/
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARA
**:
(5
FRIDAY, THE TWENTY NINETH DAY OF NOVEMBER!^ ^ 's;j
7)
g/
TWO THOUSAND AND TWENTY FOUR
C-
¥•;
r^'
PRESENT
THE HONOURABLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION NO: 3358 OF 2022
Between:
Dr.Potnuru Pradeep, S/o. Satyaprasad, Age: 43 years,
Caste: OC, R/o.
Flat No.401, Ventage Apartments, 0pp. VUDA Park, Visakhapatnam.
...Petitioner/Accused No.4
AND
1. The State of Andhra Pradesh, Rep. by its Public
Prosecutor, High Court
of Amaravathi.
2. Tamballa Pardhasaradhi, S/o. Somashekarayya, Age:
32 years. Caste:
OC, R/ 0. LIG 49/8, Hyderabad City, / Hyderabad, Telangana.
...Respondents/Complainant
Petition under Section 482 of Cr.P.C
praying that in the
circumstances stated in the Memorandum of Grounds of
Criminal Petition,
the High Court may be pleased to Quash the
proceedings as against
Petitioner/Accused No.4 in CC.No.2049 of 2020, Before
II Additional Chief
Metropolitan Magistrate, Court, Visakhapatnam for the
alleged offences
under Sections 419, 420, 471 and 120-B IPC R/w 34 1PC
and Section 18 &
19 of THOA Act, 1994.
I.A. NO: 2 OF 2022
Petition under Section 482 of Cr.P.C
praying that in the
circumstances stated in the Memorandum of Grounds of
Criminal Petition,
the High Court may be pleased to stay all further proceedings
including the
appearance of the Petitioner/Accused No.4 in CC.No.2049
of 2020, Before
II Additional Chief Metropolitan Magistrate, Court,
Visakhapatnam for the
alleged offences under Sections 419, 420, 471 and 120-B
IPC R/w 34 IPC &
Section 18 & 19 of THOA Act, 1994
This Petition coming on for hearing, upon perusing
the Memorandum
of Grounds of Criminal Petition and upon hearing the
arguments of Sri
Venkat Challa, Advocate for the Petitioner and the
Public Prosecutor
on
behalf of the Respondent No.1 and None Appeared for
the Respondent
No.2
The Court made the following:
COURT OF ANDHRA PRADESH, AMARAVATI
IN THE HIGH
CRIMINAI- PETITION No.3358 of 2022
^^^np^POTNURU PRADEEP S/0. SATYAPRASAD, AGE 43 YEARS,
' S 00 R/0 fl^ ventage apartments. OPP.
VUDA PARK, VISAKHAPATNAM.
...PETITIONER/ACCUSED
AND
1.THE STATE OF ANDHFiA PRADESH, REP. BY ITS PUBLIC
prosecutor high court of amaravathi.
2.TAMBALLA PAkoHASARADHI, SOMASHEIW^Y^^^^ AG^ 32
YEARS, CASTE. OC, R/ O. LIG 49/8, HYDERABAD U ,
HYDERABAD, TELANGANA.
...RESP0NDENT/C0MPLAINANT(S):
DATE OF JUDGMENT PRONOUNCED: 29.11.2024
submitted for approval:
THE HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
Whether Reporters of Local Newspapers
1.
Yes/No
be allowed to see the judgment?
may
2. Whether the copies of judgment may be
Yes/No
marked to Law Reporters / Journals?
Whether Her Lordship wish to
3.
Yes/No
the fair copy of the Judgment?
see
* THE HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
+ CRIMINAL PETITION No.3358 of 2022
% 29.11.2024
Between:
1.DR.POTNURU PRADEEP, S/0. SATYAPRASAD, AGE 43 YEARS,
CASTE. OC, R/0. FLAT NO.401, VENTAGE APARTMENTS, OPP.
VUDA PARK, VISAKHAPATNAM.
...PETITIONER/ACCUSED
AND
1.THE STATE OF ANDHRA PRADESH, REP. BY ITS PUBLIC
PROSECUTOR, HIGH COURT OF AMARAVATHI.
2.TAMBALLA PARDHASARADHI, S/0. SOMASHEKARAYYA, AGE 32
YEARS, CASTE. OC, R/ O. LIG 49/8, HYDERABAD CITY, /
HYDERABAD, TELANGANA.
...RESPONDENT/COMPLAINANT(S):
! Counsel for Petitioner Sri Challa Dhanamjaya
^ Counsel for Respondents Ms.K.Priyanka Lakshmi,
Asst. Public Prosecutor for R.1
< Gist:
> Head Note;
? Cases referred:
(2009) 7 see 526
This Court made the following:
APHC010201322022
IN THE HIGH COURT OF ANDHRA PRADESH
[3396]
ATAMARAVATI
(Special Original Jurisdiction)
FRIDAY, THE TWENTY NINETH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
r.RlMINAL PETITION NO: 3358/2022
DR POTNURU PRADEEP, S/0. SATYAPRASAD, AGE. 43 YEARS,
1.
