March 19 began as a regular day at the Westminster Magistrates' Court in London. Distirct judge Marie Mallon was busy dealing with all kinds of routine criminals from Polish smugglers to African human traffickers that morning. She was quickly disposing off those cases by sending the offenders behind the bars as a matter of routine when all of a sudden she was confronted with multi-million alleged fraudster Nirav Modi, who also had a Red corner notice issued against him by the Interpol.
Modi was physically brought before the Westminster Magistrates' Court soon after his arrest. The United Kingdom treats the Interpol RCN as an arrest warrant unlike the US where law enforcement needs a separate court warrant to execute the arrest. The judge took sometime off her bench and when she returned, keeping in mind the sum involved and the past conduct of the accused, she ordered he be sent to prison.
The denial of bail to the fugitive diamond merchant, accused in the multi-crore Punjab National Bank scam case, came as a surprise to many, not only in India but in the UK, too.
While the Enforcement Directorate, the lead agency pursuing the money laundering charges against him in India, was quick to claim that it was due to the evidence gathered by the agency that the UK's Westminster Court was forced to decline bail to the fugitive businessman, long-term watchers of British judiciary's workings maintain that the denial of bail has more to do with the suddenness of the development than anything else.
Modi was to be produced in court on March 25 by the extradition unit of Scotland Yard under the provision of "arrest by agreement" in the UK law. India had lodged an application with the UK Home Office to initiate extradition proceedings against him in August 2018. The UK Home Office deemed it a fit case for extradition and transferred it to the District Court in Westminster on March 8, which issued summons to Modi.
The fugitive diamantaire had his game-plan ready, said investigators, and just like fellow fugitive liquor baron Vijay Mallya who too had escaped from India to take shelter in London, his solicitors had decided to press for bail which is not a far call in offences of financial fraud.
“But this time his game-plan did not work,'' said the investigator.
Modi's arrest got expedited after the Holborn branch of UK-based Metro Bank rang up the Metropolitan police informing them that a fugitive was trying to open an account by submitting an impounded passport. The police reached the spot and Modi was arrested under an emergency situation and produced before a regular district judge.
District judges in the UK are mandated to look at emergency arrests alongside their routine work.
So Modi landed before judge Marie Mallon instead of an extradition magistrate like in the case of Vijay Mallya, whose tryst with the judiciary in the UK began with the extradition judge.
After India was informed of Modi's arrest, the ED and the CBI swung into action to lay their hands on him. The twin agencies probing the PNB scam are busy trying to build a water-tight case to oppose his bail plea. They will be citing instances to the court of his attempts to travel out of the UK thrice to other countries using an Indian cancelled passport.
The diamond merchant, whose multi-million empire ran from dilapidated buildings in Mumbai to swanky New York addresses, was allegedly also using multiple residency cards of various nationalities like Singapore and Hong Kong. “Nirav Modi will be of danger if he gets bail. We will challenge the bail plea on several counts listing out his nefarious activities in the UK,'' said an official. Another immediate example was his attempt to open a bank account using false documents, the sources said.
The prosecution complaint filed by the ED in May 2018 had established the role of Modi and his associates and family members, detailing money trail and evidences of rotation, siphoning and misappropriation of Letters of Undertaking (LoUs) illegally obtained from PNB using dummy entities in India and abroad.
“Mammoth infrastructure and deceit deployed by Nirav Modi and his trusted associates to give a facade of legitimacy to these illegal actions was demolished through the clinching evidences collected during the PMLA investigation in India and abroad," said the ED. A supplementary prosecution complaint was filed on February 28 this year in which a money trail of $927 million out of proceeds of crime of $1,015 million had been ascertained.
As per laid down procedures, an extradition request can only be sent after filing of prosecution complaint (charge-sheet) by the ED before the competent court and issuance of open non-bailable warrant against the accused person.
India sent the extradition request for Modi to the UK government on July 31, 2018.
According to experts, it is likely that Modi's case would move to the extradition judge, who is most likely to be Judge Emma Arbuthnot of the Mallya case fame.
In her judgement, she had described Mallya as a "glamorous, flashy, famous, bejeweled, body-guarded, ostensibly billionaire playboy" who may have "charmed and cajoled bankers into losing their common sense and persuading them to put their own rules and regulations to one side". She set aside any suggestion by the defence that a 'false case' was being mounted against Mallya to "assuage CBI's political masters".
“I find that because both the Congress and the BJP are blaming him and others for the state bank's losses that does not mean he is being prosecuted for his political opinions," said Judge Emma ordering the extradition of the liquor baron, which was subsequently approved by UK home secretary Sajid Javid.
Handlebar moustached Modi's defence is expected to be on similar lines as Mallya's citing human rights issues, poor jail conditions and terming the case against him as "politically motivated".
The CBI and ED team are preparing for the next challenge. After filing the extradition request in the form of a first affidavit, a second affidavit which contains the case summary detailing the charges against him is being submitted by the investigators to the UK court. Modi will be allowed to reply to the charges being pressed against him. Once the claims and counter claims are before the court, the case management hearing will be set up to give the schedule of dates of the trial which will be shared with the accused and the Indian investigators.
Modi and his uncle Mehul Choksi, another co-accused in the case, had left the country in January 2018, weeks before the PNB fraud came to light.
"Now that Modi is behind the bars, the challenge is to keep him there. He can't run very far away," said a sleuth.
Politically, the BJP government has the successful extradition of Christian Michel, alleged middleman in the AgustaWestland deal, from Dubai in December last to showcase during the forthcoming Lok Sabha polls.
With the party running into the Lok Sabha elections with its "Main bhi chowkidar" pitch, the timing might be ripe to try extradite other fugitives. On top of this list are Mallya, Modi and Choksi.