JUDGMENT 1. The facts giving rise to this petition under Article 226 of the Constitution of India lie in narrow campas, which are as under : 1. Petitioner Panne Singh who is a resident of village and post Dhandhah, Tehsil Fatehpur, P.S. Ramgarh, Distt. Sikar had some trouble in his Kidney about a month back. Consequently, he was admitted in Sawai Man Singh Hospital, Jaipur for treatment and remained there for about 2 months. It is alleged that on account of deteriorating and serious condition, he was shifted to Mohilek Hospital & Research Centre on 23.11.95 (According to the Advocate General it was not on 23.11.95 but on 2.11.95). It appears that on examination it was discovered that Kidneys of the petitioner-Panne Singh were not functioning well and he was put on Dialysis and was advised for Kidney transplantation. In view of the aforesaid advise of the Doctors, many of the relatives of Panne Singh arrived and voluntarily offered to donate their Kidneys. Since the blood-group of none of the relations, who had come forward to donate their Kidneys, matched with that of Panne Singh, the Kidney of Shri Panne Singh was not transplanted. Subsequently, one of his son-in-law, namely Shri Het Ram came forward to donate his Kidney and got his blood-group tested. On the test conducted, the blood-group of Shri Het Ram matched with that of Shri Panne Singh. It is alleged that since the Doctors in Jaipur City are being arrested and are being prosecuted for transplantation of Kidneys, the Doctors of respondent No. 2 refused to transplant the Kidney of Shri Panne Singh unless he produces permission/certificate for transplantation of Kidney either from the Hon'ble Chief Minister or the Health Minister of the State. It has been averred that Panne Singh's wife tried to approach the Hon'ble Chief Minister and the Health Minister of the State of Rajasthan, but she could not either meet personally or could present representation before them. It has been further alleged that Lt. Col. Dwarka Prasad Bugalia who is friend of Panne Singh and who was apprised about this state of affair, tried to obtain permission of the State Government, but failed to do so and as such, in order to save his life the petitioner approached this Court for issuance of directions to the respondents for transplantation of Kidney. Col. Dwarka Prasad Bugalia who is friend of Panne Singh and who was apprised about this state of affair, tried to obtain permission of the State Government, but failed to do so and as such, in order to save his life the petitioner approached this Court for issuance of directions to the respondents for transplantation of Kidney. A copy of a affidavit sworned by Shri Het Ram son of Shri Mala Ram, resident of village Nethwa, Tehsil Fatehpur, PS Ramgarh, Distt. Sikar, son-in-law of Shri Panne Singh has also been filed as Annexure-1 to the petition. 2. Mr. Rohitashwa Kajala, learned counsel for the petitioner contended that there is a fear psychosis prevailing amongst the Doctors of Rajasthan that in case any Doctor transplants the Kidney, he might be arrested or prosecuted by the police and in view of the said apprehension, the Doctors are refusing to transplant the Kidney. Keeping in view the fact that the question relates to the preservation of human life which is a sacrosanct and fundamental right under Article 21 of the Constitution of India and in view of the interest of the general public of the State of Rajasthan, the Advocate General was requested to place the stand of the State Government and the members of the Bar were also requested to address the Court and to put forth their submissions if they so like in order to decide the controversy. 3. I have heard Mr. Rohitashwa Kajala, learned counsel for the petitioner, Mr. B.P. Agrawal, learned Advocate General with Mr. J.M. Jain for the State of Rajasthan, Mr. Suresh Pareek, Sr. Standing Counsel for the Union of India, Mr. S.K. Gupta on behalf of the Private Doctors Association of Rajasthan, Mr. Jagdeep Dhankad, Sr. Advocate with Mr. Praveen Balwada, Mr. G.G. Sharma, Sr. Advocate with Mr. Ashok Sharma, Mr. M.A. Khan, Mr. S.B. Mathur, Mr. J.P. Sharma, Mr. R.P. Panwar, Mr. P.N. Agrawal, Mr. A.S. Upadhyay, Mr. Shiv Kumar Sharma and Dr. Y.C. Sharma. 4. From the facts stated in the petition and the arguments advanced, in my opinion the most important question which arises for determination is "whether there is any prohibition on the transplantation of human organs including Kidney in the State of Rajasthan under any law enacted either by the Central Government or by the State Legislature. Y.C. Sharma. 4. From the facts stated in the petition and the arguments advanced, in my opinion the most important question which arises for determination is "whether there is any prohibition on the transplantation of human organs including Kidney in the State of Rajasthan under any law enacted either by the Central Government or by the State Legislature. It is admitted to the parties that no Legislation has been enacted by the State Legislature of Rajasthan regulating transplantation of human organs including Kidney. It has been stated at the bar that Parliament has enacted a law regulating transplantation of human organs, i.e. Act No. 42 of 1994 and the controversy should be decided in view of the provisions contained in the aforesaid Act. Learned Advocate General has categorically stated that Act No. 42 of 1994 has not been made applicable to the State of Rajasthan inasmuch as no Resolution has been passed by the State Legislature under clause (i) of Article 252 of the Constitution of India. 5. Mr. S.K. Gupta during the course of arguments invited the attention of this Court to the various provisions of Act No. 42 of 1994. Though, the same do not apply to the State of Rajasthan however, I consider it expedient to make a mention to some of the provisions of the said Act for collateral purpose. From a perusal of the objects mentioned in the Act for enacting the aforesaid Legislation, it appears that even under Act No. 42 of 1994 the transplantation of Kidney is not prohibited, which fact is amply borne out from the object for enactment of the said Act, which runs as under : "an act to provide for 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 or incidental thereto." 