TaxTMI 
TaxTMI 
2009 (7) TMI 1376
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....hem under Section 420 of the Indian Penal Code and Sections 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 Co....
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....ail filed by the appellant No. 2. 8. Aggrieved by and dissatisfied therewith, 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 ar....
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.... on behalf of the respondent, on the other hand, urged: (i) The learned Magistrate having taken cognizance 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 po....
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....in any custody under this section unless the accused is produced before him; (c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, 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;....
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....itories for the purposes of this Act. (2) The State Government shall appoint, by notification, one or more officers as Appropriate Authorities for the purposes of this Act. (3) The Appropriate Authority shall perform the following functions, namely: (i) to grant registration under Sub-section (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 - Punis....
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.... except on a complaint made by-- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government or, as the case may be, the Appropriate Authority; or (b) a person who has given notice of not less than sixty days, in such manner as may be prescribed, to the Appropriate Authority concerned, of the alleged offence and of his intention to make a complaint to the 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-sec....
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....ficer incharge of the Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority. 17. The respondent has been constituted under the Delhi Special Police Establishment Act, 1946. In terms of the provisions of the said Act, the authorities specified therein could make investigation in connection with a complaint. The mode and manner in which the investigation could be carried out have been laid down in the Act 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-à-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 ....
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....re laid down in Section 202 of the Code or even reject the complaint but then only because such a course of action could be resorted to by the learned Magistrate, the same, by itself, would not lead us to a conclusion that the complaint petition should have been treated to be a police report; the logical corollary whereof would be to invoke the provisions of Sub-section (2) of Section 167 of the Code. 22. Submission of Mr. Ranjit Kumar is that a complaint would 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 Distric....
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....ourt itself took a long time in taking cognizance of the offence, i.e., after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. 26. A distinction between a remand of an accused at pre-cognizance stage vis-à-vis the post- cognizance stage is apparent. Whereas the remand at a pre-cognizance stage is to be made in terms of Sub-section (2) of Section 167 of the Code, an order of remand of an accused 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 ....