Delhi District Court
Dr. Rajinder Singh vs The State on 24 December, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
CR No.3/08
Dr. Rajinder Singh,
S/o Sh. Jawahar Singh,
R/o H. No.331, Medical Enclave,
Circular Road, Amritsar, Punjab. .....Revisionist.
Versus
The State .....Respondent.
A N D
CR No.28/08
Sushil Arya,
S/o Sh. Yashpal Arya,
R/o C2/27, West Enclave,
Pitampura, Delhi34. .....Revisionist.
Versus
The State .....Respondent.
A N D
CR No.29/09
Praveen Kumar Sareen
S/o Satya Pal,
House No.4A, Police Line,
Amritsar, Punjab .....Revisionist.
Versus
The State .....Respondent.
(CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 1 of pages 37
J U D G M E N T
1. By this common judgment, I shall dispose off the following three revision petitions filed by three different revisionists:
(a). CR No.28/08 titled as Sushil Arya Vs. State,
(b). CR No.29/09 titled as Praveen Kumar Sareen Vs. State,
(c). CR No.3/08 titled as Dr. Rajender Singh Vs. State.
2. All the aforesaid revisionists are impugning the orders dated 14.07.2008 and 19.09.2008, passed by Ld. MM/Delhi, whereby the Ld. MM/Delhi in case bearing FIR no.153/03 PS Lahori Gate titled as State Vs. Om Prakash Mahajan & Ors., was pleased to frame charges U/s 420/467/468/471/120B IPC and Section 18, 19 & 20 of the Transplantation of Human Organ Act, 1994 against the accused persons including the present revisionists, the revisionists/petitioners have preferred the present three petitions.
3. Factual matrix of the case (as per prosecution brought up before the Trial Court) relevant for the purpose of disposal of the present petitions are that the complainant Sikandar Ali S/o Yaseen Ali R/o Gali No.1, Majeed Pura, Buland Sehar Road, Hapur, U.P made a complaint on 29.05.2003 that he is doing the work of mason. Around 23 years (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 2 of pages 37 ago he came to Fatehpuri Delhi from Hapur in search of work. He used to search work at Fatehpuri Chowk. One day, when he was present at Labour Chowk, one blue colour Santro car stopped near him and one person, after calling him by indication, asked him to do some marble repair work at his home at Lawrence Road. Complainant accompanied him. In the way, he impersonated himself a builder and introduced himself as Sushil Arya. He offered him a job of foreman in his company. The complainant agreed to do work with him. At about 4.30 PM, he sent the complainant to one Doctor for blood checking. He gave Rs.2,000/ as an advance to the complainant. In the meanwhile, another person came there and he also impersonated himself as a builder and he also assured the complainant to make his life luxurious. Sushil Arya told the complainant that his company is in Amritsar where he has to go for some test. After 34 days, complainant alongwith Sushil Arya, his wife, Nannu (son of Doctor Neeraj's sister) reached Amritsar at the residence of the relative of Sushil Arya, thereafter, they sent the complainant to Ambala alongwith Nannu by train. Nannu always accompanied the complainant and did not allow him to talk with (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 3 of pages 37 anybody. After 10/15 days, Sushil Arya alongwith his wife came from Delhi and again took the complainant to Amritsar where Neeraj asked the complainant to sign some paper and told him that he has to admit in a hospital for two days. On the next day, accused Sunil Arya, Nannu and Neeraj got the complainant admitted at Kakkar hospital where Dr. P.K. Jain gave him two injunctions and he became unconscious. He regained his consciousness in the night and felt severe pain. It was raining outside. Nannu, his mother, sister, Neeraj, Kamal and so many relatives of Sushil Arya were sitting there. He became nervous. When he asked about Sushil Arya, he was answered unsatisfactorily that Sushil Arya is unwell. Complainant remained at Amritsar for 45 days, then after 8 to 10 days, he was brought to Delhi by Nannu in his car. The complainant stayed at the house of Sushil Arya at Lawrence Road, Delhi where after 45 days Sushil Arya and his wife returned back to Delhi from Amritsar. On asking of the complainant as to what they have done with him, the wife of Sushil Arya told him that they have got his kidney transplant to Sushil Arya and beg mercy for the same. She also promised to give Rs.2,00,000/ to complainant. They gave Rs.5,000/ (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 4 of pages 37 and two pairs of cloths to complainant and gave assurance to give balance amount after one month. After one month, when complainant returned back from his village and asked his balance amount, Sushil Arya slapped him and threatened to kill him. On the complaint of complainant, FIR was registered U/s 420/467/468/471/ 474/120B IPC and U/s 18, 19 & 20 of the Transplantation of Human Organ Act, 1994. It is the allegation of the complainant that he was misled by Sushil Arya and his family and was taken to Amritsar from Delhi where he was forcibly detained and disallowed to communicate with anyone and his kidney has been removed without his consent, playing fraud upon him and said Sushil Arya is not even his relative. There are other allegations against the authorization committee that they have not inquired as per rules and law of natural justice. They have not inquired whether relatives of the donor are alive or not. There are also allegations that Dr. Rajinder Singh, one of the above mentioned appellants, has not participated in the meeting of authorization committee. The meeting of the authorization committee was over when he reached in the meeting of committee but still he has signed the (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 5 of pages 37 approval of removal and transplantation of kidney. It is further allegation against the doctors and other members of the hospital namely Ram Sharan Dass Kishori Lal Charitable Trust Hospital that they have hatched a criminal conspiracy to get the kidney of the complainant removed and the same to transplant in the body of accused Sushil Arya alongwith co accused. It is also alleged that in Kakkar Hospital, Amritsar, Dr. P.K. Jain was also known as Dr. P.K. Sareen. It is also the case of the prosecution that the documents pertaining to the Kidney transplant i.e. an affidavit is forged as has come on an investigation from Punjab. It is also the case of the prosecution that the relatives of the complainant as well as other officers have been examined during the course of investigation, specimen signatures of the revisionist Praveen Kumar Sareen alongwith others have been obtained qua which a CFSL report was submitted.
