Crl. Misc. No. M- 36224 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Crl. Misc. No. M- 36224 of 2009 (O&M) Date of decision: April 22, 2010 Jevan Kumar Raut ...Petitioner Versus Central Bureau of Investigation ...Respondent (2) Crl. Misc. No. M- 3919 of 2010 (O&M) Date of decision: April 22, 2010 Dr. Saraj Kumar Kovind ...Petitioner Versus Central Bureau of Investigation, New Delhi ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. R.S. Cheema, Senior Advocate with Mr. R.K. Trikha, Advocate, for the petitioner in Crl. Misc. 3919 of 2010. Mr. Akshay Bhan, Advocate, for the petitioner in Crl. Misc. No. 36224 of 2009. Mr. S.S. Sandhu, Standing counsel for CBI. GURDEV SINGH, J. By this common order, Crl. Misc. No. M-36224 of 2009 and Crl. Misc. No. M- 3919 of 2010 are being decided. These petitions under Section 439 of the Criminal Procedure Code (hereinafter referred to as 'the Code') have been filed by the petitioners, Jevan Kumar Raut and Dr. Saraj Kumar Kovind, for grant of regular bail in FIR No. RC-1 (E)/08/CBI/EOU- VII/New Delhi, dated 8.2.2008 registered, under Section 120B read with Crl. Misc. No. M- 36224 of 2009 2 Sections 326, 342, 417, 465, 473, 307 and 506 IPC and under Sections 18, 19 and 20 of the Transplantation of Human Organs Act, 1994 (hereinafter referred to as 'the Act') and in the complaint under Section 22 of the Act. The facts are that FIR No. 27 dated 25.1.2008 under Section 420 IPC and under Sections 18 and 19 of the Act was registered on the complaint made by Inspector Raghuraj Singh, Police Station Kotwali, Moradabad, U.P., in pursuance of the disclosure statement made by Dr. Upender Kumar Aggarwal during the investigation of the case bearing FIR No. 48 dated 24.1.2008, registered in Police Station Civil Lines, Moradabad, under Section 420 IPC and under the provisions of the Act. After the investigation of FIR No. 48, it was found that there was no incriminating material against the accused and, as such, a closure report was submitted for the discharge of the accused persons. Accordingly, the report was submitted under Section 173 of the Code. However, further investigation into that FIR was transferred by the State of Haryana to Central Bureau of Investigation (CBI), vide notification dated 31.1.2008, while exercising the powers under Section 6 of the Delhi Police Establishment Act, 1946. Thereafter, the above said FIR dated 8.2.2008 was registered against the present petitioners and the other accused. In the course of the investigation, offences under Sections 417, 465, 473 and 307 IPC and Section 20 of the Act were added. As per the contents of that FIR, Raghuraj Singh, Inspector, alongwith other members of his staff and Dr. Upender, visited house No. 4374, Sector 23, Palam Vihar, Gurgaon, Haryana, in connection with the investigation of the case FIR No. 48 dated 24.1.2008 registered under Section 420 IPC and the provisions of the Act, in pursuance of the statement of said Dr. Upender, who was arrested during Crl. Misc. No. M- 36224 of 2009 3 the investigation. On search of that house/hospital, five persons, Ajay Kumar, Sanjay, Washim, Shakil and Saleem were found lying on different beds in room No. 206. They disclosed that they had been brought in an Esteem car from Ghaziabad for doing labour work about 10-12 days back by two persons on the plea that they would get Rs. 200/- daily and that they were kept in the forest for 8-9 days and thereafter were brought to the said hospital on 21.1.2008, where their kidneys were removed forcibly and were told that they would be paid Rs. 60-70 thousand and that they should not disclose that fact to anyone. It was stated by Shakil that after removing his kidney in the said house/hospital, the same was transplanted in the body of the other person. A detailed investigation was conducted, in which the statements of witnesses were recorded and a team of the doctors from the All India Institute of Medical Sciences and the experts from the CFSL, New Delhi, visited the house/hospital of the said accused. During that investigation, it was found that the present petitioners, alongwith other accused, hatched a criminal conspiracy and in pursuance thereof had set up an unauthorized hospital, where illegal kidney transplantation was being carried out from 1999 to 2008 and that all the accused were instrumental in removing the kidneys of innocent persons and transplanting the same in the bodies of the