Rakesh Kumar Wadhawan vs The State Of Maharashtra
2021 Latest Caselaw 15037 Bom

                                                                           1 BA-2591-2021.doc

BDP-SPS-TAC




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION
                         CRIMINAL BAIL APPLICATION NO. 2591 OF 2021
                                            WITH
                                        IA/2313/2021
                                             IN
                         CRIMINAL BAIL APPLICATION NO. 2591 OF 2021

              RAKESH KUMAR WADHAWAN                            ..... Applicant.
                      V/s
              THE STATE OF MAHARASHTRA                         ..... Respondent.

                                           WITH
                         CRIMINAL BAIL APPLICATION NO.2776 OF 2021
                                           WITH
                                       IA/2314/2021
                                             IN
                         CRIMINAL BAIL APPLICATION NO.2776 OF 2021


              RAKESH KUMAR WADHAWAN                        ..... Applicant.
                         V/s
              THE DIRECTORATE OF ENFORCEMENT
              AND ANR.                                     ..... Respondents.
              ----
              Mr. Arjun Vinod Bobde, a/w Mr. Chirag Naik, Ms. Vaijayanti S., Mr.
              Mahesh A., Mr. Yashraj Kinkhede, Ms. Shubhangi J., Mr Rutej Pimpal
              Kute, Mr. Sagar Shetty, Mr. Asmit Agarwal i/b MZM Legal for the
              Applicant.
              Ms. P.P. Shinde, APP for the Respondent/State.
              Mr. Aamir Malik for the Intervener.
              Mr. Saurabh Kshirsagar i/b Mr. Hiten Venegaonkar for
              Respondent/ED.
              -----
                                CORAM: NITIN W. SAMBRE, J.

                                      DATE:     OCTOBER 14, 2021







                                                                      1 BA-2591-2021.doc


P.C.:-

1]       Both these Applications are moved by the Applicant for grant of

bail in economic offences in CC No.882/PW/2019 arising out of EOW,

Mumbai C.R. No.86 of 2019 punishable for the offence under Sections

406, 409, 420, 465, 467, 471, 120B of the Indian Penal Code and in

P.M.L.A. Special Case No.8 of 2019 arising out of ECIR/MBZO-I/9 of

2019 filed under Sections 3 read with Section 4 of the Prevention of

Money Laundering Act.

2]       Applicant is already chargesheeted.



3]       Mr. Arjun Bobde, learned Counsel appearing for the Applicant

would urge that the Applicant is seeking bail purely on medical

ground.

4] According to him, vide order dated 18/4/2021, the Metropolitan

Magistrate, Holiday Court, has considered serious medical issues as

regards health condition of the Applicant, as he suffered Covid-19

lung disease with cytokine storm and associated multiple

comorbidities, low WBC count and immunosuppression, as is certified

1 BA-2591-2021.doc

by Dean of the KEM Hospital. Applicant was permitted to be shifted to

private hospital.

5] He would further claim that there is no Cardiac I.C.U. available

with KEM Hospital where Applicant is presently stationed/under

treatment. According to him, in view of multiple Comorbidities,

Applicant has rendered himself immunocompromised. As a

consequence, he is more prone to hospital acquired infections. He

would claim that in government setup due to heavy patient footprints,

Applicant suffered the acquired pneumonia which was required to be

treated with IV antibiotics. As such, according to him, making the

Applicant to undergo major procedure in infectious atmosphere would

further endanger his life. As such, there is high risk of he getting

infected. As such, Mr. Bobde would claim that Applicant, a senior

citizen, if permitted to be shifted to private hospital, he shall bear his

own cost of transportation, escort and medical expenses.

5] So as to substantiate his contention that Applicant has

constitutional right to claim better medical facilities, he has drawn

support from the judgment in the matter of P.V. Varvara Rao vs

1 BA-2591-2021.doc

National Investigation Agency and Another reported in 2021 SCC

OnLine Bom 230, particularly the observations made in paras 83, 84

and 85.

