Sh. George Kutty Kuncheria vs The State and another

R.L. Gupta, J.—This petition u/s 439 of the Code of Criminal Procedure read with Section 25 of the Extradition Act, 1962 has been filed on behalf of the petitioner for his release on bail till the conclusion of the enquiry pending against him in the court of learned Addl. Chief Metropolitan Magistrate, New Delhi on the basis of requisition received from the Embassy of the United States of America for the extradition of the petitioner.

The brief facts are that the petitioner was working as a Manager in the Banker''s Acceptance department of the Chase Manhattan Bank in New York from 1980 to 1985. He later on resigned from his assignment and came back to India. He was arrested from his residence at Kerala on 12-4-1989 in pursuance to a warrant of arrest issued by learned Addl. Chief Metropolitan Magistrate, New Delhi and taken to police station Ernakulam (Kerala) and produced before Chief Judicial Magistrate there who remanded him to police custody with direction to produce him before Sh. Bharat Bhushan, Addl. Chief Metropolitan Magistrate, New Delhi at the earliest.

The allegations leading to the arrest of the petitioner are that while in the service of the Chase Manhattan Bank as Manager he defrauded and embezzled money of the Bank by preparing forged Banker''s Acceptance which were later on dishonoured. It is further alleged that on the basis of the forged banker''s acceptance, the money was transferred to U.A.E. and the same was withdrawn by the friends of the petitioner and ultimately paid to him. On the basis of affidavits sworn by Dr. Joseph Verghese, Mr. Robert J. Crammer, Mr. Joseph A. Neilson, Mr. Fulbie Martinoloch, Mr. Ransfor S. Adzadi and Ms. Elaine G. Kubel, the U.S. Govt. sought his extradition.

I have heard Mr. D. C. Mathur, learned counsel for the petitioner and Sh. V. P. Singh, learned counsel for the respondents. Main arguments of the learned counsel for the petitioner are (a) that the enquiry proceedings for the extradition of the petitioner having not been completed within a period of 2 months of his arrest, the petitioner was entitled to be set at liberty forthwith and (b) that the bail application was to be considered in the light of the provisions contained in the Code of Criminal Procedure for bail and since the offences in USA were not punishable for more than 5 years or fine or both, the petitioner was entitled to be released on bail as a matter of right under the Indian law.

So far as the first argument is concerned, there was a Treaty between the United States and the United Kingdom on December 22, 1931 which was made applicable to India from March 9, 1942 in accordance with Article 14 of the Treaty. Article 11 of the Treaty provides that if sufficient evidence for the extradition is not produced within two months from the date of the apprehension of the fugitive, or within such further time as the High Contracting Party applied to, or the proper tribunal of such High Contracting Party, shall direct the fugitive shall be set at liberty. The Extradition Act 1962 (Act 34 of 1962) came into effect with effect from 5-1-1963. u/s 3(1) the Central Govt. has power by issuing a Notified order to apply the provisions of the Act other than Chapter III to such foreign, State or part thereof, to such Commonwealth country or part thereof to which Chapter III does not apply by Sub-sec. (2) of Section 3 the Central Govt. is empowered either by the same Notified order referred above or any subsequent notified order to restrict such application to fugitive criminals found or suspected to be, in such part of India as may be specified in the order. Under Sub-section (3) of Section 3, where the notified order relates to a treaty State it shall set out in full the extradition treaty with that State. Acting under the aforesaid powers the Central Govt. issued orders dated 1-4-1966 GSR 493 in the Gazette of India, Extra-ordinary recognising the application of the Extradition Treaty of December 22, 1931 between USA, Great Britain and Northern Ireland. The Central Govt. also directed that the provisions of the said Act, other than Chapter III thereof, shall apply to USA with effect from 1-4-1966. Therefore, it is clear that the Govt. of India substituted the treaty arrangements with the United States of America by extending the provisions of the Extradition Act, 1962 (34 of 1962). However, the main question which will have to be decided in this application is as to whether the delay in the disposal of the Extradition proceedings before Addl. Chief Metropolitan Magistrate, New Delhi can be attributed to the respondent. In my opinion the record of the court of Addl. Chief Metropolitan Magistrate does not justify that conclusion. The petitioner was produced before him on 19-4-1989. Counsel for the respondent on that date made a request that as he had been engaged only that day by the Union of India, he was not prepared with the full facts and so requested for an adjournment. The request was opposed by the counsel for the petitioner and he insisted for the disposal of the bail application. In view of this insistence of the petitioner''s counsel arguments were heard in part that day and since the court time was over the matter was adjourned to the next date i.e. 20-4-89. On 20-4-89 arguments on the bail application were concluded, and it was rejected vide order dated 22-4-1989. The case was then adjourned to 24-4-89. On 24-4-89 the matter was adjourned to 26-4-89 for further proceedings so as to initiate proceedings in the enquiry as ordered by the Central Govt. under the Extradition Act. On 26-4-89 petitioner''s counsel made an application for supply of copies of the documents before proceeding further with the enquiry. The enquiry was, Therefore, adjourned to 3-5-89. On 3-5-89 reply to the application was filed. Copies of the various documents relied upon were also supplied to counsel for the petitioner. Counsel for the petitioner requested an adjournment to ensure whether all the copies had been supplied. Matter was then adjourned to 9-5-89. The Presiding Officer was on leave on that day and so it was adjourned to 12-5-89. On 12-5-89 petitioner''s counsel requested a date for filing a rejoinder to the reply of the Union of India. The matter was adjourned to 17-5-89. On that date petitioner''s counsel stated that he did not want to file any rejoinder and rather moved another bail application which was fixed for reply and arguments on 18-5-89. On 18-5-89 and 19-5-89 the Presiding Officer was on leave. On 22-5-89 arguments were heard in part and the matter was adjourned to 23-5-89. On this date petitioner''s counsel did not appear and having waited for him up to 3.50 p.m., the case was adjourned to 25-5-89. However, it appears that at 4.10 p.m., same day counsel for the petitioner appeared and requested the pre-pavement of the date to 24-5-89 and also undertake to inform change of the date to the opposite counsel. This request was allowed. The arguments were then heard on 24-5-89 and 25-5-89. On 26-5-89 the case was adjourned at the request of petitioner''s counsel to 29-5-89. The arguments were then concluded in the next three dates i.e. 30-5-89, 31-5-89 and 1-6-89. Ultimately the second bail application was dismissed vide order dated 12-6-89. The matter was then fixed for directions on 26-6-89. On that date at the request of counsel for Union of India case was adjourned for recording of evidence on behalf of Union of India to 7-7-89. On 7-7-89 the witnesses were present. But because of the non-availability of the petitioner''s counsel, the matter was adjourned to 26-7-89. Such a long date was given at the request of proxy counsel for the petitioner that a writ petition filed by the petitioner was to be decided on 25-7-89 and he would like to proceed with enquiry after the result of the writ petition.

