Kaushik Vs. State of U.P. & ANR  INSC 1765 (17 October 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1625 OF 2008
ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 2023 OF 2007 MAHADEV PRASAD
KAUSHIK ... APPELLANT VERSUS
C.K. THAKKER, J.
present appeal is filed by the appellant herein-a Medical Practitioner, being
aggrieved and dissatisfied with the order passed by the Additional Judicial
Magistrate- IV, Mathura on January 09, 2007 in Case No. 28 of 2006 and
confirmed by the High Court of Judicature at Allahabad on February 09, 2007 in
Criminal Revision No. 366 of 2007. By the said 2 orders, the courts below
issued summons to the appellant for commission of offences punishable under
Sections 304, 504 and 506, Indian Penal Code (`IPC' for short).
stated, the facts of the case are that the appellant herein is a Medical
Practitioner. It is the case of respondent No. 2 - complainant, resident of
village Amanullahpur, Police Station Surir, District Mathura that he is
residing at the aforesaid place. That the father of the complainant had pain in
his body. On July 04, 2001 at about 6.00 p.m., therefore, the complainant
brought his father Buddha Ram to the clinic of the appellant herein for
treatment. According to the complainant, treatment was given by the appellant
who administered three injections to Buddha Ram. Within half an hour, Buddha
Ram died. The appellant asked the complainant to remove the dead-body of Buddha
Ram immediately and also threatened the complainant not to take any action
against the appellant.
is the case of the complainant that he immediately went to Surir Police Station
to lodge a report against the appellant but the police refused to register any
case. He, therefore, filed a complaint in the Court of Additional Judicial
Magistrate III, Mathura on January 03, 2002. In the said complaint, the above
facts had been stated by the complainant.
A prayer was,
therefore, made to take appropriate action against the appellant-doctor for
offences punishable under Sections 304, 504 and 506, IPC.
was alleged that on July 04, 2001, the father of the complainant died because
of negligence on the part of the appellant. It was also stated in the complaint
that the complainant went to villege Khaira on August 20, 2001. In the morning
at about 8.00 a.m., the appellant-accused met the complainant near Puran Tea
stall and abused the complainant stating as to why he had filed a complaint
against the appellant. According to the 4 complainant, the appellant also took
out a revolver and threatened the complainant to kill him unless he would
withdraw the complaint. It was stated by the complainant that since the police
refused to lodge report against the appellant, he was constrained to file the
complaint. A prayer was, therefore, made to the Court to direct Police Station,
Surir to register a complaint of the complainant, to take up investigation and
take appropriate legal steps against the appellant.
order was passed by the learned Magistrate under sub-section (3) of Section 156
of the Code of Criminal Procedure, 1973 (hereinafter referred to as `CrPC') and
investigation was directed to be made by the Police Authorities. The Police
Authorities, as per the said direction made the inquiry and submitted a final
report under Section 169, CrPC on May 27, 2002 stating therein that no offence
had been committed by the appellant herein. In the report, it was inter alia 5
observed that Buddha Ram had suffered "heart attack" and he died
during the course of "transit" from village Khaira before he was
brought to the clinic of Dr. Mahadev-appellant herein. It was also observed
that it had not come on record that the deceased had taken any treatment from
Dr. Mahadev nor there was anything to show that Dr. Mahadev administered threat
to the complainant. The investigation was, therefore, closed.
to the complainant, since the final report submitted by the Police was biased,
factually incorrect and had been prepared only with a view to favour the
appellant herein, Protest Petition was filed by the complainant which was
registered as Case No. 120 of 2007 by the Court. In the Protest Petition, it
was asserted by the complainant that his father Budha Ram had no heart trouble
at all. Buddha Ram was taken to the clinic of the appellant. The appellant gave
three 6 injections to Buddha Ram and within half an hour, the colour of his
body went blue and he died in the clinic of the appellant. The appellant also
threatened the complainant ordering him to take away dead body of Buddha Ram
immediately. It was, therefore, prayed that the final report submitted by the
Police Authorities should not be accepted and the case may be decided in
accordance with law.
learned Magistrate heard the parties. After perusing the complaint and
recording statements under Section 200 of the CrPC, the learned Magistrate
observed that from the statements of the complainant Devendra Kumar as also PW
1 Har Dayal, PW 2 Gopal Prasad and PW 3 Shiv Devi, it was clear that on July
04, 2001, at about 6.00 p.m., the father of the complainant got indisposed and
was taken to the clinic of appellant-Dr. Mahadev with the help of other village
persons. Buddha Ram was given three injections and within a short time, body of
Buddha Ram turned into blue colour and he 7 died. According to the learned Magistrate,
the allegation of the complainant was supported by eye-witnesses.
