[DHFL-Yes Bank scam] Bombay High Court allows Dheeraj Wadhawan to undergo surgery at private hospital

Fundamental right to life of prisoners includes right to health, the Bombay High Court observed on Friday while allowing a plea filed by DHFL promoter Dheeraj Wadhawan, prime accused in the multi-crore Yes Bank scam, to undergo nasal surgery at Kokilaben Dhirubhai Ambani private hospital. .Single-judge Justice Prakash D Naik quashed an order passed by a special Central Bureau of Investigation (CBI) court which had ordered the accused to undergo the surgery at the State-run JJ hospital. "Indeed, a prisoner is entitled to fundamental rights. The right to life and liberty also include his right to health," the Bench observed.The judge then took into account the recent report submitted by the Kokilaben hospital, which said that Wadhawan was on antibiotics for his infection.The further course of referring to ENT surgeon would be subject to court orders and a nasal surgery, if allowed, would require extension of his length of stay in the hospital by two weeks."From this report it is apparent that the petitioner is required to undergo surgery and as a matter of fact, he was discharged from Kokilaben and is presently detained at Taloja and the report from JJ also states that he was taken there for further treatment but he isn't giving his consent for the same," the judge noted.Thus, the Court held that in the current situation he can undergo nasal surgery at Kokilaben hospital though he would not be required to be continuously hospitalised there. "Thus, in the current situation, it can be said that he is not required to be hospitalised continuously at Kokilaben, however, he is required to undergo a nasal surgery. The reports placed on record indicates that he has undergone surgeries and has been hospitalised at Kokilaben from past several months. From the light of these circumstances, he can be permitted to undergo nasal surgery at Kokilaben hospital," the bench ordered.Justice Naik asked the authorities to take Wadhawan to Kokilaben hospital for mandatory tests on April 12, on which day, the date for surgery would be fixed."His stay (at the hospital) shouldn't exceed more than two weeks," the judge clarified..The order was passed in Wadhawan's plea filed through Rashmikant and Partners challenging the orders of the special CBI court passed on March 22, 2021 ordering Wadhawan to be shifted to J J hospital from Kokilaben hospital.The special CBI court was miffed with the fact that Wadhawan continued to be hospitalised for over 14 months that too without informing it about his health conditions. The court observed that it was kept in dark by Wadhawan, who managed to be out of jail for more than 14 months out of his 15 months incarceration.Wadhawan is accused in two cases - one is being probed by the CBI while the other by the Enforcement Directorate (ED) - and thus has been in custody of both the special CBI court as well as that of the special court hearing Prevention of Money Laundering Act (PMLA) cases. While the special CBI court stated that it held "primary" custody of the accused since it was the first court to remand his custody, the bench of Justice Naik said the court erred in making such "unwarranted" observations. Notably, Wadhawan had been hospitalised since December 2020 at KEM and later in Kokilaben hospital, where he reportedly underwent a few surgeries. He claimed that his health has deteriorated after his arrest and thus have been in and out of hospitals in the city.During the hearings held earlier, Wadhawan's counsel Senior Advocate Amit Desai had highlighted the fact that his client was shifted to hospital from Taloja Central Prison after a special court PMLA court passed an order to that effect taking cognizance of his health conditions.."Both the special CBI court and also the special PMLA court are parallel courts having two different proceedings," Justice Naik said. He added that there might be situation of medical urgency and accused might be needed to shift to a hospital and orders might be needed from a court. In such a situation, it wouldn't be possible for the accused to move each and every court, which is seized of his case and and seek a similar prayer.The High Court also noted that if any undertrial prisoner is found playing fraud on the court, then the special court could make stern observations, but that would depend on the facts of the concerned case."The CBI court has also observed in the impugned orders that the petitioner was in a private hospital for a long time. These are general observations. If it is found that any undertrial prisoner has played a fraud on the court and have obtained ordersm then it is justifiable for any court to make such observations. The facts of this case are however, different and it requires consideration if accused needs hospitalisation," the judge said..Desai appeared for Wadhawan along with Senior Advocate Abad Ponda and Advocates Kushal Mor briefed by Advocate Rohan Dakshini from Rashmikant & Partners.CBI was represented by advocate Hiten Venegaonkar.