[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION ([CASE NUMBER] [On note for speaking to minutes of order dated 31/01/2017 in [CASE NUMBER] ] [ENTITY] Applicant(s) Versus [ENTITY] & 2 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No[CASE NUMBER] 1 MR [ENTITY], PUBLIC PROSECUTOR for the Respondent(s) No[CASE NUMBER] 1 CORAM: HONOURABLE MS JUSTICE [ENTITY] Date : 29/03/2017 ORDER BELOW NOTE FOR SPEAKING TO MINUTES 1[CASE NUMBER] By moving this Note for Speaking to Minutes, request is made to make corrections of typographicalerrorsoccurredatpages35and39 oftheorderdated31[CASE NUMBER]1[CASE NUMBER]2017[CASE NUMBER]Requestisacceded to[CASE NUMBER] 2[CASE NUMBER] Thedate"23[CASE NUMBER]7[CASE NUMBER]2017"mentionedatpage35ofthe order be read as "23[CASE NUMBER]7[CASE NUMBER]1997" and the words "[CASE NUMBER]" mentionedatlastparagraphoftheorderatpage Page 1 of 2 [ACT] Page 1 of 41 Created On Sun Aug 13 06:14:43 IST 2017 1 of 41 [CASE NUMBER] ORDER 39 be read as " [CASE NUMBER]"[CASE NUMBER] The order dated 31[CASE NUMBER]1[CASE NUMBER]2017 be read accordingly[CASE NUMBER] Fresh copy of the writ be issuedaccordingly[CASE NUMBER] 3[CASE NUMBER] NoteforSpeakingtoMinutesstandsdisposedof accordingly[CASE NUMBER] (MS [ENTITY], J[CASE NUMBER]) SUDHIR Page 2 of 2 [ACT] Page 2 of 41 Created On Sun Aug 13 06:14:43 IST 2017 2 of 41 [CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION ([CASE NUMBER] With [CASE NUMBER] In [CASE NUMBER] [ENTITY] Applicant(s) Versus [ENTITY] & 2 Respondent(s) Appearance: MR [ENTITY], SR[CASE NUMBER] ADV[CASE NUMBER] with MR [ENTITY], ADVOCATE for the Applicant(s) No[CASE NUMBER] 1 MR [ENTITY], PUBLIC PROSECUTOR for the Respondent(s) No[CASE NUMBER] 1 CORAM: HONOURABLE MS JUSTICE [ENTITY] Date : 31/01/2017 ORAL ORDER
1[CASE NUMBER] PetitionerhasfiledthispetitionunderArticle 226 of the [ACT] read with [SECTION] and [SECTION] of the [ACT] inter alia challenging the investigation carried out by the Police Inspector,PetladRuralpolicestation,District:
AnandinconnectionwithC[CASE NUMBER]R[CASE NUMBER]No[CASE NUMBER]I17of2016for theoffencespunishableundersections365,342, ` [ACT] Page 3 of 41 Created On Sun Aug 13 06:14:43 IST 2017 3 of 41 [CASE NUMBER] ORDER 420, 326, 328, 120B and 506(2) of the [ACT], raising following questions for consideration: "(i) Whether the Respondents are absolutely restrained/restricted from invoking the provisions of [ACT] terms of Clause 1 of Article 252 of the [ACT], therefore, having no applicabilityintheStateofGujarat?
(ii) Whether the entire proceedings initiated by the Respondent No[CASE NUMBER]2 Police Officials are nonestandwithoutjurisdictioninabsenceof anypowertoeitherinvestigateorarrestany personforallegedcommissionofoffencesunder [ACT]
(iii) Whether the Respondent No[CASE NUMBER]2 has any authority to register the impugned FIR for allegedoffencesunderTransplantationofHuman [ACT] as Police Inspectordoesnotfallwithinthepurviewof expression 'Appropriate Authority' which is aloneempoweredunderSection[SECTION]ofthe [ACT]toinvestigateanycomplaintofbreach ofanyoftheprovisionsoftheActoranyof therulesmadethereunderandtakeappropriate action?
(iv) Whethertheentireproceedingsrelatingto theregistrationoftheFIRandconsequential investigations are completely without jurisdiction and, thus, null and void ab initio?
(v) WhethertheactionsoftheRespondentNo[CASE NUMBER]2 arepatentlyviolativeofFundamentalRightsof thepetitionerincludingthoseenvisagedunder Articles14,19and21oftheConstitutionof India?
` [ACT] Page 4 of 41 Created On Sun Aug 13 06:14:43 IST 2017 4 of 41 [CASE NUMBER] ORDER
2[CASE NUMBER] ThepetitionerobtainedadegreeofBachelorof Homeopathic Medicine and Surgery ("B[CASE NUMBER]H[CASE NUMBER]M[CASE NUMBER]S" for short) from Bhopal, Madhya Pradesh in the year 1991[CASE NUMBER] He was practicing at a dental clinic at Gurgaon till recently, where facilities like Quantron Resonance System (QRS), a German techniqueforcellrevitalizationwasavailable[CASE NUMBER] He has been alleged of commission of offence under the [ACT] ("the [ACT]" for short)[CASE NUMBER] AccordingtotheFirstInformationReport,which hasbeenlodgedbytheGujaratPolice,thefirst informantwasinneedofmoney,andtherefore,he made a request to the present petitioner, initially by borrowing a sum of Rs[CASE NUMBER]2000/ by mortgaginghismotorcycle[CASE NUMBER]Sincefirstinformant wasinneedofRs[CASE NUMBER]20,000/,heagainapproached accusedNo[CASE NUMBER]1,whoinformedhimthathewouldgive Rs[CASE NUMBER]30,000/ but he needed to collect it from Anand[CASE NUMBER]
3[CASE NUMBER] WhenfirstinformantwenttoAnandtocollectthe moneyfromaccusedNo[CASE NUMBER]1RafikbhaiAhmedbhaiVohra resident of Pandoli, Taluka: Petlad, he was ` [ACT] Page 5 of 41 Created On Sun Aug 13 06:14:43 IST 2017 5 of 41 [CASE NUMBER] ORDER informed that they needed to go to Delhi for payment, and therefore, he accompanied him to Delhi and checked in at a guest house opposite therailwaystation[CASE NUMBER]AccusedNo[CASE NUMBER]1hadtakenthe electioncardofthefirstinformantandreturned at around 4:00 p[CASE NUMBER]m[CASE NUMBER] with accused No[CASE NUMBER]2Javedbhai Delhiwala, who asked him to smell one bottle, whichputhimtounconsciousness[CASE NUMBER]Hewasinthe hospital and when he became conscious, he had pain on his left side[CASE NUMBER] It was informed to him thathiskidneywasremovedbyoperation[CASE NUMBER]Hewas takenfromhospitalbyaccusedNo[CASE NUMBER]2totheguest house and from that guest house[CASE NUMBER] accused No[CASE NUMBER]1 tookhimtoAnandbytrain[CASE NUMBER]Thefirstinformant received Rs[CASE NUMBER]2,30,000/ from [ENTITY] of accused No[CASE NUMBER]1[CASE NUMBER] This removal of kidney was without informing him and on account of this fraud committed upon him, he lodged the First [CASE NUMBER][CASE NUMBER][CASE NUMBER] Anandpolicestationfortheoffencespunishable undersections365,342,420,326,328,120Band 506(2)oftheIndianPenalCode[CASE NUMBER]Requestwasmade bytheInvestigatingOfficertoaddsection329 ` [ACT] Page 6 of 41 Created On Sun Aug 13 06:14:43 IST 2017 6 of 41 [CASE NUMBER] ORDER of the [ACT] and [SECTION] of the [ACT][CASE NUMBER]
