In this article, Shivani Singh of NLUO discusses Summoning Doctor for Evidence (Handover Summons).

What is a summon?

Summons is basically an order to appear at a specific place and time before a Judicial Magistrate of competent jurisdiction or a writ contains such order. In either of the civil or criminal case, a summons can be issued by the court. In the case of civil suits, a summons can be issued against one of the parties generally against whom a complaint is filed.  

Contents included in Summons

1. The name of the court issuing summons and its type
2. The case number assigned by the court
3. The names of parties involved in the suit plaintiff and defendant
4. Brief info about the case
5. Time and date specified for responding the summons
6. Specifying the manner in which the summons should be responded by the person.

Reasons for summoning a doctor in the Court

1. Expert Opinion:- A doctor can be summoned by the court of law on account of his special knowledge. when a question of expert opinion arises to be addressed for example if an injured person is not capable of doing an act in this case a doctor may receive summons to give evidences of examining the injured person, describing the injuries, attest the certificate of injuries, the effects of injuries, describing the technical terms used in the certificate of injured person.
2. Expert Witnesses:- A doctor expert in medical field or have professional medical skills can be summoned by the court of law as a witness to give evidence in any case. The expert witness is often unnecessarily harassed when is summoned and made the wait for a long time which deprives them of attending their patients.

• Instructions regarding summoning of this class of witness: (a) proper care should be taken that when an expert is summoned his evidence should be duly taken without fault, and complete it on the day of appearance, if possible (b) The expert should be consulted prior to producing the evidence about the suitability of time, © When an evidence can be taken at the time of commission in case then the evidence should be collected accordingly to avoid causing inconvenience to the expert.

3. Order 16 Rule 14 The court may of its own accord summon as witnesses strangers to the suit:

The court of competent jurisdiction has the power to summon any person who is a party to the suit, who is not a party to the suit and also who is not called as a witness by a party to the suit at any time necessary to examine the person, cause such person to be summoned to give evidence, or to produce any document in his possession on a day to be appointed by the court.

In case if a summon is issued to a medical professional or doctor then he is required to appear before the court until the proceedings get over. If a doctor is summoned or he is called to police station repeatedly for any legal formalities or any investigation work then he is deprived of his duty to save the life of his patients due to this reason it is very important to have proper guidelines of summoning so that a doctor cannot be harassed unnecessarily.

Guidelines to summon a Doctor/Medical professional

There are various provisions in criminal law regarding summoning of witnesses of public servants, member of parliament etc.but no attention is paid to the provision of summoning professional doctors or professional experts. The need for making guidelines for summoning a doctor/medical practitioner arose after the case of Pt. Parmanand Katara vs. Union of India (UOI) and Ors.

These guidelines include salient features of Hon’ble Supreme Court guidelines related to the summoning of doctors in the court. These guidelines are framed under the chairmanship of Director- General of Health Services in 1985. The Medical Council of India is directed to inform about these guidelines to all the concerned courts, medical colleges, practising doctors etc.

• No doctor or persons of the medical profession should be unnecessarily harassed for the purpose of interrogation or any other formality and should not be called to the police station during the period of the investigation unless required necessarily.
• • It is the duty of the police, the courts of law, legal professionals etc. to assure the doctor or medical professional is not deprived of the duty of saving human lives and to do all the necessary things to save the injured people.
  • The court should not summon a medical professional until it is of grave importance or necessity and even if he is summoned to give evidence or as a witness in any case efforts should be made so that he may not have to wait for long.
  • It is an important duty of law court or legal professional to respect the men of the medical profession because of the fact that they have an important duty to discharge which is to save human lives and treat patients and if any delay or deprivation takes place due to unnecessary legal formality it may prove perilous for the lives of injured people or patients. A delay may cause the death of people.
  • If the facts are clear that if any request for adjournment or cross-examination from a member of the medical profession would result in unnecessary harassment then such practices should be avoided keeping in mind that if the medical professional is deprived of discharging his duty to a suffering person who needs his assistance the most otherwise it may cause death of the injured person. Such guidelines will help a medical professional to get rid of the apprehension of legal formalities.
• Article 21 & 32 of Indian Constitution

Article 21 obliges the state to preserve the life of injured by providing immediate medical aid. It is the professional obligation of all the doctors whether private or government to provide medical aid as early as possible to an injured person. The life of a person whether innocent or criminal is important to be saved and aiding them medically cannot be delayed due to statutory procedural requirements, police formalities, formalities regarding evidence of doctors which are provided by Indian Constitution under Article 32.

