Petitioner challenged trial in venue never extradited for additional offences under RBI Act. Court held Section 21 of Extradition Act applies allowing trial if offence punishable under law not less than permissible year imprisonment for term exceeding year imprisonment.
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THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
Crl.P.No.5965 of 2007
Date of Order: 17-09-2010
Between:
K.Venkateshwara Ro
..Petitioner and 1. The R.B.I. and another ..Respondents
The Court made the following Order:
THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
Crl.P.No.5965 of 2007
Oral order:
1. This petition under Section 482 of the Criminal Procedure Code (for short “Cr.P.C.”) is to set aside the orders passed in Crl.R.P.No.70 of 2007, dated 17-09-2007 by the Special Judge for Economic Offices-cum-VIII Additional Metropolitan Sessions Judge, Hyderabad dismissing the revision and confirming the order passed by XI Additional Chief Metropolitan Magistrate, Secunderabad in Crl.M.P.No.3077 of 2006 in C.C.No.1089 of 2001, dated 02-05-2007 dismissing the petition filed under Section 245 (2) Cr.P.C. seeking discharge of the petitioner (A2) from the charges under Section 58-B, 58-C of the Reserve Bank of India Act, 1934 (for short “RBI Act”) and Sections 22, 35A r/w Sections 46 and 47 of Banking Regulation Act, 1949.
2. Facts, which give rise to filing this petition, briefly stated as under:
The Krushi Cooperative Urban Bank Limited, to which the petitioner (A2) was the Chairman, after collecting huge deposits from various depositors collapsed. It is alleged that the petitioner being the Chairman of the Bank got transferred the amounts deposited by depositors to his own account and also created fake loan transactions in order to conceal his fraudulent acts. Therefore, cases were registered against Krushi Bank and its Chairman and Directors for violation of the provisions of the Indian Penal Code, 1860 (for short
“IPC”), Andhra Pradesh Protection of Depositors of Financial Establishments Act, 1999 and other allied enactments like RBI Act, 1934 and Banking Regulation Act, 1949.
A Crime No.156/2001 was registered against the petitioner and other Directors for the offences punishable under Sections 406 and 420 IPC by PS Mahankali and subsequently the same was transferred to Central Crime Station, DD, Hyderabad. After due investigation a charge sheet was filed in C.C.No.7 of 2001 before the Metropolitan Sessions Judge, Hyderabad and the same was pending. While so, the Reserve Bank of India through its Assistant General Manager lodged a private complaint in C.C.No.1089 of 2001 before the XI Additional Chief Metropolitan Magistrate, Secunderabad against A1 to A12, in which the petitioner was arrayed as A2, to punish them for violation of the provisions of Sections 46 r/w 22, 35A and 56 of the Banking Regulation Act, 1949 and Sections 58B, 58C and 58E of the RBI Act. As the petitioner (A2) fled away from India and hiding in Thailand, the Government of India sent a request to the Royal Thai Government to arrest the petitioner, detain him and send him back to India for facing the trial of the cases initiated against him. The petitioner was arrested by the Bangkok police on 17-11-2005 in connection with the case pending before the Metropolitan Sessions Judge, Hyderabad in C.C.No.3 of 2001 spit up case from C.C.No.7 of 2001. A competent court in Bangkok passed an extradition order on 26-04-2006, extraditing the petitioner.
3. After recording the evidence of the complainant and before framing the charges in C.C.No.1089 of 2001, the petitioner/accused filed a petition—Crl.M.P.No.3077 of 2006 before the XI Additional Chief Metropolitan Magistrate, Secunderabad under Section 245(2)
Cr.P.C. to discharge him from the charges under Section 58-B of RBI Act and Sections 22, 35A r/w 46 and 47 of Banking Regulation Act, 1949 contending that the petitioner was sent to India to face the prosecution for the offences relating to cheating, fraud punishable under Sections 120-B, 406, 419, 420, 468, 471 and 477-A IPC and under Section 5 of A.P. Protection of Depositors on Finance Establishment Act, 1999 only in the case pending before the Metropolitan Sessions Judge, Hyderabad and he is entitled to discharge.
4. The Reserve Bank of India filed a counter opposing the petition contending that even from the extradition order issued by the Court of Thailand, the accused has no desire to defend his case nor has any evidence taken in connection thereof but it does not speak about the accused giving consent to come to India as claimed by the petitioner and further the extradition order which the petitioner is claiming to be limited only to case in Cr.No.156 of 2001 is not before the Court for scrutiny. Therefore, the petitioner cannot seek discharge without substantiating the case which do not cover extradition order dated 26-04-2006. The learned Magistrate after considering the rival contentions dismissed the M.P.
