IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 05.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA Crl.O.P.No.5481/2005 & Crl.MP.No.2062/2005 Mr.Mohan Karnaker Chandra .. Petitioner -Vs- 1.The Inspector of Police CBCID, Metro Wing,Chennai-2. 2.The Inspector General of Police Crime Branch-CID, Chennai-2. 3.Central Bureau of Investigation Interpol Wing, Block No.4, CGO Complex, Lodi Road, New Delhi 110 003. .. Respondents Petition filed under section 482 Cr.P.C., seeking to to call for the records and quash the extradition proceedings initiated against the petitioner based on an alleged Red Corner Notice No.A-613/12-1994 on the file of the learned XI Metropolitan Magistrate Court, Saidapet, Chennai. For Petitioner : Mr.S.Ashok Kumar, SC for Mr.C.N.Niranjan For RR 1 & 2 : Mr.M.Babu Muthu Meeran,APP For R3 : Mr.N.Chandrasekaran,Spl.PP for CBI ORDER
The petitioner has come forward with this petition seeking for the relief of quashing the Extradition proceedings initiated against the petitioner based on an alleged Red Corner Notice No.A-613/12-1994 on the file of the learned XI Metropolitan Magistrate Court, Saidapet, Chennai.
2.Mr.S.Ashok Kumar, learned Senior Counsel appearing for the petitioner submitted that the petitioner was arrested by the first respondent police on 05.03.2005 on the basis of the direction said to have been given by the 3rd respondent. It is submitted that while the petitioner questioned the first respondent about the ground of arrest, it was informed to the petitioner that the arrest is made upon the request of the Interpol Office, Kuwait authorities, regarding the Red Corner Notice issued by the Kuwait Authorities to extradite the petitioner and on the request, the first respondent also furnished the document which is not in Indian language and the said language is not known to the petitioner. It is submitted that the petitioner was ultimately informed that the arrest was made mainly on the basis of the Red Corner Notice for extradition. It is further submitted that the petitioner was produced before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 05.03.2005 at about 5.30 p.m. and the learned Magistrate without following the procedures enumerated in the Extradition Act, 1962 and without any proper application of mind, remanded the petitioner for judicial custody for 14 days. It is submitted that the petitioner was ultimately released on bail by the order of the learned magistrate, in CMP.NO.811/2005 dated 11.03.2005.
3.The learned Senior Counsel vehemently contended that the alleged Red corner notice was in the language not known to anyone and even not produced before the learned Magistrate at the time of remanding the petitioner for judicial custody. It is contended that only for the first time, the translated version of the alleged Red Corner was furnished before this court by the third respondent, CBI. The learned Senior Counsel contended that the perusal of the so called Red Corner Notice [translated version in English] discloses that it was specifically mentioned that extradition will be requested from any country except Israel, if found in a country from which extradition will be requested. The learned Senior Counsel further contended that as on date, there was no extradition treaty entered into between the countries, viz., India and the State of Kuwait and the learned Senior Counsel placed reliance on the letter addressed by the Public Relations Officer [Extradition], Ministry of External Affairs, New Delhi, dated 15.12.2005 to the counsel for the petitioner at New Delhi.
4.It is submitted by the learned Senior Counsel that from the perusal of that communication, it is made clear that though the treaty on extradition was signed between India and Kuwait on 25.08.2004 at New Delhi, it was clearly mentioned that the said treaty will come into force only after the ratification by both sides. Therefore, it is contended that the question of executing the so called Red Corner Notice not at all arises as far as India is concerned.
5.The learned Senior Counsel contended that the proceedings initiated against the petitioner right from the arrest to the remand for judicial custody for 14 days is totally illegal. It is contended that the learned Magistrate without satisfying himself about the prima facie materials made out for any extradition proceedings and even without understanding the contents of the alleged Red Corner Notice which was in the language not known to anyone at the time of production of the accused, the petitioner herein before the learned Magistrate for remand, the learned Magistrate has arbitrarily and mechanically remanded the petitioner for 14 days. It is submitted that the procedures contemplated under the provisions of sections 4,5,6,7 and 25 of the Extradition Act, 1962 was not followed in this case.
