IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01.03.2024
Pronounced on: 07.03.2024
BAIL APPLN. 621/2024 & CRL.M.A. 5794/2024 & 6590/2024
SAMEER MAHANDRU ….. Petitioner
Through: Mr. Kirti Uppal, Senior Advocate with Mr. Dhruv Gupta, Mr. Anubhav Garg, Ms. Yogya Singh, Mr. Indhirajith Prabhakaran M. And Mr. Aditya Raj, Advocates
versus
DIRECTORATE OF ENFORCEMENT ….. Respondent
Through: Mr. Zoheb Hossain, Special Counsel for ED with Mr. Vivek Gurnani, Mr. Kartik
Sabharwal and Ms. Abhipriya Rai, Advocates
CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA JUDGMENT
SWARANA KANTA SHARMA, J.
1.By way of present application filed under Section 439 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) read with Section 45 and 65 of the Prevention of Money Laundering Act, 2002 („PMLA‟), the applicant had initially sought extension of an interim bail which was granted to him by the learned Trial Court. Later, since the applicant had surrendered before the jail authorities subsequent to his extension of interim bail application getting dismissed by the learned Trial Court, an application under Section 482 of Cr.P.C. i.e. Crl.M.A. No. 5794/2024 was preferred on behalf of applicant seeking amendment of the prayer in the present bail application and for seeking interim bail for a period of one month in ECIR/HIUII/14/2022 dated 22.08.2022 registered by the Directorate of Enforcement under Sections 3 and 4 of PMLA in Complaint Case No. 31/2022.
2.Brief facts, necessary for the adjudication of the present interim bail application, are that the applicant was arrested by the Directorate of Enforcement on 28.09.2022 and he was remanded tojudicial custody vide order dated 10.10.2022. Since then, the applicant has been in judicial custody, except for the period of his interim bail i.e. from 28.02.2023 to 01.05.2023, from 12.06.2023 to 04.09.2023 and from 05.01.2024 to 17.02.2024. On 20.12.2023, the applicant had filed an interim bail application before the learned Trial Court seeking interim bail for a period of four weeks on the ground of medical condition of his wife who was suffering from “acute calculus cholecystitis” in her gall bladder and had been advised to undergo a “laparoscopic cholecystectomy” i.e. gall bladder removal surgery. Vide order dated 05.01.2024, the present applicant was granted interim bail for a period of two weeks. However, since the surgery of the wife could not be performed on 16.01.2024, the interim bail of the applicant was again extended till 22.01.2024 vide order dated 18.01.2024 passed by the learned Trial Court. On 22.01.2024, the gall bladder removal surgery was performed on the wife of the applicant and, thus, the interim bail of the applicant was extended till 09.02.2024 by the learned Trial Court. The applicant had then instituted a fresh regular bail application before the learned Trial Court and on 08.02.2024, he had also moved an application seeking interim bail till the disposal of his regular bail application. The interim bail of the applicant was eventually extended till 13.02.2024 and then till 15.02.2024 by the learned Trial Court. On 16.02.2024, the interim bail application preferred by the applicant was dismissed by the learned Trial Court and he was directed to surrender on 17.02.2024 and, therefore, the present bail application was filed before this Court seeking extension of interim bail for a
period of one month, and the prayer was later modified to grant of interim bail for a period of one month.
3.Learned Senior counsel appearing on behalf of the present accused/applicant argues that the ultrasound report dated 07.02.2024 and CT Scan report dated 13.02.2024 as well as other medical documents would clearly reveal that the wife of the applicant is absolutely unfit, and post her surgery which was conducted on 22.01.2024, she has been diagnosed with “acute pancreatitis” and has also developed other post surgery complications and the applicant must be allowed to take care of his ailing wife. It is further argued by the learned Senior counsel that while the applicant was on interim bail during this period, his medical condition had also deteriorated and he had got conducted an MRI of his left knee on 30.01.2024 in which it was revealed as follows: “Grade III Tear Posterior Horn of Medial Meniscus with Parameniscal cyst. Grade II Tear MCL. Grade I Changes ACL”. It is further argued that the applicant‟s doctor had advised him to avoid excessive knee bending and further to undergo surgery for his left knee namely “Arthroscopic Medial Meniscal Repair Surgery” which would constitute his 6th surgery/ medical procedure in the span of last one year. It is further submitted that the said surgery of the applicant was scheduled to be conducted on 26.02.2024, but the same could not be performed as the applicant was directed to surrender on 17.02.2024 since his interim bail was not extended by the learned Trial Court. It is also pointed out that in a previous medical report dated 04.10.2023, filed before the learned Trial Court by the jail authorities, the medical condition of the applicant qua is left knee was acknowledged. In these circumstances, it is prayed that interim bail be granted to the applicant since his and his wife‟s medical condition is severely compromised.
