Delhi District Court
Parveen Kumar Sareen vs The State (Govt Of N.C.T Of Delhi) on 19 January, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No. 29/11
(Unique No.02406R0211712011)
Parveen Kumar Sareen
S/o Sh. Satya Pal
R/o 4 Police Line,
Amritsar, Punjab .........Revisionist
Versus
The State (Govt of N.C.T of Delhi) .........Respondent
Date of Institution : 19.08.2011
Date of reserving Order : 23.12.2011
Date of Pronouncement : 19.01.2012
ORDER
1. The present revision petition has been filed against the order dated 19.03.11 by which the Ld. Trial Court has summoned the petitioner Dr. Parveen Kumar Sareen as an accused. Aggrieved by the summoning by the Ld. Trial Court, the present revision petition has been filed.
2. Shri Manish Tiwari, Ld. Counsel for the revisionist C.R. No. 29/11 Parveen Kumar Sareen vs. The State 1/16 has argued that according to the prosecution, the transplantation in question took place sometime between 19.01.06 to 23.01.06 of complainant Mohd. Nazim. Further, it is the case of the prosecution that one Satish paid Rs.20,000/- to Mohd. Nazim and took him to Amritsar. The prosecution case is that one complainant Mohd. Nazim made a complaint on 29.08.06 wherein it was alleged by him that on or around 01.01.06 he met one Surender, who informed the complainant that by donating the kidney, Rs.1,50,000/- can be earned. Surender took the complainant to Satish and Kailash. Satish gave him Rs. 20,000/-. Thereafter, complainant alongwith Satish and Kailash went to Amritsar where they met another accused Iqbal Ahmad. Iqbal took the complainant to one Doctor Sareen who allegedly told the complainant that in case he intended to donate his kidney, he will have to tell that he is the son of recipient. Satish, Kailash, Iqbal and the complainant then reached Ranchi, Jharkhand where the complainant and accused Iqbal Ahmad met one Dr. Prashant in Prashant Nursing Home, Ranchi. Between C.R. No. 29/11 Parveen Kumar Sareen vs. The State 2/16 19.01.06 to 23.01.06, complainant was operated upon at Ranchi in Prashant Nursing Home. The complainant then came to Delhi and made a complaint to the Police against Satish and Kailash regarding non-payment of money despite demand.
3. Ld. Counsel for the revisionist has argued that on the alleged date of surgery in January 2006, Transplantation of Human Organs Act, 1994 did not apply to the State of Jharkhand as was held by the Hon'ble High Court of Jharkhand in its order dated 16.02.2006 and Authorisation Committee was constituted under Section 9(4)(b) of the Act for kidney transplantation operations in State of Jharkhand by its Health Department on 20.11.06. It has been further stated that vide order dated 19.02.11, the Ld. Trial Court called for this letter of 20.11.06 from the IO which was filed by the IO on 19.03.11. As such the Transplantation of Human Organs Act 1994 was made applicable to the State of Jharkhand on or after 20.11.06 and hence the surgery which purportedly took place on 19.01.06 to 23.01.06 at Ranchi, Jharkhand, is not covered C.R. No. 29/11 Parveen Kumar Sareen vs. The State 3/16 by the provisions of the aforesaid Act.
4. Ld. Counsel further argued that as per the prosecution, the petitioner Dr. Parveen Kumar Sareen was made a witness and his name appeared in the list of witnesses, but the Ld. Trial Court summoned the petitioner as an accused person alongwith other Doctors, which is contrary to law. Ld. Counsel has argued that a court is empowered to call any person as an accused only under the powers conferred upon it by Section 319 of Cr.P.C. However, the power under Section 319 Cr.P.C is to be exercised only in a situation when some evidence comes before the court and that evidence has to come in the form of statement of witnesses recorded during the course of examination and as per the judgment of the Hon'ble Delhi High Court in the case of 'Sanjib Ghose Roy vs. G.S. Arora & Ors', 2008 Crl.L.J. 1962 , after the said witness has even been cross-examined by the defence. Since, in this case, the evidence has not yet started, the purported exercise of power by the Ld. Trial Court in summoning the petitioner is clearly an exercise of jurisdiction beyond the C.R. No. 29/11 Parveen Kumar Sareen vs. The State 4/16 provision of law.
5. Ld. Counsel further argued that no territorial jurisdiction in this case is made out at P.S. Sarojini Nagar inasmuch as according to the complaint filed by the complainant, the alleged act took place either at Amritsar or at Ranchi, Jharkhand where the alleged surgery took place and no part of cause of action arose at Delhi except filing of complaint in P.S Sarojini Nagar.
