Back
2009(5) Supreme 554
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Asok Kumar Ganguly, JJ.
Jeewan Kumar Raut & Anr. — Appellants
versus
Central Bureau of Investigation — Respondent
Criminal Appeal Nos. 1133-1134 of 2009
[Arising out of SLP (Crl.) Nos. 1035-1036 of 2009]
Decided on : 07-07-2009
(b) Transplantation of Human Organs Act, 1994 – Section 22 – TOHO being a special statute, Section 4 of Cr.P.C. would not be applicable in offences under TOHO. (Para 15)
(c) Transplantation of Human Organs Act, 1994 – Section 22 – Only because CBI lodged the FIR and proceeded in terms of the Act and the manual, the same by itself would not mean that all the provisions of Chapter XII of TOHO vis-à-vis Chapter XV thereof could not be invoked. (Para 18)
(d) Transplantation of Human Organs Act, 1994 – Section 13(3)(iv) r/w section 167 and 173, Cr.P.C. – Under TOHO CBI could file a complaint petition only as an appropriate authority – Filing of a police report by necessary implication is necessarily forbidden – Therefore the question of CBI submitting a report in terms of section 173(2) of the Code did not and could not arise – It follows that if no police report could be filed, section 167(2) of the Code was not attracted. (Para 19)
(e) Interpretation of Statute – Provisions of Cr.P.C., for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO – As soon as the area of conflict reaches, TOHO shall prevail over the Code. (Para 20)
(f) Code of Criminal Procedure, 1973 – Section 202 – Merely because the Magistrate could recourse to section 202 and even reject the complaint, it does not mean the complaint should have been treated as police report – A complaint would not include a police report. (Para 21)
(1997) 8 SCC 476; (2007) 8 SCC 770 – Distinguished.
2008 Crl. L.J. 2388 – Approved.
(g) Code of Criminal Procedure, 1973 – Section 167(2) – Only because the court itself took more than 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. (Para 25)
(1994) 5 SCC 410 – Relied upon.
(h) Code of Criminal Procedure, 1973 – Sections 167(2) and 309(2) – Remand at a pre-cognizance stage is to be made in terms of Sub-section (2) of Section 167 of the Code – In distinction, an order of remand of an accused at post-cognizance stage can be effected only in terms of Sub-section (2) of Section 309 thereof. (Para 26)
2009 (7) SCALE 559 – Relied upon.
(i) Administration of Criminal Justice – Some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act – But they cannot file chargesheet and to that extent they would not be police officers. (Para 28)
AIR 1970 SC 940; (1990) 2 SCC 409 – Relied upon.
Facts of the case :
1. Appellants are medical practitioners. A First Information Report (FIR) was lodged against them under Section 420 of the Indian Penal Code and Sections 18 and 19 of TOHO. The investigation was transferred to the Central Bureau of Investigation, the respondent herein. It registered another FIR under Sections 420, 342, 326, 506 and 120-B of the Indian Penal Code and under Sections 18 and 19 of TOHO.
2. Appellant No. 2 was arrested on 10.02.2008 and he was produced before the learned Magistrate on 11.02.2008, whereas appellant No.1 surrendered on 17.02.2008 and produced before the learned Magistrate on 18.02.2008.
3. Respondent filed a complaint under Section 22 of TOHO before the Judicial Magistrate, CBI Cases, Ambala.
4. Contending that the period of 90 days from the date of detention expired on 7.05.2008, the appellants filed application for grant of bail. The learned Magistrate dismissed the said applications.
5. Appellants’ revision applications were dismissed by High Court.
Finding of the Court :
Sections 167(2) and 173(2) of the Cr.P.C. are not applicable in case of this nature.
Result : Appeals dismissed.
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. Applicability of Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (for short “the Code”) in a case where cognizance has been taken under Section 22 of the Transplantation of Human Organs Act, 1994 (for short “TOHO”) on a complaint filed by the respondent herein is the question involved in this appeal.
It arises out of a judgment and order dated 29.01.2009 passed by a learned Single Judge of the Punjab and Haryana High Court in Criminal Revision Nos. 1007 and 1006 of 2008.
3. Appellants are medical practitioners. A First Information Report (FIR) was lodged against them under Section 420 of the Indian Penal Code and Sections 18 and 19 of TOHO at Police Station Palam Vihar, Gurgaon. The investigation was transferred to the Central Bureau of investigation, the respondent herein. It registered another FIR on or about 8.02.2008 under Sections 420, 342, 326, 506 and 120-B of the Indian Penal Code and under Sections 18 and 19 of TOHO.
4. Appellant No. 2 was arrested on 10.02.2008 and he was produced before the learned Magistrate on 11.02.2008, whereas appellant No.1 surrendered on 17.02.2008 and produced before the learned Magistrate on 18.02.2008.
5. Respondent filed a complaint under Section 22 of TOHO before the Judicial Magistrate, CBI Cases, Ambala inter alia stating:
“51. That required authorization u/s 22 of TOHO Act 1994 has been accorded by the Govt. of Haryana vide order dated 11.4.08 in favour of undersigned IO of the case....
52. That as per provisions contained in TOHO Act, 1994, cognizance for the offences punishable under the provision of said Act can only be taken up on a complaint filed by prescribed authority or by a person duly authorized by competent authority. Ms. Firoza Mehrotra, Financial Commissioner & Principal Secretary to the Govt. of Haryana, Home Department being the competent authority has authorized the undersigned IO of this case to file the complaint for the violation of provisions of TOHO Act, 1994 by the said accused persons before a competent court of law. Since offences punishable under the provisions of Indian Penal Code committed by above said accused persons are pursuant to a criminal conspiracy in the same transaction, hence a composite complaint is being filed against all the said accused persons.” (Emphasis supplied)
It was prayed:
“54. It is most respectfully prayed that cognizance under sections 120-B r/w 326, 342, 417, 465, 473, 506 and 307 IPC and Sec. 18, 19 & 20 of Transplanation of Human Organs Act, 1994 and substantive offences thereof may kindly be taken against accused A-1 to A-9 and they may be tried as per law. It is also prayed that permission to conduct further investigation against the arrested persons, namely, Smt. Pooja Kumar, Umesh Kumar and Harpal may kindly be given as also against the others whose names have emerged during investigation.”
6. Inter alia, contending that the period of 90 days from the date of detention expired on 7.05.2008, the appellant No. 2 filed application for grant of bail. By reason of an order dated 9.05.2008, the learned Magistrate opined:
“...For the purposes of taking cognizance of the offences punishable under TOHO Act, a written complaint is required to be filed by the competent authority or the authorized person as required by Section 22 of the aforesaid Act. Therefore, qua the offences under TOHO Act, it seems to be a complaint, but in the opinion of this Court qua the offences committed by the accused punishable under Section 120-B read with Sections 307, 326, 342, 417, 465, 473 and 506 of IPC, it seems to be police report. If period of custody is reckoned of both accused Ms. Linda and Dr. Amit, then it appears to me that this police report had been filed within the period of 90 days being filed on 29.4.2008...”
On the said reasoning, the learned Magistrate dismissed the said application.
7. The appellant No. 2 along with other accused also filed application for grant
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