6] Learned APP Ms. P.P. Shinde while opposing the prayer has

invited attention of this Court to the earlier orders passed from time

to time on interim applications so also main application. She would

rely on the report submitted by Chief Medical Officer of Mumbai

Central Prison, Mumbai and also communication dated 13 th October,

2021 received from the office of Dean, KEM Medical College. The said

communication reads thus:

"Mr. Rakesh Kumar Wadhwan, as has been previously mentioned, is suffering from Long Covid after he was infected with Severe form of Covid-19 infection. This has resulted in his Immunocompromised status.

He has Multiple Comorbidities like Diabetes, Blood Pressure, Sleep Apnoea, Chronic Kidney Disease and a known Case of Coronary Artery Disease. He was treated in the past with Coronary Angioplasty/Stent.

Recently he has undergone Dual Chamber Pacemaker Implantation after he developed Breathlessness, Low/Irregular Heart Beats and drop in Oxygen saturation.

His Coronary Angiogram shows Critical Calcific

1 BA-2591-2021.doc

Blockage of one of his Coronary Artery, which needs Angioplasty/Stent/Rotablator to stabilize his Heart Muscles.

           KEM         Hospital      is     undergoing     Major
           Repairs/Renovation at present.            The Cardiac

Operation Theatre/Cath Lab/Intensive Care Unit are all in the vicinity of these Repairs. His Angioplasty is a high risk procedure in view of his multiple Comorbidities and raw skin wound on Chest (which was used for Pacemaker Implantation).

It would not be prudent to comment on the expertise/facility available at other Government Hospitals in Mumbai."

It is further submitted by her on instructions that already regular

I.C.U. is operational at KEM Hospital where Applicant can be treated

in case of emergency and Cardiac I.C.U. shall be ready in all respects

within a period of one week from today. She further claimed that

Application is liable to be rejected as Applicant is made available best

of the treatment by expert doctors.

7]     Considered submissions.



8]     After health report was called from the Medical Superintendent,

Arthur Road Prison by judicial order on 9/9/2021, this Court noted

1 BA-2591-2021.doc

about referring the Applicant to KEM Hospital on 1/9/2021 for

Cardiac and other multi-organ involved medical treatment as same

could not be managed in prison hospital. Thereafter, on 17/9/2021,

this Court analysed report of doctor in regard to ailment and

treatment given to the Applicant and observed that Applicant is

entitled for medical assistance. However, once he is in judicial custody

and he can be made available appropriate treatment at KEM Hospital

where all expert facilities are made available to the Applicant, the

Court at interim stage has not shown any indulgence. The Court also

observed that in case of availing of services of expert consultants

whose names are mentioned by the Applicant, Dean, KEM Hospital

was directed to look into the same and permit visit of such experts

suggested by the Applicant after having consent from Dean, KEM

Hospital. Nothing is placed on record to demonstrate that Dean, KEM

Hospital has not accepted Applicant's request for permitting visit of

doctors of his choice to KEM Hospital. Thereafter, again on

24/9/2021, Court noted that patient requires immediate medical

treatment of acute nature and accordingly Applicant underwent

operation for pacemaker implantation and is recovering out of the

same.

1 BA-2591-2021.doc

9] In the aforesaid backdrop, what is noticed is, best possible

treatment at well known Government/Corporation Hospital is made

available to the Applicant. There is nothing on record to infer that

Applicant is not treated for his ailment. As regards comorbidities are

concerned, this Court expects that KEM Hospital Authorities shall be

taking appropriate precaution for the same.

10] In the backdrop of aforesaid, it cannot be inferred that right of

the Applicant guaranteed under Article 21 of the Constitution for

having proper medical treatment in super-speciality hospital is

violated. Rather, various medical treatments which are given to the

Applicant are proved to be lifesaving at this stage.

11] In the aforesaid background, claim put-forth by the Applicant

that he is immediately required to be released on temporary bail on

medical ground is not justified. As such, both these Applications lack

merit and stand rejected. As a consequence of rejection of both these

Bail Applications, pending Interim Applications are also rejected.

1 BA-2591-2021.doc

12] However, this will not preclude the Applicant from moving

afresh before the Court below in case of any emergency, particularly in

the backdrop of the one narrated in the foregoing para wherein Dean,

KEM Hospital has recommended shifting of Applicant to private

hospital.

( NITIN W. SAMBRE, J. )