Court of Judicial Magistrate First Class, Ernakulam: In a private complaint filed under section 22(1) (b) of the Transplantation of Human Organs Act, 1994 (‘TOHO Act') with Section 190(1) a of the Code of Criminal Procedure, 1973 (‘CrPC') against the doctors, allegedly for offences under Sections 109, 120B, 379 r/w 34 of Penal Code, 1860 (‘IPC'), Eldos Mathew J., issued summons to all the accused as there is prima facie case and sufficient grounds for proceedings under Section 18, 20, 21 of the Transplantation of Human Organs Act, 1994
The victim met with an accident in which his motorcycle rammed an electric post and he sustained head injury. He was admitted to a hospital and then another hospital, where, he was declared brain dead. It was alleged that his kidneys and liver were harvested in contravention of the TOHO Act. According to the complainant, respondents acted in criminal conspiracy and proper treatment was not given to him and thereafter his organs were transplanted to a foreign national in violation of the Section 18, 20 and 21 of the TOHO Act. He alleged that the victim has died due to non evacuation of hematoma over brain as he was not subjected to neurosurgery and when he started respiring himself, the hospital authorities downgraded the ventilator settings. He further alleged that the declaration of brain dead was not done as per the procedure mentioned in the prescribed form of TOHO Act. A representation was also made before the appropriate authority but no action was taken regarding the same, due to which, the instant matter was proceeded with.
The Court observed that the victim was declared dead without conducting Apnoea Test to confirm brain death and without evacuating blood from cranial cavity. As per autopsy report, there was significant blood in cranial cavity which should have been surgically drained, which could prove life saving for him. It was further noted that “even before the declaration of death, transplantation team was given access to the patient and his liver was transplanted to a Malasian National contrary to the provisions.”
While considering sufficiency of materials under Chapter 16 of Criminal Procedure Code, the Court referred to Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 wherein, the Court held in Lalankumar Singh v. State of Maharashtra, 2022 SCC OnLine SC 1383 which required Magistrate's application of mind before concluding a prima facie case against the accused.
The Court relied on the above mentioned judgments and considered the materials like the complaints, Statements of Complaint and his witnesses, report of inquiry, documents etc. It listed several grounds some of which have been listed below:
No effort was done to drain out the blood in victim's cranial cavity at the hospital, which could have been a lifesaving procedure for the victim.
Transplantation team got access to the patient even before the declaration of brain death.
Certificate of the brain stem death was not signed as per the prescribed form.
The person who signed the certificate could not be considered as ‘Registered Medical Practitioner' as per the T-C Medical Practitioners Act, 1956.
Before declaring the victim brain stem death, Apoena test was not conducted as specified in rules.
No examination by the Board of Medical Experts was done before declaring victim's brain stem death.
Liver was transplanted to the foreign national without the sanction of Internal Authorization Committee.
Liver of the victim was transplanted to the foreign national but in the Malasian Embassy certificate showed such foreign National's wife as the donor, which raised suspicion.
On the basis of the above-mentioned grounds, the Court said that there was a prima facie case and sufficient grounds for proceedings under Section 18, 20 and 21 of the TOHO Act.
Thus, the Court directed the issuance of summons to all the accused.
[Dr. S. Ganapathy v. Lakeshore Hospital and Research Centre Pvt. Ltd., Criminal Miscellaneous Petition No. 1004 of 2021, Order dated 29-5-2023]
Advocates who appeared in this case :
For the Complainant: Advocate Santhan V. Nair