Holding

A prima facie case exists to frame charges of culpable homicide not amounting to murder under Section 304 Part II IPC and of voluntarily causing hurt under Section 330 IPC, and the High Court’s order quashing those charges is set aside.

Summary

The Supreme Court examined the custodial death of R.K. Jain, a Deputy Commissioner who suffered from asthma and died of asphyxia after being detained in a dust‑filled, windowless room by officers of the Lokayukta. The Sessions Court had framed charges under Section 304 Part II IPC but omitted Section 330 IPC; the High Court quashed those charges and limited the case to Section 323/34 IPC. The Court held that the material on record established a prima facie case for culpable homicide not amounting to murder and for voluntarily causing hurt, given the unhygienic detention that triggered an asthmatic attack. Consequently, it restored the charge under Section 304 Part II and directed that charges under Section 330 also be framed. The appeals of the petitioner and the State were allowed in part, while the appeals of the accused were dismissed.

Issues considered

Whether the material on record suffices to prima facie frame charges under Section 304 Part II IPC for the custodial death.
Whether charges under Section 330 IPC should be framed based on the circumstances of death.
Whether a charge under Section 302 IPC is warranted.
Whether the High Court erred in quashing the charge under Section 304 Part II and limiting the case to Section 323/34 IPC.
Whether medical and post‑mortem evidence can be considered at the charge‑framing stage.

Legislation cited

Code of Criminal Procedure, 1973s. 173, s. 227, s. 228, s. 240, s. 482
Indian Penal Code, 1860s. 302, s. 304(2), s. 323, s. 330, s. 34

Subjects

custodial deathframing of chargesprima facie caseSection 304 Part II IPCSection 330 IPCasthmaasphyxiaLokayuktacriminal procedurehigh court interference

Judgment

[2008) 14 S.C.R. 1137

f INDU JAIN A
.. '" II.
STATE. OF MADHYA PRADESH & ORS.
(Criminal Appeal No. 1683 of 2008 and Ors)
OCTOBER 23, 2008
8
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]
~

Code of Criminal Procedure, 1973 - s.240, Framing of
charges - Custodial death of accused in office of Lokayukta ~
Charges framed against officers of Lokayukta u/s 304 Part II
c
but dropped u/s. 330 /PC - Set aside by High Court- Direc~
tions issued to frame charges u/s. 323134 !PC - On appeal,
held: It was established that deceased was asthmatic - De-
spite that he was detained in wholly unhygienic conditions
which triggered his asthmatic attack leading to .his death on
D
account of asphyxia - Injuries found on the body of deceased
might have been caused during attempts at resuscitation when
he was brought to Hospital in comatose condition - There-
fore, prima facie case made out for framing of charges against
accused persons u/s. 304 Part II and 330 and not u/s. 302
/PC - Order of Sessions Judge framing charge u/s.304 Part II E
/PC restored -Also direction issued to frame charges uls. 330
/PC - Penal Code, 1860 - ss. 304 Part II and 330.
The officers of the Special Police Establishment
(Lokayukta) arrested the Depufy Commissioner, Commer-
cial Tax for taking a bribe and was detained in the office
F
of Lokayukta. The next day prior to 9 a.m., DC was found
unconscious in the bathroom of the Office of Lokayukta
and.was taken to the hospital for treatment. When he was
brought to the hospital for treatment, his body neither had
any pulse nor respiration and recordable blood pressure G
,;.. ;' and heart sound were also absent. Resuscitation mea-
sures were undertaken and there was little response. At
1.30 p.m., DC was declared dead. FIR was lodged. lnves-
J
1137
H
1138 SUPREME COURT REPORTS [2008] 14 S.C.R.

