Delhi High Court
Christian Michel James vs Central Bureau Of Investigation on 11 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLN. 2586/2021 & CRL.M.As. 16338/2021, 1069/2022
Reserved on : 18.02.2022
Date of Decision : 11.03.2022
IN THE MATTER OF:
CHRISTIAN MICHEL JAMES .....Petitioner
Through: Mr. Aljo K. Joseph, Advocate
alongwith Mr. M.S. Vishnu Sankar,
Mr. Sriram Parakkat & Mr.
Michael Rao, Advocates.
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. D.P. Singh, SPP with Mr.
Manu Mishra, Ms. Shreya Dutt &
Mr. K.A. Yadav, Advocates.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J.
1. The present bail application has been filed under Section 439 Cr.P.C.
on behalf of the applicant seeking regular bail in FIR/RC No. 217-2013-A-
0003 registered under Section 120B read with Section 420 IPC and Sections
7/8/9/12/13(2) read with Section 13(1)(d) of the Prevention of Corruption
Act, 1988 (hereinafter, referred to as the „PC Act‟) by the respondent.
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2. The brief facts of the case, as discernible from the material placed on
record, are that on the basis of disclosure made by the then Head of External
Relations of M/s Finmeccanica [holding company of M/s AgustaWestland
International Ltd. (hereinafter, referred to as „AWIL‟)], Italian authorities
began investigation in the year 2011 regarding payment of bribes through
middlemen Guido Ralph Haschke and the present applicant, in relation to
supply of 12 VVIP helicopters by AWIL to the Government of India. The
Office of Public Prosecutors (Naples and Rome) began telephonic/technical
surveillance of Guido Ralph Haschke and others, including then CEO of M/s
Finmeccanica. The surveillance revealed that AWIL had paid bribes
disguised as payment to various firms for engineering jobs. During search
proceedings conducted at the house of mother of Guido Ralph Haschke,
various incriminating documents including a payment/balance sheet were
recovered by the Swiss Police.
Subsequently, Director General (Acq.), Ministry of Defence,
Government of India lodged a complaint dated 12.02.2013 with CBI seeking
inquiry/investigation into the aforesaid allegations. A preliminary inquiry
was conducted, wherefore the present RC came to be registered on
12.03.2013. During investigation in the case, it was revealed that a Request
for Proposal (RFP) was issued in March, 2002 on behalf of Indian Air Force
(IAF) for procurement of 8 VVIP helicopters. One of the prescribed
conditions was a mandatory altitude requirement of 6000 meters. Although 4
firms had responded, only 3 helicopters i.e., MI-172, EC-225 and EH-101
(also known as AW-101) were selected by Technical Evaluation Committee
for flight evaluation. Later, only the first two helicopters were flight
evaluated as the third helicopter was certified to fly only upto an altitude of
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4572 meters against the mandatory Operational Requirement (OR) of 6000
meters. Eventually, during Field Evaluation Trial (FET), only EC-225
conformed to all parameters.
When the FET report was sent to Ministry of Defence, Government of
India for approval, the PMO highlighted in a meeting that the condition of
mandatory altitude requirement of 6000 meters had resulted in a single
vendor situation. The matter came to be deliberated at different levels,
wherein the IAF maintained its stance with respect to mandatory altitude
requirement of 6000 meters. However, when Sh. S.P. Tyagi became the
Chief of Air Staff, the IAF's stand softened and the operational requirement
of 6000 meters was brought down to 4500 meters, making M/s
AgustaWestland UK eligible to submit its bid.
Revised ORs, entailing a reduction in service ceiling from 6000
meters to 4500 meters, cabin height of 180 centimeters and addition of the
words „at least‟ before twin engine, came into picture. With the finally
approved/revised ORs, another RFP was issued by IAF on 27.09.2006,
pursuant to which, EC-225 helicopters were eliminated from competition
and AW-101 helicopters enabled to enter the fray. On 08.02.2010, AWIL
was awarded a contract by the Government of India for supply of 12 AW-
101 VVIP helicopters for Euro 556.262 million (Rs.3726.96 crores). When
the allegations of bribery in the procurement process of VVIP helicopters
came to light, the contract dated 08.02.2010 was terminated by the
Government of India on 01.01.2014.
3. After investigation, a charge sheet was filed on 01.09.2017 against 12
accused persons, including Sh. S.P. Tyagi and the present applicant, under
Section 120B read with Section 420 IPC and Sections 7/8/9/12/13(2) read
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with Section 13(1)(d) PC Act and substantive offences thereof, stating that
various acts of commission and omission on the part of the accused persons
had resulted in a wrongful loss of Euro 392 million to the Government of
India. Later, a supplementary charge sheet was also filed against the present
applicant and others.
4. It was alleged that the applicant had acted as a middleman on behalf
of M/s AgustaWestland in the process of procurement of 12 VVIP
helicopters through his two companies namely, M/s Global Trade &
Commerce Ltd., London and M/s Global Services FZE, Dubai, UAE. It was
further alleged that he had received Euro 42.27 million for himself and for
bribing other middlemen as well as the public servants in India by executing
sham agreements as no work was done against the receipt of the amounts.
An amount of Euro 37.00 million was alleged to have been received by the
applicant through his company M/s Global Services FZE, Dubai in the guise
of consultancy service charges during February, 2007 to December, 2011
and further investigation was stated to be going on.
5. Pursuant to his arrest by the CBI on 05.12.2018, the applicant filed
applications seeking regular/statutory/interim bail before the Special Court,
which came to be dismissed on 22.12.2018, 16.02.2019, 18.04.2019 and
07.09.2019, in view of factors including, the serious nature of allegations,
the gravity of the offence and the stage of investigation.
6. Aggrieved, the applicant preferred BAIL APPLNs. 2715/2019 and
2716/2019 before this Court, one in respect of the RC and the other in the
corresponding ECIR recorded by the Directorate of Enforcement. When the
hearing in the bail applications could not be concluded on account of
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restrictions imposed by COVID-19 lockdown, the applicant approached the
Supreme Court for grant of bail. The Supreme Court, vide order dated
01.04.2020, directed this Court to decide the applications filed by the
applicant seeking interim bail, on their own merits. Pursuant thereto, a Co-
ordinate Bench of this Court vide order dated 06.04.2020 declined the prayer
made by the applicant in his interim bail applications after giving due
consideration to the contentions raised. The Special Leave Petition
(Criminal) Diary No(s). 10900/2020 filed against the said order was
dismissed by the Supreme Court on 22.04.2020.
7. On 22.04.2021, the applicant sought leave to withdraw BAIL APPLN.
2715/2019 with liberty to seek redressal before the Trial Court, as the
supplementary charge sheet had been filed. Accordingly, the bail application
was dismissed as withdrawn with grant of the liberty prayed for.
On 18.06.2021, the application filed on behalf of the applicant seeking
bail again came to be dismissed by the Special Court, considering inter-alia
the serious nature of the allegations, the gravity of the offence, the stage of
investigation and the conduct of the applicant.
8. I have heard learned counsels for the parties and have also gone
through the material placed on record as well as the written submissions
filed in support of the contentions.
9. During the course of arguments, Mr. Aljo K. Joseph, learned counsel
for the applicant, made a preliminary submission that the Italian Court has
already tried and acquitted the applicant and other accused persons after
considering all materials and documents. Reference was made by him to the
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proceedings dated 19.06.2013 before the Italian Court to submit that the
Indian Ministry of Defence was a party to the proceedings, where it was
held that no money has flown out of the accounts of the applicant's company
to bribe any officials. Thus, the continuation of proceedings before the
Courts in India is in violation of Article 15 of the United Nations
Convention against Transnational Organized Crime and its protocol. It also
amounts to double jeopardy under Article 20(2) of the Constitution of India
and is further barred in view of the principles of issue estoppel and res
judicata.
In response and while opposing the bail application, Mr. D.P. Singh,
learned SPP appearing for the respondent/CBI, submitted that neither the
applicant nor the CBI/Government of India was party to the criminal
proceedings before the Italian Court, and as such, the
commencement/continuation of trial before the Courts in India is not
precluded either on the principle of issue estoppel or res judicata, the latter
not even being applicable to criminal proceedings. It was urged that the
reliance placed on behalf of the applicant on the United Nations Convention
against Transnational Organized Crime is misplaced, as Article 15(6) of the
Convention grants the Member States authority with respect to criminal
prosecution in their domestic law. It was further stated that the evidence
recorded by the Italian Courts with respect to the other co-accused persons
has no bearing on the applicant's trial in India. In support of his
submissions, learned SPP placed reliance on the decisions in Gramophone
Company of India Ltd. v. Birendra Bahadur Pandey and Others reported as
(1984) 2 SCC 534, Jitendra Panchal v. Intelligence Officer, Narcotics
Control Bureau and Another reported as (2009) 3 SCC 57, A.T. Mydeen and
Another v. Assistant Commissioner, Customs Department reported as 2021
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SCC OnLine SC 1017 and Monica Bedi v. State of Andhra Pradesh
reported as (2011) 1 SCC 284.
10. Before dealing with the issue, this Court deems it apposite to advert to
the decision in Piara Singh v. State of Punjab reported as (1969) 1 SCC 379,
where it has been observed that when a finding of fact has been recorded in
favor of the accused in earlier proceedings before a competent Court, the
finding would constitute an estoppel against the prosecution to the extent
that a Court in subsequent proceedings would be precluded from receiving
evidence which disturbs said finding of fact. However, the same will not
operate as a bar to the trial or conviction of the accused for a subsequent
distinct offence. While taking this view, the Court made reference to the
opinion of Dixon, J. in King v. Wilkes, (77 CLR at pp 518-519), which was
extracted as under:-
"6. ...Speaking on the principle of estoppel Dixon, J., said in
King v. Wilkes:
"Whilst there is not a great deal of authority upon the
subject, it appears to me that there is nothing wrong in the
view that there is an issue-estoppel, if it appears by record
of itself as explained by proper evidence, that the same point
was determined in favour of a prisoner in a previous
criminal trial which is brought in view on a second criminal
trial of the same prisoner. That seems to be implied in the
language used by Wrigt, J., in R. v. Ollis, which in effect I
have adopted in the foregoing statement .... There must be a
prior proceeding determined against the Crown necessarily
involving an issue which again arises in a subsequent
proceeding by the Crown against the same prisoner. The
allegation of the Crown in the subsequent proceeding must
itself be inconsistent with the acquittal of the prisoner in the
previous proceeding. But if such a condition of affairs arises
I see no reason why the ordinary rules of issue-estoppel
should not apply. Such rules are not to be confused with
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those of res judicata, which in criminal proceedings are
expressed in the pleas of autre fois acquit and autre fois
convict. They are pleas which are concerned with the
judicial determination of an alleged criminal liability and in
the case of conviction with the substitution of a new liability.
Issue-estoppel is concerned with the judicial establishment
of a proposition of law or fact between parties. It depends
upon well known doctrines which control the re-litigation of
issues which are settled by prior litigation."
11. Reference may also be made to the decision in Gramophone Company
of India Ltd. (Supra), where it was noted thus:-
"5. ...The doctrine of incorporation also recognises the position
that the rules of international law are incorporated into national
law and considered to be part of the national law, unless they are
in conflict with an Act of Parliament. Comity of nations or no,
municipal law must prevail in case of conflict. National Courts
cannot say yes if Parliament has said no to a principle of
international law. National courts will endorse international law
but not if it conflicts with national law. National courts being
organs of the national State and not organs of international law
must perforce apply national law if international law conflicts
with it. But the courts are under an obligation within legitimate
limits, to so interpret the municipal statute as to avoid
confrontation with the comity of nations or the well established
principles of international law. But if conflict is inevitable, the
latter must yield."
12. Coming to the case at hand, this Court takes note of the order dated
08.01.2018 passed by the Appellate Court of Milan, Italy. A perusal of the
same would show that it was passed with respect to „criminal proceedings‟
against Giuseppe Orsi and Bruno Spagnolini, alongwith „civil action‟
brought at the instance of AGENZIA DELLE ENTRATE (Revenue
Authority) and Indian Ministry of Defence. Although the applicant's name
appears in the statement of reasons and the order, he was not a „party‟ before
the Italian Court. Only Giuseppe Orsi and Bruno Spagnolini were charged
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and tried, that too for International Bribery and Tax Fraud during the years
2009-10, when the proceedings were dismissed for lack of evidence. The
trial in Italy was concluded in the year 2014, whereas the charge sheet in the
present case was only filed in the year 2017 on the basis of material which
was not available with the Italian Courts. Notably, the Ministry of Defence
participated in the Italian proceedings only as a civil party.
It may be expedient to also allude to the judgment dated 02.09.2018
passed by the Dubai Supreme Court in extradition proceedings where the
applicant took the same defence, i.e. of having already been tried by the
Italian Court. Learned SPP for CBI has pointed out that the Dubai Supreme
Court disbelieved the applicant's contention and opined that the proceedings
before the Italian Court were in respect of other accused persons and not the
applicant. In light of the foregoing and on a prima facie view, this Court
finds no merit in the submission made on behalf of the applicant.
13. The second preliminary submission made by the learned counsel for
the applicant was that in view of Section 21 of the Extradition Act, which
adopts the „Doctrine of Specialty‟, the applicant cannot be tried for offences
other than for which he was extradited. In this regard, attention of this Court
was drawn to the judgment passed by the Dubai Supreme Court and the
decision of the Supreme Court of India in Daya Singh Lahoria v. Union of
India and Others reported as (2001) 4 SCC 516.
In response, learned SPP for the CBI submitted that Article 17 of the
Extradition Treaty with UAE not only permits trial for offences in respect of
which extradition of an accused person is sought, but also for the offences
connected therewith. Emphasis was laid on the expression „is sought‟ used
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in Article 17 of the Treaty to submit that a reading of the extradition request,
as noted in the judgment passed by the Dubai Supreme Court, would show
that the applicant is being tried for offences in respect of which his
extradition was „sought‟. While distinguishing the decision of the Supreme
Court in Daya Singh Lahoria (Supra), it was submitted that the Republic of
India has entered into different treaties with different countries and the
decision in Daya Singh Lahoria (Supra), interpreting Section 21 of the
Extradition Act, 1962, was with respect to the unique facts of the case and
the Treaty applicable in the said case. The Treaty involved in the aforesaid
case was much different from the Treaty entered into by the Republic of
India with UAE, as the latter also permits trial of the person extradited for
offences which are „connected‟ with the offences in respect of which
extradition is „sought‟. To buttress his submission, learned SPP placed
reliance on the decision in Commissioner of Customs, Bangalore v. G.M.
Exports and Others reported as (2016) 1 SCC 91.
