Holding

Section 167(2) CrPC does not apply to proceedings where cognizance is taken under Section 22 of the Transplantation of Human Organs Act, as the special Act prevails over the general Code.

Summary

The appellants, medical practitioners, were charged under the Indian Penal Code and the Transplantation of Human Organs Act (TOHO) for alleged illegal organ removal. The initial FIR was lodged with the Gurgaon police, but investigation was transferred to the Central Bureau of Investigation (CBI), which filed a complaint under Section 22 of TOHO. The issue before the Supreme Court was whether Section 167(2) of the Code of Criminal Procedure (CrPC) – which governs the period for filing a police report and bail – applies when cognizance is taken under the special TOHO statute on a complaint filed by the CBI. The Court held that TOHO, being a special enactment, overrides the general provisions of the CrPC, and the CBI, as an appropriate authority under TOHO, could only file a complaint, not a police report, rendering Section 167(2) inapplicable. Consequently, the procedural requirements of the CrPC do not apply, and the appellants’ bail applications could not be sustained on that ground. The appeals were dismissed.

Issues considered

Whether Section 167(2) of the CrPC applies when cognizance is taken under Section 22 of the Transplantation of Human Organs Act on a complaint filed by the CBI.
Whether a complaint filed under TOHO constitutes a police report for the purposes of the CrPC.
Whether the CBI, as an appropriate authority under TOHO, is empowered to file a police report or only a complaint.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 173(2), s. 190, s. 201, s. 202, s. 2(d), s. 2(r)
Delhi Special Police Establishment Act, 1946
Indian Penal Code, 1860s. 120-B, s. 326, s. 342, s. 420, s. 506
Transplantation of Human Organs Act, 1994s. 13(3)(iv), s. 18, s. 19, s. 22

Subjects

Transplantation of Human Organs ActSpecial legislationCognizanceSection 22 TOHOSection 167(2) CrPCCBI investigationComplaint vs police reportProcedural lawBail

Judgment

(2009] 10 S.C.R. 272

A JEEWAN KUMAR RAUT & ANR.
v.
CENTRAL BUREAU OF INVESTIGATION
(Criminal Appeal Nos. 1133-1134 of 2009)
JULY 7, 2009
B
[S.B. SINHA AND ASOK KUMAR GANGULY, JJ.]

"
TRANSPLANTATION OF HUMAN ORGANS ACT,
1944:
c
Section 22 - Cognizance taken on a complaint filed by
CBI - Applicability of Section 167(2) Cr.P.C. - Held: Not
applicable - CBI having specially been empowered both under
the Delhi Special Police Establishment Act, 1946 as a/so
under Cr.P.C. to carry out investigation and file a charge sheet
..
D '
is precluded from doing so only by reason of Section 22 of
the TOHO Act - It is doubtful whether the authorized Officer
of the department to carry out investigation on a complaint
made by a third party would be entitled to assess the accused
and carry on investigation as if he is a police officer -
E Parliament to take appropriate measures to suitably amend
the law in the near future - Hope expressed.
'
In these appeals, the question that arose for '
consideration was as to whether Section 167(2) Cr.P.C.
F is applicable in a case where cognizance has been taken
under Section 22 of the Transplantation of Human Organs
Act, 1944 on a complaint filed by the CBI.

Dismissing the appeals, the Court
G HELD: 1.1. Transplantation of Human Organs Act,
1944 (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

H 272
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 273
BUREAU OF INVESTIGATION

·.- the subject only, enactment of the said regulatory statute A
was imperative. TOHO provides for appointment of an
appropriate authority to deal with the matters specified
in Sub-section (3) of Section 13 thereof. By reason of the
aforementioned provision, an appropriate authority has
specifically been authorized inter alia to investigate any B
complaint of the breach of any of the provisions of TOHO
or any of the rules made thereunder and take appropriate
.y action. The Appropriate Authority, subject to exceptions
provided for in TOHO, thus, is only authorized to
investigate cases of breach of any of the provisions c
thereof, whether penal or otherwise. [Paras 12 and 13]
[290-G-H; 291-A-B]

1.2. Ordinarily, any person can set the criminal law
in motion. The Parliament and the State Legislatures,
~ however, keeping in view tile sensitivity and/ or D
importance of the subject, have carved out specific areas
where violations of any of the provisions of a special
statute like TOHO can be dealt with only by the
authorities specified therein. [Para 13] [291-C]
E
2. The FIR lodged before the officer incharge of the
Gurgaon Police Station was by way of information. It
disclosed not only commission of an offence under TOHO
.,,
but also under various provisions of the Indian Penal
Code. The officer incharge of the Police Station, however, F
was not authorized by the appropriate government to
deal with the matter in relation to TOHO; but; the
respondent was. In that view of the matter, the
investigation of the said complaint was handed over to
it. [Para 14] [291-D, E] G
3.1. 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 Cr,.P.C. [Para 15] [291- H
274 SUPREME COURT REPORTS [2009] 10 S.C.R.

