INDIA registered twin successes on the question of extradition of fugitives from other countries recently. While it secured the extradition of Christian Michel, a British national and the alleged middleman in the AgustaWestland chopper deal, from the United Arab Emirates (UAE), a U.K. court, after year-long proceedings, found Vijay Mallya extraditable to India. Both the successes are, however, riddled with uncertainties. While it is not at all certain whether India has adequate proof to justify Michel’s extradition and continued detention in India, Mallya is sure to avail himself of legal remedies to appeal against the U.K. lower court’s order of extradition in order to delay his deportation to India.
The logic of extradition of an alleged criminal from one country to another is simple: the trial for a crime, if held in the vicinity of the crime, enables easy collection of evidence, and if it leads to successful conviction and sentencing, it will send a strong message that a crime will not go unpunished merely for jurisdictional reasons.
The law of extradition, however, transcends its immediate logic. It seeks to harmonise crime control with the protection of human rights of the fugitives, guaranteeing due process to the latter. Thus, compliance with the procedure established by law, before the surrender of the fugitive from one country to another, is an imperative. This includes a judicial inquiry by a magistrate, followed by a formal decision by the government.
In India, the extradition of a fugitive from India to a foreign country or vice versa is governed by the Extradition Act, 1962. An extradition treaty between two countries specifies the conditions to be satisfied for extradition. A list of crimes that are extraditable is also included in the treaty. In the absence of a treaty, extradition may be permitted if it has the backing of the principle of reciprocity. A treaty is a mutually agreed text signed and ratified by two sovereign governments. An extradition arrangement is made in the absence of a treaty on the assurance of reciprocity, including those under international conventions.
According to the reply to a query of a member, furnished by the Minister of State for External Affairs, V.K. Singh, in the Rajya Sabha on March 22, India has extradition treaties with 48 countries. These include the United States, the UAE, Hong Kong (China), Belgium, Bulgaria, France, Germany, Lithuania, the Netherlands, Poland, Portugal, Spain, Switzerland and the United Kingdom. India has extradition arrangements with 10 countries, including three European countries, namely, Croatia, Italy and Sweden. Since 2014, four fugitives have been extradited to India. In the last 15 years, as per a reply furnished in the Lok Sabha on August 9, 2017, by V.K. Singh, 47 fugitive criminals have been extradited/deported from India to the countries concerned, whereas 62 fugitive criminals have been extradited/deported to India from various countries.
Section 105 of the Code of Criminal Procedure speaks of reciprocal arrangements to be made by the Central government with foreign governments with regard to the service of summons/warrants/judicial processes. Accordingly, the Ministry of Home Affairs has entered into mutual legal assistance treaties (MLATs)/agreements on criminal matters with 39 countries, which provide for serving of documents. In other cases, the Ministry of Home Affairs makes a request on the basis of an assurance of reciprocity to the foreign government concerned through the Ministry of External Affairs or the Indian mission/embassy in that country.
A country having an MLAT with India has an obligation to consider serving the documents, whereas the countries that do not have an MLAT are under no obligation to consider such a request. On August 3, India submitted to the Ministry of Foreign Affairs of Antigua and Barbuda a request for extraditing the fugitive diamond merchant Mehul Choksi. There is an extradition arrangement between the two countries. India forwarded the Enforcement Directorate’s (E.D.) request for extraditing another fugitive and Choksi’s co-accused in the Rs.14,356-crore Punjab National Bank fraud, Nirav Modi, from the U.K. on August 3, on the basis of two red-corner notices issued by it. India is awaiting responses to both the requests.
The extradition request for Mallya was sent to the British government on February 9, 2017. The Westminster Magistrate’s Court in London ruled in India’s favour on December 10, when it dismissed Mallya’s submission that India’s request was politically motivated and that prison conditions in India were abysmal.
The Senior District Judge (Chief Magistrate) Emma Arbuthnot also rejected Mallya’s contention that the judiciary in India was corrupt and that he was susceptible to media trial. Mallya and his Kingfisher Airlines and United Breweries Holdings were tagged as wilful defaulters in 2014. He is wanted in India for alleged fraud and money laundering amounting to about Rs.9,000 crore. He escaped to the U.K. in March 2016, by taking advantage of the dilution in a Central Bureau of Investigation (CBI) lookout notice against him.