14. In relation to the above issue, it is deemed expedient to make
reference to the judgment passed by the Dubai Supreme Court, an English
translated copy of which has been placed on record, supported by an
affidavit to the effect that the same was examined by Prof. Rizwanur
Rahman, Chairperson, Centre of Arabic and African Studies, School of
Language, Literature and Culture Studies, Jawaharlal Nehru University,
New Delhi. Learned counsel for the applicant has raised no dispute
regarding the translated copy or its contents. Relevant extract of the
proceedings before the Dubai Supreme Court is reproduced hereunder:-
"Whereas the case is related to the extradition of Christian
James Michael, British citizen, to the Indian authorities on
charge of "misuse of occupation or position, money laundering,
collusion, fraud, misappropriation and offering illegal
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gratification". Whereas the merits of the extradition request are
briefed in that the Indian authorities requested the UAE to
extradite Christian James Michael, British citizen, on charge of
misuse of position or job, money laundering, collusion, fraud,
misappropriation and offering illegal gratification within the
territory of the requesting country. An arrest warrant was issued
by the court in the requesting state."
xxx
As such, and as there is extradition treaty between the UAE and
the Republic of India in respect of the reciprocal legal assistance
in criminal matters and extradition of criminals, the said treaty
shall apply. Whereas Article 2 of the said treaty states the
following: (The following persons shall be extradited):
a. Persons accused of an offence punishable under the laws
of both the signatory States by imprisonment for a period of
at least one year or more.
b. Persons sentenced by the Courts of the requesting State
with imprisonment for at least six months in respect of an
offence mentioned in the Extradition Treaty.
Whereas the offences for which the above concerned person is
wanted are of deceit and criminal conspiracy punishable by the
laws of both the States. In India, the said offences are punishable
by imprisonment or fine, or with both, by the provisions of
articles 120B, 415 and 420 of the Indian Penal Code. Article
120B {Punishment for Criminal Conspiracy} provides for the
following:
xxx
There are similar provisions in the UAE for offences of bribery,
fraud and deceit in commercial transactions, and such offences
are punishable under the provisions of articles 237, 399 and 423
of the Federal Penal Law No. 2 of 1987 and its amendment of
2016 with imprisonment or fine, or with both...
xxx
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...It has been proved that the person requested to be extradited is
wanted for standing trial for charge of misuse of position or job,
money laundering, collusion, fraud, misappropriation and
offering illegal gratification which constitute criminal offences.
Therefore, such defense is baseless thus rejected."
(emphasis added)
15. Reference is also had of the Extradition Treaty signed between the
Government of the Republic of India and the UAE at New Delhi on
25.10.1999, which was ratified on 29.05.2000. Article 17(1) of the Treaty
reads as under:-
"1. The person to be extradited shall not be tried or punished
in the requesting State except for the offence for which his
extradition is sought or for offences connected therewith, or
offences committed after his extradition. If the characterization
of the offence is modified during the proceedings taken against
the person extradited, he shall not be charged or tried, unless the
ingredients of the offence in its new characterization, permit
extradition in conformity with the provisions of this Agreement."
(emphasis added)
16. Notably, the charge sheet against the applicant has been filed for
offences under Section 120B read with Section 420 IPC and Sections
7/8/9/12/13(2) read with Section 13(1)(d) of the PC Act. On a plain reading
of the judgment passed by the Dubai Supreme Court; the Extradition Treaty
signed between UAE and the Republic of India; and the authorities cited on
the issue by the parties, this Court, prima facie, finds no merit in the
submission made on behalf of the applicant. Even otherwise, the said
submission would be open to test at the time of framing of Charge/trial.
17. A third preliminary submission made by the learned counsel for the
applicant was that the applicant was subject of rendition and kept in illegal
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custody by the CBI. In this regard, reliance was placed on a finding recorded
in favor of the applicant by the United Nations Human Rights Council
Working Group on Arbitrary Detention (hereinafter, referred to as the
„UNHRC WGAD‟) in its 89th meeting.
On the other hand, learned SPP for CBI submitted that though the
Government of India had sent its reply to the UNHRC WGAD, the finding
of the Group is not binding on the Courts in India as the Group is not a
judicial body. It was also submitted that the findings have been negated by
the Ministry of External Affairs, Government of India in an official
statement on 26.02.2021.
18. In connection with the issue, this Court notes that even though the
UNHRC WGAD opinion relates to the present applicant, it was
predominantly based on allegations and limited information received from
an unidentified source. A response dated 26.06.2020 was sent by the
Government of India pursuant to the Group's call for comments, wherein the
circumstances surrounding the applicant's extradition were laid out and it
was categorically stated that no procedural deficiencies had taken place in
his extradition. It was also stated that the applicant's arrest and subsequent
custody were in accordance with the judicial process established by law, and
the issue of his custody and a request for interim bail had been considered
by various Courts, including the Supreme Court of India.
Besides, the Special Court, which was seized of all developments, has
dealt with the issue in the order dated 18.06.2021 and observed that the
Group did not have complete material before it while forming opinion; it
was also held that the opinion had neither binding nor persuasive value over
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the Special Court, which had jurisdiction over the case and was in
possession of the charge sheet, the supplementary charge sheet, including
the statements of witnesses, and the documents relied upon by the
investigating agency. Suffice it to note, the Special Court has taken
cognizance of the offence and the applicant is being tried by Court of
competent jurisdiction in India. Accordingly, the submission made on behalf
of the applicant does not weigh with this Court.
19. In addition to the foregoing, learned counsel for the applicant made
the following further submissions:-
(A) That the applicant has been falsely implicated in the present case and
from the material placed on record, no prima facie case is made out against
him. It was urged that neither any role has been attributed to the applicant
regarding lowering of operational height of the VVIP helicopters from 6000
meters to 4500 meters, nor any material has been placed on record to
indicate that any payment was made by the applicant to any person,
including any government official, for doing any corrupt act.
