Ottavio Quattrocchi vs Central Bureau Of Investigation
1998 Latest Caselaw 626 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioner, who is an Italian citizen who had been working as Regional Director of M/s. Sham Progetti in India and is presently residing and conducting business at Kuala Lumpur (Malaysia), filed this petition on 24.3.1998 under Article 226 read with Article 227 of the Constitution of India and Section 482 of the Criminal Procedure Code (hereinafter referred to as "the Code") praying for setting aside order the (Annexure-B) passed on 6.2.1997 by Shri Ajit Bharioke, Special judge, Tis Hazari, Delhi directing issuance of non-bailable warrants of the petitioner's arrest in connection with RC 1(A)/90-ACU-IV SPC, C.B.I., New Delhi on allowing the application (Annexure-A) moved by the respondent.

2. The respondent in its application prayed for issuance of non-bailable warrants of the petitioner's arrest, alleging that the aforementioned case (RC1(A)/ 90-ACU-IV SPE, C.B.I. New Delhi) was registered on 22.1.1990 on the basis of sources, certain facts and circumstances that became available, media reports, report of the Swedish National Audit Bureau, certain facts contained in the report of the Joint Parliamentary Committee and the report of Comptroller and Auditor General of India. It was alleged therein that during 1982-87 certain public servants entered into a criminal conspiracy with certain private persons/others, in India and abroad and in pursuance thereof committed offences of bribery, cheating, swindling and forgery, in respect of a contract dated 24.3.1986, entered into between Government of India and AB Bofors of Sweden, for supply of guns, towed vehicles and ammunition by AB Bofors to Government of India. A percentage of the said amount of contract was remitted by Bofors in a clandestine manner to certain Public Bank accounts in Switzerland, as illegal gratification, for the benefit of certain public servants of Government of India and their nominees. The Government of India had decided and communicated to prospective bidders that there would be no agent or middlemen in the deal.

3. The application alleged that the investigation had revealed that AB Bofors had obtained the contract pursuant to a criminal conspiracy with certain public servants, who were responsible for decision making process even though the gun system offered by them was inferior to other available alternatives. A request was made to further investigate into the matter to Swiss authorities in February, 1990 through Letter Rogatory issued by Court of Special Judge, Delhi, for ascertaining the details of payments made by M/s. AB Bofors to M/s. AE Services. The application further alleged that the investigation conducted so far had revealed that in spite of express policy of Government of India M/s. AB Bofors, in conspiracy with the petitioner and others, appointed M/s. AE Services, U.K. as one of their agents through agreement dated 15.11.1985 to secure the contract. The petitioner was found instrumental in execution of contract with AB Bofors in November, 1985. AB Bofors were paid an amount equivalent to US $ 7,343,941.98 and the same was credited on 8.9.1986 in their US $ account, opened ostensibly for this purpose. In part execution of the Letter Rogatory, the Swiss authorities had made available copies of certain documents, duly authenticated, which revealed that the amount credited to M/s. AE Services was laundered further. After an interval of eight days only, an amount of US $ 7,123,900.00 was transferred in two instalments of US # 7,00,000.00 and US $ 123,900.00 on 16.9.1986 and 29.9.1986 respectively to an account of M/s. Colbar Investment Ltd. (Inc.) in Union Bank of Switzerland, Geneva. This account was authorised to be operated and controlled by the petitioner and his wife. At the relevant time, the petitioner was employed with M/s. Sham Progetti and was stationed at New Delhi. In the relevant Bank documents, the petitioner gave a non-existing address of Delhi. The application further alleged that the aforementioned amount was again transferred on the petitioner's instructions to the account of M/s. Wetelsen Overseas SA of Panama on 25.7.1988 in the same Bank. This company was floated in Panama on 6.8.1987and was dissolved on 7.8.1990, indicating that this was floated only to receive this money and to be used as a conduit for further illegal payments through the Bank accounts, which could be operated and controlled by the petitioner and his wife individually. While Letter Rogatory was under process of execution, US$ 200,000.00 were again transferred from the account of M/s. Wetelsen Overseas SA in UBS Geneva to Inter Investment Development Company for the benefit of Ansbbacher Ltd. St. Peter Port Guernsey on 21.5.1990. The application further says that efforts are on to trace the further proceeds of the fraudulent transaction spread across several countries. The investigation conducted so far thus prim a facie revealed that the entire transaction of payment by AB Bofors to M/s. AE Services and other was intended to masquerade the ill-gotten payment/commission/bribe and thus the Government of India was defrauded and put to loss. The investigation had revealed that the petitioner, the holder of Italian Passport was in India from 1967 onwards and left India abruptly only in July, 1993, after revelation of his name, as one of the appellants before the Swiss Courts. The investigation prima facie reveals that the petitioner was the recipient of the fruits of frauds committed in the Bofors gun deal, which he used for himself and on behalf of certain public servants. Therefore, he was required to be arrested and interrogated for expeditious investigation and the case and to reveal the entire truth.

4. The respondent made available to the Special judge the file of investigation. After going through the record, the Special Judge recorded his satisfaction that there was a prima facie case to show that the petitioner was recipient of 7,123 million US $ as kick back, which amount was subsequently transferred to other Bank accounts, which in his opinion raised a strong suspicion of his involvement in the crime. Accordingly non-bailable warrants were directed to be issued. The case was adjourned to 20.2.1997 for report

5. The petitioner alleged that he is being falsely involved in the case as being one of the persons, who received commission from Bofors. According to him this fact stands clearly belied by the documents received during the course of investigation as also from the Swiss Government. There has been no communication even between Bofors and the petitioner. According to the petitioner, he is not named in the F.I.R. as an offender, nor has he committed any offence. The petitioner alleged that the application filed by the respondent nowhere disclosed as to what offence (he petitioner bad committed. The petitioner was not a public servant and as such no provision of the Prevention of Corruption Act applies qua him. No offence was stated to be committed by the petitioner under the Indian Penal Code. The facts, as disclosed in the application, clearly show that movement of money, if any, had been outside the Indian territory. Payment of any commission by Bofors to any one would only be violation of a condition of contract, breach of which would not entail criminal action much less against the petitioner, who is not even named in the F.I.R. as the recipient of the alleged payment. The order directing issuance of non-bailable warrants was clearly in violation of statutory provisions of law relating to the issuance of non-bailable warrants of arrest of a person and thus was not sustainable in law,

