Quashed

Priya Murlidhar Chaini v. Govind Prasad Shriwastav and Ors.

Bombay HC5 Oct 2006APPLN/3073/2006

Case brief

AI extract

What is this about?

Criminal Appeal challenging a bail order granted to an accused arrested in Belgium. The Court held that the Sessions Judge lacked jurisdiction to grant bail under Section 439 CrPC as the accused was not in custody under Indian law or the Indian court's control.

What did the court decide?

Impugned judgment and order dated 11th August, 2006 quashed and set aside; bail application dismissed.

Priya Murlidhar Chaini Vs Govind Prasad… — Civil Procedure and Limitation | Bombay HC (2006)

¶1

... 1 ...

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.3073 OF 2006

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Mrs Priya Murlidhar Chaini

¶5

) ...Applicant

¶6

Vs.

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Shri Govind Prasad Shriwastav )

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The Union of India

¶9

)

¶10

The Director,

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Central Bureau of Investigation)

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The State of Maharashtra ) ...Respondents

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Shri Nitin Pradhan with Ms. Shubhada Khot for the Applicant.

¶14

Ms Rohini Wagh for the Respondent No.1.

¶15

Shri A.S.Gadkari, A.P.P. for the State.

¶16

CORAM : ABHAY S. OKA, J.

¶17

DATE ON WHICH SUBMISSIONS ARE CONCLUDED : SEPTEMBER 26, 2006.

¶18

DATE NO WHICH JUDGMENT IS PRONOUNCED : OCTOBER 05, 2006.

¶19

JUDGMENT:

¶20

1.	By t	his Application under sections 482	and
439(2)	of t	he Code of Criminal	Procedu	re,	1973 the
Applicant	has	taken exception to	the	Order	dated 11th
August,	2006	by which the l	earned	Additi	onal Sessions
Judge	granted	bail in favour of	the	first	Respondent
and	directed	concerned Officers	to	take	appropriate
action	for bringi	ng back the first	Re	spondent	to India
at	the earliest	after his release on	bai	l.	The said

¶21

... 2 ...

¶22

order	is	challenged	bas	ically		by	invoking	the
jurisdiction	under	section	482	of	the	said	Code on	the
ground	that	the	learned	A	dditional	Ses	sions Judge	had
no	power	to give	dire	ctions	to	the	concerned	officers
for	complet	ing ext	radition		proc	edure	under	the
provisions		of the	Extrad	ition	Act,	19	62 (h	ereinafter
referred	to	as the	said	Act	of	1962).	The	second
ground	of	challenge	is t	hat	the	first	Respondent	was

¶23

not in custody and therefore, the learned Judge had no

¶24

jurisdiction to grant bail.

¶25

2.	For the purpose of ap	preciating the
submission	s made by the learned Cou	nsel appearing	for
the	parties, it will be necessary to	refer to	the
facts	of the case. The Applicant	is the	first
informant.	The Applicant filed an F.I.R.	on	06th
October,	2004 which was registered with	the E	conomic
Offences	Wing, GB, CB, C.I.D., Mumba	i against	the
first	Respondent for offences punishable	under	section
420,	465, 467, 468, 471 read with sect	ion 34 of	the
Indian	Penal Code. Since there is no	challenge to	the
order	granting bail on merits, it is	not necessar	y to
go	into details of the allegations m	ade against	the
first	Respondent in the First I	nformation	Report.
Apart	from the first Respondent, one	Shri D	ushyant
Shantilal	Bhojak was also one of the	accused	persons

¶26

... 3 ...

¶27

named under the said F.I.R. who was arrested. The

¶28

first Respondent being a permanent resident of U.S.A. could not be arrested.

¶29

3.	A report was fil	ed on 16th December, 2004 by
the	Senior Inspector	of Police, Econ	omic	Offences
Wing,	Unit V, CB	C.I.D., Mumbai before	the	learned
Additional	Chief	Metropolitan Magistrate,	19th	Court,
Esplanade,	Mumbai	stating that investigation	was	in
progress	on the bas	is of a F.I.R. fi	led by	the
Applicant.	It was	stated in the said	report tha	t the
first	Respondent was	a resident of New	Jersey,	U.S.A.
and	there was no s	ign of his arrival in	India in	near
future.	It was	submitted that there was	an	ample
evidence	against the	first Respondent.	It	was
submitted	that a	red corner notice thr	ough	Interpol
was req	uired to be	issued against him for	the	purposes
of tra	cing him.	It was submitted that	a	standing
non-bailable	warrant	against the first	Respondent	was
required	to be issued	for the purpose of	obtaining	a
red co	rner notice.	On 16th December,	2004,	the
learned	Magistrate	directed that	a	standing
non-bailable	warrant shall	be issued agains	t the	first
Respondent	as prayed.	According to the	case of	the
Investigating	Officer,	the said report was	made	for
invoking	powers under	section 105-B of the	Code	of

¶30

... 4 ...