...
A tigation was carried out. Post Mortem examination was 't
ii>
conducted at 4.00 p.m. which revealed certain injuries on
the body including broken ribs and cause of death was
shown to be asphyxia within six hours of the post mortem
examination. Investigating agency filed charge sheet. The
B Sessions Judge framed charges against the five accu?ed
persons u/s 304 Part II IPC but dropped charge u/s. 330
IPC. Accused person filed criminal revision. The complain-
ant-widow of deceased filed criminal revision challeng-
ing the dropping of charges u/s. 330 IPC. High Court set
c aside the charges framed by Sessions Judge and di-
rected framing of charges u/s. 323/34 IPC. Hence the
present appeal by the complainant, the State and the ac-
cused persons.
Partly allowing the appeal filed by the complainant
D and the State and dismissing the appeal filed by the ac-
cused, the Court ~·

-- HELD: 1.1 It has been sufficiently established that
the deceased was a patient of asthma .which could cause
asphyxia which was ultimately said to be the cause of his
E death. It is also clear that notwithstanding his serious res-
piratory problem, the deceased was kept in a window-
less room which was full of dust and cobwebs which are
known allergens for triggering an asthma attack, which
can be fatal, as in the instant case. The injuries found on
F the body of the deceased may have been caused during
attempts at resuscitation, but all the said circumstances
can only be considered during a proper trial and riot on
the basis of surmises at the time of framing charge where
on the strength of the charge sheet only a prima facie
G satisfaction about the commission of an offence has· to
be arrived at by the trial court ..• Therefore, while rejecting
the submissions that there were no materials on record
r- ....
to frame charge against the accused .. persons even un-
der Section 323/34 IPC, it can be observed that on a prima
"
H facie view of the matter, there is ground to proceed against
INDU JAIN v. STATE OF MADHYA 1139
PRADESH & ORS.

""' '( the accused p~rsons even under Section 304 Part II IPC. A
It is agreed that the High Court had erred in quashing the
charge framed against the accused persons under Sec-
tion 304 Part II and observing that in view of the materials
on record only a charge under Section 323 could be
brought against the accused persons. [Para 31] (1152-D B
to H)
1.2 The submission that charge under Section 302
IPC should also have been framed against the accused
persons cannot be accepted as at this stage there is little
to establish an intention on the part of the accused to c '

willfully cause the death of DC. [Para 32] (1153-A)
1.3 Since the cause of death has been shown to be
asphyxia on account of detention of the deceased in un-
hygienic conditions despite his respiratory problems and
the injuries to the ribs and mouth of the deceased could D
possibly have been caused by the attempts made by the
doctor at the Hospital to resuscitate the deceased, who
had been brought to the Hospital in a comatose condi-
tion, with the body showing no signs of pulse, respira-
tion or blood pressure, prima facie a case is made out for
E
framing of charge under Section 330 IPC. The sheet show- '
ing the progress and treatment of the accused on arrivaJ
at the Hospital, also corroborates the same and it also
mentions the fact that cardiac pulmonary resuscitation
was immediately started and the patient was also put on
i mechanical ventilator as part of the attempts at resusci- F
tation. Apart from indicating that the patient had died of
asphyxia, the medical opinion does not give any reason
for such asphyxia and even in reply to the queries made
on behalf of the investigating authorities the reply re-
ceived from the doctor as to the cause of death, was that G
;.
it had occurred due to asphyxia, but as to how it had oc-
1 curred was under investigation. [Para 34] (1153-D to H;
1154-A)
1.4 The materials submitted by the Investigating Au-
thority in its Final Report under Section 173 Cr.P.C. does H
1140 SUPREME COURT REPORTS [2008) 14 S.C.R.

A establish the fact that the deceased had l)een kept in a Y ~
room which was highly unsuitable for a person suffering
from respiratory problems. The Senior Scientist of the
Mobile Unit of the District Police Force indicated that the
condition of the room where the deceased had been de-
8 tained was completely unsuitable for a patient of asthma
·as it was filled with dust and cobwebs which was suffi-
cient to trigger an asthmatic attack which could have
· caused asphyxia which ultimately led to DC's death. [Para
35] (1154-8, C, D)
C 1.5 The order. of the High Court impugned in these
appeals is set aside. The order of the Se.ssions Judge
framing charge against the accused persons under sec-
tion 304 Part II IPC is restored and it is directed that
charges .a.l.s~Q~be framed against the accused persons
D under section 330 IPC. [Para 36] (1154-E)
Om Wati (Smt.) and Anr. vs. State 2001 (4) SCC 333;
, - State of Maharashtra vs. Salman Salim Khan 2004 (1) SCC
525; State of Orissa vs. Debendra Nath Padhi 2005 (1) SCC
568; Satish Mehra vs. Delhi Administration 1996 (9) SCC
, E 766; Keshub Mahendra v. State of M.P 1996 (6) SCC 129;
'
Kewal Kishan v. Suray Bhan and Anr. AIR 1980 SC 1780;
Bharat Parikh vs. Union of India 2008 (1) Scale 86 - referred
to.

