Bombay High Court
Ramesh C. Bawa vs State Of Maharashtra And Anr on 7 May, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-AS:21700 BA-2487-2022.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.2487 OF 2022
a/w
INTERIM APPLICATION NO.4017 OF 2022
IN
CRIMINAL BAIL APPLICATION NO.2487 OF 2022
Ramesh C. Bawa ] Applicant
Vs.
Serious Fraud Investigation Office ]
and another ] Respondents
.....
Dr. Sujay Kantawala a/w Sajal Yadav, S.K. Saxena, Anukul Seth,
Aayushya Geruja, Raj Raut, Harsh Ghangurde, for Applicant.
Mr. Hiten Venegaonkar, Special P.P a/w Ms. Divya Gontia and Mr.
Pradeep Yadav, for Respondent No.1.
Mr. M.G. Patil, A.P.P, for Respondent No.2 - State.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATE : 7th MAY, 2024.
ORDER:
1. The applicant is a 71 years old man who has been suffering
from several serious ailments including cancer and is already on
temporary bail on medical grounds, now prays for confirming the
said bail in light of the facts that he would be required to continue
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SHAILAJA Digitally signed by
SHAILAJA SHRIKANT
SHRIKANT HALKUDE
Date: 2024.05.09 17:05:45
HALKUDE +0530
BA-2487-2022.doc
to take treatment and that there is no likelihood of trial being
commenced during reasonable period.
2. The applicant has been arraigned as one of the several
accused in Company Petition No.20 of 2019 by the Serious Fraud
Investigation Officer, Mumbai (for short "SFIO") in connection
with File No. SFIO/INV/UNIT - V/1003/IL & FS/2018-19 for the
offences punishable under Section 447 of the Companies Act, 2013
and Sections 417, 420 r/w 120-B of the Indian Penal Code (for
short "I.P.C").
3. Shorn of unnecessary details, a few facts germane for disposal
of the application can be summarized as follows.
4. The applicant who is admittedly a senior citizen is currently
undergoing treatment for advanced stage of colon cancer known as
"Adenocarcinoma" as well as "Stomach Cancer". By an order dated
11th July, 2022, the Trial Court rejected his bail application on
medical grounds.
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5. This Court by an order dated 30th September, 2022 granted
temporary bail to the applicant for a period of eights weeks solely
on medical grounds in view of serious ailments for which the
applicant has been under the treatment of specialized Doctors.
6. It would be apposite to refer to a few facts of the
prosecution's case. The Ministry of Corporate Affairs in exercise of
it's powers under Section 212 (1) (c) of the Companies Act, 2013
"in public interest" and on the basis of cogent material formed it's
opinion that investigation into the affairs of Infrastructure Leasing
and Financial Services Limited (IL & FS) and it's subsidiary
companies is necessary and accordingly an order of investigation
dated 30th September, 2018 bearing No.03/679/2018/CL-II (WR)
came to be passed by the Ministry of Corporate Affairs, inter alia,
directing investigation to be conducted by respondent No.1.
7. After investigation, a report came to be submitted on 28 th
May, 2019 in the Special Court. In view of the said report, a
Company Petition No.20 of 2019 came to be filed before the
Special Court on 30th May, 2019. There are 30 accused arraigned
by the respondent No.1 of which the applicant is accused No.7.
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Admittedly, this Court by an order dated 7 th March, 2024, granted
bail to accused No.3.
8. Mr. Kantawala, learned Counsel for the applicant is at pains
to take me through a long history of various ailments and the
treatment being administered to the applicant. The applicant was
suffering from severe bleeding through anus due to piles since
several months. The said condition had aggravated. He had lost
considerable weight in two months and his gastro health was highly
inflamed. On 10th May, 2022, he was referred to St. George
Hospital for fresh examination in view of his deteriorating health
in Taloja Central Jail. At the time of examination, a mass to be of
cancerous origin (adenocarcinoma) was detected in colon of the
applicant. He was allowed to take treatment in a private hospital.
He was admitted in Nanavati Hopsital at Vile Parle wherein the
sigmoidoscopy and biopsy report dated 6 th June, 2022 confirmed
the fact that the applicant had cancerous mass/lump in his body and
Adenocarcinoma Colon.
9. Mr. Venegavkar, learned Special P.P, however, objected to
confirm medical bail of the applicant mainly on the premise that
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one more latest report is required to be called for in order to
ascertain health condition of the applicant. However, Mr.
Venegavkar did not seriously object the health condition of the
applicant even while releasing him on medical bail by this Court on
30th September, 2022.