The Crown Prosecution Service (CPS) laid out the Indian government’s primafacie case of fraud and money laundering against Mallya and argued that there was no bar on his extradition to India on human rights grounds. The CPS argued that Mallya never intended to repay the loans he sought in the first place because Kingfisher Airlines’ demise was inevitable.
Mallya’s answer is that the airline’s alleged default of bank loans was the result of business failure rather than dishonest and fraudulent activity by him. His counsel sought to establish that Kingfisher was suffering from consequences of a wider global financial crisis around 2009-10 and that its failure was a result of factors beyond its control.
Mallya became the first person to be tried under India’s new Fugitive Economic Offenders Act, 2018. The Act provides for expeditious confiscation of proceeds of crime and properties or benami property owned by a fugitive economic offender in India or abroad with a view to making him submit to the jurisdiction of courts in India. In her judgment, Emma Arbuthnot concluded: “The conduct (of Vijay Mallya) would constitute the offences of making false representations to make a gain for himself, conspiracy to defraud and money laundering. The conduct is punishable in India by imprisonment for longer than 12 months.” Finding a prima facie case in relation to three possible charges, she sent Mallya’s case to the Home Secretary of State for a decision to be taken on whether to order his extradition.
Other cases
The total number of fugitives India has requested the U.K. to extradite since 2002 is 28, but only one person, Samirbhai Vinubhai Patel, has so far been extradited. He was extradited on October 18, 2016. Patel is facing trial in the case of post-Godhra riots in Ode village, where on March 1, 2002, 23 people of a community were burnt alive. India and the U.K. signed the extradition treaty in 1992 and it became effective in 1993.
The Central Crime Branch, Tamil Nadu police registered an FIR on October 13, 2010 against Lalit Modi, the first chairman and commissioner of the Indian Premier League. On the basis of criminal investigations, a case under the Prevention of Money Laundering Act (PMLA), 2002, was registered by the E.D. At its request, Lalit Modi’s passport was revoked by the Regional Passport Office, Mumbai, on March 3, 2011, which was later restored to him on the directions of the Delhi High Court.
In November 2012, the British government was formally requested to deport Lalit Modi to India. Vide its message dated December 21, 2012, the British government denied India’s request, citing its domestic laws. However, it suggested that India submit a request under the usual mechanism for international judicial cooperation.
Accordingly, the E.D. issued a Letter of Request by the Special Court, PMLA, Mumbai, for the execution of a non-bailable warrant on Lalit Modi and his consequent transfer to India in terms of the relevant provisions under the PMLA, 2002, and the India-U.K. MLAT. The Letter of Request was forwarded to the competent authorities in the U.K. on February 6, 2017. A formal response from the U.K. side is still awaited. The Ministry of External Affairs has not received any formal request for extradition of Lalit Modi from the law enforcement agencies concerned.
After India sends a request for extradition to the U.K. Secretary of State, he or she decides whether to certify the request. After that a court decides whether to issue a warrant for arrest. Thereafter, the person wanted is arrested and brought before the court. This is followed by a preliminary hearing and an extradition hearing. If the court rules in favour of extradition, the Secretary of State decides whether to order it or not. The judge also decides if extradition would be disproportionate or would be incompatible with the requested person’s human rights. The decision of the Secretary of State can be appealed at a high court in the U.K. and the order of the high court can be appealed at the U.K. Supreme Court. Extradition is prohibited if it exposes the person to possible death penalty.
According to a reply furnished by V.K. Singh in the Lok Sabha on March 14, the U.K. government declined to extradite nine fugitives to India. They are Raymond Andrew Varley, wanted in the Goa orphanage child sexual abuse case; Ravi Shankaran, an arms dealer, wanted in the Navy War Room Leak case; Ajay Prasad Khaitan, wanted for counterfeiting and forgery; Virendra Kumar Rastogi, Anand Kumar Jain, Velu alias Boopalan alias Dileepan alias Niranjana (wanted in connection with a 1992 bomb blast on a railway track in Tamil Nadu); and the fugitive entrepreneurs J.K. Angurala, Asha Rani Angurala and Jakkula Srinivas.
The U.K. courts have declined to issue arrest warrants on three Indian fugitives on the grounds of insufficient evidence. They are Rishikesh Surendra Kardile, wanted in a matrimonial dispute; Patrick Charles Bowering, accused of stealing antiques from India and smuggling; and Kartik Venugopal. As on March 14, there were 16 extradition requests pending with the U.K. government.
