The Centre on Monday told the Supreme Court that fugitive businessman Vijay Mallya, cannot be extradited to India until a separate secret legal process in United Kingdom, which is judicial and confidential in nature is resolved.
The Centre said that it is not aware of the secret ongoing proceedings against Mallya in the United Kingdom, as the government of India is not party to the process.
The Ministry of Home Affairs, in its affidavit filed in the contempt case in which Mallya has been held guilty, said that this legal issue is outside and apart from the extradition process and is confidential and cannot be disclosed.
Mallya, an accused in bank loan default case of over Rs 9,000 crore involving his defunct Kingfisher Airlines, is in the United Kingdom. He has been based in the UK since March 2016 and remains on bail on an extradition warrant executed three years ago by Scotland Yard on April 18, 2017.
A bench of Justices U U Lalit and Ashok Bhushan which took up the matter through video conferencing asked Mallya's lawyer to apprise the court by November 2, what kind of "secret" proceedings are going on to extradite him.
The bench told advocate Ankur Saigal, representing Mallya that since government of India says it has no idea about the proceedings, he has to apprise the court about what is the nature of proceedings, when are these proceedings getting over and lastly when is the contemnor (Mallya) going to appear before the court.
At the outset, advocate Rajat Nair, appearing for Centre said that in compliance with the order of the apex court "we made extradition requests to the United Kingdom but we have been informed that some secret extradition proceedings are going on to which we are not party.
He said that the Centre's request for extradition of Mallya has been upheld by the highest court of UK but nothing has been happening as of now due to the separate process, which has been initiated.
The bench then asked Nair that when the request has been upheld by the highest court of UK then what is holding back the extradition of contemnor.
Nair replied that the government of India has no knowledge about the secret proceedings and does not know the status of it.
The bench then asked Saigal, what kind of proceedings are going on.
He said that they have no knowledge of these proceedings but what he knows is that his client's request against extradition has been rejected.
The bench posted the matter for further hearing on November 2 and directed that efforts should be made to ensure the presence of Mallya.
In its affidavit, the Centre informed the top court that the UK home office has intimated recently to the Indian High Commission that there is a further legal issue which needs to be resolved before Vijay Mallya's extradition may take place.
The UK side further said that this issue is outside and apart from the extradition process, but it has the effect that under the United Kingdom law, extradition cannot take place until it is resolved. The High Commission was further informed that the issue is confidential and so it cannot be disclosed it said.
It said that in compliance with the order of the top court dated August 31, the Indian government has again taken up the pending extradition case of Vijay Mallya with the Government of the United Kingdom, so as to seek his early extradition and facilitate his presence before the top court on October 5.
That the UK side has informed that extradition of Mr Vijay Mallya cannot take place until a separate legal issue, which is judicial and confidential in nature, is resolved. The UK side has emphasized that neither they can provide any more details nor intervene in the process, the Centre said.
It said that the UK government has also indicated that through the designated channel, that the UK home office has received a request to serve summons on Mallya for his hearing before the top court in India.
The Centre said that it is duty bound to honour, respect and comply with its orders including the order dated August 31, 2020 and the Union of India is also committed to bring back Vijay Mallya to India so as to ensure that he is tried in various offences strictly in accordance with the procedure established by law after complying with each and other statutory mechanism provided by law.
The Centre stated that the extradition proceedings are pending in the United Kingdom as pointed out. Considering the limited scope of this affidavit, the details of extradition proceedings are not placed in this affidavit at this stage.
The Centre gave the details of the extradition proceedings against Mallya starting from February 9, 2017 till dismissal of his appeal on May 14 and said that the fugitive businessman has thus exhausted all avenues of appeal in the United Kingdom.
The Centre said that following the refusal of leave to appeal, Mallya's surrender to India should, in principle, have been completed within 28 days but the UK home office intimated that there is a further legal issue which needs to be resolved before Vijay Mallya's extradition may take place.
On August 31, the top court had directed Mallya to appear before it on October 5 while dismissing his plea seeking review of the 2017 verdict which held him guilty of contempt for transferring USD 40 million to his children in violations of court orders.
The top court had also directed the Ministry of Home Affairs to facilitate and ensure the presence of Mallya before it in October.