4.Learned Special Counsel appearing on behalf of Directorate of Enforcement opposes the present interim bail application and argues that out of the total custody period of about 16 months, the applicant has already remained on interim bail for more than 5 months on medical grounds. It is argued that when the learned Trial Court had granted interim bail to the applicant on 05.01.2024 a condition was imposed on the applicant that he shall not seek any extension of interim bail on this ground, however, the applicant had not informed that the learned Trial Court on time about non-performance of the surgery of his wife so as to misuse the liberty and to seek an extension of the interim bail. It is stated that the applicant has remained on interim bail for a period of around 43 days on the grounds of surgery of his wife and simply because his wife has to now undergo some further medication or tests or may require rehospitalization in future, the applicant cannot be enlarged on interim bail for an indefinite period, since the needs and requirements of his wife can now be well taken care of by his parents or their other relatives. It is further argued that this Court in case of Sameer Mahandru v. Directorate of Enforcement 2023 SCC Online Del 6680 had discussed in detail the law on grant of interim bail on medical grounds in cases such as present one, and had dismissed the bail application of the present applicant on medical grounds. It is argued that the applicant is not suffering from any life threatening disease or medical condition for which he is again required to be enlarged on interim bail, and therefore, the present application ought to be dismissed.
5.Learned Senior counsel appearing on behalf of the applicant, in rebuttal, submits that without prejudice to his arguments advanced for seeking interim bail in this case, in case this Court is not inclined to grant interim bail to the applicant, he may be allowed to be taken to hospital of his choice for the purpose of performing surgery of his left knee, in custody of the jail authorities, so that his medical condition is not deteriorated any further. On this submission, learned Special Counsel for the Directorate of Enforcement submits that he has no objection if the applicant is permitted to be taken to hospital of his choice, in the custody of Jail Superintendent.
6.This Court has heard arguments addressed by learned Senior counsel for the applicant as well as learned Special Counsel for the respondent, and has gone through the material placed on record.
7. The first limb of argument advanced on behalf of applicant is that the wife of the applicant has undergone a surgery of gall bladder and she requires post-operative care, moreso since there were some complications that she had suffered after the surgery. It is further the case of the applicant that his wife has also been diagnosed with “acute pancreatitis”. The operative portion of the impugned order, in this regard, reads as under:
“16. Though, extensive arguments have been addressed from both sides for and against the plea for further extension of interim bail of the applicant, but it cannot be ignored that the
applicant is an accused in a serious case of money laundering and his regular bail application stands dismissed by this court due to applicability of twin conditions contained U/S 45 of the
PMLA. Further, it can also be seen from record that during the total period of custody of applicant in this case which is stated to be around 16 months, he has been on interim bail on one or
the other ground for around 5 months. The interim bail to applicant vide previous order dated 05.01.2024 of this court was granted for a specific purpose i.e. the above surgery of
his wife, which now stands already performed on 22.01.2024 i.e. around 25/26 days prior to this order. Hence, simply because some post surgery complications have arisen, which can certainly be managed through medication, the interim bail of applicant cannot be extended again and again and for the purpose of taking care of his wife only.
17. Further, the interim bail of applicant has already been extended at different times and for different durations for or in connection with the above surgery and he has already availed interim bail for a period of around 43 days for the said purpose and it was despite the fact that this court had made it clear in the very first order dated 05.01.2024 that no request for extension of interim bail of applicant shall be entertained by the court. Hence, simply because his wife has to undergo some further medication or tests or may require rehospitalization in future, the applicant cannot be kept on
interim bail for an indefinite period as the said needs and requirements can well be taken care of by his parents or their other relatives.
18. …Again, on considering the alleged grounds for extension of interim bail being sought by the applicant and the documents produced in support thereof, this court also gets a feeling that
the above treatment and tests of his wife have unnecessarily been delayed and stretched so as to seek further extension of interim bail by the applicant and hence, this court is of considered view that no further extension of interim bail to him is warranted in light of the above facts and record.”
(Emphasis supplied)
8.In this regard, this Court is of the opinion that the applicant has already remained on interim bail for a period of about 43 days on the grounds of illness of his wife. The applicant‟s wife has already undergone a surgery for gallbladder removal on 22.01.2024, and the applicant has thereafter remained with his wife, to look after her needs as well as to ensure that she is given appropriate post-operative
care, for about one month. At this point of time, there are no grounds which present any compelling reason to grant interim bail to the applicant, on the ground of medical condition of his wife.
9.Be that as it may, the main argument addressed on behalf of the applicant now is that the applicant has been advised to undergo surgery for his left knee namely “Arthroscopic Medial Meniscal
Repair Surgery”.
10.In this regard, this Court has gone through the MRI report of the applicant, dated 30.01.2024, in which it has been opined that MR Imaging of the applicant reveals “Grade III Tear Posterior Horn of
Medial Meniscus with Parameniscal cyst. Grade II Tear MCL. Grade I Changes ACL”. In the report dated 30.01.2024, it has been advised to the applicant that he has to undergo review for surgery. Thereafter,
on 16.02.2024, the applicant had again consulted his doctor, and it was advised to him that he needs to be admitted for “Arthroscopic Medial Meniscal Repair Surgery” on 26.02.2024.
