Madras high court discharges surgeon from illegal kidney transplant case

CHENNAI: Madras high court has discharged a nephrologist and an organ transplant surgeon, M Ganesan, from an illegal kidney transplant case, citing procedural violations and concluding that the doctor had been subjected to harassment.“The petitioner, being a doctor, has been subjected to prolonged harassment for several years with an ulterior motive, at the instance of the authorities as well as other individuals. This case clearly amounts to an abuse of the process of law. However, the court below failed to appreciate both the factual matrix and the legal position in their proper perspective and erroneously dismissed the discharge petition, warranting interference by this court,” said Justice S Thamilselvi, in her order delivered in Jan this year. The criminal proceedings were initiated in June 2021 for the alleged offence that was said to have occurred in 2011. In the interregnum, a direction petition was filed in Madras high court under Section 482 of CrPC.Thereafter, the trial court rejected his discharge plea holding that the reasons assigned by the petitioner required appreciation of detailed evidence and that, at this stage, he could not be discharged. Aggrieved by the said order, the present revision was filed in the high court.Allowing his plea, Justice Thamilselvi said the case against Ganesan was that he arranged a donor by falsifying affidavits, portraying the donor as a willing person to donate a human organ in exchange for monetary consideration, all in contravention of the TOHO Act, 1994. He committed the offence while he was a kidney transplant surgeon and head of the Kidney Transplant Accreditation Committee of Vinayaga Mission Hospital. He was charged with violating the provisions under Sections 19(b), 19(d) and 19(g) of the TOHO Act, 1994.The judge then said that under the Act only an Appropriate Authority shall have powers akin to those of a civil court trying a suit under the CrPC, 1908 in cases of suspected unauthorised removal of organs.“However, in the present case, criminal proceedings were initiated by the police at the very inception. As per the above provisions of the special statute, such initiation of proceedings was impermissible, rendering the FIR itself illegal. The veracity of the complaint ought to have been examined by the Appropriate Authority by furnishing copies of the complaint to the petitioner and by issuing summons for enquiry. No such opportunity was afforded to the petitioner.”The police, without providing any proper opportunity or obtaining an explanation, arrested and remanded the petitioner, thereby violating his fundamental right and to liberty. The Appropriate Authority also failed to conduct a proper investigation as mandated under the Act.She then discharged the doctor saying: “Findings of the trial court are set aside, and the petitioner is discharged from all the charges levelled against him in C.C.No.17 of 2021 on the file of the learned District Munsif-cum-Judicial Magistrate, Pennagaram, Dharmapuri.”