4[CASE NUMBER] Itisthesayofthefirstinformantthatthere were others in the very village of his i[CASE NUMBER]e[CASE NUMBER] PandoliaofTaluka:Petlad,District:Anandwhose kidneys had been removed[CASE NUMBER] Some of the accused have been acting as touts/middlemen and the kidneyshadbeensoldtodifferenthospitalsin IndiaaswellasoutsideIndia[CASE NUMBER]Remandwassought by the police of Dr[CASE NUMBER][ENTITY], [ENTITY] Courton17[CASE NUMBER]3[CASE NUMBER]2016[CASE NUMBER]Accordingtothepetitioner, he is victimized since he is the brother of accusedDr[CASE NUMBER][ENTITY]Itis hissaythatthe[ACT]isaspecialenactment and would prevail over the general law[CASE NUMBER] It proscribes bars and prohibits any investigating officermuchlesstheofficialsofGujaratPolice to conduct investigations as such function lies with only "Appropriate Authority" constituted undersection13ofthe[ACT][CASE NUMBER]
5[CASE NUMBER] Respondent No[CASE NUMBER]2 has arrested three persons for ` [ACT] Page 7 of 41 Created On Sun Aug 13 06:14:43 IST 2017 7 of 41 [CASE NUMBER] ORDER the offences punishable under the [ACT] as well as under the [ACT] and the petitioner'spoliceremandalsohadbeensought[CASE NUMBER] Itishissaythatingrossmisuseofpowersby theinvestigatingagency,searcheshavebeenmade and clinic has been shut down[CASE NUMBER] The police is lookingforDr[CASE NUMBER][ENTITY],theelderbrotherof thepetitioneraboutwhom,hehasnoknowledge[CASE NUMBER] Itisthesayofthepetitionerthatthe[ACT] wasadoptedinitiallybysomeoftheStates[CASE NUMBER]The [ENTITY] has not adopted the said Act[CASE NUMBER] VideanotificationunderClause1ofArticle252 oftheConstitutionofIndia,[ACT] ("the [ACT]) were amended by different notifications, which have also not been adopted bytheStateofGujarat[CASE NUMBER]
6[CASE NUMBER] It is the say of the petitioner that the [SECTION] defines "competent authority" which means the Head of the institution or hospital carrying out transplantation or committee constituted by the head of the institution or hospital for the purpose carrying out ` [ACT] Page 8 of 41 Created On Sun Aug 13 06:14:43 IST 2017 8 of 41 [CASE NUMBER] ORDER transplantation[CASE NUMBER] No qualification is prescribed for appointment of the person as competent authority[CASE NUMBER]Rule29ofthe[ACT]Rulesprescribes qualification of of Transplant Coordinator, who himselfrequiresabachelor'sdegree,whereasthe competent authority has no qualification[CASE NUMBER] On variousgroundsraisedbeforethisCourt,ithas been urged that the proceedings are nonest, unconstitutional and arbitrary[CASE NUMBER] Therefore, this petitionseekingfollowingreliefs: "13[CASE NUMBER] In view of the facts and circumstances mentionedabove,itis,therefore,respectfully prayed that this Hon'ble Court may kindly be pleasedto:
a) Issueappropriatewrit,orderordirection especially in the nature of Mandamus or ProhibitionrestrainingtheRespondentNos[CASE NUMBER]1& 2 from invoking the provisions of Transplantation of Human Organs and Tissues Act,1994enactedbytheCentralGovernmentby way of Transplantation of Human Organs (Amendment)Act,2011astheStateofGujarat hasnotyetadoptedthesaidnewActintermsof Clause 1 of Article 252 of Constitution, therefore, provisions of the said Act and/or Rulesthereunderhavenoapplicabilityinthe StateofGujarat;
b) Issue appropriate writ, order or directionsespeciallyinthenatureofMandamus as well as Certiorari humbly beseeching this Hon'bleCourttoset aside and quash allthe proceedingsquathePetitionerarisingoutof FIR being ICR No[CASE NUMBER]17 of 2016 registered with PetladRuralPoliceStation,DistrictAnandon 14/03/2016undersections365,342,420,326, 328,120Band506(2)oftheIndianPenalCode, ` [ACT] Page 9 of 41 Created On Sun Aug 13 06:14:43 IST 2017 9 of 41 [CASE NUMBER] ORDER 1860andaddingsection329oftheIndianPenal Code, 1860 as also [SECTION] of the Transplantation of Human Organs Act, 1994(AnnexureA&B),astheRespondentNo[CASE NUMBER]2 Policeofficialhasabsolutelynojurisdiction, power or authority to either investigate or arrest any person for alleged commission of offences under [ACT], therefore, entire proceedings are completely nonest, otiose,nugatory,redundantandclearlyhitby maxims "Debile fundamentum fallit onus"; meaning thereby, in case a foundation is removed,thesuperstructurefalls;
c) Issue appropriate writ, order or directions especially in the nature of Mandamus/Prohibition restraining the Respondentsfromproceedinginanymannerwith thepurportedinvestigationsarisingoutofFIR beingICRNo[CASE NUMBER]17of2016registeredwithPetlad RuralPoliceStation,DistrictAnandasneither theRespondentNo[CASE NUMBER]2hasauthoritytoregister the First Information Report for alleged offences under [ACT] nor does the Respondent No[CASE NUMBER]2 fall within the purview of expression 'Appropriate Authority' which is aloneempoweredundersection[SECTION]ofthe Acttoinvestigateanycomplaintofbreachof anyoftheprovisionsoftheActoranyofthe rules made thereunder and take appropriate action[CASE NUMBER]
d) Issue appropriate writ, order or directions especially in the nature of Quo Warranto calling upon Respondent No[CASE NUMBER]2 (police officials investigating into the FIR (supra astohow,whyandunderwhatauthorityoflaw has he exercised his purported powers and jurisdictiontoinvestigateoffencesunder[ACT],1994andinvokinghispowertoarrestthe Petitionerforthesaidoffences[CASE NUMBER]
e) Pending admission, final hearing and disposal of the instant Writ Petition, this Hon'ble Court may be pleased to stay all furtherproceedingsarisingoutofimpugnedFIR (AnnexureA&B)andtheRespondentNo[CASE NUMBER]2police officialsmayfurtherberestrainedfromtaking any coercive action/steps against the ` [ACT] Page 10 of 41 Created On Sun Aug 13 06:14:43 IST 2017 10 of 41 [CASE NUMBER] ORDER petitioner[CASE NUMBER]
f) Issueanyotherwrit,orderordirection, which this Hon'ble Court may deem fit and appropriateinthefactsandcircumstancesof thecase,maykindlybepassedinfavourofthe petitioner;
g) Costsofthepetitionbeawardedinfavour ofthepetitioner[CASE NUMBER]"
7[CASE NUMBER] Affidavitinreplyisfiledforandonbehalfof the respondents[CASE NUMBER] Ms[CASE NUMBER] [ENTITY], Deputy SuperintendentofPolicewhohasstatedonoath that she is conversant with the facts and circumstancesaswellasthecontroversy[CASE NUMBER]Shehas denied each and every allegation made in this petition[CASE NUMBER] According to her, for commission of offencesundertheIndianPenalCodeaswellas under [SECTION] of the [ACT], the First [CASE NUMBER][CASE NUMBER][CASE NUMBER] to be registered with Petlad Rural police station, District: Anand[CASE NUMBER] It is further urged that the contention that the [ACT] will not haveapplicability,hasnobasis[CASE NUMBER]
8[CASE NUMBER] Brieffactsrelevanttotheadjudicationofthe matteralsohavebeengivenasunder:
