Case BriefsForeign Courts

Westminster Magistrates’ Court: Marking a significant development in the Punjab National Bank fraud case, District Judge Sam Goozée while deliberating upon request submitted by the Government of India for the extradition of Nirav Modi held that, Modi’s extradition to India is compatible with his ECHR Convention rights within the meaning of Human Rights Act, 1998, therefore for further processes as per Section 87(3) of Extradition Act, 2003, the case shall be sent to the Secretary of State for a decision as to whether Nirav Modi is to be extradited. The Court also notified Mr Modi that he has the right to appeal to the High Court (on a point of law or fact or both) against the Judge’s decision to send the matter to the Secretary of State. However, it was clarified that in case Mr Modi chooses to exercise his right to appeal, the appeal will not be heard until the Secretary of State has reached a decision on the matter.

Background

CBI and Enforcement Directorate Cases: In January 2018, CBI received a complaint by the Deputy General Manager of the Punjab National Bank alleging large-scale fraud perpetrated by Nirav Modi. It was alleged that a number of Modi’s firms had fraudulently used the credit facility offered by PNB known as ‘Letters of Undertaking’ [a form of bank guarantee to facilitate foreign transactions]. Post investigating the matter, CBI charged Mr Modi with offences under Section 120B (IPC) (Criminal Conspiracy) read with Section 420 of the IPC (Cheating and Dishonestly Inducing Delivery of Property), Section 409 of IPC (criminal breach of trust by a public servant or by banker, merchant or agent) and Section 13 of the Prevention of Corruption Act 1988 (Criminal Misconduct by a Public Servant).

As a result of the CBI investigation, the Enforcement Directorate (ED) launched a parallel investigation into offences of suspected money laundering of the proceeds of the fraud reported by PNB. As a consequence, as a result, Nirav Modi was charged with an offence contrary to Section 3 of the Prevention of Money Laundering Act 2002.

Evidence Tampering: It was also alleged that, Modi conspired to remove the original documents relating to the LOU applications from PNB bank premises to the offices of a law firm. The firm was misled into accepting the documents as they were informed that the documents they were receiving were not original documents.

Subsequent disappearance and Extradition attempts by India: Owing to the uproar following the revelation of the bank fraud, Nirav Modi absconded. He was later reported to be sighted in the United Kingdom. Once his presence in the UK was confirmed, the Government of India put forth the extraction request in July 2018, to seek Modi’s return for the purposes prosecution. Post-certification of the requests by the Home Office in February 2019, the Secretary of State issued a  certificate in accordance with s.70(1) of the  Extradition Act, 2003, certifying the requests were valid and had been made in the approved way. Nirav Modi was arrested on 19th March 2019 and has remained in custody throughout the extradition proceedings.

Issues

The primary issue that concerned the Court was that Section 78(4)(b) of Extradition Act, 2003 required the Judge to decide whether the offences specified in the request are extradition offences or not.

Contentions  

Nirav Modi, via his counsels Clare Montgomery and Ben Watson challenged the extradition requests on the following grounds-

  • Whether the offences stated in the requests are extradition offences as per S. 137 of Extradition Act, 2003. Whether there is a prima facie case and evidence which would be sufficient to make a case requiring an answer by Nirav Modi if the proceedings were the summary trial of information against him.
  • Whether extradition is compatible with Modi’s ECHR Convention rights,  especially Articles 3 and 6 (as per the requirement in S. 87 of Extradition Act)
  • It was further contended that granting the extradition request will be oppressive to Mr. Modi’s mental health (S. 91 of Extradition Act).

