AgustaWestland scam accused Christian Michel’s plea rejected: When can an undertrial be freed from prison?

The case

In 2010, AgustaWestland International Ltd, a wholly owned subsidiary of the Italian state-backed defence major Finmeccanica (now known as Leonardo) signed a Rs 3,726.96 crore contract to supply 12 AW-101 helicopters to the Indian Air Force (IAF). Eight of these helicopters were to be used to transport VVIPs such as the President, the Prime Minister, the Vice President and others, while four were to be used for other purposes.

In 2011, an investigation by the Italian attorney general’s office into alleged unethical dealings by Finmeccanica widened to include IAF’s deal with AgustaWestland. The Italian probe accused former IAF chief Air Chief Marshal S P Tyagi, through his cousins, of receiving bribes to change the terms of the tender that allowed AgustaWestland to win the Indian contract.

James, a highly placed defence consultant, was allegedly one of the middlemen who facilitated the bribes to get the deal done. According to the Central Bureau of Investigation (CBI), James had bribed IAF officers, Defence Ministry officials, bureaucrats and politicians.

There are currently two investigations against Michel, one by the CBI and the other by the Enforcement Directorate. While he has been granted bail in both cases, Michel has refused to furnish bail bonds citing “security reasons”. He has been imprisoned in Delhi’s Tihar jail since 2018.

Section 436-A of CrPC

Michel had argued in court that he is entitled to be released under Section 436-A Code of Criminal Procedure (CrPC), 1973.

Titled ‘Maximum period for which an under trial prisoner can be detained’, the section states that an undertrial prisoner cannot be held in prison for a period exceeding the maximum period of punishment for his offence. Release in such a circumstance is a statutory obligation, and thus automatic.

The section also states that a person who has spent at least half of the maximum period of imprisonment specified for his particular offence may be released, provided the offence does not carry the penalty of death. In this situation, however, the release of the undertrial is not automatic but subject to the court’s discretion after it hears the public prosecutor.

Section 436-A was inserted in the CrPC in 2006, due to concerns that many undertrials were being detained for periods well beyond the maximum stipulated for their offence.

Today, three in four prisoners (around 4.4 lakh persons) in India’s jails are undertrials, 9% of whom (some 39,000) have spent more than three years in prison, according to the National Crime Records Bureau’s latest report.

Nine in ten prisoners in Delhi courts are undertrials, and there are close to 410 prisoners (2% of prison population) in Delhi’s jails who have spent more than 5 years in jail.

Section 436-A is often the last resort for many undertrials to be freed from prison.

Michel’s case

Michel cited Section 436-A of the CrPC in court, arguing that he has already served the maximum prescribed sentence of seven years in the alleged offence of corruption in the CBI case.

The CBI, however, opposed Michel’s plea saying that he also has a case under Section 467 of the Indian Penal Code (IPC) (‘Forgery of valuable securities and wills’) which carries a maximum punishment of life imprisonment. This, the Bureau argued, made him ineligible for release.

“After charges are framed minus 467 of the IPC, he has to plead guilty. Only then can my Lords say that his sentence is over. Otherwise he has to approach a constitutional court (the High Court or the Supreme Court) by way of writ,” Senior Advocate and Special Public Prosecutor D P Singh, representing the CBI, had told the court.

Michel’s lawyer Aljo K Joseph, on the other hand, also sought refuge in Article 17 of the Extradition Treaty between the Government of the Republic of India and the United Arab Emirates, the country from which Michel was extradited in December 2018.

“The person to be extradited shall not be tried or punished in the requesting State (in this case India) except for the offence for which his extradition is sought or for offences connected therewith, or offences committed after his extradition…,” the section states.

Aljo argued that Section 467 of the IPC was not among the sections that his client’s extradition was sought on, and hence should not be counted while considering Michel’s release.

The court, however, rejected this argument. “Considering the allegations under Section 467 of the IPC which entails life imprisonment, it cannot be said that the accused has already undergone the period of maximum punishment prescribed for the alleged offences,” Special Judge Sanjay Jindal said.

Need for reform

Out of 511 sections in the IPC, there are over 70 that have life imprisonment as the maximum sentence for the offence. These are the only offences in which release will not be automatic for an undertrial prisoner irrespective of the time they have spent in judicial custody.

However, researchers have for long argued that many offences in India are “over criminalised”. For instance, life imprisonment is not only the maximum punishment for heinous offences, but also for some relatively less egregious offences.

These include having possession of forged court records or public register, counterfeiting a device or mark used for authenticating documents or possessing counterfeit marked material, fraudulent cancellation, destruction of will, authority to adopt, or valuable security and importing, exporting, selling, delivering or using as genuine, forged, or counterfeit coin, government stamp, currency-notes or bank-notes.

‘The State of the System’, a database of all criminal offences across Central laws compiled by Vidhi Centre for Legal Policy, points out that more than 75% of all crimes are defined under laws that regulate areas beyond core criminal justice, such as shipping, taxation, financial institutions, and municipal governance, and that 73% of all crimes are punishable by jail terms ranging from one day to 20 years.