Madras High Court
Mohammed Jafeer vs The Government Of India on 26 April, 2006
Bench: P. Sathasivam, J.A.K.Sampath Kumar
In the High Court of Judicature at Madras
Dated: 26/04/2006
Coram
The Hon'ble Mr.Justice P. SATHASIVAM
and
The Hon'ble Mr.Justice J.A.K.SAMPATH KUMAR
Habeas Corpus Petition No.1243 of 2005
Mohammed Jafeer .. Petitioner
-Vs-
1. The Government of India, rep. by
The Assistant Director (I)
Central Bureau of Investigation
Interpole Wing, New Delhi.
2. The Deputy Superintendent of Police,
Sirkali Sub-Division, Sirkali,
Nagapattinam District.
3. The Government of India, rep. by
its Secretary,
External Affairs Ministry,
Shasthri Bhavan, New Delhi. .. Respondents
(Implead the 3rd respondent as per the
order of this Court dt.21.12.2005 in
HCMP.154/05 by RBJ and NPVJ)
Petition filed under Article 226 of the Constitution of India
praying for issuance of writ of habeas corpus, calling for the records of the
2nd respondent in Cr.No.171/2005 on the file of Poraiyar Police Station dated
4.3.2005 and quash the entire proceedings based on the said FIR as illegal,
thereby direct the detenu Saburudeen detained in Central Prison, Cuddalore to
be produced before this Hon'ble Court and set the detenu at liberty.
!For petitioner : Mr.V.Jeevagiridharan
^For Respondent 1: Mr.N.Chandrasekaran,
Addl.P.P. for CBI.
For R2 : Mr.Abudukumar Rajaratnam,
Govt.Advocate (Crl.Side)
For R3 : Mr.K.Kumar, Sr.Advocate
(S.C.G.S.C.) for Mr.M.Dhandapani
(Addl. C.G.S.C.)
:ORDER
The petitioner, who is the son of detenu viz., Saburudeen has filed this petition calling for the records of the second respondent in crime No.171/05 on the file of Poraiyar Police Station, dated 04.03.20 05 and quash the entire proceedings based on the said FIR as illegal, and direct the detenu Saburudeen detained in Central Prison, Cuddalore to be produced before this Hon'ble Court and set him at liberty.
2. Heard Mr.V.Jeevagiridharan, learned Counsel for the petitioner and Mr.N.Chandrasekaran, learned Addl.P.P. for CBI for R1, Mr. Abudukumar Rajarathinam, learned Government Advocate for R2 and Mr.Kumar, S.C.G.S.C. for R3.
3. The point for consideration is whether the detenu/Saburudeen, S/ o.Abubakar, who is detained in connection with Crime No.171/05 under Section 41(1)(g) Cr.P.C. and Section 381 & 401 I.P.C., on the file of Poraiyar Police Station, Nagapattinam District on 04.03.2005 is entitled to be discharged under Section 24 of the Extradition Act 1962.
4. Before going into the merits on issue, let us deal with the facts on hand.
5. The detenu had been in employment in Kuwait for some time and returned to India in the year 2001 itself. He is in possession of passport NO.A-3001334. He is a resident of New Street, Eduthukatti Sathanur, Nagai District. The detenu has committed theft and misappropriation on 23.08.2001 while he was working at Al Dasma, Kuwait in the premises of his employers company and has stolen Kuwait Dinnars (KWD) of 3 ,000/- from the safe. He has further misappropriated KWD of 2,500/- representing rent from the property belonging to his employer. So the detenue was arrested under Section 41(1)g) of Criminal Procedure Code on 04.03.2005 at 10.00 hours by Poraiyar Police, Nagapattinam District, Tamil Nadu, on the basis of Red Corner Notice No.A-620/6-2003 issued by Interpol C.B.I., New Delhi, the first respondent herein on request of authorities of Kuwait country. The second respondent filed F.I.R. against the petitioner for the offences Under Sections 381 & 408 I.P.C. and submitted him to Judicial Custody on 04.03.2005. The bail application filed on behalf of the detenu in Crl.M.P.No.1395/05 on the file of Judicial Magistrate No.II, Myladudurai was dismissed on 21.06.2005 stating that the Extradition process against him is pending. Against this the detenu filed bail application in Crl.M.P.No.1 377/05 before the Sessions Judge, Nagapattinam and the same was also dismissed on 27.07.2005 on the ground that the Extradition proceedings have been initiated against him. Thereafter, the detenu filed Crl. O.P.No.26198/05 before the High Court to quash the said proceedings. Subsequently, the same was also dismissed as withdrawn.
6. The learned counsel for the petitioner has submitted the following contentions:
(i) The detention order is violative of Sections 5,6 and 7 of the Extradition Act 1962. The Magistrate had not conducted any enquiry as contemplated in the Extradition Act before remanding the detenu to the Judicial Custody.