6. A reading of the aforesaid Act clearly indicates that a donor not less than 18 years of age can voluntarily authorise the removal of any of his human organs for therapeutic purposes. Section 11 provides for prohibition of removal or transplantation of human organs for any purpose other than therapeutic purpose. A reading of the aforesaid Act clearly indicates that a donor not less than 18 years of age can voluntarily authorise the removal of any of his human organs for therapeutic purposes. Section 11 provides for prohibition of removal or transplantation of human organs for any purpose other than therapeutic purpose. Therapeutic has been defined in the said Act as "therapeutic purposes" means, systematic treatment of any disease or the measures to improve the health according to any particular method or modality, and "transplantation" means, the grafting of any human organ from any living person or deceased person to some other living person for therapeutic purposes." It was also urged that only near relative can donate the Kidney, whereas in the instant case Shri Het Ram is the son-in-law and not the near relative, as the near relative has been defined in Act No. 42 of 1994 in which `near relative' means, spouse, son, daughter, father, mother, brother or sister". However, since the said Act has not been made applicable to the State of Rajasthan, the arguments advanced at the bar referring to the provisions of the said Act are wholly irrelevant for the purposes of the present case and are academic in nature and do not require any adjudication by this court in the instant case. Mr. Kajla, learned counsel for the petitioner has submitted that Doctors of respondent No. 2 are refusing to transplant the Kidney of the petitioner in the absence of any authority issued by Hon'ble the Chief Minister or the Health Minister of Rajasthan. It is true that in Act No. 42 of 1994 some authority has been prescribed for granting permission but since the Act has not been made applicable in the State of Rajasthan, the question of any authority by the Hon'ble Chief Minister or the Health Minister of the State of Rajasthan does not arise and the refusal to transplant the kidney by the Doctors on the aforesaid ground is not valid. Learned counsel for the petitioner further contended that in view of the categorical statement made by the Advocate General of Rajasthan that the transplantation of Kidney is not prohibited and the provisions of Act No. 42 of 1994 has not been made applicable, a direction may be issued to the Doctors to transplant the kidney. Learned counsel for the petitioner further contended that in view of the categorical statement made by the Advocate General of Rajasthan that the transplantation of Kidney is not prohibited and the provisions of Act No. 42 of 1994 has not been made applicable, a direction may be issued to the Doctors to transplant the kidney. I am of the opinion that since the transplantation of kidney per se is neither prohibited nor illegal nor punishable under any law till today and the requirement of producing the authority from the Hon'ble Chief Minister or the Health Minister of the State of Rajasthan for transplantation of Kidney being wholly irrelevant, there is no reason why a Doctor should refuse to transplant the kidney. Learned counsel for the petitioner vehemently urged that since some of the doctors of Jaipur City who transplanted kidneys of some of the patients in recent past in the State of Rajasthan in some Nursing Homes are being arrested/prosecuted, the Doctors in the city of Jaipur apprehend that in case they transplant kidney, they may be arrested or prosecuted. In my opinion, in view of the statement made by the Advocate General the apprehension in the mind of the doctor is wholly misconceived. If the law does not prohibit transplantation of kidney then in view of the oath taken by the Doctors at the time of registration before the Medical Council of India and also keeping in view the high standard of medical ethics, there appears to be no reason why a Doctor should refuse to transplant the kidney. However, I may very specifically mention at this stage that the facts of the case in which the Doctors have been arrested/prosecuted are not on record and any observation or finding recorded by this court in the instant case will not, in any way, prejudice the proceedings of those cases as the order in the instant case is squarely confined to the facts of the present case and the observations should not be construed as general and sweeping in nature as they are based purely on the facts of the present case. It is also relevant to mention that though there is no prohibition for transplantation of kidney, however, if a Doctor commits some acts in connection with transplantation of kidney of a patient which is otherwise punishable under any law of the land, he can certainly be proceeded with for his actions/omissions and cannot be exonerated only on the ground that there is no prohibition for transplantation of kidney, for instance, there may be cases where a donor may come forward and may state that his consent was obtained by coersion or fraud, in such situation the Doctor may be proceeded with according to law. 7. Mr. Kajla, learned counsel for the petitioner has lastly urged that a mandamus may be issued to the Doctors of respondent No. 2 to transplant the kidney of the petitioner. In this case, I am of the opinion that the only question which arises for consideration is whether a mandamus can go to a Doctor to perform a particular operation. Reliance has been placed on a judgment of the Supreme Court in support of the contention that a mandamus can be issued to a medical practitioner, on the case of Pandit Parmanand Katara v. Union of India and other, AIR 1989 S.C. 695 . Before expressing any opinion on the applicability of the aforesaid decision of the Apex Court, I would like to refer, in brief, the