Criminal Misc. No.2189 of 2014 in 1 Criminal Appeal No.S- 3958-SB of 2013 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.2189 of 2014 in Criminal Appeal No.S- 3958-SB of 2013 Date of Decision: March 06, 2014 Dr.O.P.Mahajan .......Applicant-appellant (Presently confined in Central Jail, Amritsar) Versus State of Punjab .......Respondent CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Present Mr.PS Ahluwalia, Advocate for the applicant-appellant. Mr.KS Sidhu, Deputy Advocate General, Punjab. <><><> TEJINDER SINGH DHINDSA, J.
The applicant-appellant stands convicted vide judgment dated 2.11.2013 passed by the learned Additional Sessions Judge, Amritsar for offences punishable under Section 18 of the Transplantation of Human Organs Act, 1994 (for short '1994 Act') and Section 120-B of the Indian Penal Code and consequently, in terms of order of sentence dated 8.11.2013, has been sentenced as under: i) To undergo rigorous imprisonment for a period of five years and a fine of `10,000/- and in the event of default of payment of fine, to further undergo rigorous imprisonment for two months under Section 18 of the Act. Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 2 Criminal Appeal No.S- 3958-SB of 2013 ii) To undergo rigorous imprisonment for a period of three years and to pay a fine of `10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months under Section 120-B of the Indian Penal Code.
2. The sentences have been directed to run concurrently.
3. The appeal preferred by the applicant-appellant stands admitted and is pending final adjudication before this Court.
4. The instant application has been filed under Section 389 of the Code of Criminal Procedure praying for suspension of sentence of the applicant-appellant during the pendency of the appeal.
5. Learned counsel has advanced submissions to the effect that the judgment of conviction rendered by the trial Court is based on inadmissible pieces of evidence which could not have been taken into consideration and as such, the trial Court has acted in contravention of the provisions of the Code of Criminal Procedure, Indian Evidence Act as also the 1994 Act. Prior to adverting to such submissions, it would be apposite to take notice of the facts of the case in brief.
6. The present case was registered on the basis of a complaint, dated 7.10.2002, made by complainant - Bagicha Singh son of Ajit Singh to SP City, Amritsar. It was stated in the complaint, Exhibit P4, that in the month of February 2002, he had come to render service at Sri Darbar Sahib. In the month of June, he had met Baljit Singh @ Vicky. Baljit Singh was stated to have abducted the complainant by deceiving him that he would be Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 3 Criminal Appeal No.S- 3958-SB of 2013 taught how to drive a vehicle. Complainant under the influence of Baljit Singh accompanied him and he was taken to the house of Suresh Kumar Sharma at Chandigarh. At that point of time, complainant stated his age to be 17 years. Baljit Singh @ Vicky introduced Suresh Kumar Sharma to the complainant as his uncle and further informed that his kidney was damaged. Baljit Singh @ Vicky was stated to have asked the complainant that if he donates his kidney to Suresh Kumar Sharma, he would be compensated by an amount of `40,000/-. Baljit Singh @ Vicky was stated to have threatened the complainant that if he did not donate his kidney, he would be done to death. The complainant was also instructed by Baljit Singh @ Vicky that henceforth his name would be Raju instead of Bagicha Singh. Thereafter, certain medical tests were stated to have been conducted on the complainant at Chandigarh. Then complainant was stated to have been brought to Medical College, Amritsar and produced before 4/5 Doctors sitting in a big office. Complainant further stated that out of fear he disclosed his name as Raju instead of Bagicha Singh and his signatures were obtained on several papers. Complainant stated that the Committee of Doctors in the first instance rejected him but on the next day, he was again produced before the Doctors and thereafter put in a vehicle and was got admitted in New Ruby Hospital, Jalandhar. A team of Doctors conducted an operation and his kidney was removed and was transplanted into the body of Suresh Kumar Sharma. Complainant is stated to have come to know about such transplant upon gaining consciousness after the operation. As Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 4 Criminal Appeal No.S- 3958-SB of 2013 such, it was alleged that Baljit Singh @ Vicky in connivance with the Doctors had forcibly removed the kidney from the body of the complainant and at the age of 17 years he had been rendered unable to do any work. The complainant had not been paid any money and while still in pain, he was left at his house in the village and was threatened that if he told about the transplant to any one, then he along with entire family would be killed. Complainant further stated that he could recognize the accused if brought before him. The transplant operation was stated to have been conducted in June 2002 and the complainant had read a news item after the kidney scam in various newspapers and as such, he along with his father Ajit Singh as also Karamjit Singh, Balwant Singh and Kashmir Singh had come to Amritsar to report the matter to the police and for appropriate action to be taken against the culprits.