Court also noted that newspaper reports revealed that the Chief Medical Officer
and District Collector passed orders pursuant to which the clinic of Dr.
Mahadev was closed.
It was also alleged
that Dr. Mahadev was stocking poisonous injections and illegal drugs in his
clinic. The learned Magistrate, therefore, observed that there was sufficient
evidence to call upon the accused as to what he had to say in the case.
aggrieved by the said order, the appellant preferred Revision Petition No. 368
of 2007, which was dismissed by the High Court by a brief order. The said order
is challenged by the appellant in the present appeal.
was issued by this Court and considering the nature of proceedings, the
Registry was directed to place the matter for 8 final hearing. That is how the
matter has been placed before us.
have heard the learned counsel for the parties.
learned counsel for the appellant contended that no case has been made out
against him and both the Courts were in error in issuing process against the
appellant for offences punishable under Sections 304, 504 and 506, IPC. It was
submitted that as per Police Report, Buddha Ram was suffering from heart ailment
and died before he reached clinic of the appellant. The said report ought to
have been accepted by the Court.
the alternative, the learned counsel submitted that serious error of law has
been committed by the Courts below in issuing process for commission of
offences punishable under Sections 304, 504 and 506, IPC. It was submitted that
so far as Sections 504 and 506, IPC are concerned, even the learned Magistrate
9 has not stated anything as to why process for the aforesaid two sections
should be issued.
to issuance of process under Section 304, IPC, the counsel submitted that even
if it is assumed for the sake of argument that whatever is stated by the
complainant is true, the appellant is a Doctor and it is well- established that
in exercise of his professional conduct, no criminal liability can be imposed
on him. The process under Section 304, therefore, deserves to be quashed.
According to the
learned counsel, at the most process could have been issued under Section 304A
and not under Section 304, IPC. There can neither be intention (mens rea) nor
`knowledge' on the part of the appellant that his act would result or likely to
cause death of the patient. Hence, even if all the allegations are treated to
be true, it is an act of negligence covered by Section 304A, IPC.
learned counsel for the complainant, on the other hand, supported the order of
the trial Court and confirmed by the High Court. It was submitted that the
father of the complainant was admitted to the clinic of the appellant, the
appellant gave injections and within half an hour, the patient lost his life.
Section 304, IPC was, therefore, rightly invoked. Since the appellant had
administered threat, the Court was right in issuing process for offences
punishable under Sections 504 and 506, IPC as well. The High Court upheld the
action. Hence, no interference with the orders of the Courts below is called
heard the learned counsel for the parties and having applied our mind to the
material on record, in our opinion, the appeal deserves to be partly allowed.
far as threat said to have administered by the appellant herein, it may be
noted that the learned Magistrate, in the order dated January 09, 2007 did not
even refer to 11 such threat. In the said order, the learned Magistrate,
dealing with the incident, dated July 04, 2001, observed that the complainant
took his father Buddha Ram to the clinic of the appellant and the appellant
gave three injections to the patient. Within some time, Buddha Ram died. Over
and above the complainant, three witnesses also stated about the said fact. The
clinic of the appellant was also ordered to be closed. There was, therefore,
`sufficient evidence' to issue process against the appellant in relation to the
in the operative part of the order, the learned Magistrate said;
"Summons for the
offence punishable under Sections 304, 504, 506 of Indian Penal Code are issued
against the accused Dr. Mahadev. Applicant is directed to file the process fee
within 7 days. Summons be issued on filing the process fee. File be listed on
26.02.2007 for appearance".
what is stated hereinabove, it is clear that in the body of the order, there is
no whisper about the threat alleged to have been given by the appellant to the
complainant nor the learned Magistrate recorded even a prima facie finding as
to such threat.
The High Court also,
in the impugned order, does not refer to such intimidation. On the contrary,
the High Court observed that the allegations were sufficient to summon the
appellant for causing death of Buddha Ram under Section 304, IPC.
our considered opinion, therefore, the submission of the learned counsel for
the appellant is well-founded that on the facts and in the circumstances of the
case, no summons could have been issued to the appellant-accused for commission
of offences punishable under Sections 504 and 506, IPC. We uphold the
contention and quash proceedings initiated against the appellant herein for
offences punishable under Sections 504 and 506, IPC.
question then is as regards issuance of summons under Section 304, IPC. Section
304 reads thus;
304. Punishment for
culpable homicide not amounting to murder Whoever commits culpable homicide not
amounting to murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily injury as
is likely to cause death; or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both, if the act is done
with the knowledge that it is likely to cause death, but without any intention
to cause death, or to cause such bodily injury as is likely to cause death.
reading of the above section makes it clear that it is in two parts. The first
part of the section is generally referred to as "Section 304, Part
I", whereas the second part as "Section 304, Part II". The first
part 14 applies where the accused causes bodily injury to the victim with
intention to cause death; or with intention to cause such bodily injury as is
likely to cause death. Part II, on the other hand, comes into play when death
is caused by doing an act with knowledge that it is likely to cause death, but
without any intention to cause death or to cause such bodily injury as is
likely to cause death.
Makers of the Code observed;
important consideration upon a trial for this offence is the intention or
knowledge with which the act which caused death, was done. The intention to
cause death or the knowledge that death will probably be caused, is essential
and is that to which the law principally looks. And it is of the utmost
importance that those who may be entrusted with judicial powers should clearly
understand that no conviction ought to take place, unless such intention or
knowledge can from the evidence be concluded to have really existed".
Makers further stated;
"It may be asked
how can the existence of the requisite intention or knowledge be proved, seeing
that 15 these are internal and invisible acts of the mind? They can be
ascertained only from external and visible acts.
experience enable us to judge of the connection between men's conduct and their
intentions. We know that a sane man does not usually commit certain acts
heedlessly or unintentionally and generally we have no difficulty in inferring
from his conduct what was his real intention upon any given occasion".
Section 304 can be invoked, the following ingredients must be satisfied;
(i) the death of the
person must have been caused;
(ii) such death must
have been caused by the act of the accused by causing bodily injury;
(iii) there must be
an intention on the part of the accused (a) to cause death; or (b) to cause
such bodily injury which is likely to cause death;
(Part I) or (iv)
there must be knowledge on the part of the accused that the bodily 16 injury
is such that it is likely to cause death (Part II).
304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of
1870) and reads thus;
304A. Causing death
by negligence Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or
with fine, or with both.
section deals with homicidal death by rash or negligent act. It does not create
a new offence. It is directed against the offences outside the range of
Sections 299 and 300, IPC and covers those cases where death has been caused
without `intention' or `knowledge'. The words "not amounting to culpable
homicide" in the provision are significant and clearly convey that the
section seeks to embrace those cases where there is neither intention to cause
death, nor knowledge 17 that the act done will in all probability result into
death. It applies to acts which are rash or negligent and are directly the
cause of death of another person.
is thus distinction between Section 304 and Section 304A. Section 304A carves
out cases where death is caused by doing a rash or negligent act which does not
amount to culpable homicide not amounting to murder within the meaning of Section
299 or culpable homicide amounting to murder under Section 300, IPC. In other
words, Section 304A excludes all the ingredients of Section 299 as also of
Section 300. Where intention or knowledge is the `motivating force' of the act
complained of, Section 304A will have to make room for the graver and more
serious charge of culpable homicide not amounting to murder or amounting to
murder as the facts disclose. The section has application to those cases where
there is neither intention to cause death nor knowledge 18 that the act in all
probability will cause death.
Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following
pertinent observations which have been quoted with approval by various Courts
including this Court;
is hazarding a dangerous or wanton act with the knowledge that it is so, and
that it may cause injury, but without intention to cause injury, or knowledge
that it will probably be caused. The criminality lies in running the risk of
doing such an act with recklessness or indifference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either
to the public generally or to an individual in particular, which, having regard
to all the circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted".
the term `negligence' has not been defined in the Code, it may be stated that
negligence is the omission to do something which a reasonable man, guided upon
those 19 considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a reasonable and prudent man would not do.
learned counsel for the appellant- accused submitted that by no stretch of
imagination, it can be said that the appellant while administering injections
to deceased Buddha Ram said to have committed an offence punishable under
Section 304, IPC. It can never be said that the death of Buddha Ram had been
caused by the appellant by doing the act of giving injections with intention to
cause his death or to cause such bodily injury as is likely to cause death.
Likewise, it is impossible to think that the purported act has been done by the
appellant-accused with the knowledge that in all probability, it would result
into the death of Buddha Ram.
our opinion, the submission of the learned counsel for the appellant-accused
is 20 well-taken and deserves acceptance. Even if the averments made in the
complaint are accepted in their entirety, the act in question of giving
injections to deceased Buddha Ram would not fall within the mischief of Section
304, IPC. In our opinion, therefore, no process could have been issued against
the appellant- accused for commission of an offence punishable under the said
section. To that extent, therefore, the plea raised on behalf of the appellant
must be upheld.
next question relates to applicability of Section 304A, IPC. The learned
counsel for the appellant submitted that the law on the point is settled by
various pronouncements of this Court, the latest in the line is a three-Judge
Bench decision in Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC
1. In that case, one
Jiwan Lal Sharma, father of the complainant was admitted as a patient in a
hospital. Jiwan Lal felt difficulty in breathing. The complainant's elder
brother 21 approached the duty Nurse who tried to contact a doctor, but no
doctor was available for about half an hour. The appellant then reached to the
room of the patient. Oxygen cylinder was brought and an attempt was made to
ensure that breathing problem of the patient does not aggravate. The oxygen
cylinder, however, was not working. Another cylinder was brought. But by the
time it could be made active, the patient died. An offence was registered under
Section 304A, IPC against the doctor which was challenged by him under Section
482, CrPC and prayer was made for quashing of criminal proceedings. The High
Court dismissed the petition. The aggrieved appellant approached this Court.
the relevant provisions of CrPC as also negligence by professionals, this Court
held that in every mishap or death during medical treatment, a medical man
cannot be proceeded against in a criminal Court.
of doctors without 22 adequate medical opinion pointing to their guilt would
be doing disservice to the community at large. If the Courts were to impose
criminal liability on hospitals and doctors for everything that goes wrong, the
doctors would be more worried about their own safety than giving all best
treatment to their patients. It would also lead to shaking the mutual confidence
between the doctor and patient. Every failure or misfortune in the hospital or
in a clinic of a doctor cannot be termed as act of negligence so as to try him
of an offence punishable under Section 304A of the Code.
Court observed that a physician would not assure the patient of full recovery
in each and every case. He cannot and does not guarantee that the result of his
treatment would invariably be beneficial much less to the extent of 100% for
the person treated by him.
The only guarantee which
a professional can give or can be understood to have given by 23 necessary
implication is that he is possessed of requisite skill in that branch or
profession which he is practising and while undertaking performance of the task
entrusted to him, he would be exercising his skill with reasonable competence.
the light of the above test, the Court stated;
"Judged by this
standard, a professional may be held liable for negligence on one of two
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".
standard to be applied for judging whether a person charged has been negligent
or not would be that of an ordinary competent person exercising ordinary skill
in that profession.
was further observed that mere deviation from normal professional practices is
not necessarily evidence of negligence. An 24 error of judgment on the part of
the professional is also not negligence per se.
Higher the acuteness
in emergency and higher the complication, 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 he has to choose the lesser evil. Medical
profession is often called upon to adopt a procedure which involves higher
element of risk, but which a doctor 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 facts and circumstances of a given case.
was, therefore, held that the prosecution of the doctor was ill-founded and
accordingly, it was quashed.
relying on the above decision in Jacob Mathew reiterated in State of Punjab v.