CASTE. OC, R/0. FLAT NO.401, VENTAGE APARTMENTS, OPP.
VUDA PARK, VISAKHAPATNAM.
...PETITIONER/ACCUSED
AND
1 THE STATE OF ANDHRA PRADESH, REP. BY ITS PUBLIC
' PROSECUTOR, HIGH COURT OF AMARAVATHL
2.TAMBALLA PARDHASARADHI, S/O, y ^ /
YEARS, CASTE. OC, R/ O, LIG 49/8, HYDERABAD CITY, /
HYDERABAD, TELANGANA.
...RESPONDENT/COMPLAINANT(S):
Counsel for the Petitioner/accused:
1.VENKATCHALLA
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
ORDER:
The instant petition under Section 482 of Code of Criminal Procedure,
Petitioner/Accused No.4, seeking quashment of
1973^ has been filed by the
the file of the Court of II
proceedings against him in C.C.Nc.2049 of 2020 on
for the offences
Additional Chief Metropolitan Magistrate, Visakhapatnam
and 120-B read with 34 of the Indian Penal
under Sections 419, 420, 471
for short ‘Cr.P.C’
Code, 1860^ and Sections 18 and 19 of the Transplantation
of Human Organs
Act, 1995^.
2. The brief allegations mentioned in the complaint, are
as follows:
a) Respondent No.2, due to financial problems, having
come to
know that he can get huge money by selling his kidney,
got acquainted with
Accused No.1 through one Puneet. Accused No.1 promised
to give him
Rs. 12.00 lakhs for the kidney and as per his directions.
Respondent No.2
went to Bengaluru and underwent necessary tests and
came to
Visakhapantam. Subsequently, Respondent No.2 was brought
to Sradha
Hospital and after conducting further tests, the date
for surgery was fixed as
17.07.2018.
b) They obtained the Aadhar Card of Respondent No.2 and
by
morphing the same, he was shown as the younger brother
of Accused No.6,
who is the patient. They have also shown the blood
sample of elder brother of
the patient, who is Accused No.5 in the present case,
as that of Respondent
No.2, for DNA test. Thereafter, on the same day i.e.,
on 17.07.2018 at 13.00
hours, surgery was conducted and the kidney of Respondent
No.2 was taken.
c) One day prior to the surgery, an amount of Rs.2,00,000/-
and
after the surgery Rs.3,00,000/- were deposited into
the bank account of
Respondent No.2. When Respondent No.2 asked for the
remaining amount
of Rs.7,00,000/-, the Accused promised to pay the same
within two months,
but, they did not pay the said amount. The phone number
of Respondent
^ for short‘IPC’
^ for short ‘TOHO Act’
3
No.2 was also blocked by all the Accused. As Accused Nos.1 to 6, having
conspired together, cheated Respondent No.2, he lodged a complaint against
all the Accused, which was registered as a case in Crime No.58 of 2019 on
the file of Maharanipeta Police Station, Visakhapatnam City for the offences
under Sections 420 and 120B read with 34 IPC and Sections 18 and 19 of
TOHO Act. Police, after completion of investigation, filed charge sheet
against Accused Nos.1 to 6 for the offences under Sections 419, 420, 471 and
120-B read with 34 IPC and Sections 18 and 19 of TOHO Act.
d) Aggrieved thereby, Petitioner/Accused No.4 filed the present
petition seeking quashment of the proceedings against him.
Arguments Advanced at the Bar:
Heard Sri Challa Dhananjaya, learned Senior Counsel for the Petitioner
3.
and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for the
State/Respondent No.1. Though notice was sent to Respondent No.2, none
appeared on his behalf.
Learned Senior Counsel for the Petitioner would submit that Petitioner/
4.
Accused No.4 is the Managing Director of Sradha Hospital and he has no role
to play in the alleged kidney transaction. Learned Senior Counsel would
the Appropriate
further submit that, as per Section 13(2) of TOHO Act,
Authority, who is appointed by the State Government, has to take to
necessary action against the persons, who committed the offence under
TOHO Act and as per Section 22 of TOHO Act, no Court shall take
cognizance of an offence under this Act except on a complaint made by the
Appropriate Authority concerned, or any officer authorized
in this behalf by the
Central Government or the State Government. Whereas,
in the present case,
on the complaint lodged before the Police, Court has
taken cognizance of the
offences under TOHO Act, and the same is not sustainable
under law. As
f
such, the remaining offences under Sections 419, 420,
471 and 120-B read
with 34 IPC do not attract against the Petitioner.