Court’s Observations

Perusing the facts, the contentions of the case, evidences produced and issues of human rights, the Court deemed it fit to categorize its discussion and observations under the following heads-

Prima facie case (CBI, ED): After perusing “16 volumes of evidence and information from the GOI and 16 bundles of expert reports and defence evidence and a total of 32 lever arch folders of documents”, the Court concluded that, “On one possible view of the evidence, I am satisfied that there is evidence upon which NDM could be convicted in relation the conspiracy to defraud the PNB. A prima face case is established”. Similarly, the Court observed that there is a prima facie case of money laundering as well. The conclusions were based on a detailed scrutiny of the facts and evidences adduced, based on which the Court was satisfied that the LOUs issued to Modi’s firms without appropriate cash margins and without being recorded on the bank’s systems. The concerned LOUs were also issued in direct contravention to the Circular issued by the Bank. The Court was also satisfied that the evidences had clearly established the links between Nirav Modi and the co- conspirators. The CBI investigation also demonstrated that Nirav Modi had retained control of the Nirav Modi Firms but had sought to disguise the control of the firms through the use of dummy partners recruited at his behest in order to sustain the LOU scheme.

Extradition Offences:  The Court observed that offences specified in the request are extradition offences as defined by Section 137(3) of Extradition Act. Nirav Modi is accused in a Category 2 territory of the commissions of offences constituted by the conduct set out in the request. The Court noted that the burden rests on the Requesting State (in this case India) to prove to the criminal standard pursuant to Section 206 Extradition Act that the offences within the request are extradition offences. “The approach is to look at the essentials of the conduct relied on and consider whether if it had occurred in England, at the time it was alleged to have occurred, it would have constituted an English offence” that is to say that the words “constitute an offence” in Section 137(2)(b) does not mean the Requesting State has to prove guilt of Nirav Modi in English law, it simply means that, if proved, it would constitute a comparable English offence. Examining the concerned provisions of the 2003 Act, the Court stated that, “A request need not identify the relevant mens rea of the equivalent English offence for the purposes of satisfying dual criminality. Instead it suffices that the necessary mental element can be inferred by the court from the conduct identified in the request documents or that the conduct alleged includes matters capable of sustaining the mental element necessary under English law”.

Analyzing the submissions of the Indian Government, the Court was satisfied that they had proved that ‘conduct’ in the requests is capable of satisfying the requirements of the notional English offences, thereby meeting the requirements of Section 137 of Extradition Act.

Human Rights (Articles 3 and 6 of ECHR and S. 91 of Extradition Act): The Court took note of the doubts raised by Nirav Modi’s counsels that he will not be tried fairly in India, citing evidences regarding the fragility of the independence of the judiciary. The District Judge observed that, Modi’s case has garnered huge media attention due to the allegations of defrauding a State-owned bank of significant sums of money, therefore it comes of no surprise that the case has garnered political interest and some commentary. “Sensationalist media reporting in high profile criminal cases is not unique to India and is not unknown in this jurisdiction. Courts are used to dealing with high profile cases which are subjected to ill-advised political commentary”. The Court concluded that irrespective of the media and political attention, there is no evidence which raises a doubt on the independence of judiciary and suggests that upon extradition, Nirav Modi will not be tried fairly.

Regarding the concerns directed towards deterioration of Nirav Modi’s mental health, the Court noted the Indian Government’s details about Barrack No 12, Arthur Road Jail, where Nirav Modi will be lodged upon his extradition; and also the comprehensive assurances vis-à-vis Modi’s physical and mental well-being during his time in prison. The Court also perused Nirav Modi’s psychiatric report, which states that Modi requires regular psychiatric support to review and adjust his medication as required. Based on the expert opinions and information furnished on the issue, Sam Goozée, J., concluded that “I have no doubt that Courts would ensure these assurances are upheld. There is no reliable evidence of the GOI breaching their solemn diplomatic assurance… the Indian authorities have capacity to cope properly with NDM’s mental health and suicidal risk, bolstered by NDM being able to access private treatments from clinicians. I also weigh up the strong public interest in giving effect to extradition treaty obligations”.

Other Remarks: Apart from the aforementioned observations, the Court also pointed gave a sharp critique on certain aspects that emerged during the course of the proceedings-   

  • In course of examining the numerous evidences adduced, the Judge noted that, “Unlike the evidence from the Defence, the evidence produced by the GOI in the case, through no fault of Counsel, was poorly presented and very difficult to navigate”.
  • The Judge also made some scathing remarks on the “ill-advised political commentary” and sensationalist approach of the media around the case.
  • The Judge particularly took note of the comments expressed by former Supreme Court Judge Shri Markandey Katju (expert opinion), stating that, “Despite having been a former Supreme Court judge in India until his retirement in 2011 his evidence was in my assessment less than objective and reliable. His evidence in Court appeared tinged with resentment towards former senior judicial colleagues. It had hallmarks of an outspoken critic with his own personal agenda. I found his evidence and behaviour in engaging the media the day before giving evidence to be questionable for someone who served the Indian Judiciary at such a high level appointed to guard and protect the rule of law”.