10. In the first week of June, 2022, the applicant underwent
surgery for removal of said cancer mass from his body. However, his
condition continued to deteriorate. He was at fall risk and unable to
stand, walk or sit.
11. On 11th August, 2022, he was allowed to shift from Nanavati
Hospital to Dr. Das Hospital in Chembur. The request for shifting
was made due to the applicant's need for special and personalized
cancer care and treatment. There is no further progress in his
health, rather it has been deteriorating to a great extent as even his
immunity is compromised and his condition is extremely critical.
12. The latest report of the applicant from Nanavati Hospital
suggests that he needs a protracted period of specialized care
including stomach care, nursing care, repeated blood tests and
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multiple doctor visits with a general physician, medical oncologist,
urologist and Gastrointestinal onco surgeon which may not be
possible if he is kept in custody. The latest report from Nanavati
Hospital depicts that the applicant is in need of protracted
treatment with longstanding care. Relevant report is extracted
below;
"However, considering his current health
status, he will need a protracted period of
specialized care including stoma care,
nursing care, repeated blood tests and
multiple doctor visits with a general
physician, medical oncologist, urologist
and Gastrointestinal onco surgeon.
After a few weeks to months, once he has
recovered sufficiently, he will need a
revision surgery to reverse his colostomy.
He was transferred to an outside nursing
home on 14-8-22 for current ongoing
treatment with instructions to return to
Nanavati Max Hospital for the stoma
reversal surgery".
13. The latest report dated 26th February, 2024 given by Nanavati
Max Super Speciality Hospital is sufficient to demonstrate not only
the deteriorating health of the applicant at such an advanced age but
the kind of treatment required to be administered. The said report
is extracted below;
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"Medical Certificate : Case Summary
Mr. Bawa presented to Nanavati hospital on 13-
05-22 with h/o weight loss, alteration of bowel
habits, reduced appetite and extreme weakness,
all of which were progressive over the prior 3-4
months period. He also had retention of urine
for which a urinary catheter was placed.
He had been investigated at outside hospitals
and found to have a Hemoglobin of 7.5 gm%,
Left iliac fossa mass and prostatomegaly on
USG, Stool strongy positive for occult blood,
CEA 27.2 and a CECT abdomen which showed
a 10 x 7.2 x 6.1 mass arising from the bowel
wall in the sigmoid colon.
After admission to Nanavati Max Hospital, a
sigmoidoscopy and biopsy was performed which
proved the mas to be of cancerous origin,
adenocarcinoma colon. A PET CT revealed a
large cancerous growth in the sigmoid colon
and pulmonary arterial thrombi. A surgery was
performed for the removal of the lesion and a
colostomy drain was placed. This
histopathological exam of the surgical specimen
confirmed the diagnosis of cancer.
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After the surgery, the patient remains very weak
and fragile, needing continuous nursing care
and help to perform all activities including
sitting or standing. He needs a specialized
stoma care nurse to take care of the colostomy
site.
He had been started on chemotherapy due to
which he had significant side effects of dizziness,
hypotension peripheral edema, reduced appetite
and hyperpigmentation. He completed 11
cycles of chemotherapy and it has currently
been on hold till he regains his strength and
energy.
Apart from this he also suffers from an enlarged
prostate with recurrent urinary infections which
further contributes to his weakness and
disability. He needs a surgery for this as well
which is currently deferred till he is fit for the
same.
He was placed on blood thinners for a
pulmonary embolism that developed at the time
of initial diagnosis.
During the course of his biweekly follow up, he
continued to remain fragile and required
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supportive medications. Recently he developed
bleeding into his colostomy, following which he
was admitted to the hospital again and
underwent upper endoscopy.
This revealed a large bleeding polyp at the
gastroesophageal junction which showed an
adenoma with a signet ring adeno carcinomam
component.
Subsequent to this he underwent a PET CT
which suggested a mild thickening at the site of
the polyp and an additional site of uptake at the
left psoas muscle. He was advised urgent
surgery.
He was admitted under my care on 31.08.23 to
Nanavati Max Super-speciality Hospital.
On 1-9-23, he has undergone a partial
esophago-gastrectomy with D2
lymphadenectomy. Proximal stomach and
extensive distal esophagus was needed to be
resected with a laparotomy and a left thoracic
incision. The procedure lasted about 9-10
hours and was performed under general
anesthesia.
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His post op period was marred by a chest fluid
collection which continues to hamper his
movements and breathing.
He has been on close follow up since this
procedure. His is recovering but very slowly.
He remains weak, dependent on nursing care
and at least 1 person at all times for support for
minimal ambulation. He is also unable to eat
properly to meet his total nutritional needs due
to his surgery. He has lost more than 20 kg
since the procedure.