Learned Senior Counsel
would finally submit that, no prima facie case is made
out against the
Petitioner/Accused No.4 and hence, prayed for quashment
of the proceedings
against the Petitioner. In support of his contentions,
learned Senior Counsel
has placed reliance on the judgment of the Hon’ble
Apex Court in Jeewan
Kumar Raut and another v. Central Bureau of Investigation^.
5. Learned Assistant Public Prosecutor fairly conceded
that there is no
Appropriate Authority appointed by the State Government
in the instant case.
However, learned Assistant Public Prosecutor would
submit that, there are
specific allegations against the Petitioner for the
commission of rest of the
offences. There are no tenable grounds to quash the
proceedings against
the
Petitioner at this stage. Hence, prayed for dismissal
of the petition.
Point for Determination
6. Having heard the submissions of the learned counsel
representing both
the parties, the point that would emerge for determination
is;
Whether there are any justifiable grounds for quashment
of
proceedings against the Petitioner/Accused No.4 in
(2009) 7 see 526
5
C.C.No.2049 of 2020 on the file of the Court of II Additional
Chief Metropolitan Magistrate, Visakhapatnam?
A bare perusal of Section 482 makes it clear that the Code envisages
7.
that inherent powers of the High Court are not limited or affected so as to
make orders as may be necessary; (i) to give effect to any order under the
Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to
secure ends of justice. A court while sitting in Section 482 jurisdiction is not
functioning as a trial court, court Of appeal or a court of revision. It must
exercise its powers to do real and substantial justice, depending on the facts
and circumstances of the case. These powers must be invoked for compelling
reasons of abuse of process of law or glaring injustice, which are against
sound principles of criminal jurisprudence.
the Hon’ble Apex Court
It is relevant to refer to the decision rendered by
8.
in Jeewan Kumar Raufs case {supra), wherein it was held as follows;
“22. TOHO being a special statute. Section 4 of the Code,
which ordinarily would be applicable for investigation into a
cognizable offence or the other provisions, may not be
applicable. Section 4 provides for investigation, inquiry, trial,
etc. according to the provisions of the Code. Sub-section (2)
of Section 4, however, specifically provides that offences
under any other law shall be investigated, inquired into, tried
and otherwise dealt with according to the same provisions,
but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into,
tried or otherwise dealing with such offences.
23. TOHO being a special Act and the matter relating to
dealing with offences thereunder having been regulated by
reason of the provisions thereof, there cannot be any
manner
of doubt whatsoever that the same shall prevail over the
provisions of the Code. The investigation in terms of Section
i.'-
6 ^
13(3)(iv) of TOHO, thus, must be oonducted by an authorized
officer. Nobody else could do it. For the aforementioned
reasons, the officer incharge of the Gurgaon Police
Station
had no other option but to hand over the investigation
to the
appropriate authority.
25. 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 statutorily
prohibited from filing a police report. It could file
a complaint
petition only as an appropriate authority so as to
comply with
the requirements contained in Section 22 of TOHO. If
by
reason of the provisions of TOHO, filing of a police
report by
necessary implication is necessarily forbidden, the
question
of its submitting a report in terms of Sub-section
(2) of
Section 173 of the Code did not and could not arise.
In other
words, if no police report could be filed. Sub- section
(2) of
Section 167 of the Code was not attracted.
26. It is a well-settled principle of jaw that if a
special statute
lays down procedures, the ones laid down under the
general
statutes shall not be followed. In a situation of this
nature, the
respondent could carry out investigations in exercise
of its
authorization under Section 13(3)(iv) of TOHO. While
doing
so, it could exercise such powers which are otherwise
vested
in it. But, as it could not file a police report but
a complaint
petition only; Sub-section (2) of Section 167 of the
Code may
not be applicable.
27. The provisions of the Code, thus, for all intent
and
purport, would apply only to an extent till conflict
arises
between the provisions of the Code and TOHO and
as soon
as the area of conflict reaches, TOHO shall prevail
over the
Code. Ordinarily, thus, although in terms of the Code,
the
respondent upon completion of investigation and
upon
obtaining remand of the accused from time to time,
was
required to file a police report, it was precluded
from doing
so
by reason of the provisions contained in Section 22
of TOHO.
