Madras High Court
R.Selvi vs Union Of India Rep. By The on 29 April, 2011
Bench: S.Rajeswaran, G.M.Akbar Ali
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29 .04.2011
CORAM:
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
and
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI
H.C.P(MD)Nos.846 of 2010
R.Selvi .. Petitioner
Vs.
1. Union of India rep. By the
Secretary to the Government of India,
Ministry of External Affairs,
Patiala House Annexe,
Tilak Marg,
New Delhi 110 001.
2.The Addl.Director General of Police,
Crime Branch C.I.D.,
Block No.111, First Floor,
SIDCO Electronics Complex,
Industrial Estate, Guindy,
Chennai – 32. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, directing the respondents to cause
production of the person or body of the detenu S.Ramesh alias Dorairaju
S/o. Sidambaram, now confined in Central Prison, Trichy and discharge
him thereby set him at liberty.
2
For petitioner : Mr. P.N. Prakash
For Mr.Jeganathan
For respondent-1 : Mr.C.Ramachandran, CGC
For Mr.K.K.Senthilvelan
For respondent : Mr.P.N.Pandidurai
(R2 ) Addl.Public Prosecutor
ORDER
(Order of the Court was made by G.M.AKBAR ALI,J.) The very interesting question raised in the present Habeas Corpus Petition is whether the order of remand dated 13.07.2010 by the learned Judicial Magistrate, Tiruvaiyaru, Thanjavur District, remanding the husband of the petitioner one S.Ramesh alleged to be a fugitive criminal involved in an offence of murder at Singapore, during the year 1998, murdering his wife and left the soil of Singapore and hiding in India, at the request of the Attorney General of Singapore pursuant to a warrant issued by a District Judge, Singapore, is sustainable in law..
2.The brief facts of the case are as follows:-
One Dorairaju S/o. Sidambaram was suspected for a murder of one Arputhamariya, who was found dead on 24 th September 1998 at her 3 residence at Singapore. The suspect was her Husband Dorairaju S/o.
Sidambaram. The summary of facts of the case would reveal that the said person suspected the infidelity of his wife and caused fatal injuries and informed his brother to take care of his sons and left for India on 23 rd September, 1998. A case for murder under Section 302 of the Penal Code of Chapter 224 of Singapore is pending investigation. On 6th July 2010, the Singapore Police received information that the suspect is in India under the name “S.Ramesh” and he is residing at 407 Main Road, Karampalayam, Pattukottai, Tanjavur District, Tamil Nadu. A request to verify the identity of the said person was made through Interpol, NCB, New Delhi, who requested the C.B.,C.I.D., and the identity was verified by exchanging the finger prints of the suspect. A warrant of arrest under the Criminal Procedure Code of Singapore was issued to the Commissioner of Police Singapore on 8th July, 2010 for the arrest and for the production of the accused by the District Judge, Singapore. On 12th July 2010, a request was made by the Attorney General's Chamber, Singapore to the Ministry of External Affairs, New Delhi, for the request of provisional arrest of Dorairaju S/o. Sidambaram @ S. Ramesh, who is wanted in a murder case at Singapore. This request was forwarded along with brief facts of the case, warrant of arrest, Photo and Thumb imprison of the fugitive criminal. On 12.07.2010 itself the Deputy Director, Central Bureau of 4 Investigation, Interpol, India, intimated the Additional Director General of Police CBCID , Chennai, about the arrest, as requested by the Singapore authorities. On the same day, a memorandum was issued by the Additional Director General of Police, CBCID Chennai, to the Inspector of Police, CBCID, Thanjavur, under which, he was instructed to get the provisional warrant from the Judicial Magistrate concerned, under the provision of Indian Extradition Act 1962 (herein after referred to as 'the Extradition Act'), for the provisional arrest and Judicial custody of the said Dorairaju.
