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Emperor Vs. Ganpat Subrao Kashyapi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application For Revision Nos. 418/419 of 1933
Judge
Reported inAIR1934Bom202; (1934)36BOMLR373
AppellantEmperor
RespondentGanpat Subrao Kashyapi
Excerpt:
.....1872, or which could be enforced specifically;;(2) that inasmuch as the contract to examine the bodies was a contract between the municipality and the accused, and the municipality had suffered no damage by the breach of that contract, the act of the accused would not give rise to a civil action and could not be the foundation for a prosecution under section 177 of the indian penal code:; queen-empress v. appaya (1819) i.l.r. 14 mad. 484 followed;;(3) that, in the absence of a contract between government and the accused, the accused was not legally bound to furnish information as to the bodies submitted to him, within the meaning of section 177 of the code;;(4) that, therefore, the accused had not committed the offence punishable under section 177 of the code. - - he says that in..........having regard to the rules. therefore, reading sections 177 and 43 together, the applicant was bound by contract to conduct this post mortem examination properly, and was legally bound to supply to government the information which he derived from that examination, which information must not be false to his knowledge. the answer made by mr. carden noad on behalf of the applicant is, first of all, that the definition of 'illegal' in section 43, which provides that that word is applicable to everything which is an offence, or which is prohibited by law or which furnishes ground for a civil action, does not apply to a breach of contract. he argues that the word can only cover some action which is in itself illegal or gives ground for a civil action, and does not cover something which is.....
Judgment:

John Beaumont, Kt., C.J.

1. These are two applications in revision against the conviction by the Additional Sessions Judge of Sholapur of the accused under Section 177 of the Indian Penal Code. The facts are not in dispute. Three dead bodies were found in the Sholapur District, one of which was the body of a man named Nama, which was found lying on the ground, and another of which was the body of a man named Bandu, which was found hanging on a tree. The other body I need not refer to. These two bodies were sent to the applicant, who was the medical officer employed by the Municipality of Barsi. They were sent by the police for the purpose of post mortem examination. The applicant filled in the ordinary form required by Government to be filled in by medical officers holding postmortem examinations. In the case of Nama the various matters relating to the condition of the internal organs were all dealt with by the applicant stating that the organs were decomposed. In the case of the body of Bandu, the applicant gave much more detailed information. He says, for instance, that the heart weighed seven ozs., thin dark blood was found in the right side of the heart, there were no clots, and the valves were all normal, both the lungs were congested, and there was nothing special as to the viscera, and the other internal organs were normal. Under the Civil Medical Code, Rule 9, every post mortem examination for medico-legal purposes should be complete, all the vital organs of the body being examined. Now the applicant admits that in point of fact he never opened up the bodies at all. He says that in the case of Nama his statement that the internal organs were decomposed was perfectly true, and that he could tell from an examination of the external features of the body that the internal organs must be decomposed. In the case of Bandu the detailed information given as to the internal organs must, I think, have been false to the knowledge of the applicant, because he could not seriously have supposed that he could guess with exactitude as to the details given. The applicant does not of course dispute that in not opening up the bodies, and in making a post mortem report which conveyed the impression that he had opened up the bodies, he was guilty of improper conduct, and nobody would attempt to justify such conduct. But the question is whether he has committed an offence under Section 177 of the Indian Penal Code. That section provides:

Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished, etc..

2. Then there are certain illustrations which refer to breaches of duty imposed by some statute or rule having the force of a statute. If I had to construe the section by itself, I should be disposed to hold that the expression 'legally bound,' having regard particularly to the illustrations, means bound by some statute or rule having the force of a statute. But one has to construe Section 177 with reference to the definition of 'legally bound' in Section 43, because Section 7 of the Indian Penal Code provides that every expression, which is explained in any part of the Code, is used in every part of the Code, in conformity with the explanation, and Section 43 does explain the expression 'legally bound', Section 43 provides:

The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action: and a person is said to be 'legally bound to do' whatever it is illegal in him to omit.

