt of Courts Act is to limit the power to punish for contemptThe
Contempt of Courts Act,1926 was the first piece of legislation which was enacted with a view to
define and limit the powers of certain Courts in punishing for Contempt. This Act was enacted
with a view to remove doubts about the powers of the High Court to punish for contempt.17

The Hon’ble SC observed in Supreme Court Bar Association v. UOI,18thatthe nature and types of
punishment which a court of record can impose in a case of established contempt under the
common law have now been specifically incorporated in the Contempt of Courts Act, 1971
insofar as the HC are concerned and therefore to the extent the Contempt of Courts Act, 1971
identifies the nature or types of punishments which can be awarded in the case of established
contempt, it does not impinge upon the inherent powers of the HC under Article 215 either. No
new type of punishment can be created or assumed.

The Court has, however, stated that providing for the quantum of punishment or what may or
may not be regarded as acts of contempt or even providing for a period of limitation for initiating
proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the
contempt jurisdiction under Article 129 or Article 215of the Constitution.19

In the present case, the Hon’ble HC of Chandipur while holding the petitioners guilty of contempt
not just imposed a fine of 2000 each to be paid by the 7 doctors but also ordered the MCI to
initiate the disciplinary proceedings against them. In view of the above cited judgments, it is not

17
Pallav Seth v. Custodian & Ors, 2001) 7 SCC 549
18
Supreme Court Bar Association v. UOI, AIR 1998 SC1895 [
19
Pallav Seth v. Custodian & Ors, 2001

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within the power of the said HC to exercise such power under its contempt jurisdiction, as the law
of contempt being well codified has already prescribed the limit on the punishment which can be
imposed for civil contempt. The Hon’ble HC cannot go beyond this limit and impose any
punishment of its like under its contempt jurisdiction.

To understand the jurisdiction of the High Court it is imperative to understand Article 226. Article
226of the Constitution reads as under: -
“226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any
other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without

(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date on
which the copy of such application is so furnished, whichever is later, or where the High Court is
closed on the last day of that period, before the expiry of the next day afterwards on which the
High Court is open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

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(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32”

Article 226 makes it lucid that the High Court does possess the power to issue orders writs or
directions to any quasi judicial, statutory or administrative body within the territory of India. In the
Instant case the issue which arises is that the High Court did not have the authority in the
present case to issue directions to the MCI even though it being a statutory body, The Article 226
comes into question only when a case is inunciated on the specific writ for which the directions of
the High Court are needed. The orders of the High Court fall in the purview of the writ of
Mandamus but no such writ was ever filed in the High Court the High Court has Suo Motu
proceeded with the case and hence cannot attract the bare provisions of Article 226 as the writ of
mandamus was never filed in the High Court rendering the High Court with no jurisdiction to
direct the MCI to initiate disciplinary proceedings against the accused. Further, the High Court
has already punished the accused for the Contempt by fining them for Rs. 2000 each.

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PRAYER

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed that this Hon'ble court may be pleased to adjudge
and declare that:

1. Active Euthanasia should be allowed in Indiana in cases of Emergency or in all the cases
with the permission of the High Court
2. The wife of the deceased, Suman is a victim within the meaning of section 357A of the
Code of Criminal Procedure and should be given compensation under section 357 or 357A
of the Code of Criminal Procedure, 1973
3. The doctors should be ordered to pay compensation to the wife of the deceased.
4. The High Court has inherent powers under the Constitution to order Medical Council of
India to initiate disciplinary proceedings against the doctors while dealing with a case
under the Contempt of Courts Act, 1971

The court may also be please to pass any other order, which this Hon'ble Court may deem fit in
the light of justice, equity and good Conscience.

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