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Mrs. N. Ratnakumari vs Unknown on 24 July, 2014

Orissa High Court Mrs. N. Ratnakumari vs Unknown on 24 July, 2014

ORISSA HIGH COURT: CUTTACK

W.P.(Crl.) No.266 of 2014

In the matter of application under Section 48/57/80/81/41 and 41(A) of Cr.P.C. and Section 13,18,19,22 and 23 of Transplantation of Human Organs Act, 1994;

__________

Mrs. N. Ratnakumari …… Petitioner Versus

State of Odisha & others …… Opp. Parties For Appellant : M/s. J. Das (Senior Advocate), Satyabrata Pradhan, G. Sahoo, S.

Lokesh kumar, A.K. Dash, P.Sahoo,

For Opp. Parties : State of Orissa.

M/s. A. Mohanty (Advocate General)

PRESENT :

THE HONOURABLE MR. JUSTICE I. MAHANTY

AND

THE HONOURABLE MR. JUSTICE S.K. SAHOO

Date of hearing : 17.07.2013 Date of order : 24.07.2014 S.K.Sahoo, J. “Is life so dear or peace so sweet as to be purchased at the price of chains and

slavery? Forbid it, Almighty God! I know not what course others may take, but as for

me, give me liberty, or give me death.”

– Patrick Henry

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In this petition for a writ of habeas corpus, the petitioner Mrs. N. Ratnakumari has challenged the illegal arrest and unlawful detention of her husband Dr. N. Pravakar Babu (hereinafter ‘the detenue’) and has prayed for his release from the unlawful and illegal detention with a further prayer to quash the same.

2. It appears from the facts of the case that one Umakanta Nayak, S/o-Late Damodar Nayak of Naik Sahi, Buxi Bazar, P.S- Mangalabag, District- Cuttack lodged a First Information Report before the Inspector-in-Charge, Mangalabag Police Station alleging therein that his wife Namita Nayak and one Sharmista Nayak were closely known to each other and residing in the same Sahi. On 12.3.2014, Smt. Sharmista Nayak alleged to have taken the wife of the informant on the pretext of visiting Sai Baba Ashram and since his wife did not return back home for about 15/16 days, the informant contacted his wife over telephone and came to know from her that Smt. Sharmista Nayak did not take her to Sai Baba Ashram on 12.3.2014 as promised rather took her to Visakhapatnam and kept her in a lodge and that she was told by Sharmista that one her relative’s kidney was damaged and he was in dire need of a kidney and requested her to donate her kidney. On receiving such information from his wife, the informant proceeded to Visakhapatnam as per the address given by his wife and by that time his wife was already admitted in Seven Hills Hospital, 3

Visakhapatnam. The informant told his wife at Visakhapatnam not to give her kidney but Sharmista Nayak and one Niranjan assured the informant that his family will be taken care of by them. In view of the persuasion made by Sharmista and Niranjan, the wife of the informant agreed to donate her kidney to save a life and accordingly Namita’s kidney was transplanted to one Mohan Chandra Lenka of Palasuni of Bhubaneswar in the said hospital. It is further alleged that subsequently the informant came to know that Mohan Chandra Lenka is no way related to Sharmista and that Sharmista duped his wife and changed his wife’s identity proof as one Banita Lenka and projected her as the wife of said Mohan Chandra Lenka and collected Rs.7,00,000/- in the name of the wife of the informant and misappropriated the same. It is alleged that the signature of the wife of the informant was taken on several written papers and blank papers against her will and she was not aware about the contents and meaning of those papers. The operation of Namita, the wife of the informant was carried out on 3.4.2014 and after her recovery, the informant lodged the F.I.R. on 31.5.2014 at Mangalabag Police Station.

3. On the basis of such F.I.R, Mangalabag P.S. Case No.98 of 2014 was registered on 31.5.2014 for commission of offences 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.

4. According to the petitioner, even though there is no allegation against her husband (i.e., the detenue) who is the Director, Administration of Seven Hills Hospital in the F.I.R. or against the authorities of the said hospital in any manner and the case appears to be a dispute between the informant and his wife of one hand and Sharmista and Mohan Chandra Lenka on the other and when basing on the voter identity card, residential certificate produced before the authorities of the hospital, kidney transplantation operation was carried out in accordance with Andhra Pradesh Transplantation of Human Organs Act, 1995 (hereinafter “1995 A.P. TOHO Act”) without any ill intention rather to save the life of the patient, her husband has been unnecessarily entangled in the case, arrested and illegally detained. According to the petitioner, it was not within the knowledge of authorities of Seven Hills Hospital whether the documents produced before them were forged or not at that point of time and that the authorities of the hospital have acted in a bonafide manner in good faith. It is further contended that in view of the provisions 1995 A.P. 5

TOHO Act, the detenue is not liable to be prosecuted in as much as all the requirements of the said Act was followed.

5. It is the further case of the petitioner that police officials of Mangalabag Police Station came to Seven Hills Hospital on 2/3 occasions in connection with the investigation of the case. The hospital authorities fully cooperated with them but even though there was no involvement of any doctors/authorities of the hospital in the alleged crime but all the same the detenue were arrested without any rhyme and reason. According to the petitioner, the arrest was made without any warrant and the ground of arrest was also not intimated to the detenue and even though the arresting authorities is duty bound to produce the arrested person before the nearest Magistrate within 24 hours as per the provisions under Section 57 Cr.P.C., the same has been violated in the case. It is further contended by the petitioner that the detenue is aged about 62 years and suffers from heart ailments and undergone angioplasty surgery and he suddenly fell ill at the time of arrest. Since the detenue was not produced before the Magistrate, he was prevented from filing any bail application and thereby the valuable statutory right has been infringed. It is the further case of the petitioner that the police has not followed the provisions under Section 50 Cr.P.C. and has not communicated anything regarding the particulars of the offences for which the detenue was arrested so also 6

the grounds of such arrest. Only a memo of arrest was handed over to her husband without describing the grounds of arrest and one line is mentioned in the arrest memo “as found involved in the above noted case”

Thus according to the petitioner, there is violation of the provisions of Section 41, 41-A, 50, 57 Cr.P.C. so also the fundamental rights guaranteed under Article 14, 21 and 22 of the Constitution of India and the action taken by the police officials are mala fide in nature and they have acted without any valid reason under law.

6. In pursuance to the notice of this Hon’ble Court, affidavit was filed by one Sujit Kumar Sahoo, Sub-Inspector of Police and in- charge of Mangalabag Police Station on 1.7.2014 wherein it is stated that the detenue was arrested on 13.6.2014 at 7.30 P.m. during course of investigation at Visakhapatnam and after his arrest, he was taken to KG Hospital, Visakhapatnam for medical examination where he was examined by the Medical Officer in Cardiology Department for which he could not be produced before the nearest Magistrate i.e., the learned 4th Addl. Chief Metropolitan Magistrate, Visakhapatnam city. The arrest and information about medical treatment was intimated to the learned Magistrate and the detenue was referred to NIMS, Hyderabad for further treatment by the Medical Officer, KG Hospital, Visakhapatnam. The Magistrate returned back the original Memo of 7

Arrest and gave verbal direction to shift the detenue to NIMS Hospital, Hyderabad and to produce him before the local Magistrate at Hyderabad after completion of medical treatment. The requisition was made to the Commissioner of Police, Visakhapatnam City to provide escort party on 17.6.2014 and there was night halt at Eluru on 18.6.2014 while proceeding to Hyderabad. Since the detenue complained of chest pain, he was immediately admitted in the nearest Hospital i.e., at Ayush Hospital, Vijaywada and after check up, he was discharged on 19.6.2014 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. After discharge on 19.6.2014, the detenue was brought to NIMS Hospital, Hyderabad and after medical check up on that day, the medical Officer advised for taking DTS SCAN and on 20.6.2014, he was taken to NIMS for DTS Scan on OPD basis but it was opined by the doctor of Nuclear Medicine Department that due to non-availability of cold kit, such test cannot be done at NIMs before 15.7.2014. The Medical Officer further opined that the detenue was not fit for production before the Court and then he was taken to Apollo Hospital, Hyderabad where DTS Scan was scheduled to be conducted on 23.6.2014. On 20.6.2014 it was intimated to the 4th Addl. Chief Metropolitan Magistrate, Hyderabad regarding the arrest and medical treatment of the detenue. The test 8

was conducted on 23.6.2014 and along with test report, the detenue was produced before NIMS, Hyderabad with requisition to give fitness certificate and on 24.6.2014 Professor and Head of Cardiology Department of NIMS, Hyderabad after verification of the report found everything to be normal on cardiac point and gave fitness certificate in respect of the detenue. Ultimately, the detenue was produced before the court of learned 4th Addl. Chief Metropolitan Magistrate, Hyderabad. On the very day, the Advocate of the detenue filed a memo along with the order of Hon’ble Court of judicature at Hyderabad passed in W.P. No.17145 of 2014 upon which the learned Magistrate directed the Director of NIMS, Hyderabad to admit the detenue until further orders of the Hon’ble High Court and in obedience to the said order of the learned Magistrate, the detenue was escorted to NIMS, Hyderabad and was admitted in Cardiology Department and on the very day, it was indicated that the detenue possibly be brought to Cuttack by 27.6.2014.