5. The petitioner who unsuccessfully challenged the dismissal order in revision filed this petition to quash the proceedings contending that under Section 21 of the Extradition Act, 1962 (for short “the Act”) the person concerned/accused cannot be tried for any other crime or offence than those for which the extradition have taken place. The finding recorded by the Court below that the Act does not apply to the petitioner, as there is no extradition treaty between the Indian Government and the Thailand Government, is erroneous. Once the
extradition order specifically says that the petitioner is being extradited to be prosecuted before the Metropolitan Sessions Judge, Hyderabad, Andhra Pradesh under the provisions of IPC and A.P. Protection of Depositors of Financial Establishment Act, 1999, he cannot be tried for any other offence. Therefore, he should be discharged from the case.
6. Sri C.Padmanabha Reddy, learned senior counsel appearing for the petitioner (A2) contended that Section 21 of the Act contemplates trial only in respect of offence extradited and the other offences, which are not mentioned in the extradition order, cannot be proceeded against the petitioner.
In the absence of any interrelated offence under the RBI Act, when the offence under Section 58-B of RBI Act is not lesser offence, the petitioner cannot be tried without any extradition order to that effect. Therefore, he is entitled to be discharged for the offences charged. In support of the said submission, strong reliance is placed on the judgment of the Supreme Court in DAYA SINGH LAHORIA v. UNION OF INDI A[1] .
7. On the other hand, Sri O.Kailashnath Reddy, learned counsel for the 1st respondent/complainant contended that in the absence of any extradition treaty between India and Thailand, the provisions of Section 21 of the Act have no application. Further, the offence in question is lesser one; therefore, there is no bar to proceed against the accused. When the petitioner himself filed a petition to try both the cases together and having submitted the jurisdiction under this Court by making such application, he cannot plea for discharge.
8. In order to appreciate the contentions advanced on either side, it is necessary to notice the relevant statutory provisions bearing
on the question involved.
9. As the entire arguments revolved around interpretation of Section 21 of the Act, which reads in these terms:
"Section 21 - Accused or convicted person surrendered or returned by foreign State not to be tried for certain offences.- Whenever any person accused or convicted of an offence, which, if committed in India would be an extradition offence, is surrendered or returned by a foreign State, such person shall not, until he has been restored or has had an opportunity of returning to that State, be tried in India for an offence other than-
(a) the extradition offence in relation to which he was surrendered or returned; or
(b) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or
(c) the offence in respect of which the foreign State has given its consent. "
10. It is also relevant to notice the words ‘extradition offence’,
‘extradition treaty’ and ‘fugitive criminal’ as defined under Sections 2
(c), 2 (d) and 2 (f) of the Act, which reads thus:
“Section 2(c) ‘extradition offence’ means (i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;
(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 of a foreign State and includes a composite offence.”
Section 2(d) "extradition treaty" means a treaty made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India.”
Section 2(f) "fugitive criminal" means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State.”
11. The Supreme Court in DAYA SINGH LAHORIA’s case
(1 supra) was dealing with the case arising out of Extradition Treaty between the United States and the United Kingdom and Northern Ireland with the Government of Republic of India and specifies the offences for which the accused could be tried held that the provisions of Section 21 places restrictions on the trial of the person extradited and it operates as a bar to the trial of the fugitive criminal for any other offence until the condition of restoration or opportunity to return is satisfied. Under the amended Act of 1993, a fugitive can be tried for any lesser offence, disclosed by the facts proved or even for the offence in respect of which the foreign State has given its consent. It thus, enables to try the fugitive for a lesser offence, without restoring him to the State or for any other offence, if the State concerned gives its consent. In other words, it may be open for our authorities to obtain consent of the foreign State to try the fugitive for any other offence for which the extradition decree might not have mentioned, but without obtaining such consent, it is not possible to try for any other offence, other than the offence for which the extradition decree has been obtained. After referring to the extradition article and the provisions of
the Extradition Act it was held that in view of Section 21 of the Indian Extradition Act, 1962 an extradited fugitive cannot be tried in India for any offence other than the one for which he has been extradited unless he has been restored to or has had an opportunity to return to the State which surrendered him.
12. The Supreme Court further concluded that a fugitive brought into this country under an Extradition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence.
13. Learned senior counsel fairly admitted that there is no extradition treaty between the Indian Government and Thailand Government, but contends that extradition offence in relation to foreign state other than a treaty State is an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign state and enclosed composite offence as defined under Section 2(c).
He further contends that extradition treaty means an agreement or arrangement made by India with the foreign state relating to fugitive criminals. The Indian Government had extradition agreement with the Thailand Government from 1982. Therefore, he cannot be tried for the offence other than those for which he has been extradited in extradition order.
