By Justice Bhanwar Singh and Professor (Dr) NK Bahl
“Prison bus with wings is back without Choksi—A mission of extradition unaccomplished”
Mehul Chinubhai Choksi, a beleaguered diamantaire, the founder and managing director of Gitanjali Gems is a fugitive Indian—born in India, but doing business in Antigua and Barbuda. He is wanted by the Indian courts for trial of offences of criminal conspiracy, criminal breach of trust, cheating, corruption, embezzlement and money laundering. Choksi is accused of defrauding Punjab National Bank (PNB) to the tune of around Rs 13,500 crore by conducting fraudulent transactions. He left India on January 7, 2018, days before the PNB scam came to light.
A non-bailable warrant is already issued against Choksi by a special court in India and a red corner notice of Interpol for his provisional arrest with the intention of extradition on the request of the Central Bureau of Investigation (CBI), is also pending against him.
When Choksi fled from India, he was granted citizenship of Antigua and Barbuda in January, 2018. He went missing from Antigua on May 23, 2021, sparking a massive manhunt and red corner notice against him.
Choksi, an Indian citizen, is in the custody of Dominica. They have declared him as an illegal entrant. What is the duty of Dominican country since the accused is upon their land? Should Choksi be tried by the courts of Dominica, a country of refuge, according to their own laws or should he be sent back to India, whose laws he has broken, for facing the trial? International law gives no certain answer.
Hugo Grotious, the founding father of modern international law, is of the opinion that the State of refuge is bound to give up fugitives accused of crimes affecting peace and security of the society, but other authors deny this obligation, as a matter of right, and prefer to put it on the ground of comity. However, Antigua has preferred direct extradition of Choksi from Dominica to India.
The mutual interests of the States for the maintenance of law and order and administration of justice demands that nations should cooperate with each other in surrendering fugitive criminals to the State in which the crime was committed. The obvious advantage in prosecuting the offender in the country where he has committed the offence is that evidence is more freely available there and that the State has the greatest interest in the prosecution and punishment of the offender as also facilities for ascertaining the truth.
The universal practice of nations, however, is to extradite the fugitive only in compliance with some special treaty. This surrender in accordance with the treaty and in compliance with a formal demand is known as extradition. Such treaties must be incorporated in the municipal laws of the State wanting to enforce them.
Article 253 of the Constitution of India empowers the Parliament to make a law for implementing any treaty, agreement or convention with another country. In the absence of treaty stipulations, it is always a matter of comity or courtesy. No government is bound to deliver up criminals, fugitives from justice who have sought asylum within its limits.
According to public international law, extradition is a form of diplomatic process by which one State requests another for the return of custody of a fugitive criminal for crimes punishable by laws of the requesting State and committed outside the jurisdiction of the country where such person has taken refuge or may be found.
The extradition is the opposite of asylum. Asylum in public international law is the protection granted by a State to a foreign citizen. The asylee for whom asylum is established has no right to demand it and the sheltering State has no obligation to grant it. Dalai Lama (14th) Tenzin Gyatso, a Buddhist monk and spiritual leader and his few followers, who fled Tibet, are under political asylum granted by India in 1959 and are living in Dharamshala, Himachal Pradesh, since more than six decades, although India has had to invite the wrath of China. However, asylum is based on the principle of a reasonable fear of persecution or torture of the persons seeking asylum in his/her country stating to the other country that such may be because of race, religion, political opinion or membership of a particular social group.
Extradition is a political act done in pursuance of a treaty or an agreement. The first step required for extradition is issuing a proper demand to the asylum State for the return of the asylee. Secondly, sending an agent to receive the asylee in an asylum State within 30 days of arrest and bringing him back to his own State to return to answer to the charges, be sentenced, or be incarcerated.
There are two practical difficulties, which have prevented the growth of uniform rule on extradition. The definition of crime varies from country to country and the possibility of the process of extradition to get hold of a person who is wanted in his country not really for ordinary crime, but for a political offence. Nadeem Saifi, a music director in India ran away to England and the latter refused extradition under some political pressure, besides some legal parameters, justifying the rejection of India’s request.
Vijay Mallya and Nirav Modi are also facing the legal efforts of the Indian government in England for extraditing both of them. The former liquor baron is charged with fraudulent transactions and pocketing Rs 900 crore of IDBI bank, besides another case of fraud amounting to Rs 9,000 crore in a consortium of banks. Interestingly, Abu Salem, who fled India and took shelter in Portugal, was extradited to India and is serving a life sentence in jail on the charge of murder of a builder. He was also involved in the Bombay blast case. British national Michel James and Rajiv Saxena were extradited to India to face the Augusta Westland case.
There is no extradition treaty between India and Dominica. It is submitted that the United Nations (UN) should take steps for extradition of such fugitives so that they may be returned to their original country. They should not go unpunished and the rule of law may be maintained as part of international peace and security which is the main motto of the UN.