The case of Christian Michel
Christian Michel was allegedly one of the middlemen who brokered the AgustaWestland chopper deal and paid bribes to officials and politicians to swing the contract in favour of AgustaWestland, the British arm of the Italian firm Finmeccanica (now known as Leonardo).
Soon after the Kargil war in 1999, the Indian Air Force (IAF) communicated the need for modern VVIP choppers, in place of the outdated Mi-8 choppers, meant to ferry the President, the Prime Minister, and other VVIPs. In 2002, the Ministry of Defence floated the request for proposal (RFP) to which six companies responded. Only Eurocopter 225 met the initial requirement that the choppers should be able to fly at a height of 6,000 metres. However, the Special Protection Group flagged the low cabin height of 1.39 m, and stated that this design was not fit for VVIP conveyance. The RFP was then modified to specify the height at which it can fly, and its cabin height.
The new specifications, a lowered flying ceiling of 4,500 m and an increased cabin height of 1.80 m were authorised by the then IAF chief, S.P. Tyagi. In 2006, the new RFP was floated, and only two companies qualified—Sikorsky and AgustaWestland. In 2010, the United Progressive Alliance (UPA) government signed a deal with AgustaWestland to purchase 12 AW101 helicopters for the IAF for Rs.3,600 crore. The first of the choppers arrived in India in 2012; two arrived later. The three remain grounded at Palam airport. Controversy erupted over the deal in 2013.
Finmeccanica chairman Giuseppe Orsi and AgustaWestland chief executive officer Bruno Spagnolini were arrested in February 2013 on charges that they bribed middlemen to clinch the deal with the IAF. The middlemen were Guido Ralph Haschke, his partner Carlos Gerosa, and Michel. Italy refused to extradite Carlo Gerosa to India, saying it did not have an MLAT with India. India’s extradition arrangement with Italy is restricted to drug-related offences, whereas India’s only case against Gerosa is a red-corner notice request from the E.D. in connection with the money laundering case.
The UPA government ordered the probe against middlemen and beneficiaries, and in 2014, it cancelled the deal on the grounds that the integrity pact had been violated. The government recovered most of the money paid to the Italian company for the contract.
In 2016, an Italian appeals court in Milan ruled that the Rs.3,565-crore contract involved payoffs to Indian officials. Orsi was sentenced to four and a half years in prison, while Spagnolini was given a four-year jail term. The court ordered the two to pay 7.5 million euros, corresponding to the amount that was allegedly paid by way of bribes to Indian officials.
However, on January 8 this year, both were acquitted, citing insufficient evidence. It is not clear whether India can rely on the same evidence to prosecute Michel when it has already been rejected by an Italian appellate court. Tyagi was arrested in 2016 by the CBI for approving the tweaking of the specifications, which led to the AgustaWestland contract. The CBI said in its report that the IAF had opposed the proposal to lower the altitude requirement before Tyagi took over as its chief and agreed to reduce the height requirements to allow AgustaWestland to re-enter the bidding process.
Fugitives at large
According to the CBI, Indians involved in financial irregularities with banks and those under criminal investigation (who have been living abroad/fled abroad) between 2015 and 2018 are Pushpesh Baid, Ashish Jobanputra, Vijay Mallya, Sunny Kalra, Aarti Kalra, Sanjay Kalra, Varsha Kalra, Sudhir Kumar Kalra, Jatin Mehta, Umesh Parekh, Kamlesh Parekh, Nilesh Parekh, Vinay Mittal, Eklavya Garg, Chetan Jayantilal Sandesara, Nitin Jayantilal Sandesara, Diptiben Chetankumar Sandesara, Nirav Modi, Neeshal Modi, Mehul Choksi, Sabya Seth, Rajiv Goyal and Alka Goyal. To this, the E.D. has added five more names: Hitesh Narendrabhai Patel, Mayuriben Patel, Ashish Suresh Bhai, Priti Ashish Jobanputra and Lalit Modi.
According to a reply furnished in April in the Rajya Sabha by V.K. Singh, there are 150 extradition requests pending with various countries. In addition to these, the Ministry received 16 more requests. Clearly, there is a case for pursuing the extradition of fugitive economic offenders without politicising one or two odd success stories whose eventual outcomes are currently uncertain.
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