Smt. Anubha vs Sh.Vikas Agrawal
2011 Latest Caselaw 3079 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) NO.1966/1999

                                      Date of Decision : 04.07.2011

SMT. ANUBHA                                       ...... Plaintiff
                                Through:    Mr.Rajat Aneja, Adv.

                                 Versus

SH.VIKAS AGRAWAL                                 ......     Defendant
                                Through:    Mr. Sachin Datta, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        YES
3.     Whether the judgment should be reported
       in the Digest ?                                YES

V.K. SHALI, J.

IA No. 4197/2004 (contempt)

1. The question involved in the present contempt application is

whether the proceedings for execution of contempt order

passed against the defendant should be monitored by this

Court or should the proceedings of the present contempt case

be adjourned sine die till the time the defendant is extradited

to face the trial in respect of other connected extraditable

matters which are purportedly pending against him in the

District Court of Gautam Budh Nagar(UP). Before deciding

the said question, it would be pertinent here to give the brief

background of the case.

2. The plaintiff got married to the defendant Mr.Vikas Agrawal, a

Non-Resident Indian (NRI) on 11.5.99 according to Hindu

rites and ceremonies. The defendant was a Non-Resident

Indian at the time of marriage residing at 29, Woodlawn

Avenue, Ansonia, Connecticut-06401 (USA) and was a HBI-4

Visa Holder. He was employed as a software Engineer with

M/s CAPITAL ONE at 11011, West Broad Street, Glen Allen,

Virginia-23060 (USA).

3. The present plaintiff went to USA, however, on account of

temperamental incompatibility, the marriage could not last

and she came back to India and instituted the present suit

seeking declaration that she is entitled to live separately and

it was also prayed that a permanent decree of maintenance in

her favour and against the defendant for a sum of US$1500

per month or `65,250/- per month calculated at the (then)

prevailing rate of `43.50 per US $, be passed with periodical

increase therein. A similar ad interim relief was also prayed

during the interregnum period till the disposal of the suit.

4. Notices were issued to the defendant who was duly

represented by his counsel.On 5th November, 1999, this Court

after considering the submissions of the learned counsel for

the plaintiff had passed a restraint order against the

defendant from pursuing the divorcne petition purportedly

instituted by him in the Connecticut Court, USA for a period

of 30 days. The restraint order was passed in the presence of the

learned counsel for the defendant observing that the said

restraint order will not cause any serious prejudice to the

defendant till he files his definite statement before this Court.

5. The suit has been ultimately decreed by this Court on

27.9.2002 granting the relief as prayed for in the main suit.

However, on 09.3.2000, this Court had issued a suo moto

contempt notice against the defendant on account of the fact

that it was brought to its notice that the defendant despite a

restraint order having been passed against him, not to pursue

his divorce petition before the Connecticut Court, USA had

chosen to pursue the same and obtained divorce from the

said Court. Show cause notice of contempt was not replied

and this Court ultimately vide order dated 20.5.2004 held the

defendant guilty of wilful and contumacious violation of the

order dated 05.11.1999 of this Court and it had accordingly

sentenced him to SI for three months and to pay a fine of

`2,000/- under Section 12 of the Contempt of Courts Act and

in default of payment of fine, the defendant shall undergo SI

for one month.

6. The defendant being a Non Resident Indian and despite the

decree having been passed on 27.9.2002 as well as the order

dated 20.5.2004 holding him guilty for Contempt of Court

has chosen not to appear before this Court resulting in

adoption of coercive processes against him for procuring his

attendance before this Court so that he could be made to

undergo sentence of imprisonment imposed on him. It is at

this stage that this Court passed orders issuing notice to the

Standing Counsel of UOI with regard to the question of

extradition of the defendant from the jurisdiction of

Connecticut Court, USA where he was purportedly residing

and working at that point of time.

7. The UOI filed its affidavit through one Mr.D.K.Ghosh, Public

Relation Officer giving therein legal position with regard to the

extradition of the defendant. He had stated that since the

offence of which the defendant was held guilty was not falling

within the ambit of 'extradition offence' as contemplated

under Section 2(c) of the Extradition Act in relation to the

treaty States therefore, the defendant could not be extradited.

8. Despite this legal position having been enunciated in the

affidavit in very clear terms, the Court took note of the fact

that the defendant was facing prosecution in respect of two

other offences, one instituted by the plaintiff for the offence of

defamation punishable under Section 500/501 of the IPC and

the other under Section 498A IPC which is pending in Courts

of District Gautam Budh Nagar (UP). One of the offences was

stated in the affidavit and in the subsequent status report to

be an extraditable offence and it was observed that the details

of correspondence which has been entered into between the

Govt. of India and their counter parts has not yielded any

fruitful result on account of the fact that the offence for which

the defendant has been convicted is not an extraditable

offence. Despite this legal position, this Court went out of

the way and obtained status report with regard to the efforts

being made by the Govt. of India from time to time with

regard to procuring the attendance of the defendant in India.

As many as, 5-6 status reports have been filed over a period

of almost 7 years from the date of holding the defendant

guilty for an offence of contempt.

9. The question which now arises for consideration is whether

under such a contingency, when there is a definite affidavit

that the present offence of which the defendant has been

held guilty and sentenced to imprisonment of 3 months apart

from fine of `2000/- does not happen to be an extraditable

offence, the proceedings must be permitted to continue

indefinitely till the time his attendance is procured in

connection with some other case or should the case be

adjourned sine die to be revived at the option of the plaintiff

or other official of the Government of India in case the

defendant appears in India.

