The Enforcement Directorate’s (ED) attempts to bring back Vijay Mallya, chairman of Kingfisher Airlines, by invoking the 1995 India-UK Mutual Legal Assistance Treaty (MLAT) has hit a legal hurdle.
The Ministry of Home Affairs (MHA), the nodal agency for processing MLAT requests pertaining to criminal cases, has informed ED that it does not have the powers to execute a non-bailable warrant for the arrest of Mallya, who is facing charges of money-laundering, official sources told The Indian Express.
The Home Ministry communication has come after the ED approached it seeking approval for Mallya’s transfer to India under the provisions of MLAT between UK and India.
While article 11 of the India-UK MLAT does provide for transfer of persons, including those in custody, for the purpose of assisting in investigations or giving evidence in ongoing proceedings, MHA “does not undertake service of non-bailable warrants of arrest under MLAT” as it amounts to the extradition of an individual, according to the official website of the Ministry of External Affairs (MEA).
“Requests for extradition are based on legal principles and procedures contained in Extradition Treaties negotiated with the foreign country concerned. Such requests are to be forwarded in the prescribed format to the Ministry of External Affairs,” said the MEA website.
Officials of the Home Ministry and the Enforcement Directorate declined to comment on the issue. But sources said that the Home Ministry has asked ED to approach the MEA to initiate extradition process under the India-UK Extradition Treaty norms, according to sources.
The ED office in Delhi is now planning to write to MHA and MEA to seek legal clarification on the issue, said sources.
In May, Union Finance Minister Arun Jaitley had said that the British government turned down India’s request to deport Mallya and called for requesting mutual legal assistance or extradition. At the time, Jaitley had said that the UK has a slow extradition process and a request can be initiated only after a chargesheet is filed in the case.
In April, the ED obtained a non-bailable warrant against Mallya under the Prevention of Money Laundering Act (PMLA) after he failed to appear before the agency.
So far, no high-profile individual wanted by India, such as music director Nadeem Saifi and navy war room leak accused Ravi Sankaran, have been extradited under the India-UK extradition treaty that came into effect on December 30, 1993. Even in the case of former IPL commissioner Lalit Modi, who is facing money-laundering charges, the government is yet to initiate extradition process.
Currently, Kingfisher owes over Rs 9,000 crore to 17 banks, including the State Bank of India (SBI), IDBI Bank, Punjab National Bank, Bank of India, Bank of Baroda, United Bank of India, Central Bank, UCO Bank, Corporation Bank, Indian Overseas Bank, Federal Bank, Punjab and Sind Bank, and Axis Bank, among others.
The ED has attached Mallya’s properties worth over Rs 8,000 crore under PMLA after the agency expanded its probe into the case. On August 23, the ED registered a fresh case against Mallya and Kingfisher for loan default of Rs 6,027 crore.
According to a PTI report on Sunday, the next set of attachments will be carried out under sections of the Criminal Procedure Code (CrPC). Quoting unnamed officials, the report said that the third set of attachment orders will be for assets held “directly and indirectly” by Mallya, including those at overseas locations like South Africa, the UK and others.
The new case is based on a complaint filed by an SBI-led consortium with the CBI. Earlier this month, the CBI had filed a fresh case under IPC sections related to criminal conspiracy and cheating against Mallya on the basis of a complaint received from the SBI-led 17-bank consortium.
In June, the ED had sought a proclamation notice to be issued against Mallya as it said that he had “multiple” arrest warrants pending against him, including a non-bailable warrant under the PMLA, and that the agency wants him to join the probe “in person”.