(B) That the applicant deserves bail also on the ground of parity, as all the
other accused persons, including the foreign national(s), have already been
released on bail. In this regard, it was urged that the applicant has deep roots
in India and it is not the respondent's case that he has tried to influence
witnesses/tamper with the evidence. It was submitted that the entire material
seized during the investigation, being documentary in nature, has already
been placed on record alongwith the charge sheet/supplementary charge
sheet and nothing more is to be recovered at the instance of the applicant. It
was also submitted that the passport of the applicant is already with the CBI
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and he has cooperated in other jurisdictions i.e., in Italy, Dubai and
Switzerland.
(C) That the applicant's pre-trial incarceration is violative of the right to
life and personal liberty guaranteed under Article 21 of the Constitution of
India, which is available to non-citizens also, and that it would hamper his
chances to defend himself in the trial, as the documents concerning the case
are available in different countries.
(D) That the applicant, who is aged about 60 years, suffers from various
medical ailments and has been in custody for more than 03 years and 02
months. It was also averred that the prosecution has cited 288 witnesses and
1059 documents running into 85,000 pages, and the trial is pending at the
stage of Section 207 Cr.P.C. The investigation has taken 9 years and is still
stated to be continuing. In these facts, the commencement/conclusion of the
trial is likely to take a long time. Besides, the CBI had filed charge sheet in
the case against the applicant on 01.09.2017, of which cognizance was taken
on 11.10.2017. A supplementary challan has also been filed, wherein further
investigation is still stated to be pending.
20. In support of his submissions seeking bail, learned counsel
cumulatively placed reliance on the decisions in Babba alias Shankar
Raghuman Rohida v. State of Maharashtra reported as (2005) 11 SCC 569,
Rakesh Kumar Paul v. State of Assam reported as (2017) 15 SCC 67, Sanjay
Chandra v. Central Bureau of Investigation reported as (2012) 1 SCC 40,
State of Kerala v. Raneef reported as (2011) 1 SCC 784 and Lambert Kroger
v. Enforcement Directorate reported as 2000 SCC OnLine Del 208.
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21. Per contra, learned SPP for CBI made the following submissions:-
(A) That the conspiracy in the present case did not stop in 2005 and the
commission of offences continued even after the award of contract to AWIL.
(B) That the applicant had landed at New Delhi, India on 12.02.2013,
when proceedings were pending before the Courts in Italy. The moment he
got to know that the officials of AWIL were arrested in Italy, he left India on
the same day for Dubai. He has no roots in India and he never joined the
investigation in India or Italy on his own. As such, he cannot claim parity
with the other accused persons. Besides, the ground of parity has been
rejected in the previous bail application as well.
(C) Learned SPP raised an objection to the filing of the present bail
application by the applicant. He submitted that an earlier regular bail
application filed on behalf of the applicant was dismissed as withdrawn by
this Court on 22.04.2021 and without material change in circumstance,
successive bail application is not maintainable. It was further submitted that
the applicant's applications seeking interim bail were dismissed by this
Court on 18.04.2019, wherein his conduct was also noted, and as such,
heavy burden lies on the applicant to show as to what material change has
taken place in the fact situation of the case. It was also averred that further
time spent in jail is not a material change in circumstance and insofar as the
applicant's contention that since the earlier dismissal orders, an opinion by
the UNHRC WGAD has been filed, is concerned, the same being a report by
a third party cannot be considered as a material change in circumstance
either. In support of his submissions, reliance was placed by the learned SPP
on the decisions in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
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Yadav and Another reported as (2005) 2 SCC 42, Virupakshappa Gouda
and Another v. State of Karnataka and Another reported as (2017) 5 SCC
406 and Rakesh Makhabhai Bamaniya v. State of Gujarat reported as 2020
SCC OnLine Guj 1801.
(D) While referring to the parameters for consideration of bail application,
learned SPP submitted that the applicant is a British national, having no
roots in India and is accused of a grave economic offence. He urged that
since the applicant was not available during investigation, he had to be
extradited. However, he has not cooperated with CBI. It was further
submitted that despite being a British national, the applicant has not been
residing in UK for the last 7-8 years, and he had also evaded
investigation/trial in Italy. Thus, he is a flight risk, as also observed by a Co-
ordinate Bench of this Court in the order dated 06.04.2020 passed in BAIL
APPLN. 2715/2019.
(E) Learned SPP further contended that in view of his powerful
connections, the applicant, if enlarged on bail, may influence the witnesses
and there is also a likelihood of his tampering with the LRs which are
pending in UK.
22. On the issue of the present application being a successive bail
application to an order of dismissal, it is apparent from the decisions in
Kalyan Chandra Sarkar (Supra) and Virupakshappa Gouda (Supra) that a
fresh bail application of an accused may be allowed, only in case a „material
change in circumstance‟ has occurred since an earlier dismissal order. In
order to determine if such change has occurred, a Court shall look into the
fresh grounds raised and/or material placed on record, and thereafter provide
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a reasoned finding as to what inclined it to take a view different from its
predecessor Bench, if so.
