London: The plot has thickened vis-a-vis a British arms consultant Christian Michel being in detention in India without a trial for an extended period. This week, he completed five years in custody.
Even after a decade of inquiry, the Central Bureau of Investigation (CBI) in India pleads it has yet to complete its probe and needs to file another ‘supplementary’ chargesheet. It also appeared to blame an unresolved issue with Britain’s Serious Fraud Office (SFO) as one of the causes of the delay.
Section 436A of the Indian Code of Criminal Procedure (CrPC) provides for the release of an accused after he has undergone detention ‘for a period extending up to one-half of the maximum period of imprisonment’, other than in exceptional circumstances. If found guilty under the offences for which he was extradited, Michel is likely to receive a maximum sentence of seven years (the maximum term of imprisonment for an offence under Section 420 IPC), which, taking into account standard remission, would have entitled him to a discharge by now.
The CBI opposed this argument because, in a supplementary chargesheet, Michel was accused under Section 467 of the Indian Penal Code (IPC), which carries a life sentence, if convicted.
Michel’s lawyer Aljo Joseph has maintained in court that this is a violation of Section 21 of the Extradition Act, which upholds a ‘doctrine of speciality’, emphasising that no new charges can be added to the ones which constitute the basis of an extradition request – in this case, the one by India to the United Arab Emirates (UAE).
However, in an order on February 7 this year, a three-member bench of the Supreme Court of India, headed by Chief Justice D.Y. Chandrachud, ruled Michel’s bail petition ‘under the provisions of Section 436A, cannot be accepted as valid’ since Section 467 carries a maximum sentence of life.
At the same time, citing Article 17 of the Extradition Treaty between India and the UAE, the judges decreed ‘it is evident that the person to be extradited shall not be tried or punished in the requesting State (namely India) except for the offences for which his extradition is sought or for offences connected therewith’.
Quoting Section 21 of the Indian Extradition Act, 1962, the judges pointed out that it stated that an extradited person shall not be tried in India for an offence other than: ‘(a) the extradition offence in relation to which he was surrendered or returned; or (b) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender for return could not be lawfully made; or (c) the offence in respect of which the foreign State has given its consent.’
How it squared this circle is not clear. The bench did not comment on whether the CBI has fulfilled the requirements of the treaty with the UAE and the Extradition Act, while merely saying “the petitioner is alleged to have committed offences under Section 467 IPC which is punishable with up to life imprisonment”.
While dismissing his bail plea, it clarified that Michel could move the trial court afresh.
The Supreme Court of India. Photo: Pinakpani/Wikimedia Commons. CC BY-SA 4.0.
Bartered for Latifa abduction?
Fairly late at night on December 4, 2018, a private jet landed in Delhi from Dubai. It carried as one of its passengers a blindfolded and handcuffed Michel. He was accused by the CBI of paying bribes to Congress party leaders to clinch a VVIP helicopter deal with the Indian government in 2010. Michel denies the charge.
For the record, the original approval in principle for the choice of choppers was given by Brajesh Mishra, principal secretary to BJP Prime Minister Atal Bihari Vajpayee and the Indian National Security Adviser around 2004.
In May and June 2016, the SFO in response to a CBI request despatched some documents connected with the Michel case. Soon after, the SFO, it seems, communicated to the CBI that the information had been shared by mistake and that it could not be disclosed under any circumstances. The SFO further indicated that double jeopardy could arise by doing so. Michel had on the same matter been exonerated by the Italian judiciary, where the Narendra Modi government was, in fact, a party.
AgustaWestland, the England-based makers of the helicopters, was a subsidiary of an Italian company Finmeccanica, now Leonardo S.p.A. Two of its Rome-based executives were accused of paying bribes to Indian officials for the contract; but were eventually declared innocent. In respect of the allegation against Michel, an Italian judge said this was no more than a ‘hypothesis’.
On November 18 last, in a written submission to Arvind Kumar, a judge in a special CBI court, the CBI reiterated that the SFO had stressed to it that ‘the evidence transmitted should not have been sent’, that ‘it should not be used in any investigation or prosecution’ and ‘the evidence remains confidential and is not to be disclosed or used until they (the SFO) resolve the issue or until further notice’.
If the judge accepts that, then there can potentially be no progress without a resolution by the SFO; and Michel will continue to be behind bars for an indefinite period without a trial. He has consistently been refused bail, despite all other accused in the case, including a former Air Chief Marshall S.P. Tyagi, being conditionally set free.
Notwithstanding the SFO imposing strict confidentiality on the CBI, Economic Times on January 15, 2022 reported: “People with direct knowledge of the matter told ET the information (from the SFO) related to monies sent by AgustaWestland to Michel as ‘commission’, to swing the VVIP chopper deal in favour of the British company.” It further maintained: “The information assumes significance since it establishes monies paid by AgustaWestland to Michel who allegedly in turn paid kickbacks to influential people in the Indian government to secure the deal, said the people cited earlier (namely ‘people with direct knowledge’).”
On November 17 last, in seeking disclosure of the SFO documents, Michel’s lawyer Joseph had cited before judge Kumar that the document was “published way back on 15.01.2022 in a newspaper. In these circumstances as per the law and the procedure such documents cannot be kept in secret in view of the Section 172 & 207 of the CrPC”.
