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TMI Blog2014 (7) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... ether 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, J. Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death. Patrick Henry 1. In this petition for a writ of habeas corpus, the petitioner Mrs. N. Ratnakumari has challenged the illegal arrest and unlawful detention of her husband Dr. N. Pravakar Babu (hereinafter 'the detenue') and has prayed for his release from the unlawful and illegal detention with a further prayer to quash the same. 2. It appears from the facts of the case that one Umakanta Nayak, S/o-Late Damodar Nayak of Naik Sahi, Buxi Bazar, P.S.-Mangalabag, District-Cuttack lodged a First Information Report before the Inspector-in-Charge, Mangalabag Police Station alleging therein that his wife Namita Nayak and one Sharmista Nayak were closely known to each other and residing in the same Sahi. On 12.3.2014, Smt. Sharmista Nayak alleged to have taken the wife of the informant on the pretext of visiting Sai Baba Ashram and since his wife did not return back home for about 15/16 days, the informant contacted his wife over telephone and came to know from her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dispute between the informant and his wife of one hand and Sharmista and Mohan Chandra Lenka on the other and when basing on the voter identity card, residential certificate produced before the authorities of the hospital, kidney transplantation operation was carried out in accordance with Andhra Pradesh Transplantation of Human Organs Act, 1995 (hereinafter 1995 A.P. TOHO Act ) without any ill intention rather to save the life of the patient, her husband has been unnecessarily entangled in the case, arrested and illegally detained. According to the petitioner, it was not within the knowledge of authorities of Seven Hills Hospital whether the documents produced before them were forged or not at that point of time and that the authorities of the hospital have acted in a bonafide manner in good faith. It is further contended that in view of the provisions 1995 A.P. TOHO Act, the detenue is not liable to be prosecuted in as much as all the requirements of the said Act was followed. 5. It is the further case of the petitioner that police officials of Mangalabag Police Station came to Seven Hills Hospital on 2/3 occasions in connection with the investigation of the case. The hosp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Magistrate and the detenue was referred to NIMS, Hyderabad for further treatment by the Medical Officer, KG Hospital, Visakhapatnam. The Magistrate returned back the original Memo of Arrest and gave verbal direction to shift the detenue to NIMS Hospital, Hyderabad and to produce him before the local Magistrate at Hyderabad after completion of medical treatment. The requisition was made to the Commissioner of Police, Visakhapatnam City to provide escort party on 17.6.2014 and there was night halt at Eluru on 18.6.2014 while proceeding to Hyderabad. Since the detenue complained of chest pain, he was immediately admitted in the nearest Hospital i.e., at Ayush Hospital, Vijaywada and after check up, he was discharged on 19.6.2014 and intimation was given to the 4th Addl. Chief Metropolitan Magistrate, Vijayawada as well as Patamata Police Station on 18.6.2014 regarding his admission. After discharge on 19.6.2014, the detenue was brought to NIMS Hospital, Hyderabad and after medical check up on that day, the medical Officer advised for taking DTS SCAN and on 20.6.2014, he was taken to NIMS for DTS Scan on OPD basis but it was opined by the doctor of Nuclear Medicine Department t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he could not be produced before the nearest Magistrate, i.e., learned 4th Additional Chief Metropolitan Magistrate, Vishakapatnam city but the fact of arrest and medical treatment of the detenue was intimated to the learned Magistrate on 14.06.2014. The accused was referred to NIMS Hospital, Hyderabad for further treatment by the Medical Officer of KG. Hospital, Vishakapatnam on 16.6.2014 and the detenue was physically received by the I.O. on 17.6.2014 and on the very day on the prayer of the I.O., the learned 4th Additional Chief Metropolitan Magistrate, Vishakapatnam city intimated him to produce before the local Magistrate after his treatment at NIMS, Hyderabad. During transit from Vishakapatnam to Hyderabad on 17.6.2014 night, there was halt at Eluru for taking rest but on 18.6.2014 while proceeding to Hyderabad near Vijaywada, the detenue complained of chest pain for which he was admitted in AYUSH Hospital at Vijaywada and the fact of such admission was intimated to the 4th Additional Chief Metropolitan Magistrate, Vijaywada. The detenue was discharged on 19.6.2014 from AYUSH Hospital, Vijaywada and he was brought to NIMS Hospital Hyderabad. On production at NIMS, Hydera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducing before learned Magistrate immediately after arrest in as much as the learned Magistrate in Andhra Pradesh was not entertaining the production of an accused in absence of any medical fitness certificate. 