Madras High Court
P.Pushpavathy vs Ministry Of External Affairs on 27 June, 2013
Bench: V.Dhanapalan, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 27-06-2013 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.1012 OF 2012 P.Pushpavathy .. Petitioner -vs- 1. Ministry of External Affairs, represented by its Secretary, Government of India, CPV Division, Extradition Section, Patiala House, Annexe, Tilak Marg, New Delhi-110 001. 2. Superintendent of Prisons, Tihar Prison, New Delhi. 3. Inspector of Police, Erode Town Police Station, Erode. 4. Circle Inspector of Police, Thalavali Police Station, Sathyamangalam Taluk, Erode. .. Respondents Respondents 3 and 4 are impleaded as per orders of this Court dated 04.06.2012 and 18.06.2012 respectively. Petition under Article 226 of the Constitution of India. For petitioner : Mr.R.Sankarasubbu, for Mr.S.Shyam Kumar. For respondents 1 & 2 : Mr.G.Masilamani, Addl.Solicitor General of India, assisted by Mr.A.S.Vijayaraghavan, Sr.Central Govt.Standing Counsel. For respondents 3 & 4 : Mr.S.Shanmugavelayutham, Public Prosecutor, assisted by Mr.A.N.Thambidurai, Addl.Public Prosecutor. O R D E R
Per V.Dhanapalan, J.
This Habeas Corpus Petition has been filed to call for the records of the first respondent in T-413/18/2011 dated 08.03.2011, quash the same and consequently direct the respondents to produce the body of the person, namely, Fr.Joseph Palanivel Jeyapaul, who is the brother of the petitioner, now lodged in Tihar Prison, New Delhi, before this Court and set him at liberty.
2. The case of the petitioner is as under :
2.1. Her brother Joseph Palanivel Jeyapaul, in short, "Jeyapaul", was incardinated to the Catholic Diocese of Ootacamund and he was ordained as a Priest on 19.05.1982. The said Jeyapaul served as Assistant Parish Priest in St.John De Britto, Church, Sathy, Erode District from 1982 to 1983. Thereafter, he became a parish priest in the year 1985 and continued to serve the faithful in various capacities in various churches and institutions. Jeyapaul had previously visited countries like U.S.A., Malta, France, Germany, U.K., Italy and Canada to serve as a religious missionary.
2.2. Jeyapaul received an invitation from a Missionary called "Crookston Diocese" at Minnesota, U.S.A., to serve at Blessed Sacrament Catholic Church in Greenbush, Roseau Country, for a period of three years. Accordingly, he left for U.S.A. on 31st August,2004, with the approval of the then Bishop Rev.Dr.Anandarayar and around August 2005, he was informed that his mother was seriously ill and, therefore, he was asked to come back to India immediately. Jeyapaul returned to India on 31st August,2005, to be at the bedside of his critically ill mother.
2.3. Under the circumstances, the first respondent has passed an order vide proceedings No.T-413/18/2011, dated 08.03.2011, under Section 5 of the Extradition Act,1962, in short, "the Act". Pursuant to the said order, an application was filed by the first respondent before the Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi, for arrest of Jeyapaul on 19.04.2011 under Section 6 of the Act and also for a direction to enable the Union of India for extradition of Jeyapaul to the United States of America. The application was taken on file as C.C.No.48/1/2011. The Magistrate issued a Warrant of Arrest and pursuant to that one Inspector Gajendran of Erode arrested Jeyapaul on 16.03.2012 in the village called Chmitahalli of Thalavadi Union, Sathyamangalam Taluk, Erode District and he was produced before the said Magistrate on 19.03.2012. He was remanded to judicial custody and lodged in Tihar Prison, New Delhi.
2.4. Hence, this Habeas Corpus Petition, at the instance of the sister of the fugitive accused.
3. The first respondent has filed a counter affidavit, stating as follows :
The first respondent, having been satisfied on the basis of documents and materials submitted by the Government of the United States of America and that the Warrant of Arrest was issued by the District Court of Roseau County, Minnasota (USA), having lawful authority to issue the same, had under Section 5 of the Act, passed the impugned order, dated 08.03.2011, requesting the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, to inquire into the extradition request as to the extraditability of the offences involved, by determining whether a prima facie case exists in terms of the Extradition Act,1962, and the Extradition Treaty between the Government of the Republic of India and the Government of the United States of America and other applicable laws, for which the Magistrate is under law required. To facilitate such an inquiry, the issue of warrant of arrest to secure the presence of the individual, namely, Jeyapaul, who is accused of "criminal sexual conduct in the first degree" under US laws and who is wanted by the US authorities for trial, was necessitated, since he was not available for the said inquiry. The maximum punishment for the alleged offence under the US laws is 30 years imprisonment. It is extraditable under the terms of Article 2 of the Extradition Treaty between the Government of the Republic of India and the Government of the United States of America, which is in force from September,1999. According to the said Article, an offence punishable with more than one year imprisonment is extraditable. The request for extradition has been made by the Government of USA under the provisions of the Treaty and it has been considered by the respondent in terms of the Treaty read with the provisions of the Act. Thereafter, on 19.04.2011, the respondent made an application to the Additional Chief Metropolitan Magistrate for issuance of warrant for arrest of the fugitive criminal, namely, Jeyapaul, pursuant to which he was arrested on 16.03.2012 at 14.00 hours at Chimitahalli within Thalavadi Police Station limits, Sathyamangalam Sub-Division, Erode District, Tamil Nadu, and produced before the Superintendent of Police, Erode, on the same day i.e., 16.03.2012 at 20.00 hours by the Inspector of Police, Thalavadi Circle Police Station and his team and, thereafter, he was produced before the Additional Chief Metropolitan Magistrate at New Delhi on 19.03.2012 within 24 hours, after excluding the public holidays, and remanded to judicial custody. The respondent has merely performed its lawful duty strictly in accordance with the facts and law and the same cannot be faulted.
4. Learned counsel for the petitioner would contend that the first respondent before issuing an order under Section 5, ought to have called for the original complaint and should not have appointed the Magistrate to inquire into the extradition. He would further submit that the detenu was not produced before the Magistrate within 24 hours and also not furnished with the grounds of detention and, therefore, the arrest of Jeyapaul, is illegal and liable to be interfered with. He would rely on the following decisions :
(i) 407 (U.S.) 514 (Willie Mae Barker vs. John W. Wingo) "10. The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy."
