AgustaWestland Case : Supreme Court Refuses To Grant Bail To Christian Michel Under Section 436A CrPC, Allows Him To Seek Regular Bail

The Supreme Court of India on Tuesday dismissed Christian Michel Jame's plea seeking bail under Section 436A of CrPC. However, the bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala provided him liberty to approach Trial Court to seek regular bail. Christian James Michel, who is facing investigation by the Central Bureau of Investigation (CBI) and the Directorate of Enforcement (ED) in connection with Agustawestland case, had challenged the Delhi High Court's order of dismissing his bail pleas.

At the outset, the counsel for petitioner, Advocate Aljo Joseph argued that as per Section 436A of CrPC, when a person had undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties. He said–

"I was extradited on December 4, 2018. Since then I have been in custody. The offences for which I've been extradited are Sections 415, 420 of IPC and Section 8 of Prevention of Corruption Act. A person who has been extradited cannot be tried for an offence other than which he has been extradited. Please see the judgement in Daya Singh Lahoria v. UOI, (2001) 4 SCC 516. The maximum punishment for Section 8 was only five years. I've completed incarceration of 4 years 2 months in India. The investigation started in 2013. It's still not completed...All other accused who had been extradited have been granted bail."

However, Justice JB Pardiwala noted that taking shelter of Section 436A may not be right as the petition had also been charged for with Section 467 of IPC which was punishable with life. To this, the counsel replied that in the extradition decree, Section 467 IPC was not mentioned, and hence Michel cannot be tried under the said provision as per the provisions of the Extradition Act.

CJI DY Chandrachud added that as per Section 436A, the Court may, for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period too. However, he added–

"But the court said that when you extend detention, it has to be with reasons in writing. So this power has to be used sparingly."

Additional Solicitor General Sanjay Jain, appearing for the CBI and ED, submitted that the reason for his continued detention was that he posed a flight risk as per the order of the High Court. To this, CJI DY Chandrachud remarked–

"You may be right that he can't get bail under Section 436A but you still have to answer why he may be denied regular bail. How long will you keep him in custody?"

ASG Jain submitted–

"Once the investigation is concluded, I would have no difficulty."

Joseph submitted that the only reason Michel is kept in custody is because he has not ready to give a confession as demanded by the probe agencies and otherwise he has completely cooperated with the investigation. He added that the investigators had recorded his statements on many occasions while he was outside India.

The bench ultimately refused to grant him the relief under 436A.

 CJI DY Chandrachud, while dictating the order, stated–

"The counsel for petitioner pressed the provisions of Section 436A of CrPC in aid of the submission that the petitioner has completed half the maximum sentence and thus is entitled to bail. We're not inclined to accept this submission. The first proviso to Section 436A stipulates that the court may order continued detention which may extend half of the maximum punishment. The single judge of High Court while declining bail has also adverted to circumstances as per which the petitioner was extradited. The SLP is dismissed. We clarify that the present order shall not come in the way of the petitioner approaching the trial court for grant of regular bail."

The petitioner was represented by Advocate Aljo Joseph, Advocate Sriram Parakkat, and Advocate MS Vishnu Shankar.

Background

Michel was arrested in December 2018 after being extradited from Dubai. He is termed as a 'Middleman' for the alleged illegal transactions that took place in the VVIP chopper scam. The CBI had alleged that there was an estimated loss of Euro 398.21 million (about 2666 Crore) to the exchequer in the deal that was signed on February 8, 2010 for the supply of VVIP choppers worth Euro 556.262 million. ED had then filed a chargesheet against Michel in June, 2016, alleging that he had received EUR 30 million (about Rs 225 crore) from AgustaWestland.

Case Title: Christian Michael v. ED/CBI SLP(Crl) No. 4145/2022

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