1975 (2) TMI 115 - SC - Indian Laws

Summary

Issues Involved:
1. Applicability of Section 167(2) of the Code of Criminal Procedure, 1973.
2. Distinction between a complaint and a police report.
3. Authority and procedure under the Transplantation of Human Organs Act, 1994 (TOHO).

Detailed Analysis:

1. Applicability of Section 167(2) of the Code of Criminal Procedure, 1973:
The primary issue was whether Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC) applies in cases where cognizance is taken under Section 22 of the Transplantation of Human Organs Act, 1994 (TOHO). The judgment clarified that TOHO is a special statute that overrides the general provisions of the CrPC. Section 22 of TOHO mandates that cognizance of offences under TOHO can only be taken on a complaint filed by an appropriate authority. The court held that since TOHO specifically prohibits the filing of a police report, the provisions of Section 167(2) CrPC, which require a police report, are not applicable. The court emphasized that "if no police report could be filed, Sub-section (2) of Section 167 of the Code was not attracted."

2. Distinction between a Complaint and a Police Report:
The court discussed the definitions and distinctions between a "complaint" and a "police report" under the CrPC. Section 2(d) of the CrPC defines a complaint as an allegation made to a Magistrate, excluding a police report. Section 2(r) defines a police report as a report forwarded by a police officer under Section 173(2) CrPC. The court noted that TOHO, being a special statute, requires the filing of a complaint by an appropriate authority, not a police report. The court agreed with the observations from the Kerala High Court in Moosakoya v. State of Kerala, which stated that a court cannot take cognizance of an offence under a special statute like TOHO based on a police report, but only on a written complaint by an authorized officer.

3. Authority and Procedure under TOHO:
The court examined the provisions of TOHO, particularly Section 22, which restricts the filing of complaints to appropriate authorities. The court stated that TOHO provides for the regulation of removal, storage, and transplantation of human organs and the prevention of commercial dealings in human organs. It mandates that investigations into breaches of TOHO must be conducted by an authorized officer. The court highlighted that the Central Bureau of Investigation (CBI), despite having the powers of an investigating agency, is prohibited from filing a police report under TOHO and must file a complaint petition instead. The court concluded that the procedure laid down in TOHO must be followed, and the provisions of the CrPC apply only to the extent that they do not conflict with TOHO.

Conclusion:
The court dismissed the appeals, holding that the provisions of TOHO take precedence over the CrPC in cases involving offences under TOHO. The court reiterated that the special procedures under TOHO must be followed, and the filing of a police report is not permissible under TOHO. The court also noted that the appellants were not entitled to bail under Section 167(2) CrPC as the complaint was filed within the statutory period of 90 days. The judgment emphasized the need for legislative clarity and suggested that the Parliament consider amending the law to address the procedural dichotomy between special statutes like TOHO and the general provisions of the CrPC.