A H; 292-A]

3.2. The investigation in terms of Section 13(3)(iv) of
TOHO, thus, must be conducted by an authorized officer.
Nobody else could do it. For the aforementioned reasons,
the officer incharge of the Gurgaon Police Station had no
8
other option but to hand ove; the investigation to the
appropriate authority. [Para 16] [292-8]

4. The respondent has been constituted under the
Delhi Special Police Establishment Act, 1946. In terms of
C 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. It is for
D 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
E would not mean that all the provisions of Chapter XII of
TOHO vis-·-vis Chapter XV thereof could not be invoked.
[Paras 17 and 18] [292-C-E]
'.,
5.1. Section 22 of TOHO prohibits taking of
cognizance except on a complaint made by an
F 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
G 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
H (2) of Section 173 of the \)de did not and could not arise.
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 275
BUREAU OF INVESTIGATION
In other words, if no· police report could be filed, Sub- A
section (2) of Section 167 of the Code was ncit attracted.
· - [Para 191 [292-F-H]

5.2. It is a well-settled principle of law that if a special
statute lays down procedures, the ones laid down under
8
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 C
petition only; Sub-section (2) of Section 167 of the Code
may not be applicable. 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 D
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 E -
contained in Section 22 of TOHO. 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 TQHO. [Para 20] F
[293-A-D]

5.3. It is one thing to say that the court could take
recourse to the procedure laid down in Section 202 of the
Code or even reject the complaint but then only because G
such a course of action could be resorted to by the
Magistrate, the same, by itself, would not lead 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
H
276 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Section 167 of the Code. [Para 21) [293-G, H; 294-A]
6.1. Stricto sensu Sub-section (2) of Section 167 of
the Code would not apply in a case of this nature. [Para
24) [276-G]

B 6.2. Even assuming for the sake of argument that
Sub-section (2) of Section 167 of the Code requires filing
of a report within 90 days and the complaint petition
having filed within the said period, the requirements
thereof stand satisfied. Appellant No. 2 having arrested
c on 10.02.2008 and Appe!lant No. 1 having surrendered on
17.02.2008 as also the complaint petition having been filed
on 29.04.2008, the requirement of Sub-section (2) of
Section 167 of the Code stands satisfied. [Paras 24 and
25) [294-H; 295-A-B]
D .-
6.3. Only because the court 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. [Para 25) [295-G]
E
6.4. A distinction between a remand of an accused ,
at pre-cognizance stage vis-'-vis the post-cognizance
stage is apparent. Whereas the remand at a pre- .
~

cognizance stage is to be made in terms of Sub-section
F (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. [Para
26] [295-H; 296-A]

Moosakoya v. State of Kera/a 2008 Crl. L.J. 2388,
G
approved.

Madhu Bala v. Suresh Kumar and Others (1997) 8 SCC
476 and Oinesh Oa/mia v. CBI (2007) 8 SCC '770, held
inapplicable.
H
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 277
BUREAU OF INVESTIGATION
Sanjay Dutt v. State Through C.B.I., Bombay (II) (1994) A
5 SCC 410 and Mithabhai Pashabhai Patel and others v.
State of Gujarat 2009 (7) SCALE 559, referred to.

