2022 (3) TMI 1632 - HC - Indian Laws

Foreign national's bail denied in VVIP helicopter bribery case due to flight risk and evasion history

Delhi HC dismissed regular bail application for foreign national accused in VVIP helicopter bribery case. Applicant, alleged middleman for AgustaWestland, ... Seeking grant of Regular bail - bribing - continuation of proceedings in India against the applicant, who was acquitted in Italy - double jeopardy - principles of issue estoppel and res judicata - trial of offences other than for which he was extradited - Doctrine of Specialty - applicant was subject of rendition and kept in illegal custody by the CBI. HELD THAT:- Article 21 of the Constitution of India guarantees a right to personal liberty to every person, and thus, time and again, it has been opined by Courts across the country that bail is the rule and jail an exception. Besides reiterating this view, the Supreme Court in Sanjay Chandra [2011 (11) TMI 537 - SUPREME COURT] has further laid down that both factors, i.e., severity of the punishment and gravity of the offence, have to be simultaneously weighed while determining whether or not to grant bail to an accused. Subsequently, in P. Chidambaram v. Directorate of Enforcement [2019 (12) TMI 186 - SUPREME COURT], the Supreme Court, after going through the entire conspectus of law on the aspect of determining factors to be taken into account at the time of consideration of bail, has observed that one of the circumstances to consider the gravity of offence is the term of sentence, which has to be kept in mind besides the triple test. Coming to the facts of the case, it is noted that the applicant is stated to be the key accused. He is accused of having played a pivotal role in the entire case, being a middleman engaged by M/s AgustaWestland for obtaining confidential information regarding the procurement process of VVIP helicopters by the Government of India. As per the allegations, one J.B. Subramanian was engaged by the applicant for typing and sending dispatches/reports in relation to developments in the procurement process to co-accused persons. One of such reports dated 10.04.2008, which was sent to Giuseppe Orsi, Giacomino Saponaro and others, contained material particulars of the process - the apprehensions of the applicant influencing witnesses/tampering with evidence are not supported by any material placed on record, and on this aspect, mere pendency of LRs or further investigation is of no consequence. In this regard, the Supreme Court in P. Chidambaram v. Central Bureau of Investigation [2019 (10) TMI 879 - SUPREME COURT] and Sanjay Chandra [2011 (11) TMI 537 - SUPREME COURT] has also observed that mere apprehension of the accused influencing witnesses/tampering with evidence, without any material supporting the allegations, cannot be a basis to keep him in jail. Although, merely because an accused is a foreign national, bail cannot be denied as a matter of course, but at the same time this Court cannot lose sight of the aforementioned facts which indicate as to how the applicant has evaded investigation in the present case. It is also worthwhile to take into account that the applicant could be brought to India only after going through the process of extradition, which in fact was vehemently opposed by him, as apparent from the judgment of the Dubai Supreme Court. For the said reasons, the ground of parity is not available to the applicant in the opinion of this Court. Conclusion - Considering the peculiar facts and circumstances of the case, including the factum of the applicant evading process/investigation in India/Italy and eventually having been extradited to India, this Court is of the opinion that the applicant, having no roots in the Indian society, is a flight risk. Accordingly, the present bail application is dismissed. ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment include:1. Whether the continuation of proceedings in India against the applicant, who was acquitted in Italy, constitutes double jeopardy or violates principles of issue estoppel and res judicata.2. Whether the applicant can be tried for offences other than those for which he was extradited, in light of the 'Doctrine of Specialty' under the Extradition Act and the Extradition Treaty with UAE.3. Whether the applicant's detention is illegal due to alleged rendition and findings by the UNHRC WGAD.4. Whether the applicant is entitled to bail considering factors such as seriousness of the offence, flight risk, and parity with co-accused who have been granted bail.ISSUE-WISE DETAILED ANALYSIS1. Continuation of Proceedings in India:The applicant argued that his acquittal in Italy precludes further prosecution in India based on principles of double jeopardy, issue estoppel, and res judicata. The Court noted that the Italian proceedings involved different accused and charges, and neither the applicant nor the CBI was a party to those proceedings. The Court emphasized that issue estoppel does not apply as the Italian Court's findings do not bind Indian proceedings. The Court cited precedents that international law does not override domestic law unless incorporated, and municipal law prevails in case of conflict.2. Extradition and Doctrine of Specialty:The applicant contended that under Section 21 of the Extradition Act, he cannot be tried for offences other than those for which extradition was granted. The Court analyzed the Extradition Treaty with UAE, which allows for trial of offences connected to those for which extradition was sought. The Court found that the charges in India are connected to the extradition request, and thus, the applicant's argument lacks merit. The Court distinguished the present case from precedents cited by the applicant, noting differences in treaty terms.3. Alleged Illegal Detention:The applicant claimed illegal detention based on a UNHRC WGAD finding. The Court observed that the WGAD's opinion, based on limited information, is not binding on Indian courts. The Indian government provided a detailed response to the WGAD, asserting compliance with legal procedures. The Special Court also found the WGAD's opinion neither binding nor persuasive, given the comprehensive material before it. The Court dismissed the applicant's claim of illegal detention.4. Bail Considerations:The applicant sought bail on grounds of false implication, parity with co-accused, right to personal liberty, and health issues. The Court reiterated principles for granting bail, emphasizing the seriousness of economic offences and the applicant's flight risk. The Court noted the applicant's evasion of investigation, lack of roots in India, and extradition process as factors against bail. The Court found no credible evidence of the applicant influencing witnesses or tampering with evidence. The Court also considered the applicant's previous conduct and dismissed the bail application, citing him as a flight risk.SIGNIFICANT HOLDINGSThe Court held that the continuation of proceedings in India does not violate principles of double jeopardy or issue estoppel, as the Italian proceedings involved different parties and charges. The Court found that the Extradition Treaty with UAE permits trial for connected offences, and the applicant's argument under the 'Doctrine of Specialty' is unmerited. The Court dismissed the claim of illegal detention based on the UNHRC WGAD finding, noting the non-binding nature of the opinion and compliance with legal procedures by Indian authorities.The Court emphasized the seriousness of the charges, the applicant's flight risk, and lack of roots in India as key factors in denying bail. The Court concluded that the applicant's circumstances do not warrant bail, given the nature of the offence and the applicant's conduct during the investigation.