Uttarakhand High Court
Jeevan Raut ....... Applicant (In Jail) vs State Of Uttarakhand on 12 September, 2019
Equivalent citations: AIRONLINE 2019 UTR 492
Author: R.C. Khulbe
Bench: R.C. Khulbe
Reserved on 05.09.2019
Delivery on 12.09.2019
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No.792 of 2019
(U/s 439 of the Code of Criminal Procedure)
Jeevan Raut ....... Applicant (In jail)
Versus
State of Uttarakhand .......... Respondent
Dated: September 12, 2019
Mrs. Pushpa Joshi, learned Sr. Counsel assisted by Mr. Virendra Sharma, learned
counsel for the applicant.
Mr. T.C. Aggarwal, A.G.A. along with Ms. Mamta Joshi, learned Brief Holder for
the State.
Hon'ble R.C. Khulbe, J.
Applicant Jeevan Raut has sought his release on bail in connection with Case Crime No.256 of 2017 under Sections 420, 120-B, 342, 370 (i) IPC at P.S. Doiwala, District Dehradun.
2. Brief facts of the case are that a first information report was lodged by the Station House Officer, Doiwala at Police Station Doiwala, Dehradun on 11.09.2017 at about 6:15, which was registered as Case Crime No. 256 of 2017 under Sections 420, 120-B, 342, 370 (1) of IPC and Sections 18, 19 and 20 of the Transplantation of Human Organs and Tissues Act, 1994 (from hereinafter referred to as "TOHO"), inter alia, against the present applicant.
3. The FIR discloses that the SHO got information at about 02:20 am on 11.09.2017 that in Gangotri Charitable Hospital (run in the premises of Uttaranchal Dental Institute Complex), a criminal activity of removal 2 of kidney (for its transplantation elsewhere), is being carried out. The FIR further states that four persons have already been sent to Delhi for enquiry, and he has received information from the Haridwar Police that some of the persons who had their kidney removed in the hospital were being taken away to Delhi in an Innova Car No. UK08 TA 5519 which was checked by a police party; and the persons were detained. The car had five passengers, including two women. These five persons gave their address of distant places, which are outside of Uttarakhand, such as in Gujarat and Bengal. On interrogation it was revealed that each one of them had his/her kidney removed. They were assured that their kidney would be removed by a team of specialist doctors and no harm would be caused to them. The hospital where the kidneys were to be removed is in Dehradun, near the Airport. They were told that the recipients of the human organs are "Sheikhs" of Arab countries and hence the donor will be suitably compensated. A job was also promised to each one of them. On this assurance, they agreed for the removal of their kidney. They complained that they have not received any money so far, and named a person called "Javed", who was an intermediary between them and the doctor.
4. After investigation charge sheet has been submitted against the accused, namely, Dr. Amit Raut, Jeevan Raut, Javed Khan, Jagdish Bhai, Rajeev Chaudhari, Pramod @ Billu, Abhishek Sharma, Smt. Sarla Shemwal, Smt. Anupma Sharma, Shri Niwash Chauhan, Arun Kumar Pandey, Dr. Ashok Yogi, Dr. Sanjay Das and Dr. Sushma Das.
35. It is argued by learned Sr. Counsel for the applicant that the applicant has falsely been implicated in the crime; he had no concern with the present crime. Neither he was the Doctor nor was the owner of the hospital. Apart from that, co-accused, namely, Pramod Kumar, Anupma Chaudhari, Sri Niwas Chauhan, Ashok Yogi, Javed Khan, Satendra Kumar Baliyan and Ankit Kumar Baliyan have been enlarged on bail by this High Court, and on the ground of parity, the accused is also entitled for bail.
6. It is also argued by learned Sr. Counsel for the applicant that TOHO Act is applicable in the present matter; while a charge sheet has been submitted against the present accused under Sections 420, 120-B, 342, 370 (i) IPC, which is illegal and no offence is made out against him. Since the complaint under TOHO Act has been filed under Sections 18/19/19-A/20 of TOHO Act and TOHO Act being a special act, it will override the general law i.e. the Indian Penal Code; the subsequent charge sheet, filed under the Indian Penal Code, cannot go on and the accused must be bailed out.
7. On the other hand, learned counsel for the State argued that the present accused is the real brother of co-accused Dr. Amit Raut. He was the team member of Dr. Amit Raut, who conducted illegal transplantation of kidney. During the kidney transplant operation he always used to help the main accused Dr. Amit Raut and another co-accused. During the course of investigation Rs.33,73,000/-, luxury car, certificate of doctors working in the hospital, bank details, medical test repot of patients were recovered.
48. It is pertinent to note here that although charge sheet was filed only under Sections 420, 120-B, 342, 370 (i) IPC, but a criminal complaint No. 518 of 2018 has been filed under Sections 18/19/19-A/20 of TOHO Act by Dr. Tara Chandra Pant against 14 accused. The present accused Jeevan Raut is one of them.
9. In the present case charge sheet has been filed under Section 370 IPC also.
10. In the year 2013, Section 370 IPC was amended by Act No. 13 of 2013. Section 370 IPC after amendment in the year 2013 reads as under:
"Section 370. Trafficking of person.- (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by- First.- using threats, or Secondly.- using force, or any other form of coercion, or Thirdly.- by abduction, or Fourthly.- by practising fraud, or deception, or Fifthly.- by abuse of power, or Sixthly.- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1.- The expression "exploitation"
shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2.- The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may 5 extend to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
11. In the present case, the alleged "human trafficking" involves a trafficking of more than one person where punishment can be extended to life imprisonment, and consequently it becomes an offence triable by a Sessions court.
