State of Rajasthan Vs.
Om Prakash Sharma  INSC 1197 (21 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. ______ OF 2008 @
S.L.P. (Crl.) NO.5473 of 2006 Indu Jain ...Appellant State of Madhya Pradeh
& Ors. ...Respondents With Criminal Appeal No...../08 (@ SLP(Crl) No.6010
of 2006) Criminal Appeal No...../08 (@ SLP(Crl) No.2584 of 2007) Criminal
Appeal No...../08 (@ SLP(Crl) No.2588 of 2007) Criminal Appeal No...../08 (@
SLP(Crl) No.2132 of 2007
Special Leave Petition and four other Special Leave Petitions have been filed
against 2 the judgment and order of the Madhya Pradesh High Court dated 11th
September, 2006, whereby the order of the Sessions Judge, Bhopal, framing charges
against the accused under Section 304 Part II I.P.C. in Sessions Trial No. 212
of 2005 was set aside and directions were given to frame charge only under
Section 323/34 I.P.C. As all the Special Leave Petitions arise out of the
common judgment of the High Court, the same are being heard together. Leave is
accordingly granted in all the five Special Leave Petitions (Crl.) Nos. 6010
and 5473 of 2006, filed by Mrs. Indu Jain, No. 2132 of 2007 filed by the State
of Madhya Pradesh, No. 2584 and 2588 of 2007 filed by the accused.
order to appreciate the different stands taken by the different appellants in
the matter, some relevant facts are reproduced hereinbelow which will have a
bearing on the final decision in these appeals.
14th July, 2004, officers of the Special Police Establishment (Lokayukta),
Bhopal, headed by Shri B.P. Singh and Shri Mokham Singh Nain, who are the
appellants in the appeals arising out of S.L.P. (Crl) No. 2584 and 2588 of 2007
and accused in the complaint filed by Ms. Indu Jain, the appellant in the
appeals arising out of S.L.P. (Crl.) Nos. 6010 of 5473 of 2006, set a trap for
one Shri R.K. Jain, Deputy Commissioner, Commercial Tax, Bhopal, and arrested
him for taking a bribe of Rs.2,000/- from one of Mr. Chhajed, Tax Consultant,
at 5.30 p.m. On 15th July, 2004, prior to 9 a.m. Shri Jain was found
unconscious in the bathroom of the office of the Lokayukta, Bhopal, and was
taken to Hamidiya Hospital, Bhopal, for treatment. The records of the hospital
show that when Shri Jain was brought to the hospital at 9 a.m. on 15th July,
2004, his body had neither any pulse nor respiration and recordable blood
pressure and even heart sounds were absent. Though resuscitation 4 measures
were undertaken, including cardiac pulmonary resuscitation (C.P.R.), there was
little response and Shri Jain was declared dead at 1.30 p.m. on the same day.
Post Mortem examination of the deceased, which was conducted on 15th July,
2004, itself, at about 4 p.m. revealed certain injuries on the body, which
included broken ribs, but the cause of death was shown to be on account of
asphyxia within six hours of the post mortem examination.
completion of investigation, the investigating agency filed a charge-sheet
before the trial court on 12th May, 2004, and on 15th July, 2005, the learned
Sessions Judge framed charges against the five accused persons, namely, B.P.
Singh, Mokham Singh Nain, Badri Nihale, Ramashish and Silvanus Tirki under
Section 304 Part-II I.P.C., but dropped the charge under Section 330 I.P.C.
by the framing of charge under Section 304 Part II I.P.C., accused Mokham Singh
Nain filed Criminal Revision No. 1203 of 2005, while the other four accused
filed Criminal Revision No. 1204 of 2005, before the Madhya Pradesh High Court
at Jabalpur. On the other hand, on account of the dropping of charges under
Section 330 I.P.C. Mrs. Indu Jain, widow of the deceased, filed Criminal
Revision No. 1114 of 2005. All the revisional applications were heard together
by the High Court which by its order dated 11th September, 2006, set aside the
charge framed by the learned Sessions Judge and directed that charge could only
be framed under Section 323/34 I.P.C.
mentioned hereinbefore, these five appeals have been filed against the said
judgment and order of the High Court.