3.On 13.07.2010, the Inspector of Police, CBCID, Thanjavur, arrested and produced the said S.Ramesh, the alleged suspect, wanted by the Singapore authorities, by name Dorairaju S/o. Sidambaram and was produced before the learned Judicial Magistrate, Thiruvaiyaru, Thanjavur District, for the offence under Section 302 of Penal Code, Chapter 224 of Singapore and the learned Magistrate had accepted the production and remanded the said person under Section 15 of the Extradition Act, on 13.07.2010 at 3.30 p.m. Initially, the remand was made for seven days till 19.07.2007 and thereafter, periodically extended. 5
4.However, the wife of the detenu had filed a Habeas Corpus Petition before the Principal Bench of this Court, at Madras in H.C.P.No. 1576 of 2010 alleging that the detention was illegal. Simultaneously, a bail application was filed before the learned Judicial Magistrate, Thiruvaiyaru in Crl.MP.4333 of 2010 stating that Section 15 of the Extradition Act, which comes under Chapter III of the Act, shall not apply to the Republic of Singapore and therefore, the remand is illegal. However, the learned Magistrate has dismissed the application. H.C.P.No. 1576 of 2010 was also dismissed as withdrawn on 21.09.2010 with liberty to the petitioner to approach the jurisdictional Bench. Therefore, the petitioner, the wife of the detenu, has filed the present Habeas Corpus Petition to issue a writ of Habeas Corpus to cause the production of detenu and to set him at liberty. Along with the main petition the following miscellaneous petition has also been filed.
(i) To grant an Interim Injunction restraining the respondents from shifting the detenu from the central prison Tiruchirappalli, to any other place.
(ii) To enlarge the petitioner on interim bail pending disposal of the Habeas Corpus Petition.6
5.This Court, while admitting the Writ Petition, passed an order stating that “we are able to see that prima facie ground made out for not only entertaining the present Habeas Corpus Petition, but also granting the relief of interim injunction as prayed for. Accordingly, we are constrained to grant the relief of interim injunction for a period of two weeks till 7.10.2010.”
6.However, on the strength of an order passed by the Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi, to shift the detenu to New Delhi and to be produced for an enquiry to be conducted under Section 5 of the Extradition Act, the CBCID handed over the detenu and he was shifted to Delhi and lodged in Tihar Jail.
7.However, by the direction of this Court, the detenu was brought back from the Tihar Jail and the status-quo ante was restored.
8.The arrest and the remand by the CBCID, Thanjavur and the remand order of the learned Judicial Magistrate is challenged in this petition on the following grounds:-
a. There is no Extradition Treaty between the Government of 7 India and the Republic of Singapore and only an Extradition arrangement exists.
b. As per the notification dated 20.01.1972 by the Central Government of India it is notified that except Chapter III of the Extradition Act, the other provisions of Act, 1962 will apply to the Republic of Singapore.
c. The Judicial remand by the Judicial Magistrate, Thiruvaiyaru, under Section 15 of the Act is illegal because Section 15 falls in chapter III, which has been excluded.
d. The arrest by the Inspector of Police CBCID. Thanjavur, without obtaining a provisional warrant from the jurisdictional Court is illegal.
e. The power of remand under Section 9 of the Extradition Act empowers the local Magistrate viz., the learned Judicial Magistrate at Pattukkottai to issue a warrant and remand the detenu for a period of three months. Hence, the remand by the learned Judicial Magistrate, Tiruvaiyaru, based on the request of Attorney General of Singapore is illegal.8
f. Under the Provisions of the Extradition Act, a fugitive criminal should be discharged, if no request is made by the Foreign State within 60 days of arrest.
9.Notice was served to the Union of India represented by the Secretary, Ministry of External Affairs and to the Additional Director General of Police CBCID, Chennai. In the reply, on behalf of the Union of India, the facts and circumstances of the commission of an offence in Singapore and the request of the Attorney General of Singapore and the direction given to the Inspector of Police, CBCID, Thanjavur and the validity of such arrest and detention was reiterated. It is submitted that as the documents forwarded were found to be in order, the Central Government had appointed the learned Additional Chief Metropolitan Magistrate. Patiala House Court, as the Extradition Magistrate, as per Section 5 of the Act, by an order dated 15.09.2010 and the Extradition Magistrate was pleased to issue a production warrant on 21.09.2010 and the accused was directed to be produced on 27.09.2010. It is further contended that the documents received from the requesting State including the Photo and Thumb imprison of the fugitive criminal was verified with the finger prints of the detenu, which tallied and therefore, an arrest was made on 13.07.2010. It is further contended that the 9 documents were received with a formal request containing arrest warrant issued by the District Judge, Singapore. Therefore, the arrest was made as per the procedures established by law. It is further contended that the Central Government, under Section 5 of the Act, had passed an order nominating the Extradition Magistrate and the Extradition enquiry, who has already commenced the proceedings and therefore, the said Magistrate alone is empowered to pass any orders.