3. In the case of the body of Nama, I think that the answer to the charge is that the information supplied by the applicant, viz., that the internal organs were decomposed, was not in fact false. Indeed, as far as the evidence goes, it was true, and, therefore, the accused could not have known or had reason to believe that that information was false. But in so far as the body of Bandu is concerned, I think there was undoubtedly information which the accused had reason to believe to be false, and for the purposes of that case it is necessary to consider what was the legal relationship between the applicant and the Government, which is the public servant referred to in Section 177. It appears that in 1912 the Government arranged with the Municipality of Barsi that the Municipality should be entitled to employ their own medical officer, and it was provided that a fee of Rs. 4 should be given to the medical officer for each medico-legal case sent to him on behalf of Government. I think that a body sent up by the police to a doctor for post mortem examination is a medico-legal case within that resolution, and also within Rule 9 of the Civil Medical Code. The way the case is put by the prosecution is this. For many years this doctor, the applicant, has been in the habit of receiving bodies sent to him by Government and of examining them, and charging Rs. 4 for each examination, and from that course of dealing a contract must be implied in respect of each body, the contract being that when the doctor receives a body, and accepts and makes a report upon it, he impliedly contracts with Government that he will conduct the post mortem properly, having regard to the rules. Therefore, reading Sections 177 and 43 together, the applicant was bound by contract to conduct this post mortem examination properly, and was legally bound to supply to Government the information which he derived from that examination, which information must not be false to his knowledge. The answer made by Mr. Carden Noad on behalf of the applicant is, first of all, that the definition of 'illegal' in Section 43, which provides that that word is applicable to everything which is an offence, or which is prohibited by law or which furnishes ground for a civil action, does not apply to a breach of contract. He argues that the word can only cover some action which is in itself illegal or gives ground for a civil action, and does not cover something which is only illegal, or which only gives ground for a civil action, because of some contract. For instance, to trespass on a neighbour's land is illegal, but to prevent a neighbour from entering upon one's own land is not illegal unless there is a contract to allow him to enter upon the land, in which case, to prevent him would be a breach of contract, and in that sense illegal. It is, I think, difficult to impose any limitation on the very wide words of Section 43, and, in my opinion, the section covers a breach of contract, and not merely a tort. The breach of contract, however, must be one Which furnishes ground for a civil action, that is to say, in respect of which damages could be obtained under Section 73 of the Indian Contract Act, or which could be enforced specifically. It is quite clear that a contract by a doctor to examine a dead body, being a contract for personal service, could not be enforced specifically. So far as a claim for damages is concerned, if there was a contract between the applicant and Government, I think that it might be said that Government would normally suffer damage by the breach of that contract, and could, therefore, maintain a civil action for breach of contract against the applicant because the result of the applicant failing to examine the dead body properly would be that Government would have to go to expense in getting the work done elsewhere. In the present case the evidence is that the two bodies had to be exhumed and examined by the Civil Surgeon, and I think we can assume that that must have cost a certain amount of money. But if the contract to examine the body was a contract between the applicant and the Municipality, I am unable to see how the Municipality could suffer any damage by the breach of that contract, and there is no evidence that they did in fact suffer any damage. If this is so the act of the applicant would not give rise to a civil action and cannot be the foundation for a prosecution under Section 177 of the Indian Penal Code: see Queen-Empress v. Appaya I.L.R. (1891) Mad. 484 The evidence as to the nature of the contract by which the applicant was bound is very meagre. The original resolution of Government, which is certainly not a contract between them and the applicant, provides for a fee of Rs. 4 being paid to the medical officer, but whether it was to be paid by Government or by the Municipality is not stated. In my opinion there is no satisfactory evidence on the record of any contract between the applicant and Government, and unless there was such a contract I think that the applicant was not legally bound to furnish information as to these bodies within Section 177 of the Indian Penal Code. In my view, therefore, in the case of the body of Bandu also, the applicant did not commit an offence under Section 177, however reprehensible his conduct may have been, and we must allow these applications, and set aside the convictions. The fines, if paid, will be refunded, and the bail bond will be cancelled.

Barlee, J.

4. I am of the same opinion. The question on the facts of this case is whether the applicant as a doctor of the Municipality was bound by contract to perform post mortems. The case for the Crown is that by sending bodies to the applicant the Government made an offer to him personally, and by accepting those bodies he bound himself to perform the post mortems and to make reports. The difficulty, however, is that he was a municipal servant, and that bodies were sent to him as a municipal servant in accordance with an agreement made by Government with the Barsi Municipality in 1912, or rather in accordance with the orders issued by Government in 1912. The applicant accepted these bodies as a municipal servant. It is difficult to find that any offer was made to him personally, express or implied. The wording of the Government resolution is ambiguous. After giving permission for the Municipality to have its own medical practitioner, it provides that a fee of Rs. 4 should be given to the medical officer for each medico-legal case sent to him on behalf of Government. But it is not made clear who was to pay the money, and in case the money was not paid, whom the applicant could sue to recover it. So I do not think that the contract alleged has been made out. There was, of course, a contract between Government and the Municipality, and it might be said that he was bound by his contract with the Municipality to perform these post mortems. But as no loss was caused to the Municipality that body could not have sued him. So whichever way we look at it, it seems to me that it cannot be said that he was bound by contract to perform these post mortems and was in consequence liable to punishment under Section 177 for omitting to do so.


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