6. Ld. Counsel further argued that in fact the very cognizance taken by the Ld. Trial Court in this matter is bad in law inasmuch as Section 22 of the Act prescribes that a complaint can be made only by an appropriate authority which is either the Central Government or the State Government. A complaint by a private person can also be filed if a notice of 60 days in advance is given by a private person to the appropriate authority showing his intention to invoke the provision of the Transplantation of Human Organs Act. Ld. Counsel has further argued that as per Section 22 of the Act, no court of a Magistrate shall C.R. No. 29/11 Parveen Kumar Sareen vs. The State 5/16 take cognizance of an offence under this Act unless a complaint is made by an appropriate authority. Appropriate authority is mentioned in Section 13 to be one or more officers, who are so appointed by the State Government by Notification for the purposes of the Act and it was the duty of the appropriate authority to investigate any complaint regarding breach of provisions of the Act and taking appropriate action on them. The word 'complaint' has not been defined in the Act and the meaning of the word 'complaint' is to be borrowed from Section 2 (d) of Cr.P.C which inter-alia provides it to be any allegation made orally or in writing to a Magistrate but not a Police report. As such argument of the Ld. Counsel is that a complaint had to be filed either by the appropriate authority or by a private person (only after giving a 60 days notice) and then only the court of Magistrate was empowered to take cognizance of the offence. In this case, no complaint was filed and only a police report/charge- sheet was filed by the Police, which according to Section 2
(d) Cr.P.C is not a complaint within the meaning of Cr.P.C C.R. No. 29/11 Parveen Kumar Sareen vs. The State 6/16 and Transplantation of Human Organs Act and hence the order of the Ld. Trial Court in summoning the petitioner is bad in law.
7. On the other hand, Ld. Addl.PP has vehemently argued that the impugned order does not suffer from any illegality and does not call for any interference by this court as the said order is a speaking order whereby only the petitioner has been summoned and no other adverse order has been passed against the petitioner/accused. It has been argued that according to the impugned order, the transplantation of kidney was done after proper planning and conspiracy which could not have been possible without the active connivance of the doctors involved in this case. Ld. Addl. PP has thus supported the impugned order and has prayed for dismissal of the revision petition.
8. I have heard both the Ld. Counsels and have perused the TCR which was summoned from the Trial Court. The division bench judgment of the Hon'ble High Court of Jharkhand dated 16.02.2006 clearly shows that the C.R. No. 29/11 Parveen Kumar Sareen vs. The State 7/16 Transplantation of Human Organs Act had not been adopted in the State of Jharkhand till that point of time. It was so stated before the Hon'ble High Court by the Secretary, Health and Family Department, Government of Jharkhand and Senior Superintendent of Police, Ranchi in their respective affidavits. As per the prosecution, transplantation in question had taken place between 19.01.2006 to 23.01.2006 at Prashant Nursing Home, Ranchi, Jharkhand. The Authorisation Committee under the Transplantation of Human Organs Act was constituted in the State of Jharkhand vide Notification dated 20.11.2006. As such, the Act came into operation in the State of Jharkhand w.e.f. 20.11.2006 and was prospective in nature and not retrospective. A perusal of the Section 22 of the Transplantation of Human Organs Act deals with cognizance of offences under the said Act. The said Section is reproduced as under:-
"22. Cognizance of offence:-
(1) No court shall take cognizance of an offence under this Act except on a complaint made by-
C.R. No. 29/11 Parveen Kumar Sareen vs. The State 8/16
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government or, as the case may be, the Appropriate Authority; or
(b) a person who has given notice of not, less than sixty days, in such manner as may be prescribed, to the Appropriate Authority concerned, of the alleged offence and of his intention to make a complaint to the court.
(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(3) Where a complaint has been made under clause
(b) of sub-section (1), the court may, on demand by such person, direct the Appropriate Authority to make-available copies of the relevant records in its possession to such person."
9. The word 'complaint' has not been defined under the Act and its definition is to be read from the Cr.P.C which provides as under:-
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an C.R. No. 29/11 Parveen Kumar Sareen vs. The State 9/16 offence, but does not include a police report."
10. In the present case, on the complaint made by the complainant to the Police on 29.08.2008, FIR No. 465/2006 was registered in P.S. Sarojini Nagar under Section 420/468/471/120B of IPC and under Section 18, 19 and 20 of Transplantation of Human Organs Act. A police report under Section 173 Cr.P.C was filed by the Police on which the case initiated. As per the definition of the word 'complaint' in Cr.P.C, Police Report is not considered as a complaint. Police Report is defined under the Cr.P.C under Section 2 (r) as follows:-
"2(r) "police report" means a report forwarded by a police officer to a Magistrate under sub- section (2) of Section 173:
11. A perusal of the Trial Court Record shows that vide order dated 27.10.2006, the challan was filed before the Ld. Trial Court and after perusing the charge-sheet, Ld. Trial Court found disclosure of commission of offence from the allegations levelled against the accused. Ld. Trial C.R. No. 29/11 Parveen Kumar Sareen vs. The State 10/16 Court thus took cognizance of the offence on 27.10.2006 and posted the matter for scrutiny of documents on 10.11.2006. As such, cognizance was taken on the charge-
sheet. In other words, there was no 'complaint' in the strict sense of law before the Ld. Trial Court on which it could have taken cognizance of the offence under the Transplantation of Human Organs Act in a legitimate manner and the court is precluded as per the scheme of the Transplantation of Human Organs Act to take cognizance on a police report, unlike done by the Ld. Trial Court in this matter. When the very cognizance of the offence under the Transplantation of Human Organs Act is unlawful before the Ld. Trial Court, the proceedings under the said Act cannot be permitted to continue any further before it.
12. So far as summoning of the revisionist for other offences under the IPC are concerned, it is observed that name of the petitioner was shown at serial No.2 in the list of the witnesses and not as an accused. The provision for C.R. No. 29/11 Parveen Kumar Sareen vs. The State 11/16 summoning an additional accused is available under Section 319 of Cr.P.C. There is no doubt that the court has power to add any person, who was not an accused before it earlier, as an accused if during inquiry or trial, sufficient evidence appears against him, indicating his involvement in the offence. However, the law on this point is well settled that this power should be used sparingly and only if compelling reasons exist for taking cognizance against a person against whom action was not taken earlier, should such person be added as an accused. In Saroj Ben Ashwin Kumar Shah vs. State of Gujarat decided on 10.08.2011, the Hon'ble Supreme Court in Para 16 of the judgment culled out the legal position with regard to Section 319 Cr.P.C and the relevant portion is reproduced below:-
"Para 16......................................................................
(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word 'evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as C.R. No. 29/11 Parveen Kumar Sareen vs. The State 12/16 accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.
(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused."
13. In 'Sanjib Ghose Roy vs. G.S. Arora & Ors' (Supra), it was held by the Hon'ble Delhi High Court as under:-
'Para 19.................................................................... From the decisions of this Court, as noticed, above it is evident that before a Court exercises its C.R. No. 29/11 Parveen Kumar Sareen vs. The State 13/16 discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused to summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. ........................
Para 20. As evident from the above, the Court exercises its discretionary jurisdiction under Section 319, Cr. P. C. upon recording satisfaction that there exists a possibility "that the accused to be summoned is in all likelihood would be convicted". Such satisfaction can be arrived at upon completion of the cross examination of the said witness. For the purpose, the Court concerned should also consider other evidence."
14. In view of the above discussion, the summoning of the accused only on the basis of material already available on record and the contents of the final report cannot be sustained in law even for the offences under the IPC.
15. The impugned order dated 19.03.2011, whereby the C.R. No. 29/11 Parveen Kumar Sareen vs. The State 14/16 summons have been issued to the petitioner, thus do not stand the judicial scrutiny and is not sustainable in the eyes of law. The impugned order qua the petitioner Parveen Kumar Sareen is, therefore, set aside.
16. In the net result, the revision petition is allowed and the impugned order dated 19.03.2011 qua the petitioner Parveen Kumar Sareen is set aside holding that the Ld. Trial Court had no jurisdiction to take cognizance of the offence under the Transplantation of Human Organs Act on the basis of the police report in this matter and also had no jurisdiction to summon the petitioner as an additional accused on the basis of the contents of the police report, without having any further additional evidence recorded during the course of inquiry or trial.
17. TCR be sent back to the concerned court alongwith a copy of this order with directions to proceed further in accordance with law for offences under the Indian Penal Code.
C.R. No. 29/11 Parveen Kumar Sareen vs. The State 15/16
18. File be consigned to the Record Room.
Announced in the open court. (RAJEEV BANSAL) Dated:19.01.2012 ASJ-3/SOUTH DISTT.
SAKET COURTS, NEW DELHI.
C.R. No. 29/11 Parveen Kumar Sareen vs. The State 16/16