Paragraph numbers below are the court’s original numbering, recovered from the source text.
23. Plain reading of the above section makes it clear that B )'(~· it is in two parts. The first part of the section is generally re- ferred to as "Section 304, Part /", whereas the second part as "Section 304, Part //". The first part 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 c death. Part 11, 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 orthe knowledge that death will probably be caused, E 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 ~J or knowledge can from the evidence be concluded to have F 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 these are G 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 co~mit certain H 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 in- gredients 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; c (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 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 XXVI I 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 'r 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 neg- ligent act. It does not create a new offence. It is directed against G 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 nei- H ther intention to cause death, nor knowledge that the act done MAHADEV PRASAD KAUSHIK v. STATE OF U.P. &ANR. will in all probability result into death. It applies to acts which are A 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 8 caused by doing a rash or negligent act which does not amount ~ to culpable homicide not amounting to murder within the mean- ing 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 com- c plained 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 that the act in all prob- 'r ability will cause death.
30. In Empress v. /du 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 F 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 G 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 con- siderations which ordinarily regulate the conduct of.human af- fairs would do, or doing something which a reasonable and pru- dent man would not do.
32. The learned counsel for the appellant-accused sub- mitted 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 Sec- tion 304, IPC. It can never be said that the death of Buddha Ram had been caused by the appellant by doing the act of giv- ing injections with intention to cause his death or to cause such bodily injury as is likely to cause death. Likewise, it is impos- sible to think that the purported act has been done b"J.:1e appel- lant-accused with the knowledge that in all probabllity, it would result into the death of Buddha Ram.
33. In our opinion, the submission of the learned counsel for the appellant-accused is well-taken and deserves accep- tance. Even ifthe averments made in the complaint are accepted in their entirety, the act in question of giving injections to de- ceased Buddha Ram would not fall within the mischief of Sec- tion 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-Ju_dge Bench decision in Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC 1. In G 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 approached the duty Nurse who tried to contact a doctor, but no doctor was avajlable for about half an hour. The appellant then reached to the room of the patient. Oxygen cylinder was brought and an attempt was MAHADEV PRASAD KAUSHIK v. STATE OF U.P. &ANR. +, made to ensure that breathing problem of the patient does not A aggravate. The oxygen cylinder, however, was not working. An- other cylinder was brought. But by the time it could be made active, the patient died. An offence was registered under Sec- tion 304A, IPC against the doctor which was challenged by him under Section 482, CrPC and prayer was made for quashing B of criminal proceedings. The High Court dismissed the peti- tion. The aggrieved appellant approached this Court.
35. Considering the relevant provisions of CrPC as also negligence by professionals, this Court held that in every mis- hap or death during medical treatment, a medical man cannot c be proceeded against in a criminal Court. Criminal prosecu- tions of doctors without 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 D more worried about their own safety than giving all best treat- ment 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 pun- ishable 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 necessary im- plication is that he is possessed of requisite skill in that branch or profession which he is practising and while undertaking per- formance of the task entrusted to him, he would be exercising G 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 H [2008) 14 S.C.R. ~r 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 per- son charged has been negligent or not would be that of an ordi- nary competent person exercising ordinary skill in that profes- sion. '°1t·
39. It was further observed that mere deviation from nor- c nial professional practices is not necessarily evidence of neg- ligence. An 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 appro- priate to follow would depend on facts and circumstances of a given case. …..,
40. It was, therefore, held that the prosecution of the doc- tor 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 counsel submitted that in the case on hand, crimi- nal 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 MAHADEV PRASAD KAUSHIK v. STATE OF U.P. &ANR. ~· respondent-complainant is right in submitting that the trial Court A · 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 Sec- tion 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 complain- ~· ant, on the other hand, was 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 c 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 investi- gation. One sided investigation then had been made by the 0 Police Authorities and the report was submitted favouring the appellant which compelled the complainant to file Protest Peti- _ ~ tion which was heard by the learned Magistrate and on the ba- sis 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, 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 pro- fessional. Nothing has been stated by the appellant about his G qualifications or of 'requisite skill' in the profession he was prac- tising. There was also nothing to show that before administer- ing 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 H 1. High Court of Madhya Pradesh in Khushaldas Pammandas ~ (Or.) v. State of Madhya Pradesh, AIR 1960 MP 50. In that case, the appellant, Hakim examined M, who was 'tired' and 'ex- hausted'. The Hakim found that M had no temperature. The Hakim, however, advised M to take a Procaine Penicillin injec- tion. Injection was then given to M, who perspired profusely, started vomiting and died. The Hakim was prosecuted for com- mission of an offence pun'ishable 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 $Urgery cannot undertake a treatment or perform operation. If he does so, it is a material circumstance to show his gross rash- ness and negligence in undertaking the treatm"ent so as to at- tract 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 died. If in the light of the above facts and circumstances, proceedings have been initi~ ated against the appellant for an offence punishable under Sec- tion 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 compl~inant deserves to be accepted to the above extent. .G
47. For the foregoing reasons, in our judgment, the ap- peal deserves to be partly allowed. So far as issuance of pro- cess 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- '( ,. t MAHADEV PRASAD KAUSHIK v. STATE OF U.P. &ANR. accused for an offence punishable under Section 304A, IPC. The appeal is accordingly allowed to the extent indicated above.
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 under- stood to have expressed any opinion one way or the other. All 8 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 consid- ered on its own merits without being inhibited or influenced by the observations made by the trial Court, by the High Court or C by us in the present order.
49. Ordered accordingly. N.J. Appeal partly allowed.