HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CRM No.M-27050 of 2010 (O&M) Date of Decision: 09.05.2011 **** Manoj Kumar . . . . Petitioner VS. CBI . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Akshay Bhan, Advocate; Mr. Rajbir Sehrawat, Advocate for the petitioner(s) Mr. SS Sandhu, Advocate for the respondent **** SURYA KANT, J. (ORAL) (1). This order shall dispose of CRM Nos.M-27050 & 36697 of 2011 as common issues are involved in both the cases. For the sake of clarity, the facts of the each case are being extracted separately though summarily. CRM No.27050 of 2010, (Manoj Kumar v. CBI) (2). This petition has been preferred by Manoj Kumar seeking his enlargement on regular bail in the case FIR No.RC-1 (E)/08/CBI/EOU-VII/New Delhi dated 08.02.2008 under Sections 120-B read with Sections 326, 342, 417, 465, 473, 307 and 506 IPC and Sections 18,19&20 of the CRM No.M-27050 of 2010.doc - 2 – Transplantation of Human Organs Act, 1994 (in short, the ‘TOHO’). (3). The above-stated FIR pertains to the infamous Kidney Scam which was detected in Gurgaon and several other States in the country highlighting the alleged allurement given to several poor victims in the name of giving them employment in the private hospitals and then on the pretext of their medical check-ups, removal of their the human organs (kidney) and transplantation to various recipients. The racket was being allegedly run in an organized manner and the victims were invariably from the poorest section of the society pitted against the affluent recipients who could afford hefty charges to save their lives through transplantation of the kidneys. (4). The petitioner, it is alleged, was a Laboratory Technician by profession who came in contact with the kingpin of the scam, namely, Dr. Amit Kumar in the year 1998. The petitioner allegedly used to take blood-samples from the victims and recipients for conducting medical tests to ascertain their suitability for kidney transplantation operations. (5). The petitioner also allegedly used to perform regular blood-tests required for kidney transplantation in the Laboratory established in the private hospital or at the CRM No.M-27050 of 2010.doc - 3 – guest house of Dr. Amit Kumar Raut and was statedly instrumental in arranging drugs/consumables and other surgical instruments etc. from various sources to run the illegal hospital(s). It is alleged that the petitioner used to receive huge amounts of money from the recipients for and on behalf of Dr. Amit Kumar Raut as also for himself for the kidney transplantation. The petitioner also allegedly assisted Dr. Amit Kumar Raut in the operation theatre with jobs such as handling the instrument, performing incisions, washing of kidney and ballooning etc. (6). The petitioner was arrested in February, 2008 and is incarcerated since then. CRM NO.M-36697 of 2010, (Dr. Amit Kumar Raut v. CBI) (7). The petitioner-Dr.Amit Kumar Raut is projected as the real master-mind and kingpin of the Kidney Scam as it was his brainchild to carry out the kidney transplantation (KT) operations at different private hospitals/guest houses throughout the country. There are three more cases stated to be registered against the petitioner in relation to the illegal kidney transplantation though according to his learned counsel, he has already been acquitted in those cases. There are two more cases CRM No.M-27050 of 2010.doc - 4 – registered against the petitioner under the Passport Act. The petitioner was arrested from Nepal in February 2008 and is in custody since then. (8). There is indeed no dispute that the Special Judge, Ambala vide his order dated 31.08.2010 has already framed 11 charges against the petitioners including those under Section 307, 326, 417, 465 and 506 of the Indian Penal Code besides specific charges under the TOHO. (9). It is urged on behalf of the petitioner - Manoj Kumar that only one case has been registered against him and the same is at par with that of Dr. Saraj Kumar Kovind Anaesthesist’s against whom the allegations pertained to giving anaesthesia to the victims and recipients of the kidney. It is argued that the petitioner is entitled to claim parity with Dr. Saraj Kumar Kovind to whom the concession of regular bail has been granted by the Hon’ble Supreme Court vide order dated 26.11.2010 passed in Crl. Appeal No.2220 of 2010 arising out of SLP(Crl.) No.9045/2010 (Saraj Kumar Kovind v. Central Bureau of Investigation, New Delhi). The aforesaid argument is in addition to the contention that the petitioner has already spent over three years in custody and that there no legal or factual basis to frame charges under Sections 307 & 326 IPC and at the best the CRM No.M-27050 of 2010.doc - 5 – petitioner is liable to face Magisterial trial where the total punishment cannot be more than five years and as such it is a fit case to release him on bail. (10). In case of Dr. Amit Kumar Raut, it is vehemently argued that he has already spent more than three years in custody and at the time when the alleged illegal operations were carried out, the petitioner used to live in Canada as he is a Non-Resident Indian. It is urged that he has been falsely roped in these cases, though none of the private hospitals/guest houses are owned or run by him. Parity with Dr. Saraj Kumar Kovind, to whom the concession of regular bail has been granted by the Hon’ble Supreme Court, is also claimed. (11). On the other hand, learned counsel representing CBI vehemently opposes the prayer, inter alia, maintaining that given an opportunity, the CBI is willing to produce all the witnesses at the earliest and that having regard to the seriousness and gravity of the offence and its social impact, it would not be in the interest of criminal justice system to release the petitioners on bail. (12). I have heard learned counsel for the parties and perused the relevant records. (13). The question as to whether the petitioners have been validly charge-sheeted under Sections 326 & 