6. The petitioner further alleged that warrant of arrest, whether bailable or non-bailable, can be issued for securing the attendance of an accused before the Court only. The only provision of law apparently that would apply was Section 73 of the Code of Criminal Procedure. In the application moved by the respondent, no provision of law was mentioned. Non-bailable warrants could be issued for the arrest of a person under Section 73 of the Code, if the said person (a) is an escaped convict; or (b) is a proclaimed offender; or (c) is a person accused of a non-bailable offence and is evading arrest. The petitioner alleged that he does not fall under any of the three categories. Team of C.B.I. Officers had in fact taken the warrants of arrest to Malaysia. The same was returned back unexecuted by police agencies at Malaysia. At the behest of the respondent, red alert had been issued against the petitioner by the Interpol, which had not been removed despite the return of the warrants unexecuted from Malaysia, on the ground of insufficient incriminating material. Thus according to the petitioner, the act of procuring a Red Alert from Interpol was illegal. The same had no sanction in the eyes of law. On account of Red Alert, the petitioner was facing difficulty, affecting his right to freely move about in connection with his business. The petitioner also questioned the legality of issuance of warrants and passing of the impugned order, on the ground that although eight years had lapsed, since the registration of the F.I.R. and during investigation of the said case nothing concrete seems to have been brought out and even no charge sheet had so far been filed. He was being falsely involved in the case. The involvement was belied by documents received during the course of investigation.

7. A show cause notice was directed to be issued to the respondent, who filed reply on the affidavit of Shri Keshav Mishra, Dy. Superintendent of Police, Central Bureau of Investigation, Special Police Establishment, Special Investigation Group, New Delhi being the Investigation Officer. A preliminary objection has been raised in reply to the averments made by the petitioner in para 6 of his petition, which according to the respondent appears to be the foundation of the petitioner's case. It is stated that averments made in para 6 are not only false but also untrue to the petitioner's knowledge. Thus the petitioner has not come to the Court with clean hands and has tried to mislead this Court for the purpose of obtaining a relief, which disentitles him to any discretionary relief in his favour, According to me respondent the documents received during the course of investigation would show that each part of the statement made in para 6 of the petition is false,

8. On merits, the reply states that the investigation carried out had disclosed that Government of India had during negotiations specifically informed Mr. Martin Ardbo, the then President of M/s. AB Bofors, amongst others that no agents were to be employed in the negotiations for purchase of guns and in May, 1985 the then defense Secretary Shri S.K. Bhatnagar had specifically conveyed to the President of AB Bofors and other bidders for the 155 mm Howitzers guns that in no circumstance can an agent be employed and if an agent had been employed, the commission payable would have to be reduced from the price. Mr. Ardbo in his letter dated 10.3.1986 addressed to the defense Secretary, Government of India also asserted that they do not have any agent specifically employed in India for the project.

9. Despite the clear policy of the Government to have no agents in the negotiations, a clause prohibiting involvement of agents or a penal clause levying a penalty on M/s. AB Bofors in case they had engaged any agent or middlemen was deliberately not put in the final contract, which was entered into between the Government of India and M/s. Abbofors on 24.3.1986. M/s. AB Bofors on 24.4.1987 in reply addressed to the Indian Ambassador in Sweden, in response to a communication from the Ministry of defense, Government of India, after the allegations were made in the broadcast by Swedish Radio, that there was kick back in the entire deal, inter alia, stated that payments referred to by Swedish Radio were completely legal, in accordance with Swedish currency regulations and other relevant Swedish regulations. It was asserted that the payments were not made to any Indian company or Indian citizen and had no connection with the obtaining of the contract of 1986. Prior to their examination by the Joint Parliamentary Committee, a representative of Bofors admitted before the officers of Government of India that a total sum of SEK 319.40 million was paid to three companies registered outside India, which included Svenska Inc. Panama and M/s. AE Services Ltd., U.K. towards winding up charges. When examined by the Joint Parliamentary Committee, the Bofors finally confirmed having made payments to three companies but refused to divulge their names. The Swedish National Audit Bureau during its own inquiries into the allegations of payments of commission by M/s. AB Bofors confirmed the commission payments by M/s. Bofors in the gun deal with Government of India, to the companies accounts in Switzerland, which payments were remitted by Bofors to Banks in Switzerland between May, 1986 to March, 1987. M/s. Bofors at that stage also refused to divulge the identity on the ground of commercial confidentiality. M/s. Bofors also refused to give the required information to the Swedish National Audit Bureau. Investigation revealed that M/s. Bofors had been making various inconsistent statements regarding the identity of the agents and the nature and purpose of payments made to them.

10. In order to complete the process of investigation and collect further evidence, a Letter Rogatory dated 7.2.1990 was issued by the Court of Special Judge, Delhi to the Competent Swiss Authorities. Investigation was conducted by the Swiss Authorities and made available their part investigation report alongwith certain documents in December, 1990 and January, 1997. The investigation of the Swiss Authorities established and confirmed that M/s. AB Bofors had engaged and made payments to at least two such agents, namely, M/s. AE Services Ltd. and M/ s. Svenska Incorporated.

11. Reply further states that the investigation revealed that the petitioners, an Italian National, employed in India as Regional Director of M/s. Sham Progetti at the relevant time, contracted Mr. Myles Tweedale Stott where after M/s. Bofors entered into an agreement with M/s. AE Services Ltd. on November 15, 1985, promising to pay 3% of the total contract value, if the contract with Government of India was concluded on or before March 31, 1986. On November 15, 1985 the competitive offers available with decision makers did not indicate any preference for Bofors Gun system over other competing gun systems. To the contrary Sofma Gun system was preferred technically. The contractual promise of M/s. AE Services to swing the contract in favour of M/s. Bofors within the stipulated time-frame of about 4 months from the date of the said agreement was a circumstance indicating the power and influence, which the persons behind M/s. AE Services Ltd. exercised over the concerned public servants of Government of India.

13. The investigation report of Swiss Authorities further disclosed that M/s. Bofors had remitted a sum of SEK 50,463,966.00 (equivalent to US $ 7,343,941.98) on September 3, 1986 from the account with Skandin aviska Enskilda Banken, Stockholm to account number 18051-53 of M/s. A.E. Services Limited at Nordfinanz Bank, Zurich. This account of A.E. Services Limited c/o Mayo Associates SA, Geneva, was opened only a fortnight ago, on August 20, 1986 by Myles Tweedale Stott as Director. From this account of M/s. AE Services an amount totaling US $ 7,123,900 ($ 7,000,000 on 16th September, 1986, and $ 1,23,900 on 29th September, 1986) was transferred to account No. 254.561.60 W of M/s. Colbar Investments Limited Inc., Panama with Union Bank of Switzerland, Geneva. An amount of US $ 7,943,000 from this account of M/s. Colbar Investments Ltd. Inc. was further transferred on 25.7.1988 to account No. 488 320.60 x of M /s. Wetelsen Overseas SA at Union Bank of Switzerland, Geneva. Thereafter, on 21st May, 1990 an amount of US $ 9,200,000 from the said account of M/s. Wetelsen Overseas was transferred to account No. 123893 of International Investments Development Co., in Ansbbacher (CI) Limited, St. Peter Port, Guernsey (Channel Islands). These accounts of M/s. Colbar Investments Ltd. Inc. as well as M/s. Wetelsen Overseas were being controlled by the petitioner and his wife Mrs. Maria Quattrocchi. Investigation in Guernsey (Channel Islands) also revealed that the whole money within a period of 10 days of its receipt in Guernsey was further channeled to various accounts in Switzerland and Austria.

14. The reply further states that the investigation conducted so far has revealed that the petitioner was the beneficiary of the amount of commission received by M/s. A.E. Services from M/s. Bofors, as practically the entire money (approximately 97% of the total) was transferred from the account of M/s. AE Services to the account of M/s. Colbar Investments Ltd. Inc. The documents collected from Sham Progetti, New Delhi confirm that the petitioner and his wife were in Geneva during the period when the relevant Swiss Bank documents were signed by him. The documents received from Swiss authorities show that in the relevant documents, the petitioner has given his address as "Colony East, New Delhi/India" which was just a non-existing address.

15. Investigation has also revealed that in this deal for the sale of 400 numbers of Field Howitzer 155 mm 77-B Guns, towed vehicles and ammunition to Government of India, M/s. A.B. Bofors, Sweden have made huge payments against the express policy of Government of India to certain persons through some front companies in an illegal manner in criminal conspiracy with public servants in India. Investigation into other offences as set out in the First Information Report is under progress.

16. Specifically the reply says that the investigation has shown that the families of the then Prime Minister of India late Mr. Rajiv Gandhi and the petitioner were on very intimate terms to each other. They used to meet frequently. The petitioner and his family had access to the Prime Minister's house. The closeness of the families is also revealed by some of the family photographs collected during investigation. As a result, the petitioner was able to project himself as a person of great influence. The evidence collected indicate that the petitioner frequently used to contact a number of senior politicians and bureaucrats over phone during his stay in India. It is also to be appreciated in the light of the fact that Bofors had paid SEK 50,463,966.00 in the name of commission to M/s. AE Services on 3.9.1986 and virtually the entire amount was transferred by A Services to the petitioner's Colbar Investment Ltd. Inc. in UBS, Geneva on 16.9.1986 and 29.9.1986. As per the terms of contract with M/s. Bofors, the Government of India had released 20% advance amount of SEK 1,682,132,196.80 on 2.5.1986 to M/s. Bofors. The amount of commission received by M/s. AE Services SEK 50,463,966 works out to be exactly 3% of the amount of advance paid by Government of India to M/s. Bofors, as stipulated in the 15th November, 1985 agreement between Bofors as AE Services.

17. The reply further states that process of negotiations was started in 1984. The first meeting of the Negotiating Committee as per the Minutes available was held on 7.6.1984, The Committee thereafter met on about 17 occasions. The first preference of the Army all along had been for Sofma gun. The preference shown for the first time in its report dated 17.2.1986 of the Army Headquarters was for Bofors gun. There has been undue haste thereafter. Suddenly the process of negotiations picked up after the Army Headquarters report dated 17.2.1986 rating the Bofors gun as number one. The Committee on 12.3.1986 showed unusual haste in which the issuance of Letter of Intent in favour of M/s. Bofors was recommended. A note was prepared by the Joint Secretary (O) on the same date for approval of Rakshya Rajya Mantri (Shri Arjun Singh), Rakshya Rajya Mantri (Shri Sukh Ram); Finance Minister (Shri V.P. Singh) and Prime Minister as defense Minister (Shri Rajiv Gandhi). The same was forwarded/approved by the following officers/Ministers on the dates mentioned against them :

"1.

defense Secretary (Shri S.K. Bhatnagar) 12.3.1986

2. Secty. (Def. Prod. & Supplies) (Shri P.C. Jain) 13.3.1986

3. Raksha Rajhya Mantri (Shri Sukh Ram) 13.3.1986

4. Raksha Rajya Mantri (Shri Arjun Singh) 13.3.1986

5. Financial Adviser (Shri C.L. Choudhry) 13.3.1986

6. Secretary (Exp.) (Shri Ganpathi) 13.3.1986

Finance Secy. (Shri V. Venkitaraman) 13.3.1986

8. Finance Minister (Shri V.P. Singh) 13.3.1986

9. Prime Minister as defense Minister (Shri Rajiv Gandhi) 14.3.1986

18. The reply states that the investigation has revealed that after the note of Joint Secretary (O) dated 12.3.1986, there was undue haste in dealing with the file by the officials of six different departments. Mini Signatures of eleven officials and Ministers were obtained on the file in a matter of less than 48 hours. This circumstance seen in the light of the agreement dated 15.11.1985 between Bofors and AE Services that the later would be eligible for its commissions only if the Bofors contract is executed before the end of March, 1986, the speed in which the decision was taken has a logical link to the commission received by the petitioner and others and also the links of the petitioner with those involved in tie decision making process.

19. Reply further states that not only within 48 hours from March 12,1986 signatures of eleven officials and Ministers were available on the file, the then Prime Minister of India visited Sweden on 14.3.1986 wherein he had communicated to the Swedish Prime Minister that the Government of India had awarded the contract to Bofors. The record, however, reveal that the decision was only to issue a letter of intent to Bofors. This issuance of letter of intent became abnormal act in the context of both the contending parties, namely, the Bofors and Sofma, making liberal concessions on their earlier offers and coming out with tempting competitive offers. Hurried decision for a letter of intent, despite pending offers was an act to circumvent the process with the sole motive to communicate to the Swede that the contract had already been awarded to them.

20. Reply also states that the petitioner's name for the first time came to light in this case only on 23.7.1993 when the Interpol-Switzerland informed that the appeals filed by seven appellants including the petitioner had been dismissed by the Swiss Supreme Court. Within six days of this information coming to the notice of C.B.I. the petitioner left from India i.e. on 29.7.1993 and did not come back. The very act of the petitioner leaving India all of a sudden in July, 1993, when his name was disclosed, as one of the appellants in the Swiss Court, who tried to stop the execution of Letter Rogatory sent by Government of India points to prima facie petitioner's involvement in the crime.

21. It is also stated in the reply that the respondent had been able to receive documents only in January, 1997 from Swiss Authorities, from which it became clear that the petitioner is a beneficiary of the money paid into the account of M/s. AE Services, the first instalment of which alone is US $ 7.34 million. The basis of constituting the petitioner as an agent by Bofors was undoubtedly the influence, which the petitioner wielded on the political and bureaucratic circles, which would facilitate Bofors in obtaining the contract to the tune of Rs. 1,437.72 crores. In the first instance bid of Sofma of French was preferred. There was a sudden and dramatically change later on. The dead line for AE Services to receive commission was 31.3.1986. The Prime Minister of India visited Sweden on 15.3.1986 and announced there that the contract has been awarded to AB Bofors. The deadline of 31.3.1986 was, therefore, met by the petitioner. On 2.5.1986 the first advance payment was made to AB Bofors by the Government of India, in August, 1986, AE Services account was opened by Myles Stott, who in his affidavit admits that the agreement with AE Services was entered into at the instance of the petitioner. The transfers' of the amount paid into Colbar account would suggest that AE Services was really the front company of the petitioner. The petitioner was engaged by AB Bofors as their agent contrary to the prohibition imposed by the Government of India and contrary to the solemn undertaking contained in the letter of President of Bofors dated 10.3.1986. It was only because of the petitioner's close proximity with the then Prime Minister and his family and the perception generally of bureaucrats and Ministers that he was in a position of vast influence so as to determine the fate of a contract of this nature involving millions of dollars.

22. Reply states that it cannot be a coincidence that the contract was entered into with AB Bofors before the deadline of 31.3.1986.

23. Reply further says that the petitioner had no experience whatsoever and no knowledge of armaments and defense equipment. The petitioner is a Chartered Accountant by qualification and between 1968 to 1993 was an officer (as the Chief Executive of Sham Progetti) and, therefore, would have knowledge only of laying of pipelines and transporting oils. It is thus obvious that the so called consultancy agreement was only an agreement for the purpose of enabling AB Bofors to win the contract for the guns by merely utilising his influence in India at the political and bureaucratic level, from which it could be concluded that the contract might otherwise not have been obtained by AB Bofors except for the influence wielded by him. It is stated that public servants concerned are guilty of offences coming under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 as well alongwith may offences, which are still under investigation. Prima facie an offence under Section 120B read with Section 420, I.P.C. is made out on the facts brought out from the material gathered. Agreement dated 15,11.1985, which is a secret agreement, contrary to the clear understanding, which emerged at the meeting of the defense Secretary with the President of AB Bofors. In fact the agreement dated 15.11.1985 is an agreement to commit the offence of cheating because the two parties to the agreement conspired to deceive the Government of India and dishonestly induced it to part with money, which included the element of commission, contrary to the understanding and undertaking. The fact that the commission of 3% of the first instalment was paid would mean that the petitioner had kept his part of the agreement to negotiate the deal and to support the bid of AB Bofors, from which it would further follow that the petitioner had been able to successfully negotiate with the then Prime Minister and defense Minister and other public servants concerned to obtain the contract for his principal and the public servants had in turn, in abuse of their position, conferred pecuniary benefits on the petitioner, which acts would constitute offences under the Prevention of Corruption Act and the Indian Penal Code. The reply further states that C.B.I, has already applied for the requisite sanction to prosecute the three public servants at the relevant time, namely, S.K. Bhatnagar, Gopi Kishan Arora and Madhav Singh Solanki and charge sheet is likely to be filed against the petitioner and others including the public servants after the sanction is accorded. In the meanwhile, further investigations are continuing to establish further violations of the Prevention of Corruption Act and the Indian Penal Code by the public servants.

24. It is also stated that the investigation conducted so far has established that the petitioner was in criminal conspiracy with public servants and in pursuance thereof was instrumental in getting the contract awarded to M/s. AB Bofors before 31.3.1986. In consideration of the award of contract, the petitioner has also been found to have received US $ 7.12 million commissions for companies controlled by him and his wife. On the request of the respondent, learned Special Judge rightly directed issuance of non-bailable warrants for the petitioner's arrest. Such request was sell within the provisions of Code of Criminal Procedure, and the learned Special Judge passed an appropriate order after due consideration of the material before him. The petitioner is an accused of non-bailable offence and has been evading arrest. The respondent states that the non-bailable warrant was not presented to the Malaysian police authorities. A team of officers were seeking to execute the non-bailable warrant of arrest through Interpol and appropriate diplomatic channels. On 17.2.1997 the Interpol officials issued the Red Corner Notice. The team of officers left Malaysia the very next day on 18.2.1997 after discussing with the Malaysian Attorney General's office of the steps to be taken for the purpose of procuring the presence of the petitioner. Red Corner Notice was issued by Interpol authorities on 17.2.1997, after the material indicating the petitioner's involvement in the case, alongwith a copy of warrant of arrest was furnished to them and is still in force. There is no reason to revoke the Red Corner Notice,

25. In the light of the aforementioned pleadings, learned Counsel for the pasties were heard at length.

26. Mr. Dinesh Mathur, learned Counsel for the petitioner while reiterating, what is alleged in the petition, contended that as the application did not disclose any offence having been committed by the petitioner, the Court could not have issued warrants. The same which could be issued only for the purpose of producing a person, who is accused of a non-bailable offence and is evading arrest, before the Court and not before the Investigating Agency. No effort was made by the Investigating Agency to call the petitioner to join investigation. Special Judge could not have exercised jurisdiction under Section 73 of the Code of Criminal Procedure in issuing warrants, which could be issued only in the circumstances mentioned in the said provisions, which were non-existent. The application on the face of it suggested that the petitioner was not residing within the local limits of its jurisdiction. He was also not residing in India. Warrants, if directed to be issued to any person within his local jurisdiction for the arrest of any person, may be executed only in any place in India and not beyond. The very act of moving the application was in gross violation of law, in view of the decision of learned Single Judge of this Court in Washeshar Nath Omdha v. The State, 1993 Cr.L.J. 3214.

27. Mr. Mathur referring to the Form No. 2 of warrant of arrest, in the second Schedule to the Code contended that it could be addressed by the Magistrate only to a person located within the local limits of his jurisdiction and that also for production before him. A Court cannot not be used as a process serving agency for the purpose of producing a person before the Investigating Agency. In case Investigating Agency was of the view that presence of the petitioner was necessary before it, the Investigating Agency was to find out its own ways and means in procuring the petitioner's presence. Aid of the Court could not be had in the manner, in which it was done, by moving the application. Right of arrest is vested in the Investigating Agency in cognizable cases and not in Court. Provisions of Chapter VI of the Code applied only when person is within the local limits of territory of India. Law cannot be allowed to be twisted in a manner by issuing a warrant against a person, who was not within the territorial limits of India. It is not shown that how the respondent had taken the warrant to Malaysian Authorities. Nothing was stated in the application that any effort was ever made to interrogate the petitioner in Malaysia. There was no question of the petitioner's evading interrogation. Though Mr. Mathur stated that prayer in this petition was confined only for quashing of the warrants and there was no prayer made for quashing of F.I.R. yet he contended that how and in what manner the petitioner is a part of the conspiracy; whether there was any conspiracy; with whom the petitioner had entered into conspiracy; when it was hatched up; was not disclosed in the application. He contended that assuming that money was received, as claimed by the respondent, there was nothing wrong therein; in as much as, that in what manner the Government of India had been defrauded is not made clear. Investigation according to the petitioner had revealed that the amount was transferred by Bofors in the account of AE Services but the petitioner was not AE Services. He had no links with AE Services. Subsequent transfer of the amount by AE Services to Colbar and others had no relevance in the case. Satisfaction recorded by the Special Judge in the impugned order was not the satisfaction, as envisaged under Section 73 of the Code inasmuch the impugned order otherwise is bad in law.

28. On behalf of the respondent Mr. Venugopal vehemently opposed the petitioner's stand contending that documents were duly considered by the Special Judge before ordering issuance of non-bailable warrants. The material produced before the Magistrate was sufficient, in order to come to a conclusion that there was a reason to believe about the petitioner's involvement in the commission of the offences. The petitioner's role was self evident when for the first time the petitioner's name surfaced being one of the appellants having made unsuccessful attempt in preventing the execution of Letter Rogatory. The petitioner's conduct in having left India abruptly, not to come back again obviously leads to an inference that he was evading arrest and was not prepared to subject himself to the jurisdiction of the Court. No discretion deserves to be exercised in his favour. He was seeking justice in writ jurisdiction while not subjecting himself to jurisdiction of the Court. Conduct prior and subsequent deserves to be taken into consideration, while dealing with a petition fifed under Article 226 of the Constitution of India seeking direction restraining the respondent not to arrest him. This act alone would mean that he was evading arrest. Mr. Venugopal further contended that there is no extradition treaty of India with Malaysia. Learned Special Judge was within his right, in the facts and circumstances, to have issued warrant of arrest. If the warrant had been issued, there is no bar in taking the same out of the country so that on the strength thereof appropriate orders of Malaysian Government be obtained for the petitioner's arrest and to produce him before the Magistrate. Reliance was placed on the decision of the Supreme Court in State of West Bengal and Anr. v. Jugal Kishore More and Anr., .

29. Mr. Venugopal further urged that investigation so far had revealed that the exact nature of the agency was secret. The petitioner's direct involvement is apparent. He has tried to keep moneys in companies by transferring from one company to another. Attempt was made, to make documents not available, leaving the country abruptly, giving false and non-existing address of Delhi with an intention not to come back to India after abruptly left India. All these facts and circumstances, which apparently were taken note of by the Special Judge, were sufficient in the light of the ratio of the decision in State through C.B. I. v. Dawood Ibrahim Kaskar and Ors., , to enable the Magistrate to exercise his powers under Section 73 of the Code to issue non-bailable warrants. The petitioner who did not state correct facts in the petition is not entitled to the discretionary relief in his favour. He has tried to mislead the Court and despite filing specific reply, no attempt was made to file any rejoinder thereto. In other words what is stated in reply will be deemed to have been admitted by the petitioner as no rejoinder was filed.

30. Having considered the respective submissions made at the bar and having gone through the facts and circumstances of the ca se, we are of the view that there is no merit in the petitioner, which deserves dismissal.

31. Insofar as the F.I.R. in question is concerned, the Apex Court had an occasion to deal with the same in The Janta Dal v. M.S. Chowdhary & Ors., . Facts in detail leading to the registration of F.I.R. need not be stated by us as the same are to be found in the judgment of the Supreme Court. Reasons, which necessitated the respondent to file an application requesting to issue Letter Rogatory/request to Switzerland urgently for getting the necessary assistance s') that the investigation can be conducted in Switzerland are to be found in another order of the Supreme Court dated 27.8.1991 reported in Janta Dal v. H.C. Chowdhary and Ors., . Application of the respondent was allowed on 5.2.1990 by the Special Judge. Letter Rogatory was issued. At the stage when the same was received back by the order of Cantonal Court of Geneva for compliance of certain procedural or formalities, Shri Harinder Singh Chowdhary, an Advocate, claiming to be the General Secretary of an Organization named 'Rashtrya Jan Perished' filed Criminal Miscellaneous Application No. 12 of 1990 before the Special Court seeking direction that no Letter Rogatory be issued on the formal request of C.B.I, unless allegations against the named persons are established to the satisfaction of the Court; no request for rogatory or freezing Bank account be made to Swiss Government unless the concerned persons are noticed and heard on the subject and that he be permitted to join during investigation before Court in the capacity of Public Interest Litigant.

32. The application was dismissed on 18.8.1990. Aggrieved against the said order Shri Harinder Singh Chowdhary filed Criminal Revision No. 1821 /90 before this Court raising number of questions of law and challenging the legality and validity of the order of Special Court as also the very registration of F.I.R. and the investigation carried out by C.B.I. There is no need to notice the fact that there was several other applications moved by intervenes in the said revision. However, the revision petition was dismissed on 9.12.1990 holding that Shri Harinder Singh Chowdhary has no locus standi and the several applicants had no right to be imp leaded. The matter did not end there. While dismissing the criminal revision, learned Single Judge proceeded to exercise his inherent powers and directed the Registry to register a case for suo motu exercise of powers for quashing of F.I.R. and proceedings connected there with according to him the F.I.R. filed by C.B.I, did not disclose, on the face of it, any offence. Simultaneously, direction was issued by learned Single Judge calling upon C.B.I, and the State to show cause as to why proceedings initiated on the strength of F.I.R. be not set aside.

33. Feeling aggrieved against the above order of learned Single Judge of this Court, Criminal appeals and writ petitions were filed in the Supreme Court. On 20.12.1990 interim stay of the order of learned Single Judge was granted. A gist of all appeals and writ petitions were given by the Supreme Court in its order dated 27.8.1991, reported as Janta Dal v. H.S. Chowdary and Ors., (supra). Ultimately, the Apex Court held that Single Judge of this Court had taken an extreme view that the Court can take judicial notice of any illegality being committed by any Court with a view to prevent an injury being caused to known or unknown aggrieved party, even when investigation is at its threshold. It was held that the learned Single Judge over-stepped his jurisdiction. The part of the order taking suo motu cognizance under Sections 397, 401 read with Section 482 of the Code issuing show cause notice to the C.B.I, and State was set aside,

34. There is yet another decision of the Supreme Court dealing with the F.I.R. in question. After the first round of the aforementioned Public Interest Litigation was lost by which an effort was made to knock down the F.I.R., another attempt was made in the second round by Shri W.N. Chadha, one of the named accused in the F.I.R., who preferred Criminal Writ Petition No.501/91 in this Court challenging the legality and validity of F.I.R. and the Letter Rogatory issued by the Special Court, including the amended Letter Rogatory, praying that F.I.R. alongwith all other proceedings arising thereon including Letter Rogatory be quashed. The writ petition was allowed on 2.9.1992. F.I.R. and Letter Rogatory issued on two occasions and ail other proceedings taken thereon were quashed. We need not take note of the facts in detail leading to the filing of the writ petition or further appeal to the Supreme Court by Union of India and C.B.I. The net result being that the appeal of Union of India and C.B.I, was allowed and the decision rendered by the High Court was set aside. The judgment of the Supreme Court is reported in Union of India v. W.N. Chadha, .

35. It was held that the F.I.R. in question prima facie constitute the offences, alleged therein, when it observed :

"In fact, the High Court in its impugned judgment itself has recorded its finding that they are also of the same view as that of that of this Court that it may not be correct that the FIR does not disclose any offence against any one named or unnamed accused which definitely includes the respondent also. In the background of the finding of this Court and that of the High Court it is not necessary to go deep into the matter by referring to various documents such as report of the IPC, the opinion of the then learned Attorney General, report of the Comptroller and Auditor General of India etc. lest it may affect either of the parties if the investigation ends up with the trial of the case. Though we refrain from giving any positive finding with regard to the alleged payment of the bribe amount to the respondent, the allegations made in the FIR under Section 154 of the Code of Criminal Procedure prima facie constitute the offence alleged therein. Hence we set aside the finding of the High Court that no offence is made out against the respondent under various provisions of the different Statutes."

36. On one of the submissions regarding delay in completion of the investigation, the Apex Court observed :

"A survey of the various proceedings of this litigation reveals that the Investigating Agency, namely, the CBI was fettered at every stage and made to spare its energy more in Court proceedings than in proceeding with the investigation. Only if the investigation is freely allowed without any hindrance, the Investigating Agency can collect all the requisite particulars and bring the names of those public servants on records, the secrecy of which, it is said, is deeply buried in various places and under various Departments. Hence this reasoning is devoid of any merits."

Lastly the Supreme Court observed :

"The investigation is only at an infant stage and it has to go along way to collect all the materials. Only after requisite particulars are collected by the Investigating Agency, the further course of action would be decided. Whatever it may be, without the battle lines being properly drawn, the Court will not be justified in making any further positive pronouncement on the merits of the serious and cloudy issues involved in this case de horse the findings recorded in his judgment. However, as we feel that there may be a battle to be waged on a later occasion by the litigants if the matter comes up for trial, we do not propose to make any further observations,"

37. As there is no challenge in the instant case and learned Counsel for the petitioner frankly and rightly so conceded that there is no prayer made to quash the F.I.R., we need not to say any more on this aspect except that it is not a stage where it would be proper for us to examine the F.I.R. from that point of view that it discloses no cognizable offence or that it is liable to be quashed and set aside qua the petitioner, in the manner in which it is sought to be done. We have in extenso quoted the averments, which the respondent made in the application seeking issuance of the warrants. The same on the face of it do constitute making of sufficient allegation pointing out that the evidence so far collected prima facie reveal that the petitioner was recipient of fraud committed in Bofors gun deal, which he received for himself and on behalf of certain public servants and, therefore, he was required to be arrested and interrogated for expeditious investigation of the case and to reveal the entire truth.

38. In view of the affidavit in reply, we are also of the view that the delay, which has occurred, will not be a ground to grant the relief prayed for by the petitioner. For the first time, as per the reply of the respondent, the petitioner's name came up only on 23.7.1993 when the Investigating Officer informed the respondent that appeals filed by seven appellants, including the petitioner, had been dismissed by the Swiss Supreme Court and thereafter only in January, 1997 the respondent had been able to receive documents from Swiss Authorities. Only from those documents it came to the notice of the respondent that the petitioner is the beneficiary of the moneys paid into 'AE Services' account, the basis of constituting the petitioner as an agent was the undue influence on the political and bureaucratic circles, which would facilitate Bofors in obtaining the contract. From the account of AE Services, the amount was transferred in the account of M/s. Colbar Investment Ltd. Inc. Panama, which was to be operated upon either by the petitioner or his wife. The entire amount thereafter was transferred under the petitioner's signed instructions to the account of M/s. Wetelsen Overseas SA in UBS Ganeva, which also could be operated upon either by the petitioner or his wife. Later on the transfer is shown to Inter Investment Development Company for the benefit of Ansbbacher Ltd. St. Peter Port, Guernsey (Channel Islands). Investigation is still on to find out further flow of money from this account.

