IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ______ OF 2008 @ S.L.P. (Crl.) NO.5473 of 2006

Indu Jain                 …Appellant

Vs.

State of Madhya Pradeh & Ors.    …Respondents

With Criminal Appeal No…../08 (@ SLP(Crl) No.6010 of 2006)

Criminal Appeal No…../08 (@ SLP(Crl) No.2584 of 2007)

Criminal Appeal No…../08 (@ SLP(Crl) No.2588 of 2007)

Criminal Appeal No…../08 (@ SLP(Crl) No.2132 of 2007

J U D G M E N T  

ALTAMAS KABIR,J.

1. This  Special  Leave  Petition  and  four  other

Special Leave Petitions have been filed against

1

the judgment and order of the Madhya Pradesh

High Court dated 11th September, 2006, whereby

the  order  of  the  Sessions  Judge,  Bhopal,

framing  charges  against  the  accused  under

Section 304 Part II I.P.C. in Sessions Trial

No. 212 of 2005 was set aside and directions

were given to frame charge 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 five Special Leave Petitions (Crl.) Nos.

6010 and 5473 of 2006, filed by Mrs. Indu Jain,

No. 2132 of 2007 filed by the State of Madhya

Pradesh, No. 2584 and 2588 of 2007 filed by the

accused.

2. In  order  to  appreciate  the  different  stands

taken  by  the  different  appellants  in  the

matter,  some  relevant  facts  are  reproduced

hereinbelow which will have a bearing on the

final decision in these appeals.

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3. On  14th July,  2004,  officers  of  the  Special

Police  Establishment  (Lokayukta),  Bhopal,

headed by Shri B.P. Singh and Shri Mokham Singh

Nain, who are the appellants in the appeals

arising out of S.L.P. (Crl) No. 2584 and 2588

of 2007 and accused in the complaint filed by

Ms. Indu 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,  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 unconscious

in the bathroom of the office of the Lokayukta,

Bhopal,  and  was  taken  to  Hamidiya  Hospital,

Bhopal,  for  treatment.   The  records  of  the

hospital show that when Shri Jain was brought

to the hospital 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

3

measures  were  undertaken,  including  cardiac

pulmonary  resuscitation  (C.P.R.),  there  was

little response and Shri Jain was declared dead

at 1.30 p.m. on the same day.

4. The Post Mortem examination of the deceased,

which was conducted on 15th July, 2004, itself,

at about 4 p.m. revealed certain injuries on

the body, which included broken ribs, but the

cause of death was shown to be on account of

asphyxia within six hours of 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 15th July, 2005, the learned Sessions Judge

framed  charges  against  the  five  accused

persons, namely, B.P. Singh, Mokham Singh Nain,

Badri  Nihale,  Ramashish  and  Silvanus  Tirki

under Section 304 Part-II I.P.C., but dropped

the charge under Section 330 I.P.C.

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6.  Aggrieved  by  the  framing  of  charge  under

Section  304  Part  II  I.P.C.,  accused  Mokham

Singh Nain filed Criminal Revision No. 1203 of

2005,  while  the  other  four  accused  filed

Criminal 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  I.P.C.  Mrs.  Indu

Jain,  widow  of  the  deceased,  filed  Criminal

Revision No. 1114 of 2005.  All the revisional

applications were heard together by the High

Court which by its order dated 11th September,

2006,  set  aside  the  charge  framed  by  the

learned Sessions Judge and directed that charge

could  only  be  framed  under  Section  323/34

I.P.C.

7. As mentioned hereinbefore, these five appeals

have been filed against the said judgment and

order of the High Court.

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8. Appearing in these appeals on behalf of Mrs.

Indu Jain, the widow of the deceased, Mr. P.S.

Patwalia, learned Senior counsel submitted that

the  order  of  the  Madhya  Pradesh  High  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 with

Crime No. 97 of 2004 it would be very clear

that  accused  B.P.  Singh  while  arresting  the

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.

