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HIGH COURT OF JUDICATURE AT MADRAS
SATISH K. AGNIHOTRI & M. VENUGOPAL, JJ.
Dr. Ganesan – Appellant
Versus
State, represented by The Inspector of Police & Others - Respondent
Crl.O.P.No. 17336 of 2013 & M.P.No. 1 of 2013
Decided on: 18-02-2015
Transplantation of Human Organs and Tissues Act, 1994 - Section 13(3)(iv) - Transplantation of Human Organs Rules, 1995 - Rule 6-F(d)(i) - Indian Penal Code - Sections 406, 420, 465, 468, 471, 419, 294(b), 506(ii) and 197 - Criminal Procedure Code - Section 482 - Quashing of First Information Report – Negotiate - Kidney transplantation – Jurisdiction - Senior Counsel for Petitioner A3 3rd Respondent Defector Complainant lodged a complaint before 2nd Respondent alleging that his father was a chronic diabetic person and he was treated by Petitioner for dialysis - On one such occasion when 3rd Respondent Complaint along with his father met Petitioner A3 in turn he introduced A1 and A2 and stated that they would arrange Donor for his father’s kidney transplantation and in this regard Defector Complainant had to negotiate with them and to incur expenses arising thereto - It was also informed that an amount was paid to Petitioner A3 for transplantation - Proceeding further averment of 3rd Respondent Complainant in complaint is that Donor arranged by A1 and A2 along with his father were sent to Committee formed under Transplantation of Human Organs and Tissues Act, 1994 to Coimbatore and they returned to Salem Mission Hospital where his father was treated by Petitioner after interview by Committee - When 3rd Respondent Complainant approached Petitioner A3 Petitioner replied that operation could not be performed since blood group of Donor and his father were mismatched – Held, Provision as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments then offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for same offence - It is to be noted that in present case F.I.R. was originally lodged in Crime on file of Inspector of Police District Crime Branch and now it was transferred to Inspector of Police CB CID and that F.I.R. was lodged and further a case was registered under different Sections of Indian Penal Code read with 19 of TOHO and Tissues Act, 1994 - It is to be borne in mind that TOHO and Tissues Act, 1994 is enacted to provide for regulation of removal storage and transplantation of human organs for therapeutic purposes and for prevention of commercial dealings in human organs and for matters connected therewith or incidental ancillary thereto – However bearing in mind sensitivity and importance of subject violations of any of provisions of special Act like TOHO and Tissues Act, 1994 is to be dealt with only by authorities concerned enjoined under Act - In present case on hand taking note of fact that TOHO and Tissues Act is a special Act, 1994 and in terms of Section 13(3)(iv) of said Act investigation is to be carried out by an Authorized Officer and no one else can investigate any complaint of breach of any of provisions of TOHO and Tissues Act or any of rules made there under and take appropriate action this Court at this stage to prevent an aberration of justice and to advance cause of substantial justice directs Respondents 1 and 2 to handover investigation to Appropriate Authority viz. an Authorized Officer who is empowered to investigate cases of breach of any of provisions of TOHO and Tissues Act, 1994 in terms of Section 13(3)(iv) of Act, within a period of four weeks from date of receipt of copy of this order - Criminal Original Petition is disposed of
1. The Petitioner/A3 has filed the instant Criminal Original Petition under Section 482 of the Criminal Procedure Code praying for quashing of the F.I.R. in Crime No.29 of 2013 on the file of the 2nd Respondent (now transferred to the 1st Respondent/Inspector of Police, CB CID, Chennai).
2. Resume of Facts:
(i) According to the Learned Senior Counsel for the Petitioner/A3, the 3rd Respondent/Defacto Complainant lodged a complaint before the 2nd Respondent on 12.06.2013 alleging that his father Iyer was a chronic diabetic person (his both kidneys had failed) and he was treated by the Petitioner for dialysis. On one such occasion, when the 3rd Respondent/Defacto Complaint along with his father met the Petitioner/A3, in turn, he introduced Ayyavoo (A1) and Mrs.Saraswathi (A2) and stated that they would arrange Donor for his father’s kidney transplantation and in this regard, the Defacto Complainant had to negotiate with them and to incur the expenses arising thereto. It was also informed that an amount of Rs.1,00,000/- was paid to the Petitioner/A3 (Doctor) for transplantation.
(ii) The stand of the 3rd Respondent/Defacto Complainant is that he paid a sum of Rs.1,00,000/- to the Petitioner/A3 as promised by him and also paid a sum of Rs.2,00,000/- in three instalments to A1 and A2 for arranging the Donors.
(iii) Proceeding further, the averment of the 3rd Respondent/ Complainant in the complaint is that the Donor arranged by A1 and A2 along with his father were sent to the Committee formed under the Transplantation of Human Organs and Tissues Act, 1994 (42 of 1994) to the Coimbatore and they returned to Salem Vinayaga Mission Hospital where his father was treated by the Petitioner after interview by the Committee. When the 3rd Respondent/Complainant approached the Petitioner/A3, the Petitioner replied that the operation could not be performed since the blood group of the Donor and his father were mismatched.
(iv) Moreover, in view of the fact that the transplantation was not done as promised, the 3rd Respondent/Defacto Complainant demanded a sum of Rs.1,00,000/- paid by him earlier to the Doctor and that the Doctor has repaid a sum of Rs.50,000/- and refused to pay the remaining amount of Rs.50,000/-.
(v) The version of the 3rd Respondent/Defacto Complainant is that the Petitioner/A3 had threatened him not to meet him in future in connection with the balance amount. Further, A1 and A2 who had received a sum of Rs.2,00,000/- for arranging the Donor also had not returned the amount. In this background, the 3rd Respondent/Defacto Complainant had filed the complaint.
Petitioner’s Contentions:
3. The Learned Senior Counsel for the Petitioner urges before this Court that the First Information Report lodged by the 3rd Respondent/Complainant is not maintainable either in law or on facts, besides the same is an illegal, unlawful, perverse and motivated one.
4. The Learned Senior Counsel for the Petitioner submits that the Respondents have no jurisdiction either to register or investigate any complaint or any offence under the TOHO and Tissues Act, 1994 is a special statute whereby and whereunder a Committee is constituted to deal with all the complaints and investigate and inquire into the matter pertaining to the 'Transplantation of Human Organs'.
5. The Learned Senior Counsel for the Petitioner contends that as per Section 13(3)(iv) of TOHO and Tissues Act, 1994, the investigation ought to be conducted by an Authorised Officer and no one can investigate the complaint of breach of any of the provisions of the Act or any of the rules made thereunder etc., therefore, the Officer incharge of Police Station is left with no option but to handover the investigation to an 'Appropriate Authority'.
6. The Learned Senior Counsel for the Petitioner brings it to the notice of this Court that the Petitioner/A3 was called for an enquiry pertaining to the complaint dated 10.06.2013 of the 3rd Respondent and that the Petitioner was interrogated by the Supe
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