INDU JAIN versus STATE OF MADHYA PRADESH & ORS.

17. Ms. Makhija contended that this being a clear case of A custodial death on account of the treatment meted out to the deceased by detaining him in wholly unhygienic conditions com- pletely unfit for a patient of asthma, both the trial court as well as the High Court erred in not framing charge against the appel- lant and the other accused persons under Section 330 IPC. The matter was further confounded by the order of the High Court quashing the charge against the accused persons under Sec- tion 304 Part 11 IPC.

18. On legal submissions, Ms. Makhija submitted that the opinion of the doctor at the time of framing charges cannot be c …… conclusive and the same would have to be considered at its face value during the trial itself. Ms. Makhija submitted that at the stage of framing charge, the Court is not required to go into a detailed examination of the material filed by the Investigating agency under Section 173 Cr.P.C. At the said stage, the Court, D on perusal of the materials before it, is only required to find out –.. whether a prima-facie case is made out to proceed against the accused. Ms. Makhija submitted that it is settled law that the High Court should not ordinarily interfere with the framing of charges by the trial court, unless some glaring injustice is no- ticed. c

19. Ms. Makhija referred to the decision of this Court in Om Wati (Smt.) and Anr. Vs. State, [2001 (4) SCC 333] in sup- port of her aforesaid submissions. She also referred to the de- cision of this Court in State of Maharashtra vs. Salman Salim F Khan, [2004 (1) SCC 525] wherein this Court cautioned the trial court as well as the High Court regarding arriving at a deci- sion as to the sufficiency or otherwise of the material to frame charge, as the prosecution case gets pre-empted to that extent since during the course of trial, even if the Magistrate comes to G a different conclusion, it may not be possible for him to pass It 1 orders accordingly. The learned Judges observed that there was limitation to the inherent power of the High Court under Section 482 Cr.P.C. and though it is open to the High Court to quash charges framed by the trial Court the same could not be done H SUPREME. COURT REPORTS by weighing the correctne<.>s or sufficiency of the evidence. It was further, observed by this Court that it is only at the stage of_ trial that the truthfulness, sufficiency and acceptability of the evi- dence, can be adjudgect · ·· –

20. Ms. M~khija lastly referred to the three-Judge Bench decision of this Court in St~te of Orissa vs~ Debendra Nath Padhi, [2005 (1) SCC 568] in which the question decided dif- ferently in the case of Satish Mehra vs. Delhi Administration, [1996 (9) sec 766] was referred to. In Satfsh Mehra's case, a two Judge Bench. of this Court had decided that at the stage· of C framing of charge, the trial Judge was competent to look into the material produced on behalf of defence at the time of fram- ing of charge in order to come to a d,ecision as to ·whether it was at all necessary to frame charges on the material produced on behalf of the prosecution as well as the defence. Answering D the reference in the negative, the three-Judge Bench overruled the view expressed in Satish Mehra's case and held that at the °" said stage of framing charge, the Court was only required to look into the material produced on behalf of the prosecution in deciding whether a particular case was fit to go to !rial.

21. Ms. Makhija, while questioning the decision of the learned Sessions Judge to drop charges against the accused persons under Section 330 IPC, submitted that neither the Ses- sions Court nor the High Court even thought of framing charge under Section 302 IPC against the accused persons.

22. Appearing for the accused in the appeal filed by lndu Jain, who are also the appellants in the appeals arising out of SLP(Cr No. 2584 and 2588 of 2007, Mr. K.T.S. Tulsi, learned senior counsel, submitted that the· order of the High Court did G not call for any interference since the charge-sheet does not disclose the ingredients of the charge framed against the ac- cused persons under Section 323/34 IPC. Mr. Tulsi submitted that there is no direct evidence that the accused persons had ever assaulted the deceased and the First Information Report shows that R.K. Jain died due to asphyxia. Referring to the state- JNDU JAIN v. STATE OF MADHYA PRADESH & ORS. [ALTAMAS KABIR, J] ment of Dr. Satpathi who had examined the deceased, and was also one of the doctors who conducted the Post Mortem ex- amination Mr. Tulsi submitted that the broken ribs and the lac- eration marks on both sides- of the lower lips were the result of attempts made in the Hospital to resuscitate the deceased. It was submitted that the opinion of the Medical Experts and the B Post-Mortem Report established that R.K. Jain died on account of asphyxia and that he had obstructive lung disease which block the airways and his death was, therefore, natural and- not on account of any violence while in custody.

23. Mr. Tulsi submitted that apart from the above, Dr. V.K. c Sharma, Professor and Head of the Department of Medicine, Gandhi Medical College, Bhopal, whose opinion was sought for by the CID, Police Head Quarters, Bhopal had indicated that the fracture of the ribs could have been caused while exter _. nal cardiac massage or CPR was being administered to R.K. Jain iii an attempt to revive him. Dr. Sharma also stated that the · fracture of ribs can also be caused while external cardiac mas- sage, with artificial respiration and chest compression, was being undertaken. 1-!e also opined. in his Report that a ~evere attack of asthma could result in the condition in which R.K.Jain was found and such attack could have been triggered by heavy mental tension, dust, cobwebs cold weather or the presence of allergens in the atmosphere and pollution.