9[CASE NUMBER] According to the respondent, on 14[CASE NUMBER]3[CASE NUMBER]2016, a ` [ACT] Page 11 of 41 Created On Sun Aug 13 06:14:43 IST 2017 11 of 41 [CASE NUMBER] ORDER News item was reported in a regional daily newspaper,"DivyaBhaskar"whereinitwasstated thatanillegalkidneytransplantationrackethas beenbustedinAnandwhereinnocentvictimsfrom PandolivillageofPetladTalukahavefallenprey tosuchracket[CASE NUMBER]TheSuperintendentofPolicetook seriousnoteofthesaidNewsitemandinstructed the office attached to Petlad Rural police station,Anandtoinquireintothesameandunder the supervision of Deputy Superintendent of Police, primary inquiry was initiated by victims have been identified and statements of these victims and the Sarpanch were recorded[CASE NUMBER] TheywereimmediatelytakentothePetladCivil Hospitalandforexpertmedicalopiniontheywere also referred to the Ahmedabad Civil Hospital[CASE NUMBER] Names of four persons, namely, Mr[CASE NUMBER][ENTITY],Mr[CASE NUMBER][ENTITY],Mr[CASE NUMBER][ENTITY] Dr[CASE NUMBER]MukeshChaudharywererevealedbythevictims, andtherefore,thecomplaintcametobelodgedby one Shri [ENTITY] of the aforementioned First Information Report[CASE NUMBER] Later ` [ACT] Page 12 of 41 Created On Sun Aug 13 06:14:43 IST 2017 12 of 41 [CASE NUMBER] ORDER on, [SECTION] of the [ACT] and [SECTION] of the [ACT] came to be added[CASE NUMBER]Thereareabout13victimswhohavebeen named in the said reply[CASE NUMBER] The investigation revealed the names of one Dr[CASE NUMBER][ENTITY] residentofValod,KhakaraFaliya,Taluka:Valod, District:Tapi[CASE NUMBER][ENTITY], resident of Ahmedabad, Chandola Talav[CASE NUMBER] [ENTITY], residentofPandoli,HoliChakla,[ENTITY], resident of Santacruz (West), Mumbai and Dr[CASE NUMBER][ENTITY], resident of D[CASE NUMBER]L[CASE NUMBER]F[CASE NUMBER]B[CASE NUMBER]5, Section 29, opposite to Amal Field Primary School,Plaza Tower, Gurgaon, State:
Haryana[CASE NUMBER]
10[CASE NUMBER] The brother of the present petitioner and the three accused came to be arrested and produced[CASE NUMBER] Their remand was sought[CASE NUMBER] It was revealedthatoutofthetotalnumberofvictims, fiveweretakentoDelhiandoperated,whereasa few were taken to Chennai and operated and few werealsotakentoSriLankaandtwoofthemwere operatedatNadiad[CASE NUMBER]
` [ACT] Page 13 of 41 Created On Sun Aug 13 06:14:43 IST 2017 13 of 41 [CASE NUMBER] ORDER
11[CASE NUMBER] So far as the present petitioner is concerned, it was revealed that he is not a doctor[CASE NUMBER] Till date, he is not an accused and no warrantisissued[CASE NUMBER]Hisbrotherhasqualification ofBAMS,whodoesnothavequalificationofMDor MS[CASE NUMBER] Without following any legal course, the complainant was induced by offering money[CASE NUMBER] The principalaccusedDr[CASE NUMBER][ENTITY] at Delhi[CASE NUMBER] However, the petitioner is not available at his residence or at any place[CASE NUMBER] On 26[CASE NUMBER]7[CASE NUMBER]2016,thepetitionerandhisbrotherDr[CASE NUMBER][ENTITY] are also accused in similar such offences registeredwithC[CASE NUMBER]B[CASE NUMBER]I[CASE NUMBER]Delhi[CASE NUMBER]
12[CASE NUMBER] His brother was proved guilty and was awarded sentence of 7 years and Rs[CASE NUMBER]60 lakhs as fine[CASE NUMBER]Heisonbailpendingtheappealpreferred by him[CASE NUMBER] The petitioner, however, was acquitted andhisbrotherDr[CASE NUMBER][ENTITY]abscondedfromthe policesecurityon8[CASE NUMBER]8[CASE NUMBER]2016whilereturningfrom Delhi to Anand and a departmental inquiry has beeninitiatedagainstthenegligentofficerswho have been even suspended[CASE NUMBER] A case is also ` [ACT] Page 14 of 41 Created On Sun Aug 13 06:14:43 IST 2017 14 of 41 [CASE NUMBER] ORDER registeredatAjmerRailwaypolicestationunder [ACT]Enforcement Directoratealsohasseizedvariouspropertiesof Dr[CASE NUMBER][ENTITY][CASE NUMBER]Thepetitionerhassincecontended thattheInvestigatingOfficerhasnopowernor authoritytoinvestigateundertheprovisionsof the [ACT], it is urged that the police has power to investigate, as various sections of IndianPenalCodealsoareeffected[CASE NUMBER]Itisurged thatveryseriousoffencescametobecommitted forfinancialgainsbythepetitionerandothers[CASE NUMBER]
13[CASE NUMBER] The Government of Gujarat has adopted the [ACT]underArticle252(1)ofthe[ACT] by statutory motion passed by the Gujarat Legislative Assembly on 19[CASE NUMBER]7[CASE NUMBER]2012[CASE NUMBER] The appropriate authority, according to the investigating agency, was approached and had sought permission to prosecute the accused in respect of the [ACT][CASE NUMBER] The authority had authorized the Anand District police in respect of the alleged offence by following the provisionsofsection22ofthe[ACT][CASE NUMBER]Itis argued that assuming that at the time when ` [ACT] Page 15 of 41 Created On Sun Aug 13 06:14:43 IST 2017 15 of 41 [CASE NUMBER] ORDER investigation had begun, the permission of appropriate authority was not there, any defect or irregularity in the investigation could be curedandthatcannotbethegroundforrejection of the prosecution's case[CASE NUMBER] The petitioner is arrayedasaccusedthepremiseswherethisracket is going on is in the name of the petitioner[CASE NUMBER] Again, his brother, the coaccused is still absconding and is not cooperating with the investigation[CASE NUMBER] So far as offences under [ACT]sufficientmaterialis available, according to the respondents, to attract those provisions against the petitioner and other accused[CASE NUMBER] The arrest of both the petitioner and his brother would unearth huge scamasallvictimsbelongtothelowesteconomic strateofthesociety[CASE NUMBER]Itisalsotheirsaythat anyinvalidityofconsequentialinvestigationin the beginning would not vitiate the entire proceedings unless it results in miscarriage of justice[CASE NUMBER]
14[CASE NUMBER] This Court has heard at length learned advocates for both the sides[CASE NUMBER] Learned senior ` [ACT] Page 16 of 41 Created On Sun Aug 13 06:14:43 IST 2017 16 of 41 [CASE NUMBER] ORDER advocate Mr[CASE NUMBER][ENTITY] appearing with learned advocate Mr[CASE NUMBER][ENTITY] has taken this Courttotheprovisionof[ACT]andalsothe decisions of the Apex Court as to who can investigate into the matter[CASE NUMBER] He has urged that the proceedings in the present form cannot be sustained[CASE NUMBER] He also has sought to rely upon the decisionoftheApexCourtinthecaseof State ofHaryanaandothersvs[CASE NUMBER][ENTITY]Lalandothers reportedinAIR1992SC604tourgethat"history of personal liberty is largely the history of insistenceofobservanceofprocedure[CASE NUMBER]Observance ofprocedurehasbeenthebastionagainstwanton assaultsonpersonallibertyovertheyears[CASE NUMBER]The onlyguaranteeofpersonallibertyforaperson isthatheshallnotbedeprivedofitexceptin accordancewiththeprocedureestablishedbylaw[CASE NUMBER]