Shiv Ram & Ors., (2005) 7 SCC 1, the learned 25 counsel submitted that in
the case on hand, criminal prosecution of the appellant-accused was not
well-founded. At the most, it was a case of `error of judgment' on the part of
the appellant. Even if it were so, no complaint could have been filed by the
complainant nor the appellant could be summoned by a Court under Section 304A,
IPC. The criminal prosecution, therefore, deserves to be quashed.
our opinion, however, the learned counsel for the respondent-complainant is
right in submitting that the trial Court found prima facie case against the
appellant. We have already noted in the earlier part of the judgment that the
complaint of Budddha Ram was only as regards pain in body. It is no doubt true
that in the final report submitted by the Police under Section 169, CrPC, it
was stated that the deceased was suffering from heart ailment and before he
could reach the clinic of the appellant herein, he died in transit. The case of
the complainant, on the other hand, was 26 that the said report was not only
incorrect but was biased and had been prepared only with a view to oblige and
favour the appellant. It was also asserted that immediately, the complainant
went to the Police Station to lodge a complaint against the appellant but the
police refused to lodge such complaint. It was because of the order passed by
the Court that the Police Authorities had to carry out the investigation.
investigation then had been made by the Police Authorities and the report was
submitted favouring the appellant which compelled the complainant to file
Protest Petition which was heard by the learned Magistrate and on the basis of
statements recorded under Section 200, CrPC that the summons was issued against
the circumstances, in our opinion, though on the facts and in the circumstances
of the case, no summons could have been issued by the trial Court against the
appellant for an offence punishable under Section 304, IPC, 27 summons for an
offence under Section 304A, IPC ought to have been issued. The decisions on
which strong reliance has been placed by the learned counsel for the appellant
expressly allows such a step in certain circumstances, such as absence of
possession of requisite skill or failure to exercise reasonable care by a
professional. Nothing has been stated by the appellant about his qualifications
or of `requisite skill' in the profession he was practising. There was also
nothing to show that before administering injections, he had undertaken
reasonable care ought to have been taken by a professional.
this connection, we may refer to a decision of the High Court of Madhya Pradesh
in Khushaldas Pammandas (Dr.) v. State of Madhya Pradesh, AIR 1960 MP 50. In
that case, the appellant, Hakim examined M, who was `tired' and `exhausted'.
The Hakim found that M had no temperature. The Hakim, however, advised M to
take a Procaine Penicillin injection. Injection 28 was then given to M, who
perspired profusely, started vomiting and died. The Hakim was prosecuted for
commission of an offence punishable under Section 304A, IPC and was convicted.
the conviction, the High Court observed that a person totally ignorant of science
of medicine or practice of surgery cannot undertake a treatment or perform
operation. If he does so, it is a material circumstance to show his gross
rashness and negligence in undertaking the treatment so as to attract Section
the facts of the case, ailment of Buddha Ram prima facie could not be said to
be of such a serious nature which would result in death during his treatment.
The allegation of the complainant which has been corroborated by statements of
other eye-witnesses is that immediately after administration of three
injections, the colour of the body of Buddha Ram turned into blue and within
half an hour he 29 died. If in the light of the above facts and circumstances,
proceedings have been initiated against the appellant for an offence punishable
under Section 304A, IPC (though not under Section 304, IPC), it cannot be said
that no such action could be taken. We are, therefore, of the view that
submission on behalf of the learned counsel for the complainant deserves to be accepted
to the above extent.
the foregoing reasons, in our judgment, the appeal deserves to be partly
allowed. So far as issuance of process for offences punishable under Sections
504 and 506, IPC is concerned, it is liable to be quashed and is hereby quashed.
Likewise, process for an offence punishable under Section 304, IPC is
ill-conceived on the facts of the case and the process could only be issued by
the learned Magistrate to the appellant-accused for an offence punishable under
Section 304A, IPC. The appeal is accordingly allowed to the extent indicated
parting with the matter, we may clarify that we have not entered into merits of
the matter or allegations and counter allegations by the parties and we may not
be understood to have expressed any opinion one way or the other. All
observations made by us hereinabove have been made only for the limited purpose
of deciding the issue before us. As and when the matter will come before the
Court, it will be considered on its own merits without being inhibited or
influenced by the observations made by the trial Court, by the High Court or by
us in the present order.