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2008(7) Supreme 292
SUPREME COURT OF INDIA
(From Allahabad High Court)
C.K. Thakker and D.K. Jain, JJ.
Mahadev Prasad Kaushik — Appellant
versus
State of U.P. & Anr. — Respondents
Criminal Appeal No. 1625 of 2008
Arising out of Special Leave Petition (Crl.) No. 2023 of 2007
Decided on : 17-10-2008
(b) Indian Penal Code, 1860 – Section 304 – Ingredients which must be satisfied for invoking section 304 stated. (Para 26)
(c) Indian Penal Code, 1860 – Sections 304 and 304A – Distinction discussed. (Para 29)
(d) Words and Phrases – Negligence – Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. (Para 31)
(1881) ILR 3 All 776 – Relied upon.
(e) Indian Penal Code, 1860 – Section 304 – Appellant being a doctor cannot be expected to have administered injections with intention to cause death or with the knowledge that the injection might cause death – Section 304 not attracted. (Para 33)
(f) Indian Penal Code, 1860 – Section 304A – In every mishap or death during medical treatment, a medical man cannot be proceeded against in a criminal Court – 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. (Para 35)
(2005) 6 SCC 1; (2005) 7 SCC 1 – Relied upon.
(g) Indian Penal Code, 1860 – Section 304A – In the absence of anything to show appellant’s qualifications or requisite skills in the profession he was practicing and that he undertook reasonable professional care before administering the injections, summons under section 304A ought to have been issued. (Para 43)
AIR 1960 MP 50 – Referred with approval.
Facts of the case :
1. 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.
2. The learned Magistrate observed that there was sufficient evidence to call upon the accused as to what he had to say in the case.
3. 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.
Finding of the Court :
Process u/s 304A IPC ought to have been issued against the appellant.
Result : Appeal partly allowed.
JUDGMENT
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.
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 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 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
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