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TMI Blog2022 (3) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 (12) TMI 186 - SUPREME COURT], 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. 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 - the apprehensions of the applicant influencing witnesses/tampering with evidence are not supported by any material placed on record, and on this aspect, mere pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities 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 mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability. 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 prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es connected therewith. Emphasis was laid on the expression "is sought" used 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences 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 ...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 extra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material before it while forming opinion; it was also held that the opinion had neither binding nor persuasive value over 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 corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from June, 2005 to July, 2012 towards agreement dt. 01.02.03 (subsequently replaced by 01.02.05), further revised on various occasions upto 31.12.11 (Indian Navy+HAL) Payment of EUR8.97m (GBP7.87x1.14=EUR8.97 m approx.) paid to M/s Global Services FZE by M/s AgustaWestland Holdings Ltd. from Nov, 2006 - Jan, 2011 towards contract dt. 01.11.06, further revised on 01.09.08. (Sea King Helicopter recovery Plan). Payment of EUR6.05M from April, 2010 to Dec, 2011 against agreement dt. 01.03.10 to M/s Global Services FZE, Dubai by M/s AgustaWestland Holdings Ltd. (For implementing AW-101 contract) Payment of EUR18.20m from May, 2010 to Jan, 2012 against agreement dt. 26.05.10 This amount was paid to M/s Global Trade & Commerce Ltd. by M/s WHL. (M/s Pawan Hans Ltd. - buy back) Payment of EUR2.03m (GBP1.78x1.14=EUR 2.03m approx.) paid to M/s Global Services FZE by M/s WHL from Dec, 2010 to July, 2012 against contract dt. 23.12.10. (HAL contract dt. 23.12.10) 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 press ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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