7. The statement of Bagicha Singh @ Raju complainant was recorded under Section 164 of the Code of Criminal Procedure, Exhibit PW14/1, on 8.10.2002 in which he re-iterated the stand taken by him in his complaint. After conducting a preliminary enquiry, FIR No.118 dated 13.10.2002, Exhibit PW20/A, was registered under Sections 420, 468, 469, 471, 295- A, 363, 367, 368, 506 of the Indian Penal Code and Sections 18, 19, 20 of the Transplantation of Human Organs Act, 1994 at Police Station Kotwali, Amritsar against Suresh Kumar and Baljit Singh @ Vicky. After completion of investigation, the report under Section 173 of the Code of Criminal Procedure was presented against Suresh Kumar, Baljit Singh @ Vicky and the present Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 5 Criminal Appeal No.S- 3958-SB of 2013 applicant and Dr.Jagdish Gargi (members of the Authorization Committee). During the pendency of trial, Bagicha Singh @ Raju died on 13.2.2004. Ajit Singh, father of deceased Bagicha Singh, appeared as PW1. In his examination-in-chief dated 31.8.2005, he alleged that three Doctors had removed the kidney of his son and transplanted the same to Suresh Kumar and that his son had been kept in illegal confinement by the Doctors in Jalandhar. The prosecution then filed an application under Section 319 of the Code of Criminal Procedure and vide order dated 10.9.2005, Dr.Arjinder Singh, Dr.S.P.S.Grover and Dr.H.S.Bhutani were summoned as additional accused.
8. Learned counsel would submit that no overt act had been attributed to the present applicant-appellant. Perusal of the prosecution version would reveal that the grievance of the complainant was qua Suresh Kumar Sharma, the alleged beneficiary of the transplant and Baljit Singh @ Vicky. The present applicant-appellant by virtue of being the Principal of the Government Medical College, Amritsar at the relevant point of time was the Chairman of the Authorization Committee. As per allegations, the only role attributed to the applicant-appellant was that he along with other members of the Committee did not conduct a proper enquiry while granting authorization to conduct the transplant surgery. It has been argued that the trial Court has erred in not taking into consideration that all the relevant documents required by the Authorization Committee had been duly produced, the donor and donee had also appeared and the video cassette had been examined. It is contended that it was Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 6 Criminal Appeal No.S- 3958-SB of 2013 not within the scope of duty of the Authorization Committee to have themselves delved into the matter so as to get an investigation conducted as regards genuineness of the documents. Learned counsel submits that all the relevant documents had been presented along with affidavits and reports of Doctors and as such, there was no basis for the present applicant-appellant as also other members of the Authorization Committee to suspect that the case was not genuine.
9. Learned counsel has argued that the trial Court while convicting the applicant-appellant has proceeded in clear violation of Section 22 of the 1994 Act in terms of which no Court can take cognizance of an offence except on a complaint made by the appropriate authority concerned or any officer authorized in this behalf or by a person by giving a notice of not less than 60 days to the appropriate authority concerned of the alleged offence. It is argued that there is a statutory prohibition of filing a police report, whereas in the present case, cognizance has been taken on the basis of police report. As such, it is contended that since there was no complaint in the instant case, there has been a non-compliance of the mandatory provisions of Section 22 of the 1994 Act and which, in turn, would have the effect of vitiating the entire trial.
10. It has also been argued that the complainant, namely, Bagicha Singh never deposed as the prosecution witness. In the absence of his deposition, the trial Court has erred in placing reliance on the statements made by the complainant to the investigating agency during the process of investigation as also Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 7 Criminal Appeal No.S- 3958-SB of 2013 upon his statement recorded under Section 164 of the Code of Criminal Procedure. It is contended that as per the settled canon of criminal jurisprudence, an earlier statement made by the witness can only be used for the purpose of contradicting or corroborating the testimony of witness. Neither the FIR nor any statement recorded under Section 164 of the Code of Criminal Procedure would constitute a substantive piece of evidence. Yet another limb of the argument raised by the learned counsel is that even the statement recorded under Section 164 of the Code of Criminal Procedure could not have been relied upon by the prosecution since the appellant-accused as also the co-accused were never granted opportunity to cross-examine the said witness i.e. complainant Bagicha Singh. It is submitted that under Section 33 of the Indian Evidence Act, a statement given by a witness in judicial proceedings or before any person authorized by law would be relevant in subsequent judicial proceedings provided the adverse party in the first proceeding had the right and opportunity to cross-examine him. In the light of the fact of denial of opportunity to the accused to cross-examine complainant Bagicha Singh, his statement under Section 164 of the Code of Criminal Procedure could not have been taken into consideration.