¶31

Criminal	Proce	dure,	1973. On th	e bas	is of the	said
standing	warra	nt,	a red corner	notice	was issued	by
Interpol	on	03rd	April, 2005. On	19th	April, 2005	a
chargesheet		was	submitted to the	court	of the	learned
Additional		Chief	Metropolitan Mag	istrate	in which	the
first	Respondent		was shown as	a	wanted	accused.
According	to		the Investigating	Offi	cer the	first
Respondent	was		detained in United	S	tates on	02nd
August,	2005.		However, he got	himsel	f released	on
13th	Septemb	er,	2005. Ultimately,	on	31st May,	2006
the	first	Respo	ndent was arrested	b	y the	Federal
Police	of	Brus	sels in Belgium	at the	cross	border
check	point	of	the airport when	the	first R	espondent
had	arrived	from	New York. O	n the	basis of	direction
issued	by	the	Assistant Director	IP,	CBI,	Central
Unit,	New	D	elhi, the procedure	for	preparation	of
extradition	do	cument	s was started.	As	noted in	the
earlier	order		passed by this	co	urt in	this
Application,		the	extradition	procedu	re has	been
completed	and	now	within few day	s th	e first R	espondent

¶32

will be brought to India and will be produced before

¶33

the learned Magistrate.

¶34

4.		It will be a	lso necessary to note that	on 27th
June,	2006	an	Application was	moved	by	the	Advocate
for	the	first	Respondent	before		the	learned

¶35

... 5 ...

¶36

Magistrate. In		the	said	Applic	ation	it	was	stated
that the a	ccused	/first	Res	pondent		was	willing	to
appear before		the	learne	d	Magis	trate	for can	cellation
of warrant.	It	was	prayed	that	the	wa	rrant may	be
stayed. On	th	e said	App	lication,	on	th	e same	day,
learned Magistrate	p	assed	an	order		stayi	ng the	warrant
till 11th July,	2	006.	On		10th		July, 2006,	an
Application was	made	on	beh	alf	of	the	first Re	spondent
before the lea	rned	Magist	rate.	It	w	as	stated in	the
Application tha	t	when	the	first		Respo	ndent was	trying
to come to	Indi	a to	face	the	cha	rges,	he was	detained
at Brussels, Belgiu	m	on 3	1st	May,	2006	.	It was	stated
that the wa	rrant	issued	b	y th	e	learne	d Magistrate	was
not yet execut	ed.	It	was	also	sta	ted	that the	first
Respondent was		willing	to	rema	in	prese	nt before	the
learned Magistrate		and	he	was	will	ing	to settle	the
matter. The	first	praye	r	made	in	the	said Ap	plication
was for stay	of	non-b	ailable	warra	nt	for	a period	of
week. In	the	alt	ernative,	it	was	pra	yed that	the
first Respondent		may b	e re	leased	on	bail	. By	order
dated 11th	July	, 20	06	the	learn	ed	Magistrate	rejected
the Application	.	W	hile	rejecti	ng	the	Application	the
learned Magistrat	e	men	tioned	that	ord	er	dated	27th
June, 2006 of	stay	of	warrant	was	o	btaine	d from him	by
concealing the	fact	that	on	31st	Ma	y,	2006 the	first
Respondent was		arrested	by	the	po	lice	authorities	in

¶37

... 6 ...

¶38

Belgium. The learned Magistrate rejected the prayer for bail on the ground that the first Respondent was neither arrested nor was he before the court.

¶39

5.		The documents produced on record show that a
temporary		warrant of arrest was issued on 31st	May,
2006	by	the Judge of Investigation of	District
Brussels.		English translation of said warrant	is
produced	on	record and there is no dispute between	the
parties		as regards correctness of the	English
translation.		In the temporary warrant of arrest	it is
stated	that	an arrest warrant was asked by	Indian
Government		because of urgency. The warrant refe	rs to
Article	1	of the Law 15.03.1874 and Article 5 of	the
extradition		treaty concluded with Government of	India.
It is		stated in the warrant that offences	alleged
against	the	first Respondent are serious and	bad
enough	a	nd make an infringement of the	public
security.		It is also stated that it proves	an
important		lack of respect for the legal rules of	our
society	and	show a dangerous state of mind of	the
suspect.		It is also recorded that the	offences
alleged		against the first Respondent of swindling	and
false	entry	were existing in Article 1 of the	Law
15.03.1873.		It was also stated that a p	rovisional

¶40

arrest warrant must be issued because of the facts and

¶41

... 7 ...

