As the Counsel for the petitioner began his arguments, the Court outrightly clarified that it would not say anything on merits and unless the Counsel wants to have an adverse order against his client, he should not argue.
Nevertheless, the Counsel continued his arguments and submitted that the proceedings are not maintainable under the Transplantation of Human Organs and Tissues Act, 1994. Justice Ravikumar said: "Allegation is kidneys of several persons were taken out...We are not ordering for your arrest. But we cannot simply shut our eyes when serious allegation is... persons-patients who were admitted in that hospital, some of them[their kidneys were taken out]. Understand one thing, when somebody is admitted in a hospital, going back, whether you will be able to know whether your kidney is still there is or not. Only in later point of time you will find it...You are saying this is very silly or simple allegations. " The Counsel tried clarifying that it is not the case that the kidneys are not taken out. They are but with the consent of the patient. He also stated that the allegation is that the receiver and the donor of the kidney should be related as per the 1994 Act.
He said: "We are carrying out operations on the basis of NOCs[non-objection certificates] which are supposed to be given by Government officials which is given to the management of the Hospital...They should be related. It is not the case that we are taking out the [kidneys] without knowledge." The Counsel added that it is the patient who comes to them saying that the receiver and the donor are related.
However, the Court refused to grant any protection and reiterated that the matter requires investigation. To this, the Counsel responded that they are cooperating with the investigation. Moreover, he pointed out that the people of the management alleged to be involved in the case have already been granted bail. As he continued arguing despite the Court's refusal to hear the same, the Court warned: "You are inviting some observations. We are sure about these kinds of allegations. This is to be investigated seriously."
The Counsel continued: "I am the operating doctor. I am saving lives."
As a last chance, the Counsel asked if he could withdraw the SLP to which the Court refused.
Justice Ravikumar added:
"You are trying to say this is a very simple matter, it is to only be ignored. Sorry, we cannot ignore because lives of persons who trust in approaching and getting admitted to the hospitals..if this is the kind of allegation, it should be investigated."Background
On May 30, the Rajasthan High Court
had dismissed the petition filed by the present petitioner and another doctor seeking the quashing of the case.
Justice Sudesh Bansal of the High Court observed: "As per the investigation report, petitioner No.1 has been found to be in telephonic contact with brokers namely Akash, Prashant Yadav and Gopal, as much as money transaction from his bank account with Giriraj Sharma, has also come on record. Such money transaction is apprehended to be part of payment apart from salary, for performing operation of kidney transplantation illegally. It has revealed in the investigation that petitioner No.1 performed operation of kidney transplantation as a team member of petitioner No.2..."
As per the complaint, the administrations and doctors at the Fortis Hospital were part of the racket. It is alleged that they were committing fraud and collusion with the kidney donors and receivers, for financial gains, without any approval of the Authorization Committees, and also preparing forged NOCs after obtaining signatures on blank papers. A further collusion with the brokers who arranged the donors and receivers of the kidneys was also alleged. The petitioners were booked for offences under Sections 420, 419, 471, 120-B of IPC and Sections 18 and 19 of the Transplantation of Human Organs and Tissues Act, 1994.
Counsel for the petitioners argued no nexus of the petitioners with the forgery or with any of the brokers or patients. It was argued that the kidney transplantations were performed by the petitioners under due authorizations without receiving any extraneous benefits except for their monthly salaries. On behalf of the government, it was argued that investigation in the FIRs was underway and the investigation so far revealed clear evidence against one of the petitioners based on which he was arrested. With respect to the other petitioner, it was argued that he was not only found to be in contact with a broker but also money transactions in his bank account apart from the salary had also come forth that seemed to have been received for illegal kidney transplant operation. Based on the arguments and investigation reports, the High Court held that it cannot be said that there was no evidence to connect the petitioners with the alleged racket of illegal kidney transplantation. In light of the facts that one of the petitioners had been arrested and the other one also had evidences against him, suggested that no prima facie case lied in favour of quashing the FIR against the petitioners.
Hence, the High Court refused to exercise its inherent jurisdiction under Section 482 CrPC to quash of FIR and dismissed the plea.
