Dheeraj Wadhawan vs Cbi

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 20th August, 2024 Decided on: 09th September, 2024

+ BAIL APPLN. 2040/2024

DHEERAJ WADHAWAN

..... Petitioner

Through: Mr. Vikas Pahwa, Senior Advocate with Mr. Avishkar Singhvi, Mr. Ashish Verma, Mr. Vijay Kari Singh, Mr. Debopriyo Moulik, Mr. Rohan Dakshini, Mr. Prakhar Parekh, Ms. Janaki Garde, Mr. Vishwajit Singh, Mr. Tejas Popat, Mr. Raghav Dharmadhikari, Mr. Garvil Singh, Ms. Sanskriti Shakuntala Gupta and Mr. Vivek Kumar Singh, Advocates

V

CBI

..... Respondent

Through: Mr. Anupam Sharma, SPP, CBI with Mr. Prakarsh

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 1 11:06:59 Airan, Ms. Harpreet Kalsi, Mr. Abhishek Batra, Mr. Ripudaman Sharma, Mr. Vashisht Rao, Mr. Syamantak Modgill, Advocates

CORAM HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

ORDER

1. The applicant/Dheeraj Wadhawan filed the present bail application

under section 439 of the Code of Criminal Procedure, 1973

(hereinafter referred to as "the Code") read with section 482 of the

Code for grant of bail on medical grounds in CC bearing no.61/2022

arising out of FIR bearing no. RC2242022A0001 dated 20.06.2022.

2. The facts of the case are that RC2242022A0001 was registered by

the respondent/CBI, AC-VI/SIT, New Delhi on 20.06.2022 for

commission of offences punishable under section 120B IPC read with

sections 409/420/477A IPC and under section 13 (2) read with

section 13 (1) (d) of Prevention of Corruption Act, 1988 against M/s

Dewan Housing Finance Corporation Limited (DHFL), Kapil

Wadhawan, Dheeraj Wadhawan i.e. the applicant and others for

having entered into criminal conspiracy to cheat consortium of

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 2 11:06:59 seventeen banks led by the Union Bank of India by inducing

consortium banks to sanction huge loans aggregating to ₹57,242.05

crores approx. and siphoning off and misappropriating significant

portion of the said funds by falsifying the books of account of M/s

DHFL. The accused as named in RC2242022A0001 deliberately and

dishonestly defaulted on repayment of the legitimate dues of the said

consortium banks and caused a wrongful loss of ₹34,926.77 crores to

the consortium lenders during the period w.e.f. January, 2010 to

December, 2019.

2.1 The applicant being the promoter of M/s DHFL along with

accused Kapil Wadhawan were arrested on 19.07.2022 on production

from Lucknow Jail wherein they were in judicial custody in case

bearing RC0062020A0005 for the custodial interrogation and other

investigative purposes. The respondent/CBI after completion of the

investigation filed report under section 173 of the Code on

15.10.2022 against 18 individuals including the applicant and 57

companies/entities for commission of offences punishable under

section 120B IPC read with sections

206/409/411/420/424/465/468/477 IPC and under section 13 (2) read

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 3 11:06:59 with section 13(1) (d) of the Prevention of Corruption Act, 1988 and

substantive offences thereof. The applicant was also arrested vide

RC2192020E0004 in the month of April, 2020 and was in judicial

custody. The applicant was released on interim bail vide order dated

08.12.2023 and subsequently released on regular bail by the Bombay

High Court vide order dated 02.05.2024.

2.2 The applicant in present bail application claimed to be suffering

from multiple comorbidities and chronic ailments including ischemic

heart disease, chronic kidney disease, fluctuating serum creatinine

levels, hypertension, obstructive sleep apnea, obesity etc. The

applicant visited hospitals about 50 times during custody since

26.04.2020 besides multiple hospitalisation and has undergone about

08 surgeries during this period including Microlumbar Disectomy

(Grade 5 spinal surgery in January, 2024), Complex Revision

Decompression Surgery with Pseudo cyst excision and nerve root

release along with L5 S-1 pedicle screw stabilisation with inter body

fusion - (High risk Grade 7 spinal surgery in March, 2024),

cholecystectomy (removal of gall bladder), surgery for removal of

stones, nasal septoplasty, turbinoplasty etc. The applicant was

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 4 11:06:59 granted bail on medical ground by the Bombay High Court but was

denied the medical bail vide order dated 24.05.2024 (hereinafter

referred to as "impugned order") passed by the court of Special

Judge (P.C. Act), CBI-08, Rouse Avenue Court, New Delhi

(hereinafter referred to as "trial court"). The trial court has already

taken cognizance against the applicant vide order dated 26.11.2022

and subsequently a supplementary charge-sheet has already been

filed as such there is no need for physical custody of the applicant in

the present case. The applicant has already been released on bail in

all other cases pending against him. The applicant is stated to have

been suffering from various ailments as detailed in the bail

application since January, 2018 when he was about 38 years old. The

applicant underwent various surgeries.

2.3 The applicant was also permitted by the Special Judge, PMLA at

Mumbai vide order dated 01.06.2021 to be admitted in private

hospital of his choice to obtain appropriate medical treatment. The

applicant was also directed to be re-admitted in the hospital vide

order dated 08.04.2022 passed by the Bombay High Court and also

underwent surgery again in a private hospital. Thereafter, the

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 5 11:06:59 applicant was sent Taloja Jail, Mumbai. The applicant was produced

before the trial court on 19.07.2022 in pursuance of the production

warrant issued on 15.07.2022 and was formally arrested in the

present case on 19.07.2022. The applicant was sent to the judicial

custody on 30.07.2022 which was extended from time to time. The

applicant was admitted to default bail by the trial court vide order

dated 03.12.2022 and the said order was upheld by this Court vide

order dated 30.05.2023.

2.4 The applicant while he was in judicial custody was regularly

taken and admitted to the jail dispensary/hospital for various ailments

as detailed in the bail application. The applicant although released in

the present case on the ground of default bail continues to remain in

judicial custody in Taloja Jail, Mumbai arising out of FIR bearing

RC2192020E0004. The applicant was also admitted in Lilavati

Hospital at Mumbai on 18.06.2023 and was treated for various

ailments. The applicant also filed bail application no.2471/2023

before the Bombay High Court for grant of bail on medical grounds

and the Bombay High Court permitted the applicant to get tested as

well as hospitalised at Lilavati Hospital. The Bombay High Court

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 6 11:06:59 vide order dated 08.12.2023 has granted interim medical bail to the

applicant for 08 weeks for undergoing spinal surgery at Lilavati

Hospital wherein he was admitted on 12.12.2023. The Supreme

Court of India vide order dated 24.01.2024 had set aside the order of

grant of default bail by the trial court and affirmed by this court. The

applicant on 25.01.2024 filed an application bearing IA no.24/2024

seeking interim medical bail before trial court and trial court directed

for medical examination of the applicant and the applicant was

examined by a panel of doctors. The panel of doctors vide report

dated 07.02.2024 while confirming the medical condition of the

applicant noted that the applicant required follow up on an OPD

basis. The trial court vide order dated 08.02.2024 has rejected

application filed by the applicant for grant of interim bail on medical

ground. The applicant challenged the order dated 08.02.2024 before

this Court vide Crl. MC bearing no. 1137/2024.

2.5 The Bombay High Court after considering the reports of the

applicant and interaction with doctors at Lilavati Hospital vide order

dated 22.02.2024 has extended the interim medical bail for a further

period of 06 weeks to enable the applicant to undergo further surgery

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 7 11:06:59 at Lilavati Hospital. The applicant on 01.03.2024 had undergone high

risk grade-7 surgery. The Bombay High Court vide order dated

03.04.2024 further extended the interim bail of the applicant for a

period of 02 weeks. The respondent/CBI also filed the Status Report

dated 09.04.2024 in Crl. MC bearing no.1137/2024. The applicant

withdrew the Crl. M.C. bearing no.1137/2024 which was allowed by

this Court vide order dated 23.04.2024 without any opposition from

the respondent/CBI. The Bombay High Court vide order dated

02.05.2024 after hearing the concerned parties and considering the

medical conditions of the applicant which was admitted and

undisputed by the CBI granted medical bail to the applicant. The

applicant in pursuance of the medical bail was released from the

Lilavati Hospital vide discharge summary dated 02.05.2024 issued by

the Lilavati Hospital. The applicant immediately after order dated

02.05.2024 filed an application bearing IA no.36/2024 for grant of

regular bail before the trial court which was dismissed vide order

dated 10.05.2024 being not maintainable and premature on the

ground that the applicant was not in the custody of the trial court in

the present case and direction was issued to the respondent/CBI to

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 8 11:06:59 arrest and to take the accused in the custody as per the direction given

by the Supreme Court vide order dated 24.01.2024 after 11.05.2024

i.e. after the expiry of the protection given by the Bombay High

Court.

2.6 The applicant thereafter filed Crl. MC bearing no 3849/2024

before this Court to challenge the impugned order dated 10.05.2024

and also seeking the interim bail but the applicant was re-arrested and

due to this reason, the applicant withdrew the Crl. M.C. 3849/2024

filed before this Court vide order dated 17.05.2024. The applicant on

14.05.2024 also filed IA no.42/2024 seeking medical bail along with

interim medical bail but the trial court has rejected the prayer for

interim medical bail and the Jail Superintendent was directed to keep

the applicant in Separate Cell for the time being and was ordered to

be provided with one attendant for 24 hours and was also taken to

Government Hospital for physiotherapy twice a day. The applicant

was order to be shifted DDU Hospital in case of emergency and also

provided with a wheel chair. The applicant was not given the proper

medical attention in the Tihar Jail. The trial court had rejected the

bail application filed by the applicant on the medical grounds vide the

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 9 11:06:59 impugned order dated 24.05.2024 and remanded him to judicial

custody at Tihar Jail. The applicant being aggrieved filed the present

petition and challenged the impugned order on various grounds as

mentioned in the para no.6 of the bail application. It was prayed that

the applicant be released on regular bail in RC 2242022A0001 on

medical grounds. It was also stated that the applicant is not a flight

risk and shall not tamper with the evidence and is also not likely to

influence any witnesses.

3. The respondent/CBI filed the Status Report wherein besides

mentioning the factual background related to the registration of the

RC 2192020E0004 stated that the applicant was released on regular

bail by the Bombay High Court vide order dated 02.05.2024. The

applicant during judicial custody in the above-mentioned RC was

admitted in Kokilaben Hospital wherein he met with co-accused Ajay

Nawandar and others without permission of the court and also in

further the criminal conspiracy and attempted to dispose of the

paintings acquired from the diversion of the proceeds of crime.