¶42

also in order to extradite the suspect.

¶43

6. Shri Pradhan, the learned counsel appearing
for the Applicant submitted that the	learned
Additional Sessions Judge could not have	exercised
jurisdiction under section 439 of the Code of	Criminal
Procedure, 1973 (hereinafter referred to as the	said
Code) as the first Respondent was neither in	custody
nor had surrendered before the appropriate court.	He
placed reliance on several decisions of the	Apex
Court. I have dealt with the said decisions in	the
later part of this Judgment. He submitted that	the
learned Additional Sessions Judge could not	have
relied upon section 25 of the said Act of 1962	for
grant of bail. He submitted that there was a	complete
lack of jurisdiction in the learned Judge as by	no
stretch of imagination the first Respondent was	in
custody. He submitted that no direction could	have
been be given by the learned Additional Sessions	Judge
for expediting the extradition procedure under	said
Act of 1962 and jurisdiction to give such	direction
was not vesting in the learned Judge. He	submitted
that jurisdiction to grant bail can be exercised	only
after the first Respondent is produced before	the

¶44

learned Magistrate after completion of extradition

procedure.

... 8 ...

The learned counsel for the first Respondent

¶49

submitted	that the first Respondent was arrested on
the	basis of warrant issued by the learned Magistrate
and	the arrest was in connection with the offence of
which	cognizance was taken by the learned Magistrate.
She,	therefore, submitted that the first Respondent
was	in custody on the basis of the warrant issued by
the	learned Magistrate and the learned Additional
Sessions	Judge was well within his powers to grant
bail.	She submitted that under section 25 of the said
Act of	1962 power to grant bail can be exercised. She
submitted	that the direction given by the learned
Judge	for completing the extradition procedure was
only	with the object of ensuring that the first
Respondent	is brought before the court of the learned
Magistrate	at the earliest. The learned A.P.P Shri
Gadkari	submitted that as the first Respondent was not
in	custody, the learned Additional Sessions Judge had
no	jurisdiction to grant bail. He pointed out that
the	learned Magistrate had denied the bail to the
first	Respondent on the ground that the first

¶50

Respondent was neither arrested nor was he produced

¶51

before him.

¶52

The learned counsel appearing for the parties

¶53

... 9 ...

¶54

have placed reliance on various decisions of the Apex Court as well as High Courts. They have invited my attention to the treaty executed by and between the Government of India and Kingdom of Belgium

¶55

9.	I have carefully considered the sub	missions.
The perusal	of the order	passed by		the	learned
Additional	Sessions Judge shows	that he		has	discussed
the merits	of allegations	against		the	first
Respondent.	I am not concerned	with the		said	aspect
at this	stage. The learned	Additional		Sessions	Judge
observed that	the first Respo	ndent was	ar	rested	and
was kept in	jail, though in	other count	ry,	this	action
is taken on	the basis of a	non-bailable		warrant	issued
by the	learned Magistrate.	The lea	rned		Additional
Sessions Ju	dge, therefore, held	that it	can	be	stated
that the first	Respondent was in	custody	and	the	court
can entertain	the Application for	bail.		The	operative

¶56

part of the order passed by the learned Additional

¶57

Sessions Judge reads thus:

¶58

"1. Application is allowed. 2. Applicant Govindprasad Radheylal Shrivastave in C.R.No.73/04 from G.B.C.B.C.I.D. P.Stn. be released on

¶59

... 10 ...

¶60

P.R.Bond of Rs.2 lacs with solvent surety or bank guarantee or cash security for the like amount. 3. Applicant is directed to submit an undertaking to the effect that within one

¶61

month from the date of his release he shall settle the dispute.

¶62

4. Applicant is directed to surrender

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his	passport	in	the	office	of	C.B.C	.B.C.I.D.
in	Mumbai	after	his	arrival	till	the	matter
is	disposed	off	from	the		court	of

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Ld.Additional Chief Metropolitan Magistrate, Mumbai.

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Applicant is further directed to attend court of Ld.Additional Chief

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Metropolitan Magistrate, Mumbai as and when

¶67

directed for early disposal of the case.

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6. Applicant has already submitted his

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letter	of conse	nt for	extradition	to	India.
Concerned	officers	are	directed	to	take
appropriate	action	for	bringing	back	the

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applicant to India at the earliest after his

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... 11 ...