6.The learned Senior Counsel would further contend that the provision under section 41[1][g] Cr.P.C., was relied on by the learned Additional Public Prosecutor and as per the said provision, the credible information should disclose any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended. But, at the time of arrest as well at the time of remand, there is no disclosure about the nature of offence said to have been committed outside India, viz., at Kuwait, showing that if such offence is committed in India would have been punishable as an offence. As such, the learned Magistrate also not looked into the provisions contained under section 41[1][g] Cr.P.C. at the time of production before the learned Magistrate and at the time of remanding the petitioner for judicial custody. The learned Senior Counsel would therefore, submit that the extradition proceedings initiated on the basis of the alleged Red Corner Notice is liable to be quashed.
7.The learned Additional Public Prosecutor submitted that as far as the first respondent is concerned, he has only carried out the instructions given by the 3rd respondent, CBI, New Delhi and only on such instructions, the first respondent arrested the petitioner and produced before the learned Magistrate. The learned Additional Public Prosecutor also filed an affidavit of the present Inspector of Police, Crime Branch-CID, Metro Wing, Chennai as the officer, viz., the Inspector of Police, Crime Branch-CID, who has arested the petitioner is no more. It is submitted that even in the affidavit of the present Inspector of Police, it is mentioned that only as per the direction of the 3rd respondent the 1st respondent executed the Red corner Notice by arresting and producing the petitioner before the learned Magistrate. It is submitted that the petitioner was arrested under section 41[1][g] Cr.P.C. It is submitted by the learned Additional Public Prosecutor that there is absolutely no fault on the part of the 1st respondent for effecting arrest and producing the petitioner before the learned Magistrate for remanding the petitioner to judicial custody.
8.I have carefully considered the rival contentions put forward on either side and also perused the entire materials available on record including the impugned Red Corner Notice and the bail order passed by the learned Magistrate dated 11.03.2005.
9.At the outset, this Court is constrained to state that the entire procedure adopted by the 1st respondent police and the learned Magistrate right from the arrest of the petitioner till the remand of the petitioner to judicial custody is in flagrant violation of the provisions contemplated under the Code of Criminal Procedure and under the Extradition Act, 1962. It is painful to note that both the 1st respondent police as well as the learned Magistrate has given a total go-by to the established procedure contemplated under the Code of Criminal Procedure. The learned Magistrate has simply acted on the basis of the Red Corner Notice bearing No.A-613/12-1994 which is not in the language known to the learned Magistrate or to anyone and admittedly, not in anyone of the languages existing in India. It is pertinent to be noted that even as per the admitted version of the prosecution, neither the 1st respondent police nor the learned Magistrate have been furnished with any translated version of the said Red Corner Notice. Admittedly, only for the first time before this Court, the 3rd respondent/CBI produced the translated version of the disputed Red Corner Notice as per the covering letter dated 17.09.2007 addressed to the Superintendent of Police, CBI, ACB, Chennai. It is very unfortunate to state that as such, the learned Magistrate without even understanding the nature of proceedings initiated against the petitioner considering that the remand is only an empty formality, mecahnically and arbitrarily ordered the remand of the petitioner for judicial custody for 14 days.
10.The prosecution placed reliance on the provisions under section 41[1][g] Cr.P.C. which reads hereunder:-
“41. When police may arrest without warrant.
(1) Any police officer may without an order from a Magistrate and without a war rant, arrest any person-
[g]Who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which lie is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India;”
11.From the reading of the above said provision, it is crystal clear that the extradition proceedings may be initiated only against a person against whom there was an allegation of commission of offence out of India, for such offence if it is committed in India is punishable as an offence in India. Therefore, in view of Section 41[1][g] Cr.P.C., burden is on the prosecution to satisfy the learned Magistrate at the time of arrest and production of the petitioner to the effect that the petitioner has committed any offence out of India which if committed in India is punishable as an offence. But in the instant case, this procedure was not followed as already pointed out, as the first respondent simply arrested the accused on the basis of the instructions from the 3rd respondent and produced the petitioner before the learned Magistrate by placing the so-called Red Corner Notice which was in the language not known to anyone in India and as already pointed out the prosecution has not bothered even to take steps to get a translated version of the said notice even at the time of production of the petitioner before the learned Magistrate for remand.
12.Therefore, even in view of the provision relied on by the prosecution, viz., section 41[1][g] Cr.P.C., the entire procedure adopted by the first respondent by arresting and producing the petitioner before the learned Magistrate and thereafter, the learned Magistrate remanding the petitioner for judicial custody is totally invalid and illegal and against the established procedure of law.
