D.S.R. Varma, J.
1. The relief sought for in the writ petition is as follows:
For the reasons stated in the accompanying affidavit filed in support of this writ petition it is prayed that this Hon'ble Court may in the interests of justice be pleased to issue a writ of habeas corpus directing the respondents herein to produce the petitioners before this Hon'ble Court and to call for all the records pertaining to the investigation into Crime No. Rc.6(E)/CB/BSFC/BLR dt. 27th Dec, 1997 and the pursuant Judicial Proceedings thereon which include C.C. No. 24 of 2001 and also C.C. No. 22 of 2003 on the file of Court of the Special Judge for Economic Offences, Hyderabad, and declare the action of the CBI, BSFC, Bangalore, the 2nd respondent in not complying with the mandatory provisions of law viz., Section 105 and Section 105B Cri.P.C. as relates these petitioners herein, and by not serving summons or process on them, and acting on false and untrue grounds obtaining NBWs and the consequent actions of their alerting the Interpol with the fraudulently obtained NBWs against the petitioners, and the Extradition Proceedings against them, and their arrest at USA on 2nd July 2009 by the Superintendent of Police, BSFC, Bangalore, and their production before the Court of the Special Judge for Economic Offences, Hyderabad, and their being remanded to Judicial Custody, as totally unlawful, illegal, in violation and total disregard of the procedure established by law, and not warranted either in law or on facts, and as such grossly violative of Articles 14 and 21 of the Constitution of India, and to set them free, and pass such other further orders as may be deemed just and necessary in the circumstances of the case.
2. Brief facts that led to the filing of this Writ Petition are as follows:
A written complaint was made on 20-12-1997 by the Deputy General Manager (Vigilance), State Bank of India, Hyderabad, to the second respondent-C.B.I, BSFC, Bangalore (for brevity 'the CBI'), alleging certain irregularities committed by the Officers of the bank and also the accused and their companies and that the total number of persons accused of were 20 persons. It was specifically alleged that the petitioners, being the Directors of Suri Group of Companies, conspired with the bank officials, availed credit facilities and committed various acts of fraud, cheating etc. Based on the said complaint, the CBI registered a case in Crime No. Rc.6(E)/CBI/BSFC/BLR, dated 2742-1997, against the petitioners and some other accused for the offences punishable under Section 120-B read with 420, 467, 468 and 471 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1947, along with other allied offences under the Prevention of Corruption Act, 1947.
3. The CBI, immediately, moved an application under Section 93 Cr.P.C., before the Court of Special Judge for CBI Cases, Hyderabad (for brevity 'the Special Court'), seeking issuance of search warrants to search the premises of the accused-company at Tarnaka. It was revealed in the investigation that the Suri Group of Companies wound up their business activities and the State Bank of India filed civil suits against them in the year 1995, and A-3, A-5 and A-6 left India and settled at United States of America (for brevity 'USA'); that during September, 1999, while A-3 was travelling to India, he was detained and examined by the officers of the CBI and in that process, the addresses of petitioners, who are A-5 and A-6, and other accused were revealed; that on obtaining the residential addresses of the petitioners, the CBI filed an application before the Special Court, seeking issuance of Non-Bailable Warrants (for brevity 'NBWs') against the petitioners. The Special Court, having found that a prima facie case was made out against the petitioners, issued NBWs by order, dated 15-05-2001.
4. It is not in dispute that after completion of investigation, the CBI filed charge sheet before the Special Court, on 12-10-2001 and, even on the date of filing charge sheet, NBWs, were pending execution. The Special Court took cognizance of the case, numbered as C.C. No. 24 of 2001 and issued summons to all the accused, including the petitioners. Immediate thereto, the CBI got issued Red Corner Notice by the Interpol against the petitioners on 07-12-2001 and initiated proceedings, under the Extradition Act, 1962, (for brevity 'the Act 34 of 1962'), to extradite them. Subsequently, the petitioners were arrested at USA and were extradited to India, and when they were produced before the Special Court, they were remanded to judicial custody.
5. The petitioners, having been aggrieved by the issuance of NBWs, filed Crl.M.P. Nos. 1210 and 1211 of 2009, before the Special Court, seeking to recall NBWs issued against them and permit them to face the trial. By order, dated 22-05-2009, the Special Court rejected the said applications. Against which, the petitioners filed Crl.P. Nos. 3439 and 3440 of 2009, which were also dismissed by this Court, by order, dated 28-05-2009. Subsequently, the matter was carried to the Supreme Court, vide Special Leave Petitions (Crl) Nos. 4353 and 4354 of 2009, and the petitioners filed an application to withdraw the said petitions as having become infructuous.