11. Learned counsel has further contended that the trial court has erred in placing reliance upon the statement of Bagicha Singh by construing the same as dying declaration in violation of Section 32 of the Indian Evidence Act. It is submitted that the statement of Bagicha Singh was recorded before the Judicial Magistrate Ist Class on 8.10.2002, whereas his death occurred on Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 8 Criminal Appeal No.S- 3958-SB of 2013 13.2.2004 i.e. after a period of almost one year and four months and the prosecution had not brought on record any positive evidence so as to indicate that the death of Bagicha Singh was in any way connected or emanated out of the same transaction so as to bring it within the purview of Section 32 of the Indian Evidence Act.
12. It has further been argued that the trial Court has grossly erred in placing reliance on the testimony of PW2 Ajit Singh, father of the alleged complainant. It is submitted that in the early deposition, Ajit Singh had suspected the death of Bagicha singh to have taken place under suspicious circumstances. Such statement could not have been relied upon by the trial Court as it had been made at the pre-summoning stage and after recording of such statement, some accused were summoned under Section 319 of the Code of Criminal Procedure. PW2 Ajit Singh having been examined again subsequently, his earlier statement could not have been placed reliance upon by the trial Court. Learned counsel further contended that extensive reliance has been placed upon the testimony of PW2 Ajit Singh which was in the nature of hearsay evidence as during the entire course of events and occurrence he was never present with his son, namely, Bagicha Singh @ Raju.
13. Learned counsel has further argued that the trial Court has erroneously placed reliance on the statements of the co- accused, namely, Suresh Kumar Sharma recorded under Section 313 of the Code of Criminal Procedure in violation of the settled principle that statement recorded of an accused under Section Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 9 Criminal Appeal No.S- 3958-SB of 2013 313 of the Code of Criminal Procedure cannot form the basis of conviction the same not being a substantive piece of evidence. Reliance in this regard has been placed upon the judgment of the Hon'ble Supreme Court in Mohan Singh v. Prem Singh and another, (2002) 10 Supreme Court Cases 236, wherein it had been observed that the statement made in defence by the accused under Section 313 of the Code of Criminal Procedure can be taken aid of to lend credence to the evidence led by the prosecution but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the basis of conviction.
14. Per contra, learned State counsel would oppose the prayer made in the instant application seeking suspension of sentence by producing the custody certificate dated 27.2.2014 of the present applicant-appellant and stating that the applicant- appellant has suffered incarceration for a period of only six months and 16 days as opposed to the substantive sentence of rigorous imprisonment for five years.
15. Learned counsel for the parties have been heard.
16. The submissions advanced by learned counsel appearing for the applicant-appellant would, prima facie, be construed as cogent and arguable points to assail the judgment of conviction. However, such submissions would require consideration at the stage of final adjudication of the appeal. The appeal is not likely to mature for final hearing in the near future. The Hon'ble Supreme Court in Bhagwan Rama Shinde Gosai & others v. State of Gujarat, JT1999(4) SC1had observed that Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 10 Criminal Appeal No.S- 3958-SB of 2013 when a convicted person is sentenced to a fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances.
17. The applicant-appellant as on date of passing of the present order has undergone a total custody period of six months and 22 days and the appeal preferred by him against the order of conviction is likely to take sometime to mature. It has not been contended on behalf of the State that release of the applicant- appellant would entail any grave consequences.
18. The applicant-appellant is a senior citizen, aged about 70 years and is stated to be suffering from various ailments in the nature of hypertension, Bipolar Affective dis-order and in this regard, the findings of a Board of Doctors constituted under the orders of the District & Sessions Judge at Annexure A2 appended along with the instant application have been referred to.
19. In view of the submissions recorded above and in the totality of circumstances, this Court is of the considered view that the prayer made in the present application deserves acceptance. Remaining sentence of the applicant-appellant shall remain suspended during the pendency of the appeal. The applicant- appellant be enlarged on bail subject to the satisfaction of Chief Judicial Magistrate/ Duty Magistrate, Amritsar.
20. It is, however, clarified that the observations contained in this order cannot be construed as an expression of opinion on the merits of the case and the same would be taken as confined only as regards dealing with the prayer of applicant-appellant Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document Criminal Misc. No.2189 of 2014 in 11 Criminal Appeal No.S- 3958-SB of 2013 under Section 389 of the Code of Criminal Procedure.
21. Application, accordingly, disposed of. ( TEJINDER SINGH DHINDSA ) March 06, 2014 JUDGE SRM Note: Whether to be referred to Reporter?. (Yes/No) Malik Sushama Rani 2014.03.06 16:55 I attest to the accuracy and integrity of this document