The CBI special public prosecutor D.P. Singh rejected the suggestion of a leak to the newspaper by replying that the article ‘only records the court proceedings, which are open in terms of Section 327 CrPC, and there is no indication of the CBI violating the embargo created’. He avoided addressing the aspect of ET’s piece referring to “people with direct knowledge” as its sources, which was patently not a reporting of a court proceeding.
The SFO was asked to clarify its position in the light of the Economic Times report and whether, since Michel was cleared by Italian courts, he can be accused or tried for the same alleged crime twice. It was considering its response.
In a letter to the British Prime Minister Rishi Sunak in August this year before the G20 summit in Delhi, which this writer has accessed, Michel demanded he uphold international law and confront Narendra Modi. He wrote: “I am a political prisoner of Mr Modi.” He also described himself as ‘a judicial hostage of India’ and lamented that he ‘will never be taken to trial ever’.
Detailing his ordeal, he alleged that he was interrogated ‘for 300 hours, 12 hours a day’ by ‘three teams in rotation’. It was his third letter to Sunak. None of which has, according to informed persons, been replied to.
In November 2020, a United Nations Working Group on Arbitrary Detention (UNWGAD) ruled: “The deprivation of liberty of Christian James Michel by the Government of India, being in contravention of the articles 3, 9, 10 and 11(1) of the Universal Declaration of Human Rights and articles 9(3); 10(1); and 14(10)-(2) and 30(b)-(d) and (g) of the International Covenant on Civil and Political Rights, is arbitrary.”
Michel complained that despite the UNWGAD asking for his immediate release, the British government failed to secure his freedom. “Why is your government playing these dirty little games?” he asked Sunak. “Prime Minister,” he continued, “I don’t understand the problem I have had with your government. Is it corruption, rampant power lust, or just lack of competence?”
He, then, asserted: “You Prime Minister have nearly your entire fortune [actually the value of his wife Akshata Murthy’s shares] invested in INFOSYS India. Some £500,000,000. You know that if Modi once does not like the way you look at him, he will order an ED [Indian Enforcement Directorate] raid on INFOSYS, quote ‘due process’ as he did to the BBC & wipe out your share value.”
Sunak’s office refused to comment. A British Foreign Office spokesman said: “Our staff continue to support Mr Michel and raise his case with the Indian authorities at every appropriate opportunity.”
UK Prime Minister Rishi Sunak. Photo: Simon Dawson/No 10 Downing Street
One of Michel’s bail applications was, indeed, supported by the British High Commission in Delhi. The petition to the CBI judge pointed to his ill health brought about by his prolonged and allegedly inhuman incarceration. In 2021, Michel wrote to the then British Prime Minister Boris Johnson: “Due to the heat and lack of water I got three kidney stones. I got e-coli from the water when I caught Covid 19.” The judge did not take kindly to the British intervention and turned it down.
When Michel appealed to the Delhi high court for interim bail to avoid COVID-19 in a crowded prison, the verdict was that ‘foreign nationals will not be considered for interim bail under any criteria’.
In 2017, the UAE, of which Dubai is a part, declined to extradite Michel on the basis of the evidence presented in the Indian government’s request. But a volte face occurred. “In April 2018,” Michel indicated to Johnson, “I was warned by the Dubai prosecutor that a deal had been done with India to exchange me (in lieu of the Dubai ruler’s daughter Princess Latifa, who had escaped from her father’s clutches to seek asylum in India, being captured by Indian armed forces in the Arabian Sea and returned to her father) and I should go back to the UK. I had my passport & I should have run. But I was done running from Modi. If they were going to rendition me so be it.” Both the London High Court and the UNWGAD upheld this version of events.
Michel further conveyed to Johnson: “In mid-May (2018) I & my lawyers were called to meet with a delegation of UAE officials led by Colonel Waleed of the Dubai CID & Rakesh Asthana special director CBI India. Over three separate meetings over two weeks in front of & with the UAE officials’ support and blessings & in front of my lawyers, openly without any concern for UAE, international law or my human rights, (Asthana) said that unless I implicate Sonia Gandhi, her son & the senior opposition leader Ahmed Patel in corruption, I would be taken to India (renditioned) & out in jail for a long time without bail. They said no one will save you & mentioned some names & said a deal has been done. It was made clear to my lawyers & I that I was to be swapped for Latifa. My lawyers were shocked. If I agreed, I would be made a witness & would not have to go to India.”
Michel continues to languish in Tihar. In 2013, the UPA defence minister A.K. Antony, in a state of saintly panic, referred the matter to the CBI, following the accusations against Finmeccanica executives in Italy. The CBI filed a chargesheet in the case in 2017 and a supplementary chargesheet in 2020; and persistently begs for more time before the CBI judge for further investigation. It is also a fact that Michel’s family have not pressured the British Foreign Office to the extent the husband of Nazanin Zaghari-Ratcliffe did when she was detained in Iran from 2016 to 2022. By any standards, it’s an instance of grave injustice.
Formerly editor-at-large of CNN, London-based Ashis Ray is the longest-serving Indian foreign correspondent. He can be followed @ashiscray on X.