4. The revisionist Praveen Kumar Sareen is assailing the aforesaid impugned orders on the grounds that Ld. MM/Delhi has failed to appreciate the facts of the instant matter in the correct light and has (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 6 of pages 37 failed to apply and follow the spirit of the Transplantation of Human Organs Act, 1994. It has not been appreciated that the alleged offence was committed in Amritsar in the state of Punjab and therefore, Ld. Trial Court lacks territorial jurisdiction to try the instant matter. Section 177 Cr.P.C specifically provides that every offence shall ordinarily be inquired into and tried by a Court in whose local jurisdiction it was committed. It is also not appreciated that there is no credible evidence available on record nor there is any statement of any witness which clearly defines the role of the present petitioner or even identify him as precipitator of the alleged offence. It was not appreciated that even in his deliberated and delayed complaint, the complainant alleged that one Dr. P.K. Jain injected medicines on his right arm, consequent to which he fell unconscious and thereafter when he regained his conscious, he found merely the relatives of said Sushil Arya, thereby establishing that the complainant was never attended or communicated by the petitioner in any manner, whatsoever. Ld. MM/Delhi also failed to appreciate that in his statement, the complainant has categorically stated that Dr. P.K. Jain was also known as Dr. P.K. Sareen in Kakkar (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 7 of pages 37 Hospital in Amritsar and as such no link or connection of the petitioner has been established in the commission of the alleged offence. It was also not appreciated that while dealing with warrant trial case, he was required to follow the procedure of Section 239 Cr.P.C which demands that the Magistrate shall discharge the accused if upon considering the police report and the documents sent with the same, he finds the charge against the accused to be groundless. In the instant case, it was incumbent upon him to consider the charge sheet and the documents while passing an order on charge which no where inculpates the present petitioner in any manner. It has further claimed that Ld. MM/Delhi has failed to appreciate that he was empowered to take cognizance by virtue of Section 22(1) of the Transplantation of Human Organ Act, 1994, which however, desires that the complaint in respect of offence u/s 18/19/20 of the Transplantation of Human Organ Act, 1994 has to be necessarily made by either the appropriate authority concerned or any other officer authorized in this behalf by the Central/State Government or by a person with a prior 60 days notice to the appropriate authority and in this case, the appropriate authority (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 8 of pages 37 must be necessarily from Punjab as the offence alleged is occurred there and as such the Chief Medical Officer (NCT of Delhi) had no power or authority to lodge complaint in the instant case. In the present case the appropriate authority is the Director Research and Medical Education, Punjab, Chandigarh. The contents of the letter dated 21.09.2005 has been misread and misunderstood as the said letter stated that State Government can make a complaint besides the appropriate authority, however, even if the said letter is considered to be a valid document then also the state government must be that of State of Punjab and not that of Delhi. Even the certificate dated 22.02.2001 of the Authorization Committee does not bear the signature of petitioner nor it indicates his involvement. As such there is no material on record to justify framing of charges qua the petitioner. It is also claimed that even in the impugned order, the Ld. MM/Delhi has at one place found the certificate in question filed by Dr. Praveen Kumar Jain and P.K. Jain of the Authorization Committee regarding the inquiry with regard to the suitability of the donor and in the same page he has wrongly concluded that the certificate of Dr. P.K. Sareen was verified (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 9 of pages 37 and the name of the Dr. P.K. Sareen was popped for the first and last time in the entire order. Even in the alleged certificate there are three signatures and none of them is that of the present petitioner as a donor surgeon. Further as per the report of the CFSL none of the documents contain handwriting of the present petitioner. The certificate dated 20.02.2001 which purportedly certified the unsuitability of relatives of Sushil Arya and donors or that of his disease does not contain signature of the petitioner. Further there is no evidence of cheating or allegation of forgery of any valuable security and as such the charge also could not be framed U/s 420/467 IPC. Finally, it is claimed that the suspicion how so ever strong can not take place of the legally admissible evidence.
