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SUPREME COURT OF INDIA
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
IMPORTANT POINT
Medical Professional must take adequate precaution before starting treatment.
Headnote:Torts—Medical Negligence—Criminal liability—Lethal injection—Allegation of complainant which has been corroborated by statements of other eye-witnesses is that immediately after administration of three injections, colour of body of deceased turned into blue and within half an hour he died—Even if averments made in complaint are accepted in their entirety, act in question of giving injections to deceased would not fall within mischief of Section 304, IPC—No process could have been issued against appellant- accused for commission of an offence punishable under said section—However, summons for offence under Section 304A, IPC ought to have been issued—Nothing has been stated by appellant about his qualifications or of requisite skill in 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—So far as issuance of process for offences punishable under Sections 504 and 506, IPC is concerned, it is liable to be quashed—Likewise, process for offence punishable under Section 304, IPC is ill-conceived on facts of case and process could only be issued by Magistrate to appellant-accused for offence punishable under Section 304A, IPC—Appeal allowed to that extent. (Paras 33, 43, 46 and 47)
Result: Appeal Partly allowed.
C.K. Thakker, J.—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 was asserted