15[CASE NUMBER] LearnedPublicProsecutorMr[CASE NUMBER][ENTITY] the State has made his submissions strenuously and fervently and he has urged that there does not arise any question of quashment of First InformationReportasitdoesnotfallunderthe parameter set out in the case of [ENTITY] ` [ACT] Page 17 of 41 Created On Sun Aug 13 06:14:43 IST 2017 17 of 41 [CASE NUMBER] ORDER Lal(supra)[CASE NUMBER] He also urged that petitioner has authority to investigate the offences under the [ACT][CASE NUMBER] He further has urged that while under the [ACT] assuming that at the timeofinitiation,nopermissionwasobtainedby theconcernedauthoritythatpersecannotbethe groundforthisCourttoquashthecomplaintas duringthecourseoftheproceedings,permission alsohasbeensoughtoftheappropriateauthority and he has authorised the investigating officer astheauthorisedauthority[CASE NUMBER]
16[CASE NUMBER] Havingthusheardlearnedadvocatesforboth thesidesandalsohavingexaminedthematerial on record, this Court notices that First Information Report being [CASE NUMBER] registered with Petlad Rural police station was initially for the offences punishable under [SECTION], [SECTION]Later on [SECTION] of the [ACT] and section19ofthe[ACT]wasaddedduringthe courseoftheinvestigation[CASE NUMBER]
17[CASE NUMBER] Taking into consideration the decision of ` [ACT] Page 18 of 41 Created On Sun Aug 13 06:14:43 IST 2017 18 of 41 [CASE NUMBER] ORDER [ENTITY]Lal(supra),fortheCourttoconsiderthe requestofquashmentofcomplaint,thewelllaid downparametersoftheCourtareasfollows:
"101[CASE NUMBER] Theclassic exposition ofthe law is found in [PRECEDENT][CASE NUMBER] In this case, [ENTITY], CJ in his concurringseparatejudgmenthasstatedthat "iftheFIRdoesnotdisclosethecommission ofacognizableoffence,theCourtwouldbe justified in quashing the investigation on the basis of the information as laid or received"[CASE NUMBER] Justice [ENTITY] who wrote the main judgment in that case with which [ENTITY], CJ and [ENTITY], J[CASE NUMBER] agreed haslaid[CASE NUMBER]thelegalpropositionasfollows:
(atpp[CASE NUMBER]971and972ofAIR) " the legal position is well settled[CASE NUMBER] The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigationintothecaseandwillpermit investigationintotheoffenceallegedtobe completed;if,however,thematerialsdonot discloseanoffence,noinvestigationshould normally be permitted Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice[CASE NUMBER] If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and propertymaybeputtojeopardyfornothing[CASE NUMBER] The liberty and property of any individual are sacred and sacrosanct and the Court zealouslyguardsthemandprotectsthem[CASE NUMBER]An investigationiscarriedonforthepurpose of Gathering necessary materials for establishingandprovinganoffencewhichis disclosed[CASE NUMBER] When an offence is disclosed, a proper investigation in the interests of ` [ACT] Page 19 of 41 Created On Sun Aug 13 06:14:43 IST 2017
19 of 41 [CASE NUMBER] ORDER justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book[CASE NUMBER] In the absenceofaproperinvestigationinacase whereanoffenceisdisclosed,theoffender may succeed in escaping from the consequences and the offender may go unpunishedtothedetrimentofthecauseof justice and the society at large[CASE NUMBER] Justice requires that a person who commits an offencehastobebroughtto bookand must be punished for the same[CASE NUMBER] If the Court interferes with the proper investigation in acasewhereanoffencehasbeendisclosed, the offence will go unpunished to the serious detriment of the welfare of the societyandthecauseofjusticesuffers[CASE NUMBER]It isonthebasisofthisprinciplethatthe Court normally does not interfere with the investigationofacasewhereanoffencehas beendisclosed " Whetheranoffencehasbeendisclosedornot must necessarily depend on the facts and circumstances of each particular case Ifonaconsiderationofthe relevant materials, the Court is satisfied thatanoffenceisdisclosed,theCourtwill normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materialsforprovingtheoffence[CASE NUMBER] xxxxxxxxx xxxxxxxxx
108[CASE NUMBER] In the backdrop of the interpretation of the various relevant provisions of the CodeunderChapterXIVandoftheprinciples oflawenunciatedbythisCourtinaseries ofdecisionsrelatingtotheexerciseofthe extraordinarypowerunderArticle226orthe inherent powers under [SECTION] of the Codewhichwehaveextractedandreproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or ` [ACT] Page 20 of 41 Created On Sun Aug 13 06:14:43 IST 2017 20 of 41 [CASE NUMBER] ORDER otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelinesorrigidformulaeandtogivean exhaustive list of myriad kinds of cases whereinsuchpowershouldbeexercised[CASE NUMBER]
1[CASE NUMBER] Where the allegations made in the First InformationReportorthecomplaint,evenif they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a caseagainsttheaccused[CASE NUMBER]
2[CASE NUMBER] Where the allegations in the First Information Report and other materials, if any, accompanying the F[CASE NUMBER] I[CASE NUMBER] R[CASE NUMBER] do not discloseacognizableoffence,justifyingan investigation by police officers under Section156(1)oftheCodeexceptunderan orderofaMagistratewithinthepurviewof Section155(2)oftheCode[CASE NUMBER]
3[CASE NUMBER]Wheretheuncontrovertedallegationsmade in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and makeoutacaseagainsttheaccused[CASE NUMBER]
4[CASE NUMBER] Where, the allegations in the F[CASE NUMBER]I[CASE NUMBER]R[CASE NUMBER] do not constitute a cognizable offence but constituteonlyanoncognizableoffence,no investigation is permitted by a police officerwithoutanorderofaMagistrateas contemplated under [SECTION] of the Code[CASE NUMBER]
5[CASE NUMBER]WheretheallegationsmadeintheF[CASE NUMBER]I[CASE NUMBER]R[CASE NUMBER] or complaint are so absurd and inherently improbableonthebasisofwhichnoprudent personcaneverreachajustconclusionthat there is sufficient ground for proceeding againsttheaccused[CASE NUMBER]
6[CASE NUMBER] Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the ` [ACT] Page 21 of 41 Created On Sun Aug 13 06:14:43 IST 2017 21 of 41 [CASE NUMBER] ORDER oncerned Act, providing efficacious redress forthegrievanceoftheaggrievedparty[CASE NUMBER]
7[CASE NUMBER]Whereacriminalproceedingismanifestly attended with mala fide and/ or where the proceedingismaliciouslyinstitutedwithan ulterior motive for wreaking vengeance on theaccusedandwithaviewtospitehimdue toprivateandpersonalgrudge[CASE NUMBER]"