28. To put it differently, upon completion of the
investigation, an authorized officer could only file
a
complaint and not a police report, as a specific bar
has
been created by the Parliament. In that view of the
matter, the police report being not a complaint and
vice-
7
versa, it was obligatory on the part of the respondent to
choose the said method invoking the jurisdiction of the
Magistrate concerned for taking cognizance of the
offence only in the manner laid down therein and not by
any other mode. The procedure laid down in TOHO, thus,
would permit the respondent to file a complaint and not a
report which course of action could have been taken
recourse to but for the special provisions contained in
Section 22 of TOHO Act. ”
(emphasis supplied)
9. In the instant case, a complaint has been lodged by the Respondent
No.2 before the Police, which, after completion of investigation, led to filing of
charge sheet and cognizance was also taken by the learned Magistrate for the
offences under Sections 419, 420, 471 and 120-B read with 34 of IPC and
Sections 18 and 19 of TOHO Act. It is a settled principle of law that if the
manner of doing a particular act is prescribed under any statute, the act must
be done in that manner or not at all. As per Section 22 of TOHO Act, no Court
shall take cognizance of an offence under this Act, except on a complaint
made by the Appropriate Authority concerned, but, the present complaint has
been lodged by Respondent No.2 before the Police and the same was taken
cognizance by the learned Magistrate. In view of the above judgment, as
conceded by the learned Assistant Public Prosecutor, since no Appropriate
Authority has been appointed in the present case, the learned Magistrate is
precluded from taking cognizance of the offences under Sections 18 and 19 of
TOHO Act, on the complaint lodged by Respondent No.2 before the Police.
Hence, this Court is of the view that the proceedings against the
Petitioner/Accused No.4 for the offences under Sections
18 and 19 of TOHO
Act are liable to be quashed.
10. So far as the offences under Sections 419, 420, 471
and 120-B read
with 34 IPC are concerned, a bare perusal of the complaint
as well as charge
sheet would disclose that, by taking advantage of the
innocence and financial
crisis of Respondent No.2, Accused Nos.1 to 6 having
conspired together,
promised to pay Rs. 12.00 lakhs to him, morphed the
medical tests, committed
illegal transplantation of kidney, and cheated Respondent
No.2 by evading to
pay the rest of the amount to him. The menace of illegal
kidney transplantation
is a devastating consequence of financial desperation
of the vulnerable
population. This is a global issue with various interconnected
factors and
actors. The complicity of each actor, if any, cannot
be decided at
a very
preliminary stage by conducting a mini trial. Therefore,
this Court is of the view
that when there are allegations against the Petitioner/Accused
No.4, veracity
of the same are to be decided during trial and at this
stage, as such, this Court
is not inclined to quash the proceedings against the
Petitioner/Accused No.4
for the offences under Sections 419, 420, 471 and 120-B
read with 34 IPC by
exercising the jurisdiction under Section 482 Cr.P.C.
No opinion is made
touching the merits of the case.
11. In view of the foregoing discussion, this Court is
of the opinion that, it
is a fit case to quash the proceedings against the
Petitioner/Accused No.4 for
the offence under Sections 18 and 19 of TOHO Act, however,
it is desirable
9
to continue the proceedings against the Petitioner for the offences under
Sections 419, 420, 471 and 120-B read with 34 IPC.
In result, the Criminal Petition is partly allowed, quashing the
12.
proceedings against the Petitioner/Accused No.4 in C.C.No.2049 of 2020 on
the file of the Court of II Additional Chief Metropolitan Magistrate,
Visakhapatnam for the offences under Sections 18 and 19 of the
Transplantation of Human Organs Act, 1995. The proceedings against
Petitioner for the offences under Sections 419, 420, 471 and 120-B read with
34 IPC shall continue.
As a sequel thereto, miscellaneous petitions, pending if any, shall
stand closed.
Sd/- N NAGAMMA
ASSISTANT REGISTRAR
//TRUE COPY//
' SECTION OFFICER
One Fair Copy to the Hon’ble DR Justice VENKATA JYOTHIRMAI
PRATAPA
(For her Lordships Kind Perusal)
To,
1. The II Additional Chief Metropolitan Magistrate
Court, Visakhapatnam,
Visakhapatnam District.
2. The Station House Officer, Maharanipeta Police Station,
Visakhapatnam District
3. OneCCto Sri Venkat Challa, Advocate [OPUC]
4. Two CC's toThe Public Prosecutor, High Court of Andhra Pradesh at
Amaravati [OUT]
5. Nine (09) L.R. Copies.
6. The Under Secretary, Union of India, Ministry of Law, Justice and
Company Affairs, New Delhi.
7. The Secretary, Andhra Pradesh High Court Advocates’ Association
Library, High Court Buildings, Amaravathi.
8. Three CD Copies
SAM
sree
HIGH COURT
DATED:29/11/2024
ORDER
CRLP.No.3358 of 2022
S’
13: I t MAR 2025
a
Current Section . ^
ALLOWING THE CRIMINAL PETITION IN PART