‘The court is also obliged to protect the rights of foreigners’: Chinese citizen released on bail in Vivo case | Latest News Delhi

Courts have the duty to ensure that the fundamental rights of individuals, whether Indian citizens or foreign nationals, are not violated, a court in Delhi said while granting bail to a Chinese employee of Vivo India. ₹20,000 crore money laundering case.

Additional sessions judge Kiran Gupta, in her judgment delivered on November 11, a copy of which was uploaded on Wednesday, said: “The duty is entrusted to the trial courts to ensure that the constitutional rights of an individual, whether a citizen or a foreign national, are not violated. The trial courts are the first interface with the litigant.” or point of contact or line of defense. Therefore, it is the mandatory duty of trial courts and special courts to protect the fundamental right of the individual.”

In the 36-page decision, it was stated that all individuals have the right to a speedy trial within the scope of the right to life and freedom, in accordance with Article 21 of the Constitution. He said: “Criminal law is best applied when the inconvenience caused to an accused’s personal life, even by delay in proceedings, is minimal, so that faith in the constitutional principles arising from the judicial interpretation of Article 21 is not rendered ridiculous. .”

The observations were part of an order granting bail to Guangwen alias Andrew, an executive manager and human resources department employee at Vivo’s Greater Noida plant since 2016. He was arrested by the Enforcement Directorate (ED) in October 2023 and sentenced to nearly 13 months in prison.

ASJ Gupta said: “Successive decisions from the top courts in the context of Prevention of Money Laundering Act (PMLA) offences, have freed bail from the control of Section 45 of the PMLA and have removed the bail power from statutes with stringent bail conditions, Section 21”.

He referred to the Supreme Court order granting bail to AAP leader Manish Sisodia in the Delhi excise policy case and subsequent judgments reiterating the reading of the principles of liberty under Section 439 of the Code of Criminal Procedure (CrPC) and Article 21 in Article 45 of the PMLA found.

While Section 439 of the CrPC lays down the specific powers of the high court or the trial court to grant bail, Section 45 of the PMLA outlines strict dual conditions for granting bail to a person accused of money laundering. ED had opposed the bail decision, claiming that the first instance courts would evaluate bail requests separately from the argument regarding Article 21 and the individual’s constitutional rights.

“Undoubtedly, only the High Court and the High Court have the power to enforce remedies under Articles 32 and 226 against violation of fundamental rights, but at the same time, all courts, including the courts of first instance, are bound to comply with the protection of these rights against violation of fundamental rights,” the judge said. “He is on duty,” he said. and to personally enforce the individual’s constitutional rights.”

He added that our administration of criminal justice, even the criminal justice system developed by law, retains the right to speedy trial as one of the important aspects.

Determining the bail conditions, the court said that the defendant should immediately surrender his passport and not leave the country without the court’s permission. He will reside in his place of residence and keep his phone working at all times.

The court also said that the defendant will not directly or indirectly communicate with the other defendants and will not encourage or threaten them in any way. The court further stated that the applicant will appear before the investigating officer (IO) in the case as and when required and will not be involved in any criminal activity.

The court noted that the indictment consisted of more than 1000 pages and documents in 6 volumes of files, and that the speed of the trial showed that it was not likely that the trial would even start in the coming months. The ED had stated that the delay was due to the procedure for notifying foreign nationals as per rules prescribed under section 207 of CrPC.

According to the accused’s lawyers, led by Advocate Arshdeep Singh Khurana, Andrew was working as an HR and executive manager at Vivo’s Greater Noida plant since 2016. Andrew’s attorney said the trial is likely to take a long time because the individuals named in the prosecutor’s complaint or the indictment in the case have not been served with a summons.

The lawyers also argued that Andrew is a permanent resident of China and has a work permit in India. They argued that Andrew was not in a key executive position at the company and was not involved in the financial affairs of the firm under investigation.

They stated that the accused was assisting Jacky Liao, who was the then CEO of Vivo India, and hence was flagged in the follow-up emails sent to Liao. The lawyers stated that the defendant did not attend any board meeting and was only responsible for communication and coordination and therefore could not be liable under the PMLA.

However, the prosecution, led by special public prosecutors Zoeb Hussain and Manish Jain, alleged that the accused was an office holder of Vivo India, with whom he was previously associated with Vivo China.

The prosecution argued that Andrew “played a significant role” in the merger of all Vivo Group of Companies’ entities in India and deliberately concealed the fact that these entities were owned by Vivo China.

“He, in collusion with other Chinese individuals and co-conspirators of Vivo China, created a network of companies operating under corporate cover throughout the country,” the prosecution said. he said.

They argued that he monitored and supervised the entire process and communicated with co-defendant companies regarding legal matters related to any shell companies during formation. “He (Andrew) was coordinating with other defendants seeking invitation letters for Chinese government delegates,” the prosecution said, opposing the bail request.

The instruction stated, “The applicant is one of the employees and nothing other than salary has been received into his account.”

The ED had filed a chargesheet and another supplementary chargesheet in the case in which it had accused Chinese phone maker Vivo under sections of the PMLA.

Federal agency alleges firm used shell companies to make transfers ₹1 lakh crore outside India between 2014 and 2021 to avoid paying taxes in India.

ED had arrested Lava International MD Hari Om Rai, China National Guangwen and Chartered Accountants Nitin Garg and Rajan Malik in the case. Rajan Malik was granted bail by a lower court in October.