5. The petitioner Dr. Rajender Singh has challenged the impugned orders on the ground that the Ld. MM/Delhi had passed the impugned orders without having jurisdiction to pass the same. He had failed to appreciate that the facts of the present case itself reflect that the prosecution had filed charge sheet against the revisionist by categorically saying that the sanction for prosecution is being sought (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 10 of pages 37 for persecution of the revisionist, and vide supplementary charge sheet it was made clear by the prosecution that the sanctioning authority of the revisionist has refused to accord sanction as contemplated U/s 197 Cr.P.C. Since the charge sheet itself contain the averments that according to the prosecution requirement of seeking sanction U/s 197 Cr.P.C is a must and it is being sought also therefore, the court by itself can not permit the prosecution to change the stand after the sanction of such prosecution had been refused by the competent authority. Hence the impugned orders are bad being against the express dictum of law. Interestingly there exists and indication in the charge sheet itself that the sanction U/s 197 Cr.P.C is being sought from Punjab Government, and after obtaining the same, fresh challan U/s 173 Cr.P.C would be filed. The orders are illegal and are in perverse in nature. The only role purported to have been performed by the revisionist in this case is that he has signed some document, relating to authorization given to Kakkar Hospital in his official capacity. This role is purely related to public duties, performed by the public servant. In this view of matter, sanction from Punjab Government is a condition precedent, as (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 11 of pages 37 contemplated U/s 197 Cr.P.C. It is claimed that the revisionist was neither the doctor who performed the operation nor he was the doctor who was associated with any of the acts which would be said to have caused the committal any of the offences so alleged in the FIR or in the charge sheet, thus the summoning of the revisionist even merits on this ground is also bad in law. As it is an admitted case of the prosecution that the alleged act of transplantation of human organ had taken place in Punjab so none of the sanction i.e. Section 18/19 & 20 of the Transplantation of Human Organ Act, 1994 (herein after shall refer to as the Act) stands attracted in the alleged act of signing the authorization. There exists no evidence of alleged conspiracy amongst the revisionist and rest of the accused persons.
6. The third revisionist Sushil Arya has challenged the impugned orders on the grounds that the impugned order dated 14.07.2008 is not a reasoned order and hence deserves to be set aside. He further claimed that the Ld. MM has failed to appreciate that the cognizance of the offence was already taken by the court of Amritsar in case FIR no.101/02 U/s 420/467/468/471/419/295A/109 & 371 IPC and Section (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 12 of pages 37 18/19/20 of the Transplant of Human Organ Act at PS D. Division, Amritsar and the accused/petitioner Sushil Arya had been arrayed as a witness there. It has not been appreciated that the cognizance is taken of the offence and not of the offender. When the cognizance of the offence of illegal transplantation of Kidney has already been taken by a court of competent jurisdiction, it can not again be taken by another court merely because a few more persons have been named as accused in the subsequent complaint. It has also not been appreciated that transplantation of Human Organ Act particularly section 22 specifically prohibits the courts from taking cognizance of any offence under the said Act except on a complaint made by the appropriate authority or as prescribed in Section 22 (b). In the present case, the complaint has not been made by the appropriate authority, rather by an individual and that too without complying the provisions of the Act and as such the trial court has thus erred in farming the charge for the offences under the said Act. The charges have been framed mechanically. The Ld. MM/Delhi had no territorial jurisdiction to try the said offence. The charge U/s 420 IPC for inducing the complainant to (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 13 of pages 37 deliver kidney to the accused ought not to have been framed as there is a special statue relating to the illegal transplantation of human organ. Thus the provisions of IPC can not be invoked. The Ld. MM/Delhi had proceeded to frame charges mechanically under all the offences against all the accused and mechanically repeated the date, time and place of occurrence. The charges as framed are vague. There were no allegation that the affidavit of the complainant was forged by the petitioners/accused and thus there can not be any charge U/s 469/468/471 IPC against him. It is also claimed that the alleged forged and fabricated documents have not been filed, rather the copies thereof have been annexed. The charges for the offence of forgery can not be levelled in absence of original documents. It is also claimed that there is no expert opinion or report about the handwriting on the documents allegedly to be forged. It is also claimed that the case in hand has been filed after about three years of incident.
