‘Court duty-bound to protect rights of foreigners too’: Chinese national gets bail in Vivo case
The prosecution argued that Andrew “played a pivotal role” in the incorporation of the entire setup of the Vivo Group of Companies in India, willfully concealing the fact that these entities are beneficially owned by Vivo China.
Trial courts are duty-bound to ensure the fundamental rights of individuals, be it an Indian citizen or a foreign national, are not violated, a Delhi court said while granting bail to a Chinese employee of Vivo India in a ₹20,000-crore money laundering case.
Additional sessions judge Kiran Gupta, in her order passed on November 11, a copy of which was uploaded on Wednesday, said, “Duty is cast upon the trial courts to see that constitutional rights of an individual are not violated, be it a citizen or a foreign national. The trial courts are the first interface or point of contact or line of defence, with the litigant. Hence, it is the bounden duty of the trial courts, special courts to protect the fundamental right of an individual.”
The 36-page order noted that all individuals are entitled to speedy trial as part of the right to life and liberty under Article 21 of the Constitution. It said, “Criminal law is best administered when the inconvenience it leaves on the personal life of an accused, even due to delay in trial, is least, lest the faith on constitutional principles emanating from the judicial interpretation of Article 21 will be rendered farcical.”
The observations were part of an order granting bail to one Guangwen alias Andrew, who was an admin manager and human resources department employee at Vivo’s Greater Noida factory since 2016. He was arrested by the Enforcement Directorate (ED) in October 2023, and he spent close to 13 months in jail.
ASJ Gupta said that “successive decisions emanating from the superior courts in the context of Prevention of Money Laundering Act (PMLA) offences have emancipated bail from the grasp of section 45 of PMLA and subjected the bail jurisdiction in statutes with stringent bail conditions to mandate of Article 21”.
She referred to the Supreme Court verdict granting bail to AAP leader Manish Sisodia in the Delhi excise policy case and subsequent judgments that reiterated reading of principles of liberty under Article 21 into section 439 of Code of Criminal Procedure (CrPC) and section 45 of PMLA.
Section 439 of CrPC lays down the special powers of high court or trial court for grant of bail while section 45 of PMLA outlines the stringent twin conditions for grant of bail to a person accused of money laundering. The ED had opposed the grant of bail claiming that the trial courts are to consider bail pleas divorced from the argument on Article 21 and constitutional rights of an individual.
The judge said, “Undoubtedly, the constitutional powers to enforce remedies under Article 32 & 226 against breach of fundamental rights are solely vested with Supreme Court and high court but at the same time all the courts including the trial courts are mandated to adhere to protect and enforce the constitutional rights of an individual per se.”
Our criminal justice administration, nay even the criminal justice system developed by law, holds the right to speedy trial as one of the important facets, she added.
Imposing terms for the bail, the court said that the accused shall surrender his passport immediately and shall not leave the country without prior permission of the court. He shall reside at his place of residence and always keep his phone operational.
The court further said that the accused shall not communicate directly or indirectly with the co-accused persons or induce or threaten them in any manner. The applicant shall appear before the investigating officer (IO) in the case as and when required and shall not indulge in any criminal activity, the court further stated.
The court noted that the chargesheet is running into more than 1000 pages and documents in 6 voluminous trunks and the pace of proceedings indicate that trial was unlikely to even commence in the following months. The ED had stated that the delay was due to the procedure in serving notice to foreign nationals as per prescribed rules under section 207 of CrPC.
According to the accused’s counsels, led by Advocate Arshdeep Singh Khurana, Andrew worked in the capacity of an HR and an admin manager at the Greater Noida factory of Vivo since 2016. The lawyer for Andrew argued that the persons named in prosecution complaint, or the chargesheet in the case, have not been served summons, and hence the trial is likely to take a long time.
The counsels further argued that Andrew was a permanent resident of China and was on a work permit in India. They argued that Andrew was not in a key managerial position in the company, nor was he involved in the finances of the firm which is under investigation.
They submitted that the accused was assisting Jacky Liao, then CEO of Vivo India and was hence marked on follow-up emails to Liao. The lawyers submitted that the accused was not part of any of the board meetings and was only responsible for communicating and coordinating and hence cannot be liable under PMLA.
However, the prosecution, led by special public prosecutors Zoeb Hussain and Manish Jain, submitted that the accused was an office bearer of Vivo India before which he was associated with Vivo China.
The prosecution argued that Andrew “played a pivotal role” in the incorporation of the entire setup of the Vivo Group of Companies in India, willfully concealing the fact that these entities are beneficially owned by Vivo China.
The prosecution said, “He, in collusion with other Chinese individuals of Vivo China and co-accused persons, created a mesh of companies all over the country operating under a corporate veil.”
They argued that he monitored and supervised the whole process and communicated with the co-accused companies regarding statutory issues to any of the shell companies at the time of incorporation. “He (Andrew) was coordinating with the co-accused for seeking invitation letters for Chinese government delegates,” the prosecution submitted, opposing the bail plea.
The order noted, “Applicant is one of the employees and nothing has been received in his account except salary,” the order stated.
The ED had filed a chargesheet and another supplementary chargesheet in the case where it has charged Chinese phone maker Vivo under sections of the PMLA.
The federal agency claimed that the firm used shell companies to transfer ₹1 lakh crore outside India between 2014 and 2021 to avoid paying taxes in India.
ED had arrested MD of Lava International Hari Om Rai, Chinese National Guangwen and Chartered Accountants Nitin Garg and Rajan Malik in the case. Rajan Malik was granted bail by a lower court in October.