facts of the said case. In the base of Pt. Parmanand Katara (supra) a scooters was knocked down by a speedy car. Since there was perfused bleeding of the scooters, a person on the road took him to the hospital. The doctor refused to attend the injured and told him that he should take the patient to a named different hospital located 20 Kms. away, which is authorised to take legal medico cases. The injured was carried by the said,person, but before he could reach the hospital, the scooters succumbed to his injuries. In the aforesaid case it appears that the Doctors refused to attend the injured because of prevailing police Rules and the Criminal Procedure Code according to which, any medico legal cases unless the cases are referred to the Doctors of a particular hospital, they are not supposed to treat the injured persons. In the aforesaid case it appears that the Doctors refused to attend the injured because of prevailing police Rules and the Criminal Procedure Code according to which, any medico legal cases unless the cases are referred to the Doctors of a particular hospital, they are not supposed to treat the injured persons. After considering the various aspects and the various provisions of the Criminal Procedure Code and the Police Rules, the Apex Court held that the private Doctors were also obliged to give immediate relief in all injury cases. In my opinion, the facts of the aforesaid case are entirely different, and as such, the principle laid down in the aforesaid case is wholly inapplicable in the instant case. 8. Dr. Hari Gupta who has been approached by the petitioner to transplant the kidney is also present in the court. He has stated that since some of the private Doctors of Jaipur have been arrested and are being prosecuted for kidney transplantation, he has reasonable apprehension that in case he transplants the kidney without authorisation from the Hon'ble Chief Minister or the Health Minister of the State of Rajasthan, he may also be arrested/prosecuted. Since Act No. 42 of 1994 has not been made applicable to the State of Rajasthan, no authority is needed for transplantation of kidney. Moreover, in view of the fact that transplantation of kidney per se is neither prohibited nor illegal nor punishable in the State of Rajasthan, the apprehension in the mind of Dr. Hari Gupta is wholly misconceived and in my opinion in view of the willingness of Doctor himself, no mandamus is called for. The fact whether donor is voluntarily donating his kidney for transplantation or not also does not require any investigation or enquiry inasmuch as Shri Het Ram who is present in Court has stated that he is prepared to donate his kidney in order to save the precious life of his father-in-law. 9. Mr. S.K. Sharma contended that kidney transplantation is an offence punishable under Section 308 Indian Penal Code and as such, the Doctor should not be permitted to transplant the kidney. In order to test the aforesaid submission, I would like to refer to the definition of Section 308 Indian Penal Code, which reads as under : "308. Attempt to commit culpable homicide. In order to test the aforesaid submission, I would like to refer to the definition of Section 308 Indian Penal Code, which reads as under : "308. Attempt to commit culpable homicide. - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act causes death, he would be guilty of culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to 3 years or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to 7 years or with fine, or with both." Culpable homicide has also been defined under Section 300 Indian Penal Code which runs as under: "Culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers death or takes the risk of death with his own consent." Mr. Sharma has submitted that in the case of transplantation of kidney a Doctor under certain circumstances may commit offence under Section 308 Indian Penal Code as the donor takes the risk of death, the Doctor commits offence of culpable homicide not amounting to murder and if the donor after operation of transplantation of kidney survives then also the Doctor commits an offence that is the attempt to commit culpable homicide punishable under Section 308 Indian Penal Code. 10. I have given my considerable thought to the aforesaid submission and I am of the opinion that transplantation of kidney is not punishable under section 308 Indian Penal Code as I have already observed that while transplanting kidney of a patient there may be cases in which the Doctors may cause negligence or such other acts which is not permissible, they may be proceeded with but with no stretch of imagination the transplantation of kidney can be said to be punishable under Section 308 Indian Penal Code and as such, the said argument of Mr. Sharma deserves to be rejected. 11. Lastly, it has also been urged at the bar that since there is no prohibition for transplantation of kidney in the State of Rajasthan and the Doctors of the State are being harassed, the State of Rajasthan may be prohibited from .arresting/prosecuting the Doctors for transplantation of kidneys. Sharma deserves to be rejected. 11. Lastly, it has also been urged at the bar that since there is no prohibition for transplantation of kidney in the State of Rajasthan and the Doctors of the State are being harassed, the State of Rajasthan may be prohibited from .arresting/prosecuting the Doctors for transplantation of kidneys. It is true that though there is no prohibition, but no blanket order can be issued restraining the State of Rajasthan from arresting or prosecuting the Doctors in cases of kidney transplantation, inasmuch as there may be cases where kidney transplantation per se may not be prohibited, illegal or punishable but the other acts connected with the transplantation of kidney may be punishable under the law of the land and in those cases the State cannot be precluded from proceeding against such Doctors. 12. With the observations made above, the writ petition stands finally disposed of at the admission stage. No order as to costs.Petition Disposed of. *******