7. One Suvendu Kumar Sinha who is the Investigating Officer of Mangalabag P.S. Case of 98/2014 filed an affidavit on 7.7.2014 indicating, inter alia, that on the basis of reliable information as well as the documents seized during investigation, he was satisfied that the detenue in connivance with the administration of the Seven Hills Hospital, Vishakapatnam was involved in connection with crime under 9

1994 TOHO Act. Documents were seized by him, which revealed that the transplantation was done as per the approval of the detenue and after being satisfied that the detenue was involved in cognizable offences which provide sentence for 10 years, memo of arrest was prepared and arrest was made on 13.06.2014 at 7.30 p.m. Since after arrest, the detenue complained of chest pain, he was admitted in the Cardiology Department of KG Hospital, Vishakpatnam, where he was admitted as an indoor patient for which he could not be produced before the nearest Magistrate, i.e., learned 4th Additional Chief Metropolitan Magistrate, Vishakapatnam city but the fact of arrest and medical treatment of the detenue was intimated to the learned Magistrate on 14.06.2014. The accused was referred to NIMS Hospital, Hyderabad for further treatment by the Medical Officer of KG. Hospital, Vishakapatnam on 16.6.2014 and the detenue was physically received by the I.O on 17.6.2014 and on the very day on the prayer of the I.O., the learned 4th Additional Chief Metropolitan Magistrate, Vishakapatnam city intimated him to produce before the local Magistrate after his treatment at NIMS, Hyderabad. During transit from Vishakapatnam to Hyderabad on 17.6.2014 night, there was halt at Eluru for taking rest but on 18.6.2014 while proceeding to Hyderabad near Vijawada, the detenue complained of chest pain for which he was admitted in AYUSH Hospital at Vijawada and the fact of 10

such admission was intimated to the 4th Additional Chief Metropolitan Magistrate, Vijwada. The detenue was discharged on 19.6.2014 from AYUSH Hospital, Vijwada and he was brought to NIMS Hospital Hyderabad. On production at NIMS, Hyderabad, the detenue was advised for DTS SCAN on 20.06.2014 but the Medical Officer of Nuclear Medicine Department of NIMS opined that due to non- availability of old Kit, the test could not be done before 15.07.2014 and accordingly on the very day the detenue was taken to Appolo Hospital, Hyderabad for DTS SCAN but the doctor gave appointment of such SCAN to be conducted on 23.06.2014. On 23.06.2014 after conducting DTS SCAN, the test report was obtained and the detenue was produced at NIMS along with the test report on 24.6.2014. After obtaining the fitness certificate in respect of the detenue from NIMS, he was produced before the learned Chief Metropolitan Magistrate, Hyderabad on 24.6.2014. As per direction of the High Court of judicature of Hyderabad of the State of Andhra Pradesh in W.P.(C) No.17145 of 2014, the learned Magistrate directed the NIMS, Hyderbad to admit to detenue until further orders of the High Court of Andhra Pradesh. Accordingly the detenue was admitted in Cardiology Department in ICU on the same day i.e., on 24.6.2014. 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 11

handover his custody to the I.O to take him to Cuttack. After obtaining the order of the Court on 1.7.2014, the I.O. produced the same before Director of NIMS on 2.7.2014 and the detenue was discharged from the hospital and produced before the Chief Metropolitan Magistrate, Hyderabad on the very day i.e., on 2.7.2014. After receiving the transit order from Chief Metropolitan Magistrate, Hyderabad on 2.7.2014, the accused was brought to Cuttack on the very day and was produced before the S.C.B Medical college and Hospital, Cuttack on 3.7.2014. The detenue was examined by the Medical Officer of the said hospital and thereafter was produced before learned S.D.J.M., Sadar, Cuttack on 3.7.2014 and the learned Magistrate remanded the detenue to judicial custody for a period of two weeks. It is indicated in the affidavit that the I.O was very apprehensive to secure the health condition of the detenue because he was carrying a patient and he was duty bound to insure proper health care and good health condition of the detenue till his production before the Court. It is further indicated that there was neither any deliberate laches nor any willful intention on his part in not producing before learned Magistrate immediately after arrest in as much as the learned Magistrate in Andhra Pradesh was not entertaining the production of an accused in absence of any medical fitness certificate.

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8. By filing Additional Affidavit, it was contended by the petitioner that 1994 TOHO Act was enacted by the Parliament during 1994 and it came into force on 4th February 1995 in the State of Goa, Himanchal Pradesh and all the Union Territories and thereafter, it was adopted by all the states except the states of Jammu and Kashmir and Andhra Pradesh, which have their own legislation to regulate transplantation of human organs. The hospital being situated in the State of Andhra Pradesh, it is governed by the 1995 A.P. TOHO Act but not under the Central Legislation i.e., 1994 TOHO Act. According to the petitioner’s counsel, the Government of Andhra Pradesh has not enacted any rule for the purpose. Since in the Central Act, it is categorically mentioned that the Act will be applicable only after respective State Government’s adopting it by resolution under Article 252(1) of the Constitution of India and since the State of Andhra Pradesh has not adopted such Act which was amended in 2011, 1995 A.P. TOHO Act is the only Act which governs the field and neither Central Act of 1994 nor the Transplantation of Human Organs Rules, 1995 (hereinafter “1995 Rules”) nor the Transplantation of Human Organs (Amendment) Act, 2011 (hereinafter “2011 Act”) are applicable for the State of Andhra Pradesh. It is the further case of the petitioner that Section 13 (2) (iv) of the 1995 A.P. TOHO Act indicates that Appropriate Authority has the power to investigate any complaint 13

or breach of any of the provisions of the said Act or any of the rules made there under and take appropriate action and thus the Appropriate Authority as appointed under Section 13 can only file complaint before a concerned Court as per Section 22 of the said Act to take cognizance of an offence under the Act and if a private person wants to file any complaint directly, he can do so only after giving notice to the Appropriate Authority not less than 30 days describing his intention to make the complaint directly to the Court. It is further contended by the learned counsel for the petitioner that since the offence was allegedly committed by the hospital authorities of Seven Hills Hospital situated within the State of Andhra Pradesh, Orissa Police has no jurisdiction for registration of the case and investigation by the Orissa Police and consequential arrest of the detenue under the Central Act i.e., 1994 TOHO Act is illegal and without jurisdiction. Since the Seven Hills Hospital authorities took all precautionary measures in the matter and took signatures of donor and donee in their own forms for the purpose of transplantation, no offence is committed and when Mangalabag Police visited the hospital, all the relevant documents were produced before them for verification. It is the further contention of the learned counsel for the petitioner that without application of mind to the documents produced 14

by the Seven Hills Hospital authorities, the arrest has been made even though there is no violation of the 1995 A.P. TOHO Act. It is further contended by the learned counsel for the petitioner that section 41 of Cr.P.C. has put mandatory restriction on the power of police to arrest a person when the offences alleged against such person prescribes punishment upto 7 years. According to the learned counsel for the petitioner, notice should have been given under section 41-A Cr.P.C. by the investigating agency to the detenue and thus, there has been non-compliance of the mandatory provisions of Cr.P.C.. Such contention was raised taking into account the punishment prescribed under section 18 of the 1995 A.P. TOHO Act wherein it is stated that any person who renders his service to or at any hospital and who, for the purposes of transplantation, conducts, associates with or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to 5 years and with fine which may extend to Rs.10,000/-

9. It is the settled principle of law as held in case of Nazir Ahmed -v- King Emperor reported in AIR 1936 Privy Council 253 which is followed in many a decision of the Hon’ble Supreme Court as well as different High Courts including our own High Court that when a power is given to do a certain thing in certain way, the 15

thing must be done in that way or not at all, other methods of performance are necessarily forbidden.

