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2014 (7) TMI 1258 - HC - Indian Laws


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.

 

 

 

 

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