Gurdev Singh Dhnoay vs State
2012 Latest Caselaw 1075 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                   BAIL APPL. No.1448/2011

                                   Date of Decision : 16.02.2012

GURDEV SINGH DHNOAY               ...... Petitioner
                   Through: Md.Ehraz Zafar, Adv.

                                Versus

STATE                                     ......     Respondent
                               Through: Mr.     Jatan     Singh,
                                        Standing Counsel for the
                                        UOI.

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

V.K. SHALI, J. (Oral)

1. This is a petition for grant of bail by the petitioner who is in

custody since 29.3.2011. The petitioner is purported to have

been arrested vide DD no.65B under Section 41.1(g) of the

Cr.P.C. registered by P.S. IGI Airport, Delhi.

2. The allegations against the petitioner are that he was arrested

pursuant to a Red Corner Notice purported to have been

issued by Interpol in November, 2010 for criminal proceedings

pertaining to year 2003 in US Court.

3. It is alleged that the petitioner had come to India to see his

ailing mother and immediately on arrival, he was arrested.

Pursuant to the arrest of the petitioner, he was produced

before the Court of learned ACMM on 29.3.2011 at Dwarka,

whereupon he was sent to judicial custody. On 5.4.2011, the

petitioner moved a bail application before the Court of learned

ACMM, which was rejected on 20.4.2011. Feeling aggrieved

by the said rejection order, the petitioner filed a fresh bail

application on 23.4.2011, before the learned ASJ, Dwarka

Courts, which came up for hearing on the same date. He

challenged the procedure which was sought to be adopted by

the respondents in arresting the petitioner for extradition.

4. On 26.4.2011, the respondent apparently filed an application

before the designated Court of learned ACMM seeking

production warrants of the present petitioner for 10.5.2011.

On 27.4.2011, during the hearing of the bail application

before the learned ASJ, Dwarka Courts, the respondent

informed the petitioner as well as the Court that the

Government of India had instituted extradition Court by way

of nominating learned ACMM, Patiala House Court for the

purpose of conducting an inquiry into the matter of the

petitioner as to whether he is to be put to trial or not.

5. The ASJ on account of this subsequent developments,

dismissed the application of the petitioner as withdrawn, with

the liberty to file appropriate application before the

designated Court of learned ACMM, Patiala House Courts, who

was conducting the extradition proceedings. On 21.5.2011,

the petitioner again filed a fresh bail application before the

designated Court of learned ACMM, however, the said

application was dismissed on the ground that as the

documents have been received by the Government of India

from the Requesting State within 60 days of the arrest of the

petitioner, therefore, the bail could not be granted.

6. On 22.6.2011, the Ministry of External Affairs, Govt. of India

issued a Gazette notification nominating the learned ACMM as

Extradition Court for the purpose of holding an inquiry into the

matter.

7. It has been contended by the learned counsel for the

petitioner that presently the inquiry is being conducted by the

learned ACMM, which is likely to take some time and as the

petitioner has been languishing in custody for the last one

year, he may be given the benefit of Section 25 of The

Extradition Act, 1962 by enlarging him on bail.

8. This petition came up for hearing for the first time on

17.10.2011. Mr.Navin Sharma, APP was present on behalf of

the respondents in response to an advance copy having been

served and accepted notice on behalf of the State of Delhi and

sought time to file reply. A notice was directed to be issued

to the Standing Counsel, Government of India, returnable for

16.12.2011.

9. The respondents were duly served and they put in appearance

before the Court on 16.12.2011 and time was given to them

to file the reply and the matter was adjourned to 16.2.2012.

10. No reply is placed on record although Mr.Jatan Singh, the

Standing counsel for UOI has stated that the reply has been

filed 5 days back however, no number of filing is given. It

was the responsibility of the respondent to ensure that the

reply comes on record when more than two months time was

given.

11. I have heard the learned counsel for the petitioner as well as

the learned Standing counsel for the CBI.

12. The learned counsel for the respondent has vehemently

contested the bail application of the petitioner on the ground

that the petitioner was arrested in pursuance to the Red

Corner Notice on 28.3.2011, a request was received by the

Ministry of External Affairs from the Govt. of United States of

America for extradition of the petitioner as he was required to

stand trial on serious charges of embezzlement. The details

of charges are mentioned in the said request letter. It was

contended by the learned Standing counsel for the UOI that

the petitioner in pursuance to the allegations of fraud had put

in appearance before the Court of Extradition and thereafter,

absented himself. It is stated that the magnitude of the crime

of the petitioner is very large inasmuch as he had stolen

personal ATM banking account information of approximately

277 persons and then conducted fraudulent bank withdrawal

without their knowledge or authorization to the extent of $

425000 USD. It is also contended by him that the petitioner

is presently facing an inquiry under the Extradition Act before

the learned ACMM and therefore, at best the Court can issue a

direction to the said Court to conclude the inquiry, as

expeditiously as possible.

