The Supreme Court said on Tuesday just because Christian Michel James, an alleged middleman in the AgustaWestland chopper scam, is a foreign national, how long can he be kept in custody and does his not being an Indian justify "complete deprivation" of his liberty.
James is a United Kingdom national and was extradited from Dubai in 2018.
A bench of Chief Justice DY Chandrachud and Justice PS Narasimha said, ordinarily, if the accused had been an Indian national, the court would have been willing to grant him bail, especially if he had spent more than four years in custody for the offences the maximum punishment for which is five years.
"Merely because he is a foreign national, how long can we keep him? Can that justify complete deprivation of his liberty? Had he been an Indian national, the court would have been willing to grant him bail," the bench told additional solicitor general SV Rau, appearing for probe agencies Central Bureau of Investigation and the Enforcement Directorate.
The bench said what is worrying the court is the complexity of trial as there are over 250 witnesses in the case and the co-accused government officials have been granted bail for want of sanction for prosecution.
"It's an important issue for consideration, especially the construct between the treaty and the statute (Extradition Act, 1962). What you (both Raju and advocate Aljo K Joseph appearing for James) can do is reflect on this and give a note to the court. We will put up this matter for further hearing in the second week of January, 2023," the bench said.
Raju said the provision in the statute that such a person shall not be tried for offences other than those for which he has been extradited has to be read along with the treaty, which says that "including connected offences. It cannot be read in isolation".
The top court noted the statute says he can only be tried for the offences for which he has surrendered or has been extradited and the limitation imposed by the statute cannot be removed by a treaty.
"Our area of concern is that Section 21 of the statute says that a person shall not be tried for the offences other than those mentioned in the extradition decree in which he has surrendered or returned," it said.
Raju said Section 467 of the IPC (forgery of valuable security or will), under which the accused has been charged, is a connected offence and it is in the charge sheet that is now subject matter of trial.
At the outset, Joseph along with advocate Vishnu Shankar Jain emphasised that James has spent around four years in jail after his extradition in 2018 in connection with an FIR registered in 2013 for the incident which took place in 2004 till 2008.
"The maximum sentence for the offence he is charged with is five years and with remission James has been in custody for four years 10 months. Prior to extradition he was in custody of probe agencies for 120 days in Dubai," he said, claiming James has approached the UNHRC, which has held his client's detention as illegal.
He said the CBI has, in its second supplementary charge-sheet, noted the investigation is still going on, and since the registration of FIR in 2013, they are investigating the case.
"Voluminous records have been placed on record which include 1280 documents and trial is at present at the stage of supply of documents to the accused. At this speed, it would take another two years to complete the trial," he contended.
The bench said it will take up the matter in the second week of January after the winter holidays and by then it will also like to reflect on the issue.
On December 2, the top court said it will hear on December 6 the bail pleas of James in the AgustaWestland chopper scam in which the CBI and Enforcement Directorate have lodged two separate cases.
Earlier in May, the top court had sought responses from the CBI and the ED on the bail pleas filed by James.
The Rs 3,600-crore alleged scam relates to the purchase of 12 VVIP helicopters from AgustaWestland.
During the earlier hearing, the counsel for the accused had said the case was covered under section 436A of CrPC (maximum period for which an undertrial prisoner can be detained) and he has undergone more than 50 per cent of the sentence for the offence which he is alleged to have committed.
The probe agencies had said they secured his custody with great difficulty and that section 436A will not apply to the ED proceedings.
James has challenged the Delhi high court order dated March 11 by which his bail plea was dismissed.
Seeking his release in both the CBI and ED cases, the accused had said he was not required for the purpose of investigation and expressed his willingness to cooperate with the probe.
Dismissing the bail pleas in both the CBI and ED cases last year, a trial court had said considering the overall facts and circumstances, the serious nature of the accusations, the gravity of the offence, and the conduct of the accused, it did not consider it a fit case for bail.
The CBI, in its charge sheet, has alleged an estimated loss of 398.21 million euros (about Rs 2,666 crore) to the exchequer due to the deal that was signed on February 8, 2010 for the supply of 12 VVIP helicopters worth 556.262 million euros (around Rs 3,600 crore).
The ED, in its charge sheet filed in June 2016, had alleged that James received 30 million euros (about Rs 225 crore) from AgustaWestland.
He is among the three alleged middlemen being probed in the case. The other two are Guido Haschke and Carlo Gerosa.