7.1. If a complaint petition is filed, the procedure laid
down under Chapter XV of the Code can be taken 8
recourse to despite the fact that the same has been filed
after full investigation and upon obtaining the remand of
the accused from time to time by reason of orders passed
by a competent Magistrate. [Para 27] [296-E]

7.2. This Court is not oblivious of some decisions of C
this Court where some special statutory authorities like
authorities under the Customs Act have been granted all
the powers of the investigating officer under a special
statute like the NDPS Act, but, this Court has held that
.
v they cannot file chargesheet and to that extent they
would not be police officers. [Para 28] [296-F]
D

Ramesh Chandra Mehta v. The State of West Bengal
AIR 1970 SC 940 and Raj Kumar Karwal v. Union of India
(1990) 2 sec 409, relied on. E

8. In this case, however, the respondent having
specially been empowered both under the 1946 Act as
_; also under the Code to carry out investigation and file a
chargesheet is precluded from doing so only by reason
of Section 22 of TOHO. It is doubtful as to whether in the F
event of authorization of an officer of the department to
carry out investigation on a complaint made by a third
party, he would be entitled to arrest the accused and
. carry on investigation as if he is police officer. It is hoped
that the Parliament would take appropriate measures to G
suitably amend the law in the near future. [Para 29] [296-
H; 297-A, B]
Case Law Reference:
(1997) a sec 476 held inapplicable Para 22 H
278 SUPREME COURT REPORTS [2009J 10 S.C.R.

A (2007) 8 sec 770 held inapplicable Para 22 . .,,
2008 Crl. L.J. 2388 approved Para 23

(1994) 5 sec 410 referred to Para 25

2009 (7) SCALE 559 referred to Para 26
B
AIR 1970 SC 940 relied on Para 28

(1990) 2 sec 409 relied on Para 28

CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
c Nos. 1133-1134 of 2009.
From the Judgment & Order dated 28.1.2009 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Revision
Nos. 1007 of 2008 and 1006 of 2008.
D
Makarand D. Adkar. S.D. Singh, Vijay Kumar and Bharti . '
Tyagi Aparna Jha for the Appellants.

A. Sharan, Amit Anand Tiwari, Pradip Kumar Dey and
B.K. Prasad for the Respondents.
E
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Applicability of Sub-section (2) of Section 167 of the
F Code of Criminal Procedure, 1973 (for short "the Code") in a
case where cognizance has been taken under Section 22 of
the Transplantation of Human Organs Act, 1994 (for short
"TOHO") on a complaint filed by the respondent herein is the
question involved in this appeal.
G
It arises out of a judgment and order dated 29.01.2009
passed by a learned Single Judge of the Punjab and Haryana , ..
High Court in Criminal Revision Nos. 1007 and 1006 of 2008.

3. Appellants are medical practitioners. A First Information
H
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 279
BUREAU OF INVESTIGATION [S.B. SINHA, J.]
Report (FIR) was lodged against them under Section 420 of A

. ·- 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.
B
It registered another FIR on or about 8.02.2008 under
Sections 420, 342, 326, 506 and 120-B 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, c
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

.
II
before the Judicial Magistrate, CBI Cases, Ambala inter alia
stating:
D

"51. That required authorization u/s 22 of TOHO Act 1994
has been accorded by the Govt. of Haryana vide order
dated 11.4.08 in favour of undersigned 10 of the case ....
E
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, F
Financial Commissioner & Principal Secretary to the Govt.
of Haryana, Home Department being the competent
authority has authorized the undersigned 10 of this case
to file the complaint for the violation of provisions of TOHO
Act, 1994 by the said accused persons before a G
competent court of law. Since offences punishable under
-~ the provisions of Indian Penal Code committed by above
said accused persons are pursuant to a criminal
conspiracy in the same transaction, hence a composite
complaint is being filed against all the said accused
H
280 SUPREME COURT REPORTS [2009] 10 S.C.R.

A persons."
"
(Emphasis supplied) ..
It was prayed:

B "54. It is most respectfully prayed that cognizance under
sections 120-B r/w 326, 342, 417, 465, 473, 506 and 307
IPC and Sec. 18, 19 & 20 of Transplanation of Human
Organs Act, 1994 and substantive offences thereof may
kindly be taken against accused A-1 to A-9 and they may
c be tried as per law. It is also prayed that permission to
conduct further investigation against the arrested persons,
namely, Smt. Pooja Kumar, Umesh Kumar and Harpal
may kindly be given as also against the others whose
names have emerged during investigation."
D 6. Inter alia, contending that the period of 90 days from the
date of detention expired on 7.05.2008, the appellant No. 2 filed
.,
application for grant of bail. By reason of an order dated
9.05.2008, the learned Magistrate opined:

E "... For the purposes of taking cognizance of the offences
punishable under TOHO Act, a written complaint is
required to be filed by the competent authority or the
authorized person as required by Section 22 of the
aforesaid Act. Therefore, qua the offences under TOHO
....
F Act, it seems to be a complaint, but in the opinion of this
Court qua the offences committed by the accused
punishable under Section 120-8 read with Sections 307,
326, 342, 417, 465, 473 and 506 of IPC, it seems to be
-
police report. If period of custody is reckoned of both
accused Ms. Linda and Dr. Amit, then it appears to me
G
that this police report had been filed within the period of
90 days being filed on 29.4.2008 ... " ,,.._
On the said reasoning, the learned Magistrate dismissed
the said application.
H
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 281
BUREAU OF INVESTIGATION [S.B. SINHA, J.]