18[CASE NUMBER] Bearing in mind the well laid down criterion, request made by the petitioner deserves consideration[CASE NUMBER] This Court has noticed the contents of First Information Report where the informant has revealed how his kidney had beenremovedandwithouthisknowledgethesame had been sold[CASE NUMBER] It is not that he alone is the victim, there are other 13 victims, who were takentodifferentplacesatDelhi,Chennaiand [ENTITY][CASE NUMBER]Someoftheaccused who have been named in the First Information Reporthavebeenalreadyarrestedandthenames of others were revealed during the course of investigation[CASE NUMBER]Thisissurelyanddefinitelynot the case for quashment of the complaint, as it does not fall anywhere near the criteria laid downinthecaseof [ENTITY]Lal(supra)[CASE NUMBER]Withthe natureofallegationsmadeinthecomplaint,the ` [ACT] Page 22 of 41 Created On Sun Aug 13 06:14:43 IST 2017 22 of 41 [CASE NUMBER] ORDER offence under the [ACT] do not require any interference by this Court, and therefore, no quashment is required in that respect[CASE NUMBER]
19[CASE NUMBER] [ACT] was introduced and made effective from 8[CASE NUMBER]7[CASE NUMBER]1994[CASE NUMBER]TheobjectoftheActistoprovidefor regulation of removal, storage and transplantation of human organs for therapeutic purposes and for prevention of commercial dealings in human organs or tissues or both[CASE NUMBER] Thus, essentially, for the protection of human health and for prohibiting this unethical practice of commercial dealing of human organs, thisActhascomeintoforce[CASE NUMBER] Illegaldealings inbreachoftheseprovisionsareprovidedunder [ACT]
20[CASE NUMBER] TheLegislaturehasdeemeditappropriateto appointanappropriateauthorityasdefinedunder [SECTION] of the [ACT], which is as follows: "2(b) "Appropriate Authority" means the Appropriate Authority appointed under section ` [ACT] Page 23 of 41 Created On Sun Aug 13 06:14:43 IST 2017 23 of 41 [CASE NUMBER] ORDER
13[CASE NUMBER]"
21[CASE NUMBER] [SECTION] defines "Authorisation Committee"asunder: "2(c) "Authorisation Committee" means the committee constituted under [SECTION] or [SECTION]
22[CASE NUMBER] [SECTION] of the [ACT] was amended on 31[CASE NUMBER]7[CASE NUMBER]2008, 28[CASE NUMBER]6[CASE NUMBER]2010 and on 27[CASE NUMBER]3[CASE NUMBER]2014[CASE NUMBER] [SECTION] prescribes for qualification of Transplant Coordinator[CASE NUMBER][ACT]Itwould beapttoreproducethesaidprovisionasunder: "13[CASE NUMBER] Appropriate Authority[CASE NUMBER] (1) The Central Governmentshallappoint,bynotification,one or more officers as Appropriate Authorities for each of the Union territories for the purposesofthisAct[CASE NUMBER]
(2) The State Government shall appoint, by notification, one or more officers as Appropriate Authorities for the purposes of thisAct[CASE NUMBER]
(3) The Appropriate Authority shall perform thefollowingfunctions,namely:
(i) to grant registration under subsection (1)ofsection15orrenewregistrationunder subsection(3)ofthatsection;
(ii) to suspend or cancel registration under subsection(2)ofsection16;
5[(iii) to enforce such standards, as may be prescribed,
(A) for hospitals engaged in the removal, storageortransplantationofanyhumanorgan:
(B) for Tissue Banks engaged in recovery, screening, testing, processing, storage and ` [ACT] Page 24 of 41 Created On Sun Aug 13 06:14:43 IST 2017 24 of 41 [CASE NUMBER] ORDER distributionoftissues;]
(iv)toinvestigateanycomplaintofbreachof any of the provisions of this Act or any of therulesmadethereunderandtakeappropriate action;
6[(iva)toinspectTissueBanksperiodically;]
(v) to inspect hospitals periodically for examinationofthequalityoftransplantation andthefollowupmedicalcaretopersonswho have undergone transplantation and persons fromwhomorgansareremoved;andtoundertake suchothermeasuresasmaybeprescribed[CASE NUMBER]"
23[CASE NUMBER] Sections18,19and22underChapterVIof the[ACT]dealwiththeoffencesandpenalties for removal of human organs or tissues or both withoutauthorityforcommercialdealinginhuman organs[CASE NUMBER]Theyreadasfollows: "18[CASE NUMBER] Punishment for removal of human organ withoutauthority[CASE NUMBER] (1)Anypersonwhorenders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to 3[tenyearsandwithfinewhichmayextendto twentylakhrupees][CASE NUMBER]
(2) Where any person convicted under sub section (1) is a registered medical practitioner, his name shall be reported by the Appropriate Authority to the respective State Medical Council for taking necessary actionincludingtheremovalofhisnamefrom the register of the Council for a period of 4[three years] for the first offence and permanentlyforthesubsequentoffence[CASE NUMBER] 5[(3)Anypersonwhorendershisservicesto or at any hospital and who conducts, or associateswithorhelpsinanymannerinthe ` [ACT] Page 25 of 41 Created On Sun Aug 13 06:14:43 IST 2017 25 of 41 [CASE NUMBER] ORDER removal of human tissue without authority, shall be punishable with imprisonment for a termwhichmayextendtothreeyearsandwith finewhichmayextendtofivelakhrupees[CASE NUMBER]]
19[CASE NUMBER] Punishment for commercial dealings in human organs[CASE NUMBER] Whoever
(a)makesorreceivesanypaymentforthesupply of,orforanoffertosupply,anyhumanorgan;
(b)seekstofindapersonwillingtosupplyfor paymentanyhumanorgan;
(c)offerstosupplyanyhumanorganforpayment; or
(d) initiates or negotiates any arrangement involving the making of any payment for the supplyof,orforanoffertosupply,anyhuman organ;
(e)takespartinthemanagementorcontrolofa body of persons, whether a society, firm or company, whose activities consist of or include theinitiationornegotiationofanyarrangement referredtoinclause(d);or
(f) publishes or distributes or causes to be publishedordistributedanyadvertisement,
(a)invitingpersonstosupplyforpaymentofany humanorgan;
(b) offering to supply any human organ for payment;or 13 (c)indicatingthattheadvertiseriswilling to initiate or negotiate any arrangementreferredtoinclause(d); [(g)abetsinthepreparationorsubmissionof false documents including giving false affidavits to establish that the donor is makingthedonationofthehumanorgans,asa near relative or by reason of affection or attachmenttowardstherecipient, ` [ACT] Page 26 of 41 Created On Sun Aug 13 06:14:43 IST 2017 26 of 41 [CASE NUMBER] ORDER shall be punishable with imprisonment for a termwhichshallnotbelessthan2[fiveyears butwhichmayextendtotenyearsandshallbe liable to fine which shall not be less than twentylakhrupeesbutmayextendtoonecrore rupees][CASE NUMBER]
