Case: Jeewan Kumar Raut &amp; Another Vs. Central Bureau of Investigation

3. Appellants are medical practitioners. A First Information Report (FIR) was lodged against them under Section 420 of the Indian Penal Code and Sections 18 and 19 of TOHO at Police Station Palam Vihar, Gurgaon. The investigation was transferred to the Central Bureau of Investigation, the respondent herein.It registered another FIR on or about 8.02.2008 under Sections 420, 342, 326, 506 and 120-B ofthe Indian Penal Code and under Sections 18 and 19 of TOHO.4. Appellant No. 2 was arrested on 10.02.2008 and he was produced before the learned Magistrate on 11.02.2008, whereas appellant No.1 surrendered on 17.02.2008 and produced before the learned Magistrate on 18.02.2008.5. Respondent filed a complaint under Section 22 of TOHO before the Judicial Magistrate, CBI Cases, Ambala inter aliaThat required authorization u/s 22 of TOHO Act 1994 has been accorded by the Govt. of Haryana vide order dated 11.4.08 in favour of undersigned IO of the case....52. That as per provisions contained in TOHO Act, 1994, cognizance for the offences punishable under the provision of said Act can only be taken up on a complaint filed by prescribed authority or by a person duly authorized by competent authority. Ms. Firoza Mehrotra, Financial Commissioner & Principal Secretary to the Govt. of Haryana, Home Department being the competent authority has authorized the undersigned IO of this case to file the complaint for the violation of provisions of TOHO Act, 1994 by the said accused persons before a competent court of law. Since offences punishable under the provisions of Indian Penal Code committed by above said accused persons are pursuant to a criminal conspiracy in the same transaction, hence a composite complaint is being filed against all the said accused54. It is most respectfully prayed that cognizance under sections 120- B r/w 326, 342, 417, 465, 473, 506 and 307 IPC and Sec. 18, 19 & 20 of Transplanation of Human Organs Act, 1994 and substantive offences thereof may kindly be taken against accused A-1 to A-9 and they may be tried as per law. It is also prayed that permission to conduct further investigation against the arrested persons, namely, Smt. Pooja Kumar, Umesh Kumar and Harpal may kindly be given as also against the others whose names have emerged during investigation.Inter alia, contending that the period of 90 days from the date of detention expired on7.05.2008, the appellant No. 2 filed application for grant of bail. By reason of an order dated 9.05.2008, the learned Magistratethe purposes of taking cognizance of the offences punishable under TOHO Act, a written complaint is required to be filed by the competent authority or the authorized person as required by Section 22 of the aforesaid Act. Therefore, qua the offences under TOHO Act, it seems to be a complaint, but in the opinion of this Court qua the offences committed by the accused punishable under Section 120-B read with Sections 307, 326, 342, 417, 465, 473 and 506 of IPC, it seems to be police report. If period of custody is reckoned of both accused Ms. Linda and Dr. Amit, then it appears to me that this police report had been filed within the period of 90 days being filed onthe said reasoning, the learned Magistrate dismissed the said application.7. The appellant No. 2 along with other accused also filed application for grant of bail,which was also dismissed by the learned Magistrate by an order dated 23.05.2008 holding that hehad already taken a view while dealing with the application for grant of bail filed by the appellant No. 2.8. Aggrieved by and dissatisfied therewith, the appellants filed revision applications before the High Court wherein notice was issued on 29.05.2008. By reason of the impugned judgment dated 28.01.2009, the High Court dismissed the said revision applications. However, the High Court refused to go into the question raised by the appellants herein that a complaint is not a police report and cannot be treated as such,cognizance of the offence under the TOHO Act in terms of Section 22 is to be taken on the basis of a complaint filed by an appropriate authority concerned. Conceded position is that the complaint against the petitioners under the TOHO Act was filed on 29.4.2008, which was within a period of 90 days in respect of all the petitioners. Once the complaint was filed withina statutory period for a cognizable offence, which is nonbailable, of which cognizance was taken by the Magistrate, the petitioners would not be entitled to seek the protection of Section 167(2) Cr.P.C., even if it is construed for the sake of argument that a complaint is not a police report or cannot be treated as such. The net effect of the argument raised by counsel for the petitioners would be that even if the complaint is not treated as a police report for offences under I.P.C., still the petitioners would not be entitled to be released on bail by operation of Section 167(2) Cr.P.C. as complaint against them stood filed within a statutory period of 90 days. The petitioners could, thus, be denied the concession of said provision without going into the elaborate and detailed submissions made by counsel for the parties in regard to the status of complaint, being police report or not. I am, thus, not inclined to go further into the aspect whether this complaint can be treated as a police report for the purpose of offences under the IPC or not. The definition of `complaint as contained in Section 2(d) Cr.P.C., would prima - facie tend to indicate that complaint as such, would exclude the police report, though it is equally true that the police report need not be on any particular

Court's reasoning:
24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied.Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future.