8. By filing Additional Affidavit, it was contended by the petitioner that 1994 TOHO Act was enacted by the Parliament during 1994 and it came into force on 4th February 1995 in the State of Goa, Himachal Pradesh and all the Union Territories and thereafter, it was adopted by all the states except the states of Jammu and Kashmir and Andhra Pradesh, which have their own legislation to regulate transplantation of human organs. The hospital being situated in the State of Andhra Pradesh, it is governed by the 1995 A.P. TOHO Act but not under the Central Legislation i.e., 1994 TOHO Act. According to the petitioner's counsel, the Government of Andhra Pradesh has not enacted any rule for the purpose. Since in the Central Act, it is categorically mentioned that the Act will be applicable only after respective State Government's adopting it by resolution under Article 252(1) of the Constitution of India and since the State of Andhra Pradesh has not adopted such Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.C. by the investigating agency to the detenue and thus, there has been non-compliance of the mandatory provisions of Cr.P.C.. Such contention was raised taking into account the punishment prescribed under section 18 of the 1995 A.P. TOHO Act wherein it is stated that any person who renders his service to or at any hospital and who, for the purposes of transplantation, conducts, associates with or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to 5 years and with fine which may extend to ₹ 10,000/-. 9. It is the settled principle of law as held in case of Nazir Ahmed -v- King Emperor reported in AIR 1936 Privy Council 253 which is followed in many a decision of the Hon'ble Supreme Court as well as different High Courts including our own High Court that when a power is given to do a certain thing in certain way, the thing must be done in that way or not at all, other methods of performance are necessarily forbidden. Section 60-A Cr.P.C. provides that no arrest shall be made except in accordance with the provisions of the Code or any other law for the time being in force pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. Recently Hon'ble Supreme court in case of Arnesh Kumar v. State of Bihar (Criminal Appeal NO. 1277 of 2014, Judgment dtd. 2.7.2014) while dealing with the arrest of a person accused of an offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years with or without fine has held as follows:- The police office before arrest must put a question to himself, why arrest? Is it really required? What purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; (f) and the police officer shall record while making such arrest, his reasons in writing; Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this subsection, record the reasons in writing for not making the arrest; Chapter-V of Cr.P.C. deals with arrest of persons and Section 41 Cr. P.C. in detail enumerates under what circumstances a police officer can arrest any person without an order from a Magistrate and without the warrant. In case of M.C. Abraham -v- State of Maharashtra reported in ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) if the police officer feels that in spite of a reasonable complaint/credible information/reasonable suspicion that the person concerned has committed a cognizable offence which is punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine, the arrest of such person is not required, then also he has to record the reasons in writing for not making the arrest. 18. Thus, recording the reasons is necessary where the police officer is making the arrest and even where he feels that arrest is not required in a case where it is a cognizable offence and the punishment prescribed may be less than 7 years or may extend to 7 years whether with or without fine. 19. Such recording of reasons is not necessary, if the cognizable offence is committed in the presence of a police officer in view of section 41(1)(a) Cr.P.C. It is also not necessary in view of Section 41(1)(ba) Cr. P.C. in case of arrest of a person against whom credible information is there to have committed cognizable offence which is punishable with more than 7 years whether with or without fine or with death sentence and basing on such credible informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) abets in the preparation or submission of false documents including giving false affidavits to establish that the donor is making the donation of the human organs, as a near relative or by reason of affection or attachment towards the recipient shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall be liable to fine which shall not be less than twenty lakh rupees but may extend to one crore rupees. 