IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 OP.No. 33191 of 2002(B) ------------------------------- PETITIONER(S): --------------- P.M.MOHANAN, AGED 35 YEARS, S/O.ADICHAN, PADIKKAL HOUSE, METHOTTI, KOOVAKANDAM P.O., VELLIYAMATTOM VILLAGE, IDUKKI BY ADV. SRI.A.X.VARGHESE SMT.SUDHA.R. SRI.C.A.CHACKO SRI.T.D.ELDO RESPONDENT(S): -------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HEALTH, NEW DELHI 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM 3. SECRETARY, DEPARTMENT OF SCHEDULED CASTE AND SCHEDULED TRIBE, THIRUVANANTHAPURAM 4. DIRECTOR, CENTRAL BUREAU INVESTIGATION, NEW DELHI. 5. CHAIRMAN, AUTHORISATION COMMITTEE OF MEDICAL COLLEGE HOSPITAL, KOZHIKODE 6. DIRECTOR, INDIAN MEDICAL COUNCIL, NEW DELHI. 7. DIRECTOR, NATIONAL HOSPITAL, KOZHIKODE 8. DIRECTOR, BABY MEMORIAL HOSPITAL, KOZHIKODE 9. DR. ROOBAN GEORGE, NATIONAL HOSPITAL, KOZHIKODE. 10. DR. INDIRA, GYNAECOLOGIST, NATIONAL HOSPITAL, KOZHIKODE. OP.No. 33191 of 2002 ADDL.R11: DR. K. MOHAMMED ALI, FORMER CHAIRMAN OF INDIAN MEDICAL ASSOCIATION ETCHICS COMMITTEE. ADDLR12: DR. P.T. CHERIAN, THE PRESENT CHAIRMAN OF INDIAN MEDICAL ASSOCIATION, STATE COMMITTEE (ADDL.R11 & R12IMPLEADED AS PER ORDER IN C.M.P.NO.62998/02 IN O.P.NO.33191/2002 DATED 27.1.2009) ADV. SRI.M.ASOKAN FOR R8 SRI.DEVAPRASANTH.P.J. FOR R8 SRI.P.M.MUHAMMED RAHAZ FOR R8 SRI.K.RAMAKUMAR (SR.) FOR R9 SRI.S.VENKATASUBRAMONIA IYER(SR.) FOR R7 SRI.N.N.SUGUNAPALAN (SR.) FOR R7 SRI.M.ASOKAN FOR R7 SRI.SAJEEVU MATHEW FOR R10 SRI.S.SREEKUMAR, SC FOR CBI FOR R4 SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R4 SRI.SUNNY MATHEW FOR R7 GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 33191 of 2002 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE CHIEF MINISTER. EXT.P2: COPY OF THE NEWS ITEM REPORTED IN 'NEW INDIAN EXPRESS DATED 19/10/2002. EXT.P3: COPY OF THE NEWS ITEM REPORTED IN HINDU DAILY DTD 26.10.2002. EXT.P4: COPY OF THE COMPLAINT PREFERRED BEFORE THE VIGILANCE ANTI CORRUPTION BUREAU JUDGE. EXT.P5: COPY OF THE ORDER OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE DATED 8/8/2002. EXT.P6: COPY OF THE COMMUNICATION DATED 10/9/2002. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 33191 OF 2002 ---------------------------------------- Dated this the 27th day of January, 2009 JUDGMENT The petitioner claims to be a victim of unauthorised removal of his kidney for the purpose of transplantation to others. The petitioner filed this original petition alleging complacency on the part of the Government of Kerala and the police in respect of investigating the complaint properly. Therefore, the petitioner has filed this original petition seeking the following reliefs: “i) Issue a Writ of Mandamus directing the 4 th Respondent to take over the reigns of investigation into this notorious, kidney transplantation racket case, by constituting a special investigation team and to book the culprits and prosecute them in accordance with law. ii) Issue a Writ of Mandamus directing the 1 st and 2 nd Respondents to pay compensation to the petitioner, worth Rs.10,00,000/- (Ten lakhs) by way of remedy under public law, and to realize the compensation amount from the assets of Respondents 7 and 9”. Admittedly, subsequent to filing of this original petition, the Government has constituted a committee, who has gone into the O.P.No.33191/2002 2 matter and a criminal complaint has been filed before the appropriate Magistrate Court by the competent authority in which proceedings are going on before the Court. In fact Criminal M.C. No.11683/2002 in respect of the said case is pending before this Court. The petitioner’s contention is that he is not satisfied with the investigation by the local police and the matter should be entrusted to the C.B.I. 2. I am of opinion that if the petitioner is not satisfied with the investigation, he can approach the appropriate Magistrate for appropriate orders regarding the same. As far as the claim for compensation is concerned, this Court cannot decide that question in so far as it would require adducing of evidence to fix the liability as well as quantum. Therefore, without prejudice to the right of the petitioner to approach the Magistrate Court for appropriate action in accordance with the decision of Sakiri Basu V. State of U.P. [2008 (1) KLT 724] and without prejudice to the right of the petitioner to file appropriate suits for claiming compensation, this original petition is closed. S. SIRI JAGAN, JUDGE Acd O.P.No.33191/2002 3