14. The extradition order dated 26-04-2006 discloses that the Indian Government sent an extradition request to the Thailand Government asking for the accused to be sent back to India for prosecution under the Penal Code of India for the offences of:
participating in the commission of crime punishable under Section 120-B, committing a crime against the duties he has been assigned to handle punishable under Section 406, committing a crime against the duties that have been assigned to him by Authorities of the State or by bankers, merchants or designated agents punishable under Section 409, cheating and fraud punishable under Section 419 and 420; forging documents for purpose of cheating and fraud punishable under Section 468, using forged documents punishable under Section 471 and producing fake accounts punishable under Section 477-A IPC and the offences that he has committed are also considered an offence under Section 5 of the Andhra Pradesh Protection of Depositors of Financial Establishments Act B.E.2542 (1999) of the Republic of India. For which the Government of India obtained warrant for his arrest duly issued as evidenced in Exhibits Ror 1 – Ror 3. The extradition order of the competent Court at Bangkok discloses that it could be gathered from her testimony that the accused has been alleged for having committed offences in relation to cheating and fraud as per Sections 120B, 406, 409, 419, 420, 468, 471 and 477-A of the Penal Code of India and Section 5 of the Andhra Pradesh Protection of Depositors of Financial Establishments Act A.D.1999 and the alleged offences are punishable under the Thai law in analogy with the offences punishable under Sections 83, 264, 268, 341,343, 353 and 354 and Section 12(9), 18, 43, and 44 of the Commercial Banking Act B.E.2505 (1962) where such offences according to the Penal Code are liable to a punishment of more than one year imprisonment; not being of political character and not yet precluded by prescription. Hence, they are offences for which the offender is eligible for extradition. In addition thereto, the accused has not given any statement nor cited any evidence in argument of the accusation. The prosecutor’s charge
has sufficient evidence for the accused to be extradited in accordance with the provisions in Article 15 of the Extradition Act B.E.2472 (1929).
15. From the extradition order, as stated above, the punishment prescribed is three years for the offences punishable under Sections 406 and 419 IPC; seven years for the offences punishable under Sections 420, 468 and 477-A IPC and ten years for the offence punishable under Section 409 IPC. Whereas for the offence under Section 58-B and 58-C of RBI Act and for the offences under Sections 22, 35-A r/w Sections 46 and 47 of Banking Regulation Act, 1949 the punishment prescribed is three years.
16. Chapter II of the Act deals with extradition of Fugitive Criminals to Foreign State to which Chapter III does not apply. Whereas Chapter III deals with Return of Fugitive Criminals to Foreign States with Extradition Arrangements; Chapter IV deals with surrender or return of accused or convicted persons from Foreign State. Section 21 of the Act, as referred to above, deals with any person accused or convicted of an offence, if committed in India would be an extradition offence, is surrendered or returned by a foreign State, shall not until he has been restored or has had an opportunity of returning to that State, be tried in India for an offence other than—
(a) the extradition offence to which he was surrendered or returned; or (b) any lesser offence for the purposes of securing his surrender or return other than an offence to which an order for his surrender or return could not be lawfully made.
Whereas extradition offence in relation to 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 of a foreign State.
17. The word ‘extradition treaty’ as defined under Section 2(d) of the Act includes treaty agreement/arrangement made by India with a foreign State relating to the extradition of fugitive criminals. The word ‘extradition offence’ as defined under Section 2(c) of the Act means 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 of a foreign State and includes a composite offence. The accused who is surrendered or returned by the foreign state can be tried in India for a lesser offence where the offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made.
18. It is not disputed that the petitioner was surrendered to try for extradition offences which are punishable with imprisonment for a term of three years to nine years. Section 21 (b) is an exception to the prohibition contained under Section 21 where the fugitive criminal can be tried for a lesser offence by the facts proved for the purpose he was secured by extradition order, since the offence for which he was tried other than the offence for which the extradition order has been obtained is not lesser one year and more than the punishment prescribed for the offence he was extradited. There is no bar for the criminal court to try the petitioner for the offences initiated against him which are lesser than the one for which he was extradited.
19. In view of the same, the order passed by the XI Additional Chief Metropolitan Magistrate, Secunderabad in Crl.M.P.No.3077 of 2006 in C.C.No.1089 of 2001 as confirmed by the VIII Additional Metropolitan Sessions Judge, Hyderabad in Crl.R.P.No.70 of 2007 do
not suffer from any manifest illegality warranting interference by this Court in exercise of jurisdiction under Section 482 Cr.P.C. The Criminal Petition fails and it is accordingly dismissed.
_________________ A.GOPAL REDDY, J.
17-09-2010 Murthy
[1] (2001) 4 SCC 516 = 2001 Crl.L.J. 2188 = AIR 2001 SC 1716
2 issues framed by the court
Whether provisions of Section 21 of the Extradition Act 1962 bar trial of a fugitive returned by a foreign state for offences not mentioned in the extradition order.
Whether the Extradition Act applies when there is no formal extradition treaty but an agreement exists between India and Thailand.
Colour shows how this judgement treated each authority
DAYA SINGH LAHORIA v. UNION OF INDIARelied on¶38
(2001) 4 SCC 516 = 2001 Crl.L.J. 2188 = AIR 2001 SC 1716 · Who else cites this
Re: Extradition TreatyReferred¶38
Extradition Treaty between the United States and the United Kingdom and Northern Ireland with the Government of Republic of India
6 provisions across 4 enactments
K. Venkateshwara Rao
The Reserve Bank of India
The State of Andhra Pradesh
A. GOPAL REDDY
As recorded by the court registry
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