Karnataka High Court
State Of Karnataka Rep By The Police ... vs Yousuf @ Mohammed Yousuf on 10 January, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
ORDER
All these petitions arise out of one. same
common order passed by the le:arnedSe'sgsi:onws
S.C.No.435/98 to 441/98¢
2. The petitions fileid~--Vby'v--thegA_Stat'e*a.re_iin respect
of discharging the r4es'p'ectiV'eV:ivresfiondents-accused in
respect of Sections 326
and 328 j_. ibetitions filed by the
respective _areV:?:lirected against framing
of the for the offences under
secuons.._3§4i2, M and l20(B) of the 1pc.
LeAar1'ied~'Sessions Judge of the court below
' .-hasgcon'si'de'red the cases of the individual accused by a
"co'mmo1if-order and thereafter common discussion is
there regard to framing of the charge. As the facts
'and circumstances of the cases are also one and the
' f's»an'1e and the grounds put forward also being identical,
(these petitions are disp f by this common order.
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4. The facts common to all these petitions in
short are that. the accused persons being members of a
team of Doctors, Physicians, Anesthetists
were involved in the kidney transplantationialndit
case of the prosecution that in the' year psaéieral
persons undeiwent operation for'kild.ney transplant;ati.on.VV
and the allegation is off'.:llolctors,VV
Anesthetists zmcl otl1':ers_ offences
which have been sheet and
particularly' of Doctors and
members. theft of the
aware of their kidneys
the accused were charged
with the loft7.ences punishable under sections 326, 328,
_f39?,3"iLf7"/:"(A_). zovifmf 342, 379, 506(B) and 12003) of the
~ V L3. V All the accused persons filed application for
,:di"s_.charge and the trial court by its common order
discharged the accused persons in respect of the
offences punishable under Sections 326, 328, 397,
9%
3(') I'
477(A) and 201 of the IPC and
charge and charge is framed in,.respec_t"of off4_'eAnce,_s' 2
punishable under sections 342,7.37[9; andV::l"£?,O(BV)
oftheIPC. . '~
6. Aggrieved by order' "of "j(:ourt"'
below, the State as well asfthe: nfe'tCCLlp$€C1'l"lS21\>/.13 come up in
these revision petitions?-. "-avggrieved by the
discharge offences,
whereas the charge being
fra1nedt._.eV in.:lVVVr_€6:§'spect of the offences
mentioned
7. l_VV h_é1'Ve':_ heard the learned Counsel Sri.
Hi15e'in.at.h¢vfor the petitioners in the cases filed
' ;by_th_e'~ac_e"us_ec1 and for the respondents in the Cases
and I have also heard the learned Govervnment Pleader Sri. Satish R. Girji in the petitions A' filed the State and perused the records of this case.
8. Learned Government Pleader Sri. Satish R. Girji for the State in the petitions filed by the State submitted that the trial Court was in error in f/
5..
3 1 ' discharging the accused in respect of the punishable under Sections 326. 328. 201 of the IPC and it is contendedthat were"
not aware of their kidneys being removed.' and tll'1l:€e1_"__€fQI'€ the trial court could not have di'scha.rged"'t'l1e_v accusled even in respect of the said offences.
9. On the lotherl'ti,l:_si..lbniission of the learned couns_el _Sri. the accused in all these tl1atl,;_ the patients who underwent. had given consent letterranvd patients underwent a series of test::- of the kidney and theythird ang1--.rmost7 i._ni'portantlwtactor is that. each one of the ' p'e.rson~rs,Whose""kidney was removed, was paid the donee either in the form of cash or and all the persons who have donated the nlgidneyt' have received the amount. Under the l'-.A"ei.reumstya1ices. the question of framing the charge against the accused persons in respect of any one of the offences does not arise. The very fact that the persons L .4 who donated their kidneys, underwent series of tests itself is an indication of the said donors being"-._pfully aware of the removal of their kidney and the face of the very documents produced itself as part of the charge rsheet,' ._accus--edv_person"s cannot be proceeded within respect of anyfone 'of"thVe'--..p offences. Therefore, t;he trialecoiirt was linverror even in proceeding to l'rame:"~the fagainstyvlthe accused persons in respect sections 342, 379, 5O6(B){'ari§1t::'lyV2Q:[B) iofthe' I:I'><i'.= .10.' '»s:érii'03r"c--01.u'lse1 Sri. C.V.Nagesh for some/7.of"t4he also adopted the aforesaid argumentsrif Svrid.,h'ar Hirernath and added that the s.ui*geon __who°' performs the operation could not be 3 with section 379 or section 342 of IPC fact that the patients have given consent and operation has to be carried out by taking the .Vpa"t_i.ents to the operation theatre therefore takes out the case from the purview of Sections 342 and 379 of the IPC and therefore all the patients have given consent % 33 before when they were asked to donate their kidneys. As such, the order of the court below cannot be sustained even for this reason.
1 1. Having thus heard both__side?s''ai'idjafter'going ' 1 through the material on record:iAar:'di ~t'he'tria_1:--' having observed that. eachnone ofthe p_atient_s"was paid' the amount by way of den1and"vpd_ra--ft_ orhicash... the case may be, and sinceytiestsr on each one of the removed, it cannot were unaware of the natuiie«o.f'fthe' dp:erat'ior1:that"is. going to be performed on thernfiyg by the patients coupled with thev'ii*.ecei.pt ~ofA't.he'...uamount by each one of them and series of __tests'" undergone by each one of the patients ' therefore _i~nV'di<e:at.es that there is no prima facie case dmade the prosecution to proceed against the accused persons in respect of any one of the offences alleged. Since the material on record does not give rise to take the view that the ingredients of any one of the offences is made out against any one of the accused >'%% . ...<.»_»,~«r 'if persons and the trial court also having discharged the accused persons in respect of the Off€I1C€E»fT'"'1_1I1C1€F secfions 326. 328, 397. 477mm and 20L 0; dfiilPC question of proceeding against the acc_u-sed.l.:"eVen"'in respect of other offences ' l2O(B) of the IPC, does n,ot__arise;and continued would be of the court and the end 'rest.1lt saIneHxviz., all the accused persons will..hv:'c.1_'~f.€ in the light of the very prosecution Viz., COI1S€F1t€1!ifl,tl:ti;li'§v.!VVlOf the amount by the respvectit/he Ado; i 9 = the the petitions filed by the State ,are 'Cl.i.sn'i'isse:d and the petitions filed by the »accuss'e,d_persons, against whom charges have been framed, stands allowed and the applicatiori for discharge filed by the accused persons V " théerelfore stands allowed. Their bail bonds shall stand hdcancefled.
sd/- p JUDGE Dvr: