Andhra Pradesh High Court - Amravati
D.Madhav vs State Of Ap on 12 July, 2019
*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ Crl.P.No.3210 of 2019
And
Crl.P.No.3211 of 2019
% 12-07-2019
Crl.P.No.3210 of 2019
# Dr. Desai Madhav, Nellore and 8 others
... petitioners
Vs.
$ Station House Officer,
Sri Potti Sriramulu, Nellore Rural.
... Respondent
Crl.P.No.3211 of 2019
# # Dr. Desai Madhav, Nellore and 8 others
... petitioners
Vs.
$ 1. Station House Officer,
Sri Potti Sriramulu, Nellore Rural.
And
2. Muthyala Raju Revu
... Respondents
! Counsel for the petitioners: Sri O.Manohar Reddy
! Counsel for the Respondents: Sri P.Raja Rao, Sri D.Suresh
Kumar and Learned Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
1
(2003) 6 SCC 175
1 (2004) 6 SCC 522
1 (2018) 6 SCC 454
1 (2009) 3 SCC 789
1 (1995) 3 SCC 248
1
AIR 1960 SC 866
1 AIR 1992 SC 604
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
Crl.P.Nos.3210 and 3211 of 2019
And
IA.No.2 of 2019 in Crl.P.No.3211 of 2019
COMMON ORDER :
Both these applications arise out the Cr.No.149 of 2019 dated 28.04.2019 on the file of the Station House Officer, Sri Potti Sriramulu, Nellore Rural, whereunder the applicants, who are A.1, A.3 to A.10 were accused of committing crimes under Section 420, 384 r/w 34 IPC and Sections 18 and 19 of the Transplantation of Human Organs Act, 1994 and also 3(1)
(e) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (for short 'the SC ST POA Act').
A fatal accident that occurred on 17.04.2019 in which one Sri E. Srinivasulu died is the genesis of this entire case. The said Sri E.Srinivasulu was admitted into a hospital called Simhapuri Hospital in Nellore. The deceased was declared brain dead and later his organs were harvested. Basing on a press report, the District Administration initiated an enquiry into this episode. A Committee of Doctors enquired into the matter and came to the conclusion that the Hospital and the Doctors were guilty of illegally harvesting the organs and directed that action must be taken. Thereafter, a crime (149/2019) was registered and an investigation began. The petitioners moved an application for anticipatory bail before the lower court which was dismissed. Then 3 Crl.P.No.3210/2019 and Crl.P.No.3211 of 2019 were filed by the applicants, who are A.1 to A.3 to A.10 for quashing the proceedings and to grant anticipatory bail respectively.
On behalf of the wife of the deceased, an application (IA.No.2 of 2019 in Crl.P.No.3211 of 2019) was filed to implead her as a respondent. The said application is allowed and the applicant/ wife of deceased was permitted to be come on record. Office is directed to make the necessary changes.
This Court has heard Sri O.Manohar Reddy, learned counsel for the petitioners and Sri P.Raja Rao, D.Suresh Kumar, learned counsels for the intervener and the Learned Advocate General for respondent-State.
Since the issues raised in these cases are interlinked, they were taken up for hearing together.
Sri O.Manohar Reddy, learned counsel for the petitioners submits that the entire case of the petitioners rests upon the report dated 26.04.2019 given by the Committee of Doctors. He submits that the Committee of Doctors relied upon the Transplantation of Human Organs Act ignoring the fact that the Andhra Pradesh Government has enacted its own Act called A.P. Transformation of Human Organs Act, 1995 (Act 24 of 1995). Therefore, he submits that the offences alleged are not applicable at all. He draws the attention of this Court to Act, 24 of 1995 of the Andhra 4 Pradesh. Government and also the Transplantation of Human Organs Act, 1994 (Act, 22 of 1994). In addition, learned counsel also relies upon the Rules framed by the Andhra Pradesh Government under Act, 21 of 1994 for a scheme which is popularly known as "Jeevandan scheme". He relies upon G.O.Ms.No.184 dated 16.08.2010 under which the harvesting and transplantation of human organs is permissible in the State of Andhra Pradesh. Learned counsel submits that the Doctors acted strictly as per the scheme as formulated by the Government and they harvested only one kidney from the deceased. The rest of the organs were harvested and sent to other hospitals and other recipients. He points out that there is absolutely no commercial transaction in this entire episode and that as the Organ Transplantation Centre (OTC), the hospital was entitled to one kidney as per this 'Jeevandan Scheme' and that it used only one kidney for the benefit of a needy patient after securing the consent of the wife of the deceased. Learned counsel also submits that neither section 420 IPC nor 384 IPC are applicable to the facts and circumstances of the case. He also submits that the subsequent inclusion of the SC ST POA Act, based on an opinion of a learned Public Prosecutor is also incorrect and that Section 3 (i) (e) of the SC ST POA Act does not apply.
