Darshan Kumar vs State
1996 Latest Caselaw 100 Del

JUDGMENT

N.G. Nandi, J.

(1) In this petition u/Section 482, Criminal Procedure Code read with Article 227 of the Constitution of India, the petitioner prays for his discharge as also the direction for release of the goods and belongings of the petitioner taken into possession by the of Police Station Darya Ganj, New Delhi, prayed more particularly in the prayer clause of the petition.

(2) It is the say of the petitioner that the petitioner is a Nri and is having permanent abode in Jallandhar (Punjab); that the petitioner had gone to Canada where the settled his business and residence; that the petitioner had come to India to meet his family members after a long time and particularly as his mother had expired; that while the petitioner had come to India, his wife Smt. Bimla Batra had lodged some complaint in Canada persuant to which arrest warrants were issued against the petitioner and in execution of the warrants of arrest issued by the Canadian Government, the petitioner was arrested in Delhi by P.S. Darya Ganj on 6.4.96 u/Section 41(l)(g) of Criminal Procedure Code and since then the petitioner is in judicial custody; that the detention of the petitioner is totally unlawful, unconstitutional and illegal; that the petitioner is being deprived of his fundamental rights of doing his business and to lead his life permanently; that as per the Extradition Treaty, the detention of the petitioner is invalid and cannot be prolonged any more.

(3) It is submitted by Mr. K.K. Sharma, learned Counsel for the petitioner that Chapter-111 of the Extradition Act, 1962 is applicable and not Chapter Ii of the said Act; that the three notifications under the said Act do not refer to Canada; that the trial of the petitioner would be in Canada. As against this, it is submitted by Mr. A.K. Vali, learned Counsel for the respondent that this Court can exercise the powers only u /Section 24 and that too after committal of the petitioner to the prison under Section 7(4) of the Act.

(4) Chapter Ii of the Act deals with the extradition of fugitive criminals to foreign State and to Commonwealth countries to which Chapter Iii does not apply whereas Chapter-111 of the Act deals with the return of the fugitive criminals to Commonwealth Countries with extradition arrangements. Section 12 deals with the application of Chapter III. Sub-section (1) thereof provides that "this chapter shall apply only to any such Commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem expedient to the Central Government to apply the same." Notifications Gsr 433(E), Gsr 434(E) and Gsr 38(E) make the Act other than Chapter Iii applicable to Papua-New Guinea w.e.f. 1.9.78, to Sri Lanka w.e.f. 1.9.78 and to Fiji w.e.f. 1.2.79 respectively. The conjoint reading of Chapter Iii (Section 12) and the Notifications referred to above suggests Chapter Ii of the said Act to be applicable to the present case and not Chapter Iii, as sought to be contended by the petitioner.

(5) Section 4 deals with the requisition for surrender. Section 5 deals with order of Magisterial inquiry. Section 6 deals with the issue of warrant for arrest and Section 7 deals with procedure before the Magistrate. Sub-section (4) of Section 7 provides that "if the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State of Common wealth country, he may commit the fugitive criminal to prison to await the orders of the Central Government and shall report the result of his inquiry to the Central Government, and shall forward together with such report, and written statement which the gugitive criminal may desire to submit for the consideration of the Central Government". Section 24 deals with the discharge of person apprehended if not surrendered or returned within two months. It provides that "if a fugitive criminal who, in pursuance of this Act, has been committed to prison to await his surrender or return to any foreign State or Commonwealth county is not conveyed out of India within two months after such committal, the High Court upon application made to it by or on behalf of the fugitive criminal and upon proof that reasonable notice of the intention to make such application has been given to the Central Government may order such prisoner to be discharged unless sufficient cause is shown to the contrary." It is suggested from the order sheet of this case that under Section 5 of the Act, the Central Government has appointed the Magistrate to enquire into the alleged offence and that the said enquiry is pending before the Magistrate appointed u/ Section 5 of the Act.

(6) As pointed out above. Sub-section (4) of Section 7 contemplates the report regarding the committal of the fugitive criminal to prison to await the orders of the Central Government. Section 24 would come into play only after the report under Section 7 is submitted to the Central Government by the Magistrate, appointed u/Section 5 of the Act. In my opinion, the powers which this Court can exercise would be u /Section 24 of the Act and stage of exercising powers u /Section 24 would come after the report under Sub-section (4) of Section 7 of the Act is submitted to the Central Government. In the instant case, the report contemplated under Subsection (4) of Section 7 is not submitted to the Central Government by the Magistrate appointed u/Section 5 of the Act and conducting the enquiry u/Section 7 of the Act.

(7) In the above view of the matter, the petitioner would not be entitled to the relief claimed in this petition and the petition is liable to be dismissed.

(8) In the result, the petition fails.