10.However, Habeas Corpus Petition in H.C.P.No.910 of 2010 has been filed by the petitioner challenging the order dated 15.09.2010, appointing the Additional Chief Metropolitan Magistrate, New Delhi, as Extradition Magistrate and is pending. The present application is challenging the initial arrest and remand of the detenu. Therefore, we are restricting our consideration only to that limited purpose.
11.Mr.P.N.Prakash, the learned counsel appearing for the petitioner would submit that the detenu was arrested as early as on 08.07.2010 by the CBCID, Thanjavur and kept in illegal custody. The request has been made by the requesting state only on 12.07.2010 and the warrant of arrest was transmitted to the High Commission, New Delhi, which in turn, has forwarded the same to the CBI, National Central 10 Bureau, Interpol India, for further transmission to ADGP, CBCID, Chennai. The learned counsel further submitted that on the same day, a Memorandum was issued to the Inspector of Police, CBCID, Thanjavur with a specific instruction to obtain a provisional warrant from the Judicial Magistrate concerned under the Act and arrest the fugitive criminal. The learned counsel emphasized that without obtaining the provisional warrant, the detenu was arrested on the basis of an unapproved Foreign warrant and was produced before the learned Judicial Magistrate at Thiruvaiyaru, which has no jurisdiction and the said Magistrate has invoked Section 15 of the Act to remand the detenu. The learned counsel pointed out that Chapter III of the Act is not applicable to the Republic of Singapore, as the said State is only having an Extradition arrangement, not a Treaty. While Section 15 falls within Chapter III of the Act, not only the arrest and also the remand by the learned Judicial Magistrate, Thiruvaiyaru, is illegal and continue to be illegal and therefore, the detenu is to be set at liberty. The learned counsel invited the attention of this court to a Judgment of the Hon'ble Supreme Court in AIR 1969 SC 1179 State of west Bengal and Anotehr Vs. Jugle Koshore and Another and the judgment reported in 2010 4 MLJ (crl.) 129 SC (B.J.Lakhani Vs. State of Maharashtra.) 11
12.On the contrary, Mr.C.Ramachandran, the learned Central Government Standing Counsel, who appeared for the first respondent, would submit that the arrest and detention are legal. The learned counsel pointed out that under Section 41(1)(g) of the Cr.P.C., a Police Officer is empowered to arrest any person on receiving an information that the said person had committed an offence outside India, which is punishable in India.
13.The learned standing counsel would also submit that on receipt of relevant documents including an arrest warrant from the requesting State, the authorities have arrested the fugitive criminal, whose identity has been established and has been remanded to Judicial Custody. The learned counsel emphasized that the Extradition proceedings has already been initiated and the Extradition Magistrate has already passed an order for production of the accused to conduct an enquiry and therefore, the detention has become legal and the Extradition Magistrate have power to deal with the detenu. The learned counsel pointed out that as the detention is legal, the petition itself is misconceived and liable to be dismissed. The learned standing counsel in support of his contention, drew our attention to the Judgments reported in 1993 MLJ (CRL) 628 (T.Mohan, Remand Prisoner, Central Prison, 12 Madras Vs. State by Inspector of Police, C.B.,C.I.D., Madras and 2010 2 MLJ (CRL) 4 (Marshall Sons & Co.(Mfg.) Ltd. Vs. J.Bhattacharjee).
14.On the background of the above facts and circumstances of the case let us consider the legal aspects. Admittedly, between the Republic of Singapore and the Government of India, there is no Extradition Treaty but they have an Extradition arrangement.