In view of the fact that the TOHO Act does not apply and since other sections that are alleged also do not apply, 5 the learned counsel prays for quashing of the proceedings as he contends that continuing the proceedings would amount to abuse of process of Court. He also submits in the alternative that as the SC ST POA Act does not apply, the bar contained under the Act will not also apply and therefore, in the alternative he states that the petitioners are entitled to anticipatory bail.
The counsel for the implead petitioner, wife of the deceased, commenced his arguments first. He very vehemently and strongly opposed the prayers. He pointed out the sequence of events relying upon the report of the committee of Doctors. He states that the Doctors exploited the innocence of the Schedule Tribe woman who is the wife of the deceased and have commercially exploited the cadaver. He submits that the SC ST POA Act squarely applicable and that Section 3(1)(e) of the SC ST POA Act applies to the facts and circumstances of the case. Relying heavily on the sequence of events, the learned counsel points out that the offences mentioned did take place and that therefore, petitioners are not entitled to either quashing of the proceedings and/or anticipatory bail.
Learned Advocate General appearing for the State also argued that the power to quash proceedings should be exercised sparingly. He submits that if a prima facie case is there, the power to quash should not be exercised. He also 6 points out that the FIR is not an encyclopedia and that even if the wrong section or the wrong Act is mentioned, the entire proceedings cannot be quashed. Learned Advocate General also points out in the alternate that Section 19 of the Central Act and the State Act are in pari materia and that the facts of the case make it clear that an offence was committed even if it is held that it is only the State Act that is applicable. He also submits in reply to the query of the Court that even the deceased is entitled to dignity and fair treatment and that Section 3(1) (e) of the SC ST POA Act is applicable. Learned Advocate General relies upon Superintendent of Police, CBI v. TapanKumarSingh1State of A.P. v. Golconda Linga Swamy2, Dr. Subhash Kashinath Mahajan v. State of Maharashtra3, Ashabai Machindra Adhagale v. State of Maharashtra4 and Pt.Parmanand Katara, Advocate v. Union of India5. He also states that the principle of ejusdem generis should be applied to the interpretation of Section 3(1)
(e) of the SC ST POA Act and argues that the harvesting of a kidney would come within the ambit of Section 3(1) (e) of the SC ST POA Act.
1 (2003) 6 SCC 175 2 (2004) 6 SCC 522 3 (2018) 6 SCC 454 4 (2009) 3 SCC 789 5 (1995) 3 SCC 248 7 This Court is conscious of the fact that the power under Section 482 Cr.P.C. is extremely wide but that it should be very sparingly used. As held by the Hon'ble Supreme Court of India in large number of cases R.B. Kapoor v. State of Punjab6 this power should be sparingly used. Of all the decisions that are available on this subject, State of Haryana v. Ch. Bhajan Lal7 is regarded as the locus classicus. Therefore, the application to quash the proceedings under Section 482 Cr.P.C. is being examined against the back drop of the settled law on the subject. Report of Committee of Doctors and the facts:
As mentioned earlier, the crux of the matter is the report given by the Committee of Doctors who have conducted an enquiry into the entire issue. The report of the committee has been filed as a material paper by the petitioners. The sequence of events that occurred on 18.04.2019 to 20.04.2019 are given in a tabular statement at pages 6, 7 and 8 of this report.
The important parts of the sequence are detailed below. (1) Patient admitted into hospital on 18.04.2019 at 01.34 a.m. mid night. (2) Nephrologist notice that the kidneys of this patient are suitable for transplantation at 09.30 a.m. on 19.04.2019 (Sl.No.4). (2) The brain-stem death of the 6 AIR 1960 SC 866 7 AIR 1992 SC 604 8 deceased was first assessed at 2.00 p.m. on 19.04.2019. (3) Second examination of the brain-steam death was at 8.00 p.m. on 19.04.2019 (Col.7). (4) the patient was formally declared as brain-stem dead at 8.00 p.m. on 19.04.2019 (col.8). Therefore, it is clear that the doctors came to a conclusion that the deceased was brain dead at 8.00 p.m. on 19.04.2019. The counseling for organ donation of the wife began at 01.37 p.m. on 19.04.2019 (col.9). Although the doctors used the terms a.m. and p.m. rather loosely, the observation shows that the counseling began much prior to the first examination of the brain-stem death. The counseling began at 1.37 p.m. in the afternoon itself whereby the wife was counseled and motivated towards organ donation (col.9).
