Calcutta HC Quashes Summons In Organ Trade Case | Report By Unauthorized Officer Vitiated Process | Law Must Be Followed In The Manner Prescribed Or Not At All
Isabella Mariam
The High Court at Calcutta Single Bench of Justice Dr. Ajoy Kumar Mukherjee quashed criminal proceedings against two petitioners under the Transplantation of Human Organs and Tissues Act, 1994, citing non-compliance with judicial directions concerning inquiry procedures. The Court held that the impugned order issuing process against the accused was based on a report submitted by an unauthorized officer, in direct contravention of a prior judicial direction. The Court directed the concerned magistrate to initiate a fresh inquiry strictly in accordance with the earlier order and to act upon the outcome as per law. All subsequent proceedings were quashed.
The complaint in question, bearing number AC 4109 of 2014, was lodged by the then Director of Health Services, who acted as the complainant and the appropriate authority under section 13 of the Transplantation of Human Organs and Tissues Act, 1994. It was filed against twelve accused persons, including a hospital and a medical professional. The complaint was filed before the Judicial Magistrate, 4th Court, Alipore, and alleged commission of offences under sections 19, 20, and 21 of the 1994 Act, read with sections 181, 182, 120B, and 34 of the Indian Penal Code.
Two of the twelve accused—the hospital and a doctor—filed revisional applications under section 482 of the Criminal Procedure Code, seeking quashing of the complaint. The petitioners in CRR 442 of 2016 and CRR 1374 of 2016 contended that the complaint did not establish any case against them and that the magistrate had proceeded mechanically without application of judicial mind.
The complainant alleged that the accused persons, in criminal conspiracy and furtherance of their common intention, engaged in commercial dealings of human kidneys for unlawful gain. Specific allegations against the doctor included links with touts and involvement in illegal kidney transplants. Against the hospital, the allegation was one of abetment.
Following cognizance by the filing court, the matter was transferred to the Judicial Magistrate, 4th Court. The Magistrate examined the complainant under section 200 Cr.P.C. on 21.01.2015 and postponed issuance of process. Invoking section 202 Cr.P.C., the Magistrate directed the Joint Commissioner of Police (Crime), Kolkata to conduct an inquiry.
However, the report dated 22.05.2015 was prepared by Assistant Commissioner of Police A.K. Das, not the officer directed by the court. This report was forwarded through senior officers but not authored by the person explicitly directed to conduct the inquiry. Subsequently, the Magistrate issued process against all accused under section 204 Cr.P.C., relying on this report.
The petitioners challenged this issuance of process, arguing that the report was a mere compilation of existing documents and did not constitute an independent inquiry as mandated. They submitted that the order of cognizance was a typed template lacking reasoning and merely bore the magistrate's signature. It was contended that the complaint and supporting materials failed to demonstrate any role played by the petitioners in the alleged offence.
It was further argued that none of the 15 witnesses deposed any act indicating commercialization of organ transplants by the petitioners. Only six witnesses named the doctor petitioner, and that too merely as a participant in a board meeting. The witnesses did not attribute any act of inducement, aid, or direct involvement in commercial transactions to either petitioner.
The petitioners asserted that the authorization for transplantation was issued by the statutory Authorization Committee under Rule 7 of the 1994 Act, a state-appointed body empowered to grant final approvals. The petitioners maintained that their role was limited to medical evaluations regarding need and donor suitability.
In response, counsel for the complainant argued that the report detailed the roles of each accused and justified issuance of process. It was further contended that only two of the twelve accused had approached the Court and that the proceedings ought not to be quashed without a full trial.
Justice Dr. Ajoy Kumar Mukherjee examined the order dated 21.01.2015 and recorded "the court below observed that the available materials fails to satisfy the court to issue process against the accused at that stage... and therefore, invoking his jurisdiction under section 202 of the Cr.P.C. he has made a clear direction with bold letters that... Joint Commissioner of Police (crime), Kolkata is directed to cause an enquiry into the case by himself and to submit a report."
It was recorded that despite this explicit direction, the report was prepared by Assistant Commissioner of Police A.K. Das. The Court stated "this enquiry was done by an officer in the rank of Assistant Commissioner of Police, violating the court’s order... he was not competent to make the enquiry nor competent to submit a report."
The Court found that the Magistrate, in issuing process on 22.05.2015, failed to notice that the report had not been prepared by the authorized officer. The judgment stated “this clearly manifest that while the Magistrate concerned had issued the process under 204, he did not apply his mind far from judicial mind."
The Court noted the contents of the report and observed, "his entire report is based on the annexures which were pre-existed and pre dates, the filing of the complaint... these documents filed as annexures cannot be the basis of the report, without having making any independent enquiry."
The Court concluded that reliance on such a report vitiated the issuance of process. It stated "when the learned Magistrate not being satisfied about the available materials and considering the gravity of the allegation asked a particular authority to make enquiry by himself... then that particular authority is duty bound to cause enquiry and to submit a report... it must be done in that way or not to be done at all."
It was recorded that "the impugned order, issuing process under section 204, against the accused persons on the basis of a report prepared by an unauthorized person, is not sustainable in the eye of law."
Addressing a cited precedent by the petitioners—Grives Cotton Mills Ltd. v. State of West Bengal—the Court noted factual distinctions. In that case, the complaint pertained to breach of contractual obligations, while the instant case involved allegations of illegal human organ transplants. The Court stated “this is not the case in the instant proceedings... the complainant being the appropriate authority... caused enquiry into the matter by CID... and made certain imputations against the accused persons."
The Court clarified that invocation of section 202 Cr.P.C. was lawful in light of the serious nature of allegations. It stated "considering the nature of offence as alleged and gravity of allegation he exercised his power under section 202 of the Cr.P.C., which cannot be said to be unlawful."
However, the subsequent misapplication of the Court's direction led to a legally unsustainable order. The Court stated, "the impugned order issuing process vitiates with the wrong conception of fact which led the Magistrate to believe that the enquiry was done by the Joint Commissioner of Police... whom he directed."
The Court directed, “without going into further merits of the case the order dated 22.05.2015 passed by the court below about issuing process against the accused persons and all subsequent orders are hereby quashed."
The Magistrate was instructed to act in accordance with the earlier order dated 21.01.2015. The Court stated, "learned Court below is directed to ask Joint Commissioner to comply his order dated 21.01.2015 in its letter and spirit, with a further direction to submit a report by him within a period of 60 days."
Upon receipt of the report, the Court directed that, "he will decide either to proceed under section 203 or under section 204 of Cr.P.C., without being influenced by any observation made herein."
Advocates Representing the Parties:
For the Petitioners: Mr. Sandipan Ganguly, Mr. Sabyasachi Banerjee, Mr. Anirban Dutta, Mr. Victor Chatterjee, Mr. Amit Ghosh, Mr. Milon Mukherjee, Mr. Biswajit Manna
For the Respondents: Mr. Debasish Roy, Mr. Saryati Datta, Mr. Anand Kesari
Case Title: Dr. Dilip Kumar Pahari v. The State of West Bengal & Anr. with Medica Super Speciality Hospital v. The State of West Bengal & Anr.
Case Number: CRR 1374 of 2016 and CRR 442 of 2016
Bench: Justice Dr. Ajoy Kumar Mukherjee
[Read/Download order]