24. Mr. Tutsi submitted that in view of the circumstances in _, ·——– ~ — – — which R.K. Jain was arrested and thereafter kept detained· in – the office of the Lokayukta, the constable who formed part of:_ the raiding party had been suspended for dereliction-of duty but was ultimately reinstated, as in the preliminary inquiry the charge __ of negligence and dereliction of .duty waS, held not to have been proved. Mr. Tutsi referred to the Judgment and order passed by G the learned-Sessions Judge c;m 28h July, 2005, while deciding • '-1 the question as to whether there was sufficient ground for fram- ing charge against them under Section 330, 323/34 and 304(2) Indian Penal Code. Referring to paragraph 14 of the order, Mr. Tutsi pointed out that the learned Sessions Judge had himself H held that it could not be definitely said that no cause of death had been indicated in the Post-mortem Report. In fact, on be- half of the Investigating Authorities, a letter was written on 161h July, 2004 to the Director, Gandhi Medical College, Bhopal, asking for information as to whether nature of the injuries on deceased R.K.Jain were simple or grievous in nature or whether in ordinary circumstances, the death of the deceased could have been on account of injuries found on the deceased. The most pertinent question that was asked was as to what was the cause of death. In the reply sent by Dr. Satpathi, Director of the Medi- c cal Legal Unit of the Hospital, it was mentioned that the injuries found on the body of the deceased were simple in nature which were not sufficient to cause death. It was stated that death was due to asphyxia. In fact, in the said letter, Dr. Satpathi by way of a footnote indicated that injury Nos. 2,3,4 and 5 on the lips and ribs on both sides of the body had been caused in the Hospital during treatment and it had no relation with the death of R.K. Jain.

25. In support of his aforesaid submission, Mr. Tulsi re- L r ferred to the well-known Bhopal Gas Tragedy case, namely, E Keshub Mahindra vs. State of M.P., [1996 (6) SCC 129], in which while considering the provisions of Section 299 and 304 Part II k IPC, it was observed that the accused must have done an act which caused the death of a person with the knowledge that by such act he would likely to cause death. While considering the width of the powers that could be exercised by the High Court under Section 482 Cr.P.C. in relation to Sections 227 and 228 • thereof, it was held that at the stage of framing of charge the Court had nojurisdiction to go into the merits of the allegations, r which could be gone into at the time of the trial, but at the same time before any charge could be framed under Section 304 G Part II, the materials on record must at least prima-facie show r that the accused is guilty of culpable homicide and that the act which had caused the death of the victim had been caused at least with the knowledge that such act was likely to cause death. r

26. Mr. Tulsi submitted that though there was no definite r INDU JAIN v. STATE OF MADHYA PRADESH & ORS. [Al TAMAS KABIR, J] conclusion as to the manner in which R.K. Jain had died, at A least it was established that he died due to asphyxia which is the consequence of respiratory breathing problems which the deceased suffered from and had nothing to do with an offence under Section 323 IPC under which provision charge had been framed against the accused persons.

27. Mr. S.K. Gambhir, learned senior advocate appearing for the respondent Nos. 5 and 6, while adopting the submis- sions made by Mr. Tulsi, added that from the sheet of Progress and Treatment given by the Hospital it will be revealed that R.K. Jain was brought to the Hospital at 9 a.m. in a comatose condi- c tion and that cardio respiratory resuscitation was started im- mediately and cardiac activity was regained after 15 or 20 min- utes. It was pointed out that the Progress and Treatment Given sheet also indicated that as part of the resuscitation attempts an endotracheal intubation was done, after which the deceased D was placed on a mechanical ventilator at about 10.15 a.m. However, inspite of the attempts made to revive R.K.Jain, he ultimately died because of choking of breath caused by respi- ratory breathing failure. Mr. Gambhir submitted that there was no material on record to indicate that R.K. Jain died a homi- cidal death so as to attract the provisions of Section 304 IPC. In short, Mr. Gambhir submitted that there was no material be- fore the learned Trial Judge for framing charge under Section 323/34 IPC against the respondent nos. 4, 5 and 6 .

28. Relying on the decision of this Court in the case of F Kewal Krishan vs. Suraj Bhan & Anr., [AIR 1980 SC 1780] Mr. Gambhir claimed that Section 227 of the Code was meant to prevent prolonged harassment to an accused and if the Judge was not convinced that there was sufficient ground to proceed against the accused, he was required to discharge the accused G and to record his reasons for doing so. In the said decision it was observed that at the stage of framing of charge, the Mag is- trate was not required to weigh the evidence as if he was the trial court. He was only required to see whether the complaint made out a prima facie case triable by the Court of Session, ,'7. . A _ which would be sufficient for issuing process to the accused and committing them for trial to the Court of Session.

29. Mr. Gambhir concluded_ his submissions by urging that -in the ab$ence of any reliable material regarding the involve"'.' -ment of the respondent Nos. 4: 5 ~and 6 in respect of the charge under Section 323/34 IPC, the charge framed against the re- spond_en~s was liable to be quashed.

30. We have carefully considered the submissions made on behalf of the respective partie~, ·having particular ,regard to the fact that R.K.Jain had died while in the custody of the Offic- e ers of the Special Police Establishment (Lokayakuta), Bhopal, in· the office of the Lokayukta, Bhopal. –

31. It has been sufficiently e!?tablished that the deceased – was a patient of asthma which cou~ld cause-asphyxia which was . ultimately said to be the cause of R. K Jain's death. It is also 0. –clear that notwithstanding· his serious respiratory problem, the deceased was. kept in a windowless room which was full of dust and cobwebs which are known allergens for triggering an asthma attack, which catl, be fatal, as in this case. The injuries _found on the body of the deceased may have been caused dur"'. · . E · ing attempts at resuscitation, but all the said circumstances can only be considered dudng a proper trial and not on the basis of surmises at the time of framing charge where on the strength of the charge sheet ~>nly a prima facie satisfaction about the com- mission of an -Offence has to be arrived at·ny the trial court. F_ Therefore, while rejecting the submissions made by Mr. Tulsi and Mr. Gamb~ir that there were no materials on record to frame charge against the. accused persons even under Section 323/ 34 IPC, we cannot but observe that on a prima facie view of the matter, there is ground to proceed ag~inst the accused per- sons even under Section 304Part 11 IPC. On that score, we are G inclined 'to agree both with Mr. Patwalia and Ms. Makhija that the High Court had erred in quashing the charge framed against the accused persons under Section 304 Part II and observing that in view of the materials on record only a charge under Sec- . tion 323 could be brought against the accused persons. INDU JAIN v. STATE OF MADHYA PRADESH & ORS. [Al TAMAS KABIR, J] t

32. Although, Ms. Makhija has strenuously urged that A charge under Section 302 IPC should also have been framed against-the accused persons, we are not inclined to accept the same as at this stage there is little to.establish an intention on the,part of the ace.used to willfully cause the death of R.K. Jain.

33. As has been observed in Kewal Krishan's case (su- pra), at the stage offraming of charge, the Court is not required to go into the details of the investigation but to only arrive at a prima facie finding on the materials made availatlle as to whether a charge could be sustained as recommended in the charge sheet. The same view has been subsequently reiter- ated in Devendra Padhi's case (Supra) and in the case of Bharat Parikh vs. Union of India, [2008 (1) Scale page 86] wherein the holding of a mini trial at the time of framing of charge has been deprecated.

34. This brings us to the next question as·to whether the · D Trial court as well as the High court was justified in dropping the charge under Section 330 IPC since R.K. Jain's death took place while he was in custody. The important question is whether a prima facie case can be said to have been made out for·a charge to be framed under Section 330 IPC. Since the cause E of death has been shown to be asphyxia on account of deten- tion of the deceased in unhygienic conditions despite his res- piratory problems and the injuries to the ribs and mouth of the deceased could possibly have been caused by the attempts made by the doctor at the Hospital to resuscitate the deceased, F who had been brought to the Hospital in a comatose condition, with the body showing no signs of pulse, respiration or blood pressure, prima facie a case is made out for framing of charge under Section 330 IPC. The sheet showing the progress and treatment of the accused on arrival at the Hospital, also cor- roborates the same and it also mentions the fact that cardiac pulmonary resuscitation was immediately started and the pa-· tient wa_s also put on mechanical ventilator as part of the at- tempts at resuscitation. Apart from indicating that the patient t had died of asphyxia, the medical opinion does not give any reason tor such asphyxia and even in reply to the queries made on behalf of the investigating authorities the reply received from Dr. Satpathi, as to the cause of death, was that it had occurred due to asphyxia, but as to how it had occurred was under inves- B tigation.

35. In this regard, the materials submitted by the lnvesti- gating Authority in its Final Report under Section 173 Cr.P.C. does establish the fact that the deceased had been kept in a room which was highly unsuitable for a person suffering from c respiratory problems. In fact, as was indicated by Shri O.P. Di~it, the Senior Scientist of the Mobile Unit of the District Police Force the condition of the room where the deceased had been de- tained was completely unsuitable for a patient of asthma as it was filled with dust and cobwebs which wsis sufficient to trigger D an asthmatic attack which could have caused asphyxia which ultimately led to R.K. Jain's death. ,_

36. We are, therefore, convinced that the appeals filed by lndu Jain and that filed by the State of Madhya Pradesh must be allowed in part. We, accordingly, allow the same and set aside the order of the High Court impugned in these appeals. While restoring the order of the learned Ses&ions Judge tram- ing charge against the accused persons under Section 304 Part II IPC, we also direct that charges also be framed against the accused persons under Section 330 Indian Penal Code.

37. The three appeals filed by Ms. lndu Jain and the State of Madhya Pradesh are allowed to the aforesaid extent.

38. As far as the appeals arising out of SLP (Crl.) Nos. 2584 and 2588 of 2007 filed by the accused are concerned, G the same are dismissed. 'r- \ L. N:J. Appeals disposed of