15.In the Central Government of India Notification dated 20.01.1972, it was notified as follows:
“CSR.35(E)-In exercise of the powers conferred by sub-section (1) of Section 3 of the Extradition Act, 1962 (34 of 1962), the Central Government hereby directs that the provisions of the said Act, other than Chapter III, shall apply to the Republic of Singapore with effect from the 20th day of January, 1972”.13
16.Therefore, except the Chapter III of the Act, all the provisions of the Act, shall apply to the Republic of Singapore in Extradition proceedings.
17.Chapter III of the Act, deals with “Return of Fugitive Criminals to Foreign State with Extradition arrangements”.
18.Section 14 to 18 of chapter III reads as follows:-
“14. Endorsed and provisional
warrants:- A fugitive criminal may be
apprehended in India under an endorsed warrant or a provisional warrant.
15.Endorsed warrant for
apprehension of fugitive criminal:- Where a
warrant for the apprehension of a fugitive
criminal has been issued in any [foreign State] to which this Chapter applies and such fugitive criminal is, or is suspected to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the 14 warrant so endorsed shall be suficient authority to apprehend the person named in the warrant and to bring him before any Magistrate in India.
16.Provisional warrant for apprehension of fugitive criminal:-(1) Any Magistrate may issue a provisional warrnt for the apprehension of a fugitive criminal from any [foreign State] to which this Chapter applies who is, or is suspected to be, in or on his way to India, on such information and under such circumstances as would, in his opinion, justify the issue of a warrant, of the offence of which the fugitive criminal is accused or has been convicted had been committed within his jurisdiction and such warrant may be executed accordingly.
(2) A Magistrate issuing a provisional warrant shall forthwith send a report of the issue of the warrant together with the information or a certified copy thereof to the Central Government, and the Central Government may, if thinks fit, discharge the person apprehended under such warrant.
(3) A fugitive criminal apprehended on a provisional warrant may, from time to time, be remanded for such reasonable time, not exceeding seven days at any one time, as under 15
the circumstances seems requisite for the production of an endorsed warrant.
17. Dealing with fugitive criminal when apprehended:- (1) If the Magistrate, before whom a person apprehended under this Chapter is brought, is satisfied on inquiry that the endorsed warrant for the apprehension of the fugitive criminal is duly authenticated and that the offence of which the person is accused or has been convicted is an extradition offence, the Magistrate shall commit the fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal.
(2) If on such inquiry the Magistrate is of opinion that the endorsed warrant is not duly authenticated or that the offence of which such person is accused or has been convicted is not an extradition offence, the Magistrate may, pending the receipt of the orders of the Central Government, detain such person in custody or release him on bail.
(3) The Magistrate 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 16 desire to submit for the consideration of that Government.
18. Return of fugitive criminal by warrant:- The Central Government may, at any time after a fugitive criminal has been committed to prison under this Chapter, issue a warrant for the custody and removal to the [foreign State] concerned of the fugitive criminal and for his delivery at a place and to person of that Government.”
19.If Chapter III is not applicable to the Extradition arrangement with the Republic of Singapore, chapter II shall be applicable. Under Chapter II, Section 4 of the Act, there shall be a requisition for a surrender of a fugitive criminal by the foreign State to the Central Government; under Section 5 of the Act, where such requisition is made, the Central Government may, issue an order to any Magistrate, who would have had jurisdiction to enquire into the offence and direct him to enquire into the case; under Section 6 of the Act, on receipt of an order of the Central Government, the Magistrate so appointed shall issue a warrant for the arrest of the fugitive criminal and Section 7 deals with the procedures before the Magistrate, where the Magistrate shall enquire into the case 17 and submit a report to the Central Government and on receipt of such report, the Central Government may, surrender the fugitive criminal to the foreign State.
