Bombay HC permits Dheeraj Wadhawan to undergo surgery at private hospital – Times of India

MUMBAI: Bombay high court on Friday set aside a March 22 order passed by the special CBI court that had directed shifting DHFL promoter Dheeraj Wadhwan out of the private superspeciality Kokilaben Dhirubhai Ambani Hospital to State run JJ hospital.
Wadhwan had then been shifted back to Taloja prison. The HC permitted his admission to Kokilaben hospital on April 12-13 for tests and for a nasal surgery when fixed.
Justice P D Naik passing the order on Wadhwan’s challenge to the CBI court order, said after the schedule for nasal surgery is fixed, he will be admitted to Kokilaben for surgery and for post-surgery too for two weeks.
The principal challenge in the HC by Wadhwan, an accused in the Yes Bank case, represented by senior counsel Amit Desai with advocate Rohan Dakshini was that the Central Bureau of Investigation (CBI) court can’t sit in appeal over the PMLA court order of June 1, 2021, requiring Wadhwan to be kept in Kokila Ben hospital pending a second opinion.
CBI counsel HS Venegaonkar had opposed Wadhawan’s plea and said the Taloja prison officials were regularly taking him to JJ hospital and would provide him necessary medical attention when needed.
The HC however agreed with Desai that scope and effect of section 267 Criminal Procedure Code (power of court to require attendance of prisoners) is completely different and doesn’t apply to this case.
Desaid said when you are in judicial custody there is no concept of primary and secondary court and so long as a court in which the accused is in custody of, and is monitoring his health then the law does not require that every single court which has jurisdiction over him needs to be approached.
“If it is found that any undertrial prisoner has committed fraud in court, then it is justifiable for any court to make such observations. However, facts of each case have to be looked into and to be considered if the situation demands hospitalisation of undertrial. This is a settled principle of law in several decisions that prisoners have fundamental rights and right to life includes right to health,’’ said Justice Naik.
The HC said the report from J J Hospital on April 6 also said he needs further treatment.
“Looking at the current situation, the petitioner is not required to be hospitalized continuously at Kokilaben. However, he is required to undergo nasal surgery. Apparently the J J hospital report indicated that he did not consent for an endoscopy. His counsel had submitted that he is on blood thinners and in order to conduct endoscopy, blood thinners required to be stopped five days in advance.’’
The HC thus permitted him to undergo surgery at Kokilaben hospital.
The HC observed that when there are two parallel courts where two different proceedings are happening, in certain situations, there may be an emergency if an undertrial prisoner is suffering from medical reasons, it may not be possible for the prisoner to move every concerned court to prefer similar prayer.
In the present case, PMLA court had passed its order based on the circumstances and the HC said it was difficult to accept that although PMLA court has said order relates to proceedings pending before it, the order could be set at nullity—on an application filed by the agency.
The CBI court had said the PMLA order was of no consequence and had directed him to be shifted to JJ.
The relief by Justice Naik is subject to conditions stated in the order of a special court set up under Prevention of Money Laundering Act (PMLA).