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release on bail".

¶73

The first issue to be considered is whether a

¶74

direction could have been given by the Additional Sessions Judge to the concerned Officers for taking

¶75

appropriate action for bringing back the Applicant to

¶76

India at the earliest after his release on bail.

¶77

11.

¶78

At the outset it must be stated that the

¶79

direction which is given in clause No.6 of the operative part of the order has nothing to do with power under section 439 of the said Code. The learned Additional Sessions Judge does not possess any

¶80

inherent power either under the Code or under any

¶81

other law.

¶82

It will also be necessary to refer to the

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sub-section 2 of the said Act defines "extradition

¶84

offence" which reads thus:

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"(c) "extradition offence" means-

¶86

provided for in the extradition

¶87

... 12 ...

¶88

treaty with that State;

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(ii) in relation to a foreign State other
than a treaty State an offence
punishable with imprisonment for a
term which shall not be less than
one year under the laws of India or

¶90

of a foreign State and includes a

¶91

composite offence,"

¶92

Clause (d) defines "extradition treaty" which reads

¶93

thus:

¶94

"(d)	"extr	adition	treaty"		means	a
treaty[,agreeme	nt	or		arrangement]	made	by
India	with	a	foreign	State rela	ting to	the
extradition	of		fugitive	cri	minals,	and
includes	any		treat	y	[,agreement	or
arrangement]		relat	ing	to the	extradition	of
fugitive	crimi	nals	made	before	the 15th	day

¶95

of August, 1947, which extends to, and is

¶96

binding on, India;"

¶97

Clause (f) which defines "fugitive criminal" reads

¶98

thus:

¶99

"(f) "fugitive criminal" means a person who is accused or convicted of an

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... 13 ...

¶101

extradition		offence	wi	thin the	juri	sdiction
of a	fore	ign State	and	includes	a	person
who,	while	in I	ndia,	conspires,	attempts	to
commit	or	incites	or	participates	as	an

¶102

accompliance in the commission of an extradition offence in a foreign state".

¶103

Clause (j) provides that "treaty State" means a

¶104

foreign State with which an extradition treaty is in operation.

¶105

13.	The first Respondent is not convicted or
accused	of an extradition offe	nce within ju	risdiction
of a	foreign State. There is	no allegation	against
the	first Respondent of his involv	ement in any	manner
with	any extradition offence withi	n jurisdiction o	f a
foreign	State. Therefore, in this	case, the	first
Respondent	is not a fugitive criminal	as is clear	from
aforesaid	definition in section 2(f)	. However,	the
question	which will have to be	considered is	whether
the off	ence alleged against the first	Respondent is	an
extradition	offence. The Applicant	has placed	on
record	a copy of treaty between	the Government	of
India	and Kingdom of Belgium.	Article 1 covers	the
offences	alleged against the	first Re	spondent.
Therefore,	it can be said that	extradition offence	has

¶106

... 14 ...

¶107

been alleged against the first Respondent. Chapter II and chapter III of the said Act of 1962 deal with fugitive criminals. In this case, the relevant

¶108

chapter will be chapter IV. Sections 19 and 20 of the

¶109

said Chapter are relevant which read thus:

¶110

"19. Mode of requisition or form of warrant for the surrender or return to India of accused or convicted person who is in a foreign State.(1) A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be, in any foreign State or [foreign State] to which Chapter III does not apply, may be made by the Central Government-

¶111

(a) to a diplomatic representative of that State or country at Delhi; or

¶112

(b) to the Government of that State or country through the diplomatic representative of India in that State [or country] and if neither of these modes is convenient,

¶113

... 15 ...

¶114

the requisition shall be made in such other mode as is settled by arrangement made by

¶115

the Government of India with that State [or country].

¶116

(2) A warrant issued by a Magistrate in India for the apprehension of any person who is, or is suspected to be, in any [foreign State] to which Chapter III applies shall be

¶117

in such form as may be prescribed.

¶118

Conveyance of accused or convicted
person surrendered or returned.- Any person
accused or convicted of an extradition
offence who is surrendered or returned by a
foreign State may, under the warrant of
arrest for his surrender or return issued in
such State, be brought into India and

¶119

delivered to the proper authority to be

¶120

dealt with according to law".

¶121

Section 25 of the said Act of 1962 reads as under:

¶122

"25. Release of persons arrested on bail.In the case of a person who is a fugivite criminal arrested or detained under

¶123

... 16 ...

¶124

this Act, the provisions of [the Code of Criminal Procedure, 1973], 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

¶125

jurisdiction as a Court of Session under

¶126

that Code."