22[CASE NUMBER]Cognizanceofoffences[CASE NUMBER] (1)Nocourtshall takecognizanceofanoffenceunderthisAct exceptonacomplaintmadeby
(a) the Appropriate Authority concerned, or anyofficerauthorisedinthisbehalfbythe CentralGovernmentortheStateGovernmentor, asthecasemaybe,theAppropriateAuthority; or;
(b)apersonwhohasgivennoticeofnotless than sixty days, in such manner as may be prescribed, to the Appropriate Authority concerned,oftheallegedoffenceandofhis intentiontomakeacomplainttothecourt[CASE NUMBER] (2)NocourtotherthanthatofaMetropolitan Magistrate or a Judicial Magistrate of the firstclassshalltry any offence punishable underthisAct[CASE NUMBER]
(3) Where a complaint has been made under clause(b)ofsubsection(1),thecourtmay, on demand by such person, direct the AppropriateAuthoritytomakeavailablecopies oftherelevantrecordsinitspossessionto suchperson[CASE NUMBER]"
24[CASE NUMBER] Section22providesthatnoCourtshalltake cognizance of the offences under this offence except on complaint made by the appropriate authorityconcernedoranyofficerortheState GovernmentortheCentralGovernmentasthecase may be[CASE NUMBER] The person is given notice of not less than 60 days in the manner prescribed in the ` [ACT] Page 27 of 41 Created On Sun Aug 13 06:14:43 IST 2017 27 of 41 [CASE NUMBER] ORDER authorityconcernedoftheallegedoffenceandof hisfunctiontomakeacomplainttotheCourt,no Court other than the Court of learned Judicial Magistrate First Class shall try any offence punishableunderthisAct[CASE NUMBER]
25[CASE NUMBER] Thus,itisrightlyinsistedonthepartof thepetitionerthatspecialmachineryandspecial procedurehasbeenprescribedundertheActwhich prohibits the regular police machinery or investigating agency to either conduct any proceedings for enforcement or for violation of theprovisionsofthesaidAct[CASE NUMBER]
The Maxim "generalia specialibus non derogant" has been emphasized which says that special law prevails over the general law for whichtherelianceisplacedonthedecisionof the Apex Court rendered in the case of [PRECEDENT] normally the procedures as contemplatedundertheCodeofCriminalProcedure shall stand displaced and the statute when has ` [ACT] Page 28 of 41 Created On Sun Aug 13 06:14:43 IST 2017 28 of 41 [CASE NUMBER] ORDER providedthataparticularthingmustbedonein a particular manner, the same must be done accordingly[CASE NUMBER]
26[CASE NUMBER] ThedecisionoftheApexCourtinthecase of Hussein Ghadially alias M[CASE NUMBER]H[CASE NUMBER]G[CASE NUMBER]A[CASE NUMBER] Shaikh and othersvs[CASE NUMBER]StateofGujaratreportedin(2014)8 SCC425alsoreiteratedthesame[CASE NUMBER]
At this juncture, the decision of the Apex Courtincaseof [ENTITY] and another vs[CASE NUMBER]Central Bureau ofInvestigation reportedin (2009) 7 SCC 526 deservesdeeperconsideration[CASE NUMBER] It insists that the "Appropriate Authority"
subject to exceptions provided under the [ACT], is the only authority to investigate the caseofbreachofanyoftheprovisionsthereof whetherpenalorotherwise[CASE NUMBER]Keepinginviewthe sensitivity and importance of the subject, specific areas have been carved out and when thereisanyviolationoftheprovisionsofthe specialstatutelikethe[ACT],thesameneeds to be dealt with by the authorities specified thereinonly[CASE NUMBER]
` [ACT] Page 29 of 41 Created On Sun Aug 13 06:14:43 IST 2017 29 of 41 [CASE NUMBER] ORDER
27[CASE NUMBER] Investigation in terms of [SECTION] of the[ACT]asheldinthesaidjudgmentmustbe conducted by an authorised officer and no one else can undertake such task[CASE NUMBER] Investigating agency other than the one prescribed needs to hand over the investigation to the appropriate authority[CASE NUMBER]TheSpecialPoliceEstablishmentunder theDelhiSpecialPoliceEstablishmentAct,1946 inthematterbeforetheApexCourtwasheldto have the authority specified therein to make investigation in question with the complaint[CASE NUMBER]
However,itheldandobservedthatsection22of the [ACT] prohibits taking cognizance except oncomplaintmadebytheappropriateauthorityor the person who had made a complaint earlier as statutorily the respondent [ENTITY] had been prohibitedfromfilingapolicereport[CASE NUMBER]TheCourt heldthatitcouldfileacomplaintpetitiononly asanappropriateauthoritysoastocomplywith therequirementscontainedinsection22ofthe [ACT][CASE NUMBER]Italsoheldthatifbyreasonofthe provisionsof[ACT],filingofapolicereport by necessary implication is necessarily ` [ACT] Page 30 of 41 Created On Sun Aug 13 06:14:43 IST 2017 30 of 41 [CASE NUMBER] ORDER forbidden, the question of its submitting a reportintermsofsubsection(2)ofsection173 of the [ACT] does not and couldnotarise[CASE NUMBER]Thus,nopolicereportcouldbe filed,undersubsection(2)ofsection167ofthe CodeofCriminalProcedure[CASE NUMBER]
28[CASE NUMBER] In wake of the invocation of [SECTION],the findings and observations of the Apex Court in thecaseof [ENTITY] tobereproduced: "19[CASE NUMBER][ACT]isaspecialAct[CASE NUMBER]Itdealswiththe subjects mentioned therein, viz[CASE NUMBER], offences relating to removal of human organs, etc[CASE NUMBER] Havingregardtotheimportanceofthesubject only,enactmentofthesaidregulatorystatute wasimperative[CASE NUMBER]
20[CASE NUMBER] [ACT] provides for appointment of an appropriateauthoritytodealwiththematters specified in [SECTION] thereof[CASE NUMBER] By reason of the aforementioned provision, an appropriate authority has specifically been authorized inter alia to investigateanycomplaintofthebreachofany oftheprovisionsof[ACT]oranyoftherules made thereunder and take appropriate action[CASE NUMBER] The Appropriate Authority, subject to exceptionsprovidedforin[ACT],thus,isonly authorized to investigate cases of breach of anyoftheprovisionsthereof,whetherpenalor otherwise[CASE NUMBER]
20[CASE NUMBER]Ordinarily,anypersoncansetthecriminal law in motion[CASE NUMBER] The Parliament and the State Legislatures, however, keeping in view the ` [ACT] Page 31 of 41 Created On Sun Aug 13 06:14:43 IST 2017 31 of 41 [CASE NUMBER] ORDER sensitivityand/orimportanceofthesubject, have carved out specific areas where violations of any of the provisions of a special statute like [ACT] can be dealt with onlybytheauthoritiesspecifiedtherein[CASE NUMBER]The FIRlodgedbeforetheofficerinchargeofthe Gurgaon Police Station was by way of information[CASE NUMBER] It disclosed not only commission ofanoffenceunder[ACT]butalsoundervarious provisions of the [ACT][CASE NUMBER] The officer incharge of the Police Station, however,wasnotauthorizedbytheappropriate governmenttodealwiththematterinrelation to[ACT];but,therespondentwas[CASE NUMBER]Inthatview of the matter, the investigation of the said complaintwashandedovertoit[CASE NUMBER]