3.1 The Supreme Court has directed the constitution of medical board

for evaluation of the applicant vide order dated 03.11.2022 passed in

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 10 11:06:59 IA no.8089/2022 in Criminal Appeals bearing nos.701-702/2020

titled as Enforcement Directorate Government of India V Kapil

Wadhawan & another. The Medical Board constituted at AIIMS

after examining of medical documents and evaluation of the applicant

and other investigation opined that the applicant requires regular,

periodic follow up with the respective specialist on an outpatient

basis for his ongoing condition and can be treated in jail. It was

further opined that there is no indication for his hospitalisation as on

date.

3.2 The applicant was ordered to be released on statutory bail under

section 167 of the Code passed by the trial court and said order was

affirmed by this Court in Crl.M.C.6544/2020 titled as Central

Bureau of Investigation V Kapil Wadhawan & another vide order

dated 30.05.2023. The applicant during the period with effect from

19.07.2022 till 30.05.2023 did not seek any relief on the medical

ground in the present case. The applicant after confirmation of the

statutory bail was shifted to Mumbai in connection with RC

2192020E0004 and was shifted to Lilavati Hospital for medical

treatment in judicial custody. The applicant was released on interim

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 11 11:06:59 bail for his medical treatment vide order dated 08.12.2023 passed by

the Bombay High Court in Bail Application no. 2471/2023 titled as

Dheeraj Wadhawan V Central Bureau of Investigation &

another. The Supreme Court in Criminal Appeal bearing no

391/2024 titled as Central Bureau of Investigation V Kapil

Wadhawan & another vide order dated 24.01.2024 has cancelled

the Statutory bail granted to the applicant. The applicant on

25.01.2024 filed an application before the trial court under first

proviso to section 437(1) of the Code read with section 439 of the

Code for grant of bail on medical ground and the trial court vide

order dated 30.01.2024 directed the constitution of Medical Board of

the doctors from AIIMS to examine the medical condition of the

applicant. The medical board submitted the report dated 06.02.2024

wherein opined the applicant requires follow up with the respective

specialists on an outpatient basis for his ongoing conditions but there

was no indication for the hospitalisation as on date. The trial court

vide order dated 08.02.2024 has dismissed the application filed under

first proviso to section 437(1) of the Code read with section 439 of

the Code for grant of bail on medical grounds. The applicant filed

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 12 11:06:59 Crl.MC. 1137/2024 titled as Dheeraj Wadhawan V Central

Bureau of Investigation wherein no relief was granted to the

applicant and hearing was deferred as the applicant was already on

interim bail by the Bombay High Court.

3.3 The applicant despite opined to be treated with respective

specialists on an outpatient basis at the AIIMS, Delhi but Lilavati

Hospital, Mumbai continued to keep the applicant admitted at

Lilavati Hospital and filed various certificates which were not

depicting the real medical condition of the applicant. Lilavati

Hospital decided to discharge the applicant on 17.04.2024 as his

condition was improved and was only required outpatient follow up

for his medical condition. The Bombay High Court vide order dated

17.04.2024 has directed Lilavati Hospital not to discharge the

applicant without the permission of the court. The Bombay High

Court vide order dated 19.04.2024 directed the respondent/CBI not to

take the applicant in the custody without the permission of the Court.

The Bombay High Court was not having the jurisdiction and the

applicant was indulging in the forum shopping. The applicant

withdrew Crl.MC.1137/2024 vide order dated 23.04.2024 passed by

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 13 11:06:59 this Court. The Bombay High Court also extended the protection

given vide order dated 19.04.2024 by one week while granting the

regular bail to the applicant vide order dated 02.05.2024.

3.4 The Bombay High Court was not having the jurisdiction in case

stated to be pending in Delhi. The applicant after grant of regular bail

on medical ground vide order dated 02.05.2024 also got discharged

from Lilavati Hospital vide discharge summary dated 02.05.2024.

The applicant on 06.05.2024 also preferred the application bearing IA

no. 36/2024 under section 439 of the Code read with section 437 and

the proviso 437(1) on medical ground which was dismissed vide

order dated 10.05.2024 and the applicant was ordered to be taken into

custody in compliance of the order dated 24.01.2024 passed by the

Supreme Court of India. The applicant being aggrieved by the order

dated 10.05.2024 approached this Court but was arrested on

13.05.2024. The Directorate of Enforcement filed a prosecution

complaint under section 45 of PMLA Act in December 2019 against

the petitioner and others before the Court of City Civil Court and

Additional Sessions Judge, Greater Mumbai. The applicant moved

another application for grant of bail on medical grounds under

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 14 11:06:59 section 439 of the Code read with section 437 of the Code and first

proviso of section 437(1) of the Code which was dismissed vide

impugned order dated 24.05.2024. The applicant does not fall within

the category of sick person and coupled with his previous conduct

and propensity to commit crime disentitled him to any relief prayed

for by the applicant. The application is liable to be dismissed.

4. It is reflecting that the respondent/CBI registered RC no.

2242022A0001 on 20.06.2022 for commission of offences

punishable under section 120B IPC read with sections 409/420/477A

IPC and under section 13 (2) read with section 13 (1) (d) of

Prevention of Corruption Act, 1988 against M/s Dewan Housing

Finance Corporation Limited, Kapil Wadhawan, Dheeraj Wadhawan

i.e. the applicant and other others for having entered into criminal

conspiracy to cheat consortium of seventeen banks led by the Union

Bank of India by inducing consortium banks to sanction huge loans

aggregating to ₹57,242.05 crores approx. and siphoning off and

misappropriating significant portion of the said funds by falsifying

the books of account of M/s DHFL. The applicant was arrested on

19.07.2022 after being produced from Lucknow Jail wherein the

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 15 11:06:59 applicant was in judicial custody in RC 0062020A0005. The

respondent/CBI after completion of investigation filed the final report

under section 173 of the Code on 15.10.2022 against 18 individuals

including the applicant and 57 companies/entities for the commission

of offences punishable under section 120B IPC read with sections

206/409/411/420/424/465/468/477 IPC and under section 13 (2) read

with section 13(1)(d) of the Prevention of Corruption Act, 1988 and

substantive offences thereof. The applicant was found to have

diverted/misappropriated Rs. 34,926.77 crores.

4.1 The petitioner was also arrested in another RC 2192020E0004 in

the month of April, 2022 and was in judicial custody. The applicant

was released on interim bail vide order dated 08.12.2023 passed by

the Bombay High Court and was subsequently released on regular

bail vide order dated 02.05.2024. The Supreme Court was pleased to

direct the constitution of Medical Board from AIIMS for evaluation

of the applicant vide order dated 03.11.2022 passed in I.A.

no.80949/2022 and criminal appeal nos.701-702/2024 titled as

Enforcement Directorate Government of India V Kapil

Wadhawan & another and as per medical opinion, there was no

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 16 11:06:59 indication of his hospitalisation and the applicant only required

periodic follow up with respective specialists on outpatient basis for

his medical condition.

4.2 The applicant was ordered to be released on statutory bail under

section 167 of the Code vide order dated 03.12.2022 passed by the

trial court and the said order dated was upheld by this court vide

judgment dated 30.05.2023 passed in Crl.MC.6544/202 dated

30.05.2023. The applicant was also shifted to Mumbai subsequent to

the confirmation of the Statutory bail in current R.C no

2192020E0004 and thereafter, shifted to Lilavati Mumbai for his

medical treatment. The applicant was also released on interim bail for

medical treatment by the Bombay High Court vide order dated

08.12.2023 in bail application no. 2471/2023 titled Dheeraj

Wadhawan V Central Bureau of Investigation & another. The

Supreme Court set aside the statutory bail vide order dated

24.01.2024 passed in Criminal Appeal no. 391/2024 titled as Central

Bureau of Investigation V Kapil Wadhawan & another. The

applicant on 25.01.2024 also filed an application before the trial court

under first proviso to section 437(1) of the Code read with section

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 17 11:06:59 439 of the Code for grant of bail on medical ground and the trial

court vide order dated 30.01.2024 directed the constitution of

Medical Board of the doctors from AIIMS to examine the medical

condition of the applicant. The Medical Board submitted the report

on 06.02.2024 wherein it was opined that the applicant requires

follow up with the respective specialists on an outpatient basis for his

ongoing condition and there was no indication of the hospitalisation

as on date. The trial court vide order dated 08.02.2024 dismissed the

application for grant of bail on medical ground. The applicant also

preferred the Crl.M.C.1137/2024 titled as Dheeraj Wadhawan V

Central Bureau of Investigation to impugn the order dated

08.02.2024 and said Crl.M.C.1137/2024 was dismissed as withdrawn

vide order dated 24.04.2024 passed by this Court.

4.3 Lilavati Hospital on 17.04.2024 after considering the improved

medical condition of the applicant decided to discharge him as the

applicant was only requiring outpatient follow up for his medical

treatment. The Bombay High Court vide order dated 07.04.2024

directed the Lilavati Hospital not to discharge the applicant without

permission of the court. The Bombay High Court vide order dated

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 18 11:06:59 08.04.2024 also directed to the respondent/CBI not to take applicant

in the custody without permission of the court. The applicant was

granted regular bail vide order dated 02.05.2024 passed by the

Bombay High Court. The applicant immediately after grant of bail by

the Bombay High Court got discharged himself from the Lilavati

Hospital vide discharge summary dated 02.05.2024. It is also

reflecting that the applicant also preferred an application under

section 439 of the Code read with section 437 and proviso to section

437(1) of the Code on medical ground which was dismissed vide

order dated 10.05.2024 and the respondent/CBI was also directed to

arrest the applicant in compliance of the order dated 24.01.2024

passed by the Supreme Court. The applicant preferred a petition

before this court to impugn the order dated 10.05.2024 and this Court

on 11.05.2024 did not grant any stay against the order dated

10.05.2024. The applicant was arrested on 13.05.2024 and filed

another application for grant of bail on medical ground under section

439 read with section 437 of the Code and first proviso 437(1) of the

Code which was dismissed vide impugned order dated 24.05.2024.

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 19 11:06:59

5. The applicant as stated hereinabove was granted regular bail on

medical ground by the High Court of Judicature at Bombay Criminal

Appellate Jurisdiction in bail application no.2471/2023 vide order

dated 02.05.2024. The perusal of the order dated 02.05.2024 reflects

that the Bombay High Court has considered that the Lilavati Hospital

has opined that hospitalisation is not required but he can be treated on

follow up basis in OPD. The Bombay High Court also referred the

report prepared by AIIMS, Delhi which had visited the Lilavati

Hospital for their own assessment and opined the hospitalisation is

not required but the applicant can be treated on follow up basis in

OPD and by way of physiotherapy but the Bombay High Court had

extended the hospitalisation of the applicant. The Bombay High

Court also observed that the respondent/CBI did not dispute the

ailments of the applicant. The Bombay High Court also referred the

para no.69 of Satender Kumar Antil V CBI, (2022) 10 SCC 51

whereby a duty was cast on the court to satisfy whether the accused is

sick or not. It was further opined that the Supreme Court in Satender

Kumar Antil V CBI has not indicated that in every case, the bail has

to be granted when sickness is taken as a ground which depends upon

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 20 11:06:59 the facts and circumstances of the case. The Bombay High Court also

referred the decision of this court in Devki Nandan Garg V

Directorate of Enforcement, 2022 SCC OnLine Delhi 3086 to

define the word of meaning "Sick". The Bombay High Court has also

considered the various issued related to the medical condition of the

applicant. The relevant portion of the order dated 02.05.2024 is

reproduced as under: -

24. Considering all above circumstances, I feel that it will not be advisable to send the Applicant to jail one discharged from the hospital. But his prayer for medical bail need to be considered. It is matter of the record that he is suffering from various ailments.