20.The difference between Chapter II and Chapter III is that, under chapter II, the foreign State shall make a requisition to the Central Government for the surrender of the fugitive criminal and upon such receipt, an order of Magisterial enquiry will be passed and only thereafter, the Magistrate shall issue a warrant for the arrest. Whereas, under Chapter III, where a fugitive criminal of any foreign State is found in India, he shall be liable to be apprehended and returned to the foreign State and no Magistrate enquiry is necessary. However, such apprehension and return of a fugitive criminal shall be made in the manner provided under Chapter III i.e., following the provisions from Sections 14 to 18. Sections 24 deals with discharge of a person apprehended or arrested, if not surrendered under Chapter II or if not returned under Chapter III, within two months, the fugitive criminal is entitled to approach the High Court for discharge. Section 25 deals with release of person arrested on bail and the Provisions of Code of Criminal Procedures relating to bail shall apply.
18
21.If Chapter III is to be applied for return of the fugitive criminal, he may be apprehended or arrested in India on endorsed warrant issued by the foreign State duly authenticated by the Central Government or by a provisional warrant issued by the jurisdictional Magistrate. However, if Chapter II is to be applied for surrender of fugitive criminal, only on a requisition for an extradition proceedings by a requesting State, the Central Government shall order any Magistrate as to enquire and only on such receipt of an order, the said Magistrate shall issue a warrant for the arrest of a fugitive criminal.
22.Therefore, there is a significant difference in applying either chapter II or III of the Act. If chapter III is not applicable for foreign State, which has only extradition arrangement, the arrest cannot be effected either on the authenticated warrant of the such State or by provisional warrant by a Magistrate. Only on receipt of requisition, the Central Government shall order a Magistrate for enquiry and such Magistrate, may issue an arrest warrant.
23.Section 9(1) of the Act Reads as follows:-
9.Power of Magistrate to issue 19 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 [**], he may, if he thinks fit, issue a warrant for the arrest of that person on such information and 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.”
24.Section 34-B of the Act reads as follows:
34-B. Provisional arrest :- (1) On receipt of an urgent request from a foreign state for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.
(2) a fugitive criminal arrested under sub section (1) shall be discharged upon the expiration of sixty days from the date of arrest if no request for his surrender or return is received within the said period.20
25.Section 41(1)(g) of the Criminal Procedural Code, reads as follows;-
“(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, an for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; “
26.In 2001 Crl.Law Journel 3030 the High Court of Delhi had an occasion to deal with an arrest of a fugitive criminal based on a credible information under Section 41(1)(g) of the Code. In that case, a warrant for the arrest of a fugitive criminal for an offence under Section 420 of Penal Code of Singapore was issued by a Magistrate of Singapore. A private detective apprehended the fugitive criminal and produced him at the local Police station. The SHO put him under arrest under Section 41(1) 21
(g) of the Code. It was specifically entered in the case diary that there were warrants against him from Singapore and the warrants issued through Interpol had already been delivered to the Joint Commissioner of Police, New Delhi and only on confirmation of such facts, he was put under arrest. A bail application was moved under Section 439 of Cr.P.C., a single Judge of the Delhi High Court held as follows:-
“10. There is no doubt about the legal preposition that wherever a special law is introduced, the general law on the matters covered therein stands obliterated. However, wherever the special law is silent on any matter and the provisions of general law appear to be supplementary and in the aid of special law and help in achieving the aims and objects of the special law, the provisions of general can always be invoked. Therefore, it must be held that the arrest of the petitioner under S.41(1)(g), of the Code which was based on a credible information was fully protected by the Code and was not at all in violation of the provisions of the Act. It is shown on record that a copy of the warrant of arrest had already been received by Deputy Commissioner of Police, Delhi through Inspector also, which fact was verified by the S.H.O 22 concerned before putting the petitioner under arrest.”
27. Therefore, even for the cases falling under Chapter II of the Act, the police are empowered to arrest under Section 42(1)(g) of the Code of Criminal Procedure.