¶127

Thus, section 25 will have no application in the

¶128

present case as it applies only to a fugitive criminal.

¶129

Perusal of provisions of section 19 shows that

¶130

a req	uisition	for		surrender of	a	person		accused	or
convicted	who is	or		is suspected	to	be,	in	a	foreign
State t	o which	Cha	p	ter III does	not	apply	is	to	be
made	by Cent	ral		Government	either	to	a	d	iplomatic
representative	of	the		said foreign	S	tate at		Delhi	or
Government	of	that		State or		country		through	a
diplomatic	represen	tative		of In	dia	in	that		country.
Section	provides	that		if neit	her	of	the	modes	is
convenient,	the	requ	i	sition shall	be	made		in	such

¶131

... 17 ...

¶132

other	modes as	is	settled by the Government of	India
with	the said	countr	y. Section 20 provides that	any
person	accused	of	extradition offence is surr	endered
or re	turned by	foreign	State may, under the warrant	of
arrest	for his		surrender or return issued in	the
foreign	State,	be	brought to India and delivered	to
the	proper	authority	to be dealt with according	to
law.	Thus,	after	requisition is submitted	under
section	19, it	is	for the concerned country or	State
to	take a	decis	ion to return the person under	the
warrant	of	arrest	for his surrender or his	return
issued	in the	said	country. At this stage it will	be
necessary	to	refer	to Article I of the Agr	eement
between	Government	of	India and the Kingdom	of

¶133

Belgium. The relevant part of the said Article I of

¶134

the Agreement reads thus:

¶135

"In	no	case	can	the	sur	render	be made	unless
the		crime	shall	be	pu	nishable	according	to
the		laws	in	force	in	both	countries	with
regard		to	extraditi	on.	In	no	case, nor	on
any		consi	deration	wha	tever,	shall	the	High
Contrac	ting		Parties		be	bound	to	surrender

¶136

their own subjects, whether by birth or

¶137

naturalization".

¶138

... 18 ...

¶139

Thus,	the	Kingd	om of	Belgi	um	is	under	no obligation	to
surrender		a	person to	In	dia	unless	the	Crime	alleged
is	punis	hable	according	to	laws	in	force	in both	the
countries		with	regard	to	ex	tradition.		Article III	of

¶140

the Agreement is also relevant. Clause 1 of Article

¶141

III reads thus:

¶142

"1.	In t	he case of a person accused -
The	requisitio	n for the surrender shall	be
made	to the	Minister for Foreign Affairs	of
His M	ajesty the	King of the Belgians by	the
Minister	or	other Diplomatic Agent of	His
Britannic	Majesty,	accompanied by a	warrant
of	arrest	or other equivalent	judicial
document	issued	by a Judge or M	agistrate
duly	authorised	to take cognizance of	the
acts	charged	against the accused in	Great
Britain,	toge	ther with duly auth	enticated
depositions	or	statements taken on oath	or
upon	solemn	affirmation before such	Judge
or	Magistrate,	clearly setting forth	the
said	acts,	and containing a description	of
the	person	claimed, and any	other
particulars	which	may serve to	identify
him.	The	Minister for Foreign	Affairs
shall	transmit	the warrant of arrest,	with

¶143

... 19 ...

¶144

the documents thereto annexed, to	the
Minister of Justice, who shall forward	the
same to the proper judicial authority,	in
order that the warrant of arrest may be	put
in course of execution by the Chamber	of
the Council (Chambre du Conseil) of	the
Court of First Instance of the place	of
residence of the accused or of the	place
where he may be found. The foreigner	may
claim to be provisionally set at liberty	in
any case in which a Belgian enjoys	that
right, and under the same conditions.	The
application shall be submitted to	the
Chamber of the Council (Chambre	du
Conseil). The Government will take	the
opinion of the Chamber of Indictments	or
Investigation (Chambre des Mises,	en
Accusation) of the Court of Appeal	within
whose jurisdiction the foreigner shall	have
been arrested. The hearing of the	case
shall be public, unless the f	oreigner
should demand that it should be with	closed
doors. The public authorities and	the
foreigner shall be heard. The latter	may
obtain the assistance of counsel. Within	a
fortnight from the receipt of the do	cuments

¶145

... 20 ...

¶146

they shall be returned, with a reasoned opinion, to the Minister of Justice, who shall decide and may order that the accused be delivered to the person duly authorized

¶147

on the part of the Government of His Britannic Majesty".

