Ajay Kaushal vs State and Another

R. M Savant, J.—This is an application for bail filed by a person who has been incarcerated u/s 34-B of the Extradition Act. 1962. The Applicant was tried for kidnapping, beating and torturing the victim for ransom. The said case was tried in the Preston Crown Court in the United Kingdom. The Applicant failed to appear in the said case and fled the United Kingdom and, was therefore, tried in absentia. The Applicant was sentenced to 15 years imprisonment by the said Court.

The Respondents herein received an information on 26.10.2009 from Interpol that the Applicant who was a fugitive and wanted by the Interpol, was staying at Amigos Hotel, at Colva. The Lancashire Constabulary made a request to detain the Applicant as the original warrant was to be applied. The Respondents accordingly placed the Applicant under arrest u/s 41(g) of the Criminal Procedure Code, 1973 on 26.10.2009. It appears that the Applicant thereafter moved a bail application which came to be rejected by the learned J.M.F.C, Margao and the Applicant was remanded to judicial custody which remand was extended from time to time. The Central Bureau of Investigation, Interpol, New Delhi, thereafter vide a communication dated 29.10.2009 forwarded a copy of the message received from NCB, London dated 27.10.2009 along with the summary of evidence against the Applicant and the conviction order with a request for the Applicant provisional arrest pending submission of the extradition request. The said letter was received by the Superintendent of Police. Crime, Donapaula Goa, on 17.11.2009 which was ultimately forwarded to the Colva Police Station on 19.11.2009. On 26.11.2009 the 14 days judicial remand of the Applicant was coming to an end, the Respondents requested the J.M.F.C, Margao, to accord permission to execute the provisional warrant of arrest u/s 34-B of the Extradition Act, 1962 against the Applicant. Accordingly, the J.M.F.C, Margao granted the request and passed necessary orders in that respect. The Applicant was accordingly placed under arrest u/s 34-B of the Extradition Act, 1962 on 26.11.2009 front 13.45 hours. The Applicant was produced before the learned J.M.F.C., Margao; who remanded the Applicant to seven days judicial custody The Applicant moved a bail application which was rejected by the learned J.M.F.C, Margoa, by order dated 2.125009. Thereafter, the Applicant moved for bail by filing application No. 314/2009 in the Sessions Court, Margao, which the learned Sessions Judge, Margao, rejected by order dated 7.125009. The Applicant thereafter, moved a bail application bearing NO. 374/2009 in this Court which bail application did not survive in view of the present application being filed.

In the present matter the Respondents have filed an affidavit opposing the above application. To the said affidavit is annexed a letter dated 05.01.2010 of the Deputy Passport Officer, Extradition. In the said letter, it has been mentioned that U.K. (Government has already submitted a request for extradition of the Applicant to the Government of India, which request is under examination so as to appoint an Extradition Magistrate u/s 5 of the Extradition Act, 1962 and, therefore, the Respondents are informed that the: Applicant should not be released. It has further been averred in the affidavit that the Respondents herein are in possession of the copies of documents containing the correspondence that has ensued in respect of extradition of the Applicant between the Government of India and British High Commission, New Delhi.

On behalf of the Applicant, it is sought to be contended by the learned Counsel Shri Arun Bras De Sa that on 26.10.2009 when the Applicant was arrested no such request for extradition had been received by he Government of India from the Government of the United Kingdom and, therefore, the Applicant could not have been placed under arrest. It is further submitted that though the request is now received purportedly on or about 5.1.2010 as disclosed by the letter of the said date from the Deputy Passport Officer-Extradition, the said request is not in the proper form as prescribed in the Extradition Treaty. It is further submitted that the mandate of Article 11 of the Extradition Treaty has not been followed and since the process of extradition would take some time, it is contended that the Applicant may be released on bail on such terms and conditions as this Court deems fit.

The application is opposed by the learned Public Prosecutor Shri C.A. Ferreira, appearing for the Respondents. It is the contention of Shri Ferreira that the issue as regards the arrest of the Applicant on 26.10.2009 is now no more open for scrutiny in view of the rejection of the bail by the learned J.M.F.C. and, thereafter, by the learned Sessions Court and disposal of the bail application by this Court as instructions. In so far as the entitlement of the Applicant for bail is concerned, the learned Public Prosecutor points out that in view of the extradition request received, which is disclosed by the letter dated 5.1.2010, the Applicant is not entitled to be released on bail. The learned- Public Prosecutor relied upon the Article 7 of the Extradition Treaty to contend that it is an offence under the law of India for any person in India to commit any of the offences mentioned in sub clause (ii) wherein the offence of kidnapping is included. It was the contention of the learned Public Prosecutor that an offence which the Applicant was charged and convicted is therefore an offence also in India, in terms of the said Article 7.