8. Appearing in these appeals on behalf of Mrs. Indu Jain, the widow of the
deceased, Mr. P.S. Patwalia, learned Senior counsel submitted that the order of
the Madhya Pradesh High Court impugned in these appeals, was quite clearly
against the Police Report submitted under Section 173(2) of the Code of
Criminal Procedure. It was submitted that from the arrest memo of the deceased
in connection with Crime No. 97 of 2004 it would be very clear that accused
B.P. Singh while arresting the deceased recovered two inhalers from his person,
but allowed the deceased to retain them as he was suffering from Asthma.
However, during his overnight custody in the office of the Lokayukta, Bhopal,
he was kept in a room, which was wholly unsuitable to a person suffering from
the condition of the deceased while in the custody of the Special Police
Establishment (Lokayukta) who had arrested and detained him 7 in the office of
the Lokayukta on 14th July, 2004, and his discovery in an unconscious condition
in the morning of 15th July, 2004, a report was lodged by the Station House
Officer of Kohefiza Police Station on the basis whereof a First Information
Report under Section 330 I.P.C. was registered. In addition to the above, a
written report was also made by Shri Akhilesh Jain, brother of the deceased to
Kohefiza Police Station in which it was alleged that the accused persons had
arrested the deceased and had taken him to an unknown destination from where he
was brought to Hamidiya Hospital in a serious condition, and, ultimately,
succumbed to his injuries. It was alleged that the accused persons had tortured
the deceased on account of which he had died.
Patwalia submitted that once R.K. Jain was declared to be dead, as part of the
investigation into the offence complained of, Shri O.P. Dixit, the Senior
Scientist of the 8 mobile unit of the District Police Force, made a physical
inspection of the room in the office of the Lokayukta where the accused had
kept the deceased in custody before his death and submitted a report of his
inspection. In his report Shri Dixit categorically mentioned the fact that the
condition of the room was not at all suitable for detaining a person suffering
from a respiratory disease such as asthma, in custody. He plainly indicated
that the room in question was completely unsuitable for such a patient as it
was filled with dust and cobwebs and the deceased was treated unhumanly and
against the principles of ethical human conduct. Shri Dixit also observed from
the report of the Forensic Science Laboratory, that it is evident that the
conduct of the accused was one of gross negligence and misdemeanor. It was
further observed that for a person who was suffering from asthma, the deceased
ought not to have been left alone inside the unhygienic room and at least
someone, such as a family 9 member or a friend, should have been allowed to
remain present with him. Shri Dixit recommended appropriate action to be taken
against the accused for dereliction of duty, which was duly supported by the
report of the Forensic Science Laboratory.
Patwalia submitted that having regard to the fact that the accused persons were
police officers belonging to the Special Establishment of the Lokayukta and
also having regard to the nature of the offence, the investigation of the case
was handed over from the local police to the Criminal Investigation Department
(CID) and upon completion of the investigation a charge- sheet was submitted
before the trial court on 12th May, 2005, and, as mentioned hereinbefore, on
perusal of the material on record, the learned Sessions Judge on 15h July,
2005, framed charges against all the five accused under Section 304 Part II IPC
but dropped the charge under Section 330 IPC.
Patwalia submitted that when the materials on record clearly indicated that
R.K. Jain had died because of deliberate ill-treatment and negligence at the
hands of the appellants, while in their custody, the High Court had erred in
coming to the conclusion that the said materials did not disclose an offence
under Section 330 IPC. Mr. Patwalia submitted that apart from the evidence of
physical torture of the deceased, which would be supported by the post-mortem
report, the opinion of Dr. Satpathi, who conducted the post-mortem examination
is that R.K. Jain's death was on account of asphyxia, namely, oxygen hunger on
account of choking. According to Mr. Patwalia the cause of death fitted in with
the report submitted by Mr. Dixit on the basis of which the First Information
Report came to be recorded.
Patwalia urged that in spite of the evidence available at the stage of framing
charge, the High Court turned a blind eye to the physical condition of the
deceased and the indifferent manner in which he was treated and kept in custody
in the office of the Lokayukta in conditions which triggered the asthmatic
attack which ultimately led to the death of R.K. Jain in custody. Mr. Patwalia
urged that although sufficient material was available before the High Court for
framing charge under Section 304 Part II IPC, along with the charge under
Section 330 IPC, the High Court quite erroneously dropped the charge under
Section 304 Part II and also Section 330 IPC and observed that only a charge
under Section 323/34 IPC had been established under the aforesaid report. Mr.
