'Infirm' Person Entitled To Seek Bail Under Proviso To Section 45(1) PMLA Even When Not 'Sick': Delhi High Court

While granting bail to Kewal Krishan Kumar, chairman and managing director (CMD) of Delhi-based Shakti Bhog Foods Limited, in a money laundering case, the Delhi High Court on Friday ruled that a person who is not 'sick' but only 'infirm' would still be entitled to seek the benefit of the exception in the proviso to Section 45 (1) PMLA Act.Justice Jasmeet Singh said since 'sick' and 'infirm' are separated by 'or', "a person who, though, not sick but infirm would still be entitled to seek the benefit of the exception in the proviso to section 45(1) PMLA and vice-versa."However, the court said mere old age does not make a person 'infirm' to fall within Section 45 (1) proviso. It said infirmity is defined as not something that is only relatable to age but must consist of a disability which incapacitates a person to perform ordinary routine activities on a day-to-day basis. "The lexicon meaning of 'infirm' in Stroud’s Judicial Dictionary of Words and Phrases, Eight Edition connotes infirmity as “some permanent disease, accident, or something of that kind” (per Kekewich J., Re Buck, 65 L.J. Ch. 884)," the court added.The court was told Kumar is 70 years old and has a chronic medical history having undergone bariatric surgery. It was submitted that he is a chronic case of varicose veins and is functioning with 20% stomach capacity due to bariatric surgery. He has gall bladder stones and is also suffering from seizure and behavioural disorders and hypertension, his bail plea said.He was arrested on July 04 in 2021 and was on interim bail last year for a period of 31 days on medical grounds. His legal team did not seek bail on merits but only on proviso to Section 45 (1) of PMLA. A medical board last month told the court that his condition is stable.Justice Singh in the judgment said that to interpret sick and infirm as contemplated in the statute, the legislative intent behind inclusion of proviso to section 45(1) PMLA needs to be seen. The court in this regard referred to its observations in DEVKI NANDAN GARG v. DIRECTORATE OF ENFORCEMENT."The 2018 Finance Bill gives an insight into the bail provisions stating that the inclusion of “sixteen years; woman; sick or infirm” along with the addition of “or is accused either on his own or along with other co-accused of money laundering a sum of less than Rupees one crore” is a lenient bail provision encapsulated in PMLA," it added.The court said a purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford "relaxation" to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA. "Proviso to Section 45(1) PMLA is analogous to the proviso to section 437 CrPC," Justice Singh observed.The court also referred to the Report No. 268 of the Law Commission of India on bail reforms and Supreme Court's observations in Satender Kumar Antil v. Central Bureau Of Investigation & Anr and other decisions."A combined reading of the PMLA Objects and Reasons, Finance Bill, 2018, the 268th LCI Report and above mentioned precedents indicates that the proviso to Section 45(1) PMLA is a relaxation for sick or infirm persons provided their sickness or infirmity is so grave that it is life endangering and cannot be treated by jail hospitals," said the court.It then considered the question that what is the level of sickness or infirmity that will bring an accused within the parameters of 'sick or infirm' under proviso to section 45(1) PMLA."I am of the opinion that when the sickness or infirmity is of such a nature that it is life-threatening and requires medical assistance that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to section 45(1) PMLA," said the court. However, the court also said that though no straight jacket formula can be laid down as to what is the level of sickness that a person is to suffer to entitle him to bail under section 45(1) proviso, the thumb rule is that the sickness should be so serious that it is life threatening and the treatment is so specialized that it cannot be provided in the jail hospital.A medical board of Dr. Ram Manohar Lohia Hospital last month told the court Kumar is stable and can be treated at Tihar Jail hospital for all his medical comorbidites.The court said the ailments that Kumar is suffering are not grave or life threatening that entitle him to bail on medical grounds."I rely upon the opinion of the medical board that has opined that the Applicant is 'stable' and can be treated in Tihar Jail Hospital," said the court, while holding that Kumar is not 'sick' to be granted bail under proviso to Section 45(1) PMLA.The court also observed that granting bail on every sickness will render the proviso to section 45(1) PMLA otiose."The proviso should only be invoked in cases where the sickness suffered by the Applicant is so serious and life endangering that it cannot be treated in jail, or the specialized...

'Infirm' Person Entitled To Seek Bail Under Proviso To Section 45(1) PMLA Even When Not 'Sick': Delhi High Court

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