[Government of India v. Nirav Deepak Modi, decided on 25-02-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

Hot Off The PressNews

On January 29, 2018, Punjab National Bank reported a fraud to the tune of Rs. 281 crore against Nirav Modi: a fugitive diamantaire, Mehul Choksi and others.

District Judge Sam Goozee of a Magistrate Court in the United Kingdom, today ruled extradition of Nirav Modi who stands trial in India in the (PNB) scam case making the distant dream a possibility.

The Court ruled that “Nirav Modi has a case to answer in India” on the ground as no bar to extradition was raised and the Court found a prima facie case of money laundering against Nirav Modi. The Court has reportedly stated that Nirav Modi conspired to destroy evidence and intimidate witnesses and clear links of his connivance with PNB officials has come to the fore.

The arguments put forth on behalf of Nirav Modi that the extradition would not be compatible with Article 3 and Article 6 of his Convention rights within the meaning of Human Rights Act, 1998, were rejected. The Court vehemently stated that “I am satisfied so I am sure that RP’s extradition to India, is compatible with his Convention Rights within the meaning of the Human rights Act, 1998.”

The Court further ruled that Nirav Modi has a right to appeal against this decision before High Court only after UK Secretary of State, Priti Patel takes a final call on extradition. The Court states “Nirav Modi will not be denied justice if he is extradited to India”.

Nirav Modi’s plea regarding his mental health was also dismissed on the ground that it is not “unusual for a man in his circumstances” further stating that he will be given adequate medical treatment and mental healthcare and Arthur Jail, Mumbai is fit for the fugitive.

[Story to be Updated]


Arunima Bose, Editorial Assistant has put this story together


[Source: News Reports]

Case BriefsHigh Courts

Kerala High Court:  N. Nagaresh, J., addressed the petition seeking to direct the State to implement International Arrest Warrant and to handover the accused to the Government of Dubai as per the provisions of the Extradition Act, 1962.

The petitioner was an NRI businessman in Dubai; the accused befriended him on the pretext of being a business partner of a well known Hotel in Dubai. The accused borrowed an amount of Six Million UAE Dirhams from the petitioner and promised to repay the said amount before 10-06-2015. But, before the said stipulated date, the accused absconded to India without repaying the amount. Counsel for the petitioner,  T.K. Vipindas submitted that the accused had borrowed money from several banks and other individuals in UAE and had absconded from UAE to India without discharging his debts. There were 8 criminal cases registered against him by Dubai Police and the Dubai Court had convicted the accused for imprisonment for a term of two years. Also, an International Arrest Warrant was issued against the accused on 16-05-2018. The petitioner contended that, Government of India has executed the Extradition Treaty with the Government of United Arab Emirates. As per Article 2 of the said Treaty, a person sentenced by the court of the requesting State with the imprisonment for six months in respect of an offence, is liable to be extradited.

The respondent submitted that in the case of extradition of an Indian national from India to UAE, the provisions contained in Article 5 of the Extradition Treaty would be applicable. Article 5 of the Extradition Treaty reads as follows:

“The nationals of the Contracting States shall not be extradited to the other Contracting State provided that the requested State shall submit the case to its competent authorities for prosecution if the act committed is considered as an offence under the laws of both Contracting States.”

 The respondent relied on Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551, wherein the Supreme Court had held that, arrest of a fugitive criminal can be made at the instance of Central Government only when request to this effect is received from foreign country and not otherwise.