¶148

It is obvious that the extradition is not

¶149

mechanica	lly	made	only	on	the ba	sis of re	quisition
coming	from	the	Governm	ent of	India.	The warrant	of
arrest	received	from	Indi	a is	required	to be fo	rwarded
by	the	Minister	of	Justice	of King	dom of Belgium	to
the	proper	Judicial	Au	thority.	It	provides that	the
foreigner	may	claim	to	be	provision	ally set at	liberty
in	any ca	se in	which	a	Belgian	enjoys that right,	and
under	same	conditions	.	Be	fore co	mpletion of p	rocedure

¶150

of extradition, hearing has been contemplated under

¶151

the Agreement.

¶152

16. The material placed before the learned

¶153

Addition	al	Sessions	Judge showed	that the	pr	ocedure
has	been	initiated	in India for	seeking e	xtradition	of
the	first	Respondent	under section 19	of the	said	Act
of	1962.	The	learned Additional	Sessions	Judge	could
not	have	directed	the concerned	officers	to	take
action	for	bringing	back the first	Respondent	to	India

¶154

... 21 ...

¶155

and that also	after his	release	on bail.	After	a
requisition for ext	radition	was	submitted	by	the
Government of India,	it was	for	the authorities	in	the
Kingdom of Belgi	um to	ta	ke appropriate	d	ecision.
Therefore, such a	direction	was	uncalled for.	In	any
event, while exercising	power	under	section 439	of	the

¶156

said Code, the Sessions Court had no jurisdiction to

¶157

issue such a direction.

¶158

Considering the provisions of sections 19 and

¶159

20 of	the	sai	d Act	of		1962	it	is	difficult	to
understand	how		the	first	R	esponde	nt co	uld	have	been
brought	to	Indi	a after	he	wa	s rel	eased	on	bail.	On
plain	reading	of	section	20	of	the	said	Act	of	1962,
it	is obvious		that the	firs	t	Resp	ondent	will	have	to
be	brought	to	India	under		the	warrant	of	arrest	for

¶160

his surrender or return issued in Belgium and he will

¶161

have to be handed over to the proper authority.

¶162

That takes me to consideration of second

¶163

question	whether	bail	could	have be	en granted	to	the
first	Respondent.		The	facts narr	ated above	show	that
on the	basis	of	standi	ng warrant	issued	by	learned
Metropolitan	Magistrate		in	Mumbai,	the	Judge	of
Investigation	at		Brussels	issued	temporary	warrant	of
arrest	after applic	ation	of	mind and	on the	basis	of

¶164

... 22 ...

¶165

the said	temporary	warra	nt, the firs	t Respondent	has
been detain	ed at	Brussels	. Section	439 provides	that
a court	of Sessions	or	High Court	may grant bail	to
any person	accused	of	an offence	and in	custody.
Section 437	of the	Code	grants a	power to the	learned
Magistrate to	release	any	person	accused of	or
suspected of	commission	of	any no	n-bailable offence	on
bail when	he is	arreste	d or detain	ed without	warrant
by an officer	in-charge	of	a police	station or whe	n he
appears or	is brought	bef	ore the cour	t. Power	under
section 439	of the	said	Code can	be exercised in	case
of a p	erson who	is i	n custody.	The learned	counsel
for the	Applicant	has	placed relian	ce on the	decision
of the Ap	ex Court	in	the case of	Sunita Devi	Vs.
State of	Bihar &	Anr.	(2005(1)	Supreme Court	Cases
Page 608).	The	question	before the	Apex Court	was
whether an	Applicant	wh	o applies	for bail	under
section 439	of the	Code	has to be	in custody	for
moving such	application.		The Apex	Court relied	upon
its earlier d	ecision in	the	case of	Niranjan Singh	Vs.
Prabhakar (AIR	1980	Sup	reme Court	Page 785).	In
paragraph N	o.13 of	the	decision, the	Apex Court	held
that unless	a person	is	in custody,	an Application	for
bail under	section	439	of the Code	would not	be
maintainable.	There	fore,	the questio	n is whether	the
first Respon	dent was	in	custody	when the	bail

¶166

... 23 ...

¶167

application and	15	was of	the	moved decision	on of	his the	behalf Apex	. Court	Paragraphs in the	14 case

¶168

of Sunita Devi (supra) are relevant for the said

¶169

purpose which read as under:

¶170

"14. The crucial question is when is
person in custody, within the meaning of
Section 438 of the Code? When he is in
duress either because he is held by the
investigating agency or other police or
allied authority or is under the control of
the court having been remanded by judicial
order, or having offered himself to the
court’s jurisdiction and submitted to its
orders by physical presence. No lexical
dexterity nor precedential profusion is
needed to come to the realistic conclusion
that he who is under the control of the
court or is in the physical hold of an
officer with coercive power is in custody
for the purpose of Section 439. The word is
of elastic semantics but its core meaning is
that the law has taken control of the
person. The equivocatory quibblings and
hide-and-seek niceties sometimes heard in
court that the police have taken a man into

¶171

... 24 ...