10. Though the answer to the above question from the side of the

plaintiff's counsel has been in affirmative on the ground that

once this Court has continued the existing proceedings, it

may be continued, till the time the respondent is brought to

the justice and sent to imprisonment in terms of the

conviction order dated 20.5.2004. The learned counsel of UOI

has left it to the discretion of the Court to consider the

passing of such orders as may be warranted in law.

11. The Court is faced with the dilemma as to whether the

present proceedings which obviously have been going on for a

period of 7 years, after holding the defendant guilty for an

offence and contempt has resulted in wastage of public time

at the expense of more important cases which need attention

of the Court and more particularly of the cases where the

accused persons are languishing in jail, should be continued

or not.

12. The answer to this question, I feel should be in negative and

the present proceedings ought not to be continued any

further and they can be adjourned sine die with liberty to

revive the same at the option of the plaintiff as and when the

defendant is brought to India under extradition treaty or he

appears on his own to face the consequences as may be

warranted in law.

13. This order has been passed on account of the fact that

admittedly the offence of contempt of Court in respect of

which the defendant has been held guilty is not an

extraditable offence under Section 2(c) of the Extradition Act.

Section 2(c) lays down that an 'extradition offence' means in

relation to a foreign State, being a treaty State, an offence

provided for in the extradition treaty with that State.

14. The defendant is residing in Canada and for the purpose of

making a requisition for surrendering or return of any

accused or convicted person to India the provisions of the

Extradition Act, 1962 (hereinafter referred to as the 'Act') have

to be complied with. A requisition for surrender or return of a

person can be made under Section19 of the said Act only if

the person is accused or convicted of an 'extradition offence'.

Under Section 2(c) of the said Act, an 'extradition offence'

means - (i) in relation to a foreign state, being a treaty state,

an offence provided for in the extradition treaty with that

State.

15. The Indo-Canadian Extradition Treaty, was notified on 7th

May, 1987. Article 3 of the Treaty defines Extradition

offences. As per clause 3(1) of the Treaty, an offence to be an

extradition offence must be an offence punishable by the laws

of both the contracting states by a term of imprisonment for a

period of more than one year. Under Section 12 of the

Contempt of Court Act, 1971 the maximum punishment is a

sentence of simple imprisonment for a period of six months.

16. It is submitted that the defendant vide order dated 20.5.2004

was sentenced to imprisonment for a period of three months

(and an additional period of one month in case of default in

payment of fine), hence the said offence cannot be termed as

an extradition offence. Even in cases involving commission of

an 'extradition offence' (punishable by a term of imprisonment

for a period of more than a year), there is no duty on the

Contracting State to extradite as Article 1.4 of the Treaty

clearly provides that there is no duty to extradite a person

sentenced in respect of an extradition offence where the

actual term of imprisonment is 6 months or less. Therefore,

the defendant is not held guilty of an extraditable offence and

even if it is assumed that it was an extraditable offence even

then the contracting State is under no obligation to extradite

for the offence if the sentence is of less than six months. On

both these counts, the defendant cannot be extradited.

17. It is also pertinent here to mention that the passport of the

defendant has already been impounded under Section 10(3)

(e) and 10(3) (h) of the Passport Act, 1967. The defendant

was also holding another passport which was issued by the

Consulate General of India, Toronto and the same has also

been impounded.

18. That the High Commission of India, Ottawa, Ontario vide

letter 4.8.2004 sought extradition of the defendant in respect

of having committed criminal offences u/S 500/501, IPC and

Section 72 of the IT Act, 2000. The same was done in

pursuance of a request for extradition received from the

Additional Chief Judicial Magistrate, Gautam Budh Nagar, UP

dated 13.4.2004. In pursuance of the same extensive

correspondence took place between the Ministry and the

Canadian Authorities. On 09.11.2006, the General Counsel

and Director of the International Assistance Group, wrote to

the Joint Secretary (Consular) that the evidence which had

been provided would not meet the new test for committal for

extradition laid down by the Supreme Court of Canada and

hence they could not proceed with the request for extradition.

Pursuant to further exchange of correspondence a reply was

received from Ms.Barbara Kothe, Senior Counsel,

International Assistance Group on 15.1.2008 setting out

detailed reasons as to why the defendant could not be

extradited in respect of the offences under Sections 500 and

501, IPC and Section 72 of the IT Act, 2000. Vide

communication dated 27.2.2009 Ms. Barbara Kothe clarified

as to how the International Assistance Group was authorized

to determine whether to issue an authority to proceed.

19. A second FIR, under Section 498A/406 IPC has been

registered at the instance of the plaintiff against the

defendant. In respect thereof, the Ministry of External Affairs

has requested the Canadian High Commission in New Delhi

to state whether 'subjecting a woman to cruelty, under

Section 498A of the Indian Penal Code and dowry related

offences' satisfy the requirement of dual criminality and

whether the alleged conduct of an accused person amounts to

extraditable offence in the Canadian laws. The Ministry of

External Affairs is making all efforts to secure extradition of

the defendant in accordance with law.

20. For the above mentioned reasons, I am of the considered

opinion that no useful purpose will be served by keeping the

present proceedings pending before this Court as the offence

of which the defendant has been found guilty could not be

said to be an 'extraditable offence' and accordingly the matter

is adjourned sine die with liberty to the plaintiff to revive the

same as and when the defendant is extradited in respect of

any other extraditable offence where he is facing trial and

steps have been taken by the Govt. of India to procure his

attendance under the extradition treaty. No order as to cost.

21. File be consigned to the Record Room.

V.K. SHALI, J.

July 04, 2011 RN