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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 ..... ice 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 that Smt. Sharmista Nayak did not take her to Sai Baba Ashram on 12.3.2014 as promised rather took her to Visakhapatnam and kept her in a lodge and that she was told by Sharmista that one her relative's kidney was damaged and he was in dire need of a kidney and requested her to donate her kidney. On receiving such information from his wife, the informant proceeded to Visakhapatnam as per the address given by his wife and by that time his wife was already admitted in Seven Hills Hospital, Visakhapatnam. The informant told his wife at Visakhapatnam not to give her kidney but Sharmista Nayak and one Niranjan assured the informant that his family will be taken care of by them. In view of the persuasion made by Sharmista and Niranjan, the wife of the informant agreed to donate her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hospital authorities fully cooperated with them but even though there was no involvement of any doctors/authorities of the hospital in the alleged crime but all the same the detenue were arrested without any rhyme and reason. According to the petitioner, the arrest was made without any warrant and the ground of arrest was also not intimated to the detenue and even though the arresting authorities is duty bound to produce the arrested person before the nearest Magistrate within 24 hours as per the provisions under Section 57 Cr.P.C., the same has been violated in the case. It is further contended by the petitioner that the detenue is aged about 62 years and suffers from heart ailments and undergone angioplasty surgery and he suddenly fell ill at the time of arrest. Since the detenue was not prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 that due to non-availability of cold kit, such test cannot be done at NIMs before 15.7.2014. The Medical Officer further opined that the detenue was not fit for production before the Court and then he was taken to Apollo Hospital, Hyderabad where DTS Scan was scheduled to be conducted on 23.6.2014. On 20.6.2014 it was intimated to the 4th Addl. Chief Metropolitan Magistrate, Hyderabad regarding the arrest and medical treatment of the detenue. The test was conducted on 23.6.2014 and along with test report, the detenue was produced before NIMS, Hyderabad with requisition to give fitness certificate and on 24.6.2014 Professor and Head of Cardiology Department of NIMS, Hyderabad after verification of the report found everything to be normal on cardiac point and gave fitness certificate in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile 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, Hyderabad, the detenue was advised for DTS SCAN on 20.06.2014 but the Medical Officer of Nuclear Medicine Department of NIMS opined that due to non-availability of old Kit, the test could not be done before 15.07.2014 and accordingly on the very day the detenue was taken to Apollo Hospital, Hyderabad for DTS SCAN but the doctor gave appointment of such SCAN to be conducted on 23.06.2014. On 23.06.2014 after conducting DTS SCAN, the test report was obtained and the detenue was produced at NIMS along with the test report on 24.6.2014. After obtaining the fitness certificate in respect of the detenue from NIMS, he was produced before the learned Chief Metropolitan Magistrate, Hyderabad on 24.6.2014. As per direction of the High Court of judicature of Hyderabad of the State of Andhra Pradesh in W.P. (C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording 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 was amended in 2011, 1995 A.P. TOHO Act is the only Act which governs the field and neither Central Act of 1994 nor the Transplantation of Human Organs Rules, 1995 (hereinafter "1995 Rules") nor the Transplantation of Human Organs (Amendment) Act, 2011 (hereinafter "2011 Act") are applicable for the State of Andhra Pradesh. It is the further case of the petitioner that Section 13(2)(iv) of the 1995 A.P. TOHO Act indicates that Appropriate Authority has the power to investigate any complaint or breach of any of the provisions of the said Act or any of the rules made there under and take appropriate action and thus the Appropriate Authority as appointed under Section 13 can only file complaint before a concerned Court as per Section 22 of the said Act to take cognizance of an offence under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent 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 providing for arrest. 10. No doubt, different provisions of the Cr.P.C. provides for the arrest of an accused involved in a cognizable offence. The existence of power of arrest is one thing but the justification for such exercise is quite another. Arresting Officer must be able to justify the arrest apart from his power to do so. Arrest and detention of a person cannot be made in a casual or routine manner on the mere allegation of commission of offence and the law mandates that before arresting a person and after arrest, procedure laid down under Chapter-V of Cr.P.C. are to be strictly followed otherwise the arrest and the consequent detention would be illegal. That is why Section 60-A of Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (15 of 2009) which came into force with effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest need to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr. P.C. 11. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Procedure must be fair and not formal and it should be reasonable, not vagarious, vague and arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2003) 24 Orissa Criminal Reports (SC) 517, it is held that though section 41 Cr.P.C. gives discretion to the police officer to arrest any person without an order from a Magistrate and even without a warrant in the situations enumerated in that section but he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged even if the allegation against the accused is that he has committed a cognizable offence, the power has to be exercised with caution and circumspection keeping in view the direction of the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 information, the police officer has reason to believe that the person concerned has committed the offence. 20. In the present case, the police officials had proceeded to arrest the detenue on the basis of the registration of the F.I.R. under section 19 of the 1994 TOHO Act in connection with Mangalabag P.S. Case No. 98 of 2004. Subsequently, section 18 of the said Act has been added during course of investigation. Section 18(1) of the 1994 TOHO Act prescribes punishment with imprisonment for a term which may extend to 10 years and with fine which may extend to Rs. 20 lakh rupees. Section 18(1) of the 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 with fine which may extend to 10,000/- rupees. In view of such prescribed punishment, the contention of the learned counsel for the petitioner is that recording of reasons for making the arrest is mandatory in view of section 41(1)(b) Cr.P.C. which has not been followed in this case by the arresting officer while arresting the detenue. Section 18(1) of 1995 A.P. TOHO Act is quoted herein below:- 18. Punishment for removal of human organ without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, by each of the Houses of the Legislature of that State. Article 246 deals with subject matter of laws to be made by Parliament and by legislature of the States. Article 246(3) states that subject to clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List-II in the 7th Schedule (in the Constitution referred to as the "State List"). Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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? 26. In the case at hand, the prosecution alleges that the victim was duped from the State of Orissa and taken to Visakhapatnam; forged documents were created to show that the donor (victim) is the wife of the recipient and without prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 Explanation-For the purpose of this sub-section,- (i) the expression "mentally challenged person" includes a person with mental illness or mental retardation, as the case may be; (ii) the expression "mental illness" includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 applicants approval for the removal and transplantation of the human organ. (6) If, after the inquiry and after giving an opportunity to the applicants of be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 for any special reasons to make donation of his organ. As the purpose of enactment of the statute itself shows, there cannot be any commercial element involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine 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 the organ and whether any commercial element is involved or not. In the case of Miss Sonia Ajit -v- Hospital Committee passed in Writ Petition (L.) No. 2831 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and arrest the detenue, according to the learned counsel for the petitioner, section 13 of the 1995 A.P. Act gives the Appropriate Authority appointed by Government of Andh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Authority" means Appropriate Authority appointed under section 13. Section 13 of 1994 TOHO Act indicates as to who can appoint the Appropriate Authority and what their function is. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 otherwise proceed under chapter XII of the Cr. P.C. The powers under the Cr.P.C. are thus subject to any special provisions that might be made with regard to the exercise or regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 competent Court can be made by the concerned "Appropriate Authority" as appointed under Section 13 or by any officer authorized by the (i) Central Government or (ii) State Government or (iii) Appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i.e., Section 120(B), 468, 471, 342 read with Section 34 of Indian Penal Code are concerned, none of the offences carries punishment more than 7 years and as such Section 41 Cr.P.C. has to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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. Section 50(1) Cr.P.C. is in conformity with the provisions of Article 22(1) of the Constitution of India. As per this section, it is mandatory on the part of the police officer or other person arresting any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 45. Learned counsel for the petitioner raises contention regarding violation of the provisions under section 57 Cr.P.C. Section 57 Cr.P.C. provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 writ of habeas corpus. The learned Advocate General places reliance in case of Manubhai Ratilal Patel Vrs. State of Gujarat reported in (2013) 1 Supreme Court Cases 314 wherein it is held (para 31) that it is the well-accepted principle th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 person arrested without warrant for a longer period than under all circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed 24 hours exclusive of the time necessary for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceedings must no doubt be in aid of, and auxiliary to, the main relief. It cannot be urged that releasing a detenue on bail is not in aid of, or auxiliary to the main relief for which a claim is made on his behalf in the writ petition". When the High Court releases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 guidelines for processing the application for organ transplantation before the Authorisation Committee keeping in view the guidelines issued by the Government of Andhra Pradesh, Hyderabad and any other States. 5. The State Government is also directed to frame a scheme similar to the "Jeevandan" s ..... 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