 The Court observed that, it was evident that nationals of Contracting States should not be extradited unless there was a request made by the State concerned. Since no such request had been received from the Government of UAE seeking extradition of the accused; therefore, going by the Extradition Treaty, the accused could not be extradited. Article 8 of the Extradition Treaty had prescribed that the request for extradition should be made in writing and dispatched through the diplomatic channels with supporting documents and particulars. Therefore, the Court dismissed the instant petition, holding that an International Arrest Warrant by itself would not suffice to arrest an accused and extradite him to UAE. [Rakhul Krishnan v. Union of India,  2020 SCC OnLine Ker 8409, decided on 21-12-2020]

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., while deciding a petition with regard to the investigation of Sanjeev Chawla alleged for acting as a bookie in fixing the India and South Africa cricket matches from 16-02-2000 to 20-03-2000, held that,

“Investigating Agency in the said matter is permitted to conduct an interrogation of the petitioner at Tihar jail complex only in terms of timeline stipulated in terms of Section 167(2) of CrPC, 1973, for a period not exceeding 15 days from the date of arrest.”

Background of the Case

Sanjeev Chawal (Petitioner) a citizen of United Kingdom was an accused under Section 173 of CrPC for the allegation of commission of offences punishable under Section 420/120-B Penal Code, 1860 in relation to,

An alleged conspiracy to fix matches during the India-South Africa Cricket series played through February-March, 2000 in alleged connivance with Hansie Cronje, Captain of South Africa Cricket Team.

Petitioner had allegations of being the main conduit in match-fixing.

Averments in the police report under Section 172 of CrPC submitted by the Crime Branch, three accused persons were arrested, Sanjeev Chawla (Petitioner) and Manmohan Khattar allegedly absconded having left for UK and Canada, respectively.

Petitioner had further been extradited on 12-02-2020.

Through the petition filed, petitioner submitted that trial court failed to consider and take into account the three Letters of Assurances of the Ministry of Home Affairs, whereby the Government of India had given a solemn sovereign assurance that at all times and during pre-trial custody, petitioner would be lodged at the Tihar Jail Complex, Delhi and that thus, no police remand could be granted and that the petitioner had been extradited from the United Kingdom only to face trial and not for any investigation.

Senior Advocate Vikas Pahwa, on behalf of the petitioner reiterated that the extradition had been granted only on the basis that the petitioner was being extradited to face trial and not for any investigation and thus, no investigation could be carried out nor permitted and that the pre-trial detention of the petitioner could only mean detention at the Tihar Jail and nowhere else as had been stated by the Government of India.

Further adding to the above, Clauses 9&10 of the Guidelines for Extradition issues by Ministry of External Affairs in India categorically spelt out the extradition could be granted only for the trial on the basis of the evidence made available in the charge sheet and not for the purpose of any investigation.

APP, Kewal Singh Ahuja on behalf of the Government (NCT of Delhi) submitted that during the investigation it was found that the present petitioner had played the most vital role in the commission of the crime. Statements of Hansie Cronje and Hamid Cassim before the Kings Commission allegedly clearly pointed to his deep-rooted involvement in the case.

It was submitted by ASG, through the status report that neither the Investigating Agency nor the Government of India, had given any assurances that on extradition no further investigation in the matter could be carried out and that for the purposes of a fair trial, petitioner has to be confronted with the evidence against him to unearth the whole conspiracy.

“..in terms of the law of the land Section 173(8) of the Cr.P.C., 1973 provides for continuing investigation even after the filing of the police report under Section 173(2) of the Cr.P.C., 1973”

Thus, in the above view, it is submitted that the police interrogation of the petitioner was very essential.

Union of India submitted that,

“…from the investigation conducted so far, there is sufficient evidence to prove that the accused persons namely Sanjeev Chawla, Hansie Cronje, Krishan Kumar, Rajesh Kalra, Sunil Dara @ Bittoo and Manmohan Khatter mentioned in Column No 11 of the chargesheet had entered into a criminal conspiracy to fix the cricket matches played between India and South Africa from 16.02.2000 to 20.03.2000 in India.”

Union of India relied on the Extradition Treaty and the instruments of ratification between India and U.K.

Adding to above submissions, UOI submitted that petitioner falls under the category of “fugitive criminal” in terms of Section 2(f) of the Extradition Act, 1962 and thus trial of the petitioner qua the alleged commission of offence punishable under Section 420/120 IPC has to be conducted in which would not preclude the Investigating Agency from invocation of the powers of investigation in terms of Section 173(2) of CrPC.