39. Because of the contents of the F.I.R. and the result of the investigation, at this stage, we are not inclined to accept the submissions made on behalf of the petitioner that the material was scanty; in the application, no particular offence was stated, which might have been committed by the petitioner or that there was no conspiracy or that with whom the petitioner had entered into any conspiracy particularly in view of the fact that the prayer is only for quashing of the warrants and not of the F.I.R.

40. In Washeshar Nath Chadha's case (supra) issuance of non-bailable warrants against Washeshar Nath Chadha by the Special judge on 14.3.1990 and 25.4.1990 for being produced before the Special Judge so that the Investigating Officer may join him in investigation was held to be without jurisdiction. Interpreting Section 73 of the Code, learned Single Judge of this Court held that warrants can be issued by a Court against a person who is accused of non-bailable offence and is evading his arrest. The question whether the petitioner was evading arrest as an accused in the said case was answered in negative. Taking note of the submission of learned Additional Solicitor General that at that stage Washeshar Nath Chadha was required only for interrogation and not to be arrested as an accused, issuance of non-bailable warrants against him by Special Judge for the purpose of joining investigation was held to be without jurisdiction. It was held that issuance of warrants against a person named in the F.I.R. where the Investigating Officer could not avail benefit of Section 160 for interrogation of person as he was living abroad and not within the limits of his own or adjoining station, an order by the issuing non-bailable warrants of arrest under Section 73 of the Code against him for being produced before the Court so that the Investigating Officer could join him in the investigation was without jurisdiction and thus could not be issued when he was not evading arrest.

41. We have noticed the facts of the instant case. The petitioner's arrest was sought for the purpose that he was involved in the case as investigation had prima facie revealed that he was recipient of fruits of fraud committed in the Bofor's Gun deal. His arrest was necessary for interrogation for expeditious investigation and to reveal the entire truth. Para 11 of the application says :

"That the investigation has prima facie revealed that Mr. Quattrocchi was the recipient of fruits of fraud committee in the Bofor's gun deal, which he received for himself and on behalf of certain public servants and, therefore, her is required to be arrested and interrogated for expeditious investigation of the case and to reveal the entire truth."

42. To the facts and circumstances of the case, in our view, the law laid down by the Supreme Court in its recent decision in Bombay Blast Case reported as State through C.B.I. v. Dawood Ibrahim Kaskar and Ors. would squarely apply.

43. After series of bombs explosions, which took place in and around Bombay as it then was on 12.3.1993, 27 criminal cases were registered. On completion of investigation a composite charge sheet was forwarded to the Designated Court against 198 accused persons. On that charge sheet the Designated Court took cognizance. A few days thereafter, Government of India with the consent of Maharashtra Government issued a notification entrusting further investigation to Delhi Special Police Establishment (C.B.I.) under the provisions of Section 5 of the Delhi Special Police Establishment Act, 1946. Pursuant thereto C.B.I, registered a case on 19,11.1993 and took up further investigation. During the course of investigation Mohd. Salim Mira Moiuddin Shaikh @ Salim Kutta, one of the absconders mentioned in the charge sheet was apprehended, who made confessional statement disclosing therein involvement of certain persons having taken part in criminal conspiracy. C.B.I, thereafter moved an application before the Designated Court wherein it was stated that following the disclosure of the involvement of the respondents in the said case, raids had been conducted but none could be apprehended as they were deliberately evading arrest. Prayer for issuance of non-

bailable warrants of arrest was made to initiate further proceedings in the matter and to apprehend them or to take further action to declare them proclaimed offenders. Two other applications were made for publication of written proclamation as also for issuance of open dated non-bailable warrants of arrest. According to C.B.I, such notices were required to be got issued by Interpol to seek police assistance in foreign country to locate and apprehend fugitives. Applications were rejected by the Designated Court. The order was challenged in the Supreme Court by C.B.I.

44. The Supreme Court considered the question that whether a Court can issue a warrant to apprehend a person during investigation for his production' before police in aid of the Investigating Agency. This question was answered by the Supreme Court holding that Section 73 of the Code confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also. It was further held that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest. On the question whether such issuance of warrant can be for his production before the police in aid of investigation, it was observed by the Supreme Court that a Magistrate plays, not frequently, a role during investigation in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc.

45. In nutshell the Supreme Court held that when an application is moved by the Investigating Agency for arrest or apprehension of a person, who is accused of non-bailable offence, such prayer can be allowed by issuing a warrant for appearance before the Court only and not before the police.

46. In paras 21 to 24 of the report, the Apex Court dealt with the extent of the power of Magistrate to order issuance of non-bailable warrant of arrest of accused/ during the course of investigation. The same reads :

"21. That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this section a Police Officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a cognizable and non-bailable offence, (like Section 466 or 467 (Para I) of the Indian Penal Code) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73, for the person to be apprehended is accused of a non-bailable offence and is evading arrest.

22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part 'C' of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person 'against whom a warrant has been issued by it'. In other words, unless the Court issues a warrant the provisions of Section 82, and the other sections that follow in that part, cannot be invoked in a situation where inspite of its best efforts the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73; and if need be to invoke the provisions of part 'C of Chapter VI. (Section 8(3) in case the person is accused of an offence under TADA).

23. Lastly, we may refer to Section 90, which appears in part 'D' of Chapter VI of the Code and expressly states that the provisions contained in the Chapter relating to summon and warrant, and their issue, service and execution shall, so far as may be, apply to every summons and every warrants of arrest issued under the Code. Therefore, when a Court issues a warrant of arrest, say under Section 155 of the Code, any steps that it may have to subsequently take relating to that warrant of arrest can only be under Chapter VI.

24. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation.