Patwalia submitted that the order of the High court impugned in the appeal was
liable to be set aside with a direction to the trial court to consider afresh
the framing of charges under Sections 304 Part 12 II and 330 IPC, along with
the charge under Section 323/34 IPC.
far as the other appeal filed by Ms. Indu Jain is concerned, the arguments made
in this appeal will also cover the points raised in the said appeal.
the appeal filed by the State of Madhya Pradesh, Ms. Vibha Dutta Makhija,
learned counsel, contended that this was not only a case for framing of charge
under Sections 323 with Section 34 thereof, but this is fit a case where
charges ought to have been framed against the accused under Sections 302 and
330 IPC as well. Repeating the manner in which the deceased R.K. Jain had been
arrested and thereafter kept in custody of the Special Police Establishment
attached to the Lokayukta office, Ms. Makhija reiterated the findings of Mr.
Dixit which pointed to the direct involvement of all the accused persons in the
commission of the offence.
to Ms. Makhija the bare facts of the incident which occurred with the arrest of
R.K. Jain on 14th July, 2004, establish the fact that Shri Jain died while in
the custody of the Special Police Establishment and it was yet to be proved on
evidence as to how R.K. Jain died on account of asphyxia when he was detained
in the office of the Lokayukta. Ms. Makhija also pointed out that when the
deceased had been brought to the Hamidiya Hospital in Bhopal at 9 a.m. on 15th
July, 2004, his body did not record any pulse or respiration or blood pressure
and there was no heart sound either.
Makhija submitted that although he remained in such condition till he was
declared to be dead at 1.30 p.m., there was almost no response from R.K. Jain
even after being administered cardiac pulmonary resuscitation. He continued to
remain in such condition till he was formally declared to be dead. Ms. Makhija
submitted that by keeping the deceased, who 14 suffered from respiratory
problems, in a closed room without windows which was clearly uninhabited for a
long time on account of the dust and cobwebs collected therein which triggered
an asthmatic attack which led to R.K. Jain's death, a clear case of an offence
under Sections 302 and 330 IPC had been made out against the appellants.
Counsel's submissions were fully supported by the report, which showed six
injuries on the person of the deceased. Injury No.1 was a contusion on the
scalp. Injury Nos. 2 and 3 were lacerations on the lip and mouth. Injury Nos. 4
and 5 were broken ribs, while injury No.6 was a laceration on the neck of the
Makhija contended that this being a clear case of custodial death on account of
the treatment meted out to the deceased by detaining him in wholly unhygienic
conditions completely unfit for a patient of asthma, both the trial court as
well as the High Court erred 15 in not framing charge against the appellant
and the other accused persons under Section 330 IPC. The matter was further
confounded by the order of the High Court quashing the charge against the
accused persons under Section 304 Part II IPC.
legal submissions, Ms. Makhija submitted that the opinion of the doctor at the
time of framing charges cannot be conclusive and the same would have to be
considered at its face value during the trial itself. Ms. Makhija submitted
that at the stage of framing charge, the Court is not required to go into a
detailed examination of the material filed by the Investigating agency under
Section 173 Cr.P.C. At the said stage, the Court, on perusal of the materials
before it, is only required to find out whether a prima-facie case is made out to
proceed against the accused. Ms. Makhija submitted that it is settled law that
the High Court should not ordinarily interfere with the 16 framing of charges
by the trial court, unless some glaring injustice is noticed.
Makhija referred to the decision of this [2001 (4) SCC 333] in support of her
aforesaid submissions. She also referred to the decision of this Court in State
of Maharashtra vs. man Salim Khan, [2004 (1) SCC 525] wherein this Court
cautioned the trial court as well as the High Court regarding arriving at a
decision as to the sufficiency or otherwise of the material to frame charge, as
the prosecution case gets pre-empted to that extent since during the course of
trial, even if the Magistrate comes to a different conclusion, it may not be
possible for him to pass orders accordingly. The learned Judges observed that
there was limitation to the inherent power of the High Court under Section 482
Cr.P.C. and though it is open to the High Court to quash charges framed by the
trial Court the same 17 could not be done by weighing the correctness or
sufficiency of the evidence. It was further observed by this Court that it is
only at the stage of trial that the truthfulness, sufficiency and acceptability
of the evidence, can be adjudged.
