When NO FIR against Doctors Can be filed......
If the Advice / Treatment of professionals like a lawyer or a Doctor goes wrong, can they be criminally held liable for negligence ?... IMP Judgment of Apex Court....
"23.. A lawyer does not tell his client that he shall win the case in all circumstances. Likewise a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on"
“25…there is a world of difference between the giving of
improper legal advice and the giving of wrong legal advice."
"..... Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct"
Facts in nutshell...
1. This was the case filed by CBI, against a lawyer and the Bank officers alleging that they all committed a fraud to the tune of Rs. 1.27 Crores and a corresponding gain to themselves.
2. It was alleged that the Respondent - Advocate , who was the panel Advocate of the Vijaya Bank gave false legal opinion in respect of 10 housing loans relating to the ownership of the properties and the permissions for construction issued by the Municipal Authorities.
3. However the criminal proceedings against the Respondent- advocare were quashed by the ld. high Court and hence the CBi approached Supreme Court.
Held ;
1. The only question which the hon. Apex Court considered as to whether the conduct of the Respondent Advocate gave false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties.
2. Their lordships have produced the Legal opinion of the Respondent Advocate and after perusing the same it observed that he gave the opinion on the basis of photocopies (xerox copies) supplied by the Bank itself. it further rejected the charges of Criminal conspiracy against the Respondent -advocate.
3.It was also not proved by the prosecution that the Bank officers and the Advocate joined hands.
4.In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills and further observed in para-23 as above. it further observed that
"The only assurance which such a professional
can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess."....
5. "It is not necessary for every professional to possess the highest level of expertise in that branch which he practices" Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1
6. it observed the liability against an opining advocate arises
only when the lawyer was an active participant in a plan to
defraud the Bank.
7. it also cautioned the Lawyers by observing that " it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client"... This principle applies to all such professionals like Doctors, Architects, C.As too...
Coincidentally I came across with such an important judgment, although it may be of 2012. All the professionals must know that Rights and duties are two sides of one coin...
http://judis.nic.in/supremecourt/imgs1.aspx?filename=39578
C.B.I., Hyderabad V/s. K. Naryan Rao.
Thanks and Regards
Adv. Rohit Erande
Pune. ©
"23.. A lawyer does not tell his client that he shall win the case in all circumstances. Likewise a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on"
“25…there is a world of difference between the giving of
improper legal advice and the giving of wrong legal advice."
"..... Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct"
Facts in nutshell...
1. This was the case filed by CBI, against a lawyer and the Bank officers alleging that they all committed a fraud to the tune of Rs. 1.27 Crores and a corresponding gain to themselves.
2. It was alleged that the Respondent - Advocate , who was the panel Advocate of the Vijaya Bank gave false legal opinion in respect of 10 housing loans relating to the ownership of the properties and the permissions for construction issued by the Municipal Authorities.
3. However the criminal proceedings against the Respondent- advocare were quashed by the ld. high Court and hence the CBi approached Supreme Court.
Held ;
1. The only question which the hon. Apex Court considered as to whether the conduct of the Respondent Advocate gave false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties.
2. Their lordships have produced the Legal opinion of the Respondent Advocate and after perusing the same it observed that he gave the opinion on the basis of photocopies (xerox copies) supplied by the Bank itself. it further rejected the charges of Criminal conspiracy against the Respondent -advocate.
3.It was also not proved by the prosecution that the Bank officers and the Advocate joined hands.
4.In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills and further observed in para-23 as above. it further observed that
"The only assurance which such a professional
can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess."....
5. "It is not necessary for every professional to possess the highest level of expertise in that branch which he practices" Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1
6. it observed the liability against an opining advocate arises
only when the lawyer was an active participant in a plan to
defraud the Bank.
7. it also cautioned the Lawyers by observing that " it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client"... This principle applies to all such professionals like Doctors, Architects, C.As too...
Coincidentally I came across with such an important judgment, although it may be of 2012. All the professionals must know that Rights and duties are two sides of one coin...
http://judis.nic.in/supremecourt/imgs1.aspx?filename=39578
C.B.I., Hyderabad V/s. K. Naryan Rao.
Thanks and Regards
Adv. Rohit Erande
Pune. ©
Nice one
ReplyDeleteThanks...
ReplyDeleteBut there is no judgement specific to the profession of dr
ReplyDelete