22. Thus, in view of the punishment prescribed under sections 18 and 19 of 1994 TOHO Act, i.e., upto 10 years and with fine, it is not mandatory on the part of police officer to record reasons in writing for making arrest which is necessary in case of cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine as indicated under section 41(1)(b) Cr.P.C. 23. Learned counsel for the petitioner submits that 1994 TOHO Act is not applicable in the case in hand in as much as State of Andhra Pradesh has a separate Act, i.e., 1995 A.P. TOHO Act wherein under section 18, the punishment provided is upto 5 years and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses Legislature of the State. (2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of the State . Thus Article 252 of the Constitution makes it clear that where parliament has no power to make laws for the States except as provided to Articles 249 and 250 and houses of legislature of two or more States passes a resolution then it shall be lawful for the parliament to pass an Act for regulating the matter enumerated in the State List but such Act will be applicable to the States which had passed the resolution and so far as other States are concerned, they can adopt it afterwards by resolution passed in that behalf by the House or, where there are two Houses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pradesh as that State has not adopted the 1994 TOHO Act but 1995 A.P. TOHO Act is applicable to the State of Andhra Pradesh. Learned Advocate General submitted and the opp. Parties have also indicated in their notes of submissions filed on 18.07.2014 that 1994 TOHO Act has been adopted by the State of Orissa in August 1998. It is further stated by the learned Advocate General that amendment to the provisions of 1994 TOHO Act in 2011 was also adopted by the State of Odisha on 29.02.2012. 25. Now the questions arise as follows:- (i) 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? Or (ii) 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? (iii) Whether an F.I.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;B' situates can also enquire into or try the offence. 28. Section 9 of 1994 TOHO Act reads as follows:- 9. Restrictions on removal and transplantation of human organs or tissues or both-(1) Save as otherwise provided in sub-section (3), no human organ or tissue or both removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative or the recipient. (1A) Where the donor or the recipient being near relative is a foreign national, prior approval of the Authorisation Committee shall be required before removing or transplanting human organ or tissue or both: Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives. (1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed. (1C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h recipients in the aforesaid group of donor and recipient have entered into a single agreement to donate and receive such human organ or tissue or both according to such biological compatibility in the group, the removal and transplantation of the human organ or tissue or both, as per the agreement referred to above, shall not be done without prior approval of the Authorization Committee. 4(a) The composition of the Authorization Committees shall be such as may be prescribed by the Central Government from time to time. (b) The State Government and the Union territories shall constitute, by notification, one or more Authorization Committees consisting of such members as may be nominated by the State Governments and the Union territories on such terms and conditions as may be specified in the notification for the purpose of this section. (5) On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorization Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 122 wherein Section 9 of the 1994 TOHO Act as was at that point of time governing the field was dealt with and Hon'ble Court after extracting the provision of Section 9 has held in paragraph 10 that the provision refers to donors who are not near relatives of the recipient. (After amendment to Section 9 in 2011, the case of near relative has been inserted in the said provision). In paragraph-12, the Hon'ble Supreme Court has held that Form 1 in terms of Rule 3 itself shows that the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. It is further held as follows:- 12. Where the donor is not near relative as defined under the Act the situation is covered by sub-section (3) of Section 9. As Form 1 in terms of Rules 3 itself shows, the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. In case the donor is not a near relative the requirement is that he must establish that removal of the organ was being authorised for transplantation into the body of the recipient because of affection or attachment or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue whether approval is to be accorded. Form 1 in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorization Committee of the State of Punjab which is required to examine the claim of the petitioners. 31. Since after amendment to section 9 in 2011 in 1994 TOHO Act, not only the cases of persons who are not near relative but also the cases of persons who are near relative are covered under section 9, in view of sub-section (5) of section 9, a joint application of the donor and the recipient is mandatory and it is only after approval of the Authorization Committee, the removal and transplantation of the human organ can be done. In view of the decision of the Hon'ble Supreme Court in case of Kuldeep Singh (supra), it is the Authorisation Committee of the State to which the donor and the recipient belong to has to take the exercise to find out whether approval is to be accorded or not in as much as they shall be in a better position to ascertain the true intent and the purpose for the authorization to remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the donor and the recipient belong to or in any other State. 