Mrs. N. Ratnakumari vs State of Orissa

Mrs. N. Ratnakumari vs State of Orissa

Facts of the Case

An FIR was lodged at the Mangalabag Police Station at Cuttack by Umakanta Nayak alleging Sharmista Nayak, an acquaint, has falsely coerced his wife named Namita Nayak into human organ donation. He told, that his wife was taken by the accused on 12/03/2014 for a few days to an Ashram but after 15-16, on asking, he was told that they aren’t at the Ashram and that, they were in Vishakhapatnam where his wife has donated her kidney to one of the accused’s ill relative. He was also informed that his wife is admitted at the Seven Hills Hospital and it was here only that the transplantation was done for one, Mohan Chandra Lonka. He alleges that his wife has been duped to be the recipient’s wife through fake documents and misappropriation of organs and money (Rs.700000) has taken place. All this has taken place against the wishes of his wife since; she was asked and coerced into signing unknown and blank papers. The operation had taken place on 3/04/2014 and after due recovery of the patient, this FIR has been lodged on 31/05/2014. 

In accordance to the same, crime has been registered under sections 120(B), 468, 471, 342 read with section 34 I.P.C. and Section 4 19 of Transplantation of Human Organ and Tissues Act, 1994 (hereinafter “1994 TOHO Act”) which corresponds to G.R. Case no. 950 of 2014 pending in the Court of S.D.J.M., Sadar, Cuttack and the investigation was taken up. Thereafter, the administrator of the Seven Hills Hospital has been detained by the police which is in challenge by the wife of the the detenue under this Habeas Corpus petition. It is the contention of this petition that the detention of the Director of the hospital is unlawful and unjustified and is against Article 22 of the Constitution of India and Section 54 CrPC. Primarily, because the detenue was not presented before the Magistrate within the 24 hours’ time frame. Moreover, that, the administration of the Hospital fully co-operated with the police department whenever there was any visit, but the police unlawfully took the detenue and also abused the process of law established u/s 50 CrPC by not explicitly informing him of the offences and grounds for the arrest made. For the same, affidavit(s) was registered by the Sub-Inspector and in-charge of the concerned police station on 1/7/2014 wherein it was submitted that the arrest took place on 13/06/2014 but he couldn’t be presented before the Magistrate in due to time due to the health issues of the detenue for which, he was admitted to Ayush Hospital, Vijaywada after his arrest from Vishakhapatnam and he was discharged on 19/06/2014. And intimation was given to the 4th Addl. Chief Metropolitan Magistrate, Vijayawada as well as Patamata Police Station on 18.6.2014 regarding his admission. Thereafter, the detenue was taken to NIIMS, Hyderabad for checkup wherein he was advised DTS scan on OPD basis which was to take place on 20/04/2014 but couldn’t happen due to non-availability of cold kit. Then, he was taken to Apollo Hospital, Hyderabad where the scan was finally conducted on 23/06/2014. All the updates were submitted duly before the 4th Addl. Chief Metropolitan Magistrate, Vijayawada on 20/06/2014. After the scan, the reports were sent for fitness check of the detenue to the NIIMS, Hyderabad which declared the detenue fit and normal. On 24/06/2014, the detenue was duly produced before the Court and on the same day, a memo was registered by his advocated to which the Hon’ble Court of judicature at Hyderabad responded by ordering the director of NIIMS, Hyderabad to admit the detenue until further notice and possible till 27/06/2014. The High Court of Andhra Pradesh by order dated 27.6.2014 while dismissing the writ petition directed the Director of NIMS to discharge the detenue and handover his custody to the I.O to take him to Cuttack. The detenue was discharged on 2/07/2014 and was produced at SCB Medical, College for fitness check on 3/07/2014. Thereafter, he was given for judicial custody of two weeks

Issues

1. Whether 1994 TOHO Act will be applicable since the donor and the recipient belong to State of Odisha in view of the peculiar facts and circumstances of the case when no approval/ no objection certificate has been taken from the Authorisation Committee constituted by the State of Odisha under clause (b) of sub-section (4) of section 9 of the said Act? 
2. Whether the concerned hospital authorities have followed the procedure laid down in 1995 A.P. TOHO Act and the Rules framed thereunder so also the guidelines issued by Govt. of Andhra Pradesh in this case while carrying out kidney transplantation operation?
3. Whether an F.I.R. under section 19 (subsequently added section is section 18) of the 1994 TOHO Act can be registered at Mangalabag Police Station and whether Mangalabag police has jurisdiction to investigate such case and arrest the detenue?