“… in terms of Article 11 Sub-clause 3 of the Extradition Treaty between the United Kingdom and India, it is not necessary that the extradition can be made only when a charge sheet has been filed but if the material placed is sufficient to justify committal for trial to indicate that there is prima facie material to satisfy the Requested State that the fugitive is involved in the offence/ offences, the same would suffice to grant the prayer for extradition.”

Decision

ASG Supreme Court of India Sanjay Jain on behalf of Union of India expressly stated that the terms of Letter of Assurances would be followed in letter and spirit and that petitioner would not be taken out of Tihar Jail except with permission, granted by Court in terms of Section 173(8) of CrPC.

Thus, the bench disposed of the petition with a direction to effect that impugned order of trial court is modified to the effect that the petitioner during the entire stage of pre-trial detention, trial and conviction, if any, in terms of Letters of Assurances would continue to be lodged at Tihar Jail.

Further, petitioner cannot be taken out of Tihar jail for the purpose of investigation or interrogation in police custody, through the investigating agency in the matter is permitted to conduct the same at Tihar jail only.

The period of investigation will end on 28-02-2020; whereafter no further investigation will be granted.

Court also stated that the Investigating Agency shall, however, take care to ensure that the petitioner is treated with dignity during the investigation and interrogation conducted. [Sanjeev Kumar Chawla v. State, Crl. M.C. No. 870 of 2020, decided on 20-02-2020]

Hot Off The PressNews

As per the media reports, The Special PMLA Court declared Nirav Modi a fugitive economic offender on a plea of the Enforcement Directorate.

Nirav Modi and his uncle Mehul Choksi are the main accused in the PNB Scam.

Background of the scam:

As reported by Hindustan Times, Two PNB employees sent unauthorised letters of undertakings (LoUs), essentially bank guarantees, to foreign branches of Indian lenders, on behalf of firms related to Nirav Modi and the Gitanjali Group. The LoUs basically told these other lenders: Lend money to Nirav Modi firms so that they can pay for their imports. If they don’t pay up, we will make good this payment.

In the PNB fraud case, the bank employees had sent these guarantees in the absence of credit limits and collateral security (in Modi’s case). Secondly, they didn’t make an entry in the bank’s core banking system – the software used to support a bank’s most common transactions, which also acts as a record keeper.


[Source: Media Reports]


Hot Off The PressNews

As reported by ANI, Mehul Choksi, who is an accused in the Punjab National Bank Scam will be soon extradited to India as Antigua has revoked his citizenship.

Enforcement Directorate had offered to provide an air ambulance for Choksi who states that he suffers from some heart ailment. After the report of medical experts, only the decision for his travel to India would be taken. The report would be submitted by 9-07-2019.

Bombay High Court has decided the hearing date to be 10-07-2019.

Mehul Choksi was granted citizenship to Antigua and Barbuda on 15-01-2018.


[Source: PTI]

[Picture Credits: Times Now]

Hot Off The PressNews

As reported by media, Proposed Law on Extradition in respect to allowing extraditions to China has been suspended by Hong Kong after massive protests conducted in the past week.

Bill, calling for Hong Kong to make legal amendments to allow accused criminals to be extradited to jurisdictions with which it has no such arrangement — including China — has led to widespread opposition in the semi-autonomous Chinese territory.”

Lam said at a press conference: “The legislative process would be halted without any deadline.”


[Source: CNBC]

[Picture Credits: time.com]

 

Hot Off The PressNews

Westminster Court, United Kingdom:  A provisional arrest warrant has been issued against the fugitive diamond merchant, Nirav Modi for his extradition in a money laundering case.

He is the main accused in the Punjab National Bank scam case.

The Westminster Court has issued the arrest warrant against Nirav Modi as part of processing this extradition request. The warrant is provisional, and he is entitled to obtain bail.

