9 April 2022 5:15 AM GMT
In a relief for DHFL promoter Dheeraj Wadhawan, the Bombay High Court has allowed him treatment for a limited period at a private hospital while setting aside the trial court's order to shift him to the State-run JJ Hospital. Justice PD Naik observed that it was a settled principle of law that an undertrial prisoner also had fundamental rights and that right to life under Article 21...
In a relief for DHFL promoter Dheeraj Wadhawan, the Bombay High Court has allowed him treatment for a limited period at a private hospital while setting aside the trial court's order to shift him to the State-run JJ Hospital.
Justice PD Naik observed that it was a settled principle of law that an undertrial prisoner also had fundamental rights and that right to life under Article 21 of the Constitution includes the right to health.
On March 24, the CBI court had ended Wadhawan's 9-month long stay at Kokilaben Dhirubhai Ambani Hospital, after the CBI accused him of overstaying at the hospital. Wadhawan was first admitted in the hospital in June 2021, aided by orders of the Special PMLA Court in another case.
He challenged the CBI court's orders in the HC, justifying the ailments he was suffering from. His counsels Senior Advocate Amit Desai and Aabad Ponda said Wadhawan was advised by an ENT surgeon to undergo Nasal Septoplasty followed by Tuboplasty for the management of grade-two deviated nasal congestion with difficulty in breathing and choking spells at night.
While the HC observed that respondent-authorities had failed to show how Wadhawan remained in the hospital by playing fraud, it said that the DHFL promoter wasn't required to be "continuously hospitalised at Kokilaben Dhirubhai Ambani Hospital."
Consequently, the court directed prison authorities to take Wadhawan to Kokilaben hospital on April 12 and 13 for carrying out requisite tests and to schedule his nasal surgery. Wadhawan could then remain admitted there for post-op care for another two weeks.
"Several reports suggest he had undergone various surgeries and was hospitalised at Kokilaben and in light of such circumstances, he is permitted to undergo surgery at Kokilaben hospital."
A JJ hospital report indicated that he did not consent for an endoscopy at the hospital. His counsel -Amit Desai - had submitted that he is on blood thinners and in order to conduct endoscopy, blood thinners required to be stopped five days in advance.
"After the stipulated period, he be taken back to Taloja Central Prison, and in case of any necessity, he be taken to JJ hospital/KEM hospital. Petition stands disposed."
"The respondents have not shown how the said order can be said to have been obtained by way of fraud ..."
It is alleged that Yes Bank had invested ₹3,700 crores in DHFL and in return, DHFL gave Rana Kapoor ₹600 crore as a bribe in the form of loans to a firm controlled by the latter's wife and daughters.
In March 2020, CBI registered a case alleging that Rana Kapoor extended financial assistance to DHFL to get substantial undue benefits for himself and his family members via companies held by Kapoor and his family.
Wadhawan was arrested in the CBI case on April 25, 2020. Initially he was taken to JJ Hospital several times for his ailments. Meanwhile an ECIR was registered and the Enforcement Directorate also began investigating the case.
It was only after the State Human Rights Commission's intervention in December 2020 and subsequently an order of the Special PMLA Court in June 2021 that he was admitted in Kokilaben Dhirubhai Ambani Hospital.
The court noted that Wadhawan's health has been deteriorating since 2018 and that since February 2021, he has undergone five surgeries and multiple procedures. He has suffered a lung infection, heart attack, enlarged prostrate, gallbladder stone, kidney ailments etc.
On February 25, 2022 the PMLA court an explanation regarding Wadhawan's long hospital stay and a report indicated that he suffered from obstructive sleep for which the nasal surgery would be required along with constant oxygen monitoring and non-evasive ventilator for support.
Around the same time the matter was listed before the CBI court that passed the order of Wadhawan's shifting after looking at the reports from Kokilaben. Application was heard ex-parte.
Accordingly, Wadhawan was taken to JJ Hospital and subsequently lodged in Taloja.
Before the HC, Desai argued that the CBI court's order was passed is in violation of principles of natural justice.
Special CBI prosecutor Hiten Venegavkar submitted that petitioner was in private hospital for long period of time, medical facilities for the ailments are available at JJ Hospital, report of Kokilaben of March 17 also indicated that the petitioner was to be discharged.
The HC steered clear from delving into the court's jurisdiction but observed that the CBI court seemed to be under the impression that no court permission was sought before hospitalisation.
"Scope and effect of section 267 CrPC completely different. Two parallel courts before whom two different proceedings are happening. In certain situations, there maybe an emergency if undertrial prisoner is suffering from medical reasons, it may not be possible for prisoner to move every concerned court to prefer similar prayer."
If it is found that any undertrial prisoner has played fraud on court, then it is justifiable for any court to make such observations. However, facts of each case has to be looked into and to be considered if situation demands hospitalisation of undertrial," the court said while passing the order.
Appearances: Amit Desai, Abad Ponda, Kushal More, Rohan Dakshini instructed by Rashmikant and Partners
Citation : 2022 LiveLaw (Bom) 125