(ii) AIR 1953 SC 277 (Ram Narayan Singh vs. The State of Delhi and others) :
"4. In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were not produced, notwithstanding the clear direction contained in our order of the 10th March. The court records produced before us do not contain any order of remand made on the 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th. The Solicitor-General appearing on behalf of the Government explains that these slips of paper, which would be of crucial importance to the case, were with a police officer who was present in court yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore they were filed before the Registrar at 5.20 p.m. We cannot take notice of documents produced in such circumstances, and we are not satisfied that there was any order of remand committing the accused to further custody till the 11th March. It has been held by this Court that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one. But the position, as we have stated, is that on that date there was no order remanding the four persons to custody. This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law. That has not been done in this case. The petitioners now before us are therefore entitled to be released, and they are set at liberty forthwith."
(iii) AIR 1969 SC 1014 (Madhu Limaye and others vs. Leachinsky):
"10. Article 22(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the rule of law prevails. For example, the 6th amendment to the Constitution of the United States of America contains similar provisions and so does article 34 of the Japanese Constitution of 1946. In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest. ..."
(iv) 1975 Crl. L.J. 1249 (Govind Prasad vs. The State of West Bengal) :
"... The power to grant bail therefore is unequivocally envisaged in the provisions of Section 78 read with Section 81 of the new Code of Criminal Procedure. It is pertinent in this context to refer to the second proviso to Section 81(1) of the Code of Criminal Procedure which is as follows: "Provided further that if the offence is a non-bailable one it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in Sub-Section (2) of Sction 78, to release such person on bail."
(v) 1979 (4) SCC 370 (Mohd. Yousuf Rather vs. State of Jammu and Kashmir and others) :
"14. It is well settled that a ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention under the appropriate law. It nevertheless appears that the aforesaid irrelevant grounds were taken into consideration for making the impugned order, and that is quite sufficient to vitiate it. Reference in this connection may be made to the decisions in Keshav Talpade v. King Emperor, Tarapada De v. State of West Bengal, Shibban Lal Saksena v. State of U.P., Pushkar Mukherjee v. State of West Bengal, Satya Brata Ghose v. Mr.Arif Ali, District Magistrate, Sibasagar, Jorhat and to K.Yadava Reddy v. Commissioner of Police, Andhra Pradesh. It has been held there even if one of the grounds of detention is irrelevant, that is sufficient to vitiate the order. The reason is that it is not possible to assess in what manner and to what extent that irrelevant ground operated on the mind of the appropriate authority and contributed to provide the satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order."
(vi) AIR 1979 SC 1360 (1) (Hussainara Khotoon and others vs. Home Secretary, State of Bihar, Patna) :
"If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumsances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. The enquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond."
(vii) AIR 1980 SC 1983 (Smt. Icchu Devi Choraria vs. Union of India and others) "4. It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: vide Niranjan Singh v. State of Madhya Pradesh1; Shaikh Hanif, Gudma Majhi & Kamal Saha v. State of West Bengal2 and Dulal Roy v. District Magistrate, Burdwan3. It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition: vide Nizamuddin v. State of West Bengal4. Once the rule is issued it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law: vide Mohd. Alam v. State of West Bengal5 and Khudiram Das v. State of West Bengal6."
(viii) AIR 1981 SC 939 (Kadra Pehadiya and others vs. State of Bihar) :
"We pointed out in Hussainara Khatoon case that speedy trial is a fundamental right of an accused implicit in Article 21 of the Constitution, but we notice that in the case of these four petitioners, this fundamental right has merely remained a paper promise and has been grossly violated. It is surprising that these four petitioners should not have been released on bail despite our observations in Hussainara Khatoon case. Since the trial has not made any progress for the last over eight years, we direct the Sessions Judge, Dumka to take up the case against these four petitioners immediately and to proceed with it from day to day without any interruption. The Sessions Judge, Dumka will submit a report to this Court immediately after the disposal of the case stating as to when he took up the case for hearing and when he completed it. These four petitioners will be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case has been declared by us in Hussainara Khatoon case to be a fundamental right implicit in Article 21 of the Constitution. We expect complete compliance with our direction by the Sessions Judge, Dumka. We should also like the Sessions Judge, Dumka to inform us within a week as to why he could not commence the trial of the petitioners until August 30, 1977 and why no further steps have been taken in the trial thereafter.
(ix) 1983 L.W. (Crl.) 121 (Elumalai vs. State of Tamil Nadu and others) "32. The above two decisions were rendered by the Supreme Court while construing the scope of S. 344 of the Crl.P.C., 1898. The validity or otherwise of an order extending the remand without the accused being produced before the Magistrate, came once again for consideration before the Supreme Court in S.K.Dey vs. Officer in Charge, Sakchi P.S. In this case, the Supreme Court, after having referred to all the decisions pointed out above, expressed its views as follows:
"The counter affidavit filed on behalf of the respondents is not clear on the question whether the petitioner was produced before the Magistrate when the various orders of remand were passed and therefore, we asked the respondents' counsel to furnish to us a copy of the proceedings of the Magistrate's Court at Jamshedpur. Those proceedings also do not indicate clearly whether the petitioner was produced before the Magistrate when the remand orders were passed. This is a highly unsatisfactory state of affairs and must be deprecated. Orders of remand ought not to be passed mechanically and even though this Court has ruled that the non-production of the accused will not vitiate an order of remand, the Magistrate passing an order of remand, the Magistrate passing an order of remand ought, as far as possible, to see that the accused is produced in the Court when the order of remand is passed."
(x) (1985) 4 SCC 677 (Bhim Singh, MLA vs. State of J & K and others) :
"Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar1 and Sebastian M. Hongray v. Union of India2. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs 50,000 within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh."
(xi) 1990 Crl. L.J. 1106 (P.Subramani vs. State of Karnataka and others) :
"9. As per Article 22(5) of the Constitution, a person who is detained has got a right to make a representation. That constitutional right as such can be exercised only once and the Courts have consistently held that such representation should be considered with due diligence. The order of detention is one which can be suspended and revoked at any time either by the authority who passed the order of detention or by any superior authority as provided under S.11 of the Act. In fact, as soon as the order of detention is passed by the State Government or by the officer empowered by the State Government, it shall within 10 days, forward to the Central Government, a report in respect of the order as mentioned in S.3 of the Act. Therefore, apart from the constitutional representation which had to be considered with utmost diligence, it is open to the petitioner to file as many representations as he thinks useful to put forward his case. The delay in considering the case will not be viewed with the same severity as the delay in considering the first constitutional representation."
