Allahabad High Court
Deepa Garg And 5 Others vs State Of U.P. And Another on 27 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:75006
Court No. - 91
Case :- APPLICATION U/S 482 No. - 28292 of 2016
Applicant :- Deepa Garg and others
Opposite Party :- State of U.P. and another
Counsel for Applicant :- Surya Bhan Singh
Counsel for Opposite Party :- G.A.,Shams Uz Zaman
Hon'ble Prashant Kumar,J.
1. Heard Sri Surya Bhan Singh and Smt. Yamini Singh, learned counsel for the applicants and Sri S.D. Pandey, learned A.G.A. for the State-O.P. No.1.
2. The instant application under Section 482 Cr.P.C. has been preferred by the applicants praying for quashing the entire criminal proceeding as well as summoning order dated 19.08.2015 in Complaint Case No.3371 of 2015 under Sections 147, 148, 149, 326, 420 IPC, Police Station-Baghpat, District-Baghpat.
3. The factual matrix of the case is that applicant no.1 Deepa Garg (Kidney recipient) and O.P. no.2 Irshad (Kidney donor) on 25.01.2014 contacted All India Institute of Medical Sciences, New Delhi (AIIMS) for renal transplant with all requisite papers. The Coordinator/Nodal Officer, Renal Transplant Authorization Committee sent letter to the Chairman, Renal Authorization Committee, District-Baghpat, U.P. At that point of time, the Coordinator/Nodal Officer, Renal Transplant Authorization Committee had met the recipient and the donor at AIIMS and their photographs were also taken on record along with an affidavit.
4. Applicant no.1 Deepa Garg (Kidney recipient) and O.P. no.2 Irshad (kidney donor) both submitted their applications with affidavit to the District Magistrate, Baghpat in this regard on 25.01.2014. The District Magistrate, Baghpat on 29.01.2014 directed the Sub Divisional Magistrate to conduct an enquiry and submit report. The Revenue Authorities recorded the statements of applicant no.1 Deepa Garg and O.P. no.2 on 04.02.2014 and submitted report dated 07.02.2014 with recommendation. Copies of the record in front of the Revenue Authorities along with the report has been filed with instant application as Annexure-3.
5. The District Magistrate, Baghpat directed the Chief Medical Officer, Baghpat to submit report on 11.02.2014 with regard to the report dated 07.02.2014 submitted by the Sub Divisional Magistrate, Baghpat. The Chief Medical Officer, Baghpat constituted five members doctors committee and conducted meeting with regard to kidney transplant of applicant no.1 Deepa Garg (kidney recipient) and O.P. no.2 (kidney donor). The meeting was held on 05.03.2014 and after verification of the papers, affidavits, the District Level Committee recommended the District Magistrate, Baghpat for a No Objection Certificate. The Chief Medical Officer, Baghpat sent letter to Government of U.P. for a No Objection Certificate of State Level Committee. The Director, Medical Education, U.P. issued No Objection Certificate on 05.05.2014 on the basis of recommendation of State Level Committee, in a meeting which was held on 28.04.2014. Thereafter, a meeting of five doctors committee was held on 13.06.2014 and Form No.1C, Form No.10(Application for Approval of transplantation), No Objection Certificate of State Level Committee was verified. The applicant no.1 Deepa Garg was admitted in hospital on 15.02.2015 and renal transplant was done on 16.02.2015.
6. Learned counsel for the applicants stated, that the complainant/O.P. no.2 had personally appeared before the Revenue Authority where he had signed the document and thereafter, he also appeared before the Coordinator/Nodal Officer, Renal Transplant Authorization Committee on 25.01.2014 and before the District Level Committee on 05.03.2014. The complainant was well aware of the entire proceedings as he himself had agreed to donate his kidney and has carried out all the paper works and thereafter, transplant was carried out.