Overall with his current poor general condition
and the burden of this additional cancer and its
treatment, his prognosis is rather unfavourable.
He is likely to remain completely dependent on
acute medical services and supportive care for
the rest of his life."
14. Mr. Kantawala, learned Counsel for the applicant has invited
my attention to the provisions of Section 212 (6) (ii) of the
Companies Act, 2013 laying down twin conditions in addition to
the regular conditions under Code of Criminal Procedure, 1973 for
grant of bail which, according to him, are not applicable in the
present case as the said embargo excludes persons who are sick or
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infirm. The relevant portion of the provisions of the Companies
Act, 2013 dealing with Bail for offences under the Companies Act,
2013 is reproduced below;
"212 (6) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of
1974) 1 [offence covered under section 447] of
this Act shall be cognizable and no person
accused of any offence under those sections
shall be released on bail or on his own bond
unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release; and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely
to commit any offence while on bail;
Provided that a person, who, is under the age of
sixteen years or is a woman or is sick or infirm,
may be released on bail, if the Special Court so
directs".
15. Mr. Kantawala would also place reliance on a few decisions in
which the facts are more or less identical. There is no dispute that in
view of sub clause (ii) of Section 212 of the Companies Act, 2013,
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this Court is empowered to grant bail to a person who is under the
age of sixteen years or is a woman or is sick or infirm.
16. Mr. Kantawala would also place reliance on a decision in the
case of Lalit Goyal Vs. Directorate of Enforcement and another 1. In
this case, the Punjab and Haryana High Court held thus;
"After hearing learned counsel for the parties and
going through the medical record of the
petitioner, which is based on a report of Medical
Board comprising of seven doctors, constituted by
Civil Surgeon, Ambala, I find that case of the
petitioner would be covered under proviso to
Section 45(i) of PMLA as he is a sick person
requiring urgent medical treatment, especially in
view of the fact that while in custody for a period
of about 03 months, he was repeatedly advised
medical care, as noticed in earlier part of this
order.
Accordingly, this petition is allowed and the order
dated 24.02.2022 passed by this Court, granting
interim bail to the petitioner, is hereby made
absolute".
The said judgment was challenged before the Hon'ble Supreme
Court by way of Special Leave Petition 2. The Supreme Court has
observed thus;
1 2022 SCC Online P & H 4187
2 Special Leave Petition (Crl.) Diary No (s) 12164/2022
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"2. Having heard Mr. Jayant Bhushan, senior
counsel appearing on behalf of the petitioner
and Mr. Mukul Rohatgi, senior counsel
appearing on behalf of the first respondent, we
seen no reason to entertain the Special Leave
Petition on the merits of the order granting bail
on medical grounds. However, Mr. Mukul
Rohatgi has stated that the first respondent will
physically mark his presence once a week before
the Investigating Officer of the Enforcement
Directorate either at Gurugram or at Delhi, as
the case may be. The direction for the marking
of the presence through video conferencing
shall accordingly stand modified with the
aforesaid direction.
3. Subject to the aforesaid, the Special Leave
Petition is dismissed.
4. Pending application, if any, stands disposed
of ".
17. Mr. Kantawala has further pressed into service an order of
this Court in case of Dr. P V Varavara Rao Vs. National
Investigation Agency3 Relevant paragraph is extracted below;
"31(d) It was submitted that the Taloja Central
Prison hospital did not have any facility to deal
with the health issues regularly being faced by
the under trial. It was stated on affidavit before
this court that there were no doctors at the
Taloja Central Prison hospital and that there
were only three ayurvedic practitioners to look
3 2021 SCC Online Bom. 230
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after the inmates who were suffering from
health issues. It was specifically stated that
mandatory requirements under the Maharashtra
Prison Hospital (Amendment) Rules 2015,
framed under the Prisons Act, 1894, were not
followed in the Taloja Central Prison hospital. It
was specifically submitted that there were no
staff nurses, no pharmacists, no compounders,
no nursing assistance, no lab technicians and no
medical specialists at all, to attend to the
inmates at the Taloja Central Prison hospital.
On this basis, it was submitted that if the
undertrial was not granted bail on medical
conditions and he was to be sent back to Taloja
Central Prison hospital, the life of the undertrial
would certainly be endangered. On this basis, it
was reiterated that continued incarceration of
the under trial was wholly incompatible with his
health condition and that, therefore, the appeal
as well as the writ petitions deserved to be
allowed".
