REPORTABLE

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

STATE OF U.P. & ANR. … RESPONDENTS

J U D G M E N T

C.K. THAKKER, J.

1. Leave granted.

2. The 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

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).

3. Briefly 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.

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4. It 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.

5. It 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

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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.

6. An 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

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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.

7. According 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

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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.

8. The 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

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died. According to the learned Magistrate, the

allegation of the complainant was supported by

eye-witnesses.

9. The 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.

10. Being 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.

11. Notice was issued by this Court and

considering the nature of proceedings, the

Registry was directed to place the matter for

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final hearing. That is how the matter has been

placed before us.

12. We have heard the learned counsel for

the parties.

13. The 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.

14. In 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

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has not stated anything as to why process for

the aforesaid two sections should be issued.

15. As 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.

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16. The 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 for.

17. Having 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.

18. So 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

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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 said allegation.

19. But 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”.

(emphasis supplied)

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20. From 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.

21. In 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.

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22. The 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.

23. Plain 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

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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.

24. The Makers of the Code observed;

“The most 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”.

25. The Makers further stated;

“It may be asked how can the

existence of the requisite intention

or knowledge be proved, seeing that

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these are internal and invisible acts

of the mind? They can be ascertained

only from external and visible acts.

Observation and 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”.

26. Before 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

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injury is such that it is likely to

cause death (Part II).

27. Section 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.

28. The 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

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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.

29. There 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

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that the act in all probability will cause

death.

30. In 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;

“Criminal rashness 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”.

31. Though 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

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considerations which ordinarily regulate the

conduct of human affairs would do, or doing

something which a reasonable and prudent man

would not do.

32. The 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.

33. In our opinion, the submission of the

learned counsel for the appellant-accused is

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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.

34. The 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

20

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.

35. Considering 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.

Criminal prosecutions of doctors without

21

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.

36. The 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

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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.

37. In 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 findings:

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”.

38. The 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.

39. It was further observed that mere

deviation from normal professional practices is

not necessarily evidence of negligence. An

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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.

40. It was, therefore, held that the

prosecution of the doctor was ill-founded and

accordingly, it was quashed.

41. Strongly relying on the above decision

in Jacob Mathew reiterated in State of Punjab

v. Shiv Ram & Ors., (2005) 7 SCC 1, the learned

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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.

42. In 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

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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.

One sided 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 appellant.

43. In 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,

26

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.

44. In 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

27

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.

45. Upholding 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 304A, IPC.

46. On 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

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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.

47. For 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 above.

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48. Before 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.

49. Ordered accordingly.

…………………………………………………J.

(C.K. THAKKER)

NEW DELHI, …………………………………………………J.

October 17, 2008. (D.K. JAIN)

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