33. On perusal of the ratio laid down in Kuldeep Singh's case (supra) and Form No. 1(B) and Form No. 10, 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. This answers the first question that we have framed. In view of the answer to the first question, we need to go to the second question that we had framed. 34. Now coming to the next question as to whether an F.I.R. under section 19 (subsequently added section is section 18) of the 1994 TOHO Act can be registered and whether Mangalabag police has jurisdiction to investigate such case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. He impersonated himself as a Chartered Accountant and prepared audit reports for monetary consideration. It was urged that this being a violation of Chartered Accountants Act, 1949 and Section 195 I.P.C., other provisions of I.P.C. and Cr.P.C. could not be pressed into service to prosecute the person concerned. The plea of double jeopardy was also advanced on behalf of the accused which was repealed by the Hon'ble Supreme Court. While dealing with TOHO Act, the Hon'ble Court held that the provisions of TOHO Act being a part of Special Law, they have overriding effect qua provisions of I.P.C./Cr.P.C. It was further held that the provisions of Section 24-A, 25 and 26 of the Chartered Accountants Act contain an expression without prejudice to any further proceeding which may be taken and went on to held that it was permissible to proceed under provisions of I.P.C. independent of the provisions of the Chartered Accountants Act. Since we hold prima facie that the provisions of 1994 TOHO Act has been violated in this case, let us see as to how a person who is violating the provisions can be proceeded with. 35. Section 2(b) of 1994 TOHO Act states that Appropriate Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised Officer and nobody else could do it. 36. At this juncture, in order to appreciate the contention raised by both the parties, some of provisions of Cr. P.C. need to be discussed. Section 4 Cr. P.C. briefly enumerates as to how the investigation, inquiry, trial relating to all the offences either under Indian Penal Code or any other law are to be conducted. So far as offences under I.P.C. are concerned, the procedure laid down in the Cr. P.C. in relation to investigation, inquiry or trial will hold good but in relation to the provisions of special law, for example, Prevention of Food Adulteration Act, 1954, Narcotic Drugs and Psychotropic Substances Act, 1985, and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 etc. are concerned, the procedure laid down under such Special Act regarding manner of investigation, inquiry or trial would prevail and the provisions of Cr. P.C. cannot apply. A bare reading of section 4 Cr. P.C. makes it clear that if an offence is committed under a Special law, then the provisions of that law would govern the investigation and trial of such offence and a police officer is not empowered either to submit charge sheet or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibits taking of cognizance except on a complaint made by an Appropriate Authority or the person who had made a complaint earlier to it as laid down therein. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. The provisions of the Code, for all intent and purport, would apply only to and extend till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. It was further held that though in terms of the Code, the C.B.I. upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it is precluded from doing so by reason of the provisions contained in Section 22 of TOHO. The procedure laid down in TOHO would permit the C.B.I. to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO. 38. In view of Section 22 of 1994 TOHO Act, complaint before compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government/Appropriate Authority file a complaint petition before the competent Magistrate for taking cognizance and proceed in accordance with law against the accused persons involved in the violation of the provisions of the said Act. Similarly, the informant in this case or any other person interested to prosecute an accused under 1994 TOHO Act, after giving notice of not less than sixty days to the concerned Appropriate Authority regarding the commission of the alleged offence and also his intention to make a complaint to the Court can file the complaint petition before the competent Magistrate after the expiry of the sixty days notice period. Section 41 Cr.P.C. 40. We have held that in the case in hand, the provisions of 1994 TOHO Act and the Rules framed thereunder, have prima facie been violated. We have further held that F.I.R. cannot be entertained for breach of any of the provisions of 1994 TOHO Act by the Mangalabag Police Station and Mangalabag police officials are not authorised to investigate a case relating to breach of any provisions of the said Act. 41. If 1994 TOHO Act is excluded, so far as the other offences under which the case has been registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (2014) 4 Supreme Court Cases 453, the Hon'ble Supreme Court held that in view of section 41-A Cr.P.C., it is compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41-A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India. Since in the present case according to prosecution, the arrest of the detenue was required on the basis of credible information received against him regarding his involvement in the commission of offence under 1994 TOHO Act, section 41-A Cr.P.C. is not applicable in this case. This provision is applicable in all such cases where the police officer feels that the arrest of the person is not required. Section 50 Cr.P.C. 44. Section 50 Cr.P.C. is alleged to have been violated in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation and the date of hearing. In the case of Col. Dr. B. Ramachandra Rao Vrs. State of Orissa reported in AIR 1971 SC 2197, it is held that in habeas corpus, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceeding. In the case of Talib Hussain Vrs. State of Jammu Kashmir reported in AIR 1971 SC 62, it is held that in habeas corpus proceeding, the Court has to consider the legality of the detention on the date of hearing. All these three views were considered in case of Kanu Sanyal Vrs. Dist. Magistrate reported in AIR 1974 SC 510 wherein it was held that the second view (i.e., detention at the time of return) appears to be more in consonance with the law and practice in England and has received largest measure of approval in India. The third view (i.e. on the date of hearing) cannot be discarded as incorrect because an inquiry whether the detention is legal or not at date of hearing of the application for habeas corpus could be quite relevant, for simple reason that if on that day the detention is legal, the Court cannot order release of the person detained by issuing a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the above discussion, we are of the view that once the arrest is illegal, unauthorized and is in violation of Article 22(1) of the Constitution of India, the same cannot be cured by any action like remand etc., in the hands of a Judicial Magistrate. 48. The learned counsel for the petitioner submits that the detenue was never produced before a competent Magistrate within 24 hours of arrest excluding the journey time till 24.6.2014 when he was produced for the first time before a competent Magistrate at Hyderabad and on 3.7.2014 when he was produced before the learned S.D.J.M., (Sadar), Cuttack. The arrest being made on 13.6.2014, there is gross violation of Article 22(2) read with Section 57 Cr.P.C. Article 22(2) of the Constitution of India provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained beyond the said period without the authority of a Magistrate. Section 57 Cr.P.C. provides that no police officer shall detain in custody a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Chief Metropolitan Magistrate, Hyderabad on 24.6.2014, it cannot be said that there is violation of either Article 22(2) of the Constitution of India or Section 57 Cr.P.C.. The time taken in producing the detenue one after other Hospitals for treatment after arrest in order to take reasonable care of his health is also to be excluded apart from the journey time from the place of arrest to the Court of Magistrate from the period prescribed under Article 22(2) of the Constitution of India read with Section 57 Cr.P.C. Thus, there is no violation of either Article 22(2) of the Constitution of India or Section 57 Cr.P.C.. 49. In view of the above discussion, we are satisfied that prima facie, there is patent illegality in the arrest and detention of the detenue. In case of State of Bihar -v- Rambalak Singh reported in AIR 1966 SC 1441 it is held as follows:- If the Court has jurisdiction to give the main relief to the detenue at the end of the proceedings, on principle and in theory, it is not easy to understand why the Court cannot give interim relief to the detenue pending final disposal of his writ petition. The interim relief which can be granted in habeas corpus p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch illegal commercial dealing. To check such racket and to meet ends of justice, we are issuing the following directions:- 1. The I.O. of this case is directed to take immediate step to file a complaint on the basis of materials already collected by him for the alleged violation of the provisions of 1994 TOHO Act before the Appropriate Authority in connection with this case. The Appropriate Authority may himself investigate the complaint or entrust the matter to the C.B.I. for investigation. 2. Once the Appropriate Authority or C.B.I. on investigation finds prima facie materials that there is breach of any of the provisions of 1994 TOHO Act or the rules made thereunder, the Appropriate Authority or the C.B.I. will file a complaint petition before the competent court for taking cognizance of offence and proceeding in accordance with law. 3. The State Government is directed to intimate all other States where the donor and the recipient belong to State of Odisha, not to conduct any organ transplantation operation without the approval/No-Objection Certificate from the Authorisation Committee of Odisha. 4. The State Government is also directed to consider framing guidelin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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