• The first and foremost duty of every medical professional is to treat the patient without making any delay for the purpose of legal formality or reporting the police. The medical officer should inform the duty constable about the medico-legal case, name, age, sex of patient, time and place of incident took place. Also, the medical officer should submit the full medical report to police soon after the completion of treatment and examination.
• The medico-legal cases which are not brought up by police but took place in the zone of that hospital or any other hospital shall not be denied of treatment by a medical officer and shall not be transferred to any other hospital for the reason that it did not take place in the zone of the current hospital. The same formalities as mentioned in above para will be followed in such cases also.
• Providing primary medical aid to the patient irrespective of it being a medico-legal case or otherwise is the duty of all the medical institutions whether private or government. A patient can be referred to another hospital due to non-availability of expert facilities only after providing primary legal aid.
• As per the opinion of Oza, J, if a person is in a pathetic situation hanging between life and death, approaches a medical professional either in a hospital (public or private) or a private individual or any medical practitioner is called to attend the injured must do all that is within his capability to save the life of injured.
• The apprehension of facing a police interrogation or to produce him as a witness before the court should be removed from the minds of medical professionals. Appropriate efforts should be taken to save the person at a top priority basis is a duty not only of medical professionals but also of the police, and other citizens who are connected with or have noticed the incident or situation.

In the affidavit of The Secretary of The Medical Council of India with reference to clause 10 and 13 of the code of medical ethics approved by the Central Government under Section 33 of the Act by the council.

Clause 10 Obligation to the sick : “Though a physician bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble tradition of the profession he should not only be ever ready to respond to the cause of the sick and injured but he should be mindful of the high character of his mission and his responsibility he incur in the discharge of the ministrations. He should never forget that the health and the lives of those entrusted his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visit at the hour indicated to the patient.”

Clause 13 The patient must not be neglected: “A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the services. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to patients, his relative or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No, provisionally or fully registered medical practitioner shall willfully commit an act of Negligence that may deprive his patient or patients of necessary medical care.”

Important case law on summoning a doctor

Sanjay Shridhar Andhare v State of Maharashtra

Facts: The appellant in the present case is a medical professional who filed an application under Section 482 to set aside an FIR registered by Resp. no. 3 Advocate Sundarao. Applicant Dr Sanjay was a witness in a criminal case which is still pending due to this reason he was issued summons to appear before the court as a witness to give evidence but he did not receive any. Thereafter a non bailable warrant was issued by the court  in response to which the doctor appeared on the said date and time but he was made to wait for long, during that time he was deprived to attend his patient and as a result of which one of the patients died who was suffering from acute respiratory distress syndrome. The incident made the doctor ask the court that “I’m a practising doctor and was unable to wait for a long time” due to which a show cause notice issued against him. The Judicial Magistrate passed an order of conviction U/S 228  and a sum of Rs. 1000 as a fine, simple sentence of 20 days hence did not accept the reply filed by the applicant. The applicant doctor had given a written apology for unintentional contempt and deposited fine amounting to Rs. 1000 and the matter were closed there.

Resp. 3 adv. Sundarao lodged an FIR against the applicant for the offence of contempt of court even after having knowledge of the fine and conviction order already issued by the court this show the malafide intention of the advocate and also unnecessarily harassing the doctor.

Issue:  
Summoning a doctor as a witness before the court of law and its consequences.
Judgement:  Application filed by the doctor was allowed and was paid a sum of Rs. 5000 as compensation to the act of injustice caused due to unnecessarily harassing him. It was clearly shown that advocate sundarao had intentionally lodged the FIR, pressurised the court to issue notice against the applicant to display that he possesses more power as an officer of court and superior to a doctor which in result caused death of a patient due to delay and unnecessary formalities that deprived the doctor to discharge his duty to save human life. The court in the present case was of the opinion that guidelines should be made and strictly followed in respect of summoning a doctor or a medical professional.