F CASE LAW REFERENCE
t
200.1 (4) sec 333 Referred to. Para 19
2Q04 (1 > sec 5~5 Referred to. Para 19
2005 (1 > sec 568 Referred to. Para 19
G 1996 (9) sec 766 Referred to. Para 19
1996 (6) sec 129 Referred to. Para 25 'r "·
AIR 1980 SC 1780 Referred to. Para 28
2008 (1) Scale 86 Referred to. Para 33
H
INDU JAIN v. STATE OF MADHYA 1.141
PRADESH & ORS.

" - 'l 9RIMINALAPPELLATE JURISDICTION: Criminal Appeal A
> No. 1683 of 2008
From the final Judgment and Order dated 11.9.2006 of
the High Court of Madhya Pradesh at Jabalpur in Crl. Revision
No. 1114 of 2005
B
WITH
~ Criminal Appeal No-s. 1684, 1685, 1686 and 1687 of 2008
P.S. Patwalia, T.S. Doabia, Jagjit Singh Chhabra, M.S.
Doabia and Vibha Datta Makhija for the Appellant. c
K.T.S. Tulsi, S.K. Gambir, H.K. Puri, U.M. Chauhan, Priya
Puri and Praveen Chaturvedi for the Respondents.
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. This Special Leave Petition and D
~ four other Special Leave Petitions have been filed against the
judgment and order of the Madhya Pradesh High Court dated
11th September, 2006, whereby the order of the Sessions
Judg~, Bhopal, framing charges against the accused under
Section 304Part111.P.C. in Sessions Trial No. 212 of2005was E
set aside and directions were given to frame c_harge-only under
Section 323/34 I .P.C. As all the Special Leave Petitions arise
out of the common judgment of the High Court, the same are
being heard together. Leave is accordingly granted in all the
t five Special Leave Petitions (Crl.) Nos. 6010 and 5473 of 2006, i= I

filed by Mrs. lndu Jain, No. 2132 of 2007 filed by the State of
Madhya Pradesh, No. 2584 and 2588 of 2007 filed by the ac-
cused.
2. In order to appreciate the different stands taken by the
different appellants in the matter, some relevant facts are re- G
,,,. produced hereinbelow which will have a bearing on the final
1'
decision in these appeals.
3. On 14th July, 2004, officers of the Special Police Estab-
lishment (Lokayukta), Bhopal, headed by Shri B.P. Singh and
H
1142 SUPREME COURT REPORTS [2008] 14 S.C.R.

Shri Mokham Singh Nain, who are the appellants in the appeals y ~
A
arising out of S.L.P. (Crl) No. 2584 and 2588 of 2007 and ac-
cused in the complaint filed by Ms. lndu Jain, the appellant in
the appeals arising out of S.L.P. (Crl.) Nos. 6010 of 5473 of
2006, set a trap for one Shri R.K. Jain, Deputy Commissioner,
B Commercial Tax, Bhopal, and arrested him for taking a bribe of
Rs.2,000/- from one of Mr. Chhajed, Tax Consultant, at 5.30 p.m.
On 15th July, 2004, prior to 9 a.m. Shri Jain was found uncon-
scious in the bathroom of the office of the Lokayukta, Bhopal,
and was taken to Hamidiya Hospital, Bhopal, for treatment. The
c records of the hospital show that when Shri Jain was brought to
the ho$pital at 9 a.m. on 15th July, 2004, his body had neither
any pulse nor respiration and recordable blood pressure and
even heart sounds were absent. Though resuscitation measures
were undertaken, including cardiac pulmonary resuscitation
(C.P.R.), there was little response and Shri Jain was declared
D
dead at 1.30 p.m. on the same day.
)-.