22[CASE NUMBER] [ACT]beingaspecialstatute,Section4of theCode,whichordinarilywouldbeapplicable forinvestigationintoacognizableoffenceor the other provisions, may not be applicable[CASE NUMBER] Section4providesforinvestigation,inquiry, trial,etc[CASE NUMBER]accordingtotheprovisionsofthe Code[CASE NUMBER] [SECTION], however, specifically provides that offences under any otherlawshallbeinvestigated,inquiredinto, triedandotherwisedealtwithaccordingtothe same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences[CASE NUMBER]
23[CASE NUMBER] [ACT] being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisionsthereof,therecannotbeanymanner ofdoubtwhatsoeverthatthesameshallprevail over the provisions of the Code[CASE NUMBER] The investigationintermsofSection[SECTION]of [ACT],thus,mustbeconductedbyanauthorized officer[CASE NUMBER] Nobody else could do it[CASE NUMBER] For the aforementionedreasons,theofficerinchargeof theGurgaonPoliceStationhadnootheroption but to hand over the investigation to the appropriateauthority[CASE NUMBER]
24[CASE NUMBER] The respondent has been constituted under ` [ACT] Page 32 of 41 Created On Sun Aug 13 06:14:43 IST 2017 32 of 41 [CASE NUMBER] ORDER the [ACT][CASE NUMBER] In terms of the provisions of the said Act, the authorities specified therein could make investigation in connection with a complaint[CASE NUMBER] The mode and manner in which the investigation couldbecarriedouthavebeen laiddownintheActand/orthemanualframed thereunder[CASE NUMBER] It is for the aforementioned reason,uponreceiptofthecomplaintfromthe officerinchargeoftheGurgaonPoliceStation, it presumably having made a preliminary inquiry,lodgedtheFIR[CASE NUMBER]Onlybecauseitlodged theFIRandproceededintermsofthesaidAct and the manual, the same by itself would not meanthatalltheprovisionsofChapterXIIof [ACT]vis`visChapterXVthereofcouldnotbe invoked[CASE NUMBER]
25[CASE NUMBER] [SECTION] of [ACT] prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein[CASE NUMBER] Respondent, although, has all the powersofaninvestigatingagency,itexpressly has been statutorily prohibited from filing a police report[CASE NUMBER] It could file a complaint petitiononlyasanappropriateauthoritysoas to comply with the requirements contained in [SECTION] of [ACT][CASE NUMBER] If by reason of the provisionsof[ACT],filingofapolicereport by necessary implication is necessarily forbidden, the question of its submitting a reportintermsofSubsection(2)ofSection 173oftheCodedidnotandcouldnotarise[CASE NUMBER]In other words, if no police report could be filed,[SECTION][CASE NUMBER]
26[CASE NUMBER] Itisawellsettledprincipleoflawthat ifaspecialstatutelaysdownprocedures,the oneslaiddownunderthegeneralstatutesshall notbefollowed[CASE NUMBER]Inasituationofthisnature, the respondent could carry out investigations inexerciseofitsauthorizationunderSection [SECTION] of [ACT][CASE NUMBER] While doing so, it could exercisesuchpowerswhichareotherwisevested in it[CASE NUMBER] But, as it could not file a police ` [ACT] Page 33 of 41 Created On Sun Aug 13 06:14:43 IST 2017 33 of 41 [CASE NUMBER] ORDER report but a complaint petition only; [SECTION][CASE NUMBER]
27[CASE NUMBER] TheprovisionsoftheCode,thus,forall intent and purport, would apply only to an extent till conflict arises between the provisionsoftheCodeand[ACT]andassoonas the area of conflict reaches, [ACT] shall prevail over the Code[CASE NUMBER] Ordinarily, thus, althoughintermsoftheCode,therespondent upon completion of investigation and upon obtaining remand of the accused from time to time,wasrequiredtofileapolicereport,it was precluded from doing so by reason of the provisionscontainedinSection[SECTION][CASE NUMBER] 28 To put it differently, upon completion of theinvestigation,anauthorizedofficercould onlyfileacomplaintandnotapolicereport, as a specific bar has been created by the Parliament[CASE NUMBER] In that view of the matter, the policereportbeingnotacomplaintandvice versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode[CASE NUMBER] The procedure laid down in [ACT], thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but forthespecialprovisionscontainedin[SECTION]of[ACT][CASE NUMBER]"
1[CASE NUMBER] InwakeoftheratiolaiddownbytheApexCourt as discussed above, facts in the instant case needtoberevisited[CASE NUMBER]
2[CASE NUMBER] It is alleged that after adding the provisions of [ACT], continuing the investigation by the ` [ACT] Page 34 of 41 Created On Sun Aug 13 06:14:43 IST 2017 34 of 41 [CASE NUMBER] ORDER Gujarat Police would amount to usurping the jurisdiction of appropriate authority, leading to fall of superstructure as it hits by the maxim "Debit funde mentum fallit onus[CASE NUMBER]" It is also the caseofthepetitionerthatthereisnotasemblance ofevidence inrespectofother offencesunderthe [ACT] isnojurisdictionwiththeGujaratPolice[CASE NUMBER]
3[CASE NUMBER] It is also not in dispute that the offence alleged are of very serious nature[CASE NUMBER] Initially, lodging of the FIR is under the [ACT][CASE NUMBER] However at a later stage, there has been addition of [SECTION] of the [ACT][CASE NUMBER] It is also not in dispute that the Government of GujarathasadoptedthesaidActbyastatutory motion under [SECTION] of the [ACT] on 5[CASE NUMBER]3[CASE NUMBER]1997 with effect from 1[CASE NUMBER]7[CASE NUMBER]1997 under the proposal of the Gujarat State Legislative Assembly for regulation of removal, storage and transplantation of human organs for therapeutic purpose and for the prevention of commercial dealings in human organs and other ` [ACT] Page 35 of 41 Created On Sun Aug 13 06:14:43 IST 2017 35 of 41 [CASE NUMBER] ORDER methods connected therewith[CASE NUMBER] Undoubtedly the main objectoftheActistoprotectthehumanrightsand to safeguard zealously the public interest and public health both by making regulation for transplantation for therapeutic purpose and also against trafficking of human organs by preventing commercialdealingsofthesame[CASE NUMBER]Itisaspecialized statutecreatingaspecialprocedureforinitiating anyproceedingandalsoforinvestigation[CASE NUMBER]
"Appropriate Authority" as prescribed under [SECTION] of the [ACT] means Appropriate Authorityappointedundersection13ofthesaidAct and'AuthorisationCommittee'alsohasbeenprovided undersection2(c)ofthesaidActwhichmeansthe committeeconstitutedunderclause(a)andclause(b) ofsubsection(4)ofsection9ofthe[ACT][CASE NUMBER]
4[CASE NUMBER] [ENTITY] anAppropriateAuthorityundersection13ofthe [ACT], through the Deputy Secretary, Health and Family Welfare Department[CASE NUMBER] The Notification is dated 23[CASE NUMBER]7[CASE NUMBER]1997 appointing the appropriate authority[CASE NUMBER] The Authorisation Committee has been also constituted consisting all three members ` [ACT] Page 36 of 41 Created On Sun Aug 13 06:14:43 IST 2017
36 of 41 [CASE NUMBER] ORDER which includes Additional Director, Medical Education and Research as the Chairman, Additional Director, Medical Services, Gujarat State,asMemberandDean,B[CASE NUMBER]J[CASE NUMBER]MedicalCollege as Member[CASE NUMBER] Thus, there are two Members and DirectorastheAuthorisationCommitteewhichhas beennotifiedbytheStateaspertheprovisions of the [ACT] vide its notification dated 23[CASE NUMBER]7[CASE NUMBER]1997[CASE NUMBER] Vide Notification dated 29[CASE NUMBER]4[CASE NUMBER]1999 Medical Superintendent, Civil Hospital has been included as a Member of the said Authorisation Committee[CASE NUMBER]
5[CASE NUMBER] [ENTITY],the appropriateauthorityhadbeenapproachedbythe investigating agency before initiation of proceedings, however, during the course of hearing, it had approached the appropriate authority which has authorised the Anand police to lodge a complaint in respect of the alleged offencevideitsletterdated5[CASE NUMBER]11[CASE NUMBER]2016following theprovisionsofthe[ACT][CASE NUMBER] Primafacie, thematerialagainstthepresentpetitionerisof ` [ACT] Page 37 of 41 Created On Sun Aug 13 06:14:43 IST 2017 37 of 41 [CASE NUMBER] ORDER aiding and abetting the principal accused at whose premise, the removal of human organ unauthorizedly is alleged and the main accused, who is his brother also is absconding and not cooperating[CASE NUMBER]ThisCourtshallhavetoregardthe provisions of the Act and the decision of the ApexCourt,whichhasbeenrenderedinthecase ofpresentpetitionerhimselfintheyear2009[CASE NUMBER] Even while being conscious of the nature of allegations so also the intensity of the crime andtheplightofthevictimswhohaveallegedly suffered at the hands of the accused, particularly by the alleged acts of brother of the petitioner and other coaccused, this Court cannot be oblivious of the fact that the procedure established under the special statute hasnotbeenfollowedwhileaddingtheprovisions under the [ACT][CASE NUMBER] This Court shall have to essentiallyregardtheprovisionsofthe[ACT] andthesettledlegalpositionwhileconsidering therequestofthepetitioner[CASE NUMBER]
6[CASE NUMBER] Duringthependencyofthispetition,letterof approvalwasissuedbytheappropriateauthority ` [ACT] Page 38 of 41 Created On Sun Aug 13 06:14:43 IST 2017 38 of 41 [CASE NUMBER] ORDER granting permission in favour of Superintendent ofPolice,Anandforhimtocarryoutnecessary investigation under the [ACT][CASE NUMBER] It is generalized kind of authority which has been givenbytheauthorisedauthority[CASE NUMBER]
7[CASE NUMBER] AsheldbytheApexCourtreferringtosection22 of the [ACT], no Court is permitted to take cognizanceofoffenceexceptoncomplaintmadeby the appropriate authority concerned or any officerauthorisedinthisbehalfbytheCentral GovernmentortheStateGovernmentorasthecase maybeorapersonwhohasgivennoticeofnot less than 60 days in such manner as may be prescribedunderthe[ACT]tomakeacomplaint totheCourt[CASE NUMBER]Continuationofinvestigationunder the [ACT] also would warrant interference unlesstheprocedureinthatregardisfollowed duly[CASE NUMBER]
8[CASE NUMBER] As discussed hereinabove, the Apex Court has dealt with this very issue in case of [ENTITY] and another (supra) and therefore, althoughthatstagethoughhasnotcomeforthe Court to take cognizance of the offence as a special statute provides for not to take cognizance except on a complaint as provided under this provision, this Court is of the opinionsofarastheprovisionofthe[ACT] isconcerned,thepetitiondeservestosucceedby quashingthepetitiontothatlimitedextent[CASE NUMBER]
` [ACT] Page 39 of 41 Created On Sun Aug 13 06:14:43 IST 2017 39 of 41 [CASE NUMBER] ORDER
9[CASE NUMBER] Itisamatterofrecordthatprovisionsofthe [ACT] have been added by including the provisionsofsection19ofthe[ACT],which dealswiththepunishmentforcommercialdealing inthehumanorgans[CASE NUMBER]Priortosuchaddition,the FIR has been already lodged for the offences punishableundersections365,342,420,120Band 106(2)oftheIndianPenalCodelateron,certain other provisions of the [ACT] also have been added[CASE NUMBER] There is no bar for the concerned authority to proceed with the pending investigation under the [ACT] in accordance with the provisions of the [ACT][CASE NUMBER] As held by the Apex Court sinceforallintentandpurpose,theprovisions of the [ACT], would applytilltheconflictarisesbetweenthe[ACT] and the [ACT], when this Court notices that the area of conflict has reached to a stage where [ACT] is prevailing so far as inclusion of [SECTION] and other provisionsof[ACT]areconcerned,thepetitionis to be allowed to the extent the authority includedtheprovisionsunderthe[ACT][CASE NUMBER]However, sofarasthepleaofthepetitionertoquashthe entire first information report, as discussed hereinabove, the guidelines and the formula set out in the decision in the case of [ENTITY] (supra),wouldnotpermitthisCourttoaccedeto suchrequestfully[CASE NUMBER]
` [ACT] Page 40 of 41 Created On Sun Aug 13 06:14:43 IST 2017 40 of 41 [CASE NUMBER] ORDER
10[CASE NUMBER] Sofarasitsdealingwiththe[ACT]in contraventions to the provisions made under the special statute as discussed above, this Court needs to intervene[CASE NUMBER] It is being clarified that this,ofcourse,willinnomannerprecludethe appropriate authority concerned to follow the requisite procedure as prescribed under the law and deal under the [ACT] in accordance with law[CASE NUMBER] The petition does succeed partly[CASE NUMBER] Disposed ofaccordingly[CASE NUMBER]
[CASE NUMBER] In view of the order passed in the [CASE NUMBER], no order is required to be passed in the present application[CASE NUMBER] Applicationstandsdisposedofaccordingly[CASE NUMBER]
Directserviceispermitted[CASE NUMBER]
(MS [ENTITY], J[CASE NUMBER]) SUDHIR Note:- Corrections at page Nos[CASE NUMBER]35 and 39 are carried out in view of the order dated 29[CASE NUMBER]3[CASE NUMBER]2017 passed in [CASE NUMBER] with [CASE NUMBER] while dealing with the Note for Speaking to Minutes filed by the petitioner[CASE NUMBER]
` [ACT] Page 41 of 41 Created On Sun Aug 13 06:14:43 IST 2017 41 of 41