Arguments 

The learned counsel for Petitioner submitted that the central legislation of TOHO Act, 1994 were not adopted by the states of Jammu and Kashmir and Andhra Pradesh and that subsequent rules (1995 AP TOHO, ACT) have been made by the state of Andhra Pradesh which shall only apply due to the pre-requisite of adoption mentioned in the central act in accordance to Article 252(1) of the Constitution of India. And the 1995 Act through its Section 13, authorizes only an ‘Appropriate authority’ to investigate such matters and to file it before the concerned Court, if taken cognizance, according to Section 22. And, according to Jeewan Kumar Raut and another v Central Bureau of Investigation, (2009) 7 SCC 526  Officer-in-Charge of the Police Station was not authorized by the appropriate Government to deal with the matter in relation to TOHO but it was the C.B.I. Moreover, since the hospital falls within the bounds of state of Andhra Pradesh, the Orissa Police doesn’t hold jurisdiction over the investigation. And, that the police had made arrest without properly analyzing all the documents and that, no breach of 1995 TOHO Act is in place. Moreover, no notice of arrest was given to the detenue which breaches Section 41 CrPC which only allows for arrests without Magistrate’s approval in cases of reasonable suspicion with imprisonment upto 7 years, but according to the contentions raised, the concerned section 18 of the Act prescribes punishment only upto 5 years. Herein, no reasonable suspicion could come into play and the officer merely proceeded after FIR was registered u/s 19 of the TOHO, Act. And that, this also breaches Section 60 of the code which explicitly provides that no arrest should be made against the provisions of the code.  The case of Joginder Kumar V. State of U.P. reported in (1994) 4 Supreme Court Cases 260 was bought into light, which highlights how sensitive an arrest can be in social context, and that, it shouldn’t be made without reasonable satisfaction of the need of arrest and complicity of the person in the crime. The counsel also pleaded the breach of Article 21 since the process established by law here is unreasonable and unlawful and these actions may also amount to breach of Article 14 arbitrarily. 

The Advocate General, on the other hand, contended that the IO acted in good faith and had the intention to protect the ill-health of the detenue and no willful breach or mala-fide intention is present on his end. Moreover, section 178(c) CrPC authorizes all the authorities involved in the continuous crime to take action, despite the multiple locations involved. Section 9 of the 1994 TOHO Act deals with organ transplantation which should take place between near relatives and if not, it should be authorized by an authorization committee. It was held in Miss Sonia Ajit -v- Hospital Committee that this authorization is mandatory, after due joint application to the authorization committee, as to determine the true intent behind the transplantation and the relationship between the parties involved and finally, to provide with a No objection certificate. Moreover, rule 4A of the 2011 rules in this regard talks about such transplantations between a married couple and endows a duty on the medical practitioner to evaluate the marital relationship carefully and extensively. The learned Advocate General relied upon the case of Institute of Chartared Accountant of India -vVimal Kumar Surana and another reported in (2011) 1 SCC 534, wherein it was held that TOHO Act is a special law and it shall hold an overriding effect over the provisions of IPC and CrPC.

Judgment

On a plain reading of Section 4 of CrPC, it is evident that special laws and their provisions prescribing type of investigation, inquiry, etc. shall prevail over the present provisions of CrPC. And, the Orissa government adopted the 1994 TOHO Act, which through its section 13 only authorizes an ‘appropriate authority’ to investigate such matters hence, the Court is of the opinion that the FIR constituted at the Mangalabag Police station is not maintainable and cannot be investigated by the police officials. Moreover, the process of inquiry adopted also stand in breach of Section 41 of the CrPC since no reasonable satisfaction for arrest was proven and no reasons were recorded in writing for any such arrest. Additionally, this also breaches Article 21 of the Constitution of India. In the case of Hema Mishra -v- State of Utter Pradesh reported in (2014) 4 Supreme Court Cases 453, the Hon’ble Supreme Court held that in view of section 41-A Cr.P.C, it is compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. Also, the process breaches Article 22 of the Constitution of India and Section 50 CrPC which prescribes for measures including informing the accused of the grounds and full particulars of the offences involved in cases of arrests made without warrant. Giving regards to the timeline and delay in producing the detenue before Judicial Magistrate, it was held that proper affidavits were submitted and that, according to Section 57, it is the duty of the person having custody to take reasonable care of the health of the accused which was done by the IO and was the reason for delay in production hence, this doesn’t stand in breach of section 57 CrPC and article 22(2) of the Constitution of India. 

In light of these facts and circumstances, interim bail was granted to the petitioner with a bail bond of Rs. 10 Lakhs with two solvent sureties decided onto the satisfaction of learned S.D.J.M., (Sadar) Cuttack in G.R. Case No.950 of 2014 arising out Mangalabag P.S. Case No.98 of 2014. Deposition of Rs. 2 Lakhs were also demanded in fixed deposit under any family member’s name at any nationalized bank under the concerned Court’s name, if any, payment in the future by the petitioner and it should be renewed from time to time, till required. 

References

https://indiankanoon.org/doc/156479333/

https://lawyerservices.in/N-Ratnakumari-Versus-State-of-Odisha-and-Others-2014-07-24

written by Disha Bhalla intern under legal vidhiya.

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