AI Drafter 
TaxTMI 
TaxTMI 
2023 (3) TMI 746
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....arrested in the present case on 04.07.2021. He was on interim bail for a period of 31 days from 10.06.2022 to 11.07.2022 on medical grounds. The application for extension of interim bail was rejected and pursuant thereto, the Applicant surrendered. 4. As per the allegations levelled in ECIR, on 31.12.2020, CBI registered an FIR bearing R.C. No. 0742020E0014 u/s 120B r/w 420, 476, 468, 471, 13(2) r/w 13(1)(d), PC Act on the complaint of State Bank of India against the Applicant and other Accused Persons regarding bank fraud committed during 2013-2017. 5. The allegations are that Shakti Bhog Foods Limited (SBFL), where the Applicant was one of the directors, promoter and guarantor and had availed of various loan facilities from a consortium of banks led by State Bank of India from 2006 onwards, and in order to acquire more loan funds from Banks, the company resorted to round tripping and money laundering using its various group companies as platforms. SBFL had rotated its funds to group companies in the form of share investment, share application money, share premium, inter corporate deposits, compulsory convertible debentures, loans and advances and inter group purchases with ....
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....B) super morbid obesity, C) Gallbladder stone, D) hernia, E) hyper tension, F) diabetes mellitus, G) osteoarthritis of knee, H) obstructive sleep apnea, I) benign prostatic hyperplasia, J) varicose veins because of which his legs are largely swollen. K) undergone bariatric fusion surgery because of which 80%of his stomach had been removed. (iii) He states the Applicant is suffering from various ailments and his condition is deteriorating due to old age. He states that there is no definition of "sick or infirm" under PMLA. The law provides that the twin condition of Section 45(1) PMLA may not apply to a person who is sick or infirm. The Applicant due to his old age as well as numerous ailments falls within the category of sick and infirm person and is therefore, entitled to bail. (iv) He has stated that Section 45(1) of PMLA carves out an exception for sick and infirm. He states the following: a. Infirmity is the frailty and feebleness that comes mostly with advanced age/rare disorders/auto immune diseases/social factors like malnutrition/lack of healthcare/premature birth. b. On....
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....cial and intensive treatment and care that the applicant is in need of. ... 44. The fact that the applicant is suffering from these ailments from the year 2001 is also not of much help to the respondents' as it is a given fact that ailments aggravate with age. In 2001, which is 21 years ago, the applicant would have been younger, healthier and in a better position to meet the requirements of his frail health. With age, the response, the resistance, the resilience and the capacity of the body to fight ailments and recuperate efficaciously, decreases. I have already discussed that ailments which, coupled with old age brings the applicant within the purview of "infirm person". The level of care, attention, minute to minute monitoring, emergent response which the applicant can get from a hospital cannot be provided at the jail. ... 46. The applicant continues to suffers from serious comorbidities, including but not limited to a serious heart condition and a non-functional kidney, with the other working in a compromised position. Considering that the applicant is aged, sick and infirm, who is suffering from various complicated diseases, the applic....
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....though he states that he is a Chartered Accountant by profession, he is unable to furnish the address where his office is situated or the names of any of his clients. He has taken quite a while to recollect the names of his two daughters. The respondent No. 2 is the younger sister of the respondent No. 3, and is present in Court, but he has not been able to identify her." b. Reliance is also placed on Punjab and Haryana High Court judgment of Lalit Goyal vs Directorate Of Enforcement CRM-M-7039-2022 decided on 8 April, 2022 wherein it was held: "It may be noticed that from both the sides, some of the judgments have been cited with regard to twin conditions laid down under Section 45 of PMLA as well as judgments of the various High Courts either granting or declining to grant bail, however, for the sake of brevity, same are not reproduced here, as case of the petitioner is considered on the ground of 18 of 19 his health conditions, which suggest his permanent multiple ailments and continuous treatment from specialized doctors. After hearing learned counsel for the parties and going through the medical record of the petitioner, which is based on a report of Medical ....
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....r the age of 16 years. This power reposed in the Magistrate, under the proviso is discretionary in nature, as is indicated by use of the word may. Consequently, such a power has to be exercised in a judicial manner and in accordance with well settled judicial principles. The same is to be exercised in a sparing and cautious manner, under necessary circumstances and after satisfying the judicial conscience as to its proper use. The aspect of sickness when used as a ground to release the accused under the proviso to Section 437(1) Cr. P.C., has been examined by the Hon'ble Supreme Court and various High Courts as can be seen from the following decisions: (1) Pawan alias Tamatar v. Ramprakash Pandey ((2002) 9 SCC 166 : AIR 2002 SC 2224) (supra). In this case the Hon'ble Supreme Court has set aside the order of the Allahabad High Court granting bail to the accused inter alia on the ground that the allegation of ailment of the applicant is not specifically denied. The Hon'ble Supreme Court was of the view that the ailment of the accused was not of such a nature as to require him to be released on bail. It was observed that the accused can always apply to the jail au....