Section 60-A Cr.P.C. provides that no arrest shall be made except in accordance with the provisions of the Code or any other law for the time being in force providing for arrest.

10. No doubt, different provisions of the Cr.P.C. provides for the arrest of an accused involved in a cognizable offence. The existence of power of arrest is one thing but the justification for such exercise is quite another. Arresting Officer must be able to justify the arrest apart from his power to do so. Arrest and detention of a person cannot be made in a casual or routine manner on the mere allegation of commission of offence and the law mandates that before arresting a person and after arrest, procedure laid down under Chapter-V of Cr.P.C. are to be strictly followed otherwise the arrest and the consequent detention would be illegal. That is why Section 60-A of Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (15 of 2009) which came into force with effect from 31.12.2009 along with other amendments in Chapter V of Cr.P.C.. The police officer must be able to justify the necessity for such arrest apart from his power to do so. Arrest should be made as the last option restricted in exceptional cases where arresting the accused is imperative in the facts and circumstance of the case. No arrest should 16

be made by the police officer in case of non bailable and cognizable offence without a reasonable satisfaction as to genuiness of allegation made after conducting some investigation. Unless the principle laid down regarding arrest is kept in mind by the arresting officer, it would amount to denying a person of his liberty.

In case of Joginder Kumar V. State of U.P. reported in (1994) 4 Supreme Court Cases 260, it is held as follows:- “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self -esteem of a person. No arrest can be made in a routine

manner on a mere allegation of commission of an offence made against a person. It would be

prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the

genuineness and bona fides of a complaint and a reasonable belief both as to the person’s

complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police

Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable

justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except heinous offences, an arrest must be avoided if a police officer issues notice to 17

person to attend the Station House and not to leave the Station without permission would do.” Recently Hon’ble Supreme court in case of Arnesh Kumar v. State of Bihar (Criminal Appeal NO. 1277 of 2014, Judgment dtd. 2.7.2014) while dealing with the arrest of a person accused of an offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years with or without fine has held as follows:-

“The police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest need to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub- clauses (a) to (e) of clause (1) of Section 41 of Cr. P.C.”

11. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Procedure must be fair and not formal and it should be reasonable, not vagarious, vague and arbitrary. When the police is exercising his statutory power, it should be done in a fair manner in as much as nobody has right to play with liberty of a person 18

and if the exercise is arbitrary in nature, then it violates fundamental rights guaranteed under Article 14 of the Constitution of India.

12. Keeping this ratio in background, let us analyse different provisions of Cr.P.C. so also fundamental rights alleged to have been violated in the present case by the arresting officer while arresting and detaining the detenue.

13. The first provision which is stated to have been violated by the arresting officer in the present case is section 41 of Cr.P.C. Relevant provisions of Section 41 Cr.P.C reads as follows:-

41. When police may arrest without warrant-

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has

been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine , if the following conditions are satisfied, namely;- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or

tampering with such evidence in any

manner; or

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(d) to prevent such person from making any inducement, threat or promise to any

person acquainted with the facts of the case so as to dissuade him from disclosing such

facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required

cannot be ensured;

(f) and the police officer shall record while making such arrest, his reasons in writing;

Provided that a police officer shall, in all cases where the arrest of a person is not

required under the provisions of this sub-

section, record the reasons in writing for

not making the arrest;”

Chapter-V of Cr.P.C. deals with arrest of persons and Section 41 Cr. P.C. in detail enumerates under what circumstances a police officer can arrest any person without an order from a Magistrate and without the warrant. In case of M.C. Abraham -v- State of Maharastra reported in (2003) 24 Orissa Criminal Reports (SC) 517, it is held that though section 41 Cr.P.C. gives discretion to the police officer to arrest any person without an order from a Magistrate and even without a warrant in the situations enumerated in that section but he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged even if the allegation against the accused is that he has committed a cognizable offence, the power has to be exercised with caution and circumspection keeping in view the direction of the Hon’ble Supreme Court in case of D.K. Basu -v- State reported in (1997) 13 OCR 20

(SC) 214, basing on which there has been amendment in the Code of Criminal Procedure by virtue of Code of Criminal Procedure (Amendment) Act, 2008.

14. Analyzing section 41(1)(b) Cr.P.C. which is alleged to be specifically violated in the present case, it would be seen that section 41(1)(b) Cr.P.C indicates that if a police officer intends to arrest a person without an order from a Magistrate and without a warrant against such person, when there is reasonable complaint/credible information/reasonable suspicion that the person concerned has committed a cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine, certain conditions as laid down thereunder in (i) and (ii) must be satisfied.

15. Section 41(1)(b)(i) Cr.P.C. states about the existence of reasonable belief of the police officer proposing to arrest a person basing on a reasonable complaint, credible information, or a reasonable suspicion that such person has committed the cognizable offence punishable with less than 7 years or with 7 years with or without fine.

16. Section 41 (1)(b)(ii) Cr.P.C. states about the satisfaction of the police officer regarding necessity of the arrest of the person concerned. In which cases the necessity would arise have been 21

enumerated under clauses (a),(b),(c),(d) and (e) of section 41 (1) (b) (ii) Cr.P.C. Thus, one or more reasons as enumerated under clauses (a),(b),(c),(d) and (e) has to be recorded in writing by the police officer while making the arrest of a person who is alleged to have committed cognizable offence punishable with less then 7 years or with 7 years with or without fine.

17. As per proviso to section 41 (1)(b)(ii) if the police officer feels that in spite of a reasonable complaint/credible information/reasonable suspicion that the person concerned has committed a cognizable offence which is punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine, the arrest of such person is not required, then also he has to record the reasons in writing for not making the arrest.

18. Thus, recording the reasons is necessary where the police officer is making the arrest and even where he feels that arrest is not required in a case where it is a cognizable offence and the punishment prescribed may be less than 7 years or may extend to 7 years whether with or without fine.

19. Such recording of reasons is not necessary, if the cognizable offence is committed in the presence of a police officer in view of section 41(1)(a) Cr.P.C. It is also not necessary in view of 22

Section 41 (1) (ba) Cr. P.C. in case of arrest of a person against whom credible information is there to have committed cognizable offence which is punishable with more than 7 years whether with or without fine or with death sentence and basing on such credible information, the police officer has reason to believe that the person concerned has committed the offence.

20. In the present case, the police officials had proceeded to arrest the detenue on the basis of the registration of the F.I.R. under section 19 of the 1994 TOHO Act in connection with Mangalabag P.S. Case No.98 of 2004. Subsequently, section 18 of the said Act has been added during course of investigation. Section 18(1) of the 1994 TOHO Act prescribes punishment with imprisonment for a term which may extend to 10 years and with fine which may extend to Rs.20 lakh rupees.

Section 18(1) of the 1994 TOHO Act is quoted herein below:-

18. Punishment for removal of human organ

without authority.- (1) Any person who renders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to twenty lakh rupees.

21. Similarly section 19 of 1994 TOHO Act provides punishment, which shall not be less than 5 years but which may 23

extend to 10 years and also with fine which shall not be less than Rs.20 lakh rupees but may extend to one crore rupees. Section 19 of 1994 TOHO Act is quoted herein below:-

19. Punishment of commercial dealings in

human organs-Whoever-

(a) makes or receives any payment for the supply of, or for an offer to supply, any human organ.

(b) seeks to find a person willing to supply for payment any human organ;

(c) offers to supply any human organ for payment; (d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supply, any human organ;

(e) takes part in the management or control of a body of persons, whether a society, firm or

company, whose activities consist of or include the initiation or negotiation of any arrangement referred to in clause(d); or

(f) publishes or distributes or causes to be published or distributed any advertisement,-

(a) inviting persons to supply for payment of any human organ;

(b) offering to supply any human organ for

payment; or

(c) indicating that the advertiser is willing to initiate or negotiate any arrangement

referred to in clause (d);

(g) abets in the preparation or submission of false documents including giving false affidavits to establish that the donor is making the donation of the human organs, as a near relative or by reason of affection or attachment towards the recipient

shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall be liable to fine which shall not be less than twenty lakh rupees but may extend to one crore rupees.”

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22. Thus, in view of the punishment prescribed under sections 18 and 19 of 1994 TOHO Act, i.e., upto 10 years and with fine, it is not mandatory on the part of police officer to record reasons in writing for making arrest which is necessary in case of cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine as indicated under section 41(1)(b) Cr.P.C.

