REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1625     OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 2023 OF 2007

MAHADEV PRASAD KAUSHIK … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J. 1. 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.

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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

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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

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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 by the complainant

that his father Budha Ram had no heart trouble

at all. Buddha Ram was taken to the clinic of

the  appellant.   The  appellant  gave  three

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injections to Buddha Ram and within half an

hour, the colour of his body went blue and he

died  in  the  clinic  of  the  appellant.   The

appellant  also  threatened  the  complainant

ordering him to take away dead body of Buddha

Ram  immediately.   It  was,  therefore,  prayed

that the final report submitted by the Police

Authorities should not be accepted and the case

may be decided in accordance with law.

8. The  learned  Magistrate  heard  the

parties.  After  perusing  the  complaint  and

recording statements under Section 200 of the

CrPC, the learned Magistrate observed that from

the  statements  of  the  complainant  Devendra

Kumar as also PW 1 Har Dayal, PW 2 Gopal Prasad

and PW 3 Shiv Devi, it was clear that on July

04, 2001, at about 6.00 p.m., the father of the

complainant got indisposed and was taken to the

clinic of appellant-Dr. Mahadev with the help

of other village persons.  Buddha Ram was given

three injections and within a short time, body

of Buddha Ram turned into blue colour and he

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died.  According to the learned Magistrate, the

allegation of the complainant was supported by

eye-witnesses.

9. The  Court  also  noted  that  newspaper

reports revealed that the Chief Medical Officer

and District Collector passed orders pursuant

to which the clinic of Dr. Mahadev was closed.

It  was  also  alleged  that  Dr.  Mahadev  was

stocking poisonous injections and illegal drugs

in  his  clinic.  The  learned  Magistrate,

therefore, observed that there was sufficient

evidence to call upon the accused as to what he

had to say in the case.

10. Being aggrieved by the said order, the

appellant preferred Revision Petition No. 368

of 2007, which was dismissed by the High Court

by a brief order.  The said order is challenged

by the appellant in the present appeal.

11. Notice  was issued by this Court and

considering  the  nature  of  proceedings,  the

Registry was directed to place the matter for

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final hearing. That is how the matter has been

placed before us.

12. We have heard the learned counsel for

the parties.

13. The learned counsel for the appellant

contended  that  no  case  has  been  made  out

against him and both the Courts were in error

in issuing process against the appellant for

offences punishable under Sections 304, 504 and

506, IPC.  It was submitted that as per Police

Report,  Buddha  Ram  was  suffering  from  heart

ailment and died before he reached clinic of

the appellant. The said report ought to have

been accepted by the Court.

14. In  the  alternative,  the  learned

counsel submitted that serious error of law has

been committed by the Courts below in issuing

process for commission of offences punishable

under Sections 304, 504 and 506, IPC. It was

submitted that so far as Sections 504 and 506,

IPC are concerned, even the learned Magistrate

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has not stated anything as to why process for

the aforesaid two sections should be issued.

15. As  to  issuance  of  process  under

Section 304, IPC, the counsel submitted that

even if it is assumed for the sake of argument

that whatever is stated by the complainant is

true, the appellant is a Doctor and it is well-

established  that  in  exercise  of  his

professional conduct, no criminal liability can

be imposed on him. The process under Section

304,  therefore,  deserves  to  be  quashed.

According to the learned counsel, at the most

process could have been issued under Section

304A and not under Section 304, IPC.  There can

neither  be  intention  (mens  rea)  nor

‘knowledge’  on the part of the appellant that

his act would result or likely to cause death

of  the  patient.   Hence,  even  if  all  the

allegations are treated to be true, it is an

act of negligence covered by Section 304A, IPC.

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16. The  learned  counsel  for  the

complainant, on the other hand, supported the

order of the trial Court and confirmed by the

High Court. It was submitted that the father of

the complainant was admitted to the clinic of

the  appellant, the  appellant gave  injections

and within half an hour, the patient lost his

life.  Section 304, IPC was, therefore, rightly

invoked.  Since the appellant had administered

threat, the Court was right in issuing process

for offences punishable under Sections 504 and

506, IPC as well. The High Court upheld the

action. Hence, no interference with the orders

of the Courts below is called for.

