IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:

THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE CRR 1374 of 2016 Dr. Dilip Kumar Pahari Vs The State of West Bengal & Anr.

With CRR 442 of 2016 Medica Super Speciality Hospital Vs.

The State of West Bengal & Anr.

For the Petitioner in CRR 1374 of 2016 : Mr. Sandipan Ganguly Mr. Sabyasachi Banerjee Mr. Anirban Dutta Mr. Victor Chatterjee Mr. Amit Ghosh For the Petitioner in CRR 442 of 2016 : Mr. Milon Mukherjee Mr. Biswajit Manna For the State : Mr. Debasish Roy Mr. Saryati Datta Mr. Anand Kesari Heard on : 23.04.2025 Judgment on : 19.05.2025 Dr. Ajoy Kumar Mukherjee, J.

1. Complainant herein who was the director of health services lodged the instant complaint being no. 4109 of 2014, presently pending before Judicial Magistrate 4th Court, Alipore, against twelve accused persons out of which accused no.1, Medica Super Speciality Hospital preferred the application being CRR 442 of 2016 and Dr. Dilip Kumar Pahari, being accused no.7 has preferred the other application being CRR 1374 of 2016 and in both the applications the petitioners/accused persons have prayed for quashing the aforesaid impugned complaint case no. AC 4109 of 2014.

2. Filing court after taking cognizance upon the offence alleged against the petitioners punishable under section 19, 20, 21 of the Transplantation of Human Organs and Tissues Act, 1994 (in short of Act of 1994) read with section 181,182,120B/34 of the IPC, transferred the matter to the court of learned Judicial magistrate 4th court for further proceeding.

3. It is alleged in the written complaint that the accused persons in connivance and in criminal conspiracy with each other as well as in furtherance of their common intention committed the activities which are offence in terms of chapter VI of the Act of 1994. The allegation against the petitioner of CRR 1374 of 2016 is that he has a link with various touts as well as the accused no.3 in transplanting kidneys against consideration and the allegation against accused no.1 is abatement of commission of offence in the said hospital. The complainant alleged in the complaint that on assessment of the result of the enquiry, it is evident that the activity of the accused persons include commercial dealings in human organs like kidney for the purpose of making unlawful gain in contravention of the provisions of section 19, 20, 21 of the Act of 1994 read with section 181/182/120B/34 of IPC.

4. The aforesaid transferee court examined complainant Dr. Biswaranjan Satpati on 21.01.2015 under section 200 Cr.P.C. and thereafter decided to postpone the issuance of process and considering the nature of the offence and graveness of the allegations, directed Joint Commissioner of police (crime) Kolkata to cause an inquiry into the case by himself and to collect the available materials in terms of section 202 of Cr.P.C. and to submit a report by the next date. Thereafter on the basis of said order, one A.K. Das, Assistant Commissioner of Police, Detective Department who is below the rank of Joint Commissioner, on 22.05.2015, sent a report after making alleged enquiry, through Additional C.P. and Joint C.P. (Crime) to the court concerned.

5. Thereafter the court below on perusal of the report submitted by Mr. Das, issued process against all the accused persons under section 204 of the Code of Criminal Procedure. Being aggrieved by the said proceeding, Mr. Gangully on behalf of the petitioner of CRR 1374 of 2016 and Mr. Mukherjee on behalf of petitioner of CRR 442 of 2016, argued that on perusal of the order of cognizance dated 23rd December, 2013 it would appear that the learned Magistrate while taking cognizance did not apply his judicial mind. The said order is itself bad in law on the score of the same lacking any reasoning as well as the same being a typed order, where the magistrate had only put his signature. In fact no case has been made out against the petitioners under any of the provisi