307 IPC, CRM No.M-27050 of 2010.doc - 6 – cannot be gone into in these proceedings. The bail applications, thus, need to be disposed of keeping in view the nature of charges framed by the learned Special Judge vide his order dated 30.08.2010. (14). It is true that Hon’ble Supreme Court has released Dr. Saraj Kumar Kovind on regular bail vide order dated 26.11.2010, however, the facts of his case are quite distinguishable. Dr. Saraj Kumar Kovind was not alleged to be a member of the ‘team’ of Dr. Amit Kumar Raut. The only allegation against him is that his services as an Anaesthesist were hired and he is said to have administered anaesthesia to the persons whose kidneys were taken from September, 2007 to January, 2008. On the other hand, the allegations of close-knit relationship between the duo and multiple actions attributed to Manoj Kumar after their meeting of minds, are completely missing in the case of Dr. Saraj Kumar Kovind. The allegations of assisting Dr. Amit Kumar Raut in the operation theatre or receiving hefty amounts for and on behalf of Dr. Amit Kumar Raut from the recipients are specifically leveled against Manoj Kumar only. The seriousness and the gravity of the allegations attributed to the petitioner (Manoj Kumar) is of much higher degree CRM No.M-27050 of 2010.doc - 7 – as compared to those attributed to Dr. Saraj Kumar Kovind. (15). The another crucial issue is the present status of the trial. The case is stated to be ripe for prosecution evidence. However, the respondent-CBI has not been able to produce its witnesses due to non-production of three co-accused of the petitioners, two of whom are presently locked up in Jaipur (Rajasthan) and one is in Guntur (Andhra Pradesh) jails, respectively. As per the affidavit filed by the CBI today, these three co-accused have not been produced despite Production Warrants issued by the Special Court, Ambala. The reply also suggests that the donors of the kidney belong to the poorest and vulnerable sections of society. As per the allegations, they had donated their organs out of poverty and for money considerations. That being the sorry state of affairs, the possibility of influencing these victims by alluring them for ‘considerations’ by the petitioners cannot be ruled out. The recipients are also influential persons. In such a situation and with a view to ensure that the trial reaches to a logical conclusion, it is imperative to ensure that the statements of the donors who are the actual victims of the racket, are firstly CRM No.M-27050 of 2010.doc - 8 – recorded before considering the release of the petitioners on bail. (16). This Court at the same time cannot be oblivious of the fact that the petitioners are in custody for the last over three years. The fact situation projected by the CBI in its affidavit is quite disappointing and tends to suggests that the trial has no headway. (17). In these circumstances and in order to balance the situation, it appears desirable to dispose of these petitions, at this stage with the following directions:- i. The Director-Generals of Prisons, Rajasthan and Andhra Pradesh are directed to immediately arrange the facility of Video-Conferencing at the nearest places wherever available. Such a facility being available in the Courts at Panchkula, the Director-Generals of Prisons, Rajasthan and Andhra Pradesh shall ensure that on the next date of hearing, the three co-accused of the petitioners who are presently lodged in Jaipur and Guntur jails are produced before the Special Court at Panchkula through Video- Conferencing facility. An advance intimation shall be sent to the Special Court, Panchkula within two weeks from the date of receipt of a copy of this order; ii. The CBI is directed to produce all the victims/donors on the first date to be fixed by the learned Special Judge, Panchkula for the recording of prosecution witnesses after CRM No.M-27050 of 2010.doc - 9 – the receipt of the requisite communications from the DGPs of Rajasthan and Andhra Pradesh as directed above; iii. The Special Judge, Panchkula shall conduct the trial on day-to-day basis till the statements of all the alleged victims/donors are recorded; iv. The co-accused of the petitioners presently lodged in Jaipur and Guntur jails, if not represented by any Advocate, shall be provided Legal Aid Counsel by the District & Sessions Judge, Panchkula who shall preferably be having sufficient experience of criminal trials and if so required, ‘special fee’ to be assessed by the Distt. Sessions Judge, shall be paid to them by the State Haryana Legal Services Authority; v. The above-stated exercise shall be completed before July 15, 2011 and no request for adjournment shall be entertained on behalf of either of the parties; vi. The CBI is directed to ensure that services of its Public Prosecutor are made available on all the dates to be fixed by the learned Special Judge, Panchkula and no adjournment shall be granted on account of non- availability of the Public Prosecutor(s). It is for the CBI to make alternative arrangement in case their Law Officer/Public Prosecutor is busy in some other case or is unable to attend the trial for any other reason; CRM No.M-27050 of 2010.doc - 10 – vii. Soon after recording the statements of the witnesses, the petitioners shall be entitled to seek their enlargement on bail and their application shall be considered and decided by the learned Special Court, Panchkula uninfluenced of the previous orders, as early as possible but not later than 10 days from the date of filing. (18). With these observations and directions, both the Criminal Misc. petitions stand disposed of. (19). Let a copy of this order, under the signatures of the Bench Secretary, be handed over to Mr. SS Sandhu, learned counsel for CBI for information and onward compliance by the Director Generals of Police (Prison), Rajasthan and Andhra Pradesh as well as other authorities. (20). Dasti . 09.05.2011 vishal shonkar (S u r y a K a n t) Judge