IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE ASHOK B. HINCHIGERI. WRIT PETITION No.120/2014 (GM-RES)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 8 TH DAY OF JULY 2014 BEFORE THE HON BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION No.120/2014 (GM-RES) BETWEEN: Major Pankaj Rai (Retd), S/o Krishna Kumar Rai, Aged about 55 years, R/at Seemavas, Prestige Shantiniketan, Whitefield Main road, Bangalore Petitioner [By Sri Major Pankaj Rai (Party-in-person)] AND: 1. State of Karnataka, By Principal Secretary, Department of Health and Family Welfare, Government of Karnataka, Vidhana Soudha, Bangalore The Chairman, Appropriate Authority under The Transplantation of Human Organs Act, 1994 And Commissioner, Health and Family Welfare Services, 3 rd Floor, IPP Building, Anandrao Circle, Bangalore Zonal Coordination Committee of Karnataka, For Transplantation, 1 st Floor, Neuro-Science Faculty Block,

2 2 NIMHANS, Hosur Road, Bangalore DCP (South) South End Circle, Basvangudi, Bangalore ACP, South End Circle, Basvangudi, Bangalore SHO, JP Nagar Police Station, 21 st Main Road, JP Nagar, 2 nd Phase, JP Nagar, Bangalore Fortis Healthcare Ltd. Tower A, Unitech Business Park, Block F, South City 1, Sector 41, Gurgaon, Haryana Mr.Malvinder Singh, Executive Chairman, Fortis Healthcare Ltd., Tower A, Unitech Business Park, Block F, South City 1, Sector 41, Gurgaon, Haryana Mr.Shivinder Singh, Executive Vice Chairman, Fortis Healthcare Ltd., Tower A, Unitech Business Park, Block F, South City 1, Sector 41, Gurgaon, Haryana Dr.Selwyn Colaco, Former Head Medical Affairs, Fortis Hospital Ltd,

3 3 154/9 Bannerghatta Road, Bangalore Dr.Ramcharan Thiagarajan, Transplant Surgeon, Fortis Hospital Ltd, 154/9 Bannerghatta Road, Bangalore Dr.Rajanna Sreedhara, Nephrologist, Fortis Hospital Ltd, 154/9, Bannerghatta Road, Bangalore Mr.P.K.Davison, Former Vice President of Fortis, Sakra World Hospital, 52/2 & 52/3 Deverabeeshanhalli, Outer Ring Road, Marathalli, Bangalore Mr.D N Nayak (IAS) Retired, Former Appropriate Authority for Organ Transplantation, No.16, 7 th Cross, 9 th Main, Sector 7, HSR Layout, Bangalore Dr.Raju, Former Joint Director (Medical), No.2C/120, 2 nd Main, 2 nd Cross, Kasthuri Nagar, Bangalore Dr.G.Venkatesh, Former Director Institute of Nephro-Urology, No.674, 6 th C Main, 3 rd Phase, J P Nagar, Bangalore Dr.V.D.Palekar, Former Director (Medical), B-708, RNS Shanthi Nivas,

4 4 Tumkur Road, Yeshwantpur, Bangalore Karnataka Medical Council, 70, 2 nd Floor, Vaidyakeeya Bhavana, K R Road, H B Samaja Road Corner, Basvangudi, Bangalore Deputy Commissioner of Police (West) Bangalore Assistant Commissioner of Police (West), Subedar Chatram Road, Nehru Nagar, Seshadripuram, Bangalore Station House Officer, Subedar Chatram Road, Nehru Nagar, Seshadripuram, Bangalore Respondents (By Sri A.G.Shivanna, AAG and Sri H.V.Manjunath, AGA for R1, R2, R4 to R6, R19 to R21; Sri C.V.Nagesh, Advocate for R7 to R9; Sri K.Suman, Advocate for R10 and R13; Sri Poovayya and Co., Advocate for R11 and R12; Sri Nishanth.A.V., Advocate for R14, R15 and R17; Sri N.K.Ramesh, Advocate for R16; Sri D.S.Hosmat, Advocate for R18; R3-Served) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the R-2 to file a complaint against R-7 to R-13 in front of a First Class Magistrate for offences punishable under Sec.18, 19 and 20 of the Act, having regard to the provisions of Sec.21 of the Act preferably within a prescribed time frame of six weeks and etc. This writ petition coming on for hearing this day, the Court made the following:

