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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ZIYAD RAHMAN A.A., J.
Aster Medcity – Petitioner
Versus
The State of Kerala – Respondent
Crl. M.C. Nos. 798, 1010, 1019, 1995, 3048 of 2022
Decided On : 25-07-2023
The Court quashed the complaint and all further proceedings in the criminal case against the accused persons, who were doctors and empaneled for conducting brain death tests and certification thereof, for the offences punishable under sections 18, 20 and 21 of the Transplantation of Human Organs and Tissues Act, 1994 (TOHO & T Act) and sections 109,120B, 420, 468 read with section 34 of the Indian Penal Code. The Court held that the prosecution was an abuse of the process of law.
Fact of the Case:
The complainant, the wife of a deceased person, alleged that the accused doctors conspired to remove the liver and other organs of her husband before his death to transplant the same to another patient. The complainant also alleged various illegalities and discrepancies in the brain death certification process of her husband.
Finding of the Court:
The Court found that the complaint was maintainable as the complainant had given a notice of not less than sixty days to the Appropriate Authority of the alleged offence and of his intention to make a complaint to the court, as required under section 22(1)(b) of the TOHO & T Act. However, the Court also found that the accused doctors were entitled to protection under section 197 of the Cr.P.C., which requires sanction from the Government before taking cognizance of offences committed by public servants in the discharge of their official duties, as they were empaneled as competent doctors for the certification process as per the notification published by the Appropriate Authority under the TOHO & T Act.
Issues: 1. Whether the complaint was maintainable? 2. Whether the accused doctors were entitled to protection under section 197 of the Cr.P.C.? 3. Whether the prosecution was an abuse of the process of law?
Ratio Decidendi: 1. The Court held that the complaint was maintainable as the complainant had given a notice of not less than sixty days to the Appropriate Authority of the alleged offence and of his intention to make a complaint to the court, as required under section 22(1)(b) of the TOHO & T Act. 2. The Court held that the accused doctors were entitled to protection under section 197 of the Cr.P.C., which requires sanction from the Government before taking cognizance of offences committed by public servants in the discharge of their official duties, as they were empaneled as competent doctors for the certification process as per the notification published by the Appropriate Authority under the TOHO & T Act. 3. The Court held that the prosecution was an abuse of the process of law as the Appropriate Authority, which is an expert body of medical professionals, had already conducted an inquiry and found no malpractices in the liver transplantation of the complainant's husband.
Final Decision: The Court quashed the complaint and all further proceedings in the criminal case against the accused persons.
ORDER :
1. These Crl. M.C. are filed by some of the accused persons in C.C. No. 498 of 2021 on the files of the Judicial First Class Magistrate Court-IX Ernakulam. To be precise, Crl. M.C. No. 1019/2022 is filed by the accused Nos. 1, 2, 4, 5, 6 and 10, Crl. M.C. No. 1010/2022 is filed by the 12th accused, Crl. M.C. No. 3048/2022 is filed by the 13th accused, Crl. M.C. No. 798/2022 is by 11th accused and Crl. M.C. No. 1995/2022 is filed by 8th accused. Altogether there are thirteen accused persons, and the said case was instituted based on a private complaint submitted by the 2nd respondent in Crl. M.C. No 1019/2022. The prayers sought in all the Cr.M.C. are to quash all further proceedings in the said Calendar Case, taken cognizance of by the learned Magistrate based on the said private complainant. (For the sake of convenience, the parties shall be hereinafter referred to as per their respective status in the private complaint. The Annexure shall be hereinafter referred to, as mentioned in Crl. M.C. No. 1019/2022, unless otherwise specifically mentioned).
2. The learned Magistrate has taken cognizance of the offences based on the private complaint, which is produced as Annexure-I, for the offences punishable under 18, 20 and 21 of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter referred to as the TOHO & T Act) and sections 109,120B, 420, 468 read with section 34 of the Indian Penal Code. The issues in these cases are in connection with the declarations of brain death made by the medical practitioners in the 1st petitioner Hospital with the help of the other doctors empaneled by Appropriate Authority constituted under the provisions of the TOHO & T Act, of two patients named Sri Ajay Johny, aged 19 years, and Adv Suresh, and the transplantation of liver of the said Ajay Johny, initially to Advocate Suresh and later to another patient.
3. The private complaint was submitted by the 2nd respondent, with the following allegations:
4. Accused 2 to 7 and 10 are the doctors of the 1st petitioner hospital, and they discussed the case of Advocate Suresh, and accordingly, he was admitted to the hospital at 8.50 P.M. on 4.03.2019. According to the complainant, the doctors, i.e. Accused Nos. 2 to 7 and 10, knew that Adv Suresh did not require liver transplantation and was leading a normal life. According to the complainant, compelling such a person to undergo liver transplantation amounted to cheating. It was also alleged that, at the time when Adv Suresh was informed of the availability of the liver of Sri. Ajay Johny, i.e. at 3.30. P.M. on 4.03.2019, the said Ajay Johny was not declared brain dead and was declared so only at 3.45 AM on 5.03.2019. Thus, Adv Suresh was informed of the brain death of the said
The absence of actual organ transplantation is essential to establish guilt under the Transplantation of Human Organs and Tissues Act; mere allegations without prima facie evidence cannot sustain cri....
Crucial importance is lack of sanction under Section 197 Cr.P.C. As per Section 197 Cr.P.C. it is mandatory for the court to obtain prior sanction from the Government for taking cognizance in respect....
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