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2019 Supreme(UK) 346
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
R.C. Khulbe, J.
Jeevan Raut - Appellant
Vs.
State of Uttarakhand - Respondent
First Bail Application No. 792 of 2019
Decided On : 12-09-2019
Pushpa Joshi, Adv., Virendra Sharma, Adv., T.C. Aggarwal, Adv., Mamta Joshi, Adv.
The judgment establishes the principle that in cases involving special Acts like TOHO Act, the procedure prescribed under the special law would be applicable, emphasizing the special nature of such Acts and their distinct fields of application.
Headnote:
Bail - Trafficking of Human Organs - TOHO Act,1994, IPC 420, 120-B, 342, 370 (i) - Sections 18, 19, 20 of TOHO Act,1994 - Sections 370 IPC - The court discussed the applicability of TOHO Act,1994 and IPC sections in a case involving illegal kidney transplantation and human trafficking. It highlighted the wide scope of Section 370 IPC and the special procedure prescribed under TOHO Act, emphasizing that the two provisions occupy different fields. The court also referred to the judgment of the Hon'ble Apex Court in Jeewan Kumar Raut vs. CBI, (2009) AIR SC 2763, which held that the procedure prescribed under TOHO Act would be applicable in cases under the Act, as it is a special Act.
Fact of the Case:
The case involved illegal kidney transplantation and human trafficking, where the accused, Jeevan Raut, was alleged to have played an active role in the illegal transplant operation and was involved in deceiving innocent persons. The charge sheet was filed under IPC sections 420, 120-B, 342, 370 (i) and Sections 18, 19, 20 of TOHO Act,1994.
Finding of the Court:
The court found that the applicant, Jeevan Raut, did not deserve bail at this stage considering the gravity of the offence and the role attributed to him in the illegal kidney transplant operation and human trafficking.
Issues: The issues involved the applicability of TOHO Act,1994 and IPC sections in the case, the role of the accused in the illegal transplant operation, and the question of bail for the applicant.
Ratio Decidendi: The court emphasized the wide scope of Section 370 IPC and the special procedure prescribed under TOHO Act, highlighting that the two provisions occupy different fields. It also referred to the judgment of the Hon'ble Apex Court in Jeewan Kumar Raut vs. CBI, (2009) AIR SC 2763, which held that the procedure prescribed under TOHO Act would be applicable in cases under the Act, as it is a special Act.
Final Decision: The bail application was dismissed, and it was observed that the decision would not affect the final merits of the trial.
JUDGMENT :
R.C. Khulbe, J.
Applicant Jeevan Raut has sought his release on bail in connection with Case Crime No.256 of 2017 under Sections 420, 120-B, 342, 370 (i) IPC at P.S. Doiwala, District Dehradun.
2. Brief facts of the case are that a first information report was lodged by the Station House Officer, Doiwala at Police Station Doiwala, Dehradun on 11.09.2017 at about 6:15, which was registered as Case Crime No. 256 of 2017 under Sections 420, 120-B, 342, 370 (1) of IPC and Sections 18, 19 and 20 of the Transplantation of Human Organs and Tissues Act,1994 (from hereinafter referred to as "TOHO"), inter alia, against the present applicant.
3. The FIR discloses that the SHO got information at about 02:20 am on 11.09.2017 that in Gangotri Charitable Hospital (run in the premises of Uttaranchal Dental Institute Complex), a criminal activity of removal of kidney (for its transplantation elsewhere), is being carried out. The FIR further states that four persons have already been sent to Delhi for enquiry, and he has received information from the Haridwar Police that some of the persons who had their kidney removed in the hospital were being taken away to Delhi in an Innova Car No. UK08 TA 5519 which was checked by a police party; and the persons were detained. The car had five passengers, including two women. These five persons gave their address of distant places, which are outside of Uttarakhand, such as in Gujarat and Bengal. On interrogation it was revealed that each one of them had his/her kidney removed. They were assured that their kidney would be removed by a team of specialist doctors and no harm would be caused to them. The hospital where the kidneys were to be removed is in Dehradun, near the Airport. They were told that the recipients of the human organs are "Sheikhs" of Arab countries and hence the donor will be suitably compensated. A job was also promised to each one of them. On this assurance, they agreed for the removal of their kidney. They complained that they have not received any money so far, and named a person called "Javed", who was an intermediary between them and the doctor.
4. After investigation charge sheet has been submitted against the accused, namely, Dr. Amit Raut, Jeevan Raut, Javed Khan, Jagdish Bhai, Rajeev Chaudhari, Pramod @ Billu, Abhishek Sharma, Smt. Sarla Shemwal, Smt. Anupma Sharma, Shri Niwash Chauhan, Arun Kumar Pandey, Dr. Ashok Yogi, Dr. Sanjay Das and Dr. Sushma Das.
5. It is argued by learned Sr. Counsel for the applicant that the applicant has falsely been implicated in the crime; he had no concern with the present crime. Neither he was the Doctor nor was the owner of the hospital. Apart from that, co-accused, namely, Pramod Kumar, Anupma Chaudhari, Sri Niwas Chauhan, Ashok Yogi, Javed Khan, Satendra Kumar Baliyan and Ankit Kumar Baliyan have been enlarged on bail by this High Court, and on the ground of parity, the accused is also entitled for bail.
6. It is also argued by learned Sr. Counsel for the applicant that TOHO Act is applicable in the present matter; while a charge sheet has been submitted against the present accused under Sections 420, 120-B, 342, 370 (i) IPC, which is illegal and no offence is made out against him. Since the complaint under TOHO Act has been filed under Sections 18/19/19-A/20 of TOHO Act and TOHO Act being a special act, it will override the general law i.e. the Indian Penal Code; the subsequent charge sheet, filed under the Indian Penal Code, cannot go on and the accused must be bailed out.
7. On the other hand, learned counsel for the State argued that the present accused is the real brother of co-accused Dr. Amit Raut. He was the team member of Dr. Amit Raut, who conducted illegal transplantation of kidney. During the kidney transplant operation he always used to help the main accused Dr. Amit Raut and another co-accused. During the course of investigation Rs.33,73,000/-, luxury car, certificate of doctors working in the hospital, bank details, medical t