· 4. The Post Mortem examination of the dec~ased, which
was conducted on 15th July, 2004, itself, at about 4 p.m. re-
vealed certain injuries on the body, which included broken ribs,
E but the cause of death was shown to be on account of asphyxia
within six hours ~f the post mortem examination.
5. On completion of investigation, the investigating agency
filed a charge-sheet before the trial court on 12th May, 2004,
and on 1Sth July, 2005, the learned Sessions Judge framed
F charges against the five accused persons, namely, B.P. Singh, t
Mokham Singh Nain, Badri Nihale, Ramashish and Silvanus
Tirki under Section 304 Part-II 1.P.C., but dropped the charge
under Section 330 1.P.C.
6. Aggrieved by the framing of charge under Section 304
G
Part 111.P.C., accused Mokham Singh Nain filed Criminal Revi-
·~
A,
sion No. 1203 of 2005, while the other four accused filed Crimi-
nal Revision No. 1204 of 2005, before the Madhya Pradesh
High Court -at Jabalpur. On the other hand, on account of the
dropping of charges under Section 330 l.P.C. Mrs. lndu Jain,
H
INDU JAIN v. STATE OF MADHYA 1143
PRADESH & ORS. [ALTAMAS KABIR, J]

widow of the deceased, filed Criminal Revision No. 1114of2005. A
" 'r
All the revisional applications were heard together by the High
- Court which by its order dated 11 1h September, 2006, set aside
the charge framed by the learned Sessions Judge and directed
that charge could only be framed under Section 323/34 1.P.C.
7. As mentioned hereinbefore, these five appeals have B
been filed against the said judgment and order of the High Court.
-1 8. Appearing in these appeals on behalf of Mrs. lndu Jain,
the widow of the deceased, Mr. P.S. Patwalia, learned Senior
counsel submitted that the order of the Madhya Pradesh High c
Court impugned in these appeals, was quite clearly against the
Police Report submitted under Section 173(2) of the Code of
Criminal Procedure. It was submitted that from the arrest memo
of the deceased in connection wit!\ Crime No. 97 of 2004 it
would be very clear that accused B.P. Singh while arresting the
D
deceased recovered two inhalers from his person, but allowed
~ the deceased to retain them as he was suffering from Asthma.
However, during his overnight custody in the office of the
Lokayukta, Bhopal, he was kept in a room, which was wholly
unsuitable to a person suffering from asthma.
E
9. Over the condition of the deceased while in the custody
of the Special Police Establishment (Lokayukta) who had ar-
rested and detained him in the office of the Lokayukta on 14th
July, 2004, and his discovery in an unconscious condition in the
morning of 15th July, 2004, a report was lodged by the Station
1 House Officer of Kohefiza Police Station on the basis whereof F
a First Information Report under Section 330 l.P.C. was regis-
tered. In addition to the above, a written report was also made
by Shri Akhilesh Jain, brother of the deceased to Kohefiza Po-
lice Station in which it was alleged that the accused persons
G
had arrested the deceased and had taken him to an unknown
;..
-( destination· from where he was brought to Hamidiya Hospital in
a serious condition, and, ultimately, succumbed to his injuries.
It was alleged that the accused persons had tortured the de-
ceased on account of which he had died.
H
1144 . SUPREME COURT REPORTS [2008] 14 S.C.R

A 10. Mr. Patwalia submitted that once R.K. Jain was de- ·t
clared to be dead, as part of the investigation into the offence (

complained of, Shri O.P. Dixit, the Senior Scientist of the mo- I

bile unit of the District Police Force, made a physical inspec-
tion of the room in the office of the Lokayukta where the ac-
B cused had kept the deceased in custody before his death and
submitted a report of his inspection. In his report Shri,Dixit cat-
egorically mentioned the fact that the condition of the room was
not at all suitable for detaining a person suffering from a respi-
ratory disease such as asthma, in custody. He plainly indicated
C that the room in question was completely unsuitable for such a
patient as it was filled with dust and cobwebs and the deceased
was treated unhumanly and against the principles of ethical
human conduct. Shri Dixit also observed from the report of the
Forensic Science Labora,tory, thatitis evident that the conduct
D of the accused was one of gross.negligence and misdemeanor.
It was further observed that for a person who Was suffering from
asthma, the deceased ought not to have been left alone inside
the unhygienic room and at least someone, such as a family
member or a friend, should have been allowed to remain present
with him. Shri Dixit recommended appropriate action to be
E taken against the accused for dereliction of duty, which was
duly supported by the report of the Forensic Science Labora-
tory.
11 Mr. Patwalia submitted that having regard to the fact
F that the accused persons were police officers belonging to the
Special Establishment of the Lokayukta and also having regard ~
to the nature of the offence, the investigation of the case was
handed over from the local police to the Criminal Investigation'
Department (CID) and upon completion of the investigation a
charge-sheet was submitted before the trial court on 12th May,
G 2005, and, asmentioned hereinbefore, on perusal of the mate-
rial on record, the learned Sessions Judge on 15h July, 2005, .,_. "
framed charges against all the five accused under Section 304
Part 11 IPC but dropped the charge under Section 330 IPC.
H 12. Mr. Patwalia submitted that when the materials on
INDU JAIN v. STATE OF MADHYA 1145
PRADESH & ORS. [AlTAMAS KABIR, J]
I

