Gurdev Singh Dhnoay vs State

V.K. Shali, J.—This is a petition for grant of bail by the petitioner who is in custody since 29.3.2011. The petitioner is purported to have been arrested vide DD No. 65B u/s 41.1(g) of the Cr.P.C. registered by P.S. IGI Airport, Delhi. The allegations against the petitioner are that he was arrested pursuant to a Red Corner Notice purported to have been issued by Interpol in November, 2010 for criminal proceedings pertaining to year 2003 in US Court.

It is alleged that the petitioner had come to India to see his ailing mother and immediately on arrival, he was arrested. Pursuant to the arrest of the petitioner, he was produced before the Court of learned ACMM on 29.3.2011 at Dwarka, whereupon he was sent to judicial custody. On 5.4.2011, the petitioner moved a bail application before the Court of learned ACMM, which was rejected on 20.4.2011. Feeling aggrieved by the said rejection order, the petitioner filed a fresh bail application on 23.4.2011, before the learned ASJ, Dwarka Courts, which came up for hearing on the same date. He challenged the procedure which was sought to be adopted by the respondents in arresting the petitioner for extradition.

On 26.4.2011, the respondent apparently filed an application before the designated Court of learned ACMM seeking production warrants of the present petitioner for 10.5.2011. On 27.4.2011, during the hearing of the bail application before the learned ASJ, Dwarka Courts, the respondent informed the petitioner as well as the Court that the Government of India had instituted extradition Court by way of nominating learned ACMM, Patiala House Court for the purpose of conducting an inquiry into the matter of the petitioner as to whether he is to be put to trial or not.

The ASJ on account of this subsequent developments, dismissed the application of the petitioner as withdrawn, with the liberty to file appropriate application before the designated Court of learned ACMM, Patiala House Courts, who was conducting the extradition proceedings. On 21.5.2011, the petitioner again filed a fresh bail application before the designated Court of learned ACMM, however, the said application was dismissed on the ground that as the documents have been received by the Government of India from the Requesting State within 60 days of the arrest of the petitioner, therefore, the bail could not be granted.

On 22.6.2011, the Ministry of External Affairs, Govt. of India issued a Gazette notification nominating the learned ACMM as Extradition Court for the purpose of holding an inquiry into the matter.

It has been contended by the learned counsel for the petitioner that presently the inquiry is being conducted by the learned ACMM, which is likely to take some time and as the petitioner has been languishing in custody for the last one year, he may be given the benefit of Section 25 of The Extradition Act, 1962 by enlarging him on bail.

This petition came up for hearing for the first time on 17.10.2011. Mr. Navin Sharma, APP was present on behalf of the respondents in response to an advance copy having been served and accepted notice on behalf of the State of Delhi and sought time to file reply. A notice was directed to be issued to the Standing Counsel, Government of India, returnable for 16.12.2011.

The respondents were duty served and they put in appearance before the Court on 16.12.2011 and time was given to them to file the reply and the matter was adjourned to 16.2.2012.

No reply is placed on record although Mr. Jatan Singh, the Standing counsel for UOI has stated that the reply has been filed 5 days back however, no number of filing is given. It was the responsibility of the respondent to ensure that the reply comes on record when more than two months time was given.

I have heard the learned counsel for the petitioner as well as the learned Standing counsel for the CBI.

The learned counsel for the respondent has vehemently contested the bail application of the petitioner on the ground that the petitioner was arrested in pursuance to the Red Corner Notice on 28.3.2011, a request was received by the Ministry of External Affairs from the Govt. of United States of America for extradition of the petitioner as he was required to stand trial on serious charges of embezzlement. The details of charges are mentioned in the said request letter. It was contended by the learned Standing counsel for the UOI that the petitioner in pursuance to the allegations of fraud had put in appearance before the Court of Extradition and thereafter, absented himself. It is stated that the magnitude of the crime of the petitioner is very large inasmuch as he had stolen personal ATM banking account information of approximately 277 persons and then conducted fraudulent bank withdrawal without their knowledge or authorization to the extent of $ 425000 USD. It is also contended by him that the petitioner is presently facing an inquiry under the Extradition Act before the learned ACMM and therefore, at best the Court can issue a direction to the said Court to conclude the inquiry, as expeditiously as possible.