However, in the present case, the earlier dismissal order referred to by
the learned SPP for CBI came to be passed in an interim bail application.
Though the applicant had filed an earlier application for regular bail before
this Court, the same was withdrawn with liberty to seek redressal before the
Trial Court. On 13.04.2021, this Court had permitted the application to be
withdrawn, with liberty aforementioned, and was not considered on merits.
In this backdrop, the submission made on behalf of the CBI is discounted
and this Court proceeds to consider the bail application on its own merits.
23. Before proceeding to analyse the facts of the present case, this Court
deems it expedient to recapitulate the position of law on grant of bail.
24. 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 (Supra) 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. Relevant excerpt from the
decision is extracted hereunder:-
"21. In bail applications, generally, it has been laid down from the
earliest times that the object of bail is to secure the appearance of
the accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventative. Deprivation of
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liberty must be considered a punishment, unless it can be required
to ensure that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the principle that
punishment begins after conviction, and that every man is deemed
to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in
custody pending completion of trial could be a cause of great
hardship. From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial to
secure their attendance at the trial but in such cases, "necessity" is
the operative test. In this country, it would be quite contrary to the
concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon which, he
has not been convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will tamper with
the witnesses if left at liberty, save in the most extraordinary
circumstances.
23. Apart from the question of prevention being the object of refusal
of bail, one must not lose sight of the fact that any imprisonment
before conviction has a substantial punitive content and it would be
improper for any court to refuse bail as a mark of disapproval of
former conduct whether the accused has been convicted for it or not
or to refuse bail to an unconvicted person for the purpose of giving
him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the "pointing
finger of accusation" against the appellants is "the seriousness of
the charge". The offences alleged are economic offences which have
resulted in loss to the State exchequer. Though, they contend that
there is a possibility of the appellants tampering with the witnesses,
they have not placed any material in support of the allegation. In
our view, seriousness of the charge is, no doubt, one of the relevant
considerations while considering bail applications but that is not
the only test or the factor: the other factor that also requires to be
taken note of is the punishment that could be imposed after trial and
conviction, both under the Penal Code and the Prevention of
Corruption Act. Otherwise, if the former is the only test, we would
not be balancing the constitutional rights but rather "recalibrating
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the scales of justice".
xxx
46. We are conscious of the fact that the accused are charged with
economic offences of huge magnitude. We are also conscious of the
fact that the offences alleged, if proved, may jeopardise the
economy of the country. At the same time, we cannot lose sight of
the fact that the investigating agency has already completed
investigation and the charge-sheet is already filed before the
Special Judge, CBI, New Delhi."
25. While taking special note of cases involving economic offences, it has
been propounded by the Supreme Court that such offences constitute a class
apart and should be visited with a different approach in matters of bail
[Refer: Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation reported
as (2013) 7 SCC 439, Anil Kumar Yadav v. State (NCT of Delhi) and
Another reported as (2018) 12 SCC 129 and Rohit Tandon v. Directorate of
Enforcement reported as (2018) 11 SCC 46].
26. In respect of the considerations relevant to the grant of bail, this Court
deems it profitable to also advert to the decision in Anil Kumar Yadav
(Supra), where it has been observed as follows:-
"17. While granting bail, the relevant considerations are : (i)
nature of seriousness of the offence; (ii) character of the
evidence and circumstances which are peculiar to the accused;
and (iii) likelihood of the accused fleeing from justice; (iv) the
impact that his release may make on the prosecution witnesses,
its impact on the society; and (v) likelihood of his tampering. No
doubt, this list is not exhaustive. There are no hard-and-fast
rules regarding grant or refusal of bail, each case has to be
considered on its own merits. The matter always calls for
judicious exercise of discretion by the Court."
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27. Recently, the principles governing grant of bail were considered by
the Supreme Court in P. Chidambaram v. Central of Investigation reported
as (2020) 13 SCC 337. Relevant extract from the decision is reproduced
hereunder:-
"21. The jurisdiction to grant bail has to be exercised on the
basis of the well-settled principles having regard to the facts and
circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:
(i) the nature of accusation and the severity of the
punishment in the case of conviction and the nature of
the materials relied upon by the prosecution;
(ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant
or the witnesses;
(iii) reasonable possibility of securing the presence of
the accused at the time of trial or the likelihood of his
abscondence;
(iv) character, behaviour and standing of the accused
and the circumstances which are peculiar to the
accused;
(v) larger interest of the public or the State and similar
other considerations.
[Vide Prahlad Singh Bhati v. State (NCT of Delhi).]
22. There is no hard-and-fast rule regarding grant or refusal to
grant bail. Each case has to be considered on the facts and
circumstances of each case and on its own merits. The discretion
of the court has to be exercised judiciously and not in an
arbitrary manner. At this stage itself, it is necessary for us to
indicate that we are unable to accept the contention of the
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learned Solicitor General that "flight risk" of economic
offenders should be looked at as a national phenomenon and be
dealt with in that manner merely because certain other offenders
have flown out of the country. The same cannot, in our view, be
put in a straitjacket formula so as to deny bail to the one who is
before the court, due to the conduct of other offenders, if the
person under consideration is otherwise entitled to bail on the
merits of his own case. Hence, in our view, such consideration
including as to "flight risk" is to be made on individual basis
being uninfluenced by the unconnected cases, more so, when the
personal liberty is involved."