(xii) 1990 (1) MWN (Cr.) (G.K.Moopanar, M.L.A. And 6 others vs. State of Tamil Nadu, rep. by Public Prosecutor) :
"15. A Writ of Habeas Corpus is a very important jurisdiction in which the High Courts are called upon to protect the individual liberties of citizens and prevent illegal detention by the authority of the State or otherwise. This jurisdiction is exercised to call upon the person who has detained another to produce the person detained before the Court in order to let the Court know on what ground he has been confined and if the Court finds that there is no legal basis for the imprisonment, the court will set him at liberty. If the detention is proved to be in violation of the procedure established by law, the Court has to necessarily order his release. It is the paramount duty of the Courts to issue this kind of writ to safeguard the freedom of the citizens against arbitrary and illegal detention. In Ram Narayan Singh vs. The State of Delhi and others (1953 S.C.R. 852), the Supreme Court observed that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observed the forms and rules of the law. It was a case in which a Writ of Habeas Corups was filed on the ground that the remand of the detenu was bad. The Court allowed the Writ of Habeas Corpus and directed release of the detenus. It is no doubt true that the Court will not normally interfere with the day-to-day operations of the State during investigation, but improper remands and unnecessary detention in jails cannot be countenanced on the ground of discipline and security. In Charles Sobraj v. Superintendent Central Jail, New Delhi (1978 Crl. L.J. 1534), the Supreme Court observed that prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement. Further, the imprisonment does not spell farewell to fundamental rights and the rights enjoyed by prisoners under Articles 14, 19 and 21, though limited, are not static and will rise to human heights when challenging situations arise, as observed by the Supreme Court. "While considering the necessity for provision legal assistance to under trial and convicted prisoners, the Supreme Court in Sheela Sarse vs. State of Maharashtra (AIR 1983 SC 378) pointed out that the legal assistance to a poor or indigent accused who is arrested and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not only by Article 39-A but also by Articles 14 and 21 of the Constitution. Further, it is necessary sine qua non of justice and where it is not provided, injustice corrodes the foundations of democracy and rule of law. Therefore, in a case like this where the petitioners allege that they have been detained against the procedure established by law and in violation of their fundamental rights to equal justice, certainly a Writ of Habeas Corpus cannot be granted when a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction, as observed by some of the decisions of the Supreme Court. But in a deserving case, a Writ of Habeas Corpus can be granted for the reasons stated above. As a matter of fact, a Bench of this Court in Elumalai v. State of Tamil Nadu (1983 L.W. (Crl.) 121) above referred to entertained a batch of the remands made by various Magistrates in the State and various reliefs were granted in respect of the under-trial prisoners."
(xiii) 1991 (1) ALT 315 (M.A. Dharman vs. State of Andhra Pradesh) :
"49. It may be recalled that without production of the detenus before him, the learned Special Judge mechanically remanded them to judicial custody from 13.08.1990 till 27.08.1990 and later till 10.09.1990 and still later till 24.09.1990, in contravention of the mandatory provision contained in Section 167 (2)(b) of the Code of Criminal Procedure, read with explanation-II appended thereto. No plea of impossibility of compliance with the mandatory provision before the learned Special Judge, either by the prosecuting agency or by the Jail authority was pleaded. Non-availability of escorts to produce the detenus before the learned Special Judge, pleaded by the Jail authority, hardly constitutes a ground a for their continued non-production. The successive orders passed by the learned Special Judge, pleaded by the Jail authority, hardly constitutes a ground for their continued non-production. The successive orders passed by the learned Special Judge remanding the detenus to judicial custody from 13.08.1990 till 07.09.1990 on which date, a complaint was filed against the detenus before the learned Special Judge, for contravention of the provision under Section 135 of the Customs Act, are therefore, violative of Section 167 (2) (b) of the Code of Criminal Procedure and Article 21 of the Constitution of India and their detention or custody from 13.08.1990 till 07.09.1990, was illegal and unlawful. It is true that subsequent to taking cognizance of the offence punishable under Section 135 of the Customs Act, the learned Special Judge remanded the detenus from time to time in purported exercise of the powers under Section 309 of the Code of Criminal Procedure. It should be borne in mind that Section 309 of the Code of Criminal Procedure, only authorities remand of a person in custody. But the expression "custody" means "lawful custody". It therefore, follows that the orders of remand passed by the learned Special Judge from time to time subsequent to his taking cognizance of the offence, would not cure the illegal detention of the detenus. It is thus clear, that on the date of the returns i.e. 08.11.1990, when counter affidavits were filed on behalf of the Directorate, Revenue Intelligence, Madras, the detenus were in illegal detention, if it is brought to its notice, a writ of habeas corpus shall issue in each of the writ petitions directing the respondents to set at liberty forthwith the detenus named therein, on their each furnishing to the Special Judge, court of Economic Offences, Hyderabad, either bank guarantee or cash security, in a sum of Rs.10,000/-. "
(xiv) AIR 1993 Supreme Court 1(1) (Aslam Babalal Desai vs. State of Maharashtra) :
"15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir2 and Raghubir3 but if any ambiguity has arisen on account of certain observations in Rajnikant case1 our endeavour is to clear the same and set the controversy at rest."