28.However, in (2010) 4 MLJ (Crl) 129 B.J.Lakhani vs. State of Maharastra the Hon,ble Supreme Court held that “In a case involving Extradition Section 41(1)(g) of Cr.P.C. may not have any application. The Apex Court, after dealing in detail with various provisions of the Act held as follows:-
“ 41. The legal position that a person can not be arrested without any authority of law again is not denied or disputed. Thus, the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfilment of the following conditions:
(1)That the offence should be counted 23 as one by Indian Law as well, and (2) The person must be liable to be arrested in India- either under any law relating to extradition or otherwise. Such an arrest can be effected only in pursuant to a warrant issued by a magistrate in view of sections 6, 16, and 34-B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it is only the Magistrate who issues the warrant for arrest of course to the condition that the Central Government had ordered a Magisterial Inquiry in terms of section 5 of the Act. Such an order of arrest emanating from a Treaty-State, is also permissible under a provisional warrant issued by a Magistrate in exercise of power under section 16 of the Act, upon information that the fugitive should be apprehended subject to the condition that the detention thereunder may continue only for the time requisite for obtaining an endorsed warrant from the Central government.”
29) Therefore, a. Chapter II of the Act applies to a foreign State to which Chapter III does not apply.24
b. For extradition of a fugitive criminal to a foreign State under Chapter II of the Act, a requisition for surrender shall be made to the Central Government.
c. On such requisition, the Central Government may issue an order to any Magistrate, who would have had jurisdiction to enquire into the offence, if it had been an offence committed within the local limits of his jurisdiction, directing to inquire into the case.
d. Under Section 6 of the Act, on receipt of an order of the Central Government, under Section 5 of the Act, the Magistrate shall issue an order for arrest of a fugitive criminal.
e. On receipt of an urgent request from the foreign State, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal under Section 34-B of the Act.
f. Under Section 9 of the Act, where it appears to any Magistrate that a person within the local limits of his jurisdiction is a fugitive criminal of a foreign State he may, if he thinks fit, issue a warrant for the arrest of that person on such information and such evidence in his opinion justify the issue of warrant.
g. A fugitive criminal is entitled for a discharge upon an application to the High Court, if he is not either surrendered under Chapter 25 II or returned under Chapter III, within two months of his remand.
f. Under section 25 of the Act, the Provisions of the Criminal Procedure Code relating to bail shall apply if the case of a person, who is a fugitive criminal.
30.The above being the legal position let us consider the arrest and detention of the detenu in the present case.
31.Admittedly, the Government of India is having only extradition arrangements with Republic of Singapore. It is also notified that Chapter III of the Act is not applicable to the Republic of Singapore. Therefore, Chapter II alone is applicable. There was no request by the Republic of Singapore to obtain a provisional arrest warrant under Section 34-B of the Act. However, by Memorandum dated 12.07.2010 the ADGP, CBCID, Chennai, had directed the Inspector of Police, CBCID, Thanjavur, to get the provisional warrant from the Judicial Magistrate concerned for the arrest of the fugitive concerned. However, it was not obtained. A warrant of arrest under Section 9 of the Act was also not issued by the Magistrate. Obviously, the Inspector of Police had arrested the detenu on the strength 26 of an arrest warrant issued by the District Judge, Singapore, as evidenced by the remand report. Even assuming that Chapter III of the Act is applicable, the said warrant was not endorsed by the Central Government, as required under Section 14 of the Act.
32.The learned Judicial Magistrate, Thiruvaiyaru, had made an endorsement stating that the accused was produced on execution of a warrant issued by the District Judge, Singapore and remanded to Judicial custody under Section 15 of the Act. However, Section 15 of the Act falls under Chapter III of the Act, which is not applicable. Only on 15.09.2010, the Central Government has passed an order appointing the Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi, as Magistrate for enquiry under Section 5 of the Act, this is exactly after 60 days of the initial arrest. Applying the principle laid down above, we are of the considered view that the arrest by the Inspector of Police, CBCID, Thanjavur and the subsequent detention by the learned Judicial Magistrate, Thiruvaiyaru, are illegal and not under the procedures established under law. The Inspector of Police CBCID, Thanjavur was either ignorant or over enthusiastic in arresting the fugitive criminal, as the facts of the case resembles an old Tamil Cinema. Equally, the learned Magistrate also cannot be blamed, as these type of cases are very rare. 27 But, this Court is duty bound to settle the law and the procedures.