47. In the instant case also considering the prayer of the respondent the Special Judge exercised his judicial discretion based on material placed before him and directed issuance of non-bailable warrants of arrest with further direction of posting the case for the adjourned date. In other words on production of the petitioner, pursuant to the execution of warrant, in terms of the ratio of decision in Dawood Ibrahim Kaskar's case (supra), it would be within the sole discretion of the Special Judge, which is to be exercised by him judicially either to release him on bail under Section 439 of the Code or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Special Judge, on being moved by the Investigating Agency, will entertain its prayer for police custody will also be at his sole discretion in accordance with Section 167(3) of the Code. The Supreme Court in Dawood Ibrahim Kaskar's case (supra) also observed that under the Code investigation consists generally of the following steps :

(1) Proceedings to the spot;

(2) Ascertainment of the facts and circumstances of the case;

(3) Discovery and arrest of the suspected offender ;

(4)     Collection of evidence relating to the commission of the offence which may consist of, (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of place or seizure of things considered necessary for the investigation and to be produced at the trial; and
 

(5)    Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under Section 173. 
 

48. Relying upon the ratio of the decision in Dawood Ibrahim Kaskar's case (supra) to the facts and circumstances of the case, we are of the view that Special Judge was perfectly justified and within his jurisdiction in having issued non-bailable warrant of arrest, which was addressed to the person located within his jurisdiction.
 

49. As to how the warrant is to be executed, for that, we may refer to the decision in Jugal Kishore's case (supra). Need less to add that there is no extradition Treaty with Malaysia. Similar was the position Jugal Kishore's case (supra). In that case in the course of investigation, the Officer-in-Charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta for an order for warrant of the arrest of Jugal Kishore and certain other persons and prayed that warrant be forwarded with the relevant records and evidence to the Ministry of External Affairs, Government of India for securing extradition of Jugal Kishore More, who was then believed to be in Hong Kong. It was stated in the application that More and others were parties to a criminal conspiracy to defraud the Government of India and their presence was required for trial. The Chief Presidency Magistrate held an enquiry and recorded his satisfaction that a criminal conspiracy was hatched within his jurisdiction and More was one of the conspirators. Accordingly, a non-bailable warrant was directed to be issued for his arrest and the warrant was sent to the Secretary Home (Political) Department, Government of West Bengal with a request to take all necessary steps to ensure execution thereof. A copy v/as also sent to the Commissioner of Police, Calcutta. The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India, who forwarded it to the High Commissioner for India in Hong Kong, who in his turn, requested the Colonial Secretary, Hong Kong for an order extraditing More under the Fugitive Offenders Act, 1881 to India for trial. The Central Magistrate, Hong Kong made an endorsement on the warrant to arrest More. More was arrested. His objection was turned down by the Central Magistrate that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act, 1881. More's father approached Calcutta High Court for an order quashing the warrant of arrest against More and all proceedings taken thereunder. There was difference of opinion by the Division Bench. The matter was referred to the third Judge, who formed an opinion that the Chief Presidency Magistrate had no power to issue warrant of arrest in the manner he had done. In view of the majority opinion, warrant of arrest and all proceedings taken by the Chief Presidency Magistrate were ordered to be quashed. State of West Bengal preferred an appeal. The Supreme Court held that Form II of the warrant prescribed in Schedule V of the Code of Criminal Procedure, 1898 (now Form II in Second Schedule VI of Criminal Procedure Code, 1973) only issues a direction under the authority of the Magistrate to a police officer to arrest a named person and to produce him before the Court. It does not state that the warrant shall be executed in any designated place or area. By Section 82 of the Code (Section 77 of the New Code) a warrant of arrest may be executed in any place of India. That provision does not impose any restriction upon the power of the Police Officer. The section only declares, in that, every warrant issued by any Magistrate in India may be executed at any place in India; execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate. It was further observed that the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had committed an offence in India. After the Chief Presidency Magistrate had issued the warrant to the Commissioner of Police and the Commissioner of Police approached the Minister or External Affairs, Government of India either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More, no fault can be found in that procedure. Issuance of warrant and the procedure followed in transmitting the warrant was held as not illegal or irregular. We may quote para 27 of the report, which reads :

"The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima fade evidence before him that More had committed certain offences which he was competent to try. The warrant was in Form II of Schedule V of the Code of Criminal Procedure. If the warrant was to be successfully executed against More who was not in India, assistance of the executive Government had to be obtained. It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders. In pursuance of that warrant, on the endorsement made by the Central Magistrate, Hong Kong, More was arrested. The warrant was issued with the knowledge that it could not be en forced within India and undoubtedly to secure the extradition of More. Pursuant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More. Issue of warrant and the procedure followed in transmitting the warrant were not illegal, not even irregular."

50. Relying on the aforementioned decisions, we are of the view that in the instant case the Special Judge was justified and had jurisdiction in having issued the non-bailable warrant. He had the power to issue warrant for the arrest of the petitioner because the satisfaction recorded by him that there was prima facie evidence before him that the petitioner was concerned with the commission of the offence, which he was competent to try. The warrant v/as issued in Form II of the Second Schedule of the Code.

51. In case such a warrant is to be successfully executed, there is no doubt in view of the ratio in Jugal Kishore's case (supra) that the respondent could approach diplomatic channels in order to secure arrest of the petitioner and for his production before the Special Judge.

52. We have another reason for our view for support of the impugned order that Courts are not to act upon the principle that every procedure is taken as prohibited unless it is expressly provided for by any law but on the converse principle that every procedure is to be understood as permissible rill it is shown to be prohibited by law. As a matter of general principle, prohibition cannot be presumed. The Special Judge simply directed the issuance of the non-bailable warrant. It was addressed to a competent person. Thereafter, it was for the respondents to get it executed in any manner, known to law. The procedure, which it adopted in obtaining the arrest of the petitioner from a country with whom India has no extradition Treaty by approaching the diplomatic channels is not the one, which is prohibited in law. The team of officers of the respondent sought to execute the non-bailable warrant of arrest through Interpol and appropriate diplomatic channels. On 17.2.1997 the Interpol officials issued Red Corner Notice. On 7.4.1997 the petitioner after learning of the issuance of the Red Corner Notice by the Interpol, filed a representation before it challenging the basis on which Red Corner Notice was issued. The challenge was rejected as is evident by the report on the meeting of the Supervisory Board for the Internal Control of Interpol Archieves held at Lyons, France on 29th and 30th September, 1997. The Red Corner Notice is still in force.

53. For the reasons aforementioned, we find no force in the petition, which is accordingly dismissed.