London: In an order that brought relief, The UK High Court on Tuesday allowed embattled liquor tycoon Vijay Mallya to appeal at least on one of the five grounds against his extradition order signed off by the UK home secretary to face alleged fraud and money laundering charges amounting to Rs 9,000 crore in India.
A two-judge bench of the Administrative Court division of the Royal Courts of Justice in London heard the application, which was filed in April. The bench comprising Justices George Leggatt and Andrew Popplewell said that the arguments can be reasonably made on some of Westminster Magistrates' Court Chief Magistrate Judge Emma Arbuthnot's conclusions in her prima facie case ruling.
While the judges dismissed a majority of the five grounds as well as any ground to challenge UK home secretary's sign off on the extradition order, they did grant permission for Mallya's defence team to present arguments on aspects of the evidence relied upon to build a case of fraud against Mallya. They have given directions to submit a draft for the appeal to proceed and ascertain the time frame for the hearing.
Mallya has already lost a UK High Court leave to appeal on paper, leading to an oral hearing of his renewal application.
Since he has been granted permission to appeal, the case will proceed to a full hearing stage at the UK High Court. The appeal will mark one of the final stages of the appeals process, as the chances of permission to appeal to the Supreme Court are unlikely if such a permission is already denied at the High Court stage.
Were he unsuccessful in his appeal, Mallya would have been extradited within 28 days from the appeal decision becoming final.
Mallya described the ruling as a "vindication".
"I have always maintained that these are false charges, fabricated charges and have no merit. And I think my point has now been vindicated," said Mallya. "Two seniormost judges of the High Court have given me permission to appeal the decision of the Westminster Magistrate in the prima facie case on the merits of the charges against me by the government of India... I wanted to win on the prima facie grounds because that is central to everything and deals with the government's charges against me and the Division Bench felt that decision was appeal-able, and that means the most to me."
"I still want the banks to take all their money, do what they have to do and leave me in peace," he added.
Before the hearing, the 63-year-old former Kingfisher Airlines boss said he was feeling "positive" as he entered the Royal Courts of Justice, where Justices George Leggatt and Andrew Popplewell heard the arguments from his barrister Clare Montgomery.
Montgomery told the court that the Requesting State, or the government of India, and the UK Home Secretary had chosen not to be represented. This indicates that the onus lies entirely on Mallya's defence team to establish the grounds for permission to appeal against the lower court's ruling in favour of the extradition.
Representatives from the Indian High Commission in London were present in court to observe the proceedings.
"By far the most substantial ground is that the senior District Judge was wrong to conclude that the government had established a prima facie case, said Judge Leggatt, as he read out the ruling at the end of the hearing. "We have been persuaded that the first ground of appeal is reasonably arguable."
The first ground revolved around Mallya's counsel questioning the basis on which Judge Arbuthnot had arrived at certain conclusions. Montgomery claimed she had been "plain wrong" in accepting some of the Indian authorities' assertions that Mallya had fraudulent intentions when he sought some of the loans for his now-defunct Kingfisher Airlines, that he made misrepresentations to the banks to seek the loans and had no intentions to pay them back.
Montgomery questioned the admissibility of some of the evidence produced by the Indian government through the Crown Prosecution Service (CPS) during the extradition trial.
"The conclusions are in effect a false dichotomy [Arbuthnot] failed to recognise that there was a straightforward business failure, said Montgomery, as she claimed the case presented by the Indian authorities had moved on in essence from that ruled upon at the magistrates' court level.
The judges accepted her broad arguments on this particular ground and directed her to submit a draft for the appeal to proceed to a full hearing, with a time-frame to be set in the coming weeks.
Mallya, accompanied by his son Siddharth and partner Pinky Lalwani, watched the proceedings in court as his counsel submitted that it is "at least arguable" that Arbuthnot fell into error which affected her ruling in favour of an extradition order and therefore the High Court panel must grant permission to appeal in the case.
The judges, however, accepted Judge Arbuthnot's conclusions on all other aspects of the case that came up during a "lengthy" extradition trial last year, involving a "substantial volume of evidence". They dismissed each of the other four grounds on which permission to appeal was sought, including so-called extraneous circumstances of Mallya being pursued by the Indian authorities for political reasons.
Montgomery even invoked a purported statement by former finance minister Arun Jaitley to further this argument, claiming he was on record saying that Mallya committed the fraud on the behest of the Congress.
"It does not seem to us capable of amounting to a case without any imputed, let alone actual, political opinion attributed to the applicant [Mallya], the judges noted.
The third and fourth grounds, dealt with collectively, claimed Mallya would not receive a fair trial in India, which was also dismissed as the judges upheld Arbuthnot's ruling on the matter that the wide media interest in the Mallya case would ensure justice.
The final ground presented by Montgomery sought to challenge the Indian government assurances that Mallya would be held in safe prison conditions at Barrack 12 in Arthur Road Jail in Mumbai by trying to introduce new evidence from a Mr Yadav, who claimed extreme conditions at Arthur Road Jail. But the judges once again accepted Arbuthnot's conclusion that the Indian government's assurances should be taken at face value and disallowed an attempt to present fresh evidence on the issue of prison conditions.
Finally, Montgomery had also sought to challenge Javid's sign-off on the extradition order on specialty grounds under the India-UK Extradition Treaty. She claimed there had been no guarantee provided from the Indian side that Mallya would not be arrested and tried for nearly 44 other cases filed against him in India if were to be extradited. But the judges ruled that no evidence had been produced to infer there would be such a "breach of specialty".
The judges made a few interventions to indicate that the offence for which Mallya is wanted by the Indian justice system is not materially different between English and Indian law.
Mallya remains on bail on an extradition warrant executed by Scotland Yard in April 2017.
(With inputs from PTI)
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