The recipient of the organ/the patient who needed the organ was admitted into the hospital in the evening at 5.26 p.m. on 19.04.2019. This is much prior to the declaration of the patient as brain dead. (col.15). The kidney of the deceased was allotted to the hospital at 10.15 p.m. on 19.04.2019 and the approval under the "Jeevandan Scheme"
was at 8.46 p.m. on 19.04.2019 (col.12 and 13). Therefore, the recipient of the kidney was informed prior to the allotment of the kidney itself and she was admitted into the hospital on 19.04.2019 at 5.26 p.m prior to the deceased being declared brain dead and before the allotment of the kidney under the Jeevandhan scheme.9
This sequence of events shows that even before the deceased was declared brain dead, the Nephrologists opined that the kidneys are suitable for transplantation and the recipient of the kidney was also informed. She traveled from her house and got herself admitted into the hospital by 5.26 p.m. Under the "Jeevandan Scheme" the permission was granted at 8.46 p.m. and the kidney was allotted at 10.15 p.m. on 19.04.2019, but the patient who was received the kidney was already admitted into the hospital by then.
The report also shows that the Simhapuri Hospital, Nellore waived the entire bill of Rs.1,28,354/-. In addition, they also paid a sum of Rs.20,000/- to the family of the deceased. These are the events that can be gleaned from this report.
Submissions:
Learned counsel for the petitioners argued that the Government of Andhra Pradesh itself is encouraging the transplantation and harvesting of organs from cadavers and that in this case the hospital merely followed the said procedure. He stated that cases for medical emergencies cannot be examined with a micro scope and that certain amount of latitude should be given to the doctors who act against great pressure. He submits that the intimation was given to the Jeevandan authorities and after securing the permission of the Jeevandan authorities only one kidney was 10 taken by this hospital and the other kidney, heart and two corneas were sent to other hospitals and to other recipients. Learned counsel relies upon clause 8.8 of the "Jeevandan Scheme" under G.O.Ms.No.184 dated 16.08.2010 under which the organ transplantation center is entitled to register itself under the scheme and also has the first priority for liver, heart and one kidney. Therefore, learned counsel submits that the Simhapuri hospital took one kidney alone under 11.5.2 and that they followed the law/rules on the subject.
He also argues that the harvesting of an organ from a cadaver will not come within the meaning of "atrocity" that is defined in Section 3(1) (e) of the SC ST POA Act.
In reply to this, the learned counsel for the intervener relied strongly on the sequence of events and points out that the sequence of events clearly show a pre-meditated design to harvest the organs. Waiver of the hospital fees clearly shows that there was a quit pro quo or a commercial dealing as per the learned counsel by exploiting the poverty and ignorance of a scheduled tribe lady.
Learned Advocate General argues that section 19 of the Central Act (42 of 1994) is in pari materia and Section 19 of the State Act (Act 24 of 1995) He submits that even if the Central Act is not held to be applicable for the sake of argument, the offence in this case is squarely covered by section 19 of the State Act. Learned Advocate General argues 11 on the basis of the case law that a FIR is not an encyclopedia. The mere fact that a wrong section of law is mentioned in the FIR cannot lead to a conclusion that the entire offence is false. Learned Advocate General relies upon Tapan Kumar Singh's case (1 supra) to support his arguments. He submits that the basic ingredient of harvesting of an organ from a cadaver without the clear consent of the spouse, making advance preparations for harvesting the organ even before the patient was declared brain dead, informing the recipient of the kidney to the hospital and ensuring her admission into the hospital even before the patient was declared brain dead and finally the waiver of the entire hospital fees clearly shows that the hospital and the doctors are correctly charged under the law for the time being in force. Learned Advocate General submits that since more than a prima facie case is visible from the sequence of events in the Committee report, quashing of the proceedings is not permissible. He relies upon the case of Golconda Linga Swamy (2 supra). COURT:
This Court, after hearing the learned counsel, considering the submissions made and after perusing the records, notices that the sequence of events that are detailed in the doctors report which lead to the filing of the FIR do show that the preparations for harvesting the kidney began even before the patient was declared as brain dead. The doctors' observation in the case sheet that the kidneys are 12 suitable for transplantation and the admission of the recipient of the harvested kidney much prior to the patient being declared brain dead are important facts. The Jeevandan authorities gave the approval at 8.46 p.m. on 19.04.2019 and the kidney was allotted to the Simhapuri hospital by Jeevandan for the recipient at 10.15 p.m. on 19.04.2019. But, prior to that itself the recipient was admitted into the hospital. In addition, the waiver of the fee of Rs.1,28,354/- and the payment of Rs.20,000/- does lead to a prima facie conclusion that the kidney was harvested for commercial purposes.
