Summary:
New Delhi, Dec 6 (PTI) 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 CBI and the ED.
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.