~- 7. The appellant No. 2 along with other accused also filed A
application for grant of bail, which was also dismissed by the
r~learned Magistrate by an order dated 23.05.2008 holding that
he had already taken a view while dealing with the application
for grant of bail filed by the appellant No. 2.
B
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
c
complaint is not a police report and cannot be treated as such,
stating:

"... The cognizance of the offence under the TOHO Act in
.
\l terms of Section 22 is to be taken on the basis of a
complaint filed by an arpropriate authority concerned.
D

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 E
period for a cognizable offence, which is nonbailable, of
which cognizance was taken by the Magistrate, the
j 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 F
cannot be treated as such. The net effect of the argument
raised by counsel for the petitioners would be that even if
the complaint is not treated as a police report for offences
under l.P.C., still the petitioners would not be entitled to be
released on bail by operation of Section 167(2) Cr.P.C.
G
as complaint against them stood filed within a statutory
_+,,
period of 90 days. The petitioners could, thus, be denied
the concession of said provision without going into the
elaborate and detailed submissions made by counsel for

-- the parties in regard to the status of complaint, being police
H
.
282 SUPREME COURT REPORTS [2009] 10 S.C.R.

A report or not. I am, thus, not inclined to go further into the
"
aspect whether this complaint can be treated as a police
report for the purpose of offences under the IPC or not. The
definition of 'complaint' as contained in Section 2(d)
Cr.P.C., would prima -facie tend to indicate that complaint
B as such, would exclude the police report, though it is equally
true that the police report need not be on any particular
format ... "

9. Mr. Ranjit Kumar, learned senior counsel appearing on
behalf of the appellants, would urge:
c
(i) A "complaint" having been defined in Section 2(d)
of the Code in terms whereof a police report is
excluded, it was obligatory on the part of the
respondent herein to proceed either in terms of
D Chapter XII of the Code or Chapter XV thereof and
in view of the fact that the FIR was lodged,
.'
investigation was carried out only in terms of
Chapter XII of the Code, the complaint petition was
not maintainable.
E
(ii) The investigating officer is required to file a police \---

report as defined in Section 2(r) of the Code which
would in turn attract the provisions of sub-section (2)
.;
of Section 173 of the Code, the officers of the CBI . .,..
being police officers in terms of the provisions of
F the Delhi Special Police Establishment Act, 1946,
the purported complaint should have been treated
to be a police report and not a complaint petition.

(iii) Appellants having been arrested by the respondent,
G which power could have been exercised by it under
the Code, the only course open to it was to file a ,..,_
police report.

(iv) An indefeasible right having been conferred on the
H
accused in terms of sub-section (2) of Section 167
-
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 283
BUREAU OF INVESTIGATION [S;B. SINHA, J.]
_,.;· of the Code, the appellants could not have been A
.... denied the same only because a purported
complaint was filed.

10. Mr. Amarendra Sharan, learned Additional Solicitor
General appearing on behalf of the respondent, on the other
B
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 c
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 D
• 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

-
J
I
r

_}
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
E

also of TOHO.
F
I Section 2(d) of the Code defines "Complaint" to mean
;
I "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". G

--~ Section 2(r) of the Code defines "police report" to mean
"a report forwarded by a police officer to a Magistrate under
sub-section (2) of section 173".
__, Chapter XII of the Code deals with information to the police H

}
284 SUPREME COURT REPORTS [2009] 10 S.C.R.

A and their powers to investigate. It begins with Section 154
providing for the mode and manner in which the information
relating to commission of a cognizable offence if given orally
to an officer incharge of the police station is to be dealt with.
Section 156 empowers the police officer to investigate
s cognizable cases. Section 160 en.powers the police officer to
require attendance of witnesses. Section 161 provides for
examination of witnesses by police. Section 165 empowers the
police officer to search any premises. It is in the aforementioned
background, we may notice Sub-section (2) of Section 167 of
c the Code, which reads, thus:
"167. Procedure when investigation cannot be completed
in twenty-four hours.