The learned Standing Counsel has contended that the petitioner was arrested by the local police in pursuance to the provisions of Section 41.1 (g) Cr.P.C. which enables the police to arrest any person who is purported to have been involved in a reasonable complaint or a credible information or a reasonable suspicion that he has committed an offence at any place outside India which, if committed in India, would be a punishable offence and for which he can been expedited. It is contended that the arrest of the petitioner cannot be faulted.

The learned counsel has also placed reliance on case tided Ram K. Mahbubani Vs. Union of India (UOI) and Another, , decided on 12.9.2008 by the Bench of this Court and Salwant Singh Sandhu Vs. State of Delhi and Others, decided on 23.4.2001.

The learned counsel for the petitioner as against this, has stated that he may be released on bail as he is presently languishing in custody and the inquiry is likely to take some time. It has also been contended that at the time of his arrest, there has been a violation of the constitutional right as well as the guidelines laid down by the Apex Court in D.K. Basu Vs. State of West Bengal, inasmuch as the petitioner was not communicated the grounds of arrest.

On being asked, the learned counsel for the respondents was not able to show any document which would satisfy the Court that the provisions of Article 22(1) wherein the arrestee is to be communicated the grounds of arrest have been communicated to the petitioner. Article 22(1) has also been reiterated by the Supreme Court in D.K. Basu''s case (supra), which is one of the important milestones of criminal justice system. This judgment also lays down that the arresting officer must bear his name plate or at least disclose his name, the grounds of arrest should be communicated, and the relative or a friend of the arrestee be informed. The direction of D. K. Basu''s Case (Supra) have been observed more in breach than in compliance. As a matter of fact, in D.K. Basu''s case, the Court has not only frown upon violation of the constitutional rights of the petitioner but has also said that it amounts to violation of the Court order which will entails initiation of contempt proceedings against the arrestee officer.

Be that as it may, the petitioner is only praying for bail as the inquiry is likely to take some time. I am inclined to admit the petitioner to bail inasmuch as the petitioner at the time of arrest was not communicated the grounds of his arrest and the request of the requesting State for extradition had been received much later than the date of his arrest.

So far as the two judgments which have been relied upon by the learned counsel for the respondents are concerned, they are not applicable to the facts of the present case for the simple reason that in Mehbubani''s case (supra) the question which was involved was the illegal detention of the petitioner and the grant of a writ of Heabea Corpus while as in the present petition, the petitioner is only praying for grant of bail.

Similarly, so far as the other judgment in Salwant Singh Sandhu''s case (supra) is concerned, the said judgment was sought to be relied upon by the learned counsel in order to justify the arrest of the petitioner but the same is not applicable to the facts of the present case on the ground that in that case, warrants were received from a competent Court in Singapore prior to the date of the arrest of the petitioner while as, in the instant case on 28.3.2009, no doubt, the petitioner was arrested in pursuance to the Interpol notice but then he ought to have been communicated the ground of his arrest, while as the request for his extradition had been received by the Ministry only on 31.3.2003 that is much later than the date of his arrest. For more than 7 years, there was violation of not only the constitutional right guaranteed to the petitioner under Article 22(1) of the Constitution but also by virtue of the judgment of the Apex Court.

In my considered opinion merely because presently inquiry is being held or that a request was subsequently, thereafter, received would not legalize the illegal detention of the petitioner.

In view thereof, I am inclined to admit the petitioner on bail during the pendency of the inquiry. Accordingly, the petitioner shall be released on bail by the learned ACMM on furnishing a personal bond in the sum of Rs. 10,00,000/- with two sureties of the like amount to the satisfaction of the learned ACMM. The learned ACMM is directed that the persons who stood sureties should not only have fixed place of residence but must also own immovable property in Delhi.

The petitioner on being released shall not leave the National Capital Territory Region of Delhi without the permission of the Court and shall attend the inquiry proceedings without fail in case he has to leave National Capital Territory Region of Delhi, appropriate application be filed and permission be obtained from the Court of the learned ACMM; the petitioner shall surrender his passport, if not already done.

With these directions, the petition is disposed of. DASTI.