Makhija lastly referred to the three-Judge Bench decision of this Court in
State of Orissa vs. Debendra Nath Padhi, [2005 (1) SCC 568] in which the
question decided differently in the case of Satish Mehra vs. Delhi
Administration, [1996 (9) SCC 766] was referred to. In Satish Mehra's case, a
two Judge Bench of this Court had decided that at the stage of framing of
charge, the trial Judge was competent to look into the material produced on
behalf of defence at the time of framing of charge in order to come to a decision
as to whether it was at all necessary to frame charges on the material produced
on behalf of the prosecution as well as the defence. Answering the reference in
the negative, the three-Judge Bench overruled the 18 view expressed in Satish
Mehra's case and held that at the said stage of framing charge, the Court was
only required to look into the material produced on behalf of the prosecution
in deciding whether a particular case was fit to go to trial.
Makhija, while questioning the decision of the learned Sessions Judge to drop
charges against the accused persons under Section 330 IPC, submitted that
neither the Sessions Court nor the High Court even thought of framing charge
under Section 302 IPC against the accused persons.
for the accused in the appeal filed by Indu Jain, who are also the appellants
in the appeals arising out of SLP(C) No. 2584 and 2588 of 2007, Mr. K.T.S.
Tulsi, learned senior counsel, submitted that the order of the High Court did
not call for any interference since the charge-sheet does not disclose the
ingredients of the charge framed against the 19 accused persons under Section
323/34 IPC. Mr. Tulsi submitted that there is no direct evidence that the
accused persons had ever assaulted the deceased and the First Information
Report shows that R.K. Jain died due to asphyxia. Referring to the statement of
Dr. Satpathi who had examined the deceased, and was also one of the doctors who
conducted the Post Mortem examination Mr. Tulsi submitted that the broken ribs and
the laceration marks on both sides of the lower lips were the result of
attempts made in the Hospital to resuscitate the deceased. It was submitted
that the opinion of the Medical Experts and the Post- Mortem Report established
that R.K. Jain died on account of asphyxia and that he had obstructive lung
disease which block the airways and his death was, therefore, natural and not
on account of any violence while in custody.
Tulsi submitted that apart from the above, Dr. V.K. Sharma, Professor and Head
of the Department of Medicine, Gandhi Medical College, Bhopal, whose opinion
was sought for by the CID, Police Head Quarters, Bhopal had indicated that the
fracture of the ribs could have been caused while external cardiac massage or
CPR was being administered to R.K. Jain in an attempt to revive him. Dr. Sharma
also stated that the fracture of ribs can also be caused while external cardiac
massage, with artificial respiration and chest compression, was being
undertaken. He also opined in his Report that a severe attack of asthma could
result in the condition in which R.K.Jain was found and such attack could have
been triggered by heavy mental tension, dust, cobwebs cold weather or the
presence of allergens in the atmosphere and pollution.
Tulsi submitted that in view of the circumstances in which R.K. Jain was
arrested 21 and thereafter kept detained in the office of the Lokayukta, the
constable who formed part of the raiding party had been suspended for
dereliction of duty but was ultimately reinstated, as in the preliminary
inquiry the charge of negligence and dereliction of duty was held not to have
been proved. Mr. Tulsi referred to the Judgment and order passed by the learned
Sessions Judge on 28h July, 2005, while deciding the question as to whether
there was sufficient ground for framing charge against them under Section 330,
323/34 and 304 (2) Indian Penal Code. Referring to paragraph 14 of the order,
Mr. Tulsi pointed out that the learned Sessions Judge had himself held that it
could not be definitely said that no cause of death had been indicated in the
Post-mortem Report. In fact, on behalf of the Investigating Authorities, a
letter was written on 16th July, 2004 to the Director, Gandhi Medical College,
Bhopal, asking for information as to whether nature of the injuries on 22
deceased R.K.Jain were simple or grievous in nature or whether in ordinary
circumstances, the death of the deceased could have been on account of injuries
found on the deceased. The most pertinent question that was asked was as to
what was the cause of death. In the reply sent by Dr. Satpathi, Director of the
Medical Legal Unit of the Hospital, it was mentioned that the injuries found on
the body of the deceased were simple in nature which were not sufficient to
cause death. It was stated that death was due to asphyxia. In fact, in the said
letter, Dr. Satpathi by way of a footnote indicated that injury Nos. 2,3,4 and
5 on the lips and ribs on both sides of the body had been caused in the
Hospital during treatment and it had no relation with the death of R.K. Jain.