other persons for huge amounts. It was found that Jevan Kumar Raut-petitioner was the younger brother of the main accused Amit Kumar, who had done diploma in Homeopathy in the year 1991 and had been helping the other accused in managing the affairs of the hospital and arranging medicines, consumables etc. He got established a laboratory in this hospital, for human leukocyte antigen (HLA)/cross matching test, which is essential for kidney transplantation and that he used to remain Crl. Misc. No. M- 36224 of 2009 4 present in the operation theater during the transplantation of the kidneys and in some cases had even stitched the abdomen of the victims after removal of the kidneys by the main accused. He also used to administer them anesthesia during illegal kidney transplantation. During the investigation, it was also found that Dr. Saraj Kumar Kovind-petitioner was MBBS, MD (Anesthesia) and came in contact of the main accused in the year 2007 in regard to the kidney transplantation of his own brother-in-law Dharmender who got a healthy transplantation illegally in this hospital and thereafter at the instance of Amit Kumar main accused and Jevan Kumar- accused started administering anesthesia to the persons whose kidneys were removed during the period from September, 2007 to January 2008 and that he did so in about 20 operations of kidney transplantation. On the basis of the investigation so conducted by the CBI, it was established that in pursuance of the criminal conspiracy, all the accused fraudulently removed the kidneys of innocent persons and transplanted the same to the recipients for huge monetary consideration, thereby committing the aforesaid offences. After completion of the investigation, the complaint was presented before the trial court against the present petitioner and the other accused by the CBI. The bail applications were filed by these petitioners before the CBI Court but were rejected. Manoj Kumar and Dr. Krishan Kumar Aggarwal accused had filed Criminal Misc. No. M-5144 of 2009 and Criminal Misc. No. M-6680 of 2009 for releasing them on bail before this Court, but those were dismissed vide order dated 2.7.2009. The part attributed to Manoj Kumar accused is that he was working as Laboratory Technician with the main accused. Dr. Krishan Kumar Aggarwal is stated Crl. Misc. No. M- 36224 of 2009 5 to be working as an Anesthetist, while helping the main accused in carrying out the kidney transplantation. Notice of the these petitions was given to the CBI. I have heard learned counsel for both the sides. Shri R.S. Cheema, Senior Counsel, while appearing on behalf of Saraj Kumar Kovind-petitioner, submitted that this petitioner was allowed interim bail from 7.6.2008 to 18.6.2008 and then from 24.10.2008 to 8.11.2008 and that after the expiry of the said period, he himself surrendered before the trial court and did not misuse the concession of bail. The only charge against him is that he had been working as an Anesthetist at the time of illegal kidney transplant operation. Those charges are still to be established before the Court. He is coming in the custody since 11.2.2008 and the trial is not making any progress. The charge is still to be framed. The conclusion of the trial is likely to take long time and it would not be in the interest of justice to detain the petitioner in custody for all that period. He also tried to contend that the accused, who have been disallowed the benefit of bail by this Court, stand on different footings and their bail applications were dismissed more than 8 months back. The accused cannot be detained in custody for an indefinite period. He has tried to place reliance upon R.D. Upadhyay versus State of A.P. And others (1996) 3 SCC 422. On behalf of Jevan Kumar Raut-petitioner, it was canvassed by Shri Akshay Bhan, Advocate, that this petitioner voluntarily surrendered before the trial court on 17.2.2008, which clearly shows his intention not to tamper with the prosecution case. The allegations against him are not of serious nature and his case cannot be equated with the case of the other Crl. Misc. No. M- 36224 of 2009 6 accused, whose bail applications have already been dismissed by this Court. He is coming in the custody since long and that long period of custody itself is a ground for grant of bail. He referred to Dalip Singh versus State of Punjab 2009 (1) RCR (Criminal) 657. On the other hand, it was submitted by learned