In view of the fact that a prima facie case is made out, this Court is of the opinion that the entire proceedings cannot be quashed at this stage. The law is fairly well settled-if prima facie material is available the power to quash proceedings should not be exercised.
SC ST POA Act and its applicability:
What then survives for consideration in this application and as a consequence in the other application Crl.P.No.3210 of 2019 is the applicability of the SC ST POA Act to the facts. If the SC ST POA Act applies the petitioners are not entitled to an anticipatory bail.
Admittedly, in this case, the kidney and other organs were harvested or taken out from the body of the deceased. A lot of argument was advanced on the applicability of this Act, 13 to the facts. Initially, the FIR was registered under the provisions of the IPC and the Transplantation of Human Organs Act only. Later, after the opinion of the Public Prosecutor was obtained, section 3(1)(e) of the SC ST POA Act was also included in the FIR by following the procedure prescribed under law.
Section 3(1)(e) of the said Act has been included by the 2015 Amendment which is to the following effect:
3.Punishments for offences atrocities--3 (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-- ------------
(e) forcibly commits on a member of a Scheduled Caste or a Scheduled Tribe any act, such as removing clothes from the person, forcible tonsuring of head, removing moustaches, painting face or body or any other similar act, which is derogatory to human dignity;
The learned counsel for the petitioner/applicant argues that it is only if an atrocity is committed against a living person, the Act is applicable. Learned counsel relies upon the scheme of the Act, the rules of compensation etc., that are provided therein and argues that if an offence is committed against a victim, punishment is prescribed under the Act. He also draws the attention of the Court to the compensation scheme that has been enumerated in the Act and the Rules 1995 which talks of payment of compensation to the victim in 14 most cases and payment of compensation to the victims' family in certain cases. Therefore, he argues that only if the victim is alive and is subjected to an atrocity the act will be applicable. He submits that the act was enacted to ensure that members of the SC ST community are not subjected to indignities, abused in the name of their caste etc. He therefore argues that the harvesting of organs from a cadaver or body would not come within the atrocity that is sought to be prevented by this Act.
Learned Advocate General on the other hand argues that even a dead body is entitled to be treated with respect and that Article 21 of the Constitution of India along with its safeguards would apply. He submits that the right to dignity and fair treatment under Article 21 of the Constitution of India is not merely available to a living man, but also to his body after his death. He relies upon Pt.Parmanand Katara, Advocate's case (5 supra) to buttress the submission. In addition, by reading Section 3(1)(e) of the SC ST POA Act, the learned Advocate General submits that the words "any other similar act" which occur in this Section would also extend to harvesting of a kidney. He relies on the principle of ejusdem generis and argues that similar words should be interpreted in a like manner encouraging the cause/purpose rather than an interpretation that would defeat the provisions of the Act. Learned Advocate General submits that the transplantation of 15 removing of kidney would fit within the definition of Section 3(1)(e) of the SC ST POA Act.
This Court after hearing the submissions of the learned counsel notices that the word "atrocity" is not defined in the Act. It merely states that atrocity is an offence punishable under Section 3 of the Act. Section 3 of the SC ST POA Act defines various types of offences. A majority of the offences described in Section 3 of the SC ST POA Act (a) to (z) deal with offences against a "live" or "living" member of the Schedule Caste and Schedule Tribe. A few of the offences like 3(1)(t)(u) (v) deal with inanimate objects or things which are revered or treated with respect. In Section 3(1) (t) destruction, damage or defiling of a sacred object is dealt with. Section 3(1) (u) deals with an attempt by words signs or otherwise to promote enmity or ill-will of schedule caste and schedule tribes. Section 3 (t)(v)(u) talks of an offence committed by means of disrespect to the deceased person who is held in high esteem by the schedule caste and schedule tribes. Almost all the other offences deal with living human beings and offences being committed against them.
Even that the definition of a "victim" under Section 2 talks of an individual, who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of offence and includes his relatives. Therefore, a victim 16 necessarily has to be a person who has personally experienced the physical, mental, psychological emotional or monetary harm.
Again atrocity as per Black's Law Dictionary- 10th edition- means 1. an extremely cruel and violent act especially one committed in war, an instance of extreme heinousness. 2. the quality, state or condition of extreme cruelty or criminality - enormous wickedness.