(xv) AIR 1997 SC 610 (1) (D.K.Basu vs. State of West Bengal) :
"36. We, therefore,consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or and through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(xvi) 1999 SCC (Crl.) 478 (Manoj vs. State of Madhya Pradesh) :
"12. If the police officer is forbidden from keeping an arrested person beyond twenty-four hours without order of a Magistrate, what should happen to the arrested person after the said period? It is a constitutional mandate that no person shall be deprived of his liberty except in accordance with the procedure established in law. Close to its heels the Constitution directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest. The only time permitted by Article 22 of the Constitution to be excluded from the said period of 24 hours is the time necessary for going from the place of arrest to the court of the Magistrate. Only under two contingencies can the said direction be obviated. One is when the person arrested is an enemy alien. Second is when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(xvii) 2002 SCC (Crl.) 62 (State of Tamil Nadu vs. Paramasiva Pandian) :
"17. Coming to the question whether the Special Court constituted for trial of cases under the NDPS Act could exercise the power of remand of an accused in the EC Act case, which it was doing when the Special Court constituted for the EC Act cases was in existence, the answer to the question is in the negative, for the simple reason that the Special Court constituted for the NDPS Act cases is a court of exclusive jurisdiction for trial of the particular class of cases provided under the NDPS Act and it has not been vested with power of a Judicial Magistrate for the purpose of dealing with the EC Act cases. To accept the contention raised on behalf of the appellant in this regard would in our view be contrary to the scheme of things under the Criminal Procedure Code which specifically vests the power of remand under Section 167 in a Judicial Magistrate. The High Court was, therefore, right in negativing the contention raised on behalf of the State Government in this regard. It is relevant to note here that even after holding that the remand orders were passed by the court not competent to pass such orders, the High Court has not granted the prayer of the writ petitioners for their release but has only ordered their release on conditions as noted in the judgment."
(xviii) (2004) 1 WLR 3155 (Taylor vs. Chief Constable of Thames Valley Police (CA) :
"45. The principles were considered in two unreported cases decided in this Court by Nourse, Beldam and Kennedy LJJ on 22 and 26 May 1995. They were Wilding v. Chief Constable of Lancashire and Woods v. Commissioner of Police of the Metropolis respectively. In both cases the Court asked itself whether the circumstances were such that the decision of the custody sergeant was unreasonable in the sense that no custody sergeant, applying common sense to the competing considerations before him, could have continued to detain the suspect."
(xix) (2004) I L.W. (Crl.) 418 (R.Gurusamy vs. State rep. by the Deputy Superintendent of Police, CBCID, Coimbatore & another) :
"11. On the basis of the above averments of the detenu, the submission of the learned Senior Counsel for the petitioner is that the petitioner had filed an affidavit stating that the detenu was forcibly taken without informing him of the grounds of the arrest. We, therefore, do not find any merit in the opposition for the affidavit filed by the brother of the detenu. Taking into account the facts and circumstances, it is clear that the detenu was taken to custody in Crime No.414 of 2001 on 11.04.2003 at 20.40 hours and that he was not informed of the reasons for his arrest. Similarly, when he was again arrested in Crime No.1 of 2003 at 00.40 hours on 12.04.2003 at the C.B. CI.D. Office, he was not informed of the reasons for his arrest.
31. The Court has got a duty to see that persons deprived of their fundamental right is restored to the extent possible. The initial illegality has to be looked into in the light of the offences charged in I.P.C. as well as in P.O.T.A. Which contains stringent provisions for investigation, trial and punishment. Provisions of P.O.T.A. In its operation, is not-only punitive but also preventive. The judgments referred and relied on by the learned Advocate rights and custody held of the persons under orders of remand. The Supreme Court in Madhu Limaye's Case (AIR 1969 SC 1014), held:
"If their detention in custody could not continue after the arrest because of the violation of Article 22(1) of the Constitution, they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities."
(xx) 2011 (6) CTC 228 (Raghuvansh Dewanchand Bhasin vs. State of Maharashtra & another) :
"In Inder Mohan Goswami v. State of Uttaranchal, a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non-bailable warrant, it was observed: (SCC pp. 17-18, paras 53-55) 53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:
it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.
54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
21. The last issue raised that remains to be considered is whether the courts can at all issue a warrant called a non-bailable warrant because no such terminology is found in the Code as well as in Form 2 of the Second Schedule to the Code. It is true that neither Section 70 nor Section 71 appearing in Chapter VI of the Code enumerating the processes to compel appearance as also Form 2 uses the expression like non-bailable. Section 70 merely speaks of form of warrant of arrest, and ordains that it will remain in force until it is cancelled. Similarly, Section 71 talks of discretionary power of court to specify about the security to be taken in case the person is to be released on his arrest pursuant to the execution of the warrant issued under Section 70 of the Code. Sub-section (2) of Section 71 of the Code specifies the endorsements which can be made on a warrant. Nevertheless, we feel that the endorsement of the expression non-bailable on a warrant is to facilitate the executing authority as well as the person against whom the warrant is sought to be executed to make them aware as to the nature of the warrant that has been issued. In our view, merely because Form 2, issued under Section 476 of the Code, and set forth in the Second Schedule, nowhere uses the expression bailable or non-bailable warrant, that does not prohibit the courts from using the said word or expression while issuing the warrant or even to make endorsement to that effect on the warrant so issued. Any endorsement/variation, which is made on such warrant for the benefit of the person against whom the warrant is issued or the persons who are required to execute the warrant, would not render the warrant to be bad in law. What is material is that there is a power vested in the court to issue a warrant and that power is to be exercised judiciously depending upon the facts and circumstances of each case. Being so, merely because the warrant uses the expression like non-bailable and that such terminology is not to be found in either Section 70 or Section 71 of the Code that by itself cannot render the warrant bad in law. The argument is devoid of substance and is rejected accordingly.
5. On the contrary, Mr.G.Masilamani, learned Additional Solicitor General of India, appearing for respondents 1 and 2, would contend that only on receipt of a request from the Government of the United States of America for extradition of the fugitive accused/ Jeyapaul, the first respondent has passed the impugned order under Section 5 of the Act, requesting the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, to inquire into the extradition request as to the extraditability of the offences involved, by determining whether a prima facie case exists in terms of the Act and the Extradition Treaty between the Government of the Republic of India and the Government of the United States of America and other applicable laws and, therefore, the action of the first respondent is in accordance with law. He would rely on the following decisions :
(i) Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417 :
"34. Sections 208 and 209 of the Code of Civil Procedure, 1898 contemplate taking of such evidence as may be produced in support of the prosecution or on behalf of the accused that may be called for by the Magistrate. Compliance with the principle of natural justice or the extent thereof and the requirement of law is founded in the statutory scheme. The Magistrate 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. Findings which can be rendered in the said inquiry may either lead to discharge of the fugitive criminal or his commitment to prison or make a report to the Central Government forwarding therewith a written statement which the fugitive criminal may desire to submit for consideration of the Central Government. Sub-section (2) of Section 7 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 of 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 fugitive criminal or in support of the requesting State. (See Sohan Lal Gupta v. Asha Devi Gupta4.)