33.Mr.C.Ramachandran, the learned Central Government Standing Counsel made a faint attempt justifying the arrest and detention as legal by stating that the fugitive criminal was arrested by invoking Section 41(1)(g) of Cr.P.C. We are not inclined to accept as the arrest itself is on the basis of un-endorsed foreign warrant. The learned counsel also tried to persuade this Court by stating that the Central Government has appointed the learned Additional Chief Metropolitan Magistrate, Patiala House Court, as Extradition Magistrate and he had issued a “Production Warrant”. Therefore, the invalid judicial custody had subsequently made valid. He also relied on a Judgment of this Court in T.Mohan Vs. State By Inspector of Police C.B.C.I.D, Madras reported in (1993 MLJ (Crl.) 628). That is a case related to an extension of remand of under trial prisoner facing trial in a Session Court by a Judicial Magistrate. In that case, the learned Sessions Judge had delegated the powers to the learned Chief Judicial Magistrate, Chengalpattu, to hear and dispose of urgent criminal applications under Section 10(3) of Cr.P.C. and the learned Chief Judicial Magistrate, in turn, had delegated the power in favour of the learned Judicial Magistrate No.1. Pursuant to this delegation of powers, the learned Judicial Magistrate, passed an order of remand of an under 28 trial prisoner, extending the remand beyond 15 days period. Same was questioned. Meanwhile, the learned Sessions Judge, directed the prison authorities to cause production of the under trial prisoner and passed suitable orders extending his remand. The Division Bench of this Court held that the original judicial custody is invalid, subsequently made valid, and therefore, the custody was not illegal. This decision is not applicable to the case before us. As far as the Production Warrant is concerned, it was issued for the production of the fugitive criminal, who had already been remanded by the learned Judicial Magistrate, Thiruvaiyaru. Such warrant has also been executed. The fugitive criminal was produced before the learned Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi and was subsequently remanded to Tihar Jail. However, in pursuant to an order of this Court, he was again lodged in the Central Jail, Tiruchirapalli and the status-quo ante is maintained. The subsequent remand cannot validate the earlier invalid remand.
34.Therefore, for the reasons stated above, we are of the considered view that subsequent order of the learned Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi, for the production of the detenu, is not executable at this stage. H.C.P.No.910 of 2010 is also pending challenging the order passed by the Central 29 Government, appointing the learned Additional Chief Metropolitan Magistrate, as extradition Magistrate. The detenu is in jail only on the order passed by the learned Judicial Magistrate, which is considered by us as illegal. Therefore, he is to be set at liberty. However, the extradition enquiry initiated on the order dated 15.09.2010 cannot be frustrated by enlarging the detenu. It is for the respondents to approach the learned Additional Chief Metropolitan Magistrate, for obtaining an warrant under Section 6 of the Act or invoke either Section 9 or Section 34-B of the Act. However, we are also of the view that suitable conditions have to be imposed on the detenu, while he is set at liberty.
35.In the result, this Habeas Corpus Petition is allowed and the detenu viz., S.Ramesh @ Dorairaju, detained in the Central Prison, Tiruchirapalli, is set at liberty on conditions that he should execute a bail bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with two sureties each for like sum to the satisfaction of the learned Judicial Magistrate, Thiruvaiyaru and on further condition that he should appear before the learned Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi, either in person or through counsel in all the hearing dates and also appear before the Inspector of Police, CBCID, Thanjavur, every day at 10.30 a.m., except the date of hearings at New Delhi, until 30 further orders. He is also directed to surrender his passport to the Inspector of Police concerned, if any, and he shall not leave the Country.
(S.R.,J) (G.M.A.,J)
29.04.2011
INDEX : YES/NO
INTERNET : YES/NO
MPK
31
To
1. Union of India rep. By the
Secretary to the Government of India,
Ministry of External Affairs,
Patiala House Annexe,
Tilak Marg,
New Delhi 110 001.
2.The Addl.Director General of Police,
Crime Branch C.I.D.,
Block No.111, First Floor,
SIDCO Electronics Complex,
Industrial Estate, Guindy,
Chennai – 32.
32
S.RAJESWARAN, J
and
G.M.AKBAR ALI, J
MPK
H.C.P(MD)Nos.846 of 2010
29.04.2011