7. I have carefully heard the rival submissions of counsels for the parties. I have also perused the entire material placed on record particularly the impugned orders, the contents of the revision petitions (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 14 of pages 37 specially the grounds taken therein as well as the record summoned from the Trial Court, which is lying with the revision file bearing CR No.3/08.
8. As per submissions of Ld. counsel for the revisionist Praveen Kumar Sareen, it is not appreciated by Ld. Trial Court that there is no credible evidence available on record nor there is any statement of any witness which clearly define the role of the present petitioner or even identify him as precipitator of the alleged offence. It was also not appreciated that even in his deliberated and delayed complaint, the complainant alleged that one Dr. P.K. Jain injected medicines on his right arm, consequent to which he fell unconscious and thereafter when he regained his consciousness, he found merely the relatives of said Sushil Arya, thereby establishing that the complainant was never attended or communicated by the petitioner in any manner, whatsoever. There is no witness to establish the identify of the revisionist as the person, who committed the offence in question. The role of petitioner is not even discussed to justify the framing of charges against him. It is also not appreciated that the alleged offence was (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 15 of pages 37 committed in Amritsar in the state of Punjab and therefore, Ld. Trial Court lacks territorial jurisdiction to try the instant matter. Section 177 Cr.P.C specifically provides that every offence shall ordinarily be inquired into and tried by a Court in whose local jurisdiction it was committed. Further in his statement, the complainant has categorically stated that Dr. P.K. Jain was also known as Dr. P.K. Sareen in Kakkar Hospital in Amritsar and as such no link or connection of the petitioner has been established in the commission of the alleged offence. Further, while dealing with warrant trial case, the court was required to follow the procedure of Section 239 Cr.P.C which demands that the Magistrate shall discharge the accused if upon considering the police report and the documents sent with the same, he finds the charge against the accused to be groundless. In the instant case, it was incumbent upon the Trial Court to consider the charge sheet and the documents while passing an order on charge which no where inculpates the present petitioner in any manner. Further, Ld. MM/Delhi has failed to appreciate that he was empowered to take cognizance by virtue of Section 22(1) of the Transplantation of Human Organ Act, (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 16 of pages 37 1994, which however, desires that the complaint in respect of offence u/s 18/19/20 of the Transplantation of Human Organ Act, 1994 has to be necessarily made by either the appropriate authority concerned or any other officer authorized in this behalf by the Central/State Government or by a person with a prior 60 days notice to the appropriate authority and in this case, the appropriate authority must be necessarily from Punjab as the offence alleged is occurred there and as such the Chief Medical Officer (NCT of Delhi) had no power or authority to lodge complaint in the instant case. In the present case the appropriate authority is the Director Research and Medical Education, Punjab, Chandigarh. The contents of the letter dated 21.09.2005 has been misread and misunderstood as the said letter stated that State Government can make a complaint besides the appropriate authority, however, even if the said letter is considered to be a valid document then also the state government must be that of State of Punjab and not that of Delhi. Even the certificate dated 22.02.2001 of the Authorization Committee does not bear the signature of petitioner nor it indicates his involvement. As such there is no material on record to justify framing of (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 17 of pages 37 charges qua the petitioner. Even in the alleged certificate there are three signatures and none of them is that of the present petitioner as a donor surgeon. Further as per the report of the CFSL none of the documents contain handwriting of the present petitioner. The certificate dated 20.02.2001 which purportedly certified the unsuitability of relatives of Sushil Arya and donors or that of his disease does not contain signature of the petitioner. Further there is no evidence of cheating or allegation of forgery of any valuable security and as such the charge also could not be framed U/s 420/467 IPC. Finally, it is claimed that the suspicion how so ever strong can not take place of the legally admissible evidence. In his submissions, Ld. counsel for the revisionist has placed reliance upon the judgments reported as 2007 VI AD DHC 286, AIR 1972 SC 545 and 979 Cri. L J 154.