6. Subsequent thereto, challenging the action of the CBI in having the Red Corner Notice issued against them, the petitioners have filed W.P. No. 10921 of 2009, which was also dismissed by a learned single Judge of this Court. Against which, the appeal W.A. No. 756 of 2009, preferred by the petitioners, is pending consideration before this Court. While so, the present writ petition came to be filed, seeking a writ of habeas corpus to produce the petitioners, and for the relief extracted above.
7. The grievances of the petitioners are mainly three fold.
(a) Firstly, it is the contention of the learned Counsel for the petitioners that there is absolutely no need for the CBI to file a petition before the Special Court seeking issuance of NBWs to the address at Tarnaka, Secunderabad, because the authorities are fully aware of the residential addresses of the petitioners in USA, that the warrants, if at all, sought for against them could have been only to the addresses at USA and that it was only to disrepute them, all through the proceedings, their addresses were shown at Tarnaka, Secunderabad. According to the counsel, the conduct of the CBI is nothing but to mislead the Court and obtain an order from the Court.
(b) Secondly, while issuing NBWs, the procedure under Section 105-B, which is mandatory in nature, was not followed, and on that ground, the NBWs issued by the Special Court are to be declared as illegal, and the consequential detention of the petitioners ought to be held as illegal and, accordingly, they deserve liberty by the order of this Court. Learned Counsel contends that as per Section 105-B Cr.P.C., summons be issued to the petitioners instead of warrants and if summons have been issued, they would have voluntarily presented themselves before the Special Court, that there was no need for the CBI to get an order from the Court when their presence could be secured easily by issuance of summons to the address in the USA and taking such an extreme step of invoking jurisdiction under Section 105-B Cr.P.C. for issuance of NBWs is totally unwarranted and apparently prejudicial.
(c) Thirdly, the petitioners were declared as absconders. The ingredients of Section 82 Cr.P.C., in order to declare a person as an absconder, are totally missing in the present case and in the absence of any such conditions, the Special Court was in serious error in ordering to issue NBWs as sought for by the CBI. In support of this contention, learned Counsel submits that when the CBI had absolute knowledge of the petitioners' addresses both at Tarnaka and USA, there are no impounding circumstances to seek a declaration that petitioners are absconders and for issuance of NBWs.
8. On the other hand, the learned standing counsel appearing for the CBI contends that there is nothing illegal or violation of any procedure under law depriving right to freedom of the petitioners, and, inasmuch as, the complaints against them are serious in nature, touching upon the public faith, the matter has been entrusted to CBI and the same was investigated into; that the procedure prescribed under law had been followed, particularly to secure the presence of the petitioners, who are arrayed as A-5 and A-6; that it was imperative to the CBI to move the Special Court, seeking for issuance of NBWs on the ground that the petitioners have left the country after misappropriating the public funds and that though the local address was shown in the records initially, after getting information from A-3, who is no other than the father of A-6 and uncle of A-5, the address of the petitioners at USA, both the addresses were shown in all the records, including various petitions filed before the Court, and therefore, there is nothing irregular or illegal in the procedure adopted by the C.B.I. He also contends that unless there is an order of the Court to issue NBWs, the other procedure prescribed under the Extradition Act and issuance of Red Corner Notice cannot be affected and, therefore, an application had been filed seeking issuance of NBWs.; that the petitioners could not be traced for the purpose of investigation since 1.997, and, as a last resort, an attempt was made by CBI moving the Special Court for issuance of NBWs on the ground that they were absconding.
9. We would like to deal first with the aspect - as to whether the Special Court was right in issuing NBWs, by order, dated 15-05-2001.
10. In this regard, it is necessary to look into the averments made in the petition filed by the CBI.
11. During 1992-93, there was alleged misappropriation of funds to a tune of Rs. 3.13 crores in A.P. State Cooperative Bank, Tarnaka, Hyderabad; that the petitioners conspired with the bank officials and availed the loan of Rs. 4.3 crores and that the total wrongful loss caused to the bank was Rs. 47.54 lakhs; that