(ii) Section 24 of the Extradition Act 1962 is very clear that if the fugitive Criminal is not surrendered or returned to any foreign State within two months from the date of detention, he is to be discharged. The detenu is in remand for more than a year. The respondents have not surrendered him to the foreign State within two months and therefore, the detention is illegal.
(iii) The kuwait country is not linked with India by a Bilateral Extradition treaty, an Extradition convention or by any other convention or treaty containing provisions on extradition for such petty offences of theft and misappropriation. So Chapter II of the Extradition Act, 1962 ought to have been followed in his case. But the respondents did not follow the said provisions in arresting the detenu.
(iv). The respondents have no power or jurisdiction to file FIR against the detenu u/s 381 & 408 of Indian Penal Code for the offences committed in other country as an Ex-parte conviction and sentence to such offences had already been passed by the said country.
(v). The detenu has not been served with any notice regarding the alleged extradition proceedings.
7. The learned counsel for the respondents have made the following submissions:
(i) The Extradition treaty between the Republic of India and the State of Kuwait has been formally singed but may come into force only after the exchange of ratification between the two countries. The non existence of treaty is technically not a bar for consideration of a request for extradition as it signifies the international obligation between two countries due to diplomatic relations arising under various conventions. The detenu will have to be prosecuted in India according to the Indian Laws.
(ii). The factual position will not in any way invalidate the remand to Judicial Custody of the detenu. The detenu who is an Indian National is attracted and liable for local prosecution for the offences committed abroad and is required to be dealt with under Section 188 of Criminal Procedure Code for which the Ministry of Home affairs is the administrative and Nodal authority representing the Central Government. Section 188 of the Code of Criminal Procedure enables an Indian Court to try an offence committed abroad by an Indian citizen.
(iii). The Ministry of External Affairs has received a request for extradition of the detenu, who is an Indian National from the Government of Kuwait through their emabssy in New Delhi. The answering Ministry is examining the matter and in turn the same would be forwarded to the investigating agencies through the Ministry of External Affairs. The detention is in accordance with the procedures established by law.
(iv). The contention of the learned counsel for the petitioner that the provisions of Section 24 of the Extradition Acts, 1962 have to be read in conjunction with Sections 5,6, & 7 of the said Act, and on that ground the detenu has to be discharged cannot sustain. Rival contentions have been considered in detail.
8. From the events narrated above, it is not disputed that the detenu being an Indian, worked at Kuwait and returned to India in the year 2001. It is also not disputed that the detenu was arrested on 04.03 .2005 at 10.00 hours by Poraiyar Police, Nagapattinam District, Tamil Nadu on the basis of RCA.No.A-620/6-2003. In RCA.No.A-620/6-2003, it has been stated that the detenu committed theft and misappropriation on 23.08.2001 while working at Al Dasma, Kuwait in the premises of his employer's company and has stolen Kuwait Dinnars (KWD) of 3,000/- from the safe. The detenu further misappropriated KWD of 2,500/- representing rent from the property belonging to his employer. It is also not disputed that a case was registered against the detenu in Poraiyar Police Station, in Crime No.171/0s5 under Sections 381 & 408 I.P.C. It is also not disputed that the detenu is under Judicial custody from 04.03.2005 onwards on the order of the Judicial Magistrate No.II, Myladudurai. It is also not disputed that an Extradition treaty between the Republic of India and the State of Kuwait has been signed but has not entered into force yet. The same will come into force after the exchange of ratification between the two countries. So it cannot be stated that the detenu is kept under illegal detention under any act.
9. In this context, it is relevant to extract the provisions of Sections 5, 6 and 7 of Indian Extradition Act 1962.
" 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 within the local limits of his jurisdiction, directing him to inquire into the case.
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. 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 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, 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, 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."
10. The case on hand would show that without the aid of the Court, the Deputy Superintendent of Police, Sirkali while he was on bandobust duty at Thiruvenkadu on 03.03.2005 night, received a message that a Red Corner Notice No.A-620/6-2003, as requested by Kuwait was issued by Interpol, C.B.I., New Delhi against the detenu. After conducting enquiry, arrested the detenu on 04.03.2005 at 10.00 hours at Poraiyar Police Station, seized his passport through Form No.95 and registered a case in Crime No.171/05 under Section 41(1)(g) of Cr.P.C. r/w Sections 381 & 408 I.P.C. and produced him before the concerned Magistrate. Thereafter, the detenu is under Judicial Custody till date.
