When a British couple of Indian origin accused of murdering their adopted son couldn’t be extradited

“F*** the f***!” shouted Kaval Raijada raising his middle finger at a journalist who had clicked him with the sour-faced Arti Dhir puffing a cigarette outside Westminster Magistrates’ Court on a rare pleasant January day in 2019. At thirty, Raijada looked like a grumpy teenager whose attempts to fit in with the english blokes only made him stand further apart, as his fifty-four-year- old wife looked on with a dull resigned look of a passing stranger witnessing the tantrums of a spoilt brat.

There was nothing in the behaviour of the two that showed them as a loving couple keen to establish a happy family or the mature compatibility required to raise a boy of eleven. Dhir and Raijada were at Westminster Magistrates’ Court in London to fight their extradition to India on charges of murdering their adopted son to claim money from his life insurance...

The Indian government requested Britain to extradite Arti and Kaval to stand trial in India on six counts: conspiracy to commit murder, murder, attempt to commit murder, kidnapping, abduction for the purpose of committing murder and abetting a crime. On 29 June 2017, a provisional warrant was issued and the two were arrested that same day and produced in Westminster Magistrates’ Court. Initially, they were remanded into custody.

When substantial securities were paid, they were remanded on conditional bail. on 29 August, a certificate was issued to pursue the case under section 70 of the Extradition Act 2003 where India, being a Category 2 territory, had to show a prima facie case before extradition could take place.

After the case management hearings, a two-day trial was fixed for 21 and 22 January 2019 in Westminster Magistrates’ Court, being presided over by Chief Magistrate Emma Arbuthnot who a month before had ruled to extradite liquor baron Vijay Mallya to India. With what seemed like an open-and-shut case, many were confident that this case too would meet with the same conclusion. Alas, it was never meant to be so!

Dr James McManus, who represents the UK on the European Committee for the Prevention of torture and Inhuman or Degrading treatment or Punishment and had also served as chairman of the Parole Board for Scotland, was the prison expert who visited Junagadh prison for three days in April-May 2018. He concluded that the prison conditions met with the guidelines of the ECHR.

During his visit, the prison population was 247 males and thirteen females as opposed to the official capacity of 250 males and fifteen females, and the number of toilets, bathrooms, window sizes and other provisions were satisfactory. He, however, admitted that there were no beds and prisoners slept on “essentially a bare floor but a mat and blanket (were provided)“.

However, Kaval’s counsel Peter Caldwell brought in photographs of the prison notice board which showed headcounts taken daily. He picked random dates throughout the year to show how the prison population was higher on other days than those visited by McManus. For example, on a day in October 2018, there were 311 inmates against the official capacity of 265. In December, this number rose to 350. And on 12 January 2019, it was 367. It was the highest in August 2017, when 413 inmates resided in the prison.

McManus agreed that the occupancy “consistently remained above capacity” and “perhaps they (the prison authorities) prepared for my arrival as it is not unusual for population to change during inspection”. However, the judge remarked that while the male prison population seemed to be higher than capacity during most months, the female population in the two large cells provided for them had remained consistent.

Issues of Arti’s health conditions were also raised by her counsel Edward Fitzgerald, who said she had spent many years taking care of her old parents, and was suffering from depression and back problems. Her counsel said she required psychiatric help and physiotherapy. McManus said there “was appropriate medical care in prison and 99 per cent medication is free” and a psychiatrist visits the prison every week for two hours. There is also a hospital nearby that has a secure ward.

On the second day of the trial Dr V Suresh, a human rights lawyer and the national general secretary of the People’s Union for Civil Liberties, gave evidence from India through video conferencing on the procedures and time frame of such trials.

The defence raised the issue of delayed trials and a long period of stay in jail as undertrials, mentioning that while the average time is two to two-and-a-half years in Junagadh prison, some stay in jail for as long as eleven years without bail. “In my opinion, they will be unlikely to get bail as they will be considered absconders,” Dr Suresh told the court.