28. Subsequently, in P. Chidambaram v. Directorate of Enforcement
reported as (2020) 13 SCC 791, 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.
29. 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.
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Reportedly, the applicant had also sent three confidential documents,
namely revised ORs of January, 2006 for VVIP helicopters, FER of S-92
helicopter and contents of Technical Evaluation Committee report dated
February, 2007 of Indian Air Force, to the aforesaid persons. He is further
accused of having facilitated payment of kickbacks/bribes to IAF personnel,
bureaucrats and politicians in India in order to influence the outcome of the
procurement process with the end goal to benefit AWIL, for which work
Euro 42 million were allegedly paid to him.
30. As per the charge sheet/supplementary charge sheet, it has been found
that a paper trail was created by the accused to route the kickbacks/bribe
amounts. In furtherance of the same, the applicant entered into 5 different
service contracts through his two firms, namely M/s Global Trade &
Commerce Ltd., London and M/s Global Services FZE, Dubai, UAE with
M/s Finmeccanica, M/s AgustaWestland, M/s Westland Helicopters, UK
etc., wherefore his companies were paid an amount of Euro 30 million, even
though no work was carried out. It has been alleged that the aforesaid
agreements were sham agreements, intended to camouflage the payments
received by the applicant for paying kickbacks/bribes in India. Details of the
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aforesaid 5 agreements/contracts are reproduced in the table given below:-
AgustaWestland: Payment to Christian Michel Games
Two companies namely M/s Global Services FZE, Dubai and M/s Global Trade &
Commerce Ltd., London (both owned by Mr. Christian Michel James were paid total
amount of €42.27M by M/s AgustaWestland (AW)/M/s Westland Helicopters Ltd.
(WHL) against five Post Contract Service Agreement as per details given below:-
Payment of Payment of €8.97m Payment of Payment of Payment of
€7.02m (£7.87×1.14=€8.97 €6.05M from €18.20m €2.03m
(£6.16×1.14 = m April, 2010 to from May, 2010 (£1.78×1.14=€
€7.02m approx.) paid to M/s Dec, 2011 against to Jan, 2012 2.03m
approx.) paid Global Services FZE agreement dt. against approx.) paid to
to M/s Global by M/s 01.03.10 to M/s agreement dt. M/s
Services FZE AgustaWestland Global Services 26.05.10 This Global Services
by M/s WHL Holdings Ltd. from FZE, Dubai by amount was FZE by M/s
from June, Nov, 2006 - Jan, M/s paid to M/s WHL from
2005 to July, 2011 towards AgustaWestland Global Trade & Dec, 2010 to
2012 towards contract dt. Holdings Ltd. Commerce Ltd. July, 2012
agreement dt. 01.11.06, further (For by M/s WHL. against contract
01.02.03 revised on 01.09.08. implementing (M/s Pawan dt. 23.12.10.
(subsequently (Sea King AW-101 contract) Hans Ltd. - buy (HAL contract
replaced by Helicopter recovery back) dt.
01.02.05), Plan). 23.12.10)
further
revised on
various
occasions
upto 31.12.11
(Indian
Navy+HAL)
31. A perusal of the 3rd agreement mentioned in the table would show that
it was executed between M/s AgustaWestland Holdings Ltd. and M/s Global
Services FZE, Dubai, UAE on 01.03.2010 for rendering assistance in
commissioning of subject contract dated 08.02.2010 executed by the
Government of India with AWIL. In pursuance of the same, an amount of
Euro 6.05 million was paid from April, 2010 to December, 2011 to M/s
Global Services FZE, Dubai.
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Similarly, a perusal of the 4 th agreement mentioned in the table would
show that it was executed between M/s Westland Helicopters Ltd. and M/s
Global Trade & Commerce Ltd., London on 26.05.2010 for re-purchase of
14 WG-30 helicopters from M/s. Pawan Hans Ltd for an amount of Euro
18.2 million. However, neither M/s Westland Helicopters Ltd., UK nor any
of the companies belonging to the applicant made any communication with
Pawan Hans Ltd. or met its official for the re-purchase of WG-30 Westland
Helicopters.
It has also been stated that AWIL appointed the applicant's company
as a consultant/agent in contravention of the terms of the Pre-Contract
Integrity Pact dated 03.10.2008 signed between AWIL and the Government
of India.
32. Likewise, the applicant is stated to have transferred Euro 0.94 million
from the kickbacks received to Pacific International FZE, Midal Metals
International LLC, Metolix Ltd. and Eurotrade, which belong to co-
accused/Rajiv Saxena, as payments for consultancy services. However, no
such service was provided by the companies and the transaction was
intended to veil the transfer of kickbacks.
33. During investigation conducted abroad, an agreement dated
08.05.2011 is stated to have been recovered from the house of co-accused
Guido Haschke‟s mother at Lugano (Switzerland), as per which the
applicant had agreed to reduce the commission of the „team‟ (the applicant
and his associates) from Euro 42 million to Euro 30 million to ensure
honoring in full the commission of the „family‟.