After hearing the aforementioned submissions,
the Hon'ble Bombay High Court held;-
75. In view of the aforesaid material and
sequence of events, we have come to the
conclusion that sending the undertrial back to
Taloja Central Prison would certainly endanger
his life. In fact, continued custody of the
undertrial at the Taloja Central Prison is wholly
incompatible with his health condition, because
the hospital at the Taloja Central Prison is not
adequately equipped to take care of the
undertrial, given his advanced age and various
health conditions".
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18. In case of Father Stan Swamy Vs. State of Maharashtra, 4 the
Supreme Court held thus;
"13. Pursuant to the liberty granted by Vacation
Court, matter was mentioned by way of filing
praecipe and after informing learned advocates
appearing for the respective parties, and accordingly
the same is taken on board. It is not in dispute that the
age of the appellant is 84 years and even according to
medical reports/findings recorded by the team of
doctors from the J.J. Hospital, the appellant needs
further treatment as mentioned in the report. There is
no doubt that the J.J. Hospital, Mumbai is equipped
with good doctors, medical staff, equipments and
medicines. However, due to present pandemic
situation and influx of patients in the said hospital, it
may not be possible in said hospital to give personal
attention to the appellant who is 84 years of age. As
already observed the appellant is of 84 years of age
and while hearing this appeal on 21st May, 2021, this
Court has interacted with the appellant through video
conferencing and asked his choice, whether he want
to take treatment in the J.J. Hospital or in any other
hospital of his choice including Holy Family Hospital.
In that view of the matter and in view of the
submissions made across the bar by Mr. Mihir Desai,
learned Senior Advocate appearing for the appellant
and averments in the additional affidavit on behalf of
the appellant, we are of the view that the appellant
can be given choice of being admitted in Holy Family
Hospital at Bandra for treatment for a period of 15
days from the date of his shifting to said hospital.
4 2021 SCC Online Bom 757
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14. Accordingly, the respondents and in particular
Respondent No. 2, are directed to shift the appellant
to Holy Family Hospital at Bandra for treatment
immediately, and preferably during the course of day".
15. As submitted by Mr. Mihir Desai, learned Senior
Advocate appearing for the appellant during the
course of arguments, the appellant will bear all the
expenses for his treatment in the said hospital.
Unfortunately, Father Stan Swamy met with a tragic end as he
passed away while undergoing medical treatment in judicial custody.
19. The Hon'ble Supreme Court in case of Jainam Rathod Vs.
State of Haryana and another5 has granted bail to the appellant who
was being prosecuted for violation of the provisions of Section 447
of the Companies Act, 2013 as well as various provisions of the
Indian Penal Code, 1860, including Sections 406, 417, 418, 420,
467, 468, 471, 474 and 477A. A Special Leave petition preferred by
the appellant was dismissed by the Supreme Court on 27 th January,
2020 with observations that it was always open for the appellant to
move a fresh application for bail. It would be apposite to extract
paragraphs 7 to 9 of the said order which read thus;
"7. The appellant is in custody since 28 August 2019.
187 accused are named in the criminal case by the
5 Criminal Appeal No.640 of 2022
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prosecution. It is stated in the counter affidavit that all
except 27 of them have appeared. It is evident that
even as regards the balance, proclamation proceedings
are intended to be initiated pursuant to the order of
the Special judge dated 25 March 2022. The
proceedings are now listed before the Special Judge in
July 2022.
8. In this backdrop, in the absence of a fair
likelihood of the trial being completed within a
reasonable period, this Court must be mindful of the
need to protect the personal liberty of the accused in
the face of a delay in the conclusion of the trial. We are
inclined to grant bail on the above ground having
regard to the fact that the appellant has been in
custody since 28 August 2019. In Nittin Johari (supra),
this Court has held:
"24. At this juncture, it must be noted that
even as per Section 212 (7) of the
Companies Act, the limitation under
Section 212 (6) with respect to grant of bail
is in addition to those already provided in
CrPC. Thus, it is necessary to advert to the
principles governing the grant of bail under
Section 439 of CrPC. Specifically, heed
must be paid to the stringent view taken by
this Court towards grant of bail with
respect of economic offences."
While the provisions of Section 212 (6) of the
Companies Act 2013 must be borne in mind, equally,
it is necessary to protect the constitutional right to an
expeditious trial in a situation where a large number
of accused implicated in a criminal trial would
necessarily result in a delay in its conclusion. The role
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of the appellant must be distinguished from the role of
the main accused.
9. For the above reasons, we allow the appeal and
direct that the appellant be released on bail, subject to
such terms and conditions as may be imposed by the
Special Judge in connection with Complaint No 3 of
2019.
(emphasis supplied)
20. The Hon'ble Supreme Court has also noted it's judgment in
the case of Serious Fraud Investigation Office V. Nittin Johari 6 while
granting bail to the appellant Jainam. The appellant was released in
light of the fact that in the absence of a fair likelihood of the trial
being completed within a reasonable period, personal liberty of the
appellant is to be protected in case of delay in conclusion of the
trial.
