LexMAHADEV PRASAD KAUSHIK versus STATE OF U.P. & ANR.
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[2008} 14 S.C.R. 660 A MAHADEV PRASAD KAUSHIK v. >-*"· ' B STATE OF U.P. & ANR. (Criminal Appeal No. 1625 of 2008) O~TOBER 17, ·2008 [C.K. THAKKER AND D.K. JAIN, JJ.] Penal Code, 1860: ss. 304A, 304, 504 and 506 - Medical negligence - Com- e plaint that medical practitioner gave injections to patient and within half an hour he died - Threat by accused-medical prac- titioner to kill complainant if case not withdrawn - Summons issued u/ss.304, 504 and 506 by Magistrate - Upheld by High Court - Interference with - Held: Proceedings u/ss. 504 and D 506 liable to be quashed as there was no reference to any threat by accused to complainant in the Order by Magistrate as a/so by High Court - Act of accused of giving injections to "-,-r deceased would not fall within mischief of s. 304, hence pro- r cess issued u/s. 304 a/so quashed - It was act of negligence E covered uls. 304A as there was nothing to show that accused before administering injections took reasonable care - Thus, proceedings could only be issued u/s. 30,4A - Code of Crimi- nal Procedure, 1973 - s. 204. • I I ( F s. 304 - Applicability of - Discussed. s. 304A - Application of - Determination - Held: There\ .L should neither be intention nor knowledge to cause death - ~ L Death should be caused by rash or negligent act. r G H ) Words and Phrases - Negligence - Meaning of \ Respondent no. 2-complainant's case was that his father-BR had pain in his body and he took him to the }F ..; clinic of the appellant-medical practitioner for treatment. · ), ·' The appellant administered three injections to BR and ·, 000 ~ MAHADEV PRASAD KAUSHIK v. STATE OF U.P. 661 &ANR. ~. within half an hour, BR died in the clinic. The respondent A ~ no 2 went to the Police Station to lodge a complaint ' against the appellant but the police refused to register the , complaint. Respondent no 2 then filed complaint before the Magistrate that his father died because of the negli- -A. gence on part of the appellant; and that the appellant B threatened to kill the complainant unless he withdrew the ( complaint. The Magistrate directed the Police Authoriti~~ to carry out the investigation. The PC?!~:~ P.uthorities car- ried out the investi~a!!~~ and submitted the report in . favour of ~~~ dppellant that BR was suffering from heart C ailment and before he could reach the clinic of the appel- lant, he died in the transit. Thereafter, the complainant filed Protest Petition. The Magistrate observed that the allega- tions of the complainant was supported by eye-witnesses and issued summons to the appellant for commission of offences punishable under sections 304, 504 and 506 IPC. D High Court upheld the order. Hence the appeal. The question which arose for consideration in this appeal was whether the courts below were justified in is- suing summons to the appellant- medical practitioner for E commission of offences punishable under sections 304, 504 and 506 IPC. Partly allowing the appeal, the Court HELD: 1. The issuance of process for offences pun- ishable under Sections 504 and 506, IPC is liable to be F quashed and is hereby quashed. Likewise, process for an offence punishable under Section 304, IPC is ill-con- ceived on the facts of the case and the process could only be issued by the Magistrate to the appellant-accused for an offence punishable under Section 304A, IPC. [Para 47] G [678-G-H; 679-A] 2. It is clear that in the order dated 09.01.2007 passed · by the Magistrate, there was no whisper about the threat alleged to have been given by the appellant to the com- plainant nor the Magistrate recorded even a prima facie H ./ \. 662 SUPREME COURT REPORTS [2008] 14 S.C.R. A finding as to such threat. The High Court also in the im- ~--~,, 1 pugned 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 BR under section 304, IPC. Therefore, the submission that B no summons could have been issued to the appellant- -~ accused for commission of offences punishable under ---c:or.tions 504 and 506 is upheld. The proceedings initi- """--· ------ ated againsttheaJ;;;e~~ant for offences punishable ulss. 504 and 506 IPC are quashed. [~a;;:~ ~O and 21] [670-8-E] C 3.1 The plain reading of the section 304 makes it c;e~~ that it is in two parts. The first part of the section is gener- ally referred to
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