At present, two courts in Dominica are hearing separate cases related to Choksi. The first case is filed by Choksi himself in which the High Court is called upon to decide whether Choksi was illegally arrested by the Dominican Police and to which country he should be sent back. In the second case, the Magistrate Court is hearing the matter of Choksi’s alleged illegal entry into their country. The settlement of these two cases is essential before Choksi is deported to India.
The Dominican High Court adjourned the hearing of the case and the next date of hearing is yet to be fixed. Meanwhile, Choksi has to remain in the custody of the Dominican Police. The plea taken by Choksi’s legal team is that he is no longer an Indian citizen, and therefore, cannot be deported to India. It is also argued that he did not flee Antigua but was abducted and forcibly brought to Dominica as a part of honey trip, from neighbouring Antigua and Barbuda.
The Extradition Act, 1962 of India provides procedure for surrender of fugitive criminals by Union governments after being satisfied on the basis of an enquiry by a magistrate that a prima facie case is made out in support of the requisition. The extradition request can be refused if the offence is of a political character or it is a military offence. The principle of double criminality demands that the crime of a fugitive must be an offence in both the requesting and requested countries. The extradition of a fugitive cannot be done until he has been tried and served his sentence in the State requested to surrender. For extradition, there must be reasonable prima facie evidence of the guilt of the accused. The requested State shall satisfy itself that a prima facie case is made out against the fugitive.
In India the Fugitive Economic Offenders Act, 2018 (FEOA) empowers any special court, set up under the Prevention of Money Laundering Act, 2002 (PMLA) to confiscate all properties and assets of economic offenders who are charged in offences measuring over Rs 100 crore and are evading prosecution by remaining outside the jurisdiction of Indian courts. The purpose of the Act is to force economic offenders, who have fled abroad, to return home and face the law, if they want to avoid attachment and confiscation of their properties and proceeds of crime. Non-conviction based assets’ confiscation of the properties of fugitives is the main feature of this Act.
For declaring a person as a fugitive economic offender, a director or deputy director, appointed under PMLA, has to file an application before the designated sessions court created u/s 43 of PMLA, stating the reasons to believe that an individual is a fugitive economic offender and give information on his whereabouts, lists of properties, in and outside India, believed to be proceeds of crime, for which confiscation is sought. The first such application under the erstwhile ordinance was filed by the Enforcement Directorate (ED) against Vijaya Mallya.
The fugitive economic offender, under FEOA, means that an individual against whom an arrest warrant has been issued by any court in India in relation to an offence specified in schedule attached at the end of FEOA has left India to avoid criminal proceedings or being abroad, refuses to return to India to face criminal proceedings.
Director or deputy director, as the case may be, may attach any property, specified in the application with the permission of the special court. This attachment can be done provisionally even without permission of the court where the property is being or may be dealt with in a manner resulting in its being unavailable for confiscation.
The attachment of property shall continue for a period of 180 days unless it is extended by the special court. A right of hearing is of course given to the offender by issuing a notice by email, before he is declared an economic fugitive offender or his property is attached. The proceedings under the FEOA stand terminated, once the alleged offender appears before the designated special court. A supplementary application for confiscation can be filed for properties discovered after filing of first application. All confiscated properties of the fugitive will remain in the management of an administrator to be appointed by the central government.
The directors appointed under PMLA are vested with the powers of a civil court for enforcing the attendance of witnesses, production of records and recording evidence of witnesses. They have power of survey and inspection of the place of properties of alleged offenders along with search and seizure.
Standard of proof applicable to the determination of facts by the special court is that of civil cases, i.e., “preponderance of probabilities”. Once the court is satisfied that an individual is a fugitive economic offender, a speaking order of declaration shall be passed proclaiming such an individual as a fugitive economic offender and confiscation of his properties may be directed simultaneously. The result of such a confiscation will be that all the rights and titles in such properties will vest in the central government free from all encumbrances. However, appeal against the order of confiscation/declaration will lie to the High Court, both on facts and on law.
The jurisdiction of civil courts is barred in respect of any matter in which the special court is empowered under FEOA and no injunction shall be granted by any court in respect of any action taken or to be taken under this Act. This Act has been given an overriding effect, notwithstanding anything inconsistent in any other law for the time being in force.
It is hoped that the new Act will deter such economic offenders from undermining the sanctity of the rule of law by defying legal process by remaining out of the jurisdiction of Indian courts. However, it is suggested that the enjoyment of movable and immovable properties of fugitive offenders should be banned. The confiscated properties should be sealed by the police by law to make it more deterrent.
The Indian jet is back without Choksi and half of the team of ED and CBI has also come back. Thus, immediate prospects of extradition of Choksi have been thwarted. But the Indian government seems committed and steadfast that fugitives like Choksi are brought back to the country to face trial.
—Justice Bhanwar Singh is former judge of High Court at Allahabad and Dr NK Bahl is former District & Sessions Judge, UP, and presently, Professor of law at JEMTEC School of Law, Greater Noida, UP