The Delhi High Court Wednesday asked Mehul Choksi, an accused in the $ 2 billion PNB scam who went to the US for treatment and ended up taking citizenship of Antigua, whether his claims for a fair trial and investigation were consistent with his own conduct. The query by a bench of Chief Justice D N Patel and Justice Prateek Jalan was posed to Choksi's counsel during the hearing of his appeal against a single judge order which dismissed his plea for pre-screening of Netflix docuseries 'Bad Boy Billionaires'.
Advocate Vijay Aggarwal, appearing for Choksi, said there is a footage about his client in the series which allegedly shows him in a bad light and therefore, could affect the various proceedings against him in India. Senior advocate Neeraj Kishan Kaul, appearing for Netflix, told the bench that the trailer, based on which the initial plea was filed before the single judge, does not refer to Choksi or name him.
This claim of Netflix was opposed by Aggarwal who sought permission from the court to show the trailer of the series on the next date of hearing, September 29. During the hearing, the bench said the "conduct of the petitioner is also of some relevance" when a constitutional court is deciding whether to exercise its writ jurisdiction.
The single judge had dismissed Choksi's plea on the ground that he had an alternative remedy available — of filing a civil suit — and that a writ petition for enforcement of a private right was not maintainable. Aggarwal contended that his client's fundamental right to a fair trial and investigation would be affected by the airing of the series and therefore, a writ was maintainable. He urged the bench that the matter be sent back to the single judge for being heard as a writ.
The court, however, asked, "Is your (Choksi) conduct consistent with what you desire? Your are not under trial now. You claim fair trial and fair investigation, but is your conduct consistent with that claim?" It also noted that after going to the US for treatment, Choksi obtained citizenship of Antigua and Barbuda with "terrific alacrity". The observation by the court came after Aggarwal said that Choksi left for New York for treatment on January 4, 2018 and then took the oath of allegiance in Antigua and Barbuda on January 15, 2018.
"It is terrific alacrity for someone with medical ailments," the bench observed. Aggarwal responded to the comment by saying that it was only a four hour flight from New York to Antigua and Barbuda and his client went to the US as his doctor was there and he was being treated there for some time.
He also told the court that when his client applied for citizenship of Antigua and Barbuda he also got a NOC from Mumbai Police stating that no cases were pending against him. It was on January 29, 2018 that a complaint was made aganist Choksi and a case was lodged by CBI on January 30, 2018, Aggarwal told the court.
Netflix, which has opposed the plea, would continue its arguments on the next date. In its reply to the appeal, Netflix has contended that irreparable loss or injury would be caused to it if the episode relating to Nirav Modi, of which Choksi wants a pre-screening, was stayed.
It has contended that Choksi was aware of the subject matter of the docuseries since early January 2019 when he was contacted for an interview in relation to the program and he was also interviewed for the same in May 2019. However, the interview was not utilized as it did not meet the objective of the episode, Netflix has said in its affidavit.
It has also said that the petition was not maintainable as the high court has in the past held that over the top (OTT) or internet video streaming platforms cannot be regulated and the only option was to file a civil suit. It has further said that there can be no pre-censorship in the form of a preview or pre-screening of the docuseries as the same would be violative of the freedom of speech and expression.
B Ramalinga Raju and Subrata Roy Sahara — who also find mention in the docuseries — have obtained stays from courts in Andhra Pradesh andAraria in Bihar, respectively. Choksi, the promoter of Gitanjali Gems, and his nephew, Nirav Modi, are accused in the Rs 13,500-crore Punjab National Bank (PNB) fraud case.
The documentary, which was scheduled for release in India on September 2, was promoted by Netflix as: "This investigative docuseries explores the greed, fraud and corruption that built up – and ultimately brought down – India's most infamous tycoons".
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