11.However, as regards the argument of applicability of proviso of Section 45 of PMLA, it will be relevant to take note of the fact that Section 45 of PMLA provides exceptions to the general rule i.e. the
cases where Special Courts can exercise their discretion de hors the satisfaction of twin conditions. These exceptions are as follows:
a. accused is less than the age of 16 years,
b. accused is a woman,
c. accused is sick or infirm, or
d. if the allegations of money laundering against the accused are of an amount less than one crore rupees.
12.This Court in case of Sameer Mahandru v. Enforcement Directorate, 2023 SCC OnLine Del 6680 had made the following observations on point of a person being entitled to bail under PMLA on grounds of suffering from „sickness‟ or „infirmity‟:
“17. In the case at hand, learned Senior Counsels for the applicant have argued that the applicant herein is „sick‟ and „infirm‟, and thus, should be granted regular bail in the present ECIR.
18. A Co-ordinate Bench of this Court in case of Kewal Krishan Kumar v. Enforcement Directorate, 2023 SCC OnLine Del 1547, while dealing with a case wherein regular bail had been sought under PMLA on medical grounds, had analyzed as to who would qualify as a „sick‟ or „infirm‟ person under the proviso to Section 45 of PMLA, which is also analogous to the proviso under Section 437 of Cr. P.C., and the relevant observations read as under:
“20. In view of the above, a purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford „relaxation‟ to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA.
21. Proviso to Section 45(1) PMLA is analogous to the proviso to section 437 CrPC.
22. Report No. 268 of the Law Commission of India (“LCI”) on bail reforms titled „Amendments to Criminal Procedure Code, 1973 – Provisions Relating To Bail‟ discusses the intent behind inclusion of the proviso in section 437 CrPC. The relevant extract of Report 268, 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.”
***
24. The next question before me is – What is that level of sickness or infirmity that brings an Accused within the parameters of “sick or infirm” as envisaged in the proviso to section 45(1) PMLA?
25. I am of the opinion that when the sickness or infirmity is of such a nature that it is life-threatening and requires medical assistance that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to section 45(1) PMLA.
26. The Hon’ble Supreme Court in Pawan alias Tamatar v. Ramprakash Pandey, (2002) 9 SCC 166 and the Bombay High Court in Mahendra Manilal Shah (supra) have noted that every sickness does not ipso factoentitle an accused to medical bail.
27. The Court in Mahendra Manilal Shah (supra) whilst noting the Apex Court’s decision in Pawan alias Tamatar (supra) observed as under:
“47….(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 authorities to see that he gets the required treatment. It was observed that in the application, the applicant had not 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 combined reading of the PMLA Objects and Reasons, Finance Bill, 2018, the 268th LCI Report and
above mentioned precedents indicates that the proviso to Section 45(1) PMLA is a relaxation for sick or infirm persons provided their sickness or infirmity is so grave that it is life endangering and cannot be treated by jail hospitals.
30. Though no straight jacket formula can be laid down as to what is the level of sickness that a person is to suffer to entitle him to bail under section 45(1) proviso, the thumb rule is that the sickness should be so serious that it is life threatening and the treatment is so specialized that it cannot be provided in the jail hospital. However, this is not an exhaustive parameter and each case will depend on its own peculiar facts and circumstances…” (Emphasis supplied)
19. Further, a Co-ordinate Bench of this Court in Sanjay Jain (in JC) v. Enforcement Directorate 2023 SCC OnLine Del 3519, while relying upon the observations in case of Kewal Krishan Kumar (supra), had also observed that power to grant bail on medical grounds under PMLA is discretionary and must
be exercised in a judicious manner.”
13.In the opinion of this Court, the medical condition of the applicant wherein he has been advised to undergo a surgery of left knee cannot be categorized as „life-threatening situation‟, in terms of discussion above, and the surgery which is to be undergone by the applicant is not of such nature which necessitates the applicant’s release on interim bail only. For the same, the applicant can be taken
to the concerned hospital, for him to undergo the surgery while in custody, as per the scheduled date. Even during the course of arguments, learned Senior Counsel for the applicant had prayed that in case interim bail is not granted to the applicant, he be allowed to get his surgery performed while being in custody, and learned Special Counsel for the Directorate of Enforcement had stated that he had no
objection to this prayer made by the applicant.
14.This Court notes that since the applicant had surrendered on 17.02.2024, after his extension application was rejected by the learned Trial Court vide order dated 16.02.2024, the date which was scheduled for the surgery of the applicant i.e. 26.02.2024 has already passed.
15.Therefore, considering the medical condition of the applicant and medical documents filed on record, this Court is of the opinion that the present applicant can be allowed to undergo the required surgery while being in custody of the Jail Superintendent. However, a perusal of the documents filed on record also reveals that the date of surgery has not been re-scheduled which was earlier scheduled for 26.02.2024. Thus, the applicant will be at liberty to get the date of the surgery rescheduled and thereafter move a fresh application before this Court for seeking appropriate directions.
16.In view of the same, the present petition alongwith pending applications stands disposed of.
17.It is, however, clarified that nothing expressed herein above shall tantamount to an expression of opinion on merits of the case.
18.The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J MARCH 7, 2024/ns Signature Not Verified Digitally Signed
By:ZEENAT PRAVEEN Signing Date:07.03.2024 17:56:15 BAIL APPLN. 621/2024