2014 (7) TMI 1258 - HC - Indian Laws

Illegal arrest and unlawful detention of husband Dr. N. Pravakar Babu (hereinafter the detenue ) of petitioner - fundamental rights alleged to have been violated in the present case by the arresting officer while arresting and detaining the detenue - Whether 1994 TOHO Act will be applicable since the donor and the recipient belong to State of Odisha in view of the peculiar facts and circumstances of the case when no approval/no objection certificate has been taken from the Authorisation Committee constituted by the State of Odisha under clause (b) of sub-section (4) of section 9 of the said Act? - Whether the concerned hospital authorities have followed the procedure laid down in 1995 A.P. TOHO Act and the Rules framed thereunder so also the guidelines issued by Govt. of Andhra Pradesh in this case while carrying out kidney transplantation operation? - Whether an F.I.R. under section 19 (subsequently added section is section 18) of the 1994 TOHO Act can be registered at Mangalabag Police Station and whether Mangalabag police has jurisdiction to investigate such case and arrest the detenue? - whether arrest is illegal unauthorized and is in violation of Article 22(1) of the Constitution of India? Held that - We are of the view that since in the present case the donor and the recipient both belong to State of Orissa the Authorisation Committee constituted under clause (b) of sub-section (4) of Section 9 of 1994 TOHO Act by the State Government is the competent authority and no objection certificate should have been obtained from such Authorization Committee. In the case in hand as no approval/No-Objection Certificate of the Authorisation Committee constituted by the State Government of Odisha has been taken we are of the prima facie view that the provisions of 1994 TOHO Act and the rules framed thereunder have been violated. Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. Section 50(1) Cr.P.C. states that every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake misapprehension or misunderstanding in the mind of the arresting authority and also to know exactly what the accusation against him is so that he can exercise the second right namely consulting a legal practitioner of his choice and to be defended by him. The fundamental right secured to a arrested person by Article 22(1) is to give protection against such arrest as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has or is suspected to have committed or is about or likely to commit any offence prejudicial to the public or the State interest. In the present case the arrest was made without an order from a competent Magistrate and without a warrant. The ground of arrest was not communicated to the detenue. Thus we are of the view that there is violation of Article 22(1) of the Constitution of India read with Section 50 Cr.P.C. Section 57 Cr.P.C. In view of the facts and circumstances of the case we are granting interim bail to the petitioner till final disposal of this writ petition. Let the petitioner be released on interim bail on furnishing bail bond of Rs. 10, 000, 00/- (Ten lakh) with two solvent local sureties each for the like amount to the satisfaction of the learned S.D.J.M. (Sadar) Cuttack in G.R. Case No. 950 of 2014 arising out Mangalabag P.S. Case No. 98 of 2014 with a further condition that he shall deposit cash security of Rs. 2, 000, 00/- (Two lakh) in the shape of fixed deposit in his name or in the name of any of his family members in any Nationalised Bank which shall be pledged in the name of the concerned Court and shall be renewed from time to time till disposal of the case and may be appropriated as compensation if any found payable by the petitioner. The learned S.D.J.M. (Sadar) Cuttack is at liberty to fix any other suitable terms and conditions.

Summary

Issues Involved:
1. Illegal arrest and unlawful detention.
2. Jurisdiction of Orissa Police to investigate and arrest under the 1994 TOHO Act.
3. Compliance with procedural safeguards under Cr.P.C. and constitutional rights.
4. Applicability of 1994 TOHO Act vs. 1995 A.P. TOHO Act.

Detailed Analysis:

1. Illegal Arrest and Unlawful Detention:
The petitioner challenged the illegal arrest and detention of her husband, the detenue, under sections 120(B), 468, 471, 342 read with section 34 IPC, and Section 19 of the 1994 TOHO Act. The petitioner argued that there was no allegation against her husband in the FIR, and the hospital authorities acted in good faith, following the 1995 A.P. TOHO Act. The court noted that the arrest was made without a warrant, and the grounds of arrest were not communicated, violating Sections 41, 41-A, 50, 57 Cr.P.C., and Articles 14, 21, and 22 of the Constitution.

2. Jurisdiction of Orissa Police:
The petitioner contended that the Orissa Police had no jurisdiction to investigate and arrest under the 1994 TOHO Act, as the alleged offense occurred in Andhra Pradesh, governed by the 1995 A.P. TOHO Act. The court held that the 1994 TOHO Act was not applicable in Andhra Pradesh, as it had not adopted the Act under Article 252(1) of the Constitution. The court emphasized that the Appropriate Authority under the 1995 A.P. TOHO Act should investigate the matter.

3. Compliance with Procedural Safeguards:
The court analyzed the procedural safeguards under Cr.P.C. and constitutional rights. It emphasized that arrest and detention must be justified and not made in a casual or routine manner. The court noted that the arresting officer failed to record reasons for the arrest, violating Section 41 Cr.P.C. and fundamental rights under Article 21. The court also highlighted the importance of issuing a notice under Section 41-A Cr.P.C. when arrest is not required. The court found violations of Sections 41, 50, and 57 Cr.P.C., and Article 22(1) of the Constitution, as the detenue was not informed of the grounds of arrest and was not produced before a magistrate within 24 hours.

4. Applicability of 1994 TOHO Act vs. 1995 A.P. TOHO Act:
The court held that the 1994 TOHO Act was not applicable in Andhra Pradesh, as it had not adopted the Act, and the 1995 A.P. TOHO Act governed the matter. The court noted that the hospital authorities should have obtained approval from the Authorization Committee of Odisha, as the donor and recipient belonged to Odisha. The court directed the Investigating Officer to file a complaint with the Appropriate Authority for alleged violations of the 1994 TOHO Act and suggested that the Appropriate Authority or CBI investigate the matter.

Interim Bail:
The court granted interim bail to the detenue, considering the prima facie illegality in the arrest and detention, and directed the petitioner to furnish a bail bond with conditions.

Directions to the State Government:
The court issued several directions to the State Government, including:
1. Filing a complaint with the Appropriate Authority.
2. Intimating other states not to conduct organ transplantation without approval from Odisha's Authorization Committee.
3. Framing guidelines for processing organ transplantation applications.
4. Implementing a scheme similar to "Jeevandan" for organ transplantation.
5. Framing rules and guidelines for registering hospitals as Organ Transplant Centers and monitoring their activities.