According to Ld. counsel for the revisionist Dr. Rajender Singh, Ld. MM/Delhi had passed the impugned orders without having jurisdiction to pass the same. He had failed to appreciate that the facts of the present case itself reflect that the prosecution had filed charge sheet against the revisionist by categorically saying that the sanction for (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 18 of pages 37 prosecution is being sought for persecution of the revisionist, and vide supplementary charge sheet it was made clear by the prosecution that the sanctioning authority of the revisionist has refused to accord sanction as contemplated U/s 197 Cr.P.C. Since the charge sheet itself contain the averments that according to the prosecution requirement of seeking sanction U/s 197 Cr.P.C is a must and it is being sought also therefore, the court by itself can not permit the prosecution to change the stand after the sanction of such prosecution had been refused by the competent authority. Hence the impugned orders are bad being against the express dictum of law. Interestingly, there exists and indication in the charge sheet itself that the sanction U/s 197 Cr.P.C is being sought from Punjab Government, and after obtaining the same, fresh challan U/s 173 Cr.P.C would be filed. The orders are illegal and are in perverse in nature. The only role purported to have been performed by the revisionist in this case is that he has signed some document, relating to authorization given to Kakkar Hospital in his official capacity. This role is purely related to public duties, performed by the public servant. In this view of matter, sanction from Punjab (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 19 of pages 37 Government is a condition precedent, as contemplated U/s 197 Cr.P.C. It is claimed that the revisionist was neither the doctor who performed the operation nor he was the doctor who was associated with any of the acts which would be said to have caused the committal of any of the offences so alleged in the FIR or in the charge sheet, thus the summoning of the revisionist even on merits on this ground is also bad in law. In his submissions Ld. counsel for the revisionist has placed reliance upon the judgments reported as II (2009) DLT (Crl.) 215, (2004) 2SCC 349 and AIR 1955 SC 309. Further, it is an admitted case of the prosecution that the alleged act of transplantation of human organ had taken place in Punjab so none of the sanction i.e. Section 18/19 & 20 of the Transplantation of Human Organ Act, 1994 (herein after shall refer to as the Act) stands attracted in the alleged act of signing the authorization. There exists no evidence of alleged conspiracy amongst the revisionist and rest of the accused persons.
According to Ld. counsel for the revisionist Sushil Arya, the impugned order dated 14.07.2008 is not a reasoned order and hence deserves to be set aside. Further, Ld. MM has failed to appreciate that (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 20 of pages 37 the cognizance of the offence was already taken by the court of Amritsar in case FIR no.101/02 U/s 420/467/468/471/419/295A/109 & 371 IPC and Section 18/19/20 of the Transplant of Human Organ Act at PS D. Division, Amritsar and the accused/petitioner Sushil Arya had been arrayed as a witness there. It has not been appreciated that the cognizance is taken of the offence and not of the offender. When the cognizance of the offence of illegal transplantation of Kidney has already been taken by a court of competent jurisdiction, it can not again be taken by another court merely because a few more persons have been named as accused in the subsequent complaint. Here in his submissions Ld. counsel for revisionist has placed reliance upon a judgment reported as AIR 1996 SC 204 titled as Anil Saran Vs. State of Bihar. It has also not been appreciated that transplantation of Human Organ Act particularly Section 22 specifically prohibits the courts from taking cognizance of any offence under the said Act except on a complaint made by the appropriate authority or as prescribed in Section 22 (b). In the present case, the complaint has not been made by the appropriate authority, rather by an individual and that too without (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 21 of pages 37 complying the provisions of the Act and as such the trial court has thus erred in farming the charge for the offences under the said Act. The charges have been framed mechanically. Ld. MM/Delhi had no territorial jurisdiction to try the said offence. Ld. MM/Delhi had proceeded to frame charges mechanically under all the offences against all the accused and mechanically repeated the date, time and place of occurrence. The charges as framed are vague. There were no allegation that the affidavit of the complainant was forged by the petitioners/accused and thus there can not be any charge U/s 469/468/471 IPC against him. The charges for the offence of forgery can not be levelled in absence of original documents. Further, there is no expert opinion or report about the handwriting on the documents allegedly to be forged. The case in hand has been filed after about three years of incident.
Per contra, according to Ld. Addl. PP for the State, all three instant revision petitions are liable to be dismissed for the reasons that they have been failed to point out any patent error or material irregularity in the impugned orders dated 14.07.2008 and 19.09.2008 passed by Ld. (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 22 of pages 37 Trial Court which have been passed after considering each and every facts and circumstances of the case. He has urged that since in his statement the complainant has clearly stated that he was allured or taken away by the accused Sushil Arya from Delhi itself to the Punjab where his kidney was removed/transplanted, thus it can not be said that the the court at Delhi has no jurisdiction in the matter. The cause of action began in Delhi, so the court at Delhi has territorial jurisdiction and the sanction obtained from the competent authority at Delhi is perfect and as such cognizance has been rightly taken in this case. As regards to the question of sanction U/s 197 Cr.P.C qua the revisionist Dr. Rajender Singh is concerned, the Trial Court while relying upon the judgment reported as AIR 1954 SC 455 titled as Ronald Wood Mathams & Ors. Vs. State of Bangal delivered by the bench consisting of Hon'ble five Judges, has rightly held that since the allegations against the said revisionist is regarding conspiracy and cheating, so no sanction is required. Further, there are sufficient prima facie materials to further prosecute against the revisionist by framing of charge against them. Law is well settled that at the time of framing of charge, only (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 23 of pages 37 prima facie material is to be seen and at this preliminary stage court is not required to evaluate the evidence proposed to be brought by the prosecution meticulously with an idea to find out the guilt of the accused or otherwise. Since there are clear and specific allegations against the revisionists, so the charges have rightly been framed against them.
9. I have given my thoughtful consideration to the aforesaid rival submissions made before me.
The law in respect of framing of charge is well settled. In CBI Vs. S. Bangarappa 2001 Crl. L. J 111, the Hon'ble Supreme Court has held that, "Time and again this court has pointed out that at the stage of framing of charge, the court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further."
In UOI Vs. Prafulla Kumar 1979 Cri. L. J 154, it has been held by the Hon'ble Supreme Court that, "The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and largo however, if two (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 24 of pages 37 views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. ...... That in exercising his jurisdiction under Section 227 of the Code, the Judge which under the present code is a senior and experienced Court can not act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
In Century Spinning and Manufacturing Co. Ltd. & Ors. Vs. State of Maharashtra AIR 1972 SC 545, it has been held that, "If on the existing material there is no ground for presuming them to be guilty then there can hardly be any point in framing charges and going through the formality of a trial and then acquitting them. such a course would merely result in unnecessary harassment to the appellants without serving the cause of justice."
In Neeraj Gupta Vs. CBI 2007 VI AD DHC 286 it was held by the Hon'ble High Court of Delhi that, "If two views are equally possible then view favouring the accused be given preference."
(CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 25 of pages 37
10. In the light of aforesaid settled position of law, now let us proceed to find out as to how much force are there in the instant revision petitions filed by the revisionists.
11. As regards to the revisionist Sushil Arya is concerned, I find myself in complete agreement with the contentions of Ld. Addl. PP for the State that since there are specific and clear allegations against the accused/revisionist Sushil Arya, so Ld. Trial Court has rightly framed charges against him to proceed further in the matter. In his statement the complainant has categorically levelled clear allegations against the revisionist/accused Sushil Arya that he had allured him from Delhi on the pretext of giving him employment in Punjab and in connivance with the coaccused persons, got his kidney removed and transplanted to him without his knowledge or consent. Thus it can not be said that the the court at Delhi has no jurisdiction in the matter. The cause of action commenced at Delhi, so the court at Delhi has territorial jurisdiction and the sanction obtained from the competent authority at Delhi is perfect and as such cognizance has been rightly taken in this case. Thus, it can not be said that the charges have been wrongly framed against (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 26 of pages 37 him by Ld. Trial Court. Further, the claim regarding the proceeding already initiated in the court at Amritsar qua the alleged offence contains no force in the absence of any material on record to substantiate the same. Thus, the revision petition as filed by the revisionist Sushil Arya contains no force in it and as such the same is liable for dismissal.
12. Now come to the case of revisionist Dr. Rajender Singh.
The revisionist Dr. Rajender Singh has been assailing the impugned orders mainly on the ground that he was a public servant protected under the provisions of Section 197 Cr.P.C and in the absence of said sanction from the competent authority, he can not be proceeded against.
Section 197 Cr.P.C is embargo on the court to take cognizance of an offence allegedly committed by a public servant, who is not removable from his office save by or with the sanction of the government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty except with the previous sanction of the government. The scope of (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 27 of pages 37 Section 197 Cr.P.C has been widened by extending protection even to those acts or omissions which are done in purported exercise of official duty i.e. in the colour of office held by such public servant. Official duty implied that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.