36. In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word evidence has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The 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. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate have greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.
37. Law in India recognises affidavit evidence. (See Order 19 of the Code of Civil Procedure and Section 200 of the Code of Criminal Procedure.) Evidence in a situation of this nature would, thus, in our opinion mean, which may be used 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 Act."
(ii) (2011) 10 SCC 445 (Pragyna Singh Thakur vs. State of Maharashtra) :
"63. The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order.
67. At the time when the appellant moved for bail she was in judicial custody pursuant to the orders of remand passed by the learned CJM/Special Judge. The appellant did not challenge the orders of remand dated 24-10-2008, 3-11-2008, 17-11-2008 and subsequent orders. In the absence of challenge to these orders of remand passed by the competent court, the appellant cannot be set at liberty on the alleged plea that there was violation of Article 22(2) by the police."
(iii) A Madras High Court decision reported in 1982 L.W. (Crl.) 261 (Jeevakhan and three others v. Officer-in-charge of "Q" Branch of Tamil Nadu Police, Dharmapuri and two others) :
"31. In Kanu Sanyal vs. District Magistrate, Darjeeling, the Supreme Court, reaffirming its earlier view taken in B.R. Rao vs. State of Orissa, observed that only the time of the return and not the institution of the proceedings is the crucial date and that "while a person is committed to jail custody by a competent Court by an order, which prima facie does not appear to be without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted."
34. By reason of the discussion made above, we hold that in determining the legality or otherwise of an order of detention, regard has to be had only to the question as to whether the said order under challenge was legal or not on the date of the return, which is the crucial date for such determination. In other words, it is the date when the return is made in answer to the challenge made on behalf of the detenu in respect of the detention in question, and any anterior illegal detention will not stand in the way of the Court examining the legality or otherwise of the detention or remand on the date of the return and such anterior illegal detention will not invalidate the subsequent and valid detention or remand passed by a competent Court having jurisdiction. If it is shown that the order of detention or remand passed by the competent Magistrate is prima facie valid, the contention that because there had been an anterior illegal detention, the subsequent order of detention also, even if it is valid, should be construed as not a valid order, cannot be countenanced."
(iv) A judgment of the Andhra Pradesh High Court reported in 2007 Crl. L.J. 2031 (Kura Rajaiah @ K.Rajanna and Others vs. Government of Andhra Pradesh and Others) :
"45. In our view, Limaye's case is an authority only for a limited proposition that where a person is detained by the State without being intimated the reasons for such detention, there is a violation of Article 22(1) and consequentially is entitled for a Writ of Habeas Corpus. Limaye's case is not an authority for a proposition of law that in every case where some provision of law either of Criminal Procedure Code or some other law dealing with the arrest of a person is violated, the writ of habeas corpus issues. It is clear from the above extracted paragraph of the judgment that their Lordships expressed no opinion about the legality of the arrest of Limaye and others. Their Lordships did not come to the conclusion that Limaye and others were entitled to be released on the ground that the arrest of Limaye and others was illegal.
5.1. Learned Public Prosecutor, appearing for respondents 3 and 4, would submit that the respondents have acted upon the warrant of arrest issued by the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi; arrested the fugitive accused/Jeyapaul; produced him initially before the Superintendent of Police concerned and, thereafter, before the Magistrate, New Delhi, within time. He has relied on the following judgments :
(i) (1974) 4 SCC 141 (Kanu Sanyal vs. District Magistrate, Darjeeling and others) :
"4. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India:1 It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing. In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab2 and Ram Narayan Singh v. State of Delhi3 a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa4 where it was said (at p. 259, para 7):
in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.
and yet in another decision of this Court in Talib Hussain v. State of Jammu & Kashmir5 Mr Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that (at p. 121, para 6):
in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing.
(ii) MANU/TN/1542/2009 (Murugan vs. The Superintendent of Police, Central Prison and the Inspector of Police) :
"8. The questions now to be decided are as to whether
(i) The detention during the period from 12.01.2008 to 23.07.2008 is illegal?
(ii) The non-production of detenu before the Court on 04.03.2009 and 20.03.2009 is illegal? And
(iii) His subsequent remand is illegal; in view of the above said two facts?
9. Admittedly, the Habeas Corpus Petition is filed by the petitioner on 11.05.2009, nearly after two months from 20.03.2009. In the Habeas Corpus Petitions, the date of filing of the petitioners, the date of return and the date of hearing of the petitions are more relevant to decide as to whether the detention of the detenu is legal or illegal. We are of the opinion that for deciding the issue, the date of filing of the petition, the date of return and the date of hearing of the petition would be relevant and our view is fortified by the judgment of the Supreme Court reported in AIR 1974 Supreme Court 510, decided by His Lordships, Hon'ble Mr. Justice P.N.Bhagwati and Hon'ble Mr. Justice P.K.Goswami (Kanu Sanyal vs. District Magistrate, Darjeeling and others) and the relevant portion of the judgment reads as follows:
"3. ... It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceedings may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J. (as he then was) said in A.K.Gopalan vs. Government of India (1966) 2 SCR 427 : AIR 1966 SC 816. "It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing". In two early decisions of this Court, however, namely Naranjan Singh vs. State of Delhi 1953 SCR 652 : AIR 1953 SC 277 a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao vs. State of Orissa AIR 1971 SC 2197, where it was said. "In habeas Corpus, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. And yet in another decision of this Court in Talib Husain vs. State of Jammu and Kashmir, AIR 1971 SC 62, Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas Corpus proceeding, the Court has to consider the legality of the detention on the date of the hearing. Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus."
6. We have heard the learned counsel for the parties; gone through the records so also the decisions relied upon and given thoughtful consideration thereto.
7. In order to decide the question as to whether the action of the first respondent in issuing the order impugned is justified or not, the relevant legal provisions for consideration are : Section 5, Section 6, Section 7 and Section 9 and 25 of the Act, which read as under :
7.1. Section 5 :
"5. Order for magisterial inquiry.Where such requisition is made, the Central Government may, if it thinks fit, issue an order to any magistrate who would have had jurisdiction to inquire into the offence if it had been an offence committed with in the local limits of his jurisdiction, directing him to enquire into the case.
7.2. Section 6 :
"6. Issue of warrant for arrest.On receipt of an order of the Central Government under Section 5, the magistrate shall issue a warrant for the arrest of the fugitive criminal.
