Hurdles in bringing Mallya back from London despite treaty with UK

  • Suchetana Ray, Hindustan Times, New Delhi
  • Updated: Mar 19, 2016 07:15 IST
In this file photo, Indian businessman Vijay Mallya arrives for the Indian Derby 2015 at the Mahalaxmi race course in Mumbai. (AP)

Liquor baron Vijay Mallya’s flight to his British nest to allegedly escape financial fraud charges back home could be a masterstroke because extraditing an Indian economic offender from the UK is extremely difficult.

India has an extradition treaty with the UK but criminal lawyer Majeed Memon said it is tough to convince British authorities that a foreigner on their soil can be considered fugitive for a financial crime he had committed in his home country.

Legal experts said a dual-criminality clause could help initiate extradition proceedings, which means the accused has to be charged for an offence that is recognised as crime in both countries.

But Article 9 of the UK-India treaty provides several grounds of defence, such as a person can argue that the extradition request is a facade for persecution. A long delay in making the extradition request by Indian authorities could help a person escape.

The option to appeal at every level of judiciary further complicates the process.

Indian agencies have failed to extradite navy war room leak accused Ravi Shankaran from the UK almost 10 years after he was implicated. The UK’s Crown Prosecution Service had argued that the CBI has substantial evidence to prove Shankaran’s role in passing naval secrets to arms dealers.

But Shankaran’s appeal at the UK high court turned the case against India.

“Economic offenders are generally powerful people. They exhaust all options with the executive and judiciary and only then leave India. Any action against such people is difficult,” a top bureaucrat said.

Investigating agencies can make a watertight case to ensure extradition. The first step is obtaining a non-bailable warrant (NBW) for arrest from an Indian court.

But for the CBI and enforcement directorate (ED) investigating Mallya’s loan default, it will be years before they can obtain the warrant.

India’s best bet to bring Mallya back is to use the money laundering case, which is a criminal offence in both countries.

There is no guarantee, though. The ED managed to get an NBW last year despite its 2012 money laundering case against cricket czar Lalit Modi, another high-profile Indian accused living in the UK.

“India’s best chance would be to persuade Mallya to come back. Otherwise, it is a risky, time-consuming, an expensive process,” lawyer Memon said.

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