Madras High Court
State Through The vs Subash Chandra Kapoor on 27 April, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 27.04.2012 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.OP No.9983 of 2012 State through the Idol Wing Crime Investigation Department, [Udayarpalayam P.S. Crime No.65/2008] .. Petitioner Vs Subash Chandra Kapoor, (Presently in custody At Cologne Prison, Germany, Represented by Power of Attorney Sushma Rani Sareen) .. Respondent Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., to direct the Respondent police to set aside the order passed by the Hon'ble Judicial Magistrate Court, Jayankondam in Cr.MP.No.2492/2012, dated 12.04.2012, recalling the Non Bailable Warrant. For Petitioner Mr.I.Subramaniam, Public Prosecutor, Assisted by Mr.K.P.AnanthaKrishnan, Government Advocate [Criminal Side] and Mr.M.Maharaja, Addl. Public Prosecutor For Respondent : Mr.P.Wilson, Senior Counsel for M/s.P.Wilson Associates ORDER
Seeking to quash the order made by the learned Judicial Magistrate, Jeyamkondam, in Crl.M.P.No.2492 of 2012, dated 12.04.2012, the State has come up with this Criminal Original petition.
2. The respondent is the 7th accused in the case in C.C.No.180 of 2011 on the file of the said court [Crime No.65 of 2008 on the file of the Inspector of Police, Udayarpalayam]. The impugned order of the learned Judicial Magistrate came to be passed in the following circumstances:-
(a) On 13.04.2008, in a famous temple viz., M/s.Arulmigu Sundareswarar and Varadharaja Perumal Thirukovil, Suthamalli Village, Udayarpalayam Taluk, Ariyalur District, as many as 18 idols, made of panchalohas were stolen away. In respect of the said occurrence, the inspector of police, Udayarpalayam registered a case in Crime No. 65 of 2008 on 14.04.2008 under Sections 457 and 380 I.P.C. During the course of investigation, the Investigating Officer found that as many as seven persons were involved in the said crime.
(b) Some of the accused were arrested and one accused was granted anticipatory bail. The arrested accused were interrogated and confession statements were also recorded. But, the idols have not been recovered since the same have been exported to various foreign countries.
(c) During the course of investigation, according to the Investigating Officer, he tried his level best to secure the respondent, who has been arrayed as seventh accused in this case but, all his efforts failed. Finally, with great difficulty, the Investigating Officer came to know that the respondent was in Germany. In the meanwhile, charge sheet was laid upon which the learned Magistrate has taken cognizance. The learned Magistrate issued Non-Bailable Warrant on 25.11.2011 for the arrest of the respondent. Thereafter, a Red Corner Notice was issued by the Investigating Officer and based on the same, the German Authorities have detained the petitioner in Germany. Now, extradition proceedings have been initiated against the respondent to bring him back to India so as to impel him to face the trial. Further, it is stated that the respondent is also wanted for interrogation. It is also the case of the prosecution that if only he is interrogated and any useful information is collected from him, the idols could be recovered.
(d) While so, the respondent filed a petition before this Court seeking anticipatory bail - vide Crl.O.P.No.8076 of 2012. When the said petition was taken up for hearing, during the course of argument, it was submitted by the learned Government Advocate (Criminal Side) that Red Corner Notice had been issued and in pursuance of the same, the respondent was placed under Custody in Germany.
(e) This Court, by order dated 04.04.2012, declined to grant anticipatory bail. However, this court gave liberty to the respondent to approach to the Jurisdictional Magistrate at Jeyankondam with a request to recall the Non-Bailable Warrant [NBW] in accordance with law. In paragraph 5 of the said order, this court has observed as follows:-
"5. Admittedly, the extradition proceedings are pending before the authorities in Germany. The authorities who have issued the red corner alert notice is/are not before this court. Therefore, this Court while exercising the power under Section 438 of Criminal Procedure Code cannot go into the validity of either the red corner alert notice issued by the authority concerned or on the proceedings before Germany. It is for the authorities in Germany to take into consideration the relevant materials while considering the question of extradition including the various contentions raised by the petitioner on the validity of the issuance of the red corner alert notice."
