Does Vijay Mallya, the absconding billionaire who flew out of India on March 2, 2016 with 36 suitcases just before the government moved to prevent him from leaving, have an unseen hand aiding him?

The Central Bureau of Investigation (CBI) has sought to have him extradited from the United Kingdom so that he can answer charges in India but questions are being asked about whether the agency has weakened its own case.

In what legal experts describe as an act of “deliberate dereliction”, seven crucial witness statements against Mallya that the CBI presented to the British courts as part of extradition proceedings were recorded only before police officials under Section 161 of the Criminal Procedure Code (CrPC) – and not Section 164, which is a signed statement made before a judicial magistrate. Mallya’s counsel have been quick to seize on this point.

S.161 statements inform the court that these are the statements that witnesses are expected to make at the trial. Cognizance is taken of these statements and an indictment or charge is framed upon them. In sum, they can be assessed as potential evidence, in the earlier stages of a trial but will not be admissible material to prove the prosecution case. Of course, courts in India at the pre-trial stage do look at S.161 statements to decide whether a charge is to be framed or even whether bail should be granted. In the criminal case under prosecution, they do not take the place of evidence – which is a statement made on oath in the witness box. Indeed, S.164 witness statements, though made on oath, will also only operate as potential evidence, for they too cannot be used as “evidence” in the trial unless the witness physically repeats the statement on oath in the witness box at the trial.

Yet, say criminal lawyers, a sworn witness statement before a magistrate has additional worth as it might invite a perjury action if found to be unsubstantiated or if a contrary statement is made at the trial. As a matter of caution, they say, statements under S.164 of crucial witnesses are recorded in matters of importance and can reasonably be expected to carry greater weight before foreign courts.

The CBI’s failure to exercise the caution of recording its witnesses’ statements under S.164 draws a scathing indictment from senior Supreme Court lawyer Prashant Bhushan. Speaking to The Wire, he described this as “criminal negligence” which had “done deliberately” by the CBI to aid Mallya. “The CBI is just making a show of going after Mallya, all the while helping him. He was tipped off and given an assisted escape from India. Tell me, do people accused of crime get to flee with 36 suitcases? It is unbelievable that CBI officials and lawyers hired by them at huge expense are unaware of the legal weight of unsigned statements made before a police official compared to those made before a magistrate.”

The Wire sent a questionnaire to the CBI on Bhushan’s contention that this was a lapse. The CBI replied that “as the matter relating to the extradition of Shri Vijay Mallya is under judicial process no further information can be shared at this stage”.

Bhushan says this is “utter nonsense”. “How can they can claim this is sub judice? Your query is legitimate about the section under which the statements were made. The Modi government is protecting Nirav Modi’s “privacy” by not giving details under the Right to Information Act of when his passport was cancelled, and allowing him to travel by ensuring that a red corner notice was not issued. Legally they have left every possible loophole to benefit Mallya, Nirav Modi and Mehul Choksi” says Bhushan.

For every hearing in the Mallya case, a CBI team lead by special director Rakesh Asthana goes to the UK. In the last hearing four days ago in the Westminster magistrate’s court in London, Asthana was present and, bizarrely, was seen shaking hands with the 62-year-old fugitive who is fighting extradition to India on charges of fraud and money laundering amounting to around Rs 9,000 crores.

Interestingly, during an earlier hearing of the case in the same court last January, Mallya’s counsel, Claire Montgomery, had objected to the admissibility of documents/evidence while also questioning the witness statements recorded under Section 161. In December 2017 too, the matter of Section 161 was raised by Montgomery and another legal expert deployed by Mallya, Prof Martin Lau.

It is worth exploring whether the CBI is letting the matter go by default or making the legal argument that for extradition purposes, S.161 statements are sufficient. After all, the extradition court is only required to see is whether there is an extraditable charge and it is not its role to judge guilt or innocence or even admissibility. Yet there is no denying that the CBI could well have averted the objections raised by Mallya’s counsel by ensuring that the statements of the seven crucial witnesses were recorded again under Section 164. The fact that it allowed the apparent vulnerability on this count to continue is baffling, say criminal lawyers.

Although the CrPc generally requires recording of S.161 statements and S.164 is an option (except in an offence of rape when it is mandatory), the complete absence of any statement recorded on oath before the magistrate is proving a weakness in the Mallya extradition matter. The CBI’s refusal, even at this stage, to neutralise that objection is indeed baffling and is being perceived as deliberate.

Says Sarim Naved, a Delhi-based lawyer, “While making a case for extradition, the agency has to put its best evidence forward and in the manner most likely to convince the foreign court to extradite. In a case of this seriousness, the CBI ought to have been more careful and anticipated the objections that would be raised by Mallya’s lawyers.”

Says a senior CBI official, “I refuse to believe it is stupidity. It is the cupidity of the caged parrot following the instructions of its political masters. We have spent crores flying out officials and the legal team to the UK. I wonder why when even elementary process in evidence and recording of statements is not being followed.”

Bhushan says “I am not remotely surprised. I expect this from the CBI when high profile powerful accused are concerned”.