9. Over the condition of the deceased while in the

custody  of  the  Special  Police  Establishment

(Lokayukta) who had arrested and detained him

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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 House Officer

of Kohefiza Police Station on the basis whereof

a First Information Report under Section 330

I.P.C.  was  registered.   In  addition  to  the

above, a written report was also made by Shri

Akhilesh  Jain,  brother  of  the  deceased  to

Kohefiza Police Station in which it was alleged

that  the  accused  persons  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 deceased on account of which he had died.

10. Mr. Patwalia submitted that once R.K. Jain was

declared  to  be  dead,  as  part  of  the

investigation into the offence complained of,

Shri O.P. Dixit, the Senior Scientist of the

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mobile unit of the District Police Force, made

a physical inspection of the room in the office

of the Lokayukta where the accused had kept the

deceased  in  custody  before  his  death  and

submitted a report of his inspection.  In his

report Shri Dixit categorically mentioned the

fact that the condition of the room was not at

all suitable for detaining a person suffering

from a respiratory disease such as asthma, in

custody. He plainly indicated 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 Laboratory, that

it is evident that the conduct 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

8

member or a friend, should have been allowed to

remain  present  with  him.   Shri  Dixit

recommended  appropriate  action  to  be  taken

against the accused for dereliction of duty,

which was duly supported by the report of the

Forensic Science Laboratory.   

11. Mr. Patwalia submitted that having regard to

the fact 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, 2005, and, as mentioned hereinbefore,

on  perusal  of  the  material  on  record,  the

learned  Sessions  Judge  on  15h  July,  2005,

framed  charges  against  all  the  five  accused

under Section 304 Part II IPC but dropped the

charge under Section 330 IPC.

9

12. Mr. Patwalia submitted that when the materials

on record clearly indicated that R.K. Jain had

died  because of  deliberate ill-treatment  and

negligence  at  the  hands  of  the  appellants,

while  in  their  custody,  the  High  Court  had

erred in coming to the conclusion that 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 would be supported by the

post-mortem  report,  the  opinion  of  Dr.

Satpathi,  who  conducted  the  post-mortem

examination is that R.K. Jain’s death was on

account of asphyxia, namely, oxygen hunger on

account of choking. According to Mr. Patwalia

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.   

10

13. Mr.  Patwalia  urged  that  in  spite  of  the

evidence  available  at  the  stage  of  framing

charge, the High Court turned a blind eye to

the physical condition of the deceased and the

indifferent 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

Section 304 Part II IPC, along with the charge

under Section 330 IPC, the High Court quite

erroneously  dropped the  charge under  Section

304  Part  II  and  also  Section  330  IPC  and

observed  that  only  a  charge  under  Section

323/34  IPC  had  been  established  under  the

aforesaid report.  Mr. Patwalia submitted that

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

11

II and 330 IPC, along with the charge under

Section 323/34 IPC.

14. As far as the other appeal filed by Ms. Indu

Jain is concerned, the arguments made in this

appeal will also cover 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 was not only a

case for framing of charge under Sections 323

with Section 34 thereof, but this is fit a case

where charges ought to have been framed against

the accused under Sections 302 and 330 IPC as

well.   Repeating  the  manner  in  which  the

deceased  R.K.  Jain  had  been  arrested  and

thereafter  kept  in  custody  of  the  Special

Police Establishment attached to the Lokayukta

office, Ms. Makhija reiterated the findings of

Mr.  Dixit  which  pointed  to  the  direct

involvement of all the accused persons in the

commission of the offence.

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16. According to Ms. Makhija the bare facts of the

incident which occurred with the arrest of R.K.

Jain  on  14th July,  2004,  establish  the  fact

that Shri Jain died while in the custody of the

Special Police Establishment and it was yet to

be proved on evidence as to how R.K. Jain died

on account of asphyxia when he was detained in

the office of the Lokayukta. Ms. Makhija also

pointed out that when the deceased had been

brought to the Hamidiya Hospital in Bhopal at 9

a.m.  on  15th July,  2004,  his  body  did  not

record  any  pulse  or  respiration  or  blood

pressure and there was no heart sound either.