11. Mr.B.Kumar, learned Senior Counsel appearing for the third respondent received a communication dated 10.03.2003 from the Ministry of External Affairs, CPV Division, Extradition Section, Patiala House Annexe, Tilak Marg, New Delhi-110 001 and ascertained that the third respondent is taking necessary steps to prosecute the detenu in India with the aid of Section 188 Cr.P.C. The contents of the letter is that, " This has reference to your letter dated 5th April, 2003 regarding Abubaker Sbruddin Vs.CBI and others.
2. An Extradition Treaty between the Republic of India and the Sate of Kuwait has been signed but has not entered into force yet. The same will come into force after the exchange of ratification between the two countries. Otherwise, also the treaty does not allow extradition of own nationals. The non-existence of treaty is technically not a bar for consideration of the request for extradition, and a person could be extradited on the basis of reciprocity by way of a notification. However, in this case the reciprocity will not work , as Kuwait will not extradite its own nationals to India. Therefore, ultimately Shri Abubaker Sbruddin will have to be prosecuted in India.
3. Provision for local prosecution of Indian nationals committing offences abroad is listed in Section 188 of the Criminal Code of Procedure, for which Ministry of Home Affairs is in charge and nodal authority.
4. The Government of India has received a set of documents in Arabic regarding extradition of an Indian national, Shri. Abubaker Sbruddin who is accused in case Crime No.692/2001-64/2001 for theft and robbery. The matter was taken up with the Ministry of Home Affairs and copy to the Central Bureau of Investigation, as they are the investigating Agency in this case and also first Respondent to the Petition filed by Shri.Abubaker. On the advice of the Ministry of Home Affairs, this Ministry has requested the Embassy of the State of Kuwait in New Delhi to make available duly authenticated English Translation of the request at the soonest possible."
12. The Judicial Magistrate on scrutinising the materials placed by the respondents and after satisfying himself of the information of Red Corner Notice No.A-620/6-2003 issued by Interpol, C.B.I., New Delhi on the request of Kuwait country found that a primafacie case has been made out against the detenu and hence, remanded the detenu to Judicial Custody.
13. In this context, Section 24 of the Extradition Act 1962, is relevant to decide the issue on hand, which reads as follows:-
"Discharge of person apprehended if not surrendered or returned within two months:- If a fugitive criminal who, in pursuance of this Act, has been committed to prison to await his surrender or return to any foreign State is not conveyed out of India within two months after such committal, the High court, upon application made to it by or on behalf of the fugitive criminal and upon proof that reasonable notice of the intention to make such application has been given to the Central Government, may order such prisoner to be discharged unless sufficient cause is shown to the contrary."
14. It is not disputed that the fugitive criminal viz., the detenu has not been conveyed out of India within the stipulated period prescribed under Section 24 of the Extradition Act 1962. If no sufficient cause is shown to the contrary, upon the application made by or on behalf of the fugitive criminal, the High Court may order, such detenu to be discharged. The letter of the third respondent extracted above reveals that the Central Government is taking effective steps to prosecute the detenu, who is an Indian for the commission of offence at the foreign country viz., Kuwait as narrated earlier with the aid of Section 188 Cr.P.C.
15. It is also not disputed that the documents sent by the foreign country are in Arabic. Therefore, the Central Government has requested the Kuwait country to send translated documents in English to enable the Government to take further action in this matter.
16. So we are satisfied that the Central Government has shown sufficient cause. The power given under Section 24 of the Act is the discretionary power. The Central Government has also taken effective and proper steps with the State of Kuwait to get the authenticated English Translated document to proceed with the detenu in India. In such circumstances, Section 24 of the Extradition Act 1962 need not be invoked at this stage.
17. In this context, it is relevant to extract the provisions of Section 25 of the Act, "25. Release of persons arrested on bail:- In the case of a person who is a fugitive criminal arrested or detained under this Act, the provisions of (The Code of Criminal Procedure, 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."
18. The detenu is in prison in connection with Crime No. 171/05 on the file Poraiyar Police Station, Nagapattinam District for the offences under Sections 381 & 408 I.P.C. and the Central Government is taking steps to prosecute the detenu in India itself for the offences committed in foreign country with the aid of Section 188 Cr.P.C.
19. In this context, it is but proper for the detenu to approach the concerned Court to get appropriate relief of bail under the provisions of Code of Criminal Procedure 1973, with the aid of Section 25 of the Extradition Act 1962. We are of the considered view, that the detenu is not entitled for discharge at this stage under Section 24 of the Extradition Act 1962.
In the result, this petition fails and the same is dismissed.
To
1. The Government of India, rep. by The Assistant Director (I) Central Bureau of Investigation Interpole Wing, New Delhi.
2. The Deputy Superintendent of Police, Sirkali Sub-Division, Sirkali, Nagapattinam District.
3. The Government of India, rep. by its Secretary, External Affairs Ministry, Shasthri Bhavan, New Delhi.