In paragraph 6 of the said order, this court has held as follows:-
"6.Admittedly, the jurisdictional court namely the learned Judicial Magistrate, Jeyankondam, has issued a non bailable warrant under Section 70 of the Criminal Procedure Code. A perusal of the Section 70(2) of the Criminal Procedure code would show that the person concered against whom the non-bailable warrant issued will have to approach the said Court and seek cancellation of the warrant issued. The petitioner also does not seek to set aside the non bailable warrant before this Court but seeks anticipatory bail. Therefore, the petitioner is given liberty to approach the learned Judicial Magistrate, Jeyankondam, seeking recall and cancellation of non bailable warrant issued on 25.11.2011. As and when the petitioner makes such an application through his counsel, the learned Judicial Magistrate, Jeyankondam, is directed to take the same on file and decide the matter in accordance with law. While disposing of the application, the learned Judicial Magistrate, Jeyankondam, is not required to insist on the presence of the petitioner because as on today he is in custody in Germany."
3. It is now brought to the notice of this Court that in pursuance of the said order passed by this Court, he filed a petition in Crl.M.P.No.2492 of 2012, before the learned Magistrate under Section 70(2) of Cr.P.C., requesting the learned Magistrate to recall the Non-Bailable Warrant. After having heard the learned counsel for the petitioner therein and the Assistant Public Prosecutor, the learned Magistrate, by order dated 12.04.2012, cancelled the Non Bailable Warrant on the following conditions:-
"1) The petitioner/Accused shall deposit a sum of Rs.10,00,000/- into this Court.
2) The petitioner/Accused shall submit the Xerox copies of the permanent ID card of USA, Residence Proof, Business proof, passport copy
3) The petitioner/Accused shall submit that two consanguinity sureties, each sureties shall execute a bail bond sum of Rs.1,00,000/- with satisfaction of this Court.
4)The Petitioner/Accused shall appear before this Court each and every subsequent hearings after he released from Germany prison.
5)The petition/accused shall assist and appear before the respondent's police as and when required for interrogation.
The petitioner/Accused shall comply the above mentioned conditions 1 to 3 on or before 26.04.2012, failing which this petition will automatically dismissed."
The said order of the learned Magistrate is under challenge in this petition.
4. On notice, the respondent Represented by his Power of Attorney Sushma Rani Sareen, has made appearance through the learned Senior Counsel.
5. I have heard Mr.I.Subramaniam, learned Public Prosecutor for the State and Mr.P.Wilson, learned Senior Counsel for M/s.Wilson Associates for the respondent.
6. It is the submission of the learned Public Prosecutor that the respondent could not be secured despite several efforts taken by the police from 2008 onwards. He was absconding. With great difficulty, his movement in Germany was discovered. In pursuance of the Red Corner Notice issued by the police, the respondent has been now detained by the German Authorities. The learned Public Prosecutor submitted that because of the order passed by the learned Magistrate, the pending extradition proceedings will come to a halt and as a result the respondent will be released by the German authorities. In such an eventuality, there will be no scope at all to secure his presence in India. Going by the ramifications and the fact that the idols have not been recovered, it is necessary to have the respondent in India for the purpose of interrogation and to make him to face the trial. He has further submitted that the learned Judicial Magistrate has not at all considered the gravity of the offence and the role played by the respondent while passing the impugned order. He has further submitted that the learned Judicial Magistrate has not even ordered for the execution of Bond by the respondent under Section 437 Cr.P.C., and thus, he has passed the impugned order in a Mechanical fashion. Hence, according to the learned Public Prosecutor, the impugned order is liable to be set aside.
7. The learned Public Prosecutor has further brought to the notice of this Court, that on an earlier occasion, the respondent filed a writ petition in W.P.No.8732 of 2012 before this Court, seeking to quash the Non Bailable Warrant issued by the learned Magistrate dated 29.11.2011. It is submitted that the learned Single Judge of this Court vide order dated 03.04.2012, dismissed the said petition and in paragraph No.10 he has observed as follows:-
"10. If the extradition proceedings are initiated, it is open to the petitioner to object the same before the jurisdictional Court. In fact, after production, the procedure to be followed by the Magistrate is set out under Section 7 of the Extradition Act. The Act also provides for a release of persons arrested on bail under Section 25. Exception under which a fugitive criminal need not be surrendered or returned is set out under Section 31. The Ministry of Foreign Affairs has set out the justification for making the petitioner surrender by guaranteeing fair trial through due process of law in India. Hence it is not a fit case where this court has to exercise its power under Article 226 of the Constitution to set aside the non bailable warrant issued by the trial Court. There is no prima facie case made out for entertaining the writ petition."
8. It was only after the dismissal of the above writ petition, the respondent filed Crl.O.P.No.8076 of 2012, before this Court seeking anticipatory bail. As stated above, while passing the order in the said petition, liberty was given to the respondent to approach the learned Judicial Magistrate to recall Non Bailable Warrant. At this juncture, the learned Public Prosecutor would submit that it does not mean that the warrant should be recalled in a mechanical fashion.
9. The learned Senior Counsel appearing for the respondent would stoutly oppose the contentions raised by the learned Public Prosecutor on various grounds.
(a) The first and foremost contention is that the present Criminal Original petition has become infructuous. According to him, the impugned order was passed on 12.04.2012, recalling the Warrant on condition that the respondent shall deposit a sum of Rs.10,00,000/- into the Court and also shall produce two sureties and each surety shall execute a bail bond for a sum of Rs.1,00,000/-. It is submitted by the learned Senior Counsel that subsequent to the said order, a sum of Rs.10,00,000/- was paid into the Court by the petitioner and surety bonds were also executed before the learned Magistrate. Thus, the order the learned Magistrate has been complied with.
(b) He would further point out that the above subsequent proceedings of the Magistrate have not been challenged by the petitioner/State. In the absence of challenge to the subsequent proceedings, according to the learned Senior Counsel for the respondent, the present Criminal Original Petition has become infructuous and the same is, therefore, liable to be dismissed.
(c) His further contention is that the order passed in W.P.No.8732 of 2012, has got nothing to do with the order passed by the learned Judicial Magistrate. In the writ petition, when the Non Bailable Warrant issued against him was challenged by the respondent herein, the learned Judge has held that as per the Extradition Act, since the extradition proceedings were pending, the Non Bailable Warrant issued can not be set aside in exercise of the power under Article 226 of the Constitution of India. In fact, according to the learned Senior Counsel for the respondent, this Court did not find fault with issuance of Non Bailable Warrant. Therefore, according to him, that will not debar the learned Magistrate to consider the request of the respondent to cancel the warrant.
(d) It is further submitted that after the dismissal of the Writ Petition in the Criminal Original Petition filed before this Court seeking anticipatory bail, it was resisted by the State, by placing similar grounds as are now raised in this petition. While, considering the above, this Court felt that the respondent herein was not entitled for anticipatory bail. However, liberty was given to the respondent to approach the learned Judicial Magistrate for filing a petition to recall the Non Bailable Warrant under Section 70(2) Cr.P.C., and that order of the learned Judge has also attained finality.
(e) It is the further contention of the learned Senior Counsel that pursuant to the said order, the respondent filed Cr.M.P.No.2492 of 2011, before the learned Judicial Magistrate. It is further submitted that even in the order passed by this Court in earlier petition for anticipatory bail, this Court directed the learned Judicial Magistrate not to insist upon the presence of the respondent herein while considering the petition for recall of warrant. Thus, the learned Magistrate was right in entertaining the petition, he contended.
(f) The learned Senior Counsel would further submit that though it is alleged by the prosecution that all out efforts were taken to secure the respondent during the course of investigation, absolutely no material has been placed before the court to substantiate the same.
(g) The learned Senior Counsel would further submit that the respondent is not aware of the registration of the case; investigation and the final report filed against him. He is a person who has got business at international level. He was on visit to Germany and due to the Red Corner Notice issued, he was arrested and detained by German authorities.
(h) In view of the above stated reasons, according to the learned Senior Counsel, the Red Corner Notice is liable to be canceled and the respondent should be released by the German Authorities.
(i) The learned Senior Counsel would nextly contend that the order of the learned Judicial Magistrate cannot be stated to be a mechanical order. The learned Judicial Magistrate has passed the impugned order considering all the grounds and objections raised before him. Further, the learned Judicial Magistrate has given cogent reasons as to why the NBW should be recalled, he contended.
(j) The learned Senior Counsel would lastly contend that an order passed under Section 70(2) Cr.P.C., cannot be interfered with by this Court under Section 482 of Cr.P.C. and the remedy for the petitioner is to file a revision against the same.
(k) The learned Senior Counsel would rely on the judgment of this Court in P.A.Saleem and others reported in 1994-2-L.W. (Crl.)402 and in Sundaram and 3 others reported in 1995-2-L.W. (Crl.) 564. He further submitted that though it is alleged that the respondent is an international criminal, no materials have been produced in support of the said allegation. According to him, except the present case, there is no other case against him. He further submitted that as per the Universal Declaration of Human Rights, every individual is presumed to be innocent, unless his guilt is proved. Since India is a signatory to the said Declaration, it binds the petitioner/State. The learned Senior Counsel would further submit that if the impugned order is set aside and the respondent is brought to India by means of the extradition proceedings, then, it will amount to pretrial conviction. For all these reasons, according to him, this petition deserves to be dismissed.
10. I have considered the above submissions and also perused the records carefully.
11. Before going into the legal issues involved in this matter, let us have a look into the factual background of the case. As I have already narrated, the occurrence was on 14.04.2008. As many as 18 idols made of panchalohaa were stolen. The said temple is an ancient temple and the idols are antiques.
12. The fact also remains that the Idols could not be recovered. Some accused were arrested and one accused secured anticipatory bail. But, so far no progress could be made in the trial of the case. It is stated by the petitioner that all out efforts made by the Investigating Officer to secure the respondent during the course of investigation could not succeed as the respondent was hiding elsewhere in a foreign country.
13. The contention of the learned Senior Counsel appearing for the respondent is that the respondent was not at all aware of the case and his implication in the case when the case was under investigation. In my considered opinion, it is none of the duty of the police to inform the accused about his involvement in the offence. The very fact that Red Corner Notice was issued by the Police would go to show that all effective steps were really made by the police to secure the presence of the respondent. It is also the admitted case that extradition proceedings are pending as per the provisions of the Extradition Act. The further fact that Extradition proceedings have been initiated as per the provisions of the Extradition Act would also go to show that, all efforts have been taken by the Investigating Officer to secure the presence of the accused.
14. As I have already stated, the Non Bailable Warrant issued by the learned Judicial Magistrate to secure his presence for facing the trial was challenged by the respondent in W.P.No.8732 of 2012. That writ petition was dismissed by order dated 03.04.2012 wherein, this Court has found that issuance of warrant by the learned Magistrate was perfectly in order and in accordance with law. Thereafter, the petitioner had filed a petition for anticipatory bail. In that petition, in Crl.O.P.No.8076 of 2012, this Court was not inclined to grant anticipatory bail to the respondent. However, this Court gave only liberty to the respondent to approach the learned Magistrate with a request for recall of warrant. But, it does not mean that the order of the learned Magistrate should be understood as though this Court had directed the learned Magistrate to recall the warrant. This Court directed the learned Judicial Magistrate only to consider the application of the respondent, if filed, for recall of warrant in accordance with law.
15. But, in my considered opinion, the learned Judicial Magistrate has passed the order in a mechanical fashion and the said order suffers from lot of infirmities. It is needless to point out that a Non Bailable Warrant issued by the Court is nothing but a process under Chapter VI of the Code of Criminal Procedure, to secure the presence of the accused in Court. The said Warrant shall be in force until it is either executed or the same is cancelled by the Court/Magistrate who has issued the Non Bailable Warrant vide Section 70(2) Cr.P.C.
16. An accused, who is facing a Non Bailable Warrant for his arrest may be put in either one of the following categories, viz., (i) an accused who has been already on bail, but, due to his absence on a particular day of hearing, a Non Bailable Warrant has been issued for his arrest and production before the court and (ii) an accused who was never arrested during the course of investigation against whom a Non Bailable Warrant has been issued by the Court after taking cognizance of the offences.
17. In respect of an accused, falling under the first category , under Section 446-A of Cr.P.C., the Court may declare that the bail bond has been forfeited. But, there is no automatic cancelation of bail. When such Non Bailable Warrant is pending execution, the accused may appear before the Magistrate and explain to him that his absence was not willful and he was prevented from appearing before the court by certain unavoidable circumstances. When the said warrant is so sought to be recalled, the court will be concerned as to whether the absence of the accused on the appointed date of hearing was willful or not. If the court finds that his absence was not willful, it will be obligatory for the court to recall the warrant. Here, the court is not concerned with the gravity of the offences, the role played by the accused and the other circumstances. This is because, only on considering all these facts, the accused had earlier been granted bail.
18. In the second category of cases, where the accused was never arrested during the course of investigation as he evaded arrest and after taking cognizance on the final report, if the court has issued Non Bailable Warrant, if the accused approaches the court for recalling the said warrant under Section 70(2) of Cr.P.C. the consideration would be totally different. Here, the Court will have regard for the gravity of the offences, role played by the accused, his roots in the society, likelihood of abscondence, need of custodial interrogation by the police, etc. More or less, the factors which are to be taken into account while considering a petition for recall of warrant would be akin to the facts which are taken into consideration while considering a petition for bail.
19. Undoubtedly, the instant case falls within the second category. Therefore, when the accused approached the learned Magistrate under Section 70(2) of Cr.P.C. for recall of warrant, the learned Magistrate ought to have considered the above relevant factors, such as, the gravity of the offences, role placed by the accused, roots of the accused in the society, possibility of abscondence, need for custodial interrogation, the antecedents of the accused, materials available against him, etc. But in this case, a perusal of the order of the learned Judicial Magistrate would go to show that he has not at all considered the above relevant facts such as the gravity of the offence; role played by the accused, need for custodial interrogation and all the other attending circumstances. The learned Judicial Magistrate has also not considered the fact that the presence of the accused is very much required by the police for the purpose of interrogation so as to know about the whereabouts of the stolen idols and to recover the same. The learned Judicial Magistrate has considered only the serious illness and the age of the accused. The learned Magistrate has discussed the rival contentions of the parties only in paragraph No.3 of the order which reads as follows:-
3.Heard both sides, and carefully perused the case records and documents submitted by the both sides. Admittedly that the petitioner is arrayed as 7th accused in the above case and now he is in custody in Cologne prison, Germany. As per the documents filed by the petitioners counsel that the petitioner has affected (sic) as severe cancer. Considering the above facts of the case and the serious illness decease (sic) and the old age of the petitioner, this Court inclined to cancelled (sic) the Non-Bailable Warrant issued by this Court as against the petitioner/accused subject to following stringent conditions.
20. The above extracted portion of the order shows the total non application of mind on the part of the learned Magistrate. As I have already narrated, the learned Magistrate did not have regard for the fact that the offence involved is a heinous offence, in which, as many as 18 valuable idols which are antiques have been stolen away and the same have not been so far recovered. These stolen properties are all our national assets. It is the bounden duty of the Government to ensure that they are rescued and restored to the national wealth. If only, as it is stated by the learned Public Prosecutor, the respondent is extradited to India and taken into the custody by the police, the same would be possible.
21. Nextly, coming to the contention of the learned Senior counsel for the respondent that the respondent should not be treated like an international criminal, I have to hold that whether the respondent is a criminal or not, is a matter to be decided by the trial Court and I cannot express any opinion regarding the same. The learned Senior Counsel appearing for the respondent has submitted that as per the Universal Declaration of Human Rights, the respondent should be presumed to be innocent. There can be no doubt about the same. But at the same time, because, there is presumption of innocence, the respondent cannot be allowed to go scot free so as to flee away from justice. The very fact that from the year 2008 onwards, the respondent could not be secured by the police and even his whereabouts could not be located would justify that it is not safe to allow him to be free from the clutches of law.
22. As has been rightly submitted by the learned Public Prosecutor, if the order of the learned Magistrate recalling the Warrant is sustained, it may be taken as though it is an order of bail so as to force the police to discontinue the extradition proceedings. Admittedly, the respondent is not on bail. Even this Court has declined to grant anticipatory bail to him. He is an accused, who is wanted for arrest. Simply because, the Warrant issued against him, which is after all a process to compel his appearance, has been cancelled, it will not amount to automatic grant of bail.
23. Let us now consider as to whether it would be appropriate to cancel the Non Bailable Warrant when the extradition proceeding is in progress. Section 29 of the Extradition Act, 1962 reads thus:-
29. Power of Central Government to discharge any fugitive criminal -. If it appears to the Central Government that by reason of the trivial nature of the case or by reason of the application for the surrender or return of a fugitive criminal not being made in good faith or in the interests of justice or for political reasons or otherwise, it is unjust or inexpedient to surrender or return the fugitive criminal, it may, by order, at any time stay any proceedings under this Act and direct any warrant issued or endorsed under this Act to be cancelled and the person for whose arrest the warrant has been issued or endorsed to be discharged.
24. A perusal of the above provision would make it abundantly clear that in the case on hand, if the respondent feels that the Extradition Proceedings initiated against him should be discontinued, it is for him to approach the Central Government seeking discharge as provided in Section 29 of the Extradition Act. Thus, it is crystal clear that so long as the proceeding initiated under the Extradition Act is pending, it would not be appropriate for the learned Magistrate to recall the Non Bailable Warrant issued to secure his presence.
