Rule. Mr.V.M.Pancholi, learned A.P.P. waives service of rule on behalf of the respondent.
2.The petitioner (original accused no. 7) who has been arrested on 13.7.02 and who is an employee of Muljibhai Patel Urological Hospital, Nadiad, has preferred this bail application under Sec. 439 of the Criminal Procedure Code on the ground that he, along with 7 other accused, had been arrested for the alleged commission of offences punishable under Sec. 19 of the Transplantation of the Human organs Act, 1994 (hereinafter referred to as the said Act) and also under Sections 419 & 465 read with Section 114 of the Indian Penal Code on the strength of the complaint given by Shri N.Bhaskaran, General Manager (Administration) of Muljibhai Patel Urological Hospital, Nadiad.
3.It is the say of the learned advocate Mr.J.M.Panchal for the applicant that the applicant is merely serving as a clerk-cum-typist in Medical Social Works Department of the said hospital. His duty is only to collect the history from the patient and the relatives as given by them and he has no right to enquire regarding the facts stated by the persons giving the history. Even hospital doctors used to collect history and used to fill up form as per the practice and procedure. The present petitioner has no special device or third eye to know that the history given was incorrect and was not true. Like doctors also, the petitioner collected history bona fide, genuinely and believing the same to be true. After collecting the history being given by the patients and their relatives, H.L.A.test is being performed. The said report, thereafter, would be inspected by several departments and donor would file two affidavits and even the patient would file an affidavit before operation. As per the procedure, runs the submission of Mr.Panchal learned advocate for the petitioner, all these papers would be verified by the Medical Director and thereafter, for obtaining permission of transplantation, the file would be forwarded to Gandhinagar. Thus, there is no duty cast upon the petitioner to make detailed inquiry as to whether the donor was genuine or not, and whether the donor was related or non-related.
4.On the contrary, in the past, whenever the petitioner suspected any foul play, he had drawn the attention of the Medical Director and transplantation was prevented at the instance of the present petitioner. The chargesheet is filed against the present petitioner/accused and from the papers, it is clear that the petitioner had no knowledge that the details given by the patients and the donors were not correct. There is no evidence to show that the petitioner knowingly facilitated or abetted the crime and there is no evidence worth the name to show that the petitioner deliberately and knowingly forged the documents by making false entries. The name of the present petitioner is not mentioned in the complaint as an accused person and it assumes importance as the complaint is filed by the General Manager, Administrative Department of the Hospital. From the complaint, it appears that the complainant, doctors and even the Directors made detailed inquiry before filing of the complaint and at no stage complicity of the present petitioner was disclosed, otherwise, there would have been a specific allegation against the petitioner and his name would have been shown as accused in the complaint. The authorities have given notice to the present petitioner and it is alleged that there is negligence in performing duties. Assuming for the sake of argument, runs the submission of Mr.Panchal learned advocate for the petitioner, that the case would be a case of negligence and when there is no mens rea and when there is no evidence at all, it cannot be said that any offence whatsoever is disclosed against the present petitioner. Even reading the papers and looking to the provisions of the said Act and the Rules made thereunder, it is not clear as to what type of inquiry was expected to be held from the present petitioner or what type of inquiry was to be conducted. It is not prescribed by any law or rules thereunder, even the hospital authorities have not stated the past practice or procedure for conducting such an inquiry. The present case rests on documentary evidence, which is in possession of the prosecuting agency and, therefore, there is no scope for tampering with the evidence and witnesses of the case. There are no names of any doctors whose primary duty is to enquire regarding the match of human organs and allied work. Sec. 19 of the said Act is punishable with imprisonment from 2 years to 7 years and fine whereas the offence under Sec. 465 of I.P.C. is punishable with imprisonment of 2 years and is bailable and offence under sec. 19 punishable with imprisonment for 3 years is bailable. Under the circumstances, the petitioner requires to be released on bail on terms and conditions as imposed by the court.