25. Considering all the situation, I do not think that follow-

up can be arranged from jail and that too, in case of emergency. So best way available is to grant him medical bail.

26. In view of that I am inclined to allow the application.

6. The trial court passed the impugned order dated 24.05.2024

whereby the prayer of the applicant for grant of bail on medical

ground was rejected. The perusal of the impugned order dated

24.05.2024 reflects that the trial court has preferred not to discuss the

merit of the case since the applicant sought the bail on medical

ground. The trial court has also observed that grant of bail to sick is

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 21 11:06:59 not compulsory in all situation and referred the judgment of this court

passed in Devki Nandan V Directorate of Enforcement, (2022)

SCC Online Del 3086, wherein it was defined that who is and infirm

person.

6.1 The trial court has also observed that a prisoner has right to get

medical treatment but he cannot claim as a matter of right that he

needs treatment only from a particular doctor or particular hospital or

at particular place. The trial court has also observed that word "may"

used in the first proviso of section 437 (1) of the Code which

indicates that the court has discretion to grant bail to sick person only

when he cannot provide sufficient medical facilities either in jail or in

nearby government hospital. The trial court also discussed the present

medical position of the applicant and referred the discharge summary

issued by the Lilavati Hospital which reflects that the applicant was

not well and had undergone some surgery but now he has recovered

from illness and need only OPD consultation from time to time and

the regular physiotherapy etc. The trial court ultimately observed that

the sickness of applicant come to an end and has already recovered

from his illness during the period of interim bail granted by the

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 22 11:06:59 Bombay High Court since 08.12.2023. The trial court has also

observed that the physiotherapy as required by the applicant can be

provided either in the jail hospital or at least in the government

hospitals. It was further observed that DDO hospital which is a

multiple speciality hospital is situated less than 03 km from Tihar jail

where all follow up action as required by the applicant can be

provided and in case of need he can be taken to other hospital. The

relevant paras of the impugned order are reproduced as under: -

12) Record point out that if the accused was falling within the definition of „sick‟ at one time but his sickness had come to an end now. He has already recovered from his illness/diseases during the period of interim bail as granted by Hon‟ble Mumbai High Court with effect from 8-12-

2023. Lilavati Hospital started sending reports to Hon‟ble Mumbai High Court since 2-4-2024 that he has to be taken out from hospital and need only OPD treatment and certain follow ups as mentioned above.

13) The above mentioned follow up advices and physiotherapy as required can be provided either in Jail Hospital or atleast govt. hospitals. DDU hospital, a multi speciality hospital is situated less than a distance of 3 km from Tihar Jail where all follow up as required can be provided. In case of need, accused can be taken to multi speciality hospitals such as G.B. Pant, RML, Safdarjang and AIIMS. His adamant attitude that he needs only treatment from his doctors of Lilavati Hospital cannot be approved when no one can dispute that doctors in big Delhi hospitals are also equally competent and qualified. The arguments advanced that when accused himself is ready to

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 23 11:06:59 pay all the expenses of private hospital, then why govt. exchequer should be burdened cannot be accepted as it is the duty of the State and Jail Authorities to provide free treatment to the prisoner at any cost. Even if the Lilavati Hospital has prescribed certain particular follow up treatment and physiotherapy, then the State and Jail Authorities shall provide the same until the other competent and well qualified doctors/hospital gave different opinion and change the line of treatment.

14) AIIMS hospital is considered as best medical institute in India providing best medical facilities where even VVIP and higher dignitaries gets treatment. Accused if needed can be referred to this hospital also by other referral hospitals or Jail Hospital. Even Hon‟ble Supreme Court in its order passed in case of Asharam Bapu vs. State of Rajasthan MANU/SC/ 0370/2015 highly appreciated the opinions of doctors of AIIMS hospital being the best institute in India.

15) Record shows that previously also accused was examined twice by medical board of doctors of AIIMS who submitted reports dated 9-11-2022 and 7-2-2024 that medical condition of the accused as projected does not require any hospitalisation and his treatment as an OPD patient can be done effectively. Thus, when the accused has already recovered from his problems and his medical conditions are improved to a great extent which leads to the conclusion that he does not fall under the category of „sick‟ now, then his bail can be refused on medical grounds and he can be taken care of in jail itself by Jail Authorities as an OPD patient.

6.2 The trial court in the impugned order also discussed the previous

conduct of the applicant and observed that the applicant was not

having interest to take care his own health or his medical problems. It

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 24 11:06:59 was further observed by the trial court that the applicant during the

stay in Lilavati Hospital has involved in other criminal activity and

misused his private hospitalisation. The trial court also discussed the

judicial decisions regarding grant and decline of bail to the accused

on medical ground. The trial court also discussed the principle of

comity of courts and rules of forum shopping. The trial court also

counter the arguments advanced on behalf of the applicant that once

the applicant was granted medical bail vide order dated 02.05.2024

passed by the Bombay High Court, in that eventuality, the trial court

should have followed the same view and to release the applicant on

bail. The trial court in the impugned order also observed that the

Bombay High Court in order dated 02.05.2024 has not discussed

previous conduct of the applicant regarding his activities, misdeeds

and attempt to tamper with the evidence and to destroy/conceal the

evidence. The trial court also opined that the order dated 02.05.2024

was passed apparently keeping in view the facts that the

applicant/accused was lodged in Taloja Jail, Mumbai at relevant time

which was situated at the distance of 30 km from Mumbai and even

the appropriate follow up facilities required by applicant were not

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 25 11:06:59 there. The relevant portion of the impugned order is reproduced as

under: -

38) Secondly para no. 17 of the order dated 2-5-2024 itself shows that no fresh report of Jail Authorities i.e. Taloja Central Jail had come before the Hon‟ble Mumbai High Court in respect of the availability of facilities of treatment in that jail. Hon‟ble Mumbai High Court in para no. 17 and 20 of its order discussed the various previous orders passed by it in the case of accused as well as of another case and found that that the proper and well equipped medical facilities are not available in Taloja Jail. It is thus clear, that the order dated 2-5-2024 was passed apparently keeping in view the fact that accused was lodged in Taloja Jail in, Mumbai case at the relevant time which is situated at a distance of about 30 km from Mumbai and even appropriate follow up facilities as required by accused were not available there. Moreover, Taloja Jail is comparatively small in comparison to Tihar Jail which is the biggest jail in India. The medical facilities in Tihar Jail are much better than any other jail. Moreover, Tihar Jail is situated almostwithin the heart of Delhi and assessable to different big hospitals at a short time specially multi specialty DDU hospital within 5 minutes in case of emergency being situated in less than 3 km distance. Thus, the grant of bail in Mumbai case by Hon‟ble Mumbai High Court in case pending before Mumbai Trial Court was given in different situation.

6.3 The trial court regarding the allegation of forum shopping

observed that the judicial proprietary demands that once there is

decision of our own High Court then it has to be followed up instead

of decision of any other High Court on the similar facts and

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 26 11:06:59 circumstances which has only persuasive value. The bail application

filed by the applicant by the trial court on the medical ground was

rejected vide order dated 08.02.2024 and subsequent petition before

the High Court to challenge the order dated 08.02.2024 was ordered

to be withdrawn on 23.04.2024 meaning thereby the order dated

08.02.2024 declining the medical bail has become final. The trial

court has also observed that the respondent/CBI has not disputed the

medical condition of the accused existing at one time but opposed the

further hospitalisation of the applicant after receipt of various reports

from Lilavati Hospital. The trial court has also discussed in para

no.43 of the impugned order regarding the prevailing conditions of

Tihar jail. The trial court after considering all facts dismissed the bail

application filed by the applicant on medical ground vide the

impugned order dated 24.05.2024.

7. It is important to refer the Report dated 09.11.2022 submitted by

the Medical Board constituted at AIIMS for medical examination of

the applicant in pursuance of order dated 03.11.2022 passed by the

Supreme Court in IA no.80949/2022 in Criminal Appeal nos.701-

702/2020 titled as Enforcement Directorate Govt. of India V Kapil

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 27 11:06:59 Wadhawan & another. The perusal of the Report dated 09.11.2022

reflects that the meeting of the Board was held on 04.11.2022 in

AIIMS Hospital, New Delhi and applicant was brought by the jail

authorities before the Medical Board along with medical reports. The

applicant was examined by the Board Members and the blood and

imaging investigations of the applicant was done 05.11.2022 and

07.11.2022. The Board also observed that the applicant is known to

have Obesity, Hypertension for past 03 years, Obstructive sleep

apnea requiring CPAP, prolapsed intervertebral disc and lumbar

canal stenosis, chronic peplic ulcer, anxiety, depression, history of

pleural effusion on right side in 2019, recent urinary tract infection

and renal calculus. The Medical Board gave the final opinion which

reproduced as under: -

Opinion: At the point of current assessment, Mr. Dheeraj Wadhwan requires regular, periodic follow up with the respective specialists on an outpatient basis for his ongoing conditions and can be treated in Jail. There is no indication for his hospitalization as on date.

8. The applicant was also examined by the Medical Board constituted

at AIIMS in pursuance of the order dated 30.01.2024 passed by the

trial court in I.A.no.24/2024. The perusal of the Report dated

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 28 11:06:59 06.02.2024 reflects that the Board prescribed medicine the applicant

which is reproduced as under:-

Medicine: The patient complained of fatigue with both upper and lower abdominal pain for several weeks. The patient's vitals were within normal limits and clinical examination was unremarkable. His investigations revealed mildly elevated pancreatic enzymes, creatinine and mildly reduced serum potassium levels. He is presently being treated for hypertension, chronic kidney disease, obstructive sleep apnea, depression and hypokalemia. There are at present no medical issues necessitating continued hospitalization.

9. Lilavati Hospital in Report dated 17.04.2024 prepared under the

signature of Dr. Vinod Agrawal mentioned that the applicant was

under medical care for multiple medical issues including back pain,

cardiac, renal, medical and urological and other conditions. The

applicant has progressed well and can be discharged from Lilavati

Hospital & Research Centre, Mumbai. It was opined that the

applicant can be managed on outpatient basis. The applicant was

advised daily institutional physiotherapy and regular outpatient

follow-up with doctor twice a week due to fluctuating serum

creatinine; for cardiac issues due to irregular pulse and blood

pressure; for back pain; for sleep apnea and respiratory issues. The

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 29 11:06:59 applicant was also advised regular outpatient follow up for

psychiatric medical evaluation and obesity medicine evaluation.

9.1 The perusal of Discharge Summary dated 02.05.2024 reflects that

the applicant was diagnosed with following diseases;-

DIAGNOSIS - L4-L5 AND L5-S1 LUMBAR DISCECTOMY ISCHEMIC HEART DISEASE RECENT DVT CKD WITH ACUTE EXCERBATION MODERATE RESTRICTIVE AIRWAY DISEASE SEVERE OSA SMOKERS LUNG MORBID OBESITY, ESSENTIAL HTN DEPRESSION, NEUROGENIC BLADDER

The applicant besides prescription of large number of

medicines was advised to follow up treatment as outpatient with

different doctors.

10. Sh. Vikas Pahwa, the learned Senior Counsel for the applicant

advanced oral arguments and written submissions were also

submitted on behalf of the applicant. Sh. Pahwa besides referring the

factual background of the case as referred herein above referred the

medical condition of the applicant to reflect that the applicant is sick.

The applicant has multiple co-morbidities and chronic ailments

including Ischemic Heart Disease, Chronic Kidney Disease,

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 30 11:06:59 hypertension, obstructive sleep apnea etc. It is further stated that the

applicant prior to arrest 26.04.2020 in another FIR registered at

Mumbai had undergone emergency angioplasty whereby the stents

were put in his heart and two arteries were found to be more than

80% blocked. The applicant during the custody over the past 04 years

had visited the various hospitals on more than 50 occasions with

multiple periods of hospitalisation. The applicant is having issues

with kidney, spine and heart. The applicant had undergone 08

surgeries during his custody from the period with effect from 2021 to

March, 2024. The applicant after release on interim bail vide order

dated 18.12.2023 granted by the Bombay High Court was admitted in

Lilavati Hospital on 12.12.2023 where he underwent a high risk

Grade 5 spine surgery on 03.01.2024. The applicant during the

extended interim medical bail in terms of the order dated 22.02.2024

passed by the Bombay High Court underwent the Grade 7 surgery on

01.03.2024. Sh. Pahwa further argued that the Bombay High Court

vide order dated 02.05.2024 observed that the applicant requires

constant monitoring and follow up which cannot be arranged in case

of emergency. Sh. Pahwa also referred the discharge summary

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 31 11:06:59 prepared by Lilavati Hospital and stated that the applicant was

prescribed with various follow ups under specialists which may not

be arranged in Tihar Jail. The Bombay High Court vide order dated

22.02.2024 after considering the report dated 07.02.2024 prepared by

the Medical Board constituted at AIIMS extended the interim bail of

the applicant. The Medical Board constituted at AIIMS does not take

care of the renal issues of the applicant. Sh. Pahwa argued that the

respondent/CBI also did not dispute the sickness of the applicant

which was also observed by the Bombay High Court in order dated

02.05.2024.

10.1 Sh. Pahwa also addressed arguments on the issue of the

principle of the medical bail under proviso to section 437 of the

Code. He argued that the proviso to section 437 of the Code provides

that a person may be released on bail if he is sick or infirm and this

proviso does not provide that if an accused cannot be treated in jail,

only then, he should be granted medical bail. If the vitals of the

applicant are stated to be stable and he does not require

hospitalisation, it does not meant that the applicant is not sick and in

support of his arguments cited Satender Kumar Antil V CBI,

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 32 11:06:59 (2022) 10 SCC 51 and Devki Nandan Garg V Directorate of

Enforcement, 2022 SCC OnLine Del 3086. The applicant cannot be

treated in Tihar Jail as per the required monitoring mentioned in the

discharge summary of Lilavati Hospital. It was also stated that in

Tihar Jail, the medical facilities are inadequate and there is no proper

facilities of physiotherapy and creatinine monitoring. Sh. Pahwa

referred Delhi High Court Legal Services Committee V Govt. of

NCT of Delhi, W.P.(C)16679/2022 decided by the Division Bench

of this Court vide order dated 23.08.2023 to highlight the prevailing

conditions in Tihar Jail wherein it was observed that the inmates of

the Tihar Jail are bereft of essential amenities included drinking

water and functional toilet and argued that Right to Life stands

paramount amongst the human rights even for persons under trial.

10.2 Sh. Pahwa on the issue of Principle of Comity of Courts

argued that this principle entails mutual respect for a decision of a

court and since the Bombay High Court being a Constitutional Court

after considering medical condition of the applicant has granted

medical bail to the applicant then judicial propriety and Principle of

Comity of Courts requires that the trial court should follow and

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 33 11:06:59 respect the decision vide order dated 02.05.2024 passed by the

Bombay High Court. Sh. Pahwa in support of his arguments cited

Surya Vadanan V State of Tamil Nadu, (2015) 5 SCC 450 and

Tamilnad Mercantile Bank V S. C. Sekar, (2009) 2 SCC 784. Sh.

Pahwa further argued that the dismissal of the bail application on

medical ground by the trial court vide order dated 24.05.2024 was in

complete disregard of the Principle of Comity of Courts and the trial

court sat as an appellate court over the finding of the Bombay High

Court vide order dated 02.05.2024. The trial court has wrongly

denied the benefit of Principle of Comity of Courts as the trial court

found the applicant indulgent in forum shopping.

10.3 Sh. Pahwa regarding the allegations of misuse of liberty

against the applicant argued that these allegations have been levelled

only to create prejudice against the applicant and should not have

been considered by this Court. There is no specific allegation against

the applicant regarding the tampering with evidence and his past

antecedents do not have any relevance in context of the present bail

application which is filed on medical ground and not on merits. He

further argued that the trial court has erred in rejecting the medical

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 34 11:06:59 bail application of the applicant once it was granted by the

Constitutional Court i.e. the Bombay High Court on medical ground.

The respondent/CBI has not disputed the medical condition of the

applicant but the trial court without any justified reasons has raised

doubts on the ailments of the applicant. It was further argued that the

trial court has erred in holding that the applicant has already

recovered from his illness which is not supported by any medical

report. The applicant is still sick and the legal provisions as per the

proviso to section 437 of the Code are applicable to the applicant.

The applicant has a right to be treated from the doctor of his choice.

Sh. Pahwa further argued that the respondent/CBI has cited about 650

witnesses in the charge-sheet and the documents are running over 10

lakhs pages and the accused which are named in the charge-sheet are

more than 100. The trial is not likely to be completed in near future

and in support of his claim cited Manish Sisodia V Directorate of

Enforcement, 2024 SCC Online SC 1920. Sh. Pahwa argued that the

present petition be allowed and the applicant be released on medical

bail after setting aside the impugned order passed by the trial court.

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 35 11:06:59

11. Sh. Anupam Sharma, the SPP for the respondent/CBI advanced

oral arguments and also submitted written submissions. It is stated

that M/s DHFL through its promoters i.e., Kapil Wadhawan and

Dheeraj Wadhawan i.e. the applicant took loans and credit facilities

from consortium of seventeen banks and misappropriated Rs.

34,926.77 crores (approx.) by forming 87 shell companies in the

name of their employees, associates, relatives and friends and the

funds were diverted from M/s DHFL to these shell companies

without any documentation. The respondent/CBI after completion of

investigation filed report under section 173 of the code on 15.10.2022

against 18 individuals including the applicant and 57

companies/entities for commission of offences punishable under

section 120B read with sections 206/409/411/420/424/465/468/477A

IPC and under section 13(2) read with section 13(1) (d) of the

Prevention of Corruption Act, 1988 and substantive offences thereof.

The respondent/CBI subsequently filed a supplementary charge sheet

against 22 individuals including the applicant and 12

companies/entities. The Supreme Court vide judgment dated

24.01.2024 pertaining to RC bearing no. 2242022A0001 titled as

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 36 11:06:59 CBI V Kapil Wadhawan & another directed that the applicant and

the co-accused Kapil Wadhawan be taken into custody.

11.1 The applicant is seeking grant of bail on medical grounds

which was declined by the trial court vide the impugned order dated

25.05.2024. The trial court vide order dated 30.01.2024 directed for

constitution of a Medical Board of AIIMS, New Delhi for physical

examination of the applicant and submitted Report dated 06.02.2024

wherein it was opined that the applicant required to follow up on out-

patient basis and the trial court after considering said Report

dismissed the application for grant of bail on medical grounds vide

order dated 08.02.2024. The applicant challenged said order before

this court vide Crl. MC bearing no. 1137/2024 titled as Dheeraj

Wadhawan V CBI but the applicant was not granted any relief and

respondent/CBI was not restrained form arresting the applicant.

However Bombay High Court on 19.04.2024 directed the

respondent/CBI not to take the applicant into custody without its

permission despite the pendency of the Crl. MC bearing no.

1137/2024 before this court and as such the applicant indulged in

forum shopping. The applicant after grant of interim order from the

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 37 11:06:59 Bombay High court which had no jurisdiction withdrew the Crl. MC

bearing no. 1137 of 2024 pending before this court on 23.04.2024.

The Bombay High court was having knowledge about the fact that

this court at Delhi was having jurisdictional authority to deal with the

said issue of the applicant and the applicant was not given any relief.

The applicant again sought bail under section 439 of the Code read

with section 437 of the Code and proviso to section 437 of the Code

on medical ground which was dismissed vide order dated 10.05.2024

and the applicant challenged said order by filing Crl. MC bearing no

3849 of 2024 before this court but no interim relief was granted to the

applicant. The applicant withdrew Crl. MC 3849 of 2024 on

17.05.2024. The applicant was arrested on 13.05.2024 in present case

and filed bail application under section 439 of the Code read with

section 437 of the Code and proviso to section 437(1) of the Code

which was dismissed vide impugned order dated 24.05.2024. The

applicant withdrew petitions bearing no 1137 of 2024 and 3849 of

2024 and as such present petition which is filed on similar grounds is

not maintainable.

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 38 11:06:59 11.2 Sh. Sharma regarding Principle of Comity of Courts argued that

the applicant has raised this issue only to eclipse mischief played by

him before different courts having different jurisdiction. The

Principle of Comity of Courts is only a self-imposed restraint and is

not a rule of law and State of Gujarat V Gordhan Keshavji

Gandhi and another, AIR 1965 SC 745 was referred. It was further

argued that Bombay High Court did not follow self-restraint and did

not extend any civility to the courts at Delhi. The Bombay High court

did not follow the Principle of Comity of Courts but grant protection

to the applicant by restraining the respondent/CBI from taking the

applicant into custody in present case. The Special Prosecutor for the

respondent/CBI relied upon Arun Kumar Singh V State (NCT of

Delhi), 1999 Crl. L J. 4021. The Supreme court had already given

direction to take the applicant into custody while cancelling default

bail vide order dated 24.01.2024 and Bombay High Court despite

specific directions of the Supreme court did not follow the Principle

of Comity of Courts and restrain the respondent/CBI Delhi from

taking the applicant into custody which was against the judicial

discipline. Sh. Sharma further argued that the Bombay High Court

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 39 11:06:59 did not follow the Principle of Comity of Courts in respect of the

Reports of Medical Boards of AIIMS board which were constituted

as per the directions of the Supreme Court and the trial court which

clearly indicated that the applicant can be be managed on Out Patient

basis. Sh. Sharma also argued that the applicant is seeking bail on

medical grounds by claiming parity with order dated 02.05.2024

passed by the Bombay High Court but said order does not contain

any finding that the applicant is sick or infirm and the Bombay High

Court granted bail merely on ground that medical facilities at Tajola

Jail were not satisfactory. Sh. Sharma referred the medical facilities

available at Tihar Jail and stated that Tihar Jail is equipped with

better medical facilities and the applicant can be referred to hospitals

situated in nearby vicinity of Tihar Jail. Sh. Sharma further argued

that the trial court has passed orders regarding medical follow up of

the applicant and lodging of the applicant in a separate cell with his

brother. The applicant never complained regarding any lapse in his

medical treatment. Sh. Sharma referred Vikas Yadav V State of UP

and others, MANU/DE/294/2015 wherein it was observed by the

Division Bench of this court that all medical facilities are available at

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 40 11:06:59 Tihar Jail. Sh. Sharma argued that the applicant under given facts and

circumstances of case cannot claim any parity or comity with order

passed by the Bombay High Court. Sh. Sharma also during

arguments also informed that respondent/CBI has initiated process

for filing SLP against order dated 02.05.2024 passed by the Bombay

High Court.

11.3 Sh. Sharma regarding medical conditions of the applicant argued

that the Supreme Court vide order dated 24.01.2024 has cancelled the

default bail and ordered the applicant to be taken into custody despite

fact that at that time the applicant was admitted in Lilavati Hospital.

The respondent/CBI never admitted that that the applicant is sick or

infirm or infirm person at any stage and respondent/CBI took

constant constant stand that the applicant at one point of time was

required only proper medical attention at one point of time and now

the applicant is cured and at present the applicant is not sick or

infirm. Lilavati Hospital on 17.04.2024 issued a certificate wherein

mentioned that the medical condition of the applicant were better and

he could be discharged and can be managed on out-patient basis. It

was further stated that there is no contemporaneous medical record to

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 41 11:06:59 suggest that the applicant falls in the category of a sick or infirm

person. The applicant is leading a normal life in Tihar Jail since his

arrest on 13.05.2024 and never developed any medical complication

and the applicant can be properly managed in Tihar Jail. The

applicant during entire period of incarceration in Mumbai and Delhi

never suffered any serious threat to his life. Sh. Sharma argued that

the applicant is neither infirm nor sick and Devkinandan Garg V

Directorate of Enforcement cited by the counsel for the applicant is

not applicable in present case. The ailments of the applicant

regarding lungs, heart and prolapsed disc were existed even before

his arrest. The applicant has undergone elective surgeries which were

not life threatening. The applicant despite his alleged ailments

committed offences with impunity. The applicant during Covid -19

pandemic situation roamed with staff and violated lockdown

conditions. The applicant during his admission in Kokilaben Hospital

under judicial custody indulged in criminal activities such as

fabrication of documents etc. The applicant also misused his

hospitalisation at Lilavati Hospital. Sh. Sharma further argued that

proviso to section 437 (1) of the Code does not mandate automatic

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 42 11:06:59 grant of bail to the accused and merit of the case are required to be

taken into account at time of consideration of bail on medical ground.

Sh. Sharma referred Soumya Chaurasia V Directorate of

Enforcement, AIR 2024 SC387. There is no medical record which is

suggestive of that the applicant is sick or infirm.

11.4 Sh. Sharma regarding criminal conduct of the applicant stated

that the court is required to enquire about the past

antecedents/conduct of the accused while assessing grant of bail and

in the present case the applicant is involved in 5 different cases

causing a total wrongful loss of more than Rs. 40,000/- crores to the

public exchequer. The Directorate of Enforcement also filed a

complaint under section 45 of PMLA against the applicant and others

in month of December, 2019 for commission of offence under section

3 of PMLA. If applicant is released on bail then there is propensity

that the applicant will tamper with the evidence and will influence the

witnesses.

11.5 Sh. Sharma to counter argument advanced on behalf of the

applicant regarding delay in trial argued that a Special Court has

already been constituted by this Court to exclusively conduct the trial

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 43 11:06:59 pertaining to the present case on a day-to-day basis and as such there

is no possibility of delay in trial, and the said ground is irrelevant.

The applicant has already been charge sheeted. The bail application

of co-accused namely Ajay Nawandar has already been dismissed by

this court vide order dated 31.05.2024 passed in bail application

bearing no 353 of 2023 and said co-accused is only allowed to

undergo treatment in a private hospital in judicial custody. Sh.

Sharma referred Tarun Kumar V Assistant Director Directorate

of Enforcement, AIR 2024 SC 169. It was argued and prayed that

the present bail application be dismissed.

12. Issue which needs judicial consideration is that whether the

applicant being a sick or infirm person is entitled for grant of bail as

per proviso to section 437 (1) of the Code. Proviso to section 437 (1)

of Code reads as under:-

437. WHEN BAIL MAY BE TAKEN IN CASE OF NON-BAILABLE OFFENCE.

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but

(i)such person shall not be so released if there appear reasonable grounds for believing that he has been guilty

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 44 11:06:59 of an offence punishable with death or imprisonment for life;

(ii)such person shall not be so released if such offence is a cognisable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognisable offence punishable with imprisonment for three years or more but not less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

12.1 The Supreme Court in Satender Kumar Antil V CBI, (2022)10

SCC 51 in context of section 437 of the Code observed as under:-

68. Section 437 of the Code is a provision dealing with bail in case of nonbailable offenses by a court other than the High Court or a Court of Sessions. Here again, bail is the rule but the exception would come when the court is satisfied that there are reasonable grounds that the accused has been guilty of the offense punishable either with death or imprisonment for life. Similarly, if the said person is previously convicted of an offense punishable with death or imprisonment for life or imprisonment for seven years or more or convicted previously on two or more occasions, the accused shall not be released on bail by the magistrate.

69. Proviso to Section 437 of the Code mandates that when the accused is under the age of sixteen years, sick or infirm or being a woman, is something which is required to be taken note of. Obviously, the court has to satisfy itself that the accused person is sick or infirm.

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70. The power of a court is quite enormous while exercising the power under Section 437.

12.2 The Co-ordinate Bench of this court in Devki Nandan Garg V

Directorate of Enforcement, 2022 SCC Online Del 3086 discussed

regarding who is „sick‟ and „infirm‟ person and observed as under:-

Sick and infirm have not been defined under PMLA and I will have to rely on the dictionary meaning for the same. „Sick‟ as per the Oxford English Dictionary refers to being „affected by illness; unwell, ailing‟ and „infirm‟ is defined as „not physically strong or healthy; weak or feeble, esp. through old age. According to the definition in Merriam Webster‟s Dictionary, „sick‟ means „affected with disease or ill health; ailing‟ and „infirm‟ means „of poor or deteriorated vitality especially: feeble from age.

12.3 The Supreme Court in Kalvakuntla Kavitha V Directorate of

Enforcement, Criminal Appeal no---of 2024 (arising out of SLP

(Criminal) no 10778 of 2024 vide judgment dated 27.08.2014 while

deliberating section 45(1) of PMLA which is similar to proviso to

section 437(1) of the Code also observed as under:-

16. A perusal of the above proviso would thus reveal that the proviso permits certain category of accused including woman to be released on bail, without the twin requirement under Section 45 of the PMLA to be satisfied. No doubt that, as argued by the learned ASG, in a given case the accused even if a woman may not be automatically entitled

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 46 11:06:59 to benefit of the said proviso and it would all depend upon the facts and circumstances of each case.

17. However, when a statute specifically provides a special treatment for a certain category of accused, while denying such a benefit, the Court will be required to give specific reasons as to why such a benefit is to be denied.

12.4 The trial court in impugned judgment has discussed various

decisions delivered by the Superior Courts which are referred as

under. The Supreme Court in Satender Kumar Antil V CBI, 2022

(10) SCC 51 cast a duty upon the courts to mandatorily consider

proviso of Section 437 (1) of the Code in case of sick person. The

Supreme court in Dipak Shubhashchandra Mehta V CBI, (2012) 4

SCC 134 observed that delay in trial is happening, the accused can be

released on bail when he was also not keeping good health. The

Bombay High Court in Naresh Goyal V Directorate of

Enforcement, Bail App. No. 1901/2024 decided on 06.05.2024

granted medical bail to the accused who was aged about 75 years

and was suffering from duodenal cancer and was found to be sick and

infirm person and in need of long hospitalisation and disease was life

threatening. The Delhi High Court in Vijay Aggarwal V Directorate

of Enforcement, Bail Application no. 1762/2022 decided on

13.12.2022 granted interim bail on medical ground as accused was

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 47 11:06:59 having various ailments relating to spine and back for which he was

under constant medical supervision.

12.5 The Supreme Court in State V Jaspal Singh Gill, AIR 1984 SC

1503 did not approve medical bail granted by the High Court. The

accused had undergone a cardiac operation and needed constant

medical attention. The prison authorities were directed to provide the

proper treatment to the accused and accordingly cancelled the bail.

The Supreme Court in Asharam Bapu V State of Rajasthan,

MANU/SC/ 0370/2015 after considering the report of the medical

board rejected the bail application of the accused who was found

suffering from trigeminal neuralgia with degenerative disc disease of

the lumbar spine with hypothyroidism and benign hyperplasia of

prostate. The medical board had given opinion that none of these

diseases require any surgical management but routine medical

management on OPD basis will be suffice. The Supreme Court in

State of Maharashtra V Buddhikota Subha Rao, AIR1989 SC

2292 rejected grant of medical bail to the accused who was suffering

from disc prolapsed problem which was a spinal disorder but after

some improvement needed only yoga exercises under expert

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 48 11:06:59 guidance. The Supreme Court in State of UP V Gayatri Prasad

Prajapati AIR 2020 SC 5014 while rejecting medical bail considered

the opinion of the medical board which showed that the accused was

suffering from Type 2 diabetes mellitus, benign prostate enlargement,

renal dysfunction, low back pain related to seronegative

spondylorthropathy and he could take the treatment from the jail

hospital with consultation with nephrologist and orthopedician and

can control his blood-sugar under the supervision of endocrinologist.

