Foreigners doing business in India need to be made accountable under Indian law: Allahabad High Court

The Allahabad High Court on Wednesday said that foreign nationals engaged in businesses in India need to be made accountable under the Indian laws and those facing criminal trial must submit themselves to the jurisdiction of Indian courts [Ryen @ Ren Chao vs State of UP].Failure to do so will encourage foreigners to act with impunity in disregard of Indian laws, the High Court stated.“Perception of foreign nationals about their immunity from Indian courts will encourage them [to] act with impunity against Indian laws. Such state of affairs will undermine the Indian Constitution and laws and have grave consequences for national sovereignty,” Justice Ajay Bhanot said.The Court made the observations while dealing with the bail plea of a Chinese national in a case related to unlawful export of chips to a neighbouring country by HTZN, a company allegedly with no legal documentation in India. The applicant Ryen @ Ren Chao is also accused of staying in India even after expiry of his visa..According to the prosecution, HTZN was a front to carry unlawful activities and was linked to other sham companies which allegedly operated illegal gaming apps and laundered money to foreign countries in the form of bitcoins.While denying bail to Chao, the Court observed that no credible legal framework or efficacious system exists to secure the presence of Chinese nationals, who while facing criminal trials, may escape the territory of India.“The affidavit filed on behalf of Government of India in the companion bail application … asserts that the Ministry of Home Affairs has entered into treaties on Mutual Legal Assistance in criminal cases with many foreign countries. However, the case at hand is not within the scope of such treaties. As per the affidavit India does not have any Mutual Legal Assistance Treaty with the Peoples Republic of China. The affidavit also states that to bring back fugitives or foreign accused who flee to foreign countries after committing criminal offences in India recourse to extradition is taken. However, India and Peoples Republic of China do not have any extradition treaty or arrangement,” the Court said.It also noted that the Central government has acknowledged that extradition is a long drawn process and in many cases becomes complicated “if the surrender of its own country’s national is involved.".In the present case, the Court said the accused appeared to be part of a well organized international crime network of Chinese nationals and local accomplices in India.“International criminal networks which are managed by Chinese nationals with Indian accomplices as in the instant case significantly impact national security. Such international crime syndicates create fifth columnists in the host countries. What aggravates the crime further is that many beneficiaries of the crime proceeds are foreigners living abroad who are not even amenable to Indian law and whose identities are effectively concealed,” it observed..In March this year, the Court had asked the Union government to consider initiating a process towards creation of a treaty at the international level to address the issues being faced in prosecution of foreign nationals.Justice Bhanot today reiterated that there was a need for an international framework of laws to deal with issues of criminal trials of foreign nationals in a fair, transparent and just manner. “For the moment this issue is not within the ken of this Court. However, it is a problem which the Government of India and other members of the comity of nations will have to address.”.The Court had earlier also highlighted the issue of the foreign accused facing difficulty in producing a surety in bail matters, and the lack of interpreters for them to understand the legal proceedings.Today, the bench said the foreign nationals including the applicant facing trials in India are vested with the following rights as part of Article 21 of the Constitution of India,A. Right to a translator to translate the court proceedings in their native language. B. Right to legal aid in case the foreign national is bereft of or is desirous of obtaining legal aid. C. Foreign nationals have a right to communicate with their families as per the arrangements made by the jail authorities/appropriate Government. D. Right to counsellor/embassy access. E. Right to a speedy trial. .Advocates Abhas Sharma, Pradeep Kumar Mishra and Rajesh Kumar Sharma represented the accused..[Read Judgment]