25. The learned Senior Counsel appearing for the respondent would submit that it was only this Court which clarified that it was open for the respondent to approach the learned Magistrate for recall of the Warrant under Section 70 (2) Cr.P.C. In my considered opinion, that liberty given to the respondent could not be taken as though this Court had declared that the respondent would be entitled for getting the Warrant recalled by way of filing a petition under Section 70 (2) Cr.P.C. After all it was only a liberty given to the respondent, however, with a further direction to the learned Magistrate to consider the request of the accused in accordance with law. While doing so, the learned Magistrate ought to have considered the scope of Extradition Act, 1962 more particularly, Section 29 of the Act. The learned Magistrate has invoked Section 70(2) Cr.P.C., as though it is an ordinary case and as though there is no extradition proceeding pending. In my considered opinion, Section 70(2) Cr.P.C., ought not to have been invoked by the learned Magistrate, in this case, in view of the fact that the extradition proceedings have been initiated against the respondent.
26. Now, coming to the contention of the learned Senior Counsel that the present petition has become infructuous, I do not find any force. Of course, it is true that in pursuance of the impugned order, a sum of Rs.10 lakhs has been deposited by the respondent into the lower Court and two sureties have also been executed, but, the power of this Court under Section 482 Cr.P.C., cannot be confined only to look into the order impugned. When this Court is of the view that the very order of the learned Magistrate dated 12.04.2012 made in Cr.MP.No.2492/2012 is not sustainable, then, quite naturally, it is for this Court to hold that all the consequential proceedings, including the execution of bond etc., in pursuance of the impugned order, are also vitiated. Thus, this petition has not become infructuous.
27. The next contention of the learned Senior Counsel appearing for the respondent is that this petition is not maintainable under Section 482 Cr.P.C., since the order under challenge is a final order. In my considered opinion, the impugned order cannot be termed either as a final order or as an intermediate order as clarified in Madhu Limayee v. State of Maharashtra, (1977) 4 SCC 551. It is only an interlocutory order made in a miscellaneous petition and therefore, no revision lies against the same. Thus, I hold that the present petition is very much maintainable.
28. The learned Senior Counsel for the respondent would further submit that subsequent to the passing of the impugned order, the respondent filed a revision petition before this Court challenging the condition imposed by the learned Magistrate. In that, the State appeared and opposed. Finally, that petition was also dismissed by this Court. Thus, the order of the learned Magistrate impugned in this petition has merged with the order of this Court in Crl.R.C.No.446 of 2012. But in my considered opinion, it is not so. With respect, I have to state that I have my own doubt about the maintainability of any revision against the conditions imposed by the trial Court in a petition filed under Section 70 (2) Cr.P.C. However, since Crl.R.C.No.446 of 2012 has been dismissed by this Court, I do not want to go into the maintainability of the said Criminal Revision Case. In any view of the matter, the contention of the learned Senior Counsel appearing for the respondent that the order passed by the learned Magistrate has merged with the order passed by this Court in Crl.R.C.No.446 of 2012 cannot be countenanced at all as in that revision petition this court was not concerned with the correctness of the order cancelling the warrant.
29. In view of the foregoing discussions, in nutshell, I am of the view that so long as the extradition proceedings are pending, the learned Magistrate ought not to have recalled the Warrant by invoking his power under Section 70(2) Cr.P.C. If the respondent is set at liberty by the German Authorities then there is no assurance that the respondent will return to India and appear before the trial Court for facing the trial and also subject himself for interrogation by the police. So long as the idols which have not been recovered, in my considered opinion, the matter requires further deep investigation by the police for which custodial interrogation of the accused may be required. The power of the police under Section 173(8) Cr.P.C., is very much available for them to have further investigation in the event the respondent returns to India on extradition.
30. In view of all the above, I hold that the order of the learned Magistrate dated 12.04.2012 in Cr.M.P.No.2492 of 2012 is liable to be set aside and the consequently, all the consequential proceedings including the execution of bond etc., shall also stand set aside.
31. In the result, the Criminal Original Petition is allowed and the order passed by the learned Judicial Magistrate in Crl.M.P.No.2492/2012, dated 12.04.2012, cancelling the Non Bailable Warrant and all the subsequent proceedings, including the execution of bond etc., shall stand set aside and the surety bonds shall also stand discharged. The Investigating Officer will be at liberty to proceed with the extradition proceedings. The amount deposited by the sureties shall be refunded to them.
27.04.2012 arr/jbm Note: Issue copy on 03.05.2012 To
1.Judicial Magistrate Court, Jayankondam.
2.The Public Prosecutor,High Court, Madras.
.....
S.NAGAMUTHU,J jbm Crl.OP No.9983 of 2012 27.04.2012