The Delhi High Court in Thounaozam Shyamkumar Singh V

State, MANU/DE/1571/2009 did not grant bail even when the

accused was suffering from hypertension, angina pectoris, diabetes

mellitus, cardiac arrhythia and depression. In Karim Morani V CBI,

MANU/DE/2632/2011 prayer for interim bail on medical grounds

was rejected after considering the opinion of medical board that the

condition of the accused is stable and properly managed by

medication. The Delhi High Court in Nittin Johari V Serious Fraud

Investigation officer, MANU/DE/ 0246/2020 rejected bail

application of the accused on medical ground who was suffering

from diabetes and other ailments. This court observed that there was

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treatment and care in the jail and requires such treatment which can

be provided only if released on bail.

13. The applicant to establish that he is a sick person pleaded that he

is suffering from multiple comorbidities and chronic ailments

including ischemic heart disease, chronic kidney disease, fluctuating

serum creatinine levels, hypertension, obstructive sleep apnea,

obesity etc. and due to various ailments visited hospitals about 50

times during custody since 26.04.2020 besides multiple

hospitalisation. The applicant also stated to have undergone about 08

surgeries. It is pertinent to mention few relevant facts which are also

detailed herein above that the applicant was subjected to medical

examination for evaluation before Medical Board in pursuance of

order dated 03.11.2022 passed by the Supreme Court passed in I.A.

no.80949/2022 and criminal appeal nos.701-702/2024 titled as

Enforcement Directorate Government of India V Kapil

Wadhawan & another and as per medical opinion, there was no

indication of his hospitalisation and the applicant only required

periodic follow up with respective specialists on outpatient basis for

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 50 11:06:59 his medical condition. The applicant was also arrested in another RC

2192020E0004 in the month of April, 2022 but was released on

interim bail vide order dated 08.12.2023 passed by the Bombay High

Court. The applicant was order to be released on statutory bail under

section 167 (2) of the Code vide order dated 03.12.2022 passed by

the trial court which was upheld by this court vide judgment dated

30.05.2023 passed in Crl.MC.6544/202. Thereafter the applicant was

removed to Mumbai and shifted to Lilavati Mumbai for his medical

treatment. The applicant was also released on interim bail for medical

treatment by the Bombay High Court vide order dated 08.12.2023 in

bail application no.2471/2023 titled as Dheeraj Wadhawan V

Central Bureau of Investigation & another. The statutory bail

granted to the applicant was set aside by the Supreme Court vide

order dated 24.01.2024 passed in Criminal Appeal no. 391/2024

titled as Central Bureau of Investigation V Kapil Wadhawan &

another. The trial court during judicial proceedings in pursuance of

bail application filed on 25.01.2024 by the applicant again sent the

applicant to Medical Board of the doctors from AIIMS for evaluation

of medical condition and said Medical Board vide Report dated

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 51 11:06:59 06.02.2024 opined that the applicant requires follow up with the

respective specialists on an outpatient basis for his ongoing condition

and there was no indication of the hospitalisation as on date. The trial

court accordingly dismissed the application for grant of bail on

medical ground vide order dated 08.02.2024. Lilavati Hospital on

17.04.2024 after considering the improved medical condition of the

applicant decided to discharge him as he only required outpatient

follow up for his medical treatment but the Bombay High Court vide

order dated 07.04.2024 directed the Lilavati Hospital not to discharge

the applicant without permission of the court and vide order dated

08.04.2024 also directed the respondent/CBI not to take applicant in

the custody without permission of the court. The Bombay High Court

granted regular bail vide order dated 02.05.2024 to the applicant and

the applicant was discharged himself from the Lilavati Hospital vide

discharge summary dated 02.05.2024. The trial court also dismissed

bail application filed by the applicant on medical ground vide order

dated 10.05.2024 and the applicant was ordered to be taken into

custody in compliance of the order dated 24.01.2024 passed by the

Supreme Court and was arrested on 13.05.2024. The trial court

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vide impugned order dated 24.05.2024.

14. The Bombay High Court in order dated 02.05.2024 while

granting bail to the applicant considered that the Lilavati Hospital has

opined that hospitalisation is not required but he can be treated on

follow up basis in OPD and also referred the report prepared by

AIIMS, Delhi which opined that the hospitalisation of the applicant is

not required but he can be treated on follow up basis in OPD and by

way of physiotherapy. The trial court in impugned order while

declining medical bail to the applicant and referring Devki Nandan

V Directorate of Enforcement observed that grant of bail to sick is

not compulsory in all situations. The trial court has also observed that

the court has discretion to grant bail to sick person only when he

cannot provide sufficient medical facilities either in jail or in nearby

government hospital. The trial court after referring the discharge

summary issued by the Lilavati Hospital observed that the applicant

has already recovered from his illness during the period of interim

bail granted by the Bombay High Court since 08.12.2023. The trial

court has also observed that the physiotherapy to the applicant can be

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hospitals.

15. Sh. Pahawa in support of bail application argued that the

applicant is sick and is suffering from multiple co-morbidities and

chronic ailments including Ischemic Heart Disease, Chronic Kidney

Disease, hypertension, obstructive sleep apnea etc. and had

undergone emergency angioplasty with two arteries which were

found to be more than 80% blocked. The applicant besides visiting

hospitals on more than 50 occasions had undergone 08 surgeries

during his custody including high risk Grade 5 spine surgery on

03.01.2024 and Grade 7 surgery on 01.03.2024. Sh. Pahwa after

referring order dated 02.05.2024 passed by the Bombay High Court

argued that the applicant requires constant monitoring and follow up

which cannot be arranged in case of emergency. Sh. Pahwa also

argued that the proviso to section 437 of the Code does not provide

grant of medical bail only if an accused cannot be treated in jail and

the applicant is entitled to bail even if the vitals of the applicant are

stated to be stable and he does not require hospitalisation. Sh. Pahwa

also stated that the applicant cannot be treated in Tihar Jail where

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 54 11:06:59 medical facilities are inadequate. The applicant has not recovered

from his illness and the applicant is still sick and does have a right to

be treated from the doctor of his choice. Sh. Sharma, the SPP for the

respondent/CBI on contrary after referring Reports of Medical

Boards of AIIMS which were constituted as per the directions of the

Supreme Court and the trial court argued that the applicant can be

managed on Out Patient basis. The order dated 02.05.2024 passed by

the Bombay High Court does not contain any finding about sickness

or infirmity of the applicant and granted bail merely on ground of

inadequacy of medical facilities at Tajola Jail. Sh. Sharma

highlighted medical facilities available at Tihar Jail which is

equipped with better medical facilities and the applicant can be

referred to hospitals situated in nearby vicinity of Tihar Jail. The

applicant never complained regarding any lapse in his medical

treatment. The applicant is now cured and at present the applicant is

not sick or infirm. The applicant never developed any medical

complication since his arrest on 13.05.2024 and can be properly

managed in Tihar Jail. The surgeries stated to be undergone by the

applicant were not life threatening.

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16. It is appearing that Medical Board constituted at AIIMS in Report

dated 09.11.2022 observed that the applicant is known to have

Obesity, Hypertension for past 03 years, Obstructive sleep apnea

requiring CPAP, prolapsed intervertebral disc and lumbar canal

stenosis, chronic peplic ulcer, anxiety, depression, history of pleural

effusion on right side in 2019, recent urinary tract infection and renal

calculus but opined that the applicant requires regular, periodic

follow up with the respective specialists on an outpatient basis for his

ongoing conditions and can be treated in Jail and there is no

indication for his hospitalization. The Medical Board again

constituted at AIIMS in Report dated 06.02.2024 opined that vitals of

the applicant were within normal limits and clinical examination was

unremarkable. However, further investigation of the applicant

revealed mildly elevated pancreatic enzymes, creatinine and mildly

reduced serum potassium levels. The applicant was found to be

treated for hypertension, chronic kidney disease, obstructive sleep

apnea, depression and hypokalemia. The Medical Board finally

opined that at present no medical issues necessitating continued

hospitalization. Lilavati Hospital in Report dated 17.04.2024

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 56 11:06:59 mentioned about medical care of the applicant for multiple medical

issues including back pain, cardiac, renal, medical and urological and

other conditions however It was opined that the applicant can be

managed on outpatient basis and was advised daily institutional

physiotherapy and regular outpatient follow-up with doctor twice a

week due to fluctuating serum creatinine; for cardiac issues due to

irregular pulse and blood pressure; for back pain; for sleep apnea and

respiratory issues. It is reflecting from above medical reports that the

hospitalisation of the applicant may not be required at present but

undoubtedly the applicant is suffering from multiple serious ailments

connected with vital organs of the body including heart, kidneys,

spine, lung etc. which require constant and medical supervision under

direct supervision of expert and specialists doctors. The proviso of

section 437 (1) of the Code does not mandate that if any accused does

not require hospitalisation and can be treated on outpatient basis

cannot be granted medical bail being sick or infirm person. The court

is only required to satisfy itself that the accused is either sick or

infirm. The admission in hospital or hospitalisation of an accused is

not a mandatory condition before an accused can be considered for

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 57 11:06:59 grant of medical bail as per proviso to section 437 (1) of the Code.

Sh. Pahwa rightly said on basis of medical documents that the

applicant is sick and is suffering from multiple co-morbidities and

chronic ailments. The applicant had visited hospitals on number of

occasions besides undergoing many surgeries during his custody.

There is legal force in arguments advanced by Sh. Pahwa that the

proviso to section 437 of the Code does not provide grant of medical

bail only if an accused cannot be treated in jail and the accused does

not require hospitalisation. Sh. Sharma rightly argued that the

applicant can be managed on Out Patient basis and the order dated

02.05.2024 passed by the Bombay High Court does not contain any

finding about sickness or infirmity of the applicant but it does not

necessarily mean that the applicant was/is not suffering from various

serious ailments and cannot be granted bail being a sick person.