Background of the scam:

As reported by Hindustan Times, Two PNB employees sent unauthorised letters of undertakings (LoUs), essentially bank guarantees, to foreign branches of Indian lenders, on behalf of firms related to Nirav Modi and the Gitanjali Group. The LoUs basically told these other lenders: Lend money to Nirav Modi firms so that they can pay for their imports. If they don’t pay up, we will make good this payment.

In the PNB fraud case, the bank employees had sent these guarantees in the absence of credit limits and collateral security (in Modi’s case). Secondly, they didn’t make an entry in the bank’s core banking system – the software used to support a bank’s most common transactions, which also acts as a record keeper.

Reported by Media

Hot Off The PressNews

As reported by the media, Sajid Javid the UK Home Secretary signed the extradition order of Vijay Mallya on 04-02-2019.

Westminster Magistrates’ Court had sent Vijay Mallya’s case to the Home Secretary for a decision on whether to order extradition.

Mallya said he intends to appeal the decision, “After the decision was handed down on December 10, 2018, by Westminster Magistrates Court, I stated my intention to appeal. I couldn’t initiate appeal process before a decision by Home Secretary. Now I’ll initiate the appeal process”.

Mallya has 14 days’ time to appeal against his extradition in a higher court.

Vijay Mallya was facing charges of fraud, money laundering and violation of Foreign Exchange Management Act (FEMA).

[Source: Economic Times]
Case BriefsForeign Courts

Westminster Magistrates’ Court: A Single Judge Bench comprising of Senior District Judge (the Chief Magistrate) Emma Arbuthnot accepted the Government of India’s (GoI) extradition request for tycoon Vijay Mallya to face trial on charges of fraud and money laundering.

The Court considered the vast evidence placed on record by GoI and relying on the case of Devani v. Republic of Kenya, [2015] EWHC 3535 opined that there was a prima facie case that the funds loaned by Indian banks to Mallya were misused. A number of email trails were relied on to rule that he had misrepresented his net worth to the banks.

It was further held that there was a prima facie case of a conspiracy to defraud which involved not just the Kingfisher Airlines executives but also some bankers. There was clear evidence of misapplication of loan funds and thus there was a prima facie case of conspiracy to launder money was found against Mallya.

The Court also took note of Mallya’s concerns that the Central Bureau of Investigation (CBI) which had investigated this case was susceptible to political interference and was a “caged parrot” speaking with its master’s voice, especially by the ruling party BJP. The said concern was dismissed holding that there was no evidence showing that the present extradition request was, in fact, being made to prosecute him for his political opinions.

It was ruled that Mallya’s allegations against the professional integrity of Mr Rakesh Asthana, who leads the CBI and was the prosecutor of his case, was without any basis since the Supreme Court of India had cleared Mr. Asthana of allegations made against his integrity and there was no reliable or significant evidence produced by Mallya to support his averment.

Mallya argued against his extradition, saying Indian jails do not have proper air and light. The Court applied Othman criteria of Othman v. UK, (2012) 55 EHRR 1 to decide whether Mallya’s extradition would be compatible with his Convention rights within the meaning of the Human Rights Act, 1998. It viewed the video submitted by GoI and found clear assurance that the cell for Mallya’s lodging – Barrack No. 12 in Arthur Road Jail, Mumbai – had requisite living conditions where he would be able to obtain his medical treatment.

One might recall that the learned Judge’s demand for a video of Mallya’s barrack did not go down well with India and earlier this year PM Modi had told his British counterpart Theresa May that it was not right for Courts in her country to ask about the condition of Indian jails “as we still have the prisons where they jailed our leaders like Mahatma Gandhi and Jawaharlal Nehru.”[1]

Bearing in mind the findings of prima facie case, no evidence that the prosecution was politically motivated, and no lack of fair trial, Mallya’s contention of abuse of process was also dismissed.

In view of the above, Mallya’s case was sent to the United Kingdom Home Office (the British equivalent of Home Ministry) where Home Secretary, Sajid Javid would decide whether to order his extradition based on the verdict of the Magistrates’ Court.[Govt. of India v. Vijay Mallya, decided on 10-12-2018]

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[1] https://www.ndtv.com/india-news/pm-narendra-modis-sharp-retort-to-theresa-may-on-indian-jails-revealed-1858878