17. Having heard the learned counsel for

the parties and having applied our mind to the

material on record, in our opinion, the appeal

deserves to be partly allowed.

18. So  far  as  threat  said  to  have

administered by the appellant herein, it may be

noted that the learned Magistrate, in the order

dated January 09, 2007 did not even refer to

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such threat. In the said order, the learned

Magistrate,  dealing with  the incident,  dated

July 04, 2001, observed that the complainant

took his father Buddha Ram to the clinic of the

appellant  and  the  appellant  gave  three

injections to the patient. Within some time,

Buddha  Ram  died.   Over  and  above  the

complainant, three witnesses also stated about

the said fact.  The clinic of the appellant was

also  ordered  to  be  closed.   There  was,

therefore,  ‘sufficient  evidence’  to  issue

process against the appellant in relation to

the said allegation.  

19. But  in  the  operative  part  of  the

order, the learned Magistrate said;

  “Summons for the offence punishable under Sections 304, 504, 506 of Indian Penal  Code are  issued  against  the accused  Dr.  Mahadev.  Applicant  is directed  to  file  the  process  fee within 7 days.  Summons be issued on filing  the  process  fee.   File  be listed on 26.02.2007 for appearance”.

 (emphasis supplied)

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20.  From what is stated hereinabove,

it is clear that in the body of the order,

there is no whisper about the threat alleged to

have  been  given  by  the  appellant  to  the

complainant nor the learned Magistrate recorded

even a prima facie finding as to such threat.

The High Court also, in the impugned 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 Buddha Ram under

Section 304, IPC.

21.  In our considered opinion, therefore,

the submission of the learned counsel for the

appellant is well-founded that on the facts and

in the circumstances of the case, no summons

could have been issued to the appellant-accused

for  commission  of  offences  punishable  under

Sections  504  and  506,  IPC.   We  uphold  the

contention  and  quash  proceedings  initiated

against  the  appellant  herein  for  offences

punishable under Sections 504 and 506, IPC.

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22. The  question  then  is  as  regards

issuance  of  summons  under  Section  304,  IPC.

Section 304 reads thus;

304. Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not  amounting  to  murder  shall  be punished  with  imprisonment  for  life, or imprisonment of either description for  a  term  which  may  extend  to  ten years,  and  shall  also  be  liable  to fine, if the act by which the death is caused is done with the intention of causing  death,  or  of  causing  such bodily  injury as is likely to cause death;

     or with imprisonment of either description  for  a  term  which  may extend to ten years, or with fine, or with both, if the act is done with the 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.

23. Plain  reading  of  the  above  section

makes it clear that it is in two parts.  The

first part of the section is generally referred

to as “Section 304, Part I”, whereas the second part as “Section 304, Part II”. The first part

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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 death. Part II, 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  or  the knowledge that death will probably be caused,  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 or knowledge  can  from  the  evidence  be concluded to have 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

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these are 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 commit  certain  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 ingredients 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;

(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

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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

XXVII 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 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 negligent act. It does not create a

new  offence.  It  is  directed  against  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

neither intention to cause death, nor knowledge

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that  the  act  done  will  in  all  probability

result into death. It applies to acts which are

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 caused by doing

a rash or negligent act which does not amount

to culpable homicide not amounting to murder

within the meaning 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 complained

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

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that  the  act  in  all  probability  will  cause

death.

30. In  Empress v. Idu 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  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 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

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considerations  which  ordinarily  regulate  the

conduct of human affairs would do, or doing

something which a reasonable and prudent man

would not do.

32. The learned counsel for the appellant-

accused  submitted  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  Section  304,  IPC.   It  can

never be said that the death of Buddha Ram had

been caused by the appellant by doing the act

of giving injections with  intention to cause

his death or to cause such bodily injury as is

likely  to  cause  death.   Likewise,  it  is

impossible to think that the purported act has

been  done  by  the  appellant-accused  with  the

knowledge that  in  all  probability,  it  would

result into the death of Buddha Ram.

33. In our opinion, the submission of the

learned  counsel for  the appellant-accused  is

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well-taken and deserves acceptance.  Even if

the  averments  made  in  the  complaint  are

accepted in their entirety, the act in question

of  giving  injections  to  deceased  Buddha  Ram

would not fall within the mischief of Section

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-Judge Bench decision in Jacob

Mathew v. State of Punjab & Anr., (2005) 6 SCC

1.  In 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

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approached the duty Nurse who tried to contact

a doctor, but no doctor was available for about

half an hour. The appellant then reached to the

room  of  the  patient.   Oxygen  cylinder  was

brought and an attempt was made to ensure that

breathing  problem  of  the  patient  does  not

aggravate.  The oxygen  cylinder, however,  was

not working. Another cylinder was brought. But

by  the  time  it  could  be  made  active,  the

patient died.  An offence was registered under

Section 304A, IPC against the doctor which was

challenged by him under Section 482, CrPC and

prayer  was  made  for  quashing  of  criminal

proceedings.   The  High  Court  dismissed  the

petition.  The aggrieved appellant approached

this Court.

35. Considering the relevant provisions of

CrPC as also negligence by professionals, this

Court held that in every mishap or death during

medical  treatment,  a  medical  man  cannot  be

proceeded  against  in  a  criminal  Court.

Criminal  prosecutions  of  doctors  without

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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 more worried about their own

safety than giving all best treatment 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 punishable 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

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necessary implication is that he is possessed

of requisite skill in that branch or profession

which he is practising and while undertaking

performance of the task entrusted to him, he

would be exercising 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  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 person charged has been negligent or

not  would  be  that  of  an  ordinary  competent

person  exercising  ordinary  skill  in  that

profession.

39. It  was  further  observed  that  mere

deviation from normal professional practices is

not  necessarily  evidence  of  negligence.  An

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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

appropriate to follow would depend on facts and

circumstances of a given case.

40. It  was,  therefore,  held  that  the

prosecution of the doctor 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

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counsel submitted that in the case on hand,

criminal 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 respondent-complainant is right

in submitting that the trial Court 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 Section 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 complainant, on the other hand, was

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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 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 investigation.

One sided investigation then had been made by

the  Police  Authorities  and  the  report  was

submitted  favouring  the  appellant  which

compelled  the  complainant  to  file  Protest

Petition  which  was  heard  by  the  learned

Magistrate  and  on  the  basis  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,

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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 professional. Nothing has been stated by the

appellant  about  his  qualifications  or  of

‘requisite  skill’  in  the  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.

44. In this connection, we may refer to a

decision of the High Court of Madhya Pradesh in

Khushaldas Pammandas (Dr.) v. State of Madhya

Pradesh,  AIR  1960  MP  50.  In  that  case,  the

appellant,  Hakim examined  M,  who was ‘tired’

and ‘exhausted’. The Hakim found that M had no

temperature. The  Hakim, however, advised  M to

take a Procaine Penicillin injection. Injection

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was then given to M,  who perspired profusely,

started  vomiting  and  died.  The  Hakim was

prosecuted  for  commission  of  an  offence

punishable  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 surgery

cannot  undertake  a  treatment  or  perform

operation.  If  he  does  so,  it  is  a  material

circumstance  to  show  his  gross  rashness  and

negligence in undertaking the treatment so as

to attract 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

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died.  If in the light of the above facts and

circumstances, proceedings have been initiated

against the appellant for an offence punishable

under  Section  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 complainant deserves to

be accepted to the above extent.

47. For  the  foregoing  reasons,  in  our

judgment,  the  appeal  deserves  to  be  partly

allowed.  So far as issuance of process 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-accused  for  an

offence punishable under Section 304A, IPC. The

appeal  is  accordingly  allowed  to  the  extent

indicated above.

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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

understood to have expressed any opinion one

way or the other. All 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 considered on its own merits without

being  inhibited  or  influenced  by  the

observations made by the trial Court, by the

High Court or by us in the present order.

49. Ordered accordingly.

…………………………………………………J. (C.K. THAKKER)

NEW DELHI, …………………………………………………J. October 17, 2008. (D.K. JAIN)

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