5 5 O R D E R The petitioner party-in-person has inter alia sought a direction to the respondent No.2 to file a complaint against the respondent Nos.2 to 17 before the First Class Magistrate for the offences punishable under Sections 18, 19 and 20 of the Transplantation of Human Organs and Tissues Act, 1994 ( the said Act for short) having regard to the provisions of Section 22 (1)(a) of the said Act. 2. Major Pankaj Rai, the petitioner party-in-person submits that his wife Seema Rai was subjected to the kidney pancreas transplantation without there being any need for the same. He submits that the imposition of surgery was actuated by the greed of the hospital authorities. He submits that his wife was not in a position to withstand the surgery. It was not an emergency situation. It was an elective surgery. She could have survived even without undergoing the transplantation surgery. 3. He further submits that the respondent No.7 Hospital did not have the licence to perform the pancreas transplantation surgery. The licence given was confined only to do the kidney, liver and homograph transplantation surgery. He submits that the patient s consent was not taken for performing the surgery.

6 6 He submits that his wife s name was not registered with the third respondent for receiving the pancreas. 4. He submits that the respondent No.11 was debarred from performing the surgery. He submits under Section 22 of the said Act, only the prescribed authority is given the competence to file the complaint in the matter. He submits that he, as a common man is finding it difficult to fight with the powerful hospital. He submits that he retired as an officer in the Army. 5. Sri C.V.Nagesh, the learned Senior Counsel appearing for the respondent Nos.7 to 9 denies the allegations made by the petitioner. He has raised a threshold bar to the maintainability of this petition. He submits that no doubt the appropriate authority is empowered to file the complaint under Section 22(1) of the said Act, but Section 22 (1)(b) enables the aggrieved person to give 60 days notice to the appropriate authority of his intention to make a complaint to the Court. He also brings to my notice the provisions contained in Section 22(3) of the said Act, as per which the appropriate authority can be directed by the Magistrate to make available the copies of the relevant records in its possession.

7 7 6. The learned Senior Counsel sought to draw support from the Apex Court s judgment in the case of SAKIRI VASU v. STATE OF U.P. AND OTHERS reported in AIR 2008 SC 907 to advance the contention that if an alternative remedy is available, the High Court should not ordinarily interfere. 7. He also relies on the Apex Court s judgment in the case of CHINGLEPUT BOTTLERS v. MAJESTIC BOTTLING COMPANY reported in (1984) 3 SCC 258 to submit that no mandamus can be issued where the duty sought to be enforced is of a discretionary nature. 8. Sri Sajjan Poovayya, the learned Senior Counsel appearing on behalf of the respondent Nos.11 and 12 submits that the petitioner has already filed a private complaint. Having elected that remedy, he is not justified in resorting to the writ remedy simultaneously. 9. Sri A.G.Shivanna, the learned Additional Advocate General appearing for the respondent Nos.1, 2, 4 to 6 and 19 to 21 submits that the notice received from the petitioner is just treated as an intimation and that appropriate authority is not required to take any steps after its receipt.

8 8 10. The other learned advocates appearing for the respondents adopt the submissions urged by Sri C.V.Nagesh, the learned Senior Counsel appearing for the respondent Nos.7 to The submissions of the learned counsel have received my thoughtful consideration. It is trite that the writ is an extraordinary remedy. When the statute has made certain remedies available to an aggrieved person, he is required to avail of the same. I do not see any extraordinary circumstance for entertaining of the writ petition in the first instance. 12. That apart, it is not in dispute that the petitioner has issued the notice to the appropriate authority and thereafter filed the private complaint. Having rightly elected the remedy provided under Section 22 (1)(b) of the said Act, he has to take those proceedings to their logical culmination. The ends of justice would be met by my directing the Magistrate to expedite the enquiry and dispose of PCR No.12662/2012 in accordance with law. 13. At this juncture, the learned Senior Counsel Sri C.V.Nagesh submits that the Magistrate s order, dated staying all further proceedings comes in the way of

9 9 the Magistrate holding the enquiry. He submits that the petitioner has to either accept the said order or challenge it in appropriate proceedings. If that be so, the petitioner may have to challenge the said order or make an application for recalling/varying/vacating or resort to any other course open to him in law. It shall also be open to the respondent to resist the anticipated proceedings by taking such defenses, as are permissible in law. 14. Needless to observe that all the contentions are left open to be urged in appropriate proceedings. All the parties are directed to co-operate with the Magistrate or any other forum, where the parties may initiate the revision or any other proceedings, in the speedy disposal of the matter. as to costs. 15. This writ petition is accordingly disposed of. No order Sd/- JUDGE MD