2009 (7) TMI 1376 - SC - Indian Laws

Summary

Issues Involved:
1. Applicability of Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 in cases under Section 22 of the Transplantation of Human Organs Act, 1994.
2. Distinction between a "complaint" and a "police report".
3. The role and powers of the investigating authority under TOHO.
4. The right to bail under Sub-section (2) of Section 167 of the Code.

Detailed Analysis:

1. Applicability of Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 in cases under Section 22 of the Transplantation of Human Organs Act, 1994:
The judgment addresses whether Sub-section (2) of Section 167 of the Code applies when cognizance is taken under Section 22 of TOHO. The court concluded that TOHO, being a special statute, prevails over the general provisions of the Code. Section 22 of TOHO mandates that cognizance of offences can only be taken on a complaint by an appropriate authority, thus excluding the applicability of Sub-section (2) of Section 167 of the Code in such cases. The court emphasized that the special procedures laid down in TOHO override the general procedures of the Code.

2. Distinction between a "complaint" and a "police report":
The court highlighted the definitions of "complaint" and "police report" under Sections 2(d) and 2(r) of the Code, respectively. A "complaint" excludes a police report, and a police report is a report forwarded by a police officer under Sub-section (2) of Section 173 of the Code. The judgment clarified that the respondent, being an authorized officer under TOHO, could only file a complaint and not a police report. This distinction is crucial because it determines the procedural path to be followed and the rights of the accused under the Code.

3. The role and powers of the investigating authority under TOHO:
The court examined the role of the appropriate authority under TOHO, which includes investigating breaches of the Act and taking appropriate action. The respondent, being authorized under Section 13(3)(iv) of TOHO, conducted the investigation and filed a complaint. The court noted that while the respondent has powers similar to those of a police officer, TOHO specifically prohibits the filing of a police report, thereby necessitating the filing of a complaint instead.

4. The right to bail under Sub-section (2) of Section 167 of the Code:
The appellants argued that they were entitled to bail under Sub-section (2) of Section 167 of the Code due to the non-filing of a police report within 90 days. The court, however, held that since a complaint was filed within the statutory period, the requirements of Sub-section (2) of Section 167 were satisfied. The court referred to precedents, including Sanjay Dutt v. State Through C.B.I., Bombay, to affirm that the right to bail under this provision does not survive once the complaint or report is filed within the stipulated time.

Conclusion:
The Supreme Court dismissed the appeals, affirming that the special provisions of TOHO take precedence over the general provisions of the Code. The court clarified the procedural requirements under TOHO, emphasizing that the appropriate authority must file a complaint rather than a police report. The judgment underscored the importance of adhering to the specific statutory frameworks established by special legislation like TOHO.