support of his aforesaid submission, Mr. Tulsi referred to the well-known
Bhopal Gas Tragedy case, namely, Keshub Mahindra vs. State 23 of M.P., [1996
(6) SCC 129], in which while considering the provisions of Section 299 and 304
Part II IPC, it was observed that the accused must have done an act which
caused the death of a person with the knowledge that by such act he would
likely to cause death. While considering the width of the powers that could be
exercised by the High Court under Section 482 Cr.P.C. in relation to Sections
227 and 228 thereof, it was held that at the stage of framing of charge the
Court had no jurisdiction to go into the merits of the allegations, which could
be gone into at the time of the trial, but at the same time before any charge
could be framed under Section 304 Part II, the materials on record must at
least prima-facie show that the accused is guilty of culpable homicide and that
the act which had caused the death of the victim had been caused at least with
the knowledge that such act was likely to cause death.
Tulsi submitted that though there was no definite conclusion as to the manner
in which R.K. Jain had died, at least it was established that he died due to
asphyxia which is the consequence of respiratory breathing problems which the
deceased suffered from and had nothing to do with an offence under Section 323
IPC under which provision charge had been framed against the accused persons.
S.K. Gambhir, learned senior advocate appearing for the respondent Nos. 5 and
6, while adopting the submissions made by Mr. Tulsi, added that from the sheet
of Progress and Treatment given by the Hospital it will be revealed that R.K.
Jain was brought to the Hospital at 9 a.m. in a comatose condition and that
cardio respiratory resuscitation was started immediately and cardiac activity
was regained after 15 or 20 minutes. It was pointed out that the Progress and
Treatment Given sheet also indicated that as part of the 25 resuscitation attempts
an endotracheal intubation was done, after which the deceased was placed on a
mechanical ventilator at about 10.15 a.m. However, inspite of the attempts made
to revive R.K.Jain, he ultimately died because of choking of breath caused by
respiratory breathing failure. Mr. Gambhir submitted that there was no material
on record to indicate that R.K. Jain died a homicidal death so as to attract
the provisions of Section 304 IPC. In short, Mr. Gambhir submitted that there
was no material before the learned Trial Judge for framing charge under Section
323/34 IPC against the respondent nos. 4, 5 and 6.
on the decision of this Court in the case of Kewal Krishan vs. Suraj Bhan &
Anr., [AIR 1980 SC 1780] Mr. Gambhir claimed that Section 227 of the Code was
meant to prevent prolonged harassment to an accused and if the Judge was not
convinced that there was 26 sufficient ground to proceed against the accused,
he was required to discharge the accused and to record his reasons for doing
In the said decision
it was observed that at the stage of framing of charge, the Magistrate was not
required to weigh the evidence as if he was the trial court. He was only
required to see whether the complaint made out a prima facie case triable by
the Court of Session, which would be sufficient for issuing process to the
accused and committing them for trial to the Court of Session.
Gambhir concluded his submissions by urging that in the absence of any reliable
material regarding the involvement of the respondent Nos. 4, 5 and 6 in respect
of the charge under Section 323/34 IPC, the charge framed against the
respondents was liable to be quashed.
have carefully considered the submissions made on behalf of the respective
parties, having particular regard to the fact that 27 R.K.Jain had died while
in the custody of the Officers of the Special Police Establishment
(Lokayakuta), Bhopal, in the office of the Lokayukta, Bhopal.
has been sufficiently established that the deceased was a patient of asthma
which could cause asphyxia which was ultimately said to be the cause of R.K.
Jain's death. It is also clear that notwithstanding his serious respiratory
problem, the deceased was kept in a windowless room which was full of dust and
cobwebs which are known allergens for triggering an asthma attack, which can be
fatal, as in this case. The injuries found on the body of the deceased may have
been caused during attempts at resuscitation, but all the said circumstances
can only be considered during a proper trial and not on the basis of surmises
at the time of framing charge where on the strength of the charge sheet only a
prima facie satisfaction about the commission of an 28 offence has to be
arrived at by the trial court. Therefore, while rejecting the submissions made
by Mr. Tulsi and Mr. Gambhir that there were no materials on record to frame
charge against the accused persons even under Section 323/34 IPC, we cannot but
observe that on a prima facie view of the matter, there is ground to proceed
against the accused persons even under Section 304 Part II IPC. On that score,
we are inclined to agree both with Mr. Patwalia and Ms. Makhija that the High
Court had erred in quashing the charge framed against the accused persons under
Section 304 Part II and observing that in view of the materials on record only
a charge under Section 323 could be brought against the accused persons.
Ms. Makhija has strenuously urged that charge under Section 302 IPC should also
have been framed against the accused persons, we are not inclined to accept the
same as at this stage there is little to establish an 29 intention on the part
of the accused to willfully cause the death of R.K. Jain.
has been observed in Kewal Krishan's case (supra), at the stage of framing of
charge, the Court is not required to go into the details of the investigation
but to only arrive at a prima facie finding on the materials made available as
to whether a charge could be sustained as recommended in the charge sheet. The
same view has been subsequently reiterated in Devendra Padhi's case (Supra) and
in the case of Bharat Parikh vs. Union of India, [2008 (1) Scale page 86]
wherein the holding of a mini trial at the time of framing of charge has been
brings us to the next question as to whether the Trial court as well as the
High court was justified in dropping the charge under Section 330 IPC since
R.K. Jain's death took place while he was in custody. The important question is
whether a prima facie 30 case can be said to have been made out for a charge
to be framed under Section 330 IPC. Since the cause of death has been shown to
be asphyxia on account of detention of the deceased in unhygienic conditions
despite his respiratory problems and the injuries to the ribs and mouth of the deceased
could possibly have been caused by the attempts made by the doctor at the
Hospital to resuscitate the deceased, who had been brought to the Hospital in a
comatose condition, with the body showing no signs of pulse, respiration or
blood pressure, prima facie a case is made out for framing of charge under
Section 330 IPC. The sheet showing the progress and treatment of the accused on
arrival at the Hospital, also corroborates the same and it also mentions the
fact that cardiac pulmonary resuscitation was immediately started and the
patient was also put on mechanical ventilator as part of the attempts at
resuscitation. Apart from indicating that the patient had died of 31 asphyxia,
the medical opinion does not give any reason for such asphyxia and even in
reply to the queries made on behalf of the investigating authorities the reply
received from Dr. Satpathi, as to the cause of death, was that it had occurred
due to asphyxia, but as to how it had occurred was under investigation.
this regard, the materials submitted by the Investigating Authority in its
Final Report under Section 173 Cr.P.C. does establish the fact that the
deceased had been kept in a room which was highly unsuitable for a person
suffering from respiratory problems. In fact, as was indicated by Shri O.P.
Dixit, the Senior Scientist of the Mobile Unit of the District Police Force the
condition of the room where the deceased had been detained was completely
unsuitable for a patient of asthma as it was filled with dust and cobwebs which
was sufficient to trigger an asthmatic attack which 32 could have caused
asphyxia which ultimately led to R.K. Jain's death.
are, therefore, convinced that the appeals filed by Indu Jain and that filed by
the State of Madhya Pradesh must be allowed in part. We, accordingly, allow the
same and set aside the order of the High Court impugned in these appeals. While
restoring the order of the learned Sessions Judge framing charge against the
accused persons under Section 304 Part II IPC, we also direct that charges also
be framed against the accused persons under Section 330 Indian Penal Code.
three appeals filed by Ms. Indu Jain and the State of Madhya Pradesh are
allowed to the aforesaid extent.
far as the appeals arising out of SLP (Crl.) Nos. 2584 and 2588 of 2007 filed
by the accused are concerned, the same are dismissed.
KABIR) _________________ J.