23. Learned counsel for the petitioner submits that 1994 TOHO Act is not applicable in the case in hand in as much as State of Andhra Pradesh has a separate Act, i.e., 1995 A.P. TOHO Act wherein under section 18, the punishment provided is upto 5 years and with fine which may extend to 10,000/- rupees. In view of such prescribed punishment, the contention of the learned counsel for the petitioner is that recording of reasons for making the arrest is mandatory in view of section 41(1) (b) Cr.P.C. which has not been followed in this case by the arresting officer while arresting the detenue. Section 18 (1) of 1995 A.P. TOHO Act is quoted herein below:-

18. Punishment for removal of human organ

without authority:-(1) Any person who renders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner in, the removal of any human organ 25

without authority, shall be punishable with imprisonment for a tem which may extend to five years and with fine which may extend to ten thousand rupees.

24. 1994 TOHO Act was enacted to provide for the regulation of removal, storage or transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. There has been certain amendment to the said Act by virtue of Transplantation of Human Organs (Amendment) Act, 2011 (16 of 2011).

Section 1(3) of 1994 TOHO Act states that such Act shall come into force in the States of Goa, Himanchal Pradesh and Maharastra and in all the Union territories on such date as the Central Government may, by notification, appoint and in any other State which adopts this Act under clause (1) of Article 252 of the Constitution, on the date of such adoption. According to the learned counsel for the petitioner, State of Andhra Pradesh has not yet adopted the 1994 TOHO Act which was amended in 2011 and 1995 A.P. TOHO Act is in force in whole of the State of Andhra Pradesh and therefore 1994 TOHO Act is not applicable in the State of Andhra Pradesh. 26

Article 252 of the Constitution of India is extracted herein below:-

252. Power of Parliament to legislate for two or more States by consent and adoption of such

legislation by any other State-(1)If it appears to the Legislature of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses Legislature of the State.

(2) Any Act so passed by Parliament may be

amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of the State”. Thus Article 252 of the Constitution makes it clear that where parliament has no power to make laws for the States except as provided to Articles 249 and 250 and houses of legislature of two or more States passes a resolution then it shall be lawful for the parliament to pass an Act for regulating the matter enumerated in the State List but such Act will be applicable to the States which had passed the resolution and so far as other States are concerned, they can adopt it afterwards by resolution passed in that behalf by the 27

House or, where there are two Houses, by each of the Houses of the Legislature of that State.

Article 246 deals with subject matter of laws to be made by Parliament and by legislature of the States. Article 246(3) states that subject to clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List-II in the 7th Schedule (in the Constitution referred to as the “State List”). Thus, various matters of legislation have been enumerated in three List; List I or the Union List; List II or State List; List III or the concurrent List. The Union Parliament has exclusive powers or legislation with respect to 97 subjects or items in List I. The State Legislature have exclusive powers with respect to 66 items enumerated in List II. The powers in respect of the 47 items in List III are concurrent i.e., both the Union and the State Legislatures can make laws in respect of the subjects enumerated in the Concurrent List, but any Union Act can override the State Act in the event of a conflict between the two on a matter in the Concurrent List. Entry No.6 of List II- State List indicates that the legislature of any State has exclusive power to make laws in connection with public health and sanitation, Hospital and dispensaries for such state.

28

Article 249 of the Constitution of India empowers the Parliament to legislate with respect to a matter in the State List in the national interest. In view of Article 249, if it is necessary or expedient in national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of territory of India but to make such law enumerated in the State List, there is necessity of making a resolution by the Council of States supported by not less than 2/3rd of the members present and voting. Thus in view of specific provisions of Constitution of India and Section 1 (3) of TOHO Act, we are of the opinion that 1994 TOHO Act as such is not applicable in the State of Andhra Pradesh as it was not adopted by that State and 1995 A.P. TOHO Act is applicable there. Learned Advocate General also does not dispute the contention raised by the learned counsel for the petitioner that 1994 TOHO Act is as such not applicable to the State of Andhra Pradesh as that State has not adopted the 1994 TOHO Act but 1995 A.P. TOHO Act is applicable to the State of Andhra Pradesh. Learned Advocate General submitted and the opp. Parties have also indicated in their notes of submissions filed on 18.07.2014 that 1994 TOHO Act has been adopted by the State of Orissa in August 1998. It is further stated by the learned 29

Advocate General that amendment to the provisions of 1994 TOHO Act in 2011 was also adopted by the State of Odisha on 29.02.2012.

25. Now the questions arise as follows:- (i) 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? Or

(ii) 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?

(iii) 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?

26. In the case at hand, the prosecution alleges that the victim was duped from the State of Orissa and taken to Viskhapatnam; forged documents were created to show that the donor (victim) is the wife of the recipient and without proper verification, the kidney 30

transplantation operation was conducted by the authorities of Seven Hills Hospital, which amounts to continuous cause of action which arose in the State of Orissa. According to the State, if the act of kidney transplantation would have been isolated act conducted in Seven Hills Hospital unconnected with any other act that took place in the State of Odisha, 1994 TOHO Act might not have been applicable in as much as State of Andhra Pradesh has not adopted this Act under Article 252 (1) of Constitution of India and 1995 A.P. TOHO Act would have been applicable but since the donor and the recipient both belong to State of Odisha and approval/ no objection certificate of the Authorisation Committee of our State constituted under clause (b) of sub-section (4) of section 9 of the 1994 TOHO Act has not been taken which is mandatory and the hospital authorities of Seven Hills Hospital have not verified the same before carrying out the operation, 1994 TOHO Act will be applicable.

27. Section 178 (c) Cr.P.C. deals with a situation where an offence is continuing one, and continues to be committed in more local areas than one. A continuing offence means that if an act or omission on the part of the accused constitutes an offence and if that act or omission continues from day to day, then a fresh offence is committed everyday on which the act or omission continues. As per section 178 (C) Cr.P.C. in case of continuing offence in more local areas than one, 31

it may be enquired into or tried by a Court having jurisdiction over any of such local areas. Thus, if a part of cause of action arose at place ‘A’ and it continues at place ‘B’ then F.I.R can be lodged either at place ‘A’ or at place ‘B’ so also complaint can be filed in the concerned Court at place ‘A’ or at place ‘B’ and the Court within whose local jurisdiction the place ‘A’ or ‘B’ situates can also enquire into or try the offence.

28. Section 9 of 1994 TOHO Act reads as follows:-

9.Restrictions on removal and transplantation of human organs or tissues or both- (1) Save as otherwise provided in sub-section (3), no human organ or tissue or both removed from the body of a donor before his death shall be

transplanted into a recipient unless the donor is a near relative or the recipient.

(1A) Where the donor or the recipient being near relative is a foreign national, prior approval of the Authorisation Committee shall be

required before removing or transplanting

human organ or tissue or both:

Provided that the Authorisation Committee

shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives.

(1B) No human organs or tissues or both shall be removed from the body of a minor before his

death for the purpose of transplantation

except in the manner as may be prescribed.

(1C) No human organs or tissues or both shall be removed from the body of a mentally

challenged person before his death for the

purpose of transplantation

Explanation- For the purpose of this sub-section,- (i) the expression “mentally challenged person” includes a person with mental illness or

mental retardation, as the case may be;

32

(ii) the expression “mental illness” includes dementia, schizophrenia and such other

mental condition that makes a person

intellectually disabled;

(iii) the expression “mental retardation” shall have the same meaning as assigned to it in

clause (r) of section 2 of the Persons With

Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)

(2) Where any donor authorizes the removal of any of his human organs or tissues or both after his death under sub-section (2) of section 3 or any person competent or empowered to give authority for the removal of any human organ or tissue or both from the body of any deceased person

authorizes such removal the human organ or

tissue or both may be removed and transplanted into body of any recipient who may be in need of such human organ or tissue or both.

(3) If any donor authorizes the removal of any of his human organs or tissues or both before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reason of affection or attachment towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and

transplanted without the prior approval of the Authorization Committee.

(3A) Notwithstanding anything contained in sub- section (3), where-

(a) any donor has agreed to make a donation of his human organ or tissue or both before his death to a recipient, who is his near relative, but such donor is not compatible biologically as a donor for the recipient; and

(b) the second donor has agreed to make a

donation of his human organ or tissue or

both before his death to such recipient, who is his near relative, but such donor is not

33

compatible biologically as a donor for such

recipient; then

(c) the first donor who is compatible biologically as a donor for the second recipient and the

second donor is compatible biologically as a donor of a human organ or tissue or both for the first recipient and both donors and both recipients in the aforesaid group of donor

and recipient have entered into a single

agreement to donate and receive such

human organ or tissue or both according to

such biological compatibility in the group,

the removal and transplantation of the human organ or tissue or both, as per the agreement referred to above, shall not be done without prior approval of the Authorization Committee.