17. The trial court in impugned order observed that every citizen

including prisoner has a right to proper and good health and to get

appropriate medical treatment for his diseases and physical problems

but prisoner cannot claim it as a matter of right that he needs

treatment only from a particular doctor or particular hospital or at

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 58 11:06:59 particular place. It was further observed that if better, qualified and

competent doctors are available to the prisoner in jail and the prisoner

can be taken to nearby multi-speciality or super speciality hospitals

then request of the applicant for treatment in Lilavati Hospital in

Mumbai cannot be accepted and denial of such demand by the court

does not amount to violation of his right of life as enshrined under

Article 21. The trial court also observed that court has discretion to

grant bail to „sick‟ prisoner only where he cannot be provided

sufficient and required medical facilities either in jail or in nearby

government hospitals. The trial court in impugned order also

observed that medical documents including discharge summary

issued by Lilavati Hospital show that the applicant was once not well

and undergone some surgeries but now he has recovered from his

illness and only need OPD consultations, regular physiotherapy etc.

without further hospitalisation. The applicant can be provided follow

up advices and physiotherapy either in Jail Hospital or at least in

government hospitals. Sh. Sharma, SPP for the respondent/CBI also

argued that there is no need to enlarge the applicant on bail when the

applicant can be treated as outdoor patient and referred Asharam

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 59 11:06:59 Bapu V State of Rajasthan, MANU/SC/0370/2015. It is true that

the applicant as per Reports given by Medical Boards comprising

doctors from AIIMS can be treated as outdoor patient without any

hospitalisation but simultaneously it is also true that the applicant is

suffering from various ailments related to multiple vital organs of the

body and requires constant medical attention under supervision of

specialist doctors. The observation of the trial court in impugned

order and argument advanced by Sh. Sharma are misconceived. The

trial court laid much emphasis on providing medical treatment to the

applicant either in jail hospital or government hospital including

DDU, AIIMS etc. The applicant may get requisite medical treatment

for various ailments but the applicant needs constant medical

attention under supervision of specialist doctors and it is not mandate

of the proviso to the section 437 (1) of the Code that if any accused

can be treated in government hospital then the accused can never be

granted medical bail in accordance with law. The Supreme Court in

Satyendra Kumar Jain V Directorate of Enforcement, Special

Leave Petition (Crl.) no 6561/2023 observed that the citizen is having

a right to take treatment of his own choice, at his own expense, in a

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 60 11:06:59 private hospital. A Co-ordinate Bench of this court in Kewal

Krishan Kumar V Enforcement Directorate, 2023 SCC Online

Del 1547 and also cited by Sh. Pahwa observed that a person though

not sick may be infirm and still entitled to seek the benefit of

exception in the proviso of section 45 of PMLA which is exactly

similar to proviso to section 437 (1) of the Code. If the argument

advanced by Sh. Sharma, SPP that the applicant is not a sick person

is accepted even then medical records established that the applicant is

an infirm person. Sh. Sharma, SPP also cited Saumya Chaurasia V

Directorate of Enforcement, 2023 SCC Online SC 1674 wherein it

was held by the Supreme Court that proviso to section 45 (1) of

PMLA is discretionary and cannot be construed as a mandatory or

obligatory provision once a person is said to fall within either of the

categories and the courts should exercise discretion judiciously using

their prudence while granting the benefit of the first proviso to

section 45(1) of PMLA to the category of persons mentioned therein.

It was further observed that the extent of involvement of the person

falling in such category in the alleged offences, the nature of

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 61 11:06:59 evidence collected by the investigating agency would be material

consideration.

18. The trial court in impugned order also discussed prevailing

conditions in Tihar Jail. The trial court observed that Tihar Jail is one

of the best and biggest jail in India where better medical facilities are

available. The Tihar Jail is also having transport facility to remove

any patient to hospital in case of need. The trial court also referred

medical facilities in DDU Hospital, a multi-speciality hospital which

is situated at a distance of about 3 km from Tihar Jail and in other

hospitals such as G.B. Pant, RML, Safdarjang Hospital and AIIMS

which are highly reputed government hospitals and observed that any

prisoner can be removed to these hospital without delay and these

hospitals are operational round the day. The trial court further

observed that the applicant cannot be given preferential treatment for

medical attention in private hospital situated in Mumbai. The trial

court also observed that the applicant can only be released on medical

bail if the jail hospitals or referral hospitals are not well equipped to

cater medical need of the applicant. The trial court referred decision

of Division Bench of this court in Vikas Yadav V State of UP,

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 62 11:06:59 MANU/DE/0294/2015 wherein the conduct of the accused to

approach the private hospital again and again for treatment was

depreciated which are either available in Jail Hospital or DDU

hospital or other government hospital. In said judgment the Division

Bench also discussed the facilities available in Tihar Jail hospital and

visits of different specialists. Sh. Sharma, SPP for the

respondent/CBI also referred Vikas Yadav V State of UP & others

and argued that all medical facilities are available at Tihar Jail and

there cannot be any parity with order of bail passed by the Bombay

High Court. Sh. Pahwa, the learned Senior Counsel for the applicant

argued that the trial court erred in not giving primacy to the treating

doctors of the applicant and the applicant has a right to get treatment

from doctors of his choice. Sh. Pahwa referred Satyendra Kumar

Jain V Directorate of Enforcement, Special Leave Petition (Crl.)

no 6561 of 2023 decided by the Supreme Court vide dated

26.05.2023; Vinod Kumar V State of Punjab, Crl Misc. No. M-

25499 of 2012 decided by the Punjab & Haryana High Court vide

order dated 24.09.2012 and Naresh Goel V Directorate of

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 63 11:06:59 Enforcement, Bail Application No 1901 of 2024 decided by

Bombay High Court vide order dated 06.05.2024..

18.1 The Supreme Court in Satyendra Jain V Directorate of

Enforcement as mentioned herein above that a citizen is having a

right to take treatment of his own choice. The Punjab & Haryana

High Court in Vinod Kumar V State of Punjab also observed that

every patient is entitled to treatment from a doctor of his choice and it

also gives psychological satisfaction to the patient. The Bombay

High Court in Naresh Goyal V Directorate of Enforcement

observed that there is a qualitative difference between the treatment

which a person gets as an under trial prisoner and as a citizen under

no restraint. It was further observed that proposition once a person

gets the requisite treatment, he does not deserve bail cannot be

accepted as it would defeat the legislature intent of enacting the

proviso and render the proviso otiose.

18.2 The applicant was examined by Medical Boards on two

occasions as per directions given by the Supreme Court and trial

court. The Medical Board constituted as per directions given by the

Supreme Court vide order dated 03.11.2022 observed that the

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 64 11:06:59 applicant is known to have obesity, hypertension, obstructive sleep

apnea requiring CPAP, prolapsed intervertebral disc and lumber

canal stenosis, chronic peplic ulcer, anxiety, depression, history of

pleural effusion on right side, urinary tract infection and renal

calculas. The Medical Board from cardiovascular point of view

opined that the applicant has obesity, coronary artery disease, status

post-stunt LAD, controlled hypertension and other problems and

opined that there is no cardiovascular indication for hospitalisation at

present. The Medical Board regarding urology observed that the

applicant requires investigation for poor urine flow which can be

done on OPD basis. The Medical Board regarding pulmonary issues

observed that the applicant needs to continue using auto CPAP

machine for obstructive sleep apnea. The Medical Board finally

opined that the applicant requires regular, periodic follow up with the

respective specialists on an outpatient basis for ongoing conditions

and can be treated in jail and further there is no indication of

hospitalisation of the applicant. The Medical Board comprising

doctors from AIIMS constituted as per direction given by the trial

court vide order dated 30.01.2024 observed that the applicant has

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 65 11:06:59 obesity, obstructive sleep apnea, coronary artery disease and post

stent in LAD and applicant had undergone spinal surgery on

03.01.2024. The Medical Board observed that the applicant does not

require further hospitalisation for cardiac side and can be followed up

on OPD basis. The Medical Board also conducted CNS/Spine

examination and opined that the applicant had undergone surgery for

L5S1 and L4LS, prolapsed disc but the applicant has recovered and

recommended that physiotherapy can be continued on OPD basis.

The Medical Board also observed that vitals of the applicant were

within normal limits and clinical examination was unremarkable but

noticed that the applicant revealed mildly elevated pancreatic

enzymes, creatinine and mildly reduced serum potassium levels and

noticed that the applicant being treated for hypertension, chronic

kidney disease, obstructive sleep apnea, depression and hypokalemia.

The Medical Board opined that at present there is no medical issues

which may require continued hospitalization. Lilavati Hospital in

Report dated 17.04.2024 while discharging the applicant opined that

the applicant can be managed on outpatient basis and recommended

daily institutional physiotherapy and follow up for cardiac, spine and

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 66 11:06:59 pulmonary issues. Lilavati Hospital in Discharge Summary dated

02.05.2024 also recommended follow up with specialist doctors for

various ailments related various vital organs and also prescribed

heavy medication for the applicant. The medical reports submitted by

Dispensary, Central Jail, Tihar are also reflecting that the applicant is

suffering from various serious ailments. It may be true that at present

the applicant may not be requiring hospitalisation but certainly the

applicant is suffering from various serious ailments related to vital

organs including kidney, lungs, heart etc. and requires constant,

regular and periodic follow up and examination with heavy

medication under direct supervision of expert and specialist doctors.

The medical facilities required by the applicant may or may not be

available in hospitals attached with Tihar Jail and other government

hospitals as detailed by the trial court in impugned order. The

applicant being a citizen is enjoying fundamental right to be treated

for his ailments by suitable doctors and the applicant cannot be

denied appropriate and required medical treatment and attention due

to reason that at present the applicant does not require hospitalisation.

The trial was not justified in observing that the applicant can be

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 67 11:06:59 treated and can provided medical treatment in government hospital.

There cannot be any compromise with life of the applicant merely on

basis that the applicant does not require hospitalisation and can be

treated as outdoor patient. The applicant definitely requires regular

and periodical medical attention. Sh. Sharma, SPP for the

respondent/CBI also argued the applicant is now cured and at present

the applicant is not sick or infirm and never developed any medical

complication since his arrest on 13.05.2024 and can be properly

managed in Tihar Jail but these arguments although appearing to be

attractive but under given facts of circumstances as discussed herein

above do not provide much support to the respondent. It is worth

mentioning that Bombay High Court while granting medical bail to

the applicant vide order dated 02.05.2024 also observed that it would

not be advisable to send the applicant to jail once discharged from

the hospital and his prayer for medical bail need to be considered as

the applicant is suffering from various ailments. It was further

observed that follow-up cannot be arranged from jail and that too in

case of emergency.

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19. The applicant is falling within ambit of a sick person as per legal

requirement of proviso to section 437 (1) of the Code. The mere fact

that at present hospitalisation of the applicant is not required and can

be treated on outpatient basis does not disentitle the applicant from

grant of medical bail particularly when the applicant is suffering from

various serious ailments which require constant, regular and

periodical medical treatment and attention under direct supervision of

expert and specialist doctors. The applicant is entitled for grant of

medical bail as per proviso to section 437 (1) of the Code.

20. Sh. Vikas Pahwa, the learned Senior Counsel for the applicant

argued that the Bombay High Court vide order dated 02.05.2024 has

granted medical bail in another FIR/RC but the trial court even after

grant of medical bail by the Bombay High Court has dismissed

application for grant of medical bail without following Principle of

Comity of Courts. He further argued that the Principle of Comity of

Courts entails mutual respect for a decision of a court and the

Bombay High Court being a constitutional court after considering the

medical condition of the applicant has granted bail on medical

grounds then the judicial propriety and the Principle of Comity of

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the applicant and relied on Surya Vadanan V State of Tamil Nadu,

(2015) 5 SCC 450 and Tamilnad Mercantile Bank v S.C. Sekar,

(2009) 2 SCC 784. Sh. Pahwa further argued that the trial court acted

like an appellate court over the order dated 02.05.2024 passed by the

Bombay High Court and the trial court wrongly observed that the

benefit of the Principle of Comity of Courts should not be extended

to the applicant as he has engaged in forum shopping.