). .., record clearly indicated that R.K. Jain had died because of A
deliberate ill-treatment and negligence at the hands of the ap-
pellants, while in their custody, the High Court had erred in com-
ing to the conclusion th_§it the said materials did not disclose an
offence under Section 330 IPC. Mr. Patwalia submitted that apart
from the evidence of physical torture of the deceased, which a·
would be supported by the post-mortem report, the opinion of
Dr. Satpathi, who conducted the post-mortem examin~tion is
-1 that R.K. Jain's death was on account of asphyxia, namely, oxy-
, gen hunger on account of choking. According to Mr. Patwalia
c
the cause of death fitted in with the report submitted by Mr. Dixit
on the basis of which the First Information Report came to be
recorded.
13. Mr. Patwalia urged that in spite of the evidence avail-
able at the stage of framing charge, the High Court turned a
blind eye to the physical condition of the deceased and the in- D
·-'/;_
different manner in which he was treated and kept in custody
in the office of the Lokayukta in conditions which- triggered the
asthmatic attack which ultimately led to the death of R.K. Jain in
custody. Mr. Patwalia urged that although sufficient material was
available before the High Court for framing charge under Sec- E
tion 304 Part II IPC, along with the charge under Section 330
IPC, the High Court quite erroneously dropped the charge un-
der Section 304 Part II and also Section 330 IPC and observed
that only a charge under Section 323/34 IPC had been estab-
lished under the aforesaid report. Mr. Patwalia submitted that F
• f the order of the High court impugned in the appeal was liable to
be set aside with a direction to the trial court to consider afresh
the framing of charges under Sections 304 Part II and 330 !PC,
along with the charge under Section 323/34 IPC.
14. As far as the other appeal filed by Ms. lndu Jain is G
concerned, the arguments made in this appeal will also cover
l '1 the points raised in the said appeal.

15. In the appeal filed by the State of Madhya Pradesh,
Ms. Vibha Dutta Makhija, learned counsel, contended that this
H
INDU JAIN v. STATE OF MADHYA 1147
PRADESH & ORS. [AlTAMAS KABIR, J]

.,, 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. B
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- E
ticed.
c
I 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
1
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
1148 SUPREME. COURT REPORTS [2008] 14 S.C.R.

A 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
B 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.
E 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.
F
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-
H
JNDU JAIN v. STATE OF MADHYA 1149
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. D'
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 E
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 - F
• 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
1150 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 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
B 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-
cal Legal Unit of the Hospital, it was mentioned that the injuries
c 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
D
during treatment and it had no relation with the death of R.K.
Jain. }-.
I
L
25. In support of his aforesaid submission, Mr. Tulsi re- 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
F 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
•
'r
Court had nojurisdiction to go into the merits of the allegations,
~
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

H 26. Mr. Tulsi submitted that though there was no definite
r
INDU JAIN v. STATE OF MADHYA 1151
PRADESH & ORS. [AlTAMAS 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. B
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- E
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

' 1 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, H
,'7.

1152 "SUPREME COURT REPORTS [2008] 14 S.C.R. .

"'
. 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
B 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.
H
INDU JAIN v. STATE OF MADHYA 1153
PRADESH & ORS. [AlTAMAS 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- B
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- C
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 1

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- G
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
H I
1154 SUPREME COURT REPORTS [2008] 14 S.C.R.

t ...
A 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
E 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.
F
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.
\ L.
N:J. Appeals disposed of
'r-