counsel for the CBI that mere long detention in the jail cannot be made a ground for releasing the petitioners on bail, keeping in view the serious nature of the allegations against them. They had been fleecing way the innocent persons and had been removing their kidneys fraudulently and had been transplanting the same in the bodies of other persons for huge consideration and all that acts were done illegally at the risk of the lives of those persons. The role attributed to the present petitioners is more grave as compared to the role attributed to the accused, who have already been denied the benefit of bail by this Court. There is no ground for releasing the petitioners on bail. In support of his contentions, he relied upon Rajesh Ranjan Yadav @ Pappu Yadav versus CBI through its Director 2007 (1) RCR (Criminal) 166 There is no denial of the fact that the trial has not made much progress before the trial court as even the charge has not been framed against the petitioners and the other accused. According to learned counsel for the CBI, the reason for that delay is on account of non-production of the other accused before the trial court, who are coming in detention in respect of other criminal cases in other States and they could not be produced before the trial court on the dates fixed. He also brought to the notice of the court that now those accused are being detained in a nearby jail and would be produced on the next date of hearing. It was held in R.D. Upadhyay's case (supra) that an undertrial Crl. Misc. No. M- 36224 of 2009 7 has a right to speedy trial. The undertrials, who were coming in detention in respect of the cases attempt to murder for more than two years, were directed to be released on bail forthwith. In Dalip Singh's case (supra), it was held that the court should consider release of the accused on bail if 180 days have already passed after the case was postponed for prosecution evidence and the trial is nowhere near completion. However, it was held by the Apex Court itself in Rajesh Ranjan Yadav's case (supra) that, while it is true that one of the considerations for deciding whether to grant bail to the accused, is whether he has been in jail for a long time, but the Court has also to take into consideration the other facts and circumstances such as interest of the Society etc. Therefore, long detention in the jail can be one of the factors for grant of benefit of bail but the same cannot be granted merely on that ground. The Court is to take into consideration a number of factors before releasing the accused on bail. It was held by the Apex Court in Gobarbhai Naranbhai Singala v. State of Gujarat, 2008 (1) RCR (Criminal) 904 (SC), that while considering the application for bail, what is required to be looked is: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of witnesses being tampered with and (viii) danger, of course, of justice being thwarted by grant of bail. Now adverting to the allegations against the present petitioner Jevan Kumar Raut is the younger brother of the main accused Amit Kumar, Crl. Misc. No. M- 36224 of 2009 8 who not only opened a laboratory in this hospital for conducting test for the transplantation of the kidneys, but had been aiding the main accused during the operations and had even been stitching the abdomen of the victims. The other petitioner had been working as anesthetist during illegal operation. He worked as such for quite a long period and helped the accused in transplanting the kidneys illegally. The said offences may not be punishable with severe sentences but are very grave. The petitioners had thrown all the ethics and norms to the winds. They had been making the poor and innocent persons victims by removing their kidneys forcibly, illegally and transplanting the same in the bodies of the rich persons for huge amount. There is likelihood of the repeating of the offences by the petitioners, if released on bail, who have acquired expertise in kidney transplantation. The interest of the society also requires that that such like persons should not be granted the benefit of bail. Manoj Kumar and Dr. Krishan Kumar Aggarwal were certainly better placed but their bail applications have already been rejected by this Court. In view of the above discussion, I conclude that there is no ground for releasing the petitioners on bail. Hence their applications are hereby dismissed. April 22, 2010 (GURDEV SINGH ) prem JUDGE