20.1 Sh. Sharma, SPP for the respondent/CBI argued that the

Principle of Comity of Courts is only a self-imposed restraint and is

not a rule of law and is not any enforceable right. He attacked order

dated 02.05.2024 and other orders passed by the Bombay High Court

by arguing that the Bombay High Court despite having knowledge

that jurisdictional and Constitutional Courts at Delhi were dealing

with the issue and were not giving any relief of restraining CBI from

taking the applicant did not show self-restraint and did not extend any

civility or consideration to the jurisdiction of Courts at Delhi and as

such the Principle of Comity of Courts was not followed by the

Bombay High Court. The Bombay High Court restrained the

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cancellation of statutory bail by the Supreme Court vide order dated

24.01.2024 and as such did not follow the Principle of Comity of

Courts and judicial discipline. Sh. Sharma also stated that the

Bombay High Court did not agree with Report of Medical Board

comprising doctors from AIIMS which was constituted by the

directions given by the Supreme Court. The court at Delhi was not

obliged to grant bail to the applicant on medical ground despite grant

of medical bail by the Bombay High Court vide order dated

02.05.2024. Sh. Sharma also referred that the applicant has

withdrawn Crl. M C bearing no 1137 of 2024 vide order dated

23.04.2024 and Crl. M C bearing no 3849 of 2024 vide order dated

17.05.2024 which were filed to challenge orders dated 08.02.2024

and 10.05.2024 passed by the trial court. Sh. Sharma also argued that

the it was not within jurisdiction of the Bombay High Court while

passing order dated 02.05.2024 to restrain the respondent/CBI from

taking the applicant into custody for a period of one week from date

of uploading of the order without permission of the court.

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 71 11:06:59 Accordingly Sh. Sharma argued that the Bombay High Court did not

follow the Principle of Comity of Courts and judicial discipline.

20.2 The trial court in impugned order in respect of the Principle of

Comity of Courts observed that the Bombay High Court in order

dated 02.05.2024 did not discuss the previous conduct of the

applicant regarding his activities, misdeeds and attempt to temper

with the evidence and to destroy/conceal the evidence or may not be

brought in the knowledge of the Bombay High Court. It was also

observed in impugned order that fresh report regarding availability of

facilities of treatment in Tajola Jail came before Bombay High Court

and opined that order dated 02.05.2024 was passed apparently on fact

that the applicant was lodged in Taloja Jail in Mumbai case at the

relevant time which is situated at a distance of about 30 km from

Mumbai and even appropriate follow up facilities as required by the

applicant were not available there. The trial court also observed that

judicial proprietary demands that once there is a decision of own

High Court then the same has to be followed instead of decision of

any other High Court on similar facts and circumstances which has

only persuasive value. The trial court further observed that the

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this court to impugn order dated 08.02.2024 whereby application

filed by the applicant on medical ground was dismissed in view of

Report of AIIMS Medical Board and as such order dated 08.02.2024

became final and binding. The principle of Comity of Courts as relied

upon by the applicant was overshadowed by rule of Forum Shopping.

The trial court in impugned order did not agree with contention of the

applicant regarding the Principles of Comity of Courts rather opined

that the applicant was indulged in activity of Forum Shopping.

20.3 The Supreme Court in Surya Vadanan V Tamil Nadu &

others, (2015) 5SCC450 observed that the Principle of Comity of

Courts is essentially a principle of self-restraint and there is no reason

why the Principle of Comity of Courts should be jettisoned except for

special and compelling reasons. The Supreme Court in Tamilnadu

Merchantile Bank Shareholders Welfare Association V S.C.

Sekar & others, (2009) 2 SCC 784 observed that the Doctrine of

Comity of Courts requires that different courts exercising separate

jurisdiction pass similar orders.

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 73 11:06:59 20.4 The Bombay High Court passed different orders pertaining to

the applicant inrelation to RC bearing no2192020E0004 which was

registered in Mumbai and did not pass any substantial order in

respect of RC 2242022A0001 which was registered by CBI at Delhi.

The Bombay High Court is a constitutional court and must have

passed order dated 02.05.2024 and other orders passed earlier to

02.05.2024 after considering entire relevant material. This court

being a constitutional court must extend respect to orders passed by

another constitution court i.e. the Bombay High Court although

situated in another State/territorial jurisdiction and this court cannot

sit as an appellate court over order dated 02.05.2024 passed by the

Bombay High Court and as per information given by Sh. Sharma,

SPP, the respondent/CBI has already in process of pursuing further

remedy to impugn order dated 02.05.2024 passed by the Bombay

High Court. The Bombay High Court vide order dated 02.05.2024

and previous order only directed the respondent/CBI at Delhi not to

arrest the applicant for a period of one week without prior permission

of the court but it does not mean necessarily that the Bombay High

Court has interfered in territorial jurisdiction of courts at Delhi. The

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be good for purpose of pursuing further remedy to impugn order

dated 02.05.2024 but not before this court in present petition. There

is force in arguments advanced by Sh. Pahwa that the trial court must

respect the order dated 02.05.2024 passed by the Bombay High Court

by following Principle of Comity of Courts and should not act like an

appellate court. The trial court must have shown respect to order

dated 02.05.2024 passed by the Bombay High Court as matter of

judicial discipline and Principle of Comity of Courts while passing

the impugned order dated 24.05.2024.

21. Sh. Sharma, SPP for the respondent/CBI during arguments also

highlighted previous conduct of the applicant and stated that the court

is required to enquire into antecedents/conduct of the applicant while

considering bail application on medical ground to ascertain whether

the applicant is likely to commit serious offences, tamper with

evidence or threaten witnesses while being on bail. The applicant is

involved in more than five different cases causing a total wrongful

loss of more than Rs.40,000 crores to the public exchequer. It was

also stated that Directorate of Enforcement in December, 2019 filed a

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applicant and others for commission of offence under section 3 of the

PML Act before the Court of City Civil Court and Additional

Sessions Judge, Greater Bombay.

21.1 The trial court in impugned judgment also discussed previous

conduct of the applicant particularly when the applicant was in

judicial custody in Mumbai and was admitted in hospital. The trial

court after referring past activities and conduct of the applicant

observed that the applicant did not have any interest to take care of

his own health or medical problems. The trial court also observed

that the applicant during his hospitalization in judicial custody in

Mumbai met different persons in the hospital and tampered with the

evidence besides transferring the properties earned from cheated

amount. The applicant during stay in private hospital was also found

in possession of mobile phone with dongle. The applicant during

period of default bail did not make any complaint in respect of any

physical problem.

21.2 This court is conscious of the fact that there are very serious

allegations against the applicant and other co-accused involving

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applicant is involved in number of cases. This court is dealing with

consideration of bail to the applicant on medical ground as per

proviso to section 437 (1) of the Code and not on merits of the case.

Sh. Pahwa rightly argued that the antecedents of the applicant do not

have any relevance in context of present bail application filed on

medical ground and not on merit. Even otherwise also, more of the

instances as referred in impugned order are pertaining to period

before arrest and when the applicant was in judicial custody in case

registered by CBI in Mumbai. Accordingly, past and previous

conduct of the applicant does not have much relevance in context of

present bail application filed on medical ground. The applicant is

stated not to be in custody in any other case except the present case.

22. Sh. Pahwa, the learned Senior Counsel for the applicant also

argued that the applicant is in custody for over 15 months. The

respondent/CBI filed voluminous charge sheet against more than 100

accused and cited over 650 witnesses. It was further argued that

conclusion of trial will not culminate in the near future and therefore

bail ought to be granted. Sh. Pahwa referred Manish Sisodia V

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Sharma, SPP for the respondent/CBI argued that a Special Court has

already been constituted to exclusively conduct the trial of this case

on a day-to-day basis and as such there is no possibility of delay in

trial. However, he informed that arguments on charge have been

deferred for 45 days vide order dated 20.08.2024 passed in Crl MC

6443 of 2024 titled Kapil Wadhawan V CBI. Sh. Sharma argued

that there is no possibility of trial being delayed in the present case.

22.1 It is appearing that the applicant is in judicial custody for more

than 15 months and is suffering from various ailments as detailed and

discussed herein above. The trial is not expected to be concluded

within reasonable time or near future as there are more than 100

accused named in charge sheet and the prosecution has cited more

than 600 witnesses. In these circumstances, bail on medical ground

can be considered and granted in view of various ailments suffered

by the applicant. The Supreme Court in Manish Sisodia V

Directorate of Enforcement expressed concern that by keeping

under trial behind the bars for an unlimited period in the hope of

speedy completion of trial would deprive his fundamental right

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under:-

53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".

54. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.

55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.

57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can

Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:10.09.2024 BAIL APPLN. 2040/2024 Page 79 11:06:59 be addressed by imposing stringent conditions upon the appellant.

The Supreme Court again in Kalvakuntla Kavitha V

Directorate of Enforcement reiterated above principles laid down in

Manish Sisodia V Directorate of Enforcement.

23. The arguments advanced on behalf of the applicant and the

respondents are considered in right perspective. The applicant is

suffering from various ailments as detailed herein above and is

falling under category of sick person. The applicant at present may

not require hospitalisation and can be treated as outdoor patient but

the applicant needs regular and periodical medical attention and

treatment under direct supervision of expert and specialist doctors. If

the ailments of the applicant are not properly addressed then these

ailments may prove to be life threatening. The applicant is required to

be treated by the suitable doctors may be at private hospitals. The

applicant is entitled for grant of bail as per proviso to section 437 (1)

of the Code. Accordingly, the present petition is allowed and

impugned order is set aside. The applicant is admitted to bail subject

to following conditions:-

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i) The applicant shall furnish personal bond in sum of Rs.

10,00,000/- with one surety of like amount to the satisfaction of the trial court.

ii) The applicant shall surrender his passport if not already seized during investigation to the trail court and shall not leave country without prior permission of the court.

iii) The applicant shall intimate his present address to the trial court within one week from date of release and shall intimate trial court about any change in residential address within three days.

iv) The applicant shall not indulge in any criminal activity and shall not tamper with evidence and try to influence or threaten any witnesses.

v) The applicant shall attend the trial regularly unless his personal attendance is exempted by the trial court. The applicant may appear through video conferencing but with the permission of the trial court.

vi) The trial court shall also be at liberty to impose any other condition on the applicant at time of considering bail bond and thereafter under given facts and circumstances of the case.

24. The pending application if any also stands disposed of.

25. It is made clear that nothing in this order shall be taken as

opinion on merit of the case.

26. The copy of order be sent to trial court for information and be

also given dasti to the petitioner and the respondent.

DR. SUDHIR KUMAR JAIN (JUDGE) SEPTEMBER 09, 2024 J/AK/ABK

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