'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 treatment as required cannot be provided from jail hospitals," it added.

However, the court noted that legislature has carved out another category i.e., 'infirm' in the proviso to section 45(1) PMLA. 

"In the present case, a perusal of the Applicant's medical records show that he has had seizure disorders and mild behavioural disorder (BPAD) which coupled with old age is a cause of concern. Requiring an attendant for quotidian activities further go to show the seriousness of the Applicant‟s infirmities," it said.

The court noted that in January, Kumar's condition worsened as he was referred to emergent medical help multiple times and that a senior medical officer on February 13 has opined that the applicant needs an attendant on a regular basis for timely medicines.

"He has suffered multiple episodes of seizures. The Medical Board has stated that the Applicant is stable with the medication. The logical inference drawn from the above is that the Applicant is not in a position to take his regular dosage of medicines which is a condition precedent for his survival from the ailments. The attendant is required as the applicant has had multiple episodes of seizures and in event of a seizure, timely medication is of primary importance," said the court.

The court said Kumar's medical records show that his seizures have become more frequent than before, "that makes him more vulnerable to injuries such as hemorrhage, and for which the dosage of medication has been increased."

"Thus, the aforementioned infirmities in a senile stage combined with constant 'attendant' support as noted in the report dated 13.02.2023 coupled with frequent seizures and abnormal behavioural disorder make the Applicant 'infirm' under the proviso to section 45(1) PMLA," said the court.

The court Kumar does not need to satisfy the twin test of section 45(1) PMLA once he falls in the exception clause of Section 45(1) proviso. It considered the triple test for bail and said Kumar is entitled to grant of bail.

"In the present case, the Applicant has been in custody for over 18 months. Investigation qua the Applicant is complete but no chargesheet has been filed yet. The Applicant was released on interim bail for a period of one month and after expiry of the same, he surrendered and there is no allegation of misuse of liberty by him while on bail," said the court.

Opposing the bail, the Enforcement Directorate had earlier argued that infirmity requires inability to carry out daily chores and functions due to irreparable body organ. It also submitted that it is a settled principle of law that if medical treatment can be provided by prison authorities, bail on medical grounds should not be granted. 

Title: KEWAL KRISHAN KUMAR vs ENFORCEMENT DIRECTORATE

Citation: 2023 LiveLaw (Del) 245

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