JUDGMENT :

This criminal revision has been filed by the accused/revisionists against the order dated 07.07.2018 passed by the learned Third Additional Sessions Judge, Dehradun, by which their application for discharge was considered (in terms of Section 227 of CrPC), and dismissed.

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, 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 revisionists.

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 kidney 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. The FIR ends with the remarks of the SHO that this act at the hands of the accused persons is an offence under Sections 120B, 342, 420, 370 (1) of IPC and Sections 18, 19 & 20 of the Transplantation of Human Organs and Tissues Act, 1994 and therefore an FIR is being lodged.

4. However, after investigation charges were not filed by the Investigating Officer under any of the offences under TOHO. A charge-sheet was filed only under Sections 420, 370, 342 & 120-B IPC. A different procedure has been prescribed in law as regarding the offences under TOHO, to which we shall revert in a while.

5. As this case involves, inter alia, an appreciation of different penal provisions, both under IPC and TOHO, the provisions will be referred, but as of now the ingredients of Section 370 IPC needs to be appreciated first.

6. In the year 1913, Section 370 IPC was amended by Act No. 13 of 2013. Section 370 IPC after amendment in the year 2013 reads as under:

“Section 370. Trafficking of person.- (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by-

First.- using threats, or

Secondly.- using force, or any other form of coercion, or

Thirdly.- by abduction, or

Fourthly.- by practising fraud, or deception, or

Fifthly.- by abuse of power, or

Sixthly.- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Explanation 1.- The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanatio