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TMI Blog2009 (7) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 18 and 19 of TOHO at Police Station Palam Vihar, Gurgaon. The investigation was transferred to the Central Bureau of Investigation, the respondent herein. It registered another FIR on or about 8.02.2008 under Sections 420, 342, 326, 506 and 120B of the Indian Penal Code and under Sections 18 and 19 of TOHO. 4. Appellant No. 2 was arrested on 10.02.2008 and he was produced before the learned Magistrate on 11.02.2008, whereas appellant No. 1 surrendered on 17.02.2008 and produced before the learned Magistrate on 18.02.2008. 5. Respondent filed a complaint under Section 22 of TOHO before the Judicial Magistrate, CBI Cases, Ambala inter alia stating: 51. That required authorization under Section 22 of TOHO Act 1994 has been accorded by the Govt. of Haryana vide order dated 11.4.08 in favour of undersigned IO of the case.... 52. That as per provisions contained in TOHO Act, 1994, cognizance for the offences punishable under the provision of said Act can only be taken up on a complaint filed by prescribed authority or by a person duly authorized by competent authority. Ms. Firoza Mehrotra, Financial Commissioner Principal Secretary to the Govt. of Haryana, Home D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith, the appellants filed revision applications before the High Court wherein notice was issued on 29.05.2008. By reason of the impugned judgment dated 28.01.2009, the High Court dismissed the said revision applications. However, the High Court refused to go into the question raised by the appellants herein that a complaint is not a police report and cannot be treated as such, stating: ...The cognizance of the offence under the TOHO Act in terms of Section 22 is to be taken on the basis of a complaint filed by an appropriate authority concerned. Conceded position is that the complaint against the petitioners under the TOHO Act was filed on 29.4.2008, which was within a period of 90 days in respect of all the petitioners. Once the complaint was filed within a statutory period for a cognizable offence, which is non-bailable, of which cognizance was taken by the Magistrate, the petitioners would not be entitled to seek the protection of Section 167(2) Cr.P.C., even if it is construed for the sake of argument that a complaint is not a police report or cannot be treated as such. The net effect of the argument raised by counsel for the petitioners would be that even if the complaint i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the offences and having committed the case to the Court of Sessions, the application for bail filed in terms of Sub-section (2) of Section 167 of the Code has become infructuous. (ii) The appellant No. 2 having been arrested on 10.02.2008 and the appellant No. 1 having surrendered on 17.02.2008 as also a complaint petition having been filed on 29.04.2008, the requirements of Sub-section (2) of Section 167 of the Code stand complied with, as even assuming that the complaint petition is to be treated as a police report, the same was filed within a period of 90 days. 11. Before adverting to the rival contentions of the learned Counsel, we may notice the relevant provisions of the Code as also of TOHO. Section 2(d) of the Code defines Complaint to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report . Section 2(r) of the Code defines police report to mean a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 . Chapter XII of the Code deals with information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, shall authorize detention in the custody of the police. Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail. Explanation II. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention. A report of a police officer on completion of investigation is required to be filed in terms of Section 173 of the Code; Sub-section (2) whereof empowers the investigating officer to file a report disclosing: (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. Chapter X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of Section 15 or renew registration under Sub-section (3) of that section; (ii) to suspend or cancel registration under Sub-section (2) of Section 16; (iii) to enforce such standards, as may be prescribed, for hospitals engaged in the removal, storage or transplantation of any human organ; (iv) to investigate any complaint of breach of any of the provisions of this Act or any of the rules made thereunder and take appropriate action; (v) to inspect hospitals periodically for examination of the quality of transplantation and the follow-up medical care to persons who have undergone transplantation and persons from whom organs are removed; and (vi) to undertake such other measures as may be prescribed. Chapter VI of TOHO deals with offences and penalties. Sections 18, 19 and 22 thereof read as under: 18 - Punishment for removal of human organ without authority (1) Any person who renders his services to or at any hospital and who, for 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 five years and with fine wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under Clause (b) of Sub-section (1), the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person. 12. TOHO is a special Act. It deals with the subjects mentioned therein, viz., offences relating to removal of human organs, etc. Having regard to the importance of the subject only, enactment of the said regulatory statute was imperative. TOHO provides for appointment of an appropriate authority to deal with the matters specified in Sub-section (3) of Section 13 thereof. By reason of the aforementioned provision, an appropriate authority has specifically been authorized inter alia to investigate any complaint of the breach of any of the provisions of TOHO or any of the rules made thereunder and take appropriate action. 13. The Appropriate Authority, subject to exceptions provided for in TOHO, thus, is only authorized to investigate cases of breach of any of the provisions thereof, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and/ or the manual framed thereunder. 18. It is for the aforementioned reason, upon receipt of the complaint from the officer incharge of the Gurgaon Police Station, it presumably having made a preliminary inquiry, lodged the FIR. Only because it lodged the FIR and proceeded in terms of the said Act and the manual, the same by itself would not mean that all the provisions of Chapter XII of TOHO vis- -vis Chapter XV thereof could not be invoked. 19. Section 22 of TOHO prohibits 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. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. 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. In other words, if no police report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not include a police report. No exception to the said submission can be taken having regard to the decision of this Court in Madhu Bala v. Suresh Kumar and Ors. 1997CriLJ3757 and Dinesh Dalmia v. CBI 2008CriLJ337 . However, in view of our foregoing findings, the said decisions have no application in the instant case. 23. We may notice that a Division Bench of the High Court of Kerala in Moosakoya v. State of Kerala held as under: 3. A plain reading of the above provision will show that even though by Section 24 all offences under the Act are made cognizable, no Court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A 'complaint in writing' by the authorised officer etc. is the only condition for taking cognizance as provided in Section 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under Section 173(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused at post-cognizance stage can be effected only in terms of Sub-section (2) of Section 309 thereof. This aspect of the matter has been considered by this Court recently in Mithabhai Pashabhai Patel and Ors. v. State of Gujarat (2009)6SCC332 . 27. Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis- -vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate. 28. We are, however, not oblivious of some decisions of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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