4(a) The composition of the Authorization

Committees shall be such as may be prescribed by the Central Government from time to time.

(b) The State Government and the Union

territories shall constitute, by notification, one or more Authorization Committees consisting of such members as may be nominated by the State

Governments and the Union territories on such terms and conditions as may be specified in the notification for the purpose of this section. (5) On an application jointly made, in such

form and in such manner as may be prescribed, by the donor and the recipient, the Authorization Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ.

(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorization Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made

thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.” 34

29. Section 9 of 1994 TOHO Act deals with the removal and transplantation of human organs not only between the donor and recipient who are near relatives but also those who are not related to each other. Sub-section (5) of Section 9 indicates that a joint application has to be made by the donor and the recipient before the Authorisation Committee who has to hold an inquiry and such Committee can only grant approval to the applicants for removal and transplantation of human organ after being satisfied that the applicants have complied with requirements of the Act and rules made thereunder and in terms of sub-section (6) of Section 9, if the applicants have not complied with such requirements then the Authorization Committee has power to reject the application for approval but has to record the reasons in writing. Sub-rule (2) of Rule 4A of the 1995 Rules indicates that where the proposed transplantation is between the married couple, the Registered Medical Practitioners i.e., Incharge of transplant centre must evaluate the factum and duration of marriage and ensure that documents such as marriage certificate, marriage photograph, etc, are kept for records along with the information on the number and age of children and family photograph depicting the entire immediate family, birth certificates of children containing particulars of parents. Form No.1 (B) annexed to 1995 Central Rules also enlightens what are the 35

documents to be filed along with Form for verification. Form No. 10 is the application form for approval for transplantation in case of live donor which is to be completed by the proposed recipient and proposed donor and it indicates the instruction that the approval/No- Objection Certificate from the concerned State or Authorisation Committee is mandatory.

30. Learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in the case of Kuldeep Singh -v- State of Tamil Nadu and others reported in (2005)11 Supreme Court Cases 122 wherein Section 9 of the 1994 TOHO Act as was at that point of time governing the field was dealt with and Hon’ble Court after extracting the provision of Section 9 has held in paragraph 10 that the provision refers to donors who are not “near relatives” of the recipient. (After amendment to Section 9 in 2011, the case of “near relative” has been inserted in the said provision). In paragraph-12, the Hon’ble Supreme Court has held that Form 1 in terms of Rule 3 itself shows that the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. It is further held as follows:-

12. Where the donor is not “near relative” as defined under the Act the situation is covered by sub-section (3) of Section 9. As Form 1 in terms of Rules 3 itself shows, the same has to be filed in 36

both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. In case the donor is not a near relative the requirement is that he must establish that removal of the organ was being authorised for transplantation into the body of the recipient because of affection or attachment or for any special reasons to make donation of his organ. As the purpose of enactment of the statute itself shows, there cannot be any commercial element involved in the donation. The object of the statute is crystal clear that it intends to prevent commercial dealings in human organs. The Authorisation Committee is, therefore, required to satisfy that the real purpose of the donor authorising removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass

commercial elements. Above being the intent, the inevitable conclusion is that the Authorisation Committee of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain the true intent and the purpose for the authorisation to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of 37

projected affection or attachment and the so- called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee. Whether there exists any affection or attachment or special reason is within the special knowledge of the applicants, and a heavy burden lies on them to establish it. Several relevant factors like relationship if any (need not be near relationship for which different considerations have been provided for), period of acquaintance, degree of association, reciprocity of feelings, gratitude and similar human factors and bonds can throw light on the issue. It is always open to the Authorisation Committee considering the application to seek information/materials from the Authorisation Committees of other States/State Governments, as the case may be for effective decision in the matter. In case any State is not covered by the operation of the Act or the Rules, the operative executive instructions/government orders will hold the field. As the object is to find out the true intent behind the donor’s willingness to donate the organ, it would not be in line with the legislative intent to require the Authorisation Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form 1 in terms

38

requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorization Committee of the State of Punjab which is required to examine the claim of the petitioners.

31. Since after amendment to section 9 in 2011 in 1994 TOHO Act, not only the cases of persons who are not near relative but also the cases of persons who are near relative are covered under section 9, in view of sub-section (5) of section 9, a joint application of the donor and the recipient is mandatory and it is only after approval of the Authorization Committee, the removal and transplantation of the human organ can be done. In view of the decision of the Hon’ble Supreme Court in case of Kuldeep Singh (supra), it is the Authorisation Committee of the State to which the donor and the recipient belong to has to take the exercise to find out whether approval is to be accorded or not in as much as they shall be in a better position to ascertain the true intent and the purpose for the authorization to remove the organ and whether any commercial element is involved or not.

In the case of Miss Sonia Ajit -v- Hospital Committee passed in Writ Petition (L.) No.2831 of 2011 decided 39

on18.1.2012, the Bombay High Court in paragraph 12 has held as follows:-

12. The question is whether in a case where

both the donor and the recipient are near relatives as defined by the Act, can such persons resort to removal and transplantation of human organ or issue without approaching the Authorization

Committee where the case does not fall under any of the three exceptions. Although theoretically in such cases approval of the Authorization

Committee would not be required, in order to ensure that a donor does not donate his organ or tissue to a stranger for commercial considerations, simply by alleging that applicants are near

relatives, the Authorisation Committee will have to be approached to ascertain whether the donor and recipient are near relatives or not. That is why under sub-sections (5) and (6) of Section 9 of the Act, the Authorisation Committee will have to satisfy itself that the applicants have complied with all the requirements of the Act and the Rules made thereunder. Once the donor and recipient are shown to be near relatives as defined by the Act and the case does not fall under any of the three exceptions, the Authorisation Committee has no power to make further enquiry about the motive of such donation, because in such cases there would be no commercial element.

32. In view of the provisions of Section 9 of 1994 TOHO Act and the decisions of the Hon’ble Supreme Court as well as the Bombay High Court, we hold that not only in cases of persons who are not relatives but also in case of near relatives, a joint application has to be made by the donor and the recipient before the Authorization Committee of the State to which they belong to and the Authorization Committee after holding necessary inquiry can grant approval for 40

removal and transplantation of the human organ after being satisfied that the applicants have complied with all the requirements of the Act and the rules made thereunder and after such approval is accorded, the removal and transplantation of human organ may take place in the Authorized Transplantation Centre duly registered for this purpose under the Act as required under section 10 of 1994 TOHO Act either in the State to which both the donor and the recipient belong to or in any other State.

33. On perusal of the ratio laid down in Kuldeep Singh’s case (supra) and Form No.1 (B) and Form No.10, we are of the view that since in the present case the donor and the recipient both belong to State of Orissa, the Authorisation Committee constituted under clause (b) of sub-section (4) of Section 9 of 1994 TOHO Act by the State Government is the competent authority and no objection certificate should have been obtained from such Authorization Committee. In the case in hand, as no approval/ No-Objection Certificate of the Authorisation Committee constituted by the State Government of Odisha has been taken, we are of the prima facie view that the provisions of 1994 TOHO Act and the rules framed thereunder have been violated.

41

This answers the first question that we have framed. In view of the answer to the first question, we need to go to the second question that we had framed.

34. Now coming to the next question as to whether an F.I.R. under section 19 (subsequently added section is section 18) of the 1994 TOHO Act can be registered and whether Mangalabag police has jurisdiction to investigate such case and arrest the detenue, according to the learned counsel for the petitioner, section 13 of the 1995 A.P. Act gives the Appropriate Authority appointed by Government of Andhra Pradesh the power of investigation of any complaint or breach of any of the provisions of the said Act or any of the Rules made thereunder and to take appropriate action. It is contended that if any irregularities is alleged to have been committed in the Seven Hills Hospital, Vishakapatnam which is situated within the State of Andhra Pradesh then F.I.R cannot be entertained at Mangalabag Police Station and Mangalabag Police officials have no jurisdiction to investigate the matter and as such the investigation by the Mangalabag Police and the consequential arrest and detention of the detenue is without any legal authority and beyond jurisdiction.