¶172

informal		custody	but not	arrested	him,	have
detained	him	for	interrogation	but	not	taken
him	into	formal	custody	and	other	like

¶173

terminological dubieties are unfair evasions

¶174

of the straightforwardness of the law.

¶175

15.	Since the	expression "custody"
though	used in	various provisions of	the
Code,	including	Section 439, has not	been
defined	in the Cod	e, it has to be un	derstood
in	the setting in	which it is used and	the
provisions	contained	in Section 437	which
relate	to jurisd	iction of the Magistrate	to
release	an accus	ed on bail under	certain
circumstan	ces which	can be characterised	as
"in	custody" in	a generic sence.	The
expression	"custody"	as used in section	439,
must	be taken to	be a compendious ex	pression
referring	to the	events on the happening	of
which	the Ma	gistrate can entertain a	bail
petition	of an	accused. Section	437
envisages,	inter	alia, that the M	agistrate
may	release an	accused on bail, if	such
accused	appears	before the Ma	gistrate.
There	cannot be	any doubt that	such
appearance	before	the Magistrate must	be

¶176

... 25 ...

¶177

physical appearance and the consequential surrender to the jurisdiction of the court of the Magistrate ".(Emphasis supplied)

¶178

In another decision of the Apex Court in the

¶179

case of Nirmaljeet Kaur Vs. State of M.P. (2004(7) Supreme Court Cases Page 558) the Apex Court considered the said question. In paragraph Nos.16 and 17 of the said judgment the Apex Court has reiterated the view taken in Sunita Devi’s case.

¶180

20.		The learned	counsel for the first Resp	ondent
relied	upon	the	decisions of the	Apex Court	in	the
case	of	State Vs.	Dawood Ibra	him (1997 Crim	inal	Law
Journal	Page	2989) an	d Smt Maneka	Gandhi Vs.	Union	of
India	(AIR	1978	Supreme Court	Page 597)	.	These
decisions	do	not	deal with the	meaning of	the	word
‘custody’		in section	439. The	counsel appea	ring	for
both	the	parties	have relied	upon dictionary		meaning
of t	he	word ‘c	ustody’. Howe	ver, in view	of	the
aforesaid		decisions	of the Apex	Court laying	down	the

¶181

law on the point, I have not referred to the

¶182

dictionary meaning of the word.

¶183

As held in the decisions of the Apex Court in the case of Sunita Devi (Supra) and Nirmaljeet Kaur

¶184

... 26 ...

¶185

(Supra),	a person can be said to be	in custody	within
meaning	of section 439 of the Code when	he is	in
duress	as he is held by the investig	ating agency	or
other	police or allied authority. He ca	n be said	to
be in	custody when he is under the	control of	the
court	having been remanded by Judicial	Officer.	A
person	can be said to be in custody	where he	offers
himself	to the court’s jurisdiction and	he submits	to
the orders	of the court by his physical	presence.	The
Apex	Court has held that one who is	under the	control
of the	court or one who is in physica	l hold of	an
officer	with coercive power is in cus	tody for	the
purpose	of section 439. The question	which arises	is
whether t	he case of the first Respondent	is covered	by
any of	the aforesaid categories. The	first Res	pondent
is	obviously neither held by the	investigating	agency
which	is the Economic Offences Wing in	this case	nor
is he	under the control of the said age	ncy. He	is
also no	t held in duress by the	police or	allied
authority.	The learned counsel f	or the	first
Respondent	tried to submit that the	authority	at
Brussels	is an allied authority. Ho	wever, the	said
interpretation	cannot be accepted for	the	simple
reason	that the word ‘allied a	uthority’ ob	viously
means	an authority of the nature	of inves	tigating
agency	or the police authority in	India.	The

¶186

... 27 ...

¶187

authority	in	Belgium which		arr	ested the	first
Respondent	on the	basis of	warrant	iss	ued by the	Judge
of	Investigation,	Brussels c	annot	be	termed as	an
allied	authority.	Thus, the	first		Respondent does	not
fall	in this	category. Th	e sec	ond	category is of	a
person	who	is under the	control	of	the court	having
been	remanded	by a judicial	order.		In the	present
case,	the firs	t Respondent	has	never	appeared	before
any	Indian	Court in conne	ction	with	the offence	and
therefore,	he	cannot be said	to	be	under control	of
the	court.	The third cate	gory	will	also have	no
application	because	he has	not	appear	ed before	any

¶188

court in India till today in connection with the F.I.R

¶189

lodged by the Applicant.

