TMI Blog2023 (3) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 CrPC. 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? - HELD 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 - The Hon ble Supreme Court in PAWAN @ TAMATAR VERSUS RAM PRAKASH PANDEY ANR. [ 2002 (5) TMI 890 - SUPREME COURT ] have noted that every sickness does not ipso facto entitle an accused to medical bail. In the present case, the Applicant is not sick to be granted bail under proviso to Section 45(1) PMLA. The ailments that the Applicant is suffering from are not grave or life threatening that entitle him to bail on medical grounds. Reliance placed upon the opinion of the medical board that has opined that the Applicant is stable and can be treated in Tihar Jail Hospital - granting bail on every sickness will render the proviso to section 45(1) PMLA otiose. The proviso should only be invoked in cases where the sickness suffered by the Applicant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legations 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 the sole intent to launder and change colour of these loan funds from liabilities to assets. 6. The role ascribed to the Applicant in the prosecution complaint is that the Applicant was a director, guarantor and promoter of SBFL. The Applicant in cohorts with other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the other hand, sickness is quality of having a definite disease/sickness that may be medically diagnosed and has a prescribed course of action based on known/available modes of treatment and dependent on medical interference. c. He states that sickness and infirmity does not denote and can never m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant 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 application needs to be allowed. (ix) He has further relied upon the following judgments: a. Radhika Kapoor v State and Ors 2016 SCC OnLine Del 6652 while defining infirm has observed as under: 5. To understand as to who can be termed mentally infirm, a reference to the definition of the word infirm which finds m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Board comprising of seven doctors, constituted by Civil Surgeon, Ambala, I find that case of the petitioner would be covered under proviso to Section 45(i) of PMLA as he is a sick person requiring urgent medical treatment, especially in view of the fact that while in custody for a period of about 03 months, he was repeatedly advised medical care, as not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson. 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 Jail under medical treatment will not be harmful to his health. I am, therefore, of the view that the sickness from which Bhagwan Singh respondent is suffering is not of the kind envisaged by the aforesaid provision of law. (emphasis supplied) (v) He has also drawn my attention to the judgment of Sridhar Vandayar Anr. v. The State rep. by Inspector of Police, CB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Mr. Hossain lastly contends that section 45 PMLA is a mandatory provision and cannot be dispensed with in the present case. He draws my attention to the landmark judgment of Vijay Madanlal Choudhary and Ors v. Union of India and Others 2022 SCC OnLine SC 929 wherein the Hon ble Supreme Court held as under: 398. Thus, it is well settled by the various dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who is below sixteen years of age, or woman, or sick or infirm 33. A bare perusal of the Statement of Objects and Reasons of PMLA goes to show that inclusion of the above conditions for grant of bail as a proviso to section 45(1) of PMLA elucidates the legislature s intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or infirm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable 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 by way of a proviso, has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. The power under Section 439 of the Code is exercised against an order rejecting an application for bail and against an offence exclusively decided by the Court of Sessions. There cannot be a divided application of proviso to Section 437, while exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 04/1/2023, the inmate patient was referred to GB Pant hospital GI Surgery dept. wherein he was advised blood investigation, plan lap. Cholecystectomy, review PAC and review after getting fitness and clearance. At present, the inmate patient is stable and all the medicines are being provided from jail Dispensary. 35. The medical report dated 13.02.2023 reads as under:- का ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that he is case of: -Hypertension. -Morbid Obsesity (sleeve gastrectomy done) -B/L varicose veins lower limbs -Siezure disorder -Mild behavioural disorder(? BPAD) -Cholelithiasis Board members are of the opinion that he is stable with the treatment for all his medical comorbidites and can be treated in Tihar Jail Hospital. For cholelithiasis elective s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous 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., infirm in the proviso to section 45(1) PMLA. 46. Since sick and infirm are separated by or , consequently, a person who, though, not sick but infirm would still be entitled to seek the benefit of the exception in the proviso to section 45(1) PMLA and vice-versa. 47. Mere old age does not make a person infirm to fall within section 45(1) proviso. Infirmity is defined as not something that is only relatable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 suggestive of defused age related cerebral atrophy with white matter ischemic demyelination. (Copy enclosed-3) (emphasis supplied) 55. In view of the aforesaid, a perusal of the medical records of the Applicant shows that his seizures have become more frequent than before, that makes him more vulnerable to injuries such as hemorrhage, and for which the dosage of medication has been increased. 56. Thus, the aforementioned infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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