In State of Himanchal Pradesh Vs. M.P. Gupta (2004) 2SCC 349, it was held that, "in so far as public servants are concerned, the cognizance of any office by any court is barred by Section 197 Cr.P.C, unless sanction is obtained from the appropriate authority, if the offence alleged to have been committed, was in discharge of official duty. The use of words no and shall makes it abundantly clear that the bar on exercise of power of the court to take cognizance of any offence is absolute and complete. Once the sanction has been refused by the Government sought for by the prosecution, there is no reason as to why the court ought to have taken cognizance despite the bar created U/s 197 Cr.P.C."
In the case of Sushil Modi Vs. Mohan Guru Swami reported in 144 (2007) DLT 696, it has been held that, "Sanction is needed in respect of any person, who is a public servant within the definition of (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 28 of pages 37 Section 21 which includes judges, magistrate and public servants not removable save by or with the sanction of the government."
In the present case the revisionist Dr. Rajender Singh being a government doctor is a public servant as an employee of Punjab Government, as such protected by Section 197 Cr.P.C, in respect of any act done by him in performance of his duty.
In view of the aforesaid settled propositions of law, I find force in the claim of Ld. counsel for the revisionist Dr. Rajender Singh that in the absence of sanction U/s 197 Cr.P.C from the competent authority, the revisionist Dr. Rajender Singh can not be prosecuted against him by farming of charge. Admittedly, he is a public servant and the only role purported to have been performed by the revisionist in this case is that he has signed some document, relating to authorization given to Kakkar Hospital in his official capacity. This role is purely related to public duties, performed by the public servant. In this view of matter, sanction from Punjab Government is a condition precedent, as contemplated U/s 197 Cr.P.C. He was neither the doctor who performed the operation nor he was the doctor who was associated with any of the acts allegedly performed at Kakkar Hospital. The (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 29 of pages 37 perusal of the charge sheet reveals that the charge sheet was filed against the revisionist Dr. Rajender Singh by categorically saying that the sanction for prosecution of the revisionist is being sought for and vide supplementary charge sheet it was made clear by the prosecution that the sanctioning authority of the revisionist has refused to accord sanction as contemplated U/s 197 Cr.P.C. Since the charge sheet itself contains the averments that according to the prosecution requirement of seeking sanction U/s 197 Cr.P.C is a must and it is being sought also therefore, the court by itself can not permit the prosecution to change the stand after the sanction of such prosecution had been refused by the competent authority. Since there exists no material on record to show the conspiracy amongst the revisionist and rest of the accused persons, so the judgment relied upon the the Ld. Trial Court is not applicable in the present circumstances.
Thus the revisionist Dr. Rajender Singh can not be prosecuted in the absence of sanction U/s 197 Cr.P.C from the competent authority and as such the revision petition as filed by the revisionist Dr. Rajender Singh is liable to succeed.
(CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 30 of pages 37
13. Now let us see, how much force is there in the revision petition filed by the third revisionist Praveen Kumar Sareen?
It is the claim of Ld. counsel for the revisionist Praveen Kumar Sareen that there is no credible evidence available on record to raise any strong suspicion against the revisionist for proceeding further in the matter by framing of charge against him.
I find myself in complete agreement with the claim made on behalf of revisionist Praveen Kumar Sareen. There is no statement of any witness which clearly define the role of the present petitioner or even identify him as precipitator of the alleged offence. Even in his complaint dated 29.05.2003 which was made around more than two and a half years after the date of alleged incident, the complainant had alleged that one Dr. P.K. Jain injected medicines on his right arm, consequent to which he fell unconscious and thereafter when he regained his conscious, he found only the relatives of said Sushil Arya and this facts establishes that the complainant was never attended or communicated by the revisionist Praveen Kumar Sareen in any manner, whatsoever. There is no witness to establish the identify of the revisionist as the (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 31 of pages 37 person, who committed the offence in question. The role of revisionist is not even discussed to justify the framing of charges against him. Further in his statement, the complainant has categorically stated that Dr. P.K. Jain was also known as Dr. P.K. Sareen in Kakkar Hospital in Amritsar and as such no link or connection of the revisionist has been established in the commission of the alleged offence. The entire charge sheet and the documents, no where inculpates the present revisionist in any manner. Even the certificate dated 22.02.2001 of the Authorization Committee does not bear the signature of revisionist nor it indicates his involvement. As such there is no material on record to justify framing of charges qua the revisionist Praveen Kumar Sareen. Even in the alleged certificate there are three signatures and none of them is that of the present revisionist as a donor surgeon. Further as per the report of the CFSL none of the documents contain handwriting of the present revisionist. The certificate dated 20.02.2001 which purportedly certified the unsuitability of relatives of Sushil Arya as donors or that of his disease does not contain signatures of the revisionist in two questioned documents Q5 & Q8 as per the CFSL (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 32 of pages 37 report and these are the two documents on the basis of which the element of conspiracy has been infused into the present case qua the petitioner. Further there is no evidence of cheating or allegation of forgery of any valuable security and as such the charge also could not be framed U/s 420/467 IPC. Thus, the materials brought on record against the revisionist Praveen Kumar Sareen do not raise grave suspicion against him about his involvement in the alleged offence, so he is entitle for an order of discharge in his favour and as such the revision petition filed by this revisionist is also liable to succeed.