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....medical treatment in hospital amounts to granting of bail under Section 437(1) proviso under irrelevant circumstances." (emphasis supplied) (iv) Mr. Hossain also relies on the judgment of State v. Sardool Singh, 1975 SCC OnLine J&K 27 to argue that the proviso contemplates a level of sickness that involves a risk or danger to the life of an accused person. The relevant paras read as under: "5. I now proceed to the consideration of the second contention of Mr. Sethi regarding the standard for determining the sickness of an accused person. On a true construction of the proviso to sub-section (1) of S. 497 of the Code of Criminal Procedure, it appears to me that it is not every sickness that entitles an accused person to the grant of bail. The sickness contemplated by the proviso is a sickness which involves a risk or danger to the life of the accused person. I am fortified in this view by a decision of the Hyderabad High Court reported as AIR 1952 Hyd 30 : (1952 Cri LJ 873). 6. In the instant case although the Medical Board has, no doubt, stated that Bhagwan Singh respondent is a patient of epilepsy it has categorically opined that his continuance in Jai....
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....s and can be treated in jail. (viii) Mr. Hossain further argues that it is a settled principle of law that if medical treatment can be provided by prison authorities, bail on medical grounds should not be granted. He has emphatically stated that the Applicant in the instant case can be adequately treated in jail. In this regard, he has drawn my attention to State v Jaspal Singh (1984) 3 SCC 555 where it is held as under: "11. In the circumstances, I am of the view that the High Court should not have enlarged the respondent on bail in the larger interests of the State. It is urged that the respondent is a person who has undergone a cardiac operation and needs constant medical attention. I am sure that the prison authorities will arrange for proper treatment of the respondent whenever the need for it arises." (ix) The Learned counsel for the respondent also argues that the Applicant is found to be stable, therefore he should not be enlarged on medical bail. He places reliance on the following judgments: a. Surjeet v. State (Govt. of NCT of Delhi) 2021 SCC OnLine Del 228 b. Karim Morani v. Central Bureau of Investigation 2011 SCC OnLine Del 2967 (x)....
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....t is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, 3[or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs:..." 15. The limited point before this court is whether the Applicant is "sick or infirm" in terms of the proviso to section 45(1) PMLA. 16. To interpret sick and infirm as contemplated in the statute, the legislative intent behind inclusion of proviso to section 45(1) PMLA needs to be seen. 17. I have previously in Devki Nandan Garg (supra) observed: "32. At this juncture, it is imperative to have an overview of the Statement of Objects and Reasons of PMLA, 2002 with respect to "sick and infirm" which reads as under: "In addition to above recommendations of the standing committee the Central Government proposes to (a) relax the conditions prescribed for grant of bail so that the Court may grant bail to a person....
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.... LCI reads as under: "L. Exceptions 11.34 Absolute restriction on granting of bail would undermine the right to liberty of the person accused of an offence. Therefore, when certain supervening and inexorable circumstances exist, bail must be allowed. If the person accused of an offence is suffering from serious life-threatening ailment and requires medical help which may not be available in jail hospitals, then the bail shall be granted." 23. The Apex Court in Satender Kumar Antil v. Central Bureau Of Investigation & Anr. (2022) 10 SCC 51 has described the proviso to section 437 CrPC as a welfare legislation and carved out the purpose of the said proviso by stating the following: "78. Section 437 of the Code empowers the Magistrate to deal with all the offenses while considering an application for bail with the exception of an offense punishable either with life imprisonment or death triable exclusively by the Court of Sessions. The first proviso facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm, as discussed earlier. This being a welfare legislation, though introduced ....
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.... stated that he still needs medical treatment or that he has not received proper medical treatment from the jail authorities. ...... 50. As observed in the various judgments cited above, mere admission of an accused to a hospital for medical treatment does not entitle an accused to obtain bail under the proviso to Section 437(1) Cr. P.C. In fact as observed earlier the said proviso cannot be resorted to in all cases of sickness. The Court must assess the nature of sickness and whether the sickness can be treated whilst in the custody or in government hospitals. The Court should also be satisfied that a case is made out by the Respondent Accused by himself or through the doctors attending to him that the treatment required to be administered to the Respondent Accused, considering the nature of his ailment cannot be adequately or efficiently be administrated in the hospital in which he is at present and that he needs a better equipped or a speciality hospital...." (emphasis supplied) 28. The court in Sardool Singh (supra) held, "The sickness contemplated by the proviso is a sickness which involves a risk or danger to the life of the accused person". 29. A c....