The judgment in Pt.Parmanand Katara, Advocate's case (5 supra) is a judgment in the peculiar facts of that case. This Court also agrees that a human body deserves to be treated with respect. But the question is - Was an "atrocity" committed in this case?
In the case on hand, if the actions of the Doctors are examined against the backdrop of the scheme of the Act and the purpose for which it is enacted and the term atrocity, it cannot be said that the harvesting of an organ was an atrocity that was committed against a member of the schedule caste and schedule tribe. The Doctors harvested an organ and gave it to a recipient. Whether it was done for a commercial purpose or not and whether it is in contravention of the State or Central Government are matters which have to be decided during the course of trial. At that stage, the Doctor, who harvested the organ would have harvested the same whether the deceased was a member of the schedule caste and 17 schedule tribe or not. It is a case of harvesting of an organ. The caste or tribe of the cadaver was hardly material at that stage. Whether it is lawfully done as per the "Jeevandan Scheme" or not is a matter of investigation.
The argument of ejusdem generis and the consequent interpretation appeared good at the first blush. It is however to be remembered that this is a rule of construction and not a rule of substantive law. In addition Sec 3(1) (e) the SC ST POA Act was added by the 2016 amendment which was brought in as the Legislature felt that the provisions of the existing act were not enough to deal with the situation. The Legislature did not define an atrocity nor did it prescribe that an offence against a cadaver would also amount to an atrocity. By interpreting the sub section as the learned Advocate General suggests would mean including or creating a new offence by judicial interpretation.
Apart from all of this - the reading of the words shows that section 3(1) (e) of the SC ST POA Act deals with an atrocity, which is defined as follows- removing clothes from the person, forcible tonsuring of head, removing moustaches, painting face or body or any other similar act, which is derogatory to human dignity. The general words will take their colour or meaning form the Therefore, even if the ejusdem generis rule is applied, "any similar act" would mean any similar act like removing moustaches, painting face or 18 body etc., but it will not include the harvesting of a kidney from inside a dead body.
Even otherwise Section 3 (1)(e) of the SC ST POA Act starts with the word -"forcibly" which implies the use of some physical force against a persons will or under coercion or compulsion. The use of this word again presupposes the existence of life and the lack of consent which cannot exist in this case as a cadaver was involved.
Therefore, if a doctor harvests an organ, it cannot be said by any stretch of interpretation that he has committed an "atrocity" under the SC ST POA Act more so under Sec 3(1)(e) of the SC ST POA Act. As per the Doctors version, the wife gave consent and as a token of gratitude they have not charged the hospital expenses. Whether this is the payment or consideration for harvesting a human organ will have to be determined, but it definitely cannot be said to be an "atrocity". There is neither extreme cruelty nor violence nor is there any heinous crime involved in this case. The version of the Doctors in this case is that as per the "Jeevandan Scheme" they are entitled to and that they have harvested the organ.
Hence, this Court is of the opinion that no atrocity that is committed in the facts of this case. Section 3(1) (e) of the SC ST POA Act thus does not apply to the facts and circumstances of the case. As the section or the Act itself is 19 not prima facie attracted, this Court is of the opinion that the continuation of the trial under the SC ST POA Act would amount to an abuse of process of Court.
Hence, Crl.P.No.3211 of 2019 is partially allowed. The applicability of the SC ST POA Act is ruled out and FIR to that extent is quashed. The investigation can continue with regard to the other offences mentioned in the FIR.
Since this Court has held that the SC ST POA Act is not applicable, the bar under Section 18 of the Act will not come in the way. The petitioners in Crl.P.No.3210 of 2019 namely A.1, A.3 to A.10 are entitled to an anticipatory bail as prayed for.
Accordingly, Crl.P.No.3210 is allowed and petitioners/A.1, A.3 to A.10 are directed to be released on bail, in the event of their arrest in Crime No.149 of 2019 of Station House Officer, Sri Potti Sriramulu, Nellore Rural, on their executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two sureties in a like sum each to the satisfaction of the Station House Officer, Sri Potti Sriramulu, Nellore Rural. Further, the Doctors shall cooperate with the investigation and shall appear before the Station House Officer whenever their presence is required. The Station House Officer, Sri Potti Sriramulu, Nellore Rural is also directed to keep in view the responsibilities/duties of the Doctors and summon them with adequate advance written 20 notice whenever their presence is necessary for investigation. The conditions as per Section 438(2) Cr.P.C shall also be strictly adhered to by the petitioners. None of them will travel abroad or leave the country without informing the Station House Officer, Nellore Rural Police Station.
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
_________________________ D.V.S.S.SOMAYAJULU,J Date: 12.07.2019 Note: L.R. copy be marked.
KLP