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High Court Of Delhi
M.BASKARAN - Appellant
Versus
STATE OF DELHI - Respondent
Criminal Miscellaneous (Main) 1801 of 1988
Decided On : 12/27/1988
CRIMINAL PROCEDURE - SECTION 41 (1) (G) - EXTRADITION ACT, 1962 - SECTIONS 4, 5, 6, 7, 8, 9, 25 - ARREST AND DETENTION OF A PERSON WITHOUT WARRANT OR MAGISTRATE'S ORDER - CONDITIONS AND REQUIREMENTS - INTERPRETATION AND APPLICATION - BAIL - CONDITIONS AND RESTRICTIONS.
Fact of the Case:
The petitioner, a Malaysian national, was arrested in India based on a telex message from the Malaysian authorities alleging his involvement in a criminal breach of trust. The arrest was made under Section 41 (1) (g) of the Criminal Procedure Code, which empowers a police officer to arrest a person without a warrant or magistrate's order in certain circumstances. The petitioner challenged his arrest and detention, arguing that the procedure prescribed under the Extradition Act, 1962, was not followed and that the arrest under Section 41 (1) (g) was not justified.
Finding of the Court:
The court found that the arrest and detention of the petitioner were illegal and without authority of law. It held that the police officer did not have credible information or reasonable suspicion to arrest the petitioner under Section 41 (1) (g) of the Criminal Procedure Code. The court also noted that the procedure prescribed under the Extradition Act, which regulates the surrender of fugitive criminals to foreign countries, was not followed.
Issues: 1. Whether the arrest and detention of the petitioner were legal and justified under Section 41 (1) (g) of the Criminal Procedure Code? 2. Whether the procedure prescribed under the Extradition Act, 1962, was followed in the case?
Ratio Decidendi: The court held that the arrest and detention of the petitioner were illegal and without authority of law for the following reasons: 1. The police officer did not have credible information or reasonable suspicion to arrest the petitioner under Section 41 (1) (g) of the Criminal Procedure Code. The telex message from the Malaysian authorities was too vague and did not disclose the specific facts and circumstances of the alleged offense. 2. The procedure prescribed under the Extradition Act, 1962, was not followed. The police officer did not obtain a warrant from the magistrate before arresting the petitioner, and the magistrate did not hold an inquiry to determine whether there was a prima facie case for extradition. 3. The petitioner was entitled to be released on bail under Section 25 of the Extradition Act, which applies the provisions of the Criminal Procedure Code relating to bail to fugitive criminals.
Final Decision: The court granted bail to the petitioner on the following conditions: 1. The petitioner had to make himself available for and during extradition proceedings, if any, taken by the authorities and present himself as and when required. 2. The petitioner could not leave India without the prior permission of the court. 3. The petitioner could not do anything that would result in any form whatsoever in hampering the administration of justice.
( 1 ) THIS is a petition under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Criminal Procedure) for bail.
( 2 ) IT appears that on the basis of a telex message received from Kaula Lampur. Malayasia. the petitioner was arrested by the Police Station Indraprastha Estate. New Delhi on 14th December, 19s8 under Section 41 (l) (g) of the Criminal Procedure which authorises a Police Officer to arrest a person without an order from Magistrate and without a warrant for an alleged offence of Criminal Breach of Trust by a Public Servant under Section 409 of the Malayasian Penal Code.
( 3 ) AFTER the arrest, the petitioner was produced before Shri R K. Jain, Metropolitan Magistrate who fixed the matter for 16th December, 1988, The bail application of the petitioner which was preferred by him to the learned Magistrate was kept pending on the request of the State Counsel claiming that enquiry was pending and directions of the Home Ministry, Government of India were being sought.
( 4 ) THE bail application was heard by the learned Metropolitan Magistrate on 19th December, 1988 and the same was rejected by him. The rejection Order of the learned Magistrate is reproduced below : "heard. Perusal of record. 1. 0. present. He has shown telex message and other relevant documents were being summoned through Ministry of Home Affairs, concerning the fact. Accused cannot be released at present. Rejected. " It is apparent from the said order that at that stage, i. e. on 19th December, 1988 only telex message was available with the Police which was shown to the petitioner and no other documents were available with them which were being summoned by them through Ministry of Home Affairs concerning the fact.
( 5 ) THE petitioner was again produced before the learned Magistrate on 23. 12. 19k8 who remanded the petitioner to Judicial Custody till 26th January, 1989. The petitioner, however, filed an application for bail again before the learned District and Sessions Judge which was assigned to Shri Jaspal Singh, Additional District Judge. The matter was taken up by the learned Additional District Judge and at the time of bearing he was shown telex message received from the I. P. . Kaula Lampur, Malayasia, copy of which has been annexed by the petitioner as Annexure I to the Petition. The contents of that Annexure are reproduced below : "from : IP Kuala Lumpur Pormma 30469 DTD 160830/609004 To : IP New Delhi 312513 CBIN IN Info : KPO PENGKALAND HUCU Our ref. No. : US (IP) KPN (PR) 71/5/46 dt. 16. 12. 88 SX Re : Baskaran Mathurai. Malaysian National D. O. B. 30 US (IP) KPN (PR) 71/5/46-30. 8. 88 300 Re : Suspect Baskaran Mathurai Malaysian National Date of birth 308 1954, PERAK, Holder of Malaysian International Passport No. X-1982448 and holder of Malaysian I. D. Card No. 4707849 Resident of 3 Surner Road, Lim Garden, Siligen, lpoh. West Malaysian wanted for arrest for offence of criminal breach of trust by a public servant, Section 409 Penal Code. We believe subject has fled to India or Australia. Request conduct discrete enquiry with view to extradite. From-Kuala Lumpur" At the time of hearing of the bail application before the learned Additional District Judge the State sought time/adjournment on the ground that the application was to be argued by the Public Prosecutor who had gone on leave. Since the State was seeking time/adjournment on one pretext or the other and delaying the matter there was no option for the petitioner except to withdraw his bail application, as according to him he was under illegal detention and adjourment of the case on one pretext or another clearly amounted to rejection of bail. Even otherwise, he could move the High Court under Section 25 of the Extradition Act, 1962 (hereinafter referred to as extradition Act ) after the rejection of the bail by the Magistrate as Magistrate has in such cases powers of Court of Sessions,
( 6 ) THE petitioner thereafter filed this petition in th
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