5.Against the aforesaid submissions, leaned A.P.P. Mr.V.M.Pancholi for the State has drawn my attention to the statement of Dr.Shishir Dashratmal Gang dated 24.6.02 who is serving in the Kidney hospital since 5 1/2 years as Naefrologist (M.D.) under Dr. Raja Purkar where in there is a reference of present petitioner who in collusion with one agent by name Girishbhai Soni who is accused no. 3 played an active role in calling kidney donor. On the said line, learned A.P.P. also drawn my attention to the statement of Dr.Sujata Mohan Rajapurkar dated 1.7.02 and statement of Laboratory Supervisor by name Atulbhai Gunvantlal Shah dated 20.7.02. Learned A.P.P. has drawn my attention to the fact that it is the duty of the petitioner to check the matching of the patient as well as the related person. By not taking proper care, the petitioner had in connivance with other accused persons, shown negligence for money, Therefore, according to learned A.P.P. for the State bail should not be granted to such persons who is indulging in such a heinous crime.
6.Mr.Panchal learned advocate for the petitioner has taken me to provision under Sec. 19 of the said Act and Rules, 1995 thereunder. While going through the same, Rule 4 refers to the Regd. Medical Practitioner, the forms are required to be filled in by doctor only on inquiry and except the doctor no body has to play any part. Therefore, in my view also, the said Rules are applicable and the activities are to be performed by the doctors only and by none else.
7.Mr. Panchal, learned advocate for the petitioner has also shown me that unrelated person can also give the necessary organ. While giving such organ to the patient, it becomes the duty of the R.M.P. to see that the donor's such organ matches with the donee. While reading the complaint/statement of Mr.N.Bhaskaran, General Manager (Administration) dated 24.6.02, I was shown that there are three stages before the permission is granted by the authority to get the transplantation done. First is the Social Work Department wherein the necessary information regarding the donor and donee are collected. Second stage is matching of organ of donor and donee and the third stage is the Government permission. Lastly, the transplantation of organ takes place.
8.The patient by name Virajbhai Ramnikhbai Velani came along with his alleged sister came for kidney transplantation and examination was done and subsequently permission was obtained from the concerned authority and operation was performed. Thereafter, when the patient was under treatment in the said hospital, doubt was raised regarding the alleged relation of sister by Dr.Sushil Gang. On further inquiry by Dr. Rajapurkar Head of the Department, the father of patient was called to ensure whether the donor is the sister of the patient or not, it came to be known that she is not the sister of the patient and as nobody was ready and willing to give kidney to his son, she was preferred. Ultimately, again blood sample and tissue test were taken by the said doctors in the hospital an in the result they found that they are not matching. From the letter written by Mr.Bhaskaran to the P.I. Police Station dated 23.6.02, it appears that earlier also two such incidents took place whereby the persons not related to patients have given their organs by taking monetary consideration.
9.Whatever may be the reason, as I have discussed earlier and as per the Rules prescribed under the aforesaid Act, I am of the opinion that it is the primary duty of the concerned doctor to match the necessary tissues and organ of donor and donee and not the duty of the present petitioner. In the chargesheet, no doctor or any other officer of the hospital is made an accused before the court and therefore it appears that everything does not appear to be normal and organized for transplantation of organs by donor to the needy donee. This needs investigation with a view to set up a full proof procedure to observe the rules and procedure under the said Act. I direct that the Director of Health Services, Government of Gujarat or any officer at the highest level in the Health Department, Government of Gujarat carry out investigation to set right the machinery for following strictly the procedure and the duties of each concerned staff handling the activities of implantation of organs in the Hospital.
10.In the aforesaid circumstances, I am inclined to grant this bail application. The application is allowed and applicant is ordered to be released on bail in connection with C.R.No. II-118/02 registered at Nadiad Town Police Station for the offence charged against him in this application on depositing cash of Rs.2,000/- and on executing bond of Rs. 5,000/- (Rupees five thousand only) with one surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall ;
a) not take undue advantage of liberty or abuse his liberty ;
b) not try to tamper or pressurize the prosecution witnesses or complainant in any manner ;
c) maintain law and order and should co-operate the investigation officer ;
d) not act in a manner injurious to the interest of the prosecution ;
e) furnish the present and permanent address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court ;
f) mark his presence before the concerned Police Station once in a month more particularly between 1st and 10th of the month between 10.00 a.m. and 2.00 p.m.;
g) not leave the limit of State of Gujarat without prior permission of the Court ;
h) surrender his passport, if any, within a week to the lower Court.
11.If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter and forfeit the amount of deposit.
12.Bail before the lower Court having jurisdiction to try the case. The Registry of this Court is directed to send a copy of this order be send to the Director of Health Services, Government of Gujarat to do the needful in the matter.
13.Rule is made absolute. Direct service is permitted.
( SHARAD D DAVE, J ) srilatha