According to the learned counsel for the petitioner, complaint is to be filed before a competent Magistrate for taking cognizance of the offence by the concerned Appropriate Authority or 42

by an Authorised Officer authorised in that behalf by the Central Government or the State Government or by the Appropriate Authority in view of Section 22 of the said Act. The learned Advocate General on the other hand submits that there is no bar in entertaining an F.I.R. in a case where breach of any of the provision 1994 TOHO Act is alleged particularly when it is stated to have been committed along with other offences of Indian Penal Code as happened in this case. According to learned Advocate General, there is no bar for investigating the offence under 1994 TOHO Act by Mangalabag Police particularly when it was committed along with other offences of Indian Penal Code however the Mangalabag Police has no power to submit charge sheet under 1994 TOHO Act in view of the bar under section 22 of 1994 TOHO Act and the police officer being satisfied after conducting investigation that an offence under 1994 TOHO Act is made out can move before the Appropriate Authority to file complaint before the competent Magistrate for taking cognizance.

The learned Advocate General relied upon the case of Institute of Chartared Accountant of India -v- Vimal Kumar Surana and another reported in (2011) 1 SCC 534. In the said the accused not being a Chartered Accountant, projected himself to be so and submitted documents and appeared by preparing forged 43

seals and documents. He impersonated himself as a Chartered Accountant and prepared audit reports for monetary consideration. It was urged that this being a violation of Chartered Accountants Act, 1949 and Section 195 I.P.C., other provisions of I.P.C. and Cr.P.C. could not be pressed into service to prosecute the person concerned. The plea of double jeopardy was also advanced on behalf of the accused which was repealed by the Hon’ble Supreme Court. While dealing with TOHO Act, the Hon’ble Court held that the provisions of TOHO Act being a part of Special Law, they have overriding effect qua provisions of I.P.C./Cr.P.C. It was further held that the provisions of Section 24-A, 25 and 26 of the Chartered Accountants Act contain an expression “without prejudice to any further proceeding which may be taken” and went on to held that it was permissible to proceed under provisions of I.P.C. independent of the provisions of the Chartered Accountants Act.

Since we hold prima facie that the provisions of 1994 TOHO Act has been violated in this case, let us see as to how a person who is violating the provisions can be proceeded with.

35. Section 2 (b) of 1994 TOHO Act states that “Appropriate Authority” means Appropriate Authority appointed under section 13. Section 13 of 1994 TOHO Act indicates as to who can appoint the Appropriate Authority and what their function is. Section 13(3)(iv) 44

states that the Appropriate Authority shall investigate any complaint of breach of any provisions of the Act or any of the rules made thereunder and take appropriate action. Section 22 of 1994 TOHO Act states that no court shall take cognizance of an offence under 1994 TOHO Act except on a complaint made by the Appropriate Authority concerned, or any officer authorized on that behalf by the Central Government or the State Government or, as the case may be, any officer authorized on that behalf by the Appropriate Authority. In case of a private person in terms of 22(1) (b), notice of not less than 60 days has to be given to the Appropriate Authority regarding the commission of the alleged offence and his intention to make a complaint to the Court. On receipt of such notice, the Appropriate Authority may decide as to whether it is a fit case for making complaint or not. In case the Appropriate Authority feels that it is not a fit case to make complaint in spite of receipt of notice of the private person or in case it sleeps over the matter then after expiry of 60 days of notice, the private person can make the complaint directly to the Court.

Learned counsel for the petitioner relied upon the case of Jeewan Kumar Raut and another -v- Central Bureau of Investigation, (2009) 7 SCC 526 wherein it is held that the Appropriate Authority, subject to exceptions provided for in TOHO, 45

thus, is only authorized to “investigate” cases of breach of any of the provisions thereof, whether penal or otherwise. In that case, the F.I.R. was lodged before the Officer- in-Charge of Gurgaon Police Station not only for commission of offence under TOHO but also under various provisions of the Penal Code. The Hon’ble Supreme Court held the 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. It was further held that TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of provisions thereof, it will prevail over the provisions of the Cr.P.C. and the investigation in terms of Section 13(3)(iv) of TOHO must be conducted by an Authorised Officer and nobody else could do it.

36. At this juncture, in order to appreciate the contention raised by both the parties, some of provisions of Cr. P.C. need to be discussed. Section 4 Cr. P.C. briefly enumerates as to how the investigation, inquiry, trial relating to all the offences either under Indian Penal Code or any other law are to be conducted. So far as offences under I.P.C. are concerned, the procedure laid down in the Cr. P.C. in relation to investigation, inquiry or trial will hold good but in relation to the provisions of special law, for example, Prevention of Food Adulteration Act, 1954, Narcotic Drugs and Psychotropic 46

Substances Act, 1985, and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 etc. are concerned, the procedure laid down under such Special Act regarding manner of investigation, inquiry or trial would prevail and the provisions of Cr. P.C. cannot apply. A bare reading of section 4 Cr. P.C. makes it clear that if an offence is committed under a Special law, then the provisions of that law would govern the investigation and trial of such offence and a police officer is not empowered either to submit charge sheet or otherwise proceed under chapter XII of the Cr. P.C. The powers under the Cr.P.C. are thus subject to any special provisions that might be made with regard to the exercise or regulation of those powers by any Special Act. In view of section 5 Cr. P.C., if the Special Act does not indicate the specific provision for enquiry into, trial or otherwise dealing with such offences then the procedure of Cr. P.C. would be applicable. Thus when a Special Law prescribes for a special form or procedure, the procedure enumerated under the Cr. P.C. is not to be followed. Only when a special law or local low does not provide the procedure or dealing with offence under the said special or local Act, the procedure contained in the Cr.P.C. is to be followed.

37. There is no dispute that State of Odisha has adopted 1994 TOHO Act and also the amendment to the said Act in 2011. Health 47

and Family Welfare Department of Government of Odisha has issued notification dated 4.5.2001 wherein it is indicated that in exercise of powers conferred by sub-section (2) of section 13 of 1994 TOHO Act, the State Government appointed Director of Medical Education and Training, Odisha (hereinafter “DMET”) as the “Appropriate Authority”, inter alia, to “investigate” any complaint of breach of any of the provisions of the Act or any of the rules made thereunder and take appropriate action. In view of Section 22 of 1994 TOHO Act, such Appropriate Authority can also file complaint before the competent Court.

In the case of Jeewan Kumar -v- C.B.I. reported in (2009) 7 SCC 526, it is held that TOHO is a special Act and it provides for appointment of an Appropriate Authority to deal with the matters specified in sub-section (3) of Section 13 thereof. An Appropriate Authority has specifically been authorized, inter alia, to investigate any complaint of breach of any of the provisions of TOHO or any of the rules made thereunder and take appropriate action. The Appropriate Authority, subject to exceptions provided for in TOHO, is only authorized to investigate cases of breach of any of the provisions thereof, whether penal or otherwise. There cannot be any manner of doubt whatsoever that the provisions of TOHO shall prevail over the provisions of the Code. The investigation in terms of Section 13 (3) 48

(iv) of TOHO must be conducted by an authorized officer. Nobody else could do it. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an Appropriate Authority or the person who had made a complaint earlier to it as laid down therein. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. The provisions of the Code, for all intent and purport, would apply only to and extend till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. It was further held that though in terms of the Code, the C.B.I upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it is precluded from doing so by reason of the provisions contained in Section 22 of TOHO. The procedure laid down in TOHO would permit the C.B.I. to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO.

38. In view of Section 22 of 1994 TOHO Act, complaint before competent Court can be made by the concerned “Appropriate Authority” as appointed under Section 13 or by any officer authorized 49

by the (i) Central Government or (ii) State Government or (iii) Appropriate Authority. In State of Orissa as per the notification dated 4.5.2001 of Health and Family Welfare Department of Government of Orissa, DMET is the Appropriate Authority. As per section 2(d) of Cr.P.C., “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

The learned Advocate General has stated that neither the State Government nor the DMET has authorized anybody else to investigate any complaint of breach of any of the provisions of TOHO Act or any of the rules made thereunder and take appropriate action. In view of such discussions, we are of the following opinion:-

(i) FIR cannot be entertained for breach of any of the provisions of the 1994 TOHO Act;

(ii) Mangalabag Police officials are not authorized to investigate a case relating to the breach of any provisions of 1994 TOHO Act;

(iii) Only a complaint petition is maintainable and the complaint petition is to be made by the Appropriate Authority or any officers authorized 50

in that behalf either by the Central Government or the State Government or by the Appropriate Authority;

(iv) When such a complaint petition is filed before the competent Court, the complaint case procedure as laid down under Chapter-XV and other provisions of Cr.P.C. dealing with complaint case procedure are to be followed at the time taking cognizance and issuance of process as well as by the trial Court during trial of the said complaint case.;

39. Thus, even if we are of the view that the registration of F.I.R. at Mangalabag Police Station for violation of the provisions of 1994 TOHO Act is not maintainable (though such F.I.R. and the investigation in relation to the other offences under which the case has been registered is maintainable), the Appropriate Authority appointed by the State of Odisha i.e., the DMET can investigate into any complaint of breach of any of the provisions of the Act or the rules made thereunder and thereafter either the concerned Appropriate Authority or any officer authorized by the Central Government/State Government/Appropriate Authority file a complaint petition before the competent Magistrate for taking cognizance and 51

proceed in accordance with law against the accused persons involved in the violation of the provisions of the said Act. Similarly, the informant in this case or any other person interested to prosecute an accused under 1994 TOHO Act, after giving notice of not less than sixty days to the concerned Appropriate Authority regarding the commission of the alleged offence and also his intention to make a complaint to the Court can file the complaint petition before the competent Magistrate after the expiry of the sixty days notice period. Section 41 Cr.P.C.