Having heard the learned Counsel for the Applicant and the learned Public Prosecutor, in my view, the Applicant would not be entitled to bail inter-alia for the following reasons:

The arrest of the Applicant on 26.10.2009 was u/s 41(g) of the Criminal Procedure Code which permits an arrest of a person which can be made without a warrant on credible information being received or a reasonable suspicions exists, of his having been concerned in, any act committed at any place out of India. In the instant case, the information was received as regards the Applicant by the Colva Police that he was a fugitive running away from law who has been convicted by a Court in U.K. and who was punished with 15 years imprisonment, Insofar as the said arrest is concerned apart from the fact that the bail applications filed by the Applicant have been rejected. The fact that thereafter the request for extradition has been received by the Government of India and which process the Government of India is examining to set in motion by appointing a Magistrate as evidenced by the letter dated 5.1.2010 cannot be lost sight of.

As regards the submission regarding whether the request for extradition is in proper form or not, it is not for this Court whilst considering the above bail application to consider the said aspect. Insofar as the present bail application is concerned, the fact that the extradition request has been received by the Government of India from the Government of the United Kingdom would suffice for the arrest of the Applicant u/s 34-B of the Extradition Act. This Court is not required to decide upon the merits of the extradition process in the instant application for bail. The said submission of the learned Counsel for the Applicant that since the request is not in the proper form as postulated in Article 11 and, hence, the Applicant is required to be released on bail is therefore required to be rejected. It also cannot be lost sight of that the Applicant was charged for the serious offence of kidnapping and cruelty and the Applicant was tried in absentia as he had fled from the United Kingdom to an unknown destination. Hence, taking into consideration Article 7 of the Extradition Treaty, the same would also be an offence in India and, therefore, the Applicant having been convicted of such an offence cannot be released on bail.

The learned Counsel for the Applicant has also contended that the applicant would be entitled to be released on account of the fact that within 60 days of his (SIC) the request for extradition is not received. Considering the provisions of Section 34-B(2) and the letter dated 5.1.2010 of the Deputy Passport Officer, the said submission is only stated to be rejected.

It would also be necessary to refer to the conduct of the Applicant. Firstly the conduct of the Applicant as a person who has fled from U.K. when facing a trial for the serious offence of kidnapping etc., as also the conduct of the Applicant after he was incarcerated in jail. As per the affidavit filed by the Respondents an offence has been registered against the Applicant under Sections 353, 504, 427 of I.P.C. for having assaulted P.S.I. Sudesh Velip who was in the escort party whilst taking the Applicant to the Court of the J.M.F.C, Margao for remand. As also the incident when the Applicant has assaulted a jailor of Sub Jail, Sada, Vasco, on 13.1.2010. for which an offence came to be registered against the Applicant under Sections 353, 504, 427 of I.P.C. The facts as disclosed in the affidavit in my view disentitle the Applicant for the grant of bail apart from the other factors which have been mentioned in the earlier part of this order.

On behalf of the Applicant reliance is sought to be placed on the judgment of the Apex Court in the matter of Bhavesh Jayanti Lakhani v. State of Maharashtra.1 In support of the submission that the request for extradition has to be in the form prescribed by the Extradition Treaty between the Government of India and Government of the United Kingdom. The facts. in the said case were that extradition was sought of the said Bhavesh Lakhani as an order had been passed by a Court in the U.S.A. granting custody of the daughter to the mother and the said Bhavesh Lakhani had fled the U.S.A. and had come to India. The Apex Court came to a conclusion that the offence alleged against the said Bhavesh was not an extradition offence. Moreover, what was in contention before the Apex Court were the extradition proceedings and not an application for bail as in the instant case. That apart in the instant case the Applicant has been convicted for a serious offence and has been sentenced to 15 years imprisonment. For the aforesaid reasons, the said judgment of the Apex Court would not have any application in the facts of the present case. For the reasons mentioned hereinabove, the application for bail is rejected.