Jeewan Kumar Raut and Anr. Vs. Central Bureau of Investigation AIR 2009 SC 27

 Facts-

PetitionNos.- M of 38252 and 38356 of 2011.  

The two  desires were filed by Jevan Kumar Raut and Jagdish, who are facing  execution in a case registered by the Central Bureau of Investigation. In addition to  colourful other offences, the petitioners face felonious  execution on a complaint filed under Section 22 of the Human Organ Transplantation Act, 1994( TOHO Act”).   A hunt was conducted at 4373 Palam Vihar, Sector 23, Gurgaon in Case CrimeNo.48/08 registered at Police Station Civil Lines, Moradabad,( UP). later, a written complaint was filed by Sub-Inspector Raghuraj Singh of PS Kotwali, Moradabad, leading to the enrollment  of FIRNo. 27 of 2008 at Police Station Palam Vihar, District Gurgaon, Haryana. This was againstDr. Upender Kumar and others for offenses under Section 420 IPC. piecemeal from the offenses under Sections 120- B, 326, 342 and 506 of the IPC, Sections 18, 19 of the TOHO Act also came up during the  disquisition. Haryana Police arrested six  indicted persons  videlicet Smt. Pooja, Umesh Kumar, Linda, Harpal, Ramesh and Suresh. During the  disquisition, a  platoon of croakers from the Rothak Post Graduate Institute of Medical lores( PGIMS) audited the sanitarium in Palam Vihar, Gurgaon. Eventually, the  disquisition in this case was entrusted to the Central Bureau of Investigation on the base of two  announcements issued in this regard. The  disquisition  ultimately led to the arrest of the pleaders as well.   It’s reported that Dr. Upinder Kumar(  indicted no. 1), Amit Kumar(  indicted no. 2), Jeevan Kumar(  indicted no. 3) along with some other persons  incubated a felonious conspiracy and grounded on that an unauthorized sanitarium was set up  indicted Amit Kumar at Gurgaon. According to the charges, illegal  order transplants were performed at this sanitarium from 1999 to January 2008.Dr.K.K. Aggarwal(  indicted no. 4), Manoj Kumar(  indicted no. 5), Linda(  indicted no. 6),Dr. Saraj Kumar Kovind(  indicted no. 7), Jagdish Nai(  indicted no. 8) and Gyasuddin(  indicted no. 9) are also named as part of the conspiracy. Allegedly,  feathers were removed from these persons( appertained to as victims) and these were arranged byDr. Upender Kumar(  indicted no. 1), Jagdish(  indicted no. 8) and Gyasuddin(  indicted no. 9) and others through a well- established network of touts. Grounded on this, the pleaders were taken into  guardianship and have remained in  guardianship since February 17, 2008. They’ve now filed these movements for  entitlement of bail .

Issue-

Transplantation of Human Organs Act (42 1994) – Section 22

Arguments-

Mr. Ranjit Kumar, learned  elderly counsel appearing on behalf of the petitioners would  prompt :

 i) Given that” complaint” was defined in S.2 (d) of the law in the sense that a police report is  barred, on the part of the replier, according to this Act, it was  needed to  do either in the sense of Chapter XII of the Code, or Chapter XV of this Act and since an FIR was filed, the  disquisition was conducted only in terms of Chapter XII. of the Code, the complaint wasn’t sustainable.  

ii) The  probing officer is  needed to file a police report as defined S.2 (r) of the Code, to which the  vittles of sub-section( 2) of Section 173 of the Code would in turn apply, the CBI officers being police officers within the meaning of the  vittles of the Delhi Police Special Establishment Act, 1946, the alleged complaint should be treated as a police report and not as a complaint.  

iii) The pleaders were arrested by the replier, whose power could be exercised under the Code, the only possible remedy was to file a police report.  

iv) Given that the  indicted was granted an inalienable right in the sense in Sub.S (2) S.167 of the Civil law, it couldn’t be denied to the petitioners just because an alleged complaint was filed.

Mr. Amarendra Sharan, learned Additional Solicitor General appearing for the respondent, on the other hand urged:
(i) After the learned Magistrate took cognizance of the offenses and referred the matter to the Regional Court, the bail application filed in terms of sub-section (2) of Section 167 of the Code became moot.
(ii) Complainant No. 2 was arrested on 10/02/2008 and Complainant No. 1 surrendered on 17/02/2008, as well as the complaint submitted on 29/04/2008, the requirements of paragraph (2) tr. Section 167 of the Civil Code was compiled with, because even on the assumption that the complaint is to be considered as a police report, it was filed within 90 days.

Prayer  –

It’s most hypocritically supplicated that cognizance under Sections 120B r/ w 326, 342, 417, 465, 473, 506 and 307 of the IPC and Sections 18, 19 and 20 of the Transplantation of mortal Organs Act, 1994 and the substantial violations thereof against indicted A-1 toA-9 and may be tried according to law. It’s also supplicated that authorization for further disquisition against the arrested persons videlicetSmt. Pooja Kumar, Umesh Kumar and Harpal may also be kindly transferred against others whose names have surfaced during the disquisition.

Judgement –

However, before parting, we must record that we are not required to consider the constitutionality of the provisions of the TOHO, particularly Article 22 thereof. Therefore, neither the procedural neutrality impugned in Article 21 of the Constitution of India nor the restrictions imposed on the freedom by the law in view of the factual situation obtaining here are discussed and need not be adjudicated. We made these observations in view of the ambivalence regarding the application of TOHO in the provisions of the Code.

In case of registration of a complaint, despite the fact that the complaint has been made after sufficient investigation and with the return of the accused from time to time to the order, resort to the procedure prescribed in Chapter 15 of the law. Approved by a competent judge.However, we note that certain statutory authorities, such as those under the Customs Act, under certain laws, such as the NDPS Act and some of our courts, have vested all investigatory powers. The court declared that: they cannot file an indictment and therefore are not police officers.

Conclusion –

In this case, however, the respondent, who was specially empowered both under the 1946 Act and the Code, to conduct the investigation and file the charge-sheet, is to do so only by reason of Section 22 OF THAT. It is questionable whether, in the event of a department employee being authorized to investigate a third party’s initiative, he would be authorized to arrest the accused and continue the investigation as if he were a police officer. We hope that the Parliament will take appropriate measures in the near future to amend the law accordingly.

written by Mrugen Dhage intern under legal vidhiya

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