40. We have held that in the case in hand, the provisions of 1994 TOHO Act and the Rules framed thereunder, have prima facie been violated.

We have further held that F.I.R. cannot be entertained for breach of any of the provisions of 1994 TOHO Act by the Mangalabag Police Station and Mangalabag police officials are not authorised to investigate a case relating to breach of any provisions of the said Act.

41. If 1994 TOHO Act is excluded, so far as the other offences under which the case has been registered i.e., Section 120(B), 468, 471, 342 read with Section 34 of Indian Penal Code are concerned, none of the offences carries punishment more than 7 years and as such Section 41 Cr.P.C. has to be complied with. In other words, the Mangalabag police officials first of all should have reason to believe 52

that on the basis of the information received, the detenue has committed the offence and further should have recorded, while making the arrest of the detenue, the reasons in writing as to why the arrest was necessary. The reasons should have been one as enumerated under (a),(b),(c), (d) and (e) of Section 41 (1) (b)(ii) Cr.P.C. Since in the present case no such reason has been recorded and it is simply mentioned in the arrest memo vide Annexure-4 under Sl. No.4 “as found involved in the above noted case”, we are of the view that it does not satisfy the reasons which is required to be recorded in writing in view of the provisions under Section 41 (1)(b)(ii) Cr.P.C.

Since, the arresting officer in the present case has not recorded the reasons for the arrest of the detenue, it is a violation not only of the provisions under Section 41 Cr.P.C. but also a violation of fundamental right guaranteed under Article 21 of the Constitution of India.

Section 41 (A) Cr.P.C.

42. Section 41 (A) Cr.P.C. is alleged to have been violated by the arresting officer in the case in hand. This section provides that where the police officer thinks that arrest of a person is not required under the provisions of sub-section (1) of Section 41, he has to issue notice against the person to appear before him or at such other place 53

as may be specified in the notice. On the basis of a reasonable complaint/credible information/reasonable suspicion regarding commission of cognizable offence where the punishment prescribed is 7 years or less with or without fine, the police officer has not only to record the reason in writing for not making the arrest but also to issue notice for the appearance of the person concerned before him or at such other place as may be specified in the notice. Thus in view of Section 41-A Cr.P.C., issuance of the notice is mandatory in cases where the police officer feels that the arrest of a person is not required and the case is one which carries punishment upto 7 years or less with or without fine.

43. 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. But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41-A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest 54

and the right to personal liberty guaranteed under Article 21 of the Constitution of India.

Since in the present case according to prosecution, the arrest of the detenue was required on the basis of credible information received against him regarding his involvement in the commission of offence under 1994 TOHO Act, section 41-A Cr.P.C. is not applicable in this case. This provision is applicable in all such cases where the police officer feels that the arrest of the person is not required. Section 50 Cr.P.C.

44. Section 50 Cr.P.C. is alleged to have been violated in the present case. Section 50(1) Cr.P.C. is in conformity with the provisions of Article 22(1) of the Constitution of India. As per this section, it is mandatory on the part of the police officer or other person arresting any person without warrant to communicate immediately such person the following things (i) full particulars of the offences for which he is arrested or (ii) the grounds for such arrest and as per sub-section (2) of section 50 Cr.P.C., the person concerned is to be communicated by the police officer that he is entitled to be released on bail in case of bailable offence and ask him to arrange sureties for such release. According to the learned counsel for the petitioner, as per the arrest memo annexed as Annxure-4 to the writ petition, under column No.4 where grounds of arrest is to be mentioned, it is only 55

mentioned “as found involved in the above noted case.” According to the learned counsel for the petitioner this is not sufficient compliance of the mandate of law regarding communication grounds of arrest. Initiation of a case under cognizable offence is one thing and power of arrest in such case where it is without warrant or without an order from a Magistrate is another thing. Grounds of arrest must indicate at least in brief the reasons and necessity of arrest. The arresting officer must apply his mind to the allegation made against the person concerned in a fair and impartial manner and must be satisfied that there is reason or necessity to arrest the accused if there is no warrant issued by the Magistrate to cause such arrest. The accused must be aware about the same and he must have an idea as to why he is being arrested by the police in connection with the alleged offence. Non-compliance of the same not only violates the provisions under Section 50 of Cr.P.C. but also the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. If the arrest is made without compliance of the statutory provisions then it becomes arbitrary and unconstitutional and it cannot be sustained in the eye of law.

Article 22 (1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall 56

he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Section 50 (1) Cr.P.C. states that every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the mind of the arresting authority and also to know exactly what the accusation against him is, so that he can exercise the second right, namely, consulting a legal practitioner of his choice and to be defended by him. The fundamental right secured to a arrested person by Article 22 (1) is to give protection against such arrest as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has or is suspected to have committed or is about or likely to commit any offence prejudicial to the public or the State interest.

In the present case, the arrest was made without an order from a competent Magistrate and without a warrant. The ground of arrest was not communicated to the detenue.

Thus, we are of the view that there is violation of Article 22(1) of the Constitution of India read with Section 50 Cr.P.C. 57

Section 57 Cr.P.C.

45. Learned counsel for the petitioner raises contention regarding violation of the provisions under section 57 Cr.P.C. Section 57 Cr.P.C. provides for the period to which an accused person arrested can be detained in custody by the Police. The first limit is that it should be reasonable period which may be even less than 24 hours and it shall, in no case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. If a police officer detains a person in custody after arresting him without warrant considering that investigation cannot be completed within 24 hours then he must produce the accused before the Magistrate forthwith and cannot wait even for 24 hours. After producing the accused, the police can always pray for remand of the accused either to his custody or to judicial custody. 24 hours prescribed under section 57 Cr.P.C. is the outermost limit beyond which arrested person cannot be detained in police custody. In the present case the memo of arrest reflects the date and time of arrest i.e., 13.6.2014 at 7.30 P.m. as appears from the affidavit filed by the Sub-Inspector and in-charge of Mangalabag Police Station, Sujit Kumar Sahoo. The detenue was produced physically only on 24.6.2014 before the learned Court of 4th Addl. Chief Metropolitan 58

Magistrate, Nampalli, Hydrabad. Thus, he was not produced within 24 hours as required under section 57 Cr.P.C. Now the question is that whether the prosecution has explained the delay of production before the concerned Magistrate properly.

46. The learned Advocate General Submits that in meantime the detenue has been produced before the competent Court i.e., S.D.J.M., (S), Cuttack and remanded to judicial custody by an order of the said Court and since the remand order has not been challenged, writ of habeas corpus cannot be entertained.

47. Now let us discuss at what stage the legality of an illegal detention can be challenged in a habeas corpus proceeding. In the case of A.K. Gopalan Vrs. Government of India reported in AIR 1966 SC 816, it is held that in dealing with the petition for habeas corpus, the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of application and the date of hearing.

In the case of Col. Dr. B. Ramachandra Rao Vrs. State of Orissa reported in AIR 1971 SC 2197, it is held that in habeas corpus, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceeding.

59

In the case of Talib Hussain Vrs. State of Jammu Kashmir reported in AIR 1971 SC 62 , it is held that in habeas corpus proceeding, the Court has to consider the legality of the detention on the date of hearing.

All these three views were considered in case of Kanu Sanyal Vrs. Dist. Magistrate reported in AIR 1974 SC 510 wherein it was held that the second view (i.e., detention at the time of return) appears to be more in consonance with the law and practice in England and has received largest measure of approval in India. The third view (i.e. on the date of hearing) cannot be discarded as incorrect because an inquiry whether the detention is legal or not at date of hearing of the application for habeas corpus could be quite relevant, for simple reason that if on that day the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus.