13. The learned Standing Counsel has contended that the

petitioner was arrested by the local police in pursuance to the

provisions of Section 41.1 (g) Cr.P.C. which enables the police

to arrest any person who is purported to have been involved

in a reasonable complaint or a credible information or a

reasonable suspicion that he has committed an offence at any

place outside India which, if committed in India, would be a

punishable offence and for which he can been expedited. It is

contended that the arrest of the petitioner cannot be faulted.

14. The learned counsel has also placed reliance on case titled

Ram K.Mahbubani Vs. UOI 153 (2008) DLT 471, decided on

12.9.2008 by the Bench of this Court and Salwant Singh

Sandhu Vs. State of Delhi & Ors. 91 (2001) DLT 577

decided on 23.4.2001.

15. The learned counsel for the petitioner as against this, has

stated that he may be released on bail as he is presently

languishing in custody and the inquiry is likely to take some

time. It has also been contended that at the time of his

arrest, there has been a violation of the constitutional right as

well as the guidelines laid down by the Apex Court in

D.K.Basu Vs. State of West Bengal 1997 (1) SCC 416

inasmuch as the petitioner was not communicated the

grounds of arrest.

16. On being asked, the learned counsel for the respondents was

not able to show any document which would satisfy the Court

that the provisions of Article 22(1) wherein the arrestee is to

be communicated the grounds of arrest have been

communicated to the petitioner. Article 22(1) has also been

reiterated by the Supreme Court in D.K.Basu's case (supra),

which is one of the important milestones of criminal justice

system. This judgment also lays down that the arresting

officer must bear his name plate or at least disclose his name,

the grounds of arrest should be communicated, and the

relative or a friend of the arrestee be informed. The direction

of D. K. Basu's Case (Supra) have been observed more in

breach than in compliance. As a matter of fact, in D.K.Basu's

case, the Court has not only frown upon violation of the

constitutional rights of the petitioner but has also said that it

amounts to violation of the Court order which will entails

initiation of contempt proceedings against the arrestee

officer.

17. Be that as it may, the petitioner is only praying for bail as the

inquiry is likely to take some time. I am inclined to admit the

petitioner to bail inasmuch as the petitioner at the time of

arrest was not communicated the grounds of his arrest and

the request of the requesting State for extradition had been

received much later than the date of his arrest.

18. So far as the two judgments which have been relied upon by

the learned counsel for the respondents are concerned, they

are not applicable to the facts of the present case for the

simple reason that in Mehbubani's case (supra) the question

which was involved was the illegal detention of the petitioner

and the grant of a writ of Heabea Corpus while as in the

present petition, the petitioner is only praying for grant of

bail.

19. Similarly, so far as the other judgment in Salwant Singh

Sandhu's case (supra) is concerned, the said judgment was

sought to be relied upon by the learned counsel in order to

justify the arrest of the petitioner but the same is not

applicable to the facts of the present case on the ground

that in that case, warrants were received from a competent

Court in Singapore prior to the date of the arrest of the

petitioner while as, in the instant case on 28.3.2009, no

doubt, the petitioner was arrested in pursuance to the

Interpol notice but then he ought to have been communicated

the ground of his arrest, while as the request for his

extradition had been received by the Ministry only on

31.3.2003 that is much later than the date of his arrest. For

more than 7 years, there was violation of not only the

constitutional right guaranteed to the petitioner under Article

22(1) of the Constitution but also by virtue of the judgment of

the Apex Court.

20. In my considered opinion merely because presently inquiry is

being held or that a request was subsequently, thereafter,

received would not legalize the illegal detention of the

petitioner.

21. In view thereof, I am inclined to admit the petitioner on bail

during the pendency of the inquiry. Accordingly, the

petitioner shall be released on bail by the learned ACMM on

furnishing a personal bond in the sum of Rs.10,00,000/- with

two sureties of the like amount to the satisfaction of the

learned ACMM. The learned ACMM is directed that the

persons who stood sureties should not only have fixed place

of residence but must also own immovable property in Delhi.

22. The petitioner on being released shall not leave the National

Capital Territory Region of Delhi without the permission of the

Court and shall attend the inquiry proceedings without fail; in

case he has to leave National Capital Territory Region of

Delhi, appropriate application be filed and permission be

obtained from the Court of the learned ACMM; the petitioner

shall surrender his passport, if not already done.

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

24. DASTI.

V.K. SHALI, J

FEBRUARY 16, 2012 RN