¶190

The learned counsel for the first Respondent

¶191

relied	u	pon	a	decision	of	Lahore	High	Court	in	the
case	of	Emperor		Vs.	Karim	bux	Rahamatan	(AI	R 1940	Sind
154)		which	ho	lds that	warr	ant	under s	ection	75 of	the
Code		of C	rim	inal Pro	cedure,	1898	can	be	executed	only
in	British	India.		Under	the	said	Code	of	1973	warrant
of	arrest	issued		under	Chapter	VI	can	be	executed	only
in	Indi	a	in	view	of ex	press	language	of	Section	77.
Merely		because		the	concer	ned	authority		in	Brussels
issued		warrant		against	the	first	Respon	dent	on	the
basis	o	f r	ed	corner	notice	which	was	issued	on	the

¶192

... 28 ...

¶193

basis	of	stand	ing warrant issued	by	th	e	learned
Magistrate,		it	cannot be said	tha	t th	e	first
Respondent		was	in custody within	the	m	eaning	of
section	439	of	the said Code. The	view	taken	by	the
learned	Ad	ditional	Sessions Judge	that		the	first
Respondent	c	an	be treated to	be	in	custody	is
obviously		contrar	y to the aforesaid	decisi	ons o	f	the
Apex	Court	i	n the case of S	unita	Devi(s	upra)	and
Nirmaljit		Kaur(su	pra). It will be	also	necess	ary	to
note	that	in	the Agreement between	the	two		countries
there	is	a	specific provision that	even	after		arrest
in Ki	ngdom	of	Belgium, a person	ca	n b	e	released
temporarily		in	accordance with law	prevai	ling i	n	the
said	coun	try.	The first Respondent	cann	ot be	sa	id to
be in		custody	as he is not under	the	control	of	any
court	in	India.	He is also not	under	control	of	any
investigation		a	gency, police agency	or	allie	d	agency.
No	court	o	r authority in India c	an ha	ve any		control
over	the	firs	t Respondent unless	he is	br	ought	to

¶194

India and placed in the custody of proper authority or

¶195

is produced before appropriate court.

¶196

23.		The object of the	said Act of 196	2 is to	bring
back	a	person	suspected	of	extra	dition	offence	to
India	and	to ensure	that he	is	plac	ed in	the	custody
of a	proper	authority.	The	lear	ned	A.P.P.	has	stated

¶197

... 29 ...

¶198

that	after the first Resp	ondent is	brough	t	to	India,
he	will be at earliest	produced be	fore		the	learned
Additional	Chief Metrop	olitan Mag	istrate,		19th	Court,
Mumbai.	Only after he	is produced	befor	e	the	said
court,	the learned	Magistrate,		if		otherwise
permissible	in law, can	exercise	powers		under	section
437	of the said Code.	The first	Respon	dent	is	not in
custody.	It is also	pertinent to	note	that	a	s of
today	the first Responden	t has not	been		arrested	by

¶199

any authority in India on the basis of F.I.R. lodged

¶200

by the Applicant.

¶201

The conclusion of the aforesaid discussion is

¶202

that	the	learned Additi	onal S	essions	Ju	dge	could	not
have	granted	bail under	section	439	of	the	said	Code
as	the	first Respondent	cannot	be	said	to	be in	the

¶203

custody within the meaning of section 439 of the said

¶204

Code.

¶205

Hence, I pass the following order:

¶206

(i) The impugned Judgment and Order dated 11th August, 2006 is quashed and set aside and Bail

¶207

Application No.1526 of 2006 is dismissed.

¶208

(ii) After the first Respondent is brought to

¶209

... 30 ...

¶210

India, the investigating agency will

¶211

immediately produce the first Respondent before the court of the concerned Magistrate.

¶212

(iii) If the first Respondent thereafter makes an Application for grant of bail before the appropriate court, the concerned court will decide the said Application at the earliest by giving priority.

¶213

(iv) It is made clear that no adjudication is made by this court as regards entitlement of the first Respondent to be enlarged on bail either

¶214

under section 437 or under section 439 of the said Code.

¶215

(v) Application is allowed in above terms.

¶216

JUDGE

Priya Murlidhar Chaini v. Govind Prasad Shriwastav and Ors.

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Priya Murlidhar Chaini v. Govind Prasad Shriwastav and Ors.

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