The special court has held that the overall conduct of Vijay Mallya suggest his refusal to return to India to face criminal prosecution, while declaring him a “fugitive economic offender” — the first such designation under the Fugitive Economic Offenders (FEO) Act, 2018 — earlier this week.
In June 2018, while the Act was still an Ordinance, the Enforce-ment Directorate (ED) had moved a plea before the special court seeking that Mallya be declared a fugitive economic offender. It had also asked that his properties, including those indirectly controlled by him, be confiscated.
Judge M S Azmi, in his order, said that if the submission of Mallya was taken to be true in its entirety that he had left the country for a scheduled meeting and had not gone secretly or illegally and hurriedly to avoid arrest, then “it would not be sufficient to hold that he is not a FEO as per the Act”. “The date of leaving India by Mr Mallya is March 2, 2016 on that date admittedly there was an offence registered by CBI and ED,” it added. Mallya had told the court that he was attending a motor sports council meeting in Geneva.
The court said if Mallya’s contention was presumed to be true that he had departed India to attend a pre-scheduled meeting and was a law-abiding citizen, then he would have immediately informed the authorities about the schedule to return to India.
The court added that in spite of “issuance of repeated summons and warrants of arrests, he did not give a date of return”. “Therefore, it would be unsafe to accept the argument that he departed India only to attend the pre-scheduled meeting. His overall conduct suggests his refusal to return to India to face criminal prosecution,” it said. The court also said had he intended to return to India, he would have expressed his desire to return.
The court said the intention of the FEO Act is to preserve the sanctity of the rule of law. The reasons supplied to declare Mallya a fugitive offender is that the amount involved is Rs 9,990 crore — more than Rs 100 crore, which is the requirement of the Act. The summons issued were deliberately avoided, passport was revoked, NBWs issued and he was declared a proclaimed offender. “These appear to be sufficient reasons as they cover the parameters of the Act to declare him FEO,” it said.
The court noted, “Mere statement that the Government of India has pursued a political vendetta against him and initiated criminal proceeding and investigation against him cannot be ground for his stay in UK. The courts in India have to discharge their judicial functions as per law.”
It further added, “The confiscation of property by Central government under FEO is for the purpose of sanctity of rule of law and to make him available for the trial.”
The court said the reply by Mallya to ED suggest that he was making efforts for one-time settlement and therefore, he is unable to personally appear for investigation.
“The reason given itself suggest that Mallya was avoiding to join the investigation. He had not given any definite date when he will join the investigation and the time to be consumed by him for his efforts to have one-time settlement. Merely submitting that he is ready to cooperate in investigation via video conferencing cannot be considered as his bonafide,” the court held.