The learned Advocate General places reliance in case of Manubhai Ratilal Patel Vrs. State of Gujarat reported in (2013) 1 Supreme Court Cases 314 wherein it is held (para 31) that it is the well- accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent Court by an order which prime facie does 60

not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal.

The learned counsel for the petitioner places reliance in case of Madhu Limaye reported in 1969 (1) Supreme Court case 292 wherein the Hon’ble Supreme Court has held (page 298) as follows:-

“The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake,

misapprehension or misunderstanding in the minds of the arresting authority and, also, to known exactly what the accusation against him is so that he can exercise to know exactly what the

accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent

authority exercising judicial powers may without delay apply its mind to his case.”

It is further held in the decision page 299, para- 12 as follows:- “Once it is show that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the magistrate directed detention in jail custody after applying his mind to all relevant matters …..if there detention in custody could not continue after their arrest because of the violation of Art.22 (1) of constitution, they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities.” 61

It is further held that if the detention in custody could not continue after the arrest because of violation of Article 22 (1) of the Constitution, the arrested person detained in jail custody is entitled to be released forthwith. The orders of remand which are routine and passed in a mechanical manner would not cure the Constitutional infirmities.

In view of the above discussion, we are of the view that once the arrest is illegal, unauthorized and is in violation of Article 22 (1) of the Constitution of India, the same cannot be cured by any action like remand etc., in the hands of a Judicial Magistrate.

48. The learned counsel for the petitioner submits that the detenue was never produced before a competent Magistrate within 24 hours of arrest excluding the journey time till 24.6.2014 when he was produced for the first time before a competent Magistrate at Hyderabad and on 3.7.2014 when he was produced before the learned S.D.J.M., (Sadar), Cuttack. The arrest being made on 13.6.2014, there is gross violation of Article 22(2) read with Section 57 Cr.P.C.

Article 22 (2) of the Constitution of India provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the 62

place of arrest to the Court of the Magistrate and no such person shall be detained beyond the said period without the authority of a Magistrate. Section 57 Cr.P.C. provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. The learned Advocate General on the other hand submits that the Investigating Officer in his affidavit has explained as to why the detenue could not be produced before the nearest Magistrate i.e, 4th Addl. Chief Metropolitan Magistrate, Visakapatnam city within 24 hours in spite of his arrest on 13.6.2014 at 7.30 p.m. and why there was delay in producing the detenue before the learned Chief Metropolitan Magistrate, Hyderabad on 24.6.2014. We have seen both the affidavits i.e., the first which was filed by Sujit Kumar Sahu, Sub-Inspector and In-charge of Mangalabag Police Station on 1.7.2014 as well as by Suvendu Kumar Sinha, Inspector-in-Charge, Mangalabag Police Station who is the investigating officer on 7.7.2014. The reasons assigned for non- production of the detenue was due to taking reasonable care of the health of the detenue and taking him first to KG Hospital, 63

Visakhapatnam and then to NIMS Hospital, Hyderabad and then to Ayush Hospital at Vijaywada and then again to NIMS Hospital, Hyderabad and then to Apollo Hospital, Hyderabad and then again to NIMS Hospital, Hyderabad because of the complaint of chest pain by him. The petitioner’s counsel also does not dispute about the factum of production of the detenue in different hospitals by the I.O. but submits that during the gap period he could have been very well produced before a competent Magistrate.

Section 55 -A Cr.P.C. provides that it shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. When the I.O. has given primary importance to the health of the detenue and as produced him in one after another Hospitals for the treatment and intimated the Magistrate i.e, 4th Addl. Chief Metropolitan Magistrate, Visakhapatnam city about the arrest of the detenue as well his medical treatment and produced the original memo of arrest and also intimated 4th Addl. Chief Metropolitan Magistrate, Vijaywada and finally after getting medical fitness certificate from NIMS, Hyderabad produced the detenue before the learned Chief Metropolitan Magistrate, Hyderabad on 24.6.2014, it cannot be said that there is violation of either Article 22(2) of the Constitution of India or Section 57 Cr.P.C..The time taken in producing the detenue one after other Hospitals for 64

treatment after arrest in order to take reasonable care of his health is also to be excluded apart from the journey time from the place of arrest to the Court of Magistrate from the period prescribed under Article 22(2) of the Constitution of India read with Section 57 Cr.P.C. Thus, there is no violation of either Article 22(2) of the Constitution of India or Section 57 Cr.P.C..

49. In view of the above discussion, we are satisfied that prima facie, there is patent illegality in the arrest and detention of the detenue. In case of State of Bihar -v- Rambalak Singh reported in AIR 1966 SC 1441 it is held as follows:-

“…………If the Court has jurisdiction to give the main relief to the detenue at the end of the proceedings, on principle and in theory, it is not easy to understand why the Court cannot give interim relief to the detenue pending final disposal of his writ petition. The interim relief which can be granted in habeas corpus proceedings must no doubt be in aid of, and auxiliary to, the main relief. It cannot be urged that releasing a detenue on bail is not in aid of, or auxiliary to the main relief for which a claim is made on his behalf in the writ petiton”.

“……………When the High Court releases a detenue on bail pending the final disposal of his habeas corpus petition, the High Court will no doubt take all the relevant facts into account and it is only if and when the High Court is satisfied that prima facie, there is something patently illegal in the order of detention that an order of bail would be passed. The jurisdiction of the High Court to pass an interim order does not depend upon the nature of the order, but upon its authority to give interim relief to a party which is auxiliary to the main relief 65

to which the party would be entitled if he succeeds in its petition”.

In view of the facts and circumstances of the case, we are granting interim bail to the petitioner till final disposal of this writ petition. Let the petitioner be released on interim bail on furnishing bail bond of Rs.10,000,00/- (Ten lakh) with two solvent local sureties each for the like amount to the satisfaction of the 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 with a further condition that he shall deposit cash security of Rs.2,000,00/- (Two lakh) in the shape of fixed deposit in his name or in the name of any of his family members in any Nationalised Bank which shall be pledged in the name of the concerned Court and shall be renewed from time to time till disposal of the case and may be appropriated as compensation, if any, found payable by the petitioner. The learned S.D.J.M., (Sadar), Cuttack is at liberty to fix any other suitable terms and conditions.

50. Apart from the case in hand, several cases have been recently reported in the State of Odisha, where innocent persons have been duped by way of misrepresentation or for sake of money and in most of the cases, such persons being shown as near relatives of the recipients by creating forged documents, organ transplantation operation are carried out either within the state or outside. The 66

hospital authorities are also not properly verifying the documents produced before them to trace out genuine cases obviously with an ulterior motive and are therefore becoming a party to such illegal commercial dealing. To check such racket and to meet ends of justice, we are issuing the following directions:-

1. The I.O. of this case is directed to take immediate step to file a complaint on the basis of materials already collected by him for the alleged violation of the provisions of 1994 TOHO Act before the “Appropriate Authority” in connection with this case. The Appropriate Authority may himself investigate the complaint or entrust the matter to the C.B.I. for investigation.

2. Once the Appropriate Authority or C.B.I. on investigation finds prima facie materials that there is breach of any of the provisions of 1994 TOHO Act or the rules made thereunder, the Appropriate Authority or the C.B.I will file a complaint petition before the competent court for taking cognizance of offence and proceeding in accordance with law.

3. The State Government is directed to intimate all other States where the donor and the recipient belong to State of Odisha, not to conduct any organ transplantation operation without 67

the approval/No-Objection Certificate from the Authorisation Committee of Odisha.

4. The State Government is also directed to consider framing guidelines for processing the application for organ transplantation before the Authorisation Committee keeping in view the guidelines issued by the Government of Andhra Pradesh, Hyderabad and any other States.

5. The State Government is also directed to frame a scheme similar to the “Jeevandan” scheme in the matter of organ transplantation like in the State of Andhra Pradesh and appoint different authorities to carry out the purposes of such a scheme.

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6. The State Government shall take effective steps in framing rules, regulations and guidelines for registration of the hospitals as Organ Transplant Centre (OTC) and to monitor their activities.

Before parting, we record our appreciation to the able assistance provided by Sri J. Das, Senior Advocate appearing for the petitioner and Sri Ashok Mohanty, the learned Advocate General for adjudicating the issues involved in the case.

68

List this matter on 20.10.2014 for filing of compliance affidavits by the State and for further orders. …………………………

S.K. Sahoo,J.

I. Mahanty, J. I agree.

…………………………

I.Mahanty, J.

Orissa High Court, Cuttack

Dated 24 August, 2014/Pravakar

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