ASTER MEDCITY Vs. STATE OF KERALA

JUDGEMENT

(1.) These Crl.M.Cs are filed by some of the accused persons in C.C. No.498 of 2021 on the files of the Judicial First Class Magistrate Court-IX Ernakulam. To be precise, Crl.M.C No.1019/2022 is filed by the accused Nos. 1,2,4,5,6 and 10, Crl.M.C No. 1010/2022 is filed by the 12th accused, Crl.M.C No. 3048/2022 is filed by the 13th accused, Crl.M.C No.798/2022 is by 11th accused and Crl.M.C No.1995/2022 is filed by 8th accused. Altogether there are thirteen accused persons, and the said case was instituted based on a private complaint submitted by the 2nd respondent in Crl.M.C No 1019/2022. The prayers sought in all the Cr.M.Cs are to quash all further proceedings in the said Calendar Case, taken cognizance of by the learned Magistrate based on the said private complainant. (For the sake of convenience, the parties shall be hereinafter referred to as per their respective status in the private complaint. The Annexures shall be hereinafter referred to, as mentioned in Crl.M.C No.1019/2022, unless otherwise specifically mentioned).

(2.) The learned Magistrate has taken cognizance of the offences based on the private complaint, which is produced as Annexure-I, for the offences punishable under 18, 20 and 21 of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter referred to as the TOHO & T Act) and Sec. 109,120B, 420, 468 read with Sec. 34 of the Indian Penal Code. The issues in these cases are in connection with the declarations of brain death made by the medical practitioners in the 1st petitioner Hospital with the help of the other doctors empaneled by Appropriate Authority constituted under the provisions of the TOHO & T Act, of two patients named Sri Ajay Johny, aged 19 years, and Adv Suresh, and the transplantation of liver of the said Ajay Johny, initially to Adv. Suresh and later to another patient.

(3.) The private complaint was submitted by the 2nd respondent, with the following allegations: Adv Suresh was a practicing lawyer before the High Court of Kerala and was under treatment for Liver Cirrhosis at the Aster Medcity Hospital, the 1st petitioner, since June, 2018. As a result of the treatment, he attained normal liver functions. However, at 3.30 P.M on 4/3/2019, the said Suresh and his wife were contacted over phone by the 1st petitioner Hospital authorities, informing that the liver of Sri.Ajay Johny was available for transplantation and, therefore, the said Suresh was required to get admitted in the hospital for the purpose of transplantation of the liver to his body. Ajay Johny was admitted to the hospital at 7 P.M on 2/3/2019 due to a road traffic accident as he sustained serious head injuries. At the relevant time, Adv. Suresh was at Changanasserry, and immediately, he himself came to Ernakulam along with his wife and one Sibichan, after driving his car, covering about 120 Kms thereby reached Ernakulam and got admitted to the Hospital. Upon getting admitted, Adv Suresh was asked to deposit an amount of Rs.22,00,000.00 Rupees twenty two lakhs only) for liver transplantation. Accordingly, they immediately deposited Rs.1,00,000.00 and issued a signed undated cheque for Rs.21,00,000.00.