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....rst date on which it is recorded as, - 'not on medication' is on 25.06.2020 and the same is continued thereafter. The observations extracted above would indicate that the doctor has categorically recorded that the blood pressure has been controlled with lifestyle modification and the BP control remains adequate. When the opinion has been tendered by the competent medical experts, merely because the Military Secretary is not satisfied with the same will not entail either the AFT or this court to sit as a medical expert and reassess the opinion given by the Medical Board." (emphasis supplied) 34. In the present case, as per the medical report of the applicant dated 05.01.2023, it has been opined as under: "On 05/12/2022, the inmate patient was admitted at DDU Hospital surgery dept. for the complaint of pain abdomen. Diagnosed as a case of acute cholecystitis with Hypertension with epilepsy with varicose veins thereafter was discharged on oral medication on 08/12/2022. On 19/12/2022, the inmate patient was referred on emergency to DDU Hospital in view of raised blood pressure wherein he was examined and was advised medicine accordingly. On 04/1/2....
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....tendant on regular basis for timely medications. This is for your information and onward submission." 36. This Court directed that the applicant needs to be examined by a Board of Doctors who will opine whether the applicant requires continuous psychiatric observation and medicines and whether the applicant can be provided adequate treatment from jail authorities. 37. Pursuant to the said direction, medical report dated 11.02.2023 has been given by a board of doctors consisting of a physician, neurologist, psychiatrist and surgeon wherein it has been opined as under:- "GOVERNMENT OF INDIA DR. RAM MANOHAR LOHIA HOSPITAL, ATAL BIHARI VAJPAYEE INSTITUTE OF MEDICAL SCIENCES, NEW DELHI-110001 F. No. Add ND-11/16/2023-0/o Addl. MS(ND)-Dr. RMLH Inmate Kewal Krishan S/o Sh. Jugal Kishor brought by head constable Ramesh, Belt No. 7794. Was examined on 09/02/2023, 11.45 am by medical board comprising of • Dr. Vipin Mediratta -Physician • Dr. Jyoti Garg -Neurologist • Dr. R.P. Beniwal -Psychiatrist • Dr. Atul Jain - Surgeon After reviewing the medical records & examining the inmates it was observed t....
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....e Medical Reports in Lalit Goyal (supra) did not give a categorical finding that the Applicant therein is stable. Further the report opined that the Accused therein required "further treatment and consultation at a wellequipped higher hospital/Centre." That is not the situation in the instant case. 42. The present case is also distinguishable from Devki Nandan Garg (supra) as the Applicant therein was suffering from serious comorbidities, surviving on one kidney which was only 30% functional, was suffering from a heart condition and hence, was on a pacemaker and had also, contracted new diseases while being incarcerated rendering the Applicant therein sick and infirm within the meaning of the proviso to section 45(1) PMLA. 43. In the instant case, it is evident from the medical board's report that the condition of the Applicant is stable, he is not suffering from lifethreatening ailments and can recuperate with the medical facilities available in jail. 44. Thus, for the aforesaid reasons, I am of the view that the Applicant cannot be termed to be 'sick' to fall within the proviso to section 45(1) PMLA. 45. However, the legislature has carved out another category i.e., '....
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....d requires attendant on regular basis for timely medications." (emphasis supplied) 52. The aforesaid shows that the Senior Medical Officer on 13.02.2023 has opined that the Applicant needs an attendant on a regular basis for timely medicines. He has suffered multiple episodes of seizures. The Medical Board has stated that the Applicant is stable with the medication. 53. The logical inference drawn from the above is that the Applicant is not in a position to take his regular dosage of medicines which is a condition precedent for his survival from the ailments. The attendant is required as the applicant has had multiple episodes of seizures and in event of a seizure, timely medication is of primary importance. 54. In the present case, it is observed that the medical report of the Applicant dated 28.01.2023 has stated as under: "The inmate patient submitted photocopies of document related to Seizure disorder from Deep Chand Bandhu govt. Hospital / Bhagwan Mahavir Govt. Hospital /Chawla Nursing Home and Dr. Praveen Bhatia (Ganga Ram Hospital) and Medical document shows that he has suffered Episodes of convulsion outside the jail (period of interim bail). MRI suggestiv....