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Vijay Mallaya looses Extradition Appeal in High Court

April 27, 2020
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Vijay Mallya
Liquor baron Vijay Mallya lost an appeal in the UK High Court against his extradition, taking the Indian authorities closer to bringing him back to India where he faces alleged fraud and money laundering charges amounting to Rs 9,000 crore. Vijay Mallya has 14 days to apply for permission to appeal to the UK Supreme Court.

CURRENT DEVELOPMENT

The then UK Home Secretary Sajid Javid ordered the extradition of Vijay Mallya to India in February 2019 who is wanted in India for alleged fraud and money laundering charges amounting to an estimated Rs 9,000 crores.

Mallya, a former Rajya Sabha member who is accused of fraud and money laundering fled to the UK in 2016.

MALLYA TIMELINE

Following is the chronology of the case and its origin:

May 9, 2005: United Breweries Holdings Limited (UBHL) Chairman Vijay Mallya’s luxury airline – Kingfisher Airlines – starts commercial operations.

2013: A consortium of Indian banks led by State Bank of India approached United Breweries Holdings Ltd for the payback of a loan amounting to Rs 6,493 crore on behalf of Kingfisher Airlines.

March 3, 2016: Mallya fled India and took refuge in London.

February 2017: India sent an extradition request to the United Kingdom.

April 18, 2017: Scotland Yard arrests Mallya on an extradition warrant after he surrenders at a central London police station. He is released on bail within hours after providing a bail bond worth 650,000 pounds.

June 13, 2017: The first case management hearing takes place at Westminster Magistrates’ Court in London in the extradition case. Mallya’s bail is extended until December 2017, for the start of the extradition trial.

July 6, 2017: Mallya appears for a hearing in the case despite an exemption from appearance in court.

September 14, 2017: Another case management hearing in the case when Mallya’s defence team informs the court of plans to depose six experts they intend to rely upon in their evidence.

October 3, 2017: Mallya is re-arrested in a money laundering case filed by the Enforcement Directorate (ED) and is released on the same bail conditions, as the CBI and ED cases are clubbed together for the purposes of the extradition trial.

November 20, 2017: A pre-trial hearing in the case takes note of additional “supplemental” charges of money laundering to the previous charges of fraud, amounting to an estimated Rs 9,000 crores.

December 4, 2017: Mallya’s extradition trial begins.

December 7, 2017: The hearing resumes with Mallya’s defence claiming his offer to pay back nearly 80 per cent of the principal loan amount owed to the Indian banks, led by State Bank of India, had been rejected.

December 14, 2017: Both sides conclude the evidence stage of the trial, with the case moving into 2018 to complete all procedures.

March 16, 2018: The judge notes that it is “blindingly obvious” to her that rules were being broken by Indian banks, which sanctioned some of the loans to the erstwhile Kingfisher Airlines as the case returns for hearing.

April 27, 2018: The CBI gets a boost as the judge confirms that the bulk of the evidence submitted by the Indian authorities in the extradition case will be deemed admissible.

December 10, 2018: Westminster Magistrates’ Court judge ordered the extradition of Mallya. The UK Home Secretary will have to sign Mallya’s extradition order within two months. However, Mallya’s defence team has a chance to appeal in higher courts in the UK against the verdict.

February 4, 2019: UK Home Secretary Sajid Javid orders Mallya’s extradition to India.

February 2020: The former Kingfisher Airlines boss had appealed to the higher court against his extradition ordered by the London Court at a three-day hearing in February this year. A two-member bench of Lord Justice Stephen Irwin and Justice Elisabeth Laing at the Royal Courts of Justice in London dismissed the plea in a judgement handed down this week remotely due to the current coronavirus lockdown.

“We consider that while the scope of the prima facie case found by the SDJ [Senior District Judge Emma Arbuthnot] is in some respects wider than that alleged by the Respondent in India (CBI and ED), there is a prima facie case which, in seven important respects, coincides with the allegations in India,” the ruling said.

The judgment noted seven main points around which they based their decision.