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From the aforesaid house, a payment sheet prepared by the applicant
in early 2008 is also stated to have been recovered by Swiss Police, showing
that an amount of Euro 30 million was paid/proposed to be paid to Officers
of Ministry of Defence, Government of India, Bureaucrats, Politicians, etc.
for influencing the VVIP helicopters deal.
34. The applicant is also alleged to have acted in connivance with one
K.V. Kunhikrishnan, ex-General Manager, M/s Westland Support Services
Ltd., New Delhi, through whom he obtained confidential/secret documents.
In 2011, K.V. Kunhikrishnan left the aforesaid company and formed a firm,
namely M/s Varier Inc, with whom the applicant's firm M/s Global Services
FZE, Dubai, UAE entered into an agreement dated 01.12.2011 (renewed on
01.12.2012) for providing offset support. It has been stated that the applicant
paid Rs.97 lacs through foreign remittances to Sh. K.V. Kunhikrishnan
though no such service was provided by him to the applicant. In this way,
the money received in the account of M/s Varier Inc was used to pay
kickbacks/bribe amounts.
It is also reported that the applicant signed an „extension of the
agreement‟ dated 01.12.2012 with M/s Varier Inc. The signatures of the
applicant thereon are stated to be proved by the handwriting expert report
dated 08.04.2019. The said report is stated to also prove that certain
words/figures on the dispatch report dated 14.05.2008 were written by the
applicant in his own handwriting.
35. Further, an excel sheet prepared by Mr. Giorgio Casana (Casana
Sheet), an internal auditor of M/s Finmeccanica, is also stated to have been
recovered during investigation, which mentions payments of Euro
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34,135,766 made by M/s Global Service FZE, Dubai to various
entities/persons from October, 2009 to March, 2012.
36. Learned counsel for the applicant, while pressing for bail, has placed
reliance on Section 436A Cr.P.C. In this regard, suffice it to note that the
applicant has been charge-sheeted in the present case for the offence under
Section 467 IPC, which entails life imprisonment. Besides, it has been
submitted by learned SPP that during investigation, overwhelming
incriminating material has been collected against the applicant connecting
him with the present case/offence.
37. During the course of submissions, learned SPP for CBI raised an
apprehension that the applicant may influence witnesses and/or tamper with
evidence. However, in the opinion of this Court, the respondent has failed to
bring out any credible circumstance to show that the applicant has directly or
indirectly influenced any witness till date. Further, all the material relevant to
the case being documentary in nature, is stated to have already been seized
and filed alongwith the charge sheet. In this backdrop, 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 (Supra) and Sanjay Chandra (Supra) 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.
38. Insofar as the third prong of triple test, i.e., of the applicant being a
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flight risk, is concerned, learned counsel for the applicant has submitted that
the applicant's passport lies seized with CBI, whereas learned SPP for CBI
has stressed that the applicant is a British national and continues to be a
flight risk. It has also been submitted on behalf of CBI that prior to his role
becoming public, the applicant was a frequent visitor to India, however,
when co-accused Giuseppe Orsi was arrested by the Italian authorities on
12.02.2013, the applicant left India on the same day, and thereafter, never
returned, until he was extradited.
39. From a perusal of the material placed on record, it is further
discernible that the applicant never joined proceedings before the Court in
Italy, and for that reason European Non-Bailable Warrants were issued
against him. In India, open ended non-bailable warrants were issued by the
learned Special Judge on 24.09.2015. On the basis of the warrant and at the
request of CBI, a Red Corner Notice was issued in respect of the applicant
by INTERPOL on 25.11.2015. As a result of the same, the applicant came to
be arrested in Dubai. A request letter dated 19.03.2017 for extradition of the
applicant was sent to the competent authority in UAE, and finally, on
05.12.2018, he came to be arrested by the CBI.
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
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of this Court.
40. Besides, while dismissing the earlier interim bail application of the
applicant, a Co-ordinate Bench of this Court made a categorical observation
that he was a flight risk, having no roots in the society. At the time, it was
also observed by the learned Judge that in the aforesaid facts, the applicant
could not seek parity with co-accused persons. The said order was
challenged before the Supreme Court, but the same also came to be
dismissed.
41. 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.
42. In closing, it may also be mentioned that after the arguments were
concluded and while the order was being reserved in the present case, an
unverified letter dated 07.02.2022 from one Mr. Edward Bossley, HM
Consul to India, was shown on behalf of the applicant, in respect of the
apprehension that if enlarged on bail, he may be issued travel documents
which may ultimately lead to his fleeing from justice. Learned SPP for CBI
raised a strong objection regarding the same. It was pointed out that a
similar letter from Mr. Bossley was sent to the Special Court through e-mail
at the time of adjudication of the applicant's bail application on which, the
Special Court had observed that the letter having come from a third party
was not permissible material. Under these circumstances, this Court finds
the letter dated 07.02.2022 to be of no persuasive value and the reliance
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placed thereon unmerited.
43. Needless to state, nothing stated hereinabove shall amount to an
expression on the merits of the case and shall not have a bearing in the trial
of the case.
MANOJ KUMAR OHRI, J
MARCH 11, 2022
na
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