(1)
D
(2) The Magistrate to whom all accused person is
..,
forwarded under this section may, whether he has or not
jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such
Magistrate thinks fit, a term not exceeding fifteen days in
E
the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded
to a Magistrate having such jurisdiction:

F Provided that-

(a) The Magistrate may authorize the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is satisfied
G that adequate grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in
custody under this paragraph for a total period exceeding-

(i) Ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or
H imprisonment for a term of not less than ten years;
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 285
BUREAU OF INVESTIGATION [S.B. SINHA, J.)
;.('
(ii) Sixty days, where the investigation relates to any other A
offence,

And, on the expiry of the said period of ninety days, or sixty
days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail,
B
and every person released on bail under this sub-section
shall be deemed to be to released under the provisions of
,I-
Chapter XXXlll for the purposes of that Chapter;

(b) No Magistrate shall authorize detention in any custody
under this section unless the accused is produceq before c
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. D
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.
E
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." F
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:
G
- "'"'
' :'(a) the names of the parties;

' (b) the nature of the information;

JP (c) the names of the persons who appear to be acquainted
H
286 SUPREME COURT REPORTS [2009] 10 S.C.R.

A with the circumstances of the case;

(d) whether any offence appears to have been committed
and, if so, by whom;

(e) whether the accused has been arrested;
B
(f) whether he has been released on his bond and, if so,
whether with or without sureties;

(g) whether he has been forwarded in custody under section
170."
c
Chapter XII I of the Code deals with jurisdiction of the
criminal courts for inquiries and trials. Chapter XIV provides for
the conditions requisite for initiation of proceedings. Section
190 of the Code occurring in the said Chapter reads as under:
-;
D •
"190 - Cognizance of offences by Magistrates

(1) Subject to the provisions of this Chapter, any Magistrate
of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2 ),
E may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such
~n~ ~.

(b) upon a police report of such facts;
F
(c) upon information received from any person other than
a police officer, or upon hi s own knowledge, that such
offence has been committed.

G ( 2 ) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under
sub-section (1 ) of such offences as are within his
competence to inquire into or try."

Chapter XV of the Code deals with complaints to
H
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 287
BUREAU OF INVESTIGATION [S.B. SINHA, J.]

,,. Magistrates. Section 201 of the Code reads as under: A

"201 - Procedure by Magistrate not competent to take
cognizance of the case

If the complaint is made to a Magistrate who is not
competent to take cognizance of the offence he shall,- B

(a) if the complaint is in writing, return it for presentation
to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant
to the proper Court."
c
TOHO was enacted to provide for the regulation of
removal, storage and transplantation of human organs for
therapeutic purposes and for the prevention of commercial
dealings in human organs and for matters connected therewith D
' I

or incidental thereto.

Section 2(b) of TOHO defines "appropriate authority" to
mean "the Appropriate Authority appointed under Section 13".

Chapter IV of TOHO deals with appropriate authority; E
Section 13 occurring therein reads, thus:

.._, "13 - Appropriate Authority

(1) The Central Government shall appoint, by notification,
F
one or more officers as Appropriate Authorities for each
of the Union territories for the purposes of this Act.

(2) The State Government shall appoint, by notification, one
or rrfore officers as Appropriate Authorities for the
- purposes of this Act. G
~ .....
........ (3) The Appropriate Authority shall perform the following

- functions, namely : -

(i) to grant registration under sub-section (1) ofsection 15
H
288 SUPREME COURT REPORTS [2009) 10 S.C.R.

A 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
B 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
c 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
D •
(vi) to undertake such other measures as may be '
prescribed."

Chapter VI of TOHO deals with offences and penalties.
E Sections 18, 19 and 22 thereof read as under:

"18 - Punishment for removal of human organ without
authority

(1) Any person who renders his services to or at any
F hospital and who, for purposes of transplantation, conducts,
.associates with, or helps in any manner in, the removal of
any human organ without authority, shall be punishable with
imprisonment for a term which may extend to five years and
with fine which may extend to ten thousand rupees.
G
(2) Where any person convicted under sub-section (1) is

....-
a registered medical practitioner, his name shall be
reported by the Appropriate Authority to the respective '
State Medical Council for taking necessary action including '
the removal of his name from the register of the Council
H
JEEWAN KUMAR RAUT & ANR. v: CENTRAL 289
BUREAU OF INVESTIGATION [S.8. SINHA, J.]
,.. for a period of two years for the first offence and A
permanently for the subsequent offence.

