'Can Personal Liberty Be Denied Just Because He Is A Foreign National?': Supreme Court In Christian Michel's Bail Plea

The Supreme Court on Tuesday heard the plea filed by 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, challenging Delhi High Court's order of dismissing his bail pleas. The matter was heard by a bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha. The bench enquired if it was appropriate to completely deprive Michel of his liberty simply because he was a foreign national and asked the counsels to submit a note to assist the court. The matter will now be heard in the second week of January 2023. 

At the outset, the counsel for petitioner Advocate Aljo K. Joseph submitted that his case was squarely covered under Section 436A of CrPC and that he had almost finished the maximum sentence of five years for the offences that he had been alleged with. It was also his contention that the investigation in the matter had been going on since nine years and was still nowhere near to be completed. He said–

"I've finished four years. The maximum punishment is 5 years. My case is covered under Sec 436A CrPC. There is a judgement which covers this- Dayasingh Lahoria v. State. This principle comes from doctrine of speciality. A fugitive can only be tried for offences mentioned in the extradition treaty. I've been charged under Sections 120B, 415, 420. There is no mention of Sec 8 of PC Act but it is also extracted. Corresponding provisions in the UAE have been extracted. I've been extradited for an offence which is punished with 5 years. Including my remission, I've completed almost 5 years. The FIR has been registered in Feb 2013. The incident is for 2004 and 2008. I have been arrested and brought to India on 4 December 2018. Chargesheets have been filed. More than 1280 documents need to be examined. Trial is under 207(Section 207 CrPC stage) since last many years. It's so voluminous CBI has not filed before the court. So the process of verification of unrelied documents is going on. It's unlikely that the trial will proceed in the next few years. The investigation has been going on for more than 9 years. In 2023, it'll finish 10 years."

He went on to highlight that many accused persons who were similarly placed had been granted bail by the trial court except Michel. He stated that he had also approached the United Nations Human Rights Council (UNHRC), which declared that the detention of Michel in India was illegal and against the international human rights principles. 

Additional Solicitor General SV Raju, appearing for the ED submitted that Section 21 of the Extradition Act, 1962 had to be read with India's extradition treaty India had with the UAE. For context, Section 21 states that when any person is surrendered or returned by a foreign State, such person shall not be tried in India for an offence other than the extradition offence in relation to which he was surrendered or returned. ASG Raju stated that this provision had to be read with the treaty which provided that such a person (as mentioned under Section 21) could also be tried for a "connected offence". He added–

"Offence under Section 467 is connected. It's not a separate offence. It's in the same chargesheet. In any case, this is a matter of trial. Section 21 has to be read along with the treaty, the treaty says connected offences. It cannot be read in isolation. In Dayasingh, connected offences were not there. But in my case, the treaty does provide for connected offences. There is an essential difference in my treaty."

The bench expressed its concern over the relationship between the treaty and the statute. CJI Chandrachud remarked–

"Our statute says that we can only try him for what he was surrendered or extradited. The limitation imposed by our statute cannot be removed by a treaty. Can you give us a small note on facts and just on this 436A issue? So we can interpret law based on facts. It's an important matter of consideration- the relationship between the treaty and the statute. It's also for our reflection so we don't wish to conclude it today. Mr. Raju, one thing is worrying us is that the complexity of trial- as many as 250 witnesses are to be examined."

CJI Chandrachud also orally remarked–

"He has already been put in jail for four and a half year- just because he's a foreign national. Ordinarily if he was an Indian national, the court would be willing to grant bail. Only because he's a foreign national, does that warrant a complete deprivation of his liberty or can we impose some conditions so we can ensure his appearance?"

The court asked the counsels to provide a note on the issue and listed the matter for the second week of January 2023. 

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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