Case Note & Summary
The applicant, the first informant in a criminal case, filed a criminal application before the High Court of Judicature at Bombay under Sections 482 and 439(2) of the Code of Criminal Procedure, 1973, challenging an order dated 11th August 2006 passed by the Additional Sessions Judge. The impugned order granted bail to the first respondent and directed concerned officers to take appropriate action to bring him back to India after his release on bail. The applicant contended that the Additional Sessions Judge had no jurisdiction to grant bail as the first respondent was not in custody and that the judge lacked power to issue directions under the Extradition Act, 1962. The first respondent was a permanent resident of the USA and was an accused in an FIR dated 6th October 2004 for offences under Sections 420, 465, 467, 468, 471 read with Section 34 of the Indian Penal Code. During investigation, the Magistrate had issued a standing non-bailable warrant on 16th December 2004 to enable Interpol to issue a red corner notice. The first respondent was later arrested on 31st May 2006 in Belgium, and extradition proceedings were initiated. Prior to the bail order, the Magistrate had rejected a similar bail application on 11th July 2006, noting that the first respondent was neither arrested nor produced before the court. The High Court, while analyzing the challenge, first addressed the direction to facilitate extradition. It held that the direction had nothing to do with the power to grant bail under Section 439 CrPC and that the Additional Sessions Judge does not possess any inherent power either under the Code or any other law to issue such a direction. The judgment also began to consider the jurisdiction to grant bail when the accused is in foreign custody, but the provided text remains incomplete. Consequently, the final decision on the bail grant and the fate of the impugned order is not expressly stated in the available excerpt.
Headnote
A) Criminal Procedure - Bail - Scope of powers under Section 439 CrPC - No inherent power to direct extradition procedure - Code of Criminal Procedure, 1973, Section 439; Extradition Act, 1962 - While granting bail to an accused arrested abroad, Additional Sessions Judge directed officers to expedite extradition procedure to bring the accused to India - Held, such direction is unrelated to bail jurisdiction and the court does not possess inherent power to issue such directions (Paras 10-11).
Issue of Consideration
Whether the Additional Sessions Judge had jurisdiction to grant bail to the first respondent who was not in custody in India and to issue directions under the Extradition Act, 1962 for expediting his return
Law Points
- Jurisdiction under Section 439 CrPC
- scope of inherent powers
- directions under Extradition Act
- 1962
- concept of custody for bail
- extradition procedure
Case Details
2006 LawText (BOM) (10) 47
CRIMINAL APPLICATION NO.3073 OF 2006
Shri Nitin Pradhan with Ms. Shubhada Khot for the Applicant, Ms Rohini Wagh for the Respondent No.1, Shri A.S.Gadkari, A.P.P. for the State
Govind Prasad Shriwastav, Union of India, Director, Central Bureau of Investigation, State of Maharashtra
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Nature of Litigation
Criminal application under Sections 482 and 439(2) CrPC challenging bail order and directions for extradition
Remedy Sought
Applicant seeks to set aside order granting bail and direction for extradition procedure
Filing Reason
Additional Sessions Judge lacked jurisdiction to grant bail as accused not in custody and power to issue extradition directions
Previous Decisions
Magistrate rejected bail on 11.07.2006; Additional Sessions Judge granted bail on 11.08.2006
Issues
Whether the Additional Sessions Judge had jurisdiction to give directions for completing extradition procedure under the Extradition Act, 1962
Whether the first respondent being in custody abroad pursuant to an Indian warrant constitutes custody for the purpose of grant of bail under Section 439 CrPC
Submissions/Arguments
Applicant's counsel: the Additional Sessions Judge could not exercise jurisdiction under Section 439 as the first respondent was neither in custody nor had surrendered; the judge had no power to give directions under the Extradition Act
First respondent's counsel: the first respondent was arrested on the basis of the warrant issued by the Magistrate; thus he was in custody and the judge had power to grant bail under Section 25 of the Extradition Act; the direction was only to ensure his appearance
APP for the State: the first respondent was not in custody and the learned Magistrate had denied bail on that ground
Ratio Decidendi
The Additional Sessions Judge does not possess inherent power to give directions for expediting extradition procedure under the Extradition Act, 1962, as such direction has no connection with the power to grant bail under Section 439 CrPC.
Judgment Excerpts
the learned Additional Sessions Judge had no power to give directions to the concerned officers for completing extradition procedure under the provisions of the Extradition Act, 1962
The learned Additional Sessions Judge does not possess any inherent power either under the Code or under any other law.
Procedural History
Applicant filed Criminal Application No.3073 of 2006 under Sections 482 and 439(2) of the Code of Criminal Procedure, 1973 before the High Court of Judicature at Bombay, challenging the order dated 11th August 2006 passed by the Additional Sessions Judge granting bail to the first respondent and directing officers to expedite extradition.
Acts & Sections
- Code of Criminal Procedure, 1973: 482, 439(2), 105-B
- Extradition Act, 1962: 2(c), 25
- Indian Penal Code, 1860: 420, 465, 467, 468, 471, 34