19 - Punishment for commercial dealings in human organs

Whoever-
8
(a) makes or receives any payment for the supply of, or
for an offer to supply, any human organ;

(b) seeks to find a person willing to supply for payment any
human organ;
c
(o) offers to supply any human organ for payment;
--""

(d) initiates or negotiates any arrangement involving the
making of any payment for the supply of, or for an offer to
supply, any human organ; D
(e) takes part in the management or control of a body of
persons, whether a society, firm or company, whose
activities consist of or include the initiation or negotiation
of any arrangement referred to in clause (d); or
E
(f) publishes or distributes or causes to be published or
distributed any advertisement,-
,.J.
(a) inviting persons to supply for payment of any human
organ; F
(b) offering to supply any human organ for payment; or

(c) indicating that the advertiser is willing to initiate or
negotiate any arrangement referred to in clause
G
./, (d) shall be punishable with imprisonment for a term which
shall not be less than two years but which may extend to

- seven years and shall be liable to fine which shall not be
less than ten thousand rupees but may extend to twenty
thousand rupees : H
I
290 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Provided that the Court may, for any adequate and special ..
reason to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than two years
and a fine less than ten thousand rupees.

22 - Cognizance of offences
B
(1) No Court shall take cognizance of an offence under this
Act except on a complaint made by--

(a) the Appropriate Authority concerned, or any officer
c 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 ..
D '
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
E 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
F
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,
G enactment of the said regulatory statute was imperative. TOHO
provides for appointment of an appropriate authority to deal r
with the matters specified in Sub-section (3) of Section 13
thereof. By reason of the aforementioned provision, an
appropriate authority has specifically been authorized inter alia
H to investigate any complaint of the breach of any of the
-
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 291
BUREAU OF INVESTIGATION [S.B. SINHA, J.)
provisions of TOHO or any of the rules made thereunder and A
;\·
take appropriate action.

13. The Appropriate Authority, subject to exceptions
provided for in TOHO, thus, is only authorized to investigate
cases of breach of any of the provisions thereof, whether penal
B
or otherwise.

Ordinarily, any person can set the criminal law in motion.
The Parliament and the State Legislatures, however, keeping
in view the sensitivity and/ or importance of the subject, have
carved out specific areas where violations of any of the c
provisions of a special statute like TOHO can be dealt with only
by the authorities specified therein.

14. The FIR lodged before the officer incharge of the
Gurgaon Police Station was by way of information. It disclosed D
~ not only commission of an offence under TOHO but also under
various provisions of the Indian Penal Code. The officer
incharge of the Police Station, however, was not authorized by
the appropriate government to deal with the matter in relation
to TOHO; but, the respondent was. In that view of the matter,
E
the investigation of the said complaint was handed over to it.

15. 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, F
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 G
the manner or place of investigating, inquiring into, tried or
~
....... otherwise dealing with such offences. 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 H
292 SUPREME COURT REPORTS (2009) 10 S.C.R.

A prevail over the provisions of the Code.
"
16. The investigation in terms of Section 13(3)(iv) of TOHO,
thus, must be conducted 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
B
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
c 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.

D 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
E
vis-a-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
F 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
G 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
,,.
---
1-j • the Code was not attracted.
JEEWAN KUMAR\ RAUT & ANR. v. CENTRAL 293
BUREAU OF INVESTIGATION [S.B. SINHA, J.]

~. 20. It is a well-settled principle of law that if a special A
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 B
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. 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 c
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
D
by reason of the provisions contained in Section 22 of TOHO.

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 E
complaint and vice-versa, it was obligatory on the part of the
respondent to choose the said method invoking the juri~diction
,.J 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 F
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.

21. It is one thing to say that the court could take recourse
G
to the procedure laid down in Section 202 of the Code or even
J.._
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
H
294 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 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
B
Court in Madhu Bala v. Suresh Kumar and Others [(1997) 8
SCC 476] and Dinesh Dalmia v. CBI [(2007) 8 SCC 770].