7. After six months of the transplant, the complainant became greedy and started asking for money and when it was refused, he has filed complaint before the Chief Judicial Magistrate, Baghpat under Sections 420, 467, 468, 471, 147, 148, 149, 504, 506, 328, 326 IPC. In the complaint, it was alleged that the complainant was working in the cosmetics shop of applicant no.2. Applicant no.2 asked him to donate blood as his wife Deepa (applicant no.1 herein) was ill, to which the complainant refused. Even the complainant was threatened by them to be thrown out of his job and also to kill him, if he does not agree. Thereafter, the complainant agreed for donation of blood. It is further alleged that the complainant was administered intoxicating injection due to which he fainted. Thereafter, on being called by applicant no.2, he went to his shop where the complainant told him and since he has donated blood to his wife, he is suffering from dizziness with the result he got unconscious. Thereafter, accused took him to different hospitals of Baghpat and Delhi, but health condition of the complainant did not improve. Accused used to carry one file to the hospital. It was then suspicion crept into mind of the complainant in respect of that file. So, on 25.02.20214 the complainant somehow managed to quietly pick up that file from the house of accused and brought it to his house and on the next day, he has shown that file to a doctor, who told him that according to the file, his kidney has been transplanted to Deepa Garg (applicant no.1 herein) and that is why the complainant has been suffering from dizziness and weakness. Thereafter, complainant and his wife went to the accused persons alleging that they have fraudulently got the kidney of the complainant transplanted, but the accused did not accept their fault and asked them to do whatever they want. The complainant filed an application in the Baghpat Police Station on 27.02.2015 but no action was taken. Thereafter, he moved an application on 07.07.2015 before S.P. Baghpat but again no action was taken, so he had filed complaint before the concerned Court.
8. He further submits that in the statement recorded under Section 200 Cr.P.C. O.P. no.2 stated that the accused persons had put pressure on him for donation of blood, which was done for applicant no.1. After that, he fainted and was sent home by car. On 25.02.2015, he took a file from the house of the applicants, it was then he came to know that his kidney was transplanted. Therefore, he has filed the complaint.
9. He further submits that witness namely, Aneesh in his statement under section 202 Cr.P.C. stated that on phone call he reached, Baraut where the applicants had put pressure on O.P. no.2. The applicants took him to hospital where his blood was donated to Deepa Garg. Thereafter, O.P. no.2 fainted and he was sent to home by car. The applicants had put pressure on O.P. no.2 for blood transmission and later O.P. no.2 came to know that his kidney was taken and transplanted to Deepa Garg. O.P. no.2 told that applicant has prepared forged papers of hospital.
10. He further submits that after recording of evidence, vide order dated 19.08.2015 the concerned C.J.M. has issued summons without application of judicial mind and without considering the evidence and documents, which were placed before the Committee and State, prior to sanction of permission for renal transplant. The applicant by means of instant application has challenged the summoning order dated 19.08.2015 as well as the entire proceedings of the criminal case.
11. Learned counsel for the applicants submits that the entire version of the complaint is not believable because O.P. no.2 was well aware of the entire proceedings as he had appeared before the concerned authority and after the transplant was done, he turned greedy and had filed false and frivolous complaint against the applicants stating that he was not aware of the transplant and by intoxicating him, the transplant was done illegally. He further submits that O.P. no.2 had personally appeared before the District Level Committee as well as AIIMS Committee and his photograph was also taken, which is part of the record. The averments made in the complaint are absolutely unbelievable and the entire story is concocted. If the averments in the complaint was true, then at least note of doctor or hospital would have been mentioned by the complainant/O.P. no.2, where he had gone for blood donation. He further submits that the renal transplant was done after following the entire process, which was according to Section 19 of Transplantation of Human Organs and Tissues Act, 1994. He further submits that the complaint has been filed with ulterior motive just to blackmail the applicant. He further submits that because of pendency of this case, applicant no.1, who is still not well and undergoing dialysis, is under immense mental and financial pressure. He further submits that this is a fit case for invoking inherent powers under section 482 Cr.P.C. The instant application has been preferred as there is pure abuse of process of law and no prima facie case is made out against the applicants as stated in the complaint. To buttress his arguments, he has placed reliance on a judgment passed Madras High Court in the matter of Dr. Ganesan vs. State1 and on a judgment passed by the Hon'ble Supreme Court in the matter of A.M. Mohan vs. State2.