Therefore, it will be seen from the above facts that no progress could be made in the enquiry because the petitioner first moved two bail applications before the court of Addl. Chief Metropolitan Magistrate and insisted for their disposal before commencement of the enquiry. Thereafter he filed the present bail application and also another writ petition in the High Court. In my opinion the Union of India in these circumstances cannot be blamed at all for any delay. It was the petitioner who had been insisting that his bail applications be disposed off first and only thereafter he will participate in the proceedings for purposes of his extradition. The argument of the learned counsel that the petitioner can indulge in all such tactics in order to get any benefit out of delay does not impress me at all. It will be acting against common sense if any premium is put upon such deliberate dilatory acts of a person by which he first delays the proceedings and thereafter tries to claim benefit of such delay. Therefore, the petitioner cannot get any benefit of delay by discharge under Article 11 of the Treaty, even if it is assumed that it is still applicable.

Now coming to the second submission of the learned counsel for the petitioner, it is provided u/s 25 of the Act that in the case of a fugitive criminal arrested or detained under this Act, the provisions of the Code of Criminal Procedure 1898 relating to bail shall apply in the same manner as they would apply if such criminal was 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 the Court of Session under that Code. Therefore, it is clear from the above provision that in matters of bail the Magistrate has the same powers or jurisdiction as the court of Session. In that case I am of the view that such court while considering such application shall have to see as to what sentence can be imposed upon such a person after his conviction according to the Indian laws. The offences with which the petitioner is charged in USA are equivalent to the offences covered by Sections 409, 467, 429, 424 and 411 of the IPC. The offences under Sections 409 and 467 are punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and also to a sentence of fine. Therefore, it is not sufficient to say that since the offences are punishable according to the American laws up to 5 years imprisonment or fine or both, the petitioner is entitled to bail as a matter of right. If the application for bail is to be considered according to the Indian laws, the court will certainly be entitled to see as to what sentence can be inflicted upon such a person found guilty of such an offence under the Indian law. Therefore, I am of the view that the petitioner is not entitled to be admitted to bail as a matter of right since some of the offences with which he is charged are punishable in India up to life imprisonment.

Now let us see whether in the circumstances the petitioner should be admitted to bail or not. It is to be seen that the offences with which the petitioner stands charged in USA are very serious. He is alleged to have embezzled and defrauded Chase Manhattan Bank for more than US $ 1.5 million which in Indian Currency would come to approximately Rs. 25 crores. There is also an attempt on the part of the petitioner to delay the extradition proceedings as long as possible. If admitted to bail, he is likely to flee from justice and may take refuge in some country with which the Govt. of USA may not have any reciprocal arrangement for extradition. Moreover, if the Magistrate comes to the conclusion that the petitioner should be extradited to USA then u/s 7(4) of the Extradition Act, he has to commit him to prison to await orders of the Central Govt. Learned counsel for the Union of India has stated at the bar that only one or two witnesses are likely to be examined in these proceedings before the court of Addl. Chief Metropolitan Magistrate, New Delhi and, Therefore, the enquiry proceedings shall be completed within a very short span of time. The record also bears testimony to the fact that such evidence was produced before the ACMM which could not be recorded on account of fault attributable to the petitioner.

Taking all the circumstances into consideration, I am, Therefore, of the view that it will neither be in the interest of justice nor the State to grant bail to the petitioner. This petition is, Therefore, dismissed. Let the records of the lower court be forwarded at the earliest. The lower court is directed to complete the proceedings at the earliest by fixing it on day to day basis.

Petition dismissed.