The judges said they found that the loans in question were disbursed as the result of a conspiracy between the named conspirators and that they were made despite Kingfisher Airline’s weak financials, negative net worth and low credit rating.

“The Appellant was party to false representations to induce the loans that funds would be inducted by way of unsecured loans, global depository receipts and equity,” the judges noted.

“The Appellant was party to false representations about inward investment, an exaggerated brand value, misleading growth forecasts, inconsistent business plans. The Appellant’s dishonest intention not to repay the loans is shown by his later conduct in trying to avoid the personal and corporate guarantees,” they said.

Future: If Mallya challenges the judgment in the UK Supreme Court, the Home Office would wait for the outcome of that appeal before signing off on the extradition. But if he does not, the Home Office would then be expected to formally certify the court order for Mallya to be extradited to India within 28 days.

LAWS FOR EXTRADITION
What is Extradition?
  • As defined by Hon’ble Supreme Court of India, ‘Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State’.
  • An Extradition request for an accused can be initiated in the case of under-investigation, under-trial and convicted criminals.
  • In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.
What is the Legislative Basis for Extradition in India?
  • The Extradition Act of 1962 provides India’s legislative basis for extradition. To consolidate and amend the law relating to the extradition of fugitive criminals and to provide for matters connected therewith, or incidental thereto, the Extradition Act of 1962 was enacted. It consolidated the law relating to the extradition of a criminal fugitive from India to foreign states. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.
What are Extradition Treaties?
Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a Foreign State, relating to the Extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to the Extradition of fugitive criminals made before the 15th day of August 1947, which extends to and is binding on, India. Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five principles, as endorsed by many judicial pronouncements and state practice in respect of domestic extradition legislation
  • First, the principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty;
  • Second, the principle of dual criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country;
  • Third, the requested country must be satisfied that there is a prima facie case made out against the offender/accused;
  • Fourth, the extradited person must be proceeded against only against the offence (rule of speciality) for which his extradition was requested; and
  • Finally, he must be accorded a fair trial (this is, of course, part of international human rights law now). Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.
Who can make an extradition request from India’s side?
Requests for extradition on behalf of the Republic of India can only be made by the Ministry of External Affairs, Government of India, which formally submits the request for Extradition to the requested State through diplomatic channels. Extradition is not available at the request of members of the public.
Which countries can India make an extradition request to?
India is able to make an extradition request to any country. India’s treaty partners have obligations to consider India’s requests. In the absence of a treaty, it is a matter for the foreign country, in accordance with its domestic laws and procedures, to determine whether the country can agree to India’s extradition request on the basis of assurance of reciprocity. Similarly, any country can make an extradition request to India. Extradition is possible from the non-treaty States as Section 3(4) of the Indian Extradition Act, 1962 provides for the process of extradition with non-treaty foreign States.
What is a provisional arrest request?
In case of urgency, India may request the provisional arrest of the fugitive, pending presentation of an extradition request. A provisional arrest request may be appropriate when it is believed that the fugitive may flee the jurisdiction.
How is a request for Provisional Arrest transmitted to the requested country?
A request for provisional arrest may be transmitted through diplomatic channels through CPV Division of Ministry of External Affairs. The facilities of International Criminal Police Organization (ICPO- INTERPOL) may also be used to transmit such a request through the National Central Bureau of India, CBI, New Delhi.
What are the bars to Extradition?
An alleged offender may not be extradited to the requesting state in the following cases:

  • No treaty – In absence of a treaty, States are not obligated to extradite aliens/nationals
  • No treaty crime – Extradition is generally limited to crimes identified in the treaty which may vary in relation to one State from another, as provided by the treaty.
  • Military and Political Offences – Extradition may be denied for purely military and political offences. Terrorist offences and violent crimes are excluded from the definition of political offences for the purposes of extradition treaties.
  • Want of Dual Criminality – Dual criminality exists when conduct constituting the offence amounts to a criminal offence in both India and the foreign country.
  • Procedural considerations – Extradition may be denied when due procedure as required by the Extradition Act of 1962 is not followed.
Reference:
1. Ministry of External Affairs
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