However, in view of our foregoing findings, the said
decisions have no application in the instant case.
c
23. We may notice that a Division Bench of the High Court ....
of Kera/a in Moosakoya v. State of Kera/a [2008 Crl. L.J. 2388]
held as under:

"3. A plain reading of the above provision will show that
D 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 District
Collector or a Geologist of the Department of Mining and
E Geology. A 'complaint in writing' by the authorised officer
etc. is the only condition for taking cognizance as provided
in Section 25. If a police officer is authorised by the
....
Government, he may also file a complaint on the basis of
which the Court may take cognizance. But, the Court
F cannot take cognizance of any offence punishable under
the Sand Act on a police report filed under Section 173(2)
of the Cr.P.C. after investigation by police ... "

We, with respect, agree with the said observations.
G 24. For the views we have taken, we are of the opinion
...~
that stricto sensu Sub-section <2) of Section 167 of the Code
would not apply in a case of this nature.

Even assuming for the sake of argument that Sub-section
H (2) of Section 167 of the Code requires filing of a report within
JEEWAN KUMAR RAUT & ANR. v. ·CENTRAL 295
BUREAU OF INVESTIGATION {S.B .. SINHA, J.]
""-. 90 days and the complaint petition having filed within the said A
period, the requirements thereof stand satisfied.

25. Appellant No. 2 having arrested on 10.02.2008 and
Appellant No. 1 having surrendered on 17.02.2008 as also the
complaint petition having been filed on 29.04.2008, the B
requirement of Sub-section (2) of Section 167 of the Code
stands satisfied.

In Sanjay Dutt v. State Through C.8.1., Bombay (II) [(1994)
5 SCC 410], this Court held:
c
"53(2)(b) The 'indefeasible right' of the accused to be
released on bail in accordance with Section 20(4)(bb) of
" the TADA Act read with Section 167(2) of the CrPC in
default of completion of the investigation and filing of the
challan within the time allowed, as held in Hitendra Vishnu D
Thakur is a right which enuns to, and is enforceable by
the accused only from the time of default till the filing of the
challan and it does not survive or remain enforceable on
the challan being filed. If the accused applies for bail under
this provision on expiry of the period of 180 days or the
E
extended period, as the case may be, then he has to be
released on bail forthwith . The accused, so released on
,:I.
bail may be arrested and committed to custody according
to the provisions of the CrPC. The right of the accused to
be released on bail after filing of the challan ,
F
notwithstanding the default i11 filing it within the time
allowed, is governed from the time of filing of the challan
only by the provisions relating to the grant of bail applicable
at that stage."

Only because the court itself took a long time in taking G
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-
H
296 SUPREME COURT REPORTS [2009] 10 S.C.R.

A cognizance stage vis-a-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
B Section 309 thereof. This aspect of the matter has been
considered by this Court recently in Mithabhai Pashabhai Patel
and others v. State of Gujarat [2009 (7) SCALE 559].

27. Before parting, however, we must place on record that
we have not been called upon to consider the constitutionality
c 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
D determined. We have made these ogservations keeping in view
the dichotomy in the matter o, application of TOHO vis-a-vis the
provisions of the Code.

If a complaint petition is filed, the procedure laid down
E under Chapter XV of the Code can be taken recourse to despite
the fact that the same has been filed after full investigation and
upon obtaining the remand of the accused from time to time
by reason of orders passed by a competent Magistrate.
.t~

28. We are, however, not oblivious of some decisions of
F this Court where some special statutory authorities like
authorities under the Customs Act have been granted all the
powers of the investigating officer under a special statute like
the NDPS Act, but, this Court has held that they cannot file
chargesheet and to that extent they would not be police officers.
G [See Ramesh Chandra Mehta v. The State of West Bengal
AIR 1970 SC 940, Raj Kumar Karwal v. Union of India (1990)
2 sec 409J
,.:.- -
~-.-
29. In this case, however, the respondent having specially
H been empowered both under the 1946 Act as also under the
JEEWAN KUMAR RAUT & ANR. v. CENTRAL 297
BUREAU OF INVESTIGATION [S.B. SINHA, J.]
Code to carry out investigation and file a chargesheet is A
precluded from doing so only by reason of Section 22 of TOHO.
It is doubtful as to whether in the event of authorization of an
officer of the department to carry out investigation on a
complaint made by a third party, he would be entitled to arrest
the accused and carry on investigation as if he is police officer. s
We hope that the Parliament would take appropriate measures
to suitably amend the law in the near future.

30. For the reasons aforementioned, there is no merit in
these appeals which are dismissed accordingly.
c
G.N. Appeals dismissed.

·~
-
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