IN THE HIGH COURT OF DELHI AT NEW DELHI


Reserved on: 20.03.2024
Pronounced on: 22.03.2024
BAIL APPLN. 621/2024

SAMEER MAHANDRU ….. Petitioner

Through: Mr. Dhruv Gupta with Mr. Anubhav Garg, Ms. Yagya Singh, 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.The present application has been filed on behalf of applicant Sameer Mahandru under Section 482 of the Code of Criminal Procedure 1973 (‘Cr.P.C.’) in terms of liberty granted to him vide judgment dated 07.03.2024.

2.The above-captioned bail application was filed by the applicant seeking grant of interim bail on medical grounds, which was dismissed by this Court vide judgment dated 07.03.2024. However,
vide para no. 15 of the said judgment, this Court had granted liberty to the applicant to get the prescribed „Arthroscopic Medial Meniscal Repair‟ surgery rescheduled and thereafter move a fresh application before this Court seeking appropriate directions, i.e. for permission to undergo the required surgery while being in custody of the Jail Superintendent. The relevant portion of judgment dated 07.03.2024 reads as under:

“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.”

3.Learned counsel for the applicant argues that the surgery of the applicant i.e. “Arthroscopic Medial Meniscal Repair surgery”, which was earlier scheduled for 26.02.2024, has now been rescheduled for
19.03.2024 with PAC to be conducted on 18.03.2024, with further advice of rehabilitation and physiotherapy for 6 weeks, inspection of dressing/ suture removal between 2-3 weeks, with rehabilitation program of 6 weeks like stationary cycling, core conditioning, crutch ambulation, RoM, Gait Training, IFT, Anti-gravity treadmill, muscle strengthening on isokinetic machines and then further regimen after 6 weeks of surgery, depending on the status, vide prescription dated 11.03.2024 by Dr. Abhishek Kumar Mishra. It is now submitted that since the counsel for respondent had sought time to file reply to this application and the matter was listed on today i.e. 20.03.2024, the surgery has now been again re-scheduled for 23.03.2024 vide prescription dated 13.03.2024. It is prayed that this Court may direct the jail authorities to take the applicant to VNA Hospital at 1, Navjivan Vihar, Geetanjali Enclave, Malviya Nagar, New Delhi110017, for admission on 22.03.2024, for undergoing the aforesaid
surgery scheduled for 23.03.2024 and allow him to remain admitted in the said Hospital, at least for a period of 6 weeks, for his recovery and post operative care. It is also stated that his parents, wife and
children be also allowed to accompany, assist and remain present with him, during the entire course of his hospitalisation, and postoperative care and that he be further allowed to be given home cooked food, as per the medical advice.

4.Learned Special Counsel appearing on behalf of the Directorate of Enforcement submits that the factum of surgery of the applicant has been verified and this Court may pass appropriate orders as regards the surgery of the applicant in concerned Hospital, under the custody of Jail Superintendent, is concerned.

5.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 Directorate of Enforcement.

6.The case of the applicant is that he has been advised to undergo surgery for his left knee namely „Arthroscopic Medial Meniscal Repair Surgery‟, which is scheduled for 23.03.2024. As already noted above, in judgment dated 07.03.2024 passed in the present bail application, this Court had granted liberty to the applicant to get his surgery rescheduled and approach this Court for seeking fresh direction qua his hospitalisation and treatment in hospital of his choice, though in custody.

7.In judgment dated 07.03.2024, this Court had also made the following observations on the medical condition of the applicant:

“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.”

8.This Court has now gone through the documents placed on record to support the medical condition of the applicant as canvassed in the application. As per his medical prescriptions, the applicant has
been diagnosed with Medial Meniscus tear in left knee and has been advised to undergo surgery for the same, by the doctor concerned i.e. Dr. Abhishek Kumar Mishra. Earlier also, vide order dated 27.04.2023 in BAIL APPLN. 1343/2023, the applicant had been permitted to be admitted for specialised treatment in VNA Hospital, while being in custody.

9.It is well-settled that the right to life encompasses not only the preservation of physical existence but also the quality of life, which includes access to necessary medical treatment and healthcare services. Similarly, the right to health entails the entitlement to adequate healthcare facilities for maintaining one’s physical and health.

10.While adjudicating matters concerning the health and well- being of an accused, the Court is duty-bound to ensure that the accused‟s right to life and the right to health is not violated. These basic human and fundamental rights are not contingent upon one being a common citizen or an accused, but are inherent to every individual, including those accused of crimes.

11.In light of these fundamental principles, the Courts have to adopt a holistic and balanced approach while dealing with cases involving the medical needs of an accused. It is incumbent upon the Court to consider the medical records and documents presented before it, and ensure that the accused receives timely and appropriate medical treatment. Furthermore, the Courts have to exercise their powers judiciously, taking into account the specific medical requirements of the accused, the urgency of the treatment, and the feasibility of providing such treatment within the jail premises or jail
referral hospitals or hospital of choice of accused, whether in custody or by granting bail.

12.Therefore, considering the facts of the case and the medical documents placed on record, this Court is inclined to allow the request of applicant of being admitted to VNA Hospital, Delhi for undergoing Arthroscopic Medial Meniscal Repair Surgery on the following conditions:

a) The applicant be admitted at VNA Hospital, Navjivan Vihar, Geetanjali Enclave, Malviya Nagar, New Delhi-110017 on 23.03.2024, for a period of four (04) weeks. However, the applicant shall continue to be in the custody of Jail Superintendent concerned, and the Jail Superintendent shall ensure that
appropriate and adequate security is provided/deputed in the Hospital since the accused will
continue to remain in judicial custody though under treatment in the Hospital.

b)The Jail Superintendent concerned shall make arrangements to shift the applicant in an ambulance to the said Hospital.

c) The Medical Superintendent/In-Charge of VNA Hospital will furnish a report to this Court regarding the medical status of the applicant and the need to continue treatment or hospitalisation and also provide a copy of the same to the Enforcement Directorate, immediately on expiry of period of
four weeks.

d) It is also ordered that the entire expenses of medical treatment, hospitalisation, security, and other incidental expenses incurred on the treatment shall be borne by the applicant.

e) During hospitalisation, the parents, wife and children of the applicant are permitted to meet him between for a total period of two hours in a day, subject to the meeting hours and applicable rules of the hospital.

g) The applicant shall not be allowed to use any mobile phone/telephone.

h) The family members of the applicant shall also not be allowed to carry phone with them, while meeting the applicant.

i) The family members of the applicant may provide him home-cooked food, if so allowed by the doctor concerned.

j) The learned counsel for the applicant will be allowed legal interview with the applicant, as per jail manual and rules.

13.In above terms, the present application stands disposed of.

14.Copy of this judgment be forwarded to the concerned Jail Superintendent forthwith.

15. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J MARCH 22, 2024/at Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.03.2024 19:12:27 BAIL APPLN. 621/2024