21. This Court in the case of Sant Lal Aggarwal Vs. Serious
Fraud Investigation Office,7 granted bail to an individual who was
facing prosecution under Section 447 of the Companies Act, 2013
and was in custody for eighteen months. It was observed that the
applicant was 63 years old and was suffering from various health
ailments which required constant medical attention. It was one of
6. (2019) 9 Supreme Court Cases 165
7. Criminal Bail Application No.785 of 2023
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the considerations while granting bail. Relevant paragraph is quoted
below for advantage;
"14. The applicant is 63 years of age. It is thus seen
that the applicant needs constant medical treatment.
No doubt the same is available and provided to the
applicant at Sir J. J. Hospital and in prison hospital.
However, I have no hesitation in opining that the
applicant needs constant medical attention
considering his age and ailment. The age and medical
condition of the applicant is one of the circumstance
which I have taken into consideration for enlarging
the applicant on bail".
22. In a recent decision of the Supreme Court in case of
Satyendra Kumar Jain Vs. Directorate of Enforcement, 8 Supreme
Court granted bail to the accused on medical ground. It was
observed that the citizen has a right to take treatment of his choice,
at his own expenses, in a private hospital.
23. It is a matter of record that at the time of granting interim
bail to the applicant on medical grounds, Bail Application No.2487
of 2022 was not finally disposed of. Operative part of the order says
that the application was partly allowed. Thereafter, various Interim
Applications were moved before the Co-ordinate Benches of this
Court in which the learned Special Public Prosecutor appeared,
8 2023 Supreme Court Cases Online SC 686
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however, he did not raise the point which has been raised now at
the time of entertaining the present application that unless the
applicant first surrenders and moves a fresh application, present
application cannot be entertained. It is well-known that the
procedure is handmaid of justice. This technicality, in my view,
would not come in the way of the applicant seeking confirmation of
the interim bail granted on medical grounds by this Court on 30 th
September, 2022. Be that as it may.
24. It would be apposite to refer to one of the Interim orders
passed by this Court (Coram: M.S. Karnik, J.) on 30 th November,
2022. It was passed in an Interim Application No.4017 of 2022 in
Bail Application No.2487 of 2022. This Court had extended the
temporary bail granted to the applicant for further period of two
weeks by giving brief summary of the medical certificate. The
applicant was to be examined by a Panel of Doctors of J.J.
Hospital, Mumbai comprising of Dean, General Physician, Medical
Oncologist, Urologist and Gastrointestinal Oncosurgeon. The
applicant was directed to appear before the Panel and report of the
said Panel on the health condition of the applicant was called for.
Thereafter, from time to time, various orders came to be passed by
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the Co-ordinate Benches. As such, the application for bail bearing
No.2487 of 2022 was not finally disposed of.
25. Having taken into consideration the entire history of the
applicant as well as various decisions of the supreme Court and this
Court, interim bail granted to the applicant by this Court stands
confirmed in view of the following order;
:ORDER:
(a) The application is allowed.
(b) The applicant - Ramesh C. Bawa be
enlarged on bail upon executing a P.R bond in the
sum of Rs.1,00,000/- with one or two sureties in
the like amount to the satisfaction of the Special
Court in connection with File No.
SFIO/INV/UNIT-V/1003/IL & FS/2018-19 for the
offences punishable under Sections 447 of the
Companies Act, 2013 and Sections 417, 420 r/w
120-B of the I.P.C.
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(c) The applicant shall attend the Special Court
scrupulously, unless exempted.
(d) The applicant shall not leave the
jurisdiction of the Special court till conclusion of
the trial.
(e) The applicant shall surrender his passport
before the Special Court within a week from the
date of passing of this order.
(f) The applicant shall furnish his latest/
permanent address of residence as well as contact
details, forthwith to the Investigating Officer and
the Special Court. In case of change of residential
address or cell number (contact details), the same
shall be forthwith informed to the Investigating
Officer as well as the Special Court.
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(g) The applicant shall not tamper with the
evidence or attempt to influence or contact any of
the witnesses or persons concerned with this case.
(h) The applicant shall keep the Investigating
Officer and the Special Court informed, in case of
his admission in any Hospital with details as
regards date of admission and discharge.
(i) In case of breach of any of the aforesaid
conditions, the prosecution shall be at liberty to
seek cancellation of bail.
26. The application stands disposed of in the aforesaid terms.
27. In view of disposal of the Bail Application, pending Interim
Application stands disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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