Fitzgerald was also worried that Arti Dhir and Kaval Raijada would be tried for double murder, but the CPs maintained that since their intention was to kill the child for insurance, they would be tried for his murder and the other would be a culpable homicide.

The trial was slated to continue to a third day with Dr Alan Mitchell, a prison expert who provided testimony in both Mallya’s and Chawla’s cases on the conditions of Indian jails, taking the witness stand. In Mallya’s case, Arbuthnot was convinced that Barrack 12 of Arthur Road Jail in Mumbai met Article 3 of the ECHR, and she looked seemingly satisfied in this case too with the evidence already provided by McManus; she was not convinced about how Mitchell could further contribute to the case.

For Arbuthnot, the essential evidence lay in the emails that the Gujarat Police had claimed to obtain from Mund. CPs counsel toby Cadman admitted that while Indian authorities have obtained the emails and claim that some were sent on the day of the murder, neither the forensic report of the hard drive nor the contents of the emails have been supplied to the CPs. “There are two critical questions,” said Arbuthnot. “The contents of the emails and the confession evidence.”

Also, Arti “lied on arrest” about the adoption and murder of their ward and the subsequent failed insurance claim worked against them. But the contents of the email sent hours before the murder could provide the clinching evidence required to establish a prima facie case to extradite them to India. the court gave India two months to submit the emails as evidence.

On 2 July, as Indian journalists flocked the high court to hear the decision of the divisional bench in the sensational Vijay Mallya appeal to overturn the order of Emma Arbuthnot to extradite Mallya to India, the chief magistrate was preparing to deliver her verdict in yet another extradition case where India wanted the killer parents brought to Gujarat to face justice for their crimes.

Alas! India suffered a massive defeat that day. First with Mallya winning his right to appeal and then with Arbuthnot refusing to send Dhir and Raijada to India. Interestingly, Arbuthnot found prima facie evidence of a conspiracy to murder but was not convinced that certain laws of the state of Gujarat met with Article 3 of the ECHR.

After intense arguments by Toby Cadman of the CPs and Edward Fitzgerald and Tim Maloney representing Dhir and Raijada, respectively, Arbuthnot decided “to rule on only two points: issues of prima facie case and article 3, the irreducibility of the sentence”. Arbuthnot said that India’s evidence against the defendants was “circumstantial”. There was money sent to Mund from London and also a crucial email sent from Arti to Mund four hours before the murder.

Arbuthnot concluded that the “wealth-builder policy which was in essence a life insurance policy set up for Gopal” would benefit Dhir if Gopal died and she would be paid ten times the premium and she found it strange that a “penniless farm boy, unaccountably was targeted by the murderers”.

“there is only one person who would financially gain from this little boy’s murder and that is Ms Dhir. The insurance policy gives Ms Dhir and through her, her husband Mr Raijada, a motive for killing him,’ said Arbuthnot.

If convicted, Dhir and Raijada would receive a sentence of life imprisonment with no possibility of a review either by the state of Gujarat or by the President of India. The hearings in Westminster Magistrates’ Court in London saw defence lawyers raise the issue of human rights in Indian jails and the long waiting period for cases to reach their conclusion in the courts to convince against the extradition of the two to India.

However, what clinched the case in their favour was the evidence provided by Dr V Suresh, the human rights lawyer, who spoke from India through video conferencing in January 2019, on the procedures and time frame of such trials.

He followed this by his report dated 24 March 2019, where he made it clear that if the defendants were found guilty of culpable homicide, they could still be excluded from considerations of remissions under the 2014 remission policy of the state of Gujarat. He also said that the defendants, if convicted, did not have the right to remission or pardon under Article 72 of the Constitution of India as the crime they were accused of did not fall under either the state list or the union list of offences that would allow a Presidential pardon.

India neither challenged Dr Suresh’s testimony nor produced any evidence to contradict it. He was also not cross-examined by the CPs, which meant that his evidence was accepted and the judge said she was left with “uncontradicted evidence that there is no system of review of these life sentences”.