7.3. Section 7 :
"7. Procedure before magistrate.(1) When the fugitive criminal appears or is brought before the magistrate, the magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a court of session or High Court.
(2) Without prejudice to the generality of the foregoing provisions, the magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State 2[* * *] and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence.
(3) If the magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State 3[* * *], he shall discharge the fugitive criminal.
(4) If the magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State 4[* * *], he may commit the fugitive criminal to prison to await the orders of the Central Government, and shall report the result of his inquiry to the Central Government; and shall forward together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Government."
7.4. Section 9 :
"9. Power of magistrate to issue warrant of arrest in certain cases.(1) Where it appears to any magistrate that a person within the local limits of his jurisdiction is a fugitive criminal of a foreign State 2[* * *], he may, if he thinks fit, issue a warrant for the arrest of that person on such information and on such evidence as would, in his opinion, justify the issue of a warrant if the offence of which the person is accused or has been convicted had been committed within the local limits of his jurisdiction.
(2) The magistrate shall forthwith report the issue of a warrant under sub-section (1) to the Central Government and shall forward the information, and the evidence or certified copies thereof to that Government.
(3) A person arrested on a warrant issued under sub-section (1) shall not be detained for more than three months unless within that period the magistrate receives from the Central Government an order made with reference to such person under Section 5."
7.5. Section 25 :
"25. Release of persons arrested on bail.In the case of a person who is fugitive criminal arrested or detained under this Act, the provisions of the Code of Criminal Procedure, 1[1973 (2 of 1974)], relating to bail shall apply in the same manner as they would apply if such person were accused of committing in India the offence of which he is accused or has been convicted, and in relation to such bail, the magistrate before whom the fugitive criminal is brought shall have, as far as may be, the same powers and jurisdiction as a court of session under that Code."
8. Section 5 contemplates order for magisterial inquiry. As per this Section, when a requisition is made by a foreign Stage, the Central Government may, if it thinks fit, issue an order to any Magistrate directing him to enquire into the case.
9. Section 6 speaks of issue of warrant for arrest. Under this Section, on receipt of an order of the Central Government under Section 5, the Magistrate shall issue a warrant for the arrest of the fugitive criminal.
10. The provisions under Sections 7,9 and 25 relate to the procedure before the Magistrate, the power of the Magistrate and the release of persons arrested on bail respectively. Since the petitioner has not challenged the authority or propriety of the Magistrate, these provisions need not be given much importance.
11. Considering the above provisions under Section 5 and 6, if we look at the present case, what transpires is that on 01.02.2011, the Embassy of United States of America at New Delhi had given a Diplomatic Note vide No.2011-127/CONS wherein it has been alleged that Jeyapaul is wanted to stand trial on charges of criminal sexual conduct. He is the subject of the second amended complaint in case No.68-CR-06-465 filed on 28.12.2010 in the District Court for the County of Roseau in the State of Minnesota which charged him with two counts i.e., Count No.1 criminal sexual conduct in the first degree in violation of Minnesota statute 609.342, Subd.1(e)(i) and Count No.2 criminal sexual conduct in the first degree in violation of Minnesota statute 609.342, Subd.1(c). A Warrant of arrest was issued by the District Court by the County of Roseau in the State of Minnesota on 28.12.2010.
12. Along with the Diplomatic Note, the following documents were enclosed :
(1) Copy of Extradition Treaty between the Government of Republic of India and the Government of the United States of America.
(2) Certificate of Authentication dated 21.01.2011 issued by the Embassy of India (Washington).
(3) Certificate issued by the Secretary of State of the USA, dated 14.01.2011.
(4) Certificate from the Attorney General, Department of Justice USA, dated 13.01.2011.
(5) Certificate from Mr.David P.Warner, Associate Director, Office of International Affairs, USA, dated 13.01.2011.
(6) Prosecutors Affidavit.
(7) Complaint/Warrant of Arrest (District Court of Roseau County).
(8) Investigators Affidavit.
(9) Victims Affidavit.
(10) Relevant Statutory Language.
13. The facts relating to the complaint against Jeyapaul were that from approximately October 2004 till September 2005 when served as Parish Priest at the Blessed Sacramont Church, St.Joseph's Catholic Church, St.Edwards Catholic Church in Minnesota, during a Youth Conference, he met a 14 year old girl (the victim) and in the fall of 2004 he had sexually abused her till August 2005. The above said offences are covered under Article 2 of the Extradition Treaty between the United States and the Republic of India signed on 25.06.1997 and had come into effect on 21.07.1999.
14. On receipt of a request from the Embassy of the United States of America i.e., Diplomatic Note, the first respondent passed an order on 08.03.2011, which is impugned herein, under Section 5 of the Act, requesting the Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi, to inquire into the extradition request as to the extraditibility of the offences involved by determining whether a prima facie case exists in terms of Extradition Act,1962 (32 of 1962), and the Extradition Treaty between the Government of Republic of India and the Government of the United States of America and other applicable laws in the matter of Jeyapaul for the offences alleged to have been committed by him and, thereafter, on 19.04.2011, made an application for issuance of warrant for arrest of the fugitive criminal, namely, Jeyapaul, pursuant to which he was arrested and remanded to judicial custody.
15. In this connection, it is pertinent to note that though the impugned order was passed as early as 08.03.2011 and the request to the Magistrate was made by the respondent for arrest of Jeyapaul on 19.04.2011, he was arrested only on 16.03.2012, as his whereabouts could not be ascertained till then. The bail applications filed by Jeyapaul also were dismissed by the competent courts concerned.
16. When the fugitive accused/Jeyapaul was produced before the Additional Chief Metropolitan Magistrate, he was served with the following documents:
(1) Application for issuance of Warrant for Arrest of Mr.Joseph Palanivel Jeyapaul.
(2) Order of MEA (CPV) dated 08.03.2011.
(3) Note verbale (Diplomatic Note), dated 01.02.2011.
(4) Copy of Extradition Treaty between the Government of Republic of India and the Government of the United States of America.
(5) Certificate of Authentication dated 21.01.2011 issued by the Embassy of India (Washington).
(6) Certificate issued by the Secretary of State of the USA, dated 14.01.2011.
(7) Certificate from the Attorney General, Department of Justice USA, dated 13.01.2011.