Ms. Makhija submitted that although he remained

in such condition till he was declared to be

dead at 1.30 p.m., there was almost no response

from R.K. Jain even after being administered

cardiac pulmonary resuscitation. He continued

to  remain  in  such  condition  till  he  was

formally  declared  to  be  dead.   Ms.  Makhija

submitted  that  by  keeping  the  deceased,  who

13

suffered from respiratory problems, in a closed

room  without  windows  which  was  clearly

uninhabited for a long time on account of the

dust  and  cobwebs  collected  therein  which

triggered an asthmatic attack which led to R.K.

Jain’s death, a clear case of an offence under

Sections  302  and  330  IPC  had  been  made  out

against the appellants.  Counsel’s submissions

were  fully  supported  by  the  report,  which

showed  six  injuries  on  the  person  of  the

deceased.  Injury No.1 was a contusion on the

scalp. Injury Nos. 2 and 3 were lacerations on

the lip and mouth. Injury Nos. 4 and 5 were

broken ribs, while injury No.6 was a laceration

on the neck of the deceased.  

17. Ms. Makhija contended that this being a clear

case  of  custodial  death  on  account  of  the

treatment  meted  out  to  the  deceased  by

detaining him in wholly unhygienic conditions

completely unfit for a patient of asthma, both

the trial court as well as the High Court erred

14

in not framing charge against the appellant 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 Section 304

Part II IPC.

18. On  legal  submissions,  Ms.  Makhija  submitted

that the opinion of the doctor at the time of

framing charges cannot be 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, 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

15

framing of charges by the trial court, unless

some glaring injustice is noticed.  

19. Ms. Makhija referred to the decision of this

Court in Om Wati (Smt.) and Anr. Vs. State,

[2001 (4) SCC 333] in support of her aforesaid

submissions.  She also referred to the decision

of  this  Court  in  State  of  Maharashtra  vs.

Salman Salim Khan, [2004 (1) SCC 525] wherein

this Court cautioned the trial court as well as

the High Court regarding arriving at a decision

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 a different conclusion, it

may  not  be  possible  for  him  to  pass  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

16

could not be done by weighing the correctness

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 evidence,

can be adjudged.

20. Ms. Makhija lastly referred to the three-Judge

Bench decision of this Court in State of Orissa

vs. Debendra Nath Padhi, [2005 (1) SCC 568] in

which the question decided differently in the

case of Satish Mehra vs. Delhi Administration,

[1996 (9) SCC 766] was referred to.  In Satish

Mehra’s case, a two Judge Bench of this Court

had decided that at the stage of framing of

charge, the trial Judge was competent to look

into the material produced on behalf of defence

at the time of framing of charge in order to

come to a decision 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 the reference in the

negative, the three-Judge Bench overruled the

17

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 trial.

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 Sessions 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 Indu Jain, who are also the appellants in

the appeals arising out of SLP(C) No. 2584 and

2588 of 2007, Mr. K.T.S. Tulsi, learned senior

counsel, submitted that the order of the High

Court did not call for any interference since

the  charge-sheet  does  not  disclose  the

ingredients of the charge framed against the

18

accused 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 statement of

Dr. Satpathi who had examined the deceased, and

was also one of the doctors who conducted the

Post  Mortem  examination  Mr.  Tulsi  submitted

that the broken ribs and the laceration 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 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.

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23. Mr. Tulsi submitted that apart from the above,

Dr.  V.K.  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 external cardiac massage or CPR

was  being  administered  to  R.K.  Jain  in  an

attempt to revive him.  Dr. Sharma also stated

that the fracture of ribs can also be caused

while external cardiac massage, with artificial

respiration  and chest  compression, was  being

undertaken.  He also opined in his Report that

a severe 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.  Tulsi  submitted  that  in  view  of  the

circumstances in which R.K. Jain was arrested

20

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. Tulsi

referred to the Judgment and order passed by

the learned Sessions Judge on 28h July, 2005,

while deciding the question as to whether there

was  sufficient  ground  for  framing  charge

against them under Section 330, 323/34 and 304

(2) Indian Penal Code.  Referring to paragraph

14 of the order, Mr. Tulsi pointed out that the

learned Sessions Judge had himself held that it

could not be definitely said that no cause of

death  had  been  indicated  in  the  Post-mortem

Report.   In  fact,  on  behalf  of  the

Investigating Authorities, a letter was written

on  16th July,  2004  to  the  Director,  Gandhi

Medical College, Bhopal, asking for information

as  to  whether  nature  of  the  injuries  on

21

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 Medical

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  referred  to  the  well-known  Bhopal  Gas

Tragedy case, namely, Keshub Mahindra vs. State

22

of M.P., [1996 (6) SCC 129], in which while

considering the provisions of Section 299 and

304  Part  II  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 no jurisdiction

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 Part II, the materials

on record must at least prima-facie show 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.  

