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 criminal charges.

ORDER :

T.V. THAMILSELVI, J.

Challenging the impugned order passed by the learned District-cum-Judicial Magistrate, Pennagaram, Dharmapuri District, in Criminal M.P. No.2389 of 2022 in C.C. No.17 of 2021, the first accused has preferred the present revision.

2. Before the Trial Court, the petitioner filed an application under Section 245(2) of the Code of Criminal Procedure, seeking to discharge him from the criminal proceedings on the ground that there is no prima facie material available to prosecute him for the alleged offences under Sections 19(b), 19(d) and 19(g) of the Transplantation of Human Organs and Tissues (TOHO) Act, 1994. Objections were raised by the prosecution. After hearing both sides, the learned Trial Judge dismissed the application, holding that the reasons assigned by the petitioner require appreciation of detailed evidence and that, at this stage, the petitioner cannot be discharged. Aggrieved by the said order, the present revision has been filed.

3. Brief Facts of the Case: The respondent / de facto complainant lodged a complaint before the Judicial Magistrate Court, Pennagaram. The respondent, Joint Director of Medical and Rural Health Services, Kuppur, filed a complaint under Section 13 (4) of the TOHO Act read with Section 200 Cr.P.C. against three accused persons. The petitioner herein was arrayed as the first accused, and he is a Nephrologist by profession, and the other two accused are private individuals.

4. The case of the prosecution is that in the year 2021, the petitioner, who was working as a Nephrologist at Vinayaga Mission Hospital, along with the other accused, arranged a kidney transplantation surgery for one V.Iyyer. It is alleged that, in contravention of the provisions of the TOHO Act, 1994, the petitioner arranged a donor by falsifying affidavits, portraying the donor as a willing person to donate a human organ in exchange for monetary consideration. He further alleged that the petitioner undertook to arrange the entire illegal transaction in his capacity as a Kidney Transplant Surgeon and as the Head of the Kidney Transplant Accreditation Committee of Vinayaga Mission Hospital. Thus, according to the prosecution, the petitioner violated the provisions under Sections 19(b), 19(d) and 19(g) of the TOHO Act, 1994.

5. Based on the said allegations, a private complaint was lodged by the respondent, which was taken cognizance of and numbered as C.C. No.17 of 2021 against the three accused. Upon receipt of copies, the petitioner filed a discharge petition stating that after completing his medical studies in the year 2007, he has been practicing as a Nephrologist with an unblemished professional career and that he has been falsely implicated in this case with respect to an alleged illegal kidney transplantation said to have taken place in the year 2013. The petitioner contended that he has not committed any offence and that there is no prima facie material on the side of the de-facto complainant to connect him with the alleged crime. Therefore, he sought discharge from the entire prosecution. However, the said discharge petition was dismissed by the Trial Court.

6. The learned counsel for the petitioner submitted that the present proceedings were initiated by the respondent on 13.06.2021 for an alleged offence said to have occurred in the year 2011, with an inordinate and unexplained delay, which itself demonstrates the absence of prima facie material against the petitioner. He further contended that although