Choksi Case: Extraditions Bungled by No Coordination in Agencies

To ensure better coordination & functioning, the govt must set up a centralised International Cooperation Division.

Image of fugitive Mehul Choksi used for representational purposes.

(Photo: Altered by The Quint)

In the Indian scenario, international cooperation in criminal matters takes place in a complex and somewhat disjointed environment. From a legal perspective, the investigation of a majority of cases takes place in the states while the central investigation agencies take up only a minuscule proportion of the cases. Central agencies like CBI, NIA, NCB, ED — and even the DRI — do investigate the more important cases, but that doesn’t mean that no criminals from other states have external connections.

In a rapidly inter-connected world, the chances of the criminals fleeing our territorial borders or just sneaking across our porous borders are quite high.

However, chances of foreign territories or jurisdictions being used to commit crimes against Indian persons — human or corporate — are perhaps even higher. Banking offences, corruption-linked money-laundering, human-trafficking, terrorism and cyber-crimes are cases in point, and perhaps not even a fraction of the actual crimes involving money frauds are getting reported/investigated.

Follies of Indian Investigation Agencies, Loopholes in Process

With much business being transacted on digital platforms or media, the availability of evidence — especially digital evidence pertaining to trans-national crimes across territories and jurisdictions — is becoming the order of the day. Without foolproof investigation and evidence, prosecution becomes difficult. Most Indian investigation agencies at the state level are not aware of the process, nor are the investigating officers and the supervisors or the legal or institutional mechanisms required to investigate the cases. Once the cases exhibit external dimensions, most investigations at the state police levels stop.

Besides the officers not being aware of the processes and procedures, most do not even have the financial resources to cater to such eventualities.

The number of cases getting closed due to inadequate evidence on this count (trans-border investigation) could be very high. MHA is the nodal agency for investigations abroad, whether by way of Letters Rogatory (LRs) or requests under Mutual Legal Assistance treaties (MLAT), but the number of such requests is infinitesimal.

Extradition Processes: The Chain of Command

The Ministry of External Affairs (MEA) is the nodal agency for extradition matters. However, most of the work of investigation is done at the police level. The Central Bureau of Investigation (CBI) is India’s nodal agency for Interpol-related matters. For Interpol-related matters, the CBI has a dual chain of command — the DoPT and the MHA. The DoPT being the ministry in-charge of the CBI naturally comes into the picture, but India’s annual contribution to Interpol is from the MHA’s kitty. Interpol-New Delhi is just a branch of the CBI and primarily caters to CBI cases, although other agencies — central and state — also draw upon it for leverage.

State police forces are supposed to have Interpol Liaison Officers, but these are largely non-functional, in case they exist.

State Investigating agencies can get Look Out Circulars opened for their fugitives to prevent them from fleeing abroad and also get Red Corner Notices (RCNs) opened. However, RCNs are required only if the accused has absconded and his/her whereabouts are not known. If the whereabouts are known, one can skip directly to making an extradition request. This has to be done by approaching the MEA.

Red Corner Notices Must Be Given More Teeth Legally

Even in cases where RCNs exist — whether the RCNs are Indian or foreign ones — an extradition treaty or an arrangement is an essential prerequisite. In exceptional cases, extradition can also be granted/sought on assurances of reciprocity, but such instances are rare.

Since extradition treaties or arrangements are essential, it would be prudent for the investigation agency and Interpol-New Delhi to consult the MEA, before an RCN is issued from Interpol Headquarters in Lyons.

This is usually not the case and numerous LOCs get opened on this count and many people also get detained at immigration points, leading to legal complications.

RCNs have no more legal value in India than a ‘hue and cry notice’ as it is known countrywide.

RCNs are international hue and cry notices. An RCN, however, can be accorded greater value by countries amending their laws on extradition and mutual cooperation and incorporating references to RCNs being equivalent to non-bailable warrants of arrest wherever extradition treaties or arrangements exist. Else, RCNs have very little legal value in most countries. In India too, RCNs need to be given teeth of legality.

The Extradition Process

The total number of fugitives wanted in India, whether they have committed offences within Indian jurisdiction or in foreign countries — acts which have impinged either Indian laws or Indian citizens, would be massive by all counts, perhaps closer to 25,000, but our list of RCNs and also other Interpol Notices is very small. Backward institutional integration with state agencies to plug gaps is a long-pending requirement.

The process of extradition comprises the following phases:

• Requested Country: determination that an accused has absconded; that there is sufficient evidence against him; getting an RCN issued based on a non-bailable warrant of arrest (if the location of accused is not known; preparation of extradition request by the investigating agency; sending the request to the requested country
• Requesting Country: administrative examination to ensure treaty compliance or reciprocity; judicial determination to ensure — a) dual criminality, that is, the act is an offence in both countries, irrespective of nomenclature used, and b) prima facie case exists against fugitive, and the executive decision to surrender or extradite. If the dual criminality and prima facie are not satisfied, the fugitive is discharged.

The Way Forward: Need for a Centralised ‘International Cooperation Division’

In India, all these stages happen in an un-coordinated manner with different agencies coming into play. To ensure better coordination and smooth functioning, the Government of India should set up a full-fledged, centralised ‘International Cooperation Division’, which should be staffed with police officers and investigators in direct proportion to the number of cases requiring international interface or fugitives each state may have; the Interpol Division; representation from MEA; representation from MHA, apart from a legal division.

This division can become a repository of knowledge for international cooperation in criminal matters and help the states in capacity-building in extradition matters and international investigations — both from India and inwards.

The Choksis, Nirav Modis and Vijay Mallyas will come and go. Meanwhile, our house needs to be fortified.

(Rupin Sharma is a 1992-batch IPS officer. He tweets @rupin1992. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)