(8) Certificate from Mr.David P.Warner, Associate Director, Office of International Affairs, USA, dated 13.01.2011.
(9) Prosecutors Affidavit.
(10) Complaint/Warrant of Arrest (District Court of Roseau County).
(11) Investigators Affidavit.
(12) Victims Affidavit.
(13) Relevant Statutory Language.
17. Under Section 6 of the Act, the Magistrate concerned has exclusive jurisdiction to enquire and decide the extradition request as to the extraditability of the offences involved, by determining whether a prima facie case exists in terms of the Act and the Extradition Treaty between the Government of the Republic of India and the Government of the United States of America and other applicable laws. The first respondent is bound by the treaty between the two countries and by the Act and cannot go behind the documents to make a roving enquiry on its own in the matter. The only aspect which the respondent has to look into is, whether materials exist to pass an order under Section 5 ? and all other issues are to be decided by the Magistrate. Since, in this case, the materials existed, the first respondent has passed the impugned order. Further, the petitioner's brother was arrested pursuant to a legally issued Warrant of Arrest by the Additional Chief Metropolitan Magistrate, New Delhi, who was directed by the first respondent to hold the necessary inquiry and, as such, his detention cannot be termed as illegal or unlawful. When the detention is not illegal or unlawful, no case is made out for issuance of a writ of habeas corpus. Therefore, the petitioner is entitled to place all his defence before the Magistrate since he alone is having jurisdiction and competency to decide all the questions, legal and factual, for and against the extradition request.
18. With regard to the contention of the learned counsel for the petitioner that the detenu has not been produced before the Magistrate within 24 hours and hence there is non-compliance of Section 80 of the Code of Criminal Procedure, read with Section 71, it is to be stated that Section 80 Cr.P.C. contemplates the procedure for arrest of a person against whom warrant is issued and Section 81 Cr.P.C. provides for the procedure by Magistrate before whom the person arrested is brought.
19. As per Section 80 of Cr.P.C., when a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within thirty kilometres of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under Section 71, be taken before such Magistrate or District Superintendent or Commissioner.
20. Under Section 81of Cr.P.C., the Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court; provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under Section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security, as the case may be, and forward the bond, to the Court which issued the warrant; provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate, subject to the provisions of Section 437, or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of Section 78 to release such person on bail.
21. In this case, pursuant to the warrant of arrest issued by the Additional Chief Metropolitan Magistrate, New Delhi, the accused was arrested on 16.03.2012 at 14.00 hours at Chimitahalli within Thalavadi Police Station limits, Sathyamangalam Sub-Division, Erode District, Tamil Nadu, and produced before the Superintendent of Police, Erode, on the same day i.e., 16.03.2012 at 20.00 hours by the Inspector of Police, Thalavadi Circle Police Station and his team, as the Court, which issued the warrant was beyond thirty kilometres of the place of arrest and not nearer than the Superintendent of Police within the local limits of whose jurisdiction the arrest was made. Thereafter, under Section 81, the Superintendent of Police, as the person arrested appeared to be the person intended by the Court which issued the warrant, directed his removal in custody to such Court. In this context, it is useful to refer to Section 57 of Cr.P.C., which reads as under :
"57. Person arrested not to be detained more than twenty-four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."
22. The above Section 57 speaks to the effect that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
23. Added to the above, Article 22 of the Constitution of India guarantees the right of protection against arrest and detention in certain cases. Article 22(1) contemplates that, "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice". Article 22(2) provides that, "every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate". The exceptions are contemplated in Article 22 (3), which provides that, "nothing in clauses (1) and (2) shall apply--(a) to a person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention."
24. A reading of the above provisions makes it clear that a person arrested shall be produced before the Magistrate concerned within a period of 24 hours of arrest, but the time necessary for the journey from the place of arrest to the place of the Magistrate shall be excluded. Therefore, it has to be construed that the time of journey from the place of arrest to the place of the Magistrate has to be in the line of what is provided under Article 22 of the Constitution of India as well as the Code of Criminal Procedure.
25. Keeping the above provisions in mind, if we consider the present case, it is to be mentioned, that, in this case, the fugitive accused has been arrested pursuant to a warrant of arrest issued by the Magistrate. Even otherwise, the accused was arrested on 16.03.2012 at 14.00 hours and produced before the Superintendent of Police as per Section 80 of Cr,P.C. on the same day at 20.00 hours, following which, the accused was produced before the Additional Chief Metropolitan Magistrate, New Delhi, on 19.03.2012, as there was no immediate transport facility to New Delhi after arrest and subsequent to producing the fugitive criminal before the Superintendent of Police. The mode of transport was made available only by way of train on 18.03.2012 from Erode to New Delhi and, then, by availing such a facility, the police took the fugitive criminal from Erode to New Delhi and produced before the Magistrate on 19.03.2012. Therefore, the period of two days viz., 17.03.2012 and 18.03.2012 taken for transport, for want of availability, has been satisfactorily explained by the respondents for make of transit. In other words, since in this case the time taken for producing the fugitive accused before the Court has been in consonance with the above provisions, this Court has no reason to believe that there was any detention beyond the scope of the principles underlined in the Constitution and also the Code of Criminal Procedure. Hence, this contention of the learned counsel for the petitioner is dispelled.
26. Coming to one more contention of the learned counsel for the petitioner that the detenu was not informed of the grounds of arrest and of right to bail, Sections 50 Cr.P.C. is relevant. The said Section is extracted below :
"50. Person arrested to be informed of grounds of arrest and of right to bail. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf."
27. Since in this case the fugitive accused is arrested pursuant to a warrant of arrest issued by the Chief Judicial Magistrate, he need not be informed of the grounds of arrest and of right to bail. Hence, this contention also collapses.
28. Adverting to the question as to whether the arrest of the fugitive accused/Jeyapaul is illegal, what is challenged by the petitioner is the order, dated 08.03.2011, passed in T-413/18/2011 by the Ministry of External Affairs, CPV Division, Extradition Section, Patiala House Annexe, Tilak Marg, New Delhi, the relevant portion of which reads as follows:
"1. Whereas the fugitive criminals Mr.Joseph Palanivel Jeyapaul, is wanted by the Government of United States of America for prosecution in respect of certain offence.
2. Whereas the extradition request has been made under the Extradition Treaty between the Government of the Republic of India and the Government of the United States of America currently in force.