12. Section 370 IPC as it now stands amended has already been quoted above. It defines "human trafficking"
and the punishment of the offence carries with it. The scope of Section 370 IPC is extremely wide. This offence is committed for the purpose of exploitation of a person or persons.
13. Though the above explanation to Section 370 IPC includes "forced removal of organs", yet when one examines in totality the broad expression of "human trafficking" under Section 370 IPC, and the limited and focused area of TOHO Act, I would come to the 6 conclusion that the two provisions occupy two different fields.
14. Section 4 of the Criminal Procedure Code lays down very clearly that all offences under the Indian Penal Code have to be investigated, inquired, tried and dealt with the procedure given under the Code of Criminal Procedure. All other offences under a different or special law have to be investigated, inquired, tried and dealt with under the special procedure prescribed under that law. Section 4 of the Criminal Procedure Code reads as under:-
"Section 4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
15. In other words, if a special procedure is prescribed under a special enactment, then the procedure as laid down under the special law has to be followed and not the one as prescribed under the Code of Criminal Procedure. The learned Sr. Counsel for the accused has drawn the attention of this Court regarding the judgment of the Hon'ble Apex Court Jeewan Kumar Raut vs. CBI reported in AIR 2009, SC 2763.
16. In the above case, it was held by the Hon'ble Apex Court that the ordinary procedure prescribed under the Criminal Procedure Code would not apply in a case under TOHO Act and the procedure prescribed under TOHO Act would be applicable, since it is a special Act.
717. The question before the Hon'ble Apex Court was as regards the applicability of sub-section (2) of Section 167 Code of Criminal Procedure in a case where cognizance has been taken under Section 22 of TOHO Act on a complaint. The Hon'ble Apex Court answered the said question as follows:
"24. For the views we have taken, we are of the opinion that stricto sensu sub-section (2) of Section 167 of the Code would not apply in a case of this nature.
Even assuming for the sake of argument that sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied."
18. But in the present case, the accused has not challenged the charge sheet or the summoning order before this Court. In the present matter, what is before me is the application moved on behalf of the applicant seeking regular bail.
19. Similarly, Section 342 IPC relates to an offence, which is punishment for wrongful confinement, and the same has nothing to do with any penal provision, as contained under the TOHO Act, 1994.
20. Section 420 IPC is punishment of cheating.
"Cheating is defined under Section 415 of the Indian Penal Code, which has no concern with any of the offences defined under the TOHO Act.
21. Section 120-B IPC, relates to punishment for criminal conspiracy.
22. Criminal conspiracy is in itself an independent and substantive penal offence. There is nothing exactly similar to this in TOHO Act.
823. TOHO Act is indeed a Special Act, enacted by the Parliament with the purpose, which is contained in its preamble.
24. The purpose for the above legislation was the regulation, storage and transplantation of human organs and tissues for therapeutic purposes and for prevention of its misuse. Any person who removes a human organ or tissue or both, in violation of the above Act and Rules, is liable to be punished under the penal provision contained in Chapter VI of the Act.
25. Section 370 IPC, inter alia, prescribes a punishment when a man harbours or transports a person with intention of removing his organs. Penal provisions under TOHO Act are subsequently focused on the violation of the regulatory mechanism.
26. The main allegation against the accused is that he has played the active role to remove the kidneys of various persons alongwith co-accused Amit Raut. The present accused is the real brother of accused Dr. Amit Raut.
27. During the course of investigation Ms. Mamta Rana who was the staff member of the said hospital, clearly stated that the accused Jeevan Raut was the part of the operation team. Deepak Thomus, who was the main nurse in the hospital, clearly stated that during the operation accused Jeevan Raut always used to present in the operation theatre.
28. During the course of investigation, statement of one patient Tejas Patel was also recorded. He also stated that when he went to the said hospital for kidney 9 transplant operation, Dr. Jeevan Raut, Dr. Amit Raut and Ajay were also present there.
29. From the evidence collected during investigation, it is clear that the accused with the help of other co-accused persons was instrumental in doing kidney transplantation and was gaining illegal money. In the said hospital some of the victims were kept forcibly in the custody of accused persons. The accused is the real brother of main accused Dr. Amit Raut. During the illegal transplant operation he used to help the other accused and was also working as a Doctor in the alleged hospital and was fully involved in the said illegal kidney transplant operation with the other accused to deceive the innocent persons. On 15.09.2017 the present accused was arrested with other co-accused Amit Raut and Smt. Sarla at Panchkula, Haryana. All the accused were going to Nepal after committing this crime in two luxury cars in which Rs. 33,73,200/- cash were recovered. The accused had removed kidney of different persons without any appropriate authority and deceived many innocent persons. Although some of the accused persons have been enlarged on bail by this High Court, but the accused is the real brother of co-accused Dr. Amit Raut and both are kingpins of the crime, and thus, the present applicant cannot have any parity with the other co-accused who have been enlarged on bail.
30. Looking to the gravity of offence, and also considering other facts and circumstances of the case, I am of the considered opinion that the applicant does not deserve bail at this stage.
31. The bail application is, thus, dismissed.
1032. Needless to observe that the observations, made hereinabove, will not have any affect on the final merits of the trial.
(R.C. Khulbe, J.) Balwant