23

26. Mr. Tulsi submitted that though there was no

definite conclusion as to the manner in which

R.K. Jain had died, at 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  submissions  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 condition and

that  cardio  respiratory  resuscitation  was

started  immediately and  cardiac activity  was

regained  after  15  or  20  minutes.   It  was

pointed  out  that  the  Progress  and  Treatment

Given sheet also indicated that as part of the

24

resuscitation  attempts  an  endotracheal

intubation was done, after which the deceased

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

respiratory  breathing  failure.   Mr.  Gambhir

submitted that there was no material on record

to indicate that R.K. Jain died a homicidal

death  so  as  to  attract  the  provisions  of

Section  304  IPC.   In  short,  Mr.  Gambhir

submitted that there was no material before 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 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

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sufficient  ground  to  proceed  against  the

accused,  he  was  required  to  discharge  the

accused and to record his reasons for doing so.

In the said decision it was observed that at

the stage of framing of charge, the Magistrate

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,

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 absence of any reliable material

regarding  the  involvement  of  the  respondent

Nos. 4, 5 and 6 in respect of the charge under

Section 323/34 IPC, the charge framed against

the respondents was liable to be quashed.

30. We  have carefully  considered the  submissions

made  on  behalf  of  the  respective  parties,

having  particular  regard  to  the  fact  that

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R.K.Jain had died while in the custody of the

Officers  of the  Special Police  Establishment

(Lokayakuta),  Bhopal,  in  the  office  of  the

Lokayukta, Bhopal.   

31. 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 R.K. Jain’s death.  It is also

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  can  be

fatal, as in this case.  The injuries found on

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 not on the basis of

surmises at the time of framing charge where on

the strength of the charge sheet only a prima

facie satisfaction about the commission of an

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offence  has  to  be  arrived  at  by  the  trial

court.   Therefore,  while  rejecting  the

submissions made by Mr. Tulsi and Mr. Gambhir

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 against the accused persons

even under Section 304 Part II IPC.  On that

score, we are 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 Section 323 could be

brought against the accused persons.  

32. Although,  Ms.  Makhija  has  strenuously  urged

that 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

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intention  on  the  part  of  the  accused  to

willfully cause the death of R.K. Jain.

33. As has been observed in Kewal Krishan’s case

(supra), at the stage of framing 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 available

as to whether a charge could be sustained as

recommended in the charge sheet. The same view

has  been subsequently  reiterated 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 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

29

case can be said to have been made out for a

charge  to  be  framed  under  Section  330  IPC.

Since the cause of death has been shown to be

asphyxia  on  account  of  detention  of  the

deceased in unhygienic conditions despite his

respiratory 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, 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

corroborates the same and it also mentions the

fact that cardiac pulmonary resuscitation was

immediately started and the patient was also

put on mechanical ventilator as part of the

attempts  at  resuscitation.  Apart  from

indicating  that  the  patient  had  died  of

30

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  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 investigation.

35. In this regard, the materials submitted by the

Investigating  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 respiratory problems.  In fact,

as was indicated by Shri O.P. Dixit, the Senior

Scientist of the Mobile Unit of the District

Police Force the condition of the room where

the deceased had been detained was completely

unsuitable for a patient of asthma as it was

filled  with  dust  and  cobwebs  which  was

sufficient to trigger an asthmatic attack which

31

could have caused asphyxia which ultimately led

to R.K. Jain’s death.

36. We are, therefore, convinced that the appeals

filed by Indu 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 Sessions Judge framing 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. Indu 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, the same are dismissed.       

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_________________J. (ALTAMAS KABIR)

_________________J. (MARKANDEY KATJU)

New Delhi

Dated: 23.10.2008

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