In England and Wales, an important principle is to provide the offender “hope” and a “possibility” of release in exceptional circumstances “which render just punishment originally imposed no longer justifiable”. The UK courts have long accepted that there cannot be one rule in this jurisdiction and a separate rule for extradition in another”

“I find there are substantial grounds for believing that they are at real risk of being subjected to treatment, a lack of review of a life sentence which would be inhuman and degrading and a breach of Article 3,” said Arbuthnot, discharging the case against the duo.

Minutes before Arbuthnot was to announce her judgment, she received an email from the CPs attaching an assurance sent by the GoI that “notwithstanding the remission policy of the state of Gujarat” the couple would be “eligible to apply for remission”, but the letter by a joint secretary to the GoI reached just forty-five minutes before the court was due to give judgment. Since its consideration would mean further delays and “in the light of the lateness of this assurance”, Arbuthnot decided to proceed with pronouncing her judgment.

The judgment, however, left ample room for appeal. Arbuthnot said that if the state of Gujarat changed the rule of irreducibility of sentences, it might be in accordance with Article 3 principles. If that happened, the case could come back to the court where the judge would then look at prison conditions and other issues raised by the defendants. India had fourteen days to appeal against this decision in the High Court.

She also said that since it was alleged that the agreement to murder was made in the UK when Mund was here and there was “strong evidence that money was sent from the defendant’s UK bank accounts to the man who organised the killing”, and there were relevant email exchanges between London and India, it was “not impossible for a prosecution to be initiated here”.

On 2 July, Arti and Kaval walked out of Westminster Magistrates’ Court, free. The Indian government appealed the decision in the high court in London.

On 28 January 2020, India’s appeal was to be heard in court number 3 of the Royal Courts of Justice. The same court in which Mallya’s appeal was heard. It was a chilly day but the sun shone very bright. At 10.30 am, Toby Cadman of the CPs stood to address Lord Justice Dingemans and Justice Spencer. The court sought to confirm with Cadman whether he agreed with the chronology of the case as submitted by the defence. “One can’t have extradition proceedings derailed by giving materials last minute,” observed Lord Justice Dingemans.

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A simple assurance from the Gujarat government offering the duo such a chance for remission would have sealed their return to India. However, India produced an assurance by the government in New Delhi, which was neither satisfactory nor on time, which prompted the district judge to refuse the extradition.

The high court heard from Cadman how delays were inevitable as it required communication between both state and the Central government but failed to convince the court to rethink the district judge’s decision. “At least from January 2019, the chief judicial magistrate had made it clear that unless you get assurance you might lose,” said Justice Spencer. Cadman seemed to be in a tight spot. It was in January 2019 that Emma Arbuthnot had heard the case when the substantive arguments were made. Yet it was only on the day – 2 July 2019 – when she was to give her ruling that the assurance from India reached her.

Something similar happened in the High Court as well, which clearly did not go well with the two judges. Taking the lead, Lord Justice Dingemans termed it “disappointing” and a waste of time that India provided the same assurance to them which was given to Westminster Magistrates’ Court. The court was clearly peeved that a few hours before the hearing on Tuesday morning, they were provided materials, but there was nothing new or updated. For once the usually eloquent and confident Cadman looked at a loss for words. “Our point is that the case must be remitted to the district judge for consideration as she had not agreed to adjourn the judgment,” said Cadman.

On 6 February 2020, the High Court in London discharged the appeal by India against Westminster Magistrates’ Court’s refusal to extradite the duo to India in July 2019 because of the delays caused by the GoI in providing the crucial assurances that could have clinched the case in its favour.

India can bring about extradition proceedings should the law change in Gujarat. They could also apply for a new extradition proceeding and simply give an assurance that the Gujarat state policy of irreducible life sentences would not apply to the duo. omething which they could have easily done in this case. Now, the government has not just lost this extradition battle, but also set two alleged child murderers free.

Meanwhile Dhir and Raijada live in London, free today from the shackles of the law, free from standing trial for the murder of a young boy in cold blood. Who would have thought a stringent law in the state of Gujarat would actually rescue them from the proverbial long arm of the law?

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