13.The learned Additional Public Prosecutor also placed reliance on the decision of the Hon’ble Apex Court in SARABJIT RICK SINGH V. UNION OF INDIA reported in 2008 [1] SUPREME COURT CASES [CRI.] 449 for highlighting the procedure contemplated under the Extradition Act, 1962. The Hon’ble Apex Court, in the said decision, has held that:-
“The Magistrate under the Extradition Act is to make an inquiry. He is not to hold a trial. The Code of Criminal Procedure makes a clear distinction between an inquiry, investigation and trial. Authority of the Magistrate to make an inquiry would not lead to a final decision wherefor a report is to be prepared. Sec.7[2] of the Extradition Act envisages taking of such evidence as may be produced in support of the requisition of the foreign state as also on behalf of the fugitive criminal. It is open to the fugitive criminal to show that the offence alleged to have been committed by him is of political character or the offence is not an extraditable offence. He may also show that no case extradition has been made out even otherwise. The magistrate, therefore, in both the situations is required to arrive at a prima facie finding either in favour of the fugitive criminal or in support of the requesting state. No formal trial is to be held. Only a report is required to be made. The Extradition Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Evidence in a situation of this nature would mean which may be use at the trial. It may also include any document which may lead to discovery of further evidence. Section 3 of the Indian Evidence Act which defines “evidence” in an inquiry stricto sensu may not, thus, be applicable in a proceeding under the Extradition Act.”
14.The Hon’ble Apex Court in the decision cited supra, has categorically held that Magistrate under the Extradition Act is to make an inquiry and not to hold a trial and further held that the learned Magistrate is required to arrive at a prima facie finding either in favour of the fugitive criminal or in support of the requesting State. The Hon’ble Apex Court in the same decision also observed that section 7 of the Extradition Act speaks of the manner, jurisdiction and powers of the Magistrate.
15.This Court is constrained to state that as it is held by the Hon’ble Apex Court in the decision cited supra that the learned Magistrate has not even satisfied about the prima facie material made out for initiating any extradition proceedings against the petitioner and mechanically and arbitrarily remanded the petitioner for judicial custody. Added to such illegality, it is also pertinent to be noted that the prosecution also miserably failed to place any records or materials to the effect that there was any existing Extradition treaty between India and the State of Kuwait. As rightly pointed out by the learned Senior Counsel for the petitioner as per the clarification letter sent by the Public Relations Officer [Extradition], Ministry of External Affairs dated 15.12.2005 addressing the counsel for the petitioner in New Delhi, to the effect that the Treaty of Extradition was signed between India and Kuwait on 25.08.2004 at New Delhi. But the said Treaty will come into force only after ratification by both sides. Therefore, it is crystal clear that on the date of arrest of the petitioner, i.e., on 05.03.2005 the Extradition Treaty said to have been entered and signed between India and the State of Kuwait on 25.08.2004 was not in force as the same will come into force only after ratification by both sides and till date there is no such ratification and as such arrest and remand of the petitioner pursuant to the production of Red Corner Notice No.A-613/12-1994 is vitiated and as such the proceedings initiated against the petitioner on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai, on the basis of the said Red Corner Notice is liable to be quashed.
16.Accordingly, the proceedings initiated against the petitioner on the basis of the Red Corner Notice No.613/12-1994 on the file of the learned XI Metropolitan Magistrate Court, Saidapet, Chennai, is hereby quashed.
17.It is also brought to the notice of this Court that the petitioner has been granted bail by the learned XI Metropolitan Magistrate, Saidapet, Chennai, by order dated 11.03.2005 in C.M.P.No.811 of 2005, on condition to executte a bond for a sum of Rs.1,00,000/- with two sureties each for the likesum each and on condition to deposit has passport before the Court and accordingly, the petitioner complied with such condition while he was released on bail. In view of the proceedings itself is quashed by this Court as stated above, the petitioner is entitled to get back his passport deposited on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai. The original petition is allowed. Consequently, connected miscellaneous petition is closed.
ap
To
1.The Inspector of Police
CBCID, Metro Wing,Chennai-2.
2.The Inspector General of Police
Crime Branch-CID, Chennai-2.
3.Central Bureau of Investigation
Interpol Wing,
Block No.4, CGO Complex,
Lodi Road, New Delhi 110 003.
4.The Public Prosecutor
High Court,
Madras