3. Whereas the Government of the United States of America has submitted the extradition request, through diplomatic channels, for the extradition of the fugitive criminals to the United States of America; and
4. Whereas the offence alleged to have been committed by the fugitive criminals Mr.Joseph Palanivel Jeyapaul, are stated in the US request to be extraditable in terms of Article 2 of the Extradition Treaty between India and USA and which has been declared applicable to the Republic of India vide Order GSR 633(E) dated 14th September, 1999.
5. Therefore, the Government of India i.e. Ministry of External Affairs, having been satisfied on the basis of the material submitted by the Government of the United States of America, that the warrant of arrest was issued by the District Court of Roseau County, Minnesota (USA), having lawful authority to issue the same, hereby requests under Section 5 of the Extradition Act 1962 (34 of 1962), the Additional Chief Metropolitan Magistrate (New Delhi), Patiala House Courts, New Delhi, to inquire into the extradition request as to the extraditability of the offences involved, by determining whether a prima facie case exists in terms of the Extradition Act, 1962 (34 of 1962) and the Extradition Treaty between the Government of the Republic of India and the Government of the United States of America, and others applicable laws."
29. A reading of the above order makes it crystal clear that it is only the Government of India's request to the Additional Chief Metropolitan Magistrate to inquire into the matter, which order took its own course in accordance with the law of this country and, thereafter, the arrest under Section 6 of the Act was made. The course adopted by the first respondent cannot be termed as a "detention" much less an "illegal detention", and therefore, the grounds of detention need not be furnished to the accused, who is a fugitive criminal. One more thing which we have to say is that this is a matter concerned with the countries under the treaty, which has provided certain obligations on the extraditing country to look into, under the relevant provisions of the Act, which procedure is exactly followed in this case. In our considered opinion, there is no scope to give any impression to the order in question as if it is the detention order and, therefore, we have no hesitation to hold that the contention of the petitioner in this regard fails. It is always open for the petitioner/fugitive accused to seek remedy in an appropriate manner as provided under the Act.
30. Section 50-A contemplates obligation of a person making arrest to inform about the arrest to a nominated person. The said Section goes thus :
"50-A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person.(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person."
31. Since it is not the case of the petitioner anywhere in the affidavit as to non-compliance of the provisions of the above Section and also as there is no illegal detention in this case, this issue need not be gone into in detail.
32. In Sarabjit Rick Singh v. Union of India, 2008 (2) SCC 417, relied upon by the learned Additional Solicitor General appearing for respondents 1 and 2, the Supreme Court has categorically 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 final decision wherefor a report is to be prepared. Section 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 of 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 used 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.
33. The decisions relied on by the learned counsel for the petitioner are all matters concerned with the detention orders, more particularly with life and liberty of the persons who are in illegal detention, which is not the factual position herein. Hence, those decisions have no application to the facts of this case and are not discussed by us.
34. It is true, Writ of Habeas Corpus is a very important jurisdiction in which the High Courts are called upon to protect the individual liberties of citizens and prevent illegal detention by the authority of the State or otherwise. This jurisdiction is exercised to call upon the person who has detained another to produce the person detained before the Court in order to let the Court know on what ground he has been confined and, if the Court finds that there is no legal basis for the imprisonment, the Court will set him at liberty. Also, if the detention is proved to be in violation of the procedure established by law, the Court has to necessarily order his release. It is the paramount duty of the Courts to issue this kind of writ to safeguard the freedom of the citizens against arbitrary and illegal detention. But, in this case, no such factors are involved.
35. The treaties between the countries have an obligation on the part of the extraditing countries. Article 51 of the Constitution of India emphasises the State's endeavour to promote international peace and security; maintain just and honourable relations between nations; foster respect for international law and treaty obligations in the dealings of organised people with one another and encourage settlement of international disputes by arbitration. One of the cardinal principles, as provided therein, is to foster respect for international law and treaty obligations in the dealings of organised people with one another. Such an object is obligatory and, sometimes, it may be a mandatory requirement as the treaty specifically provides for certain obligations. In the matters of extradition treaties, the custody of criminals between the countries assumes significance. If a fugitive criminal is required to be extradited, when there is a request made through the diplomatic channels, the country, which is called upon to extradite, and, the country to which the criminal is to be extradited, are having a binding obligation, which should be respected mutually.
36. In the case on hand, the fugitive criminal is accused of having committed certain offences in the United States of America and the Court of competent jurisdiction has passed an order of warrant of arrest, based on which the said sovereign State of the United States of America has made a request to the sovereign State of India, pursuant thereto, the sovereign State of India has requested the jurisdictional Magistrate to inquire into the matter and, on such an inquiry, the Magistrate has issued the warrant of arrest under Section 6 of the Act and, thereafter, the execution has been carried out in the State of Tamil Nadu by arresting the fugitive criminal on 16.03.2012 in the village called Chmitahalli of Thalavadi Police Station, Sathyamangalam Taluk, Erode District, and he was produced before the Magistrate on 19.03.2012, subsequent thereto, he was remanded to judicial custody and lodged in Tihar Prison, New Delhi. The Constitution vide Article 22 (2) also denotes the procedure as to how the arrested person should be produced before the Magistrate and also as to the time to be taken for transit. Such a procedure having been followed by the authorities in this case at every stage and, on being satisfied that the order in question is not a detention order at all, we are of the considered opinion that there is no iota of scope to entertain a writ of habeas corpus under Article 226 of the Constitution.
37. In view of our discussions at length in the foregoing paragraphs coupled with the legal principles enshrined and also the mandatory obligations involved in the extradition treaty, we hold that the order of the first respondent in T-413/18/2011, dated 08.03.2011, is perfectly in order and in accordance with law and that invocation of writ of habeas corpus under Article 226 of the Constitution is not an appropriate remedy for the grievance of the petitioner. Accordingly, this Habeas Corpus Petition is dismissed. Consequently, the connected M.P.Nos.1 and 2 of 2012 are also dismissed.
dixit To
1. The Secretary, Ministry of External Affairs, Government of India, CPV Division, Extradition Section, Patiala House, Annexe, Tilak Marg, New Delhi-110 001.
2. Superintendent of Prisons, Tihar Prison, New Delhi.
3. Inspector of Police, Erode Town Police Station, Erode.
4. Circle Inspector of Police, Thalavali Police Station, Sathyamangalam Taluk Erode