12. Per contra, Sri S.D. Pandey, learned A.G.A. submits that the allegations of the complaint have fully been corroborated by the statements of complainant and witnesses recorded under Sections 200 and 202 Cr.P.C. He further submits that there is no illegality or infirmity in the summoning order dated 19.08.2015. Inspite of service being complete, none appears on behalf of O.P. no.2.
13. Heard learned counsel for the parties and perused the record.
14. It is evident from the record that applicant no.1 was in need of transplant and the complainant agreed to be a donor for the transplant. He appeared before the concerned authorities and has given his consent. Firstly, he appeared before the revenue authority thereafter before the District Level Committee and State Level Committee and also before the Committee of Doctors, AIIMS. At no point of time, he raised any objection regarding the proposed transplant and after the transplant was done it is apparent that after waiting for five months, he had lodged the complaint. The averments made in the complaint is that the complainant had gone to donate blood and he was administered some intoxication and thereafter he was taken to his home in a car, as he was unconscious. Later, he realized that one of his organ is missing. The Court even without looking into the correct facts and circumstances of the case and without even appreciating all the documents which the complainant had earlier executed, in a very mechanical manner has issued summons against the applicants.
15. Hon'ble Madras High Court in the matter of Dr. Ganesan (supra) has held as follows:-
"47. In the present case on hand, taking note of the fact that TOHO and Tissues Act is a special Act, 1994 and in terms of Section 13(3)(iv) of the said Act, the investigation is to be carried out by an Authorised Officer and no one else can investigate any complaint of the breach of any of the provisions of TOHO and Tissues Act or any of the rules made thereunder and take appropriate action, this Court, at this stage, to prevent an aberration of justice and to advance the cause of substantial justice, directs the Respondents 1 and 2 to handover the investigation to the Appropriate Authority viz., an Authorised Officer, who is empowered to investigate cases of breach of any of the provisions of TOHO and Tissues Act, 1994, in terms of Section 13(3)(iv) of the Act, within a period of four weeks from the date of receipt of copy of this order."
16. Hon'ble Madras High Court in the aforesaid case has held that Transplant of Human Organs and Tissues Act, 1994 is a special Act and in terms of Section 13(3)(iv) of the said Act, the investigation is to be carried out by an Authorised Officer and no one else can investigate any complaint of the breach of any of the provisions of this Act or any of the rules made thereunder.
17. In the instant case, the Court of C.J.M. seems to have adjudicated the complaint and issued summons to the present applicants. In order to meet the ends of justice, the investigation ought to have been made by appropriate authority.
18. Even otherwise, the instant complaint seems to be a pack of lies and had been initiated just to put undue pressure or to extract some financial benefits from the applicants. O.P. no.2 was well aware of the entire proceedings which has been initiated for transplant and he had appeared before the concerned authorities, and he has never raised any objection at any point of time, when he appeared before the Committee and the authority, and after the transplant was done, he has turned greedy and filed the complaint against the applicants. In para 8 of the complaint, the complainant had stated that he had gone to the house of the applicants and quietly picked up the file and thereafter he came to know about the renal transplant. The story as stated by the complainant is highly unbelievable and it is not true.
19. A bare perusal of the complaint, even if it is taken on the face value and accepted on the entirety, do not prima facie constitutes any offence. Even the evidence annexed along with the instant application are all government records and it cannot be doubted. They go to prove that no offence as alleged in the complaint is said to have been made out. The complaint is absolutely absurd and inherently improbable on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground against the appicants.
20. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal3 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-
"(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
21. The instant application falls within the guidelines as laid down by the Hon'ble Supreme Court in the matter of Bhajan Lal's case (supra). The entire proceedings initiated against the applicants is pure abuse of process of law and liable to be quashed.
22. In view of aforesaid facts and discussions, the instant application filed under Section 482 Cr.P.C. is allowed. Consequently, the entire criminal proceeding as well as summoning order dated 19.08.2015 in Complaint Case No.3371 of 2015 under Sections 147, 148, 149, 326, 420 IPC, Police Station-Baghpat, District-Baghpat are hereby quashed.
Order date : 27.04.2024 Manish Himwan