14. In the light of above discussions, the revision petition bearing CR No.28/08 as filed by the revisionist Sushil Arya is liable to fail, whereas, the other revision petitions bearing CR No.3/08 and CR No.29/09 filed by the revisionists Dr. Rajender Singh and Praveen Kumar Sareen respectively are liable to succeed and as such the revision petition bearing CR No.28/08 is hereby dismissed and the revision petitions bearing CR No.3/08 and CR No.29/09 are allowed and the impugned orders dated 14.07.2008 and 19.09.2008 qua the revisionists Dr. Rajender Singh and Praveen Kumar Sareen are set aside and they (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 33 of pages 37 both are discharged from this case.
15. TCR (lying in the file bearing CR No.3/08) alongwith the copy of judgment be sent back to the Ld. Trial Court for information and further proceedings as per law.
16. Revisionist/accused Sushil Arya is directed to appear before Ld. Trial Court on 18.01.2010 for facing the trial.
17. Copy of this order be placed in all three revision files bearing CR No.03/08, No.28/08 and No.29/09 and thereafter they be consigned to Record Room separately after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 24.12.2009) ASJ04 (NORTH)/DELHI
Now ADJ20 (Central)/Delhi
(CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 34 of pages 37
CR No.28/08
Sushil Arya Vs. State
22.12.2009
Present: As before.
In compliance of order no.18/DHC/Gaz./G1/VI.E.2(a) 2009 dated 14.12.2009, the file has been placed before me for pronouncement of order/judgment as arguments on the same were heard by me.
No time left.
Put up on 24.12.2009 for orders.
(RAKESH KUMAR)
ASJ04 (N)/DELHI/21.12.2009
Now Addl. District Judge20 (C)
24.12.2009
Present: As before.
Vide separate judgment, revision petition of the revisionist stands disposed off.
Copy of the judgment be sent back to the Ld. Trial Court for information and further proceedings as per law.
Revisionist/accused Sushil Arya is directed to appear before Ld. Trial Court on 18.01.2010 for facing the trial.
File be consigned to Record Room separately after completion of necessary formalities.
(RAKESH KUMAR) ASJ04 (N)/DELHI/24.12.2009 Now Addl. District Judge20 (C) (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 35 of pages 37 CR No.29/09 Praveen Kumar Sareen Vs. State 22.12.2009 Present: As before.
In compliance of order no.18/DHC/Gaz./G1/VI.E.2(a) 2009 dated 14.12.2009, the file has been placed before me for pronouncement of order/judgment as arguments on the same were heard by me.
No time left.
Put up on 24.12.2009 for orders.
(RAKESH KUMAR)
ASJ04 (N)/DELHI/21.12.2009
Now Addl. District Judge20 (C)
24.12.2009
Present: As before.
Vide separate judgment, revision petition of the revisionist stands disposed off.
Copy of the judgment be sent back to the Ld. Trial Court for information.
File be consigned to Record Room separately after completion of necessary formalities.
(RAKESH KUMAR) ASJ04 (N)/DELHI/24.12.2009 Now Addl. District Judge20 (C) (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 36 of pages 37 CR No.3/08 Dr. Rajender Singh Vs. State 22.12.2009 Present: As before.
In compliance of order no.18/DHC/Gaz./G1/VI.E.2(a) 2009 dated 14.12.2009, the file has been placed before me for pronouncement of order/judgment as arguments on the same were heard by me.
No time left.
Put up on 24.12.2009 for orders.
(RAKESH KUMAR)
ASJ04 (N)/DELHI/21.12.2009
Now Addl. District Judge20 (C)
24.12.2009
Present: As before.
Vide separate judgment, revision petition of the revisionist stands disposed off.
TCR alongwith the copy of judgment be sent back to the Ld. Trial Court for information and further proceedings as per law.
File be consigned to Record Room separately after completion of necessary formalities.
(RAKESH KUMAR) ASJ04 (N)/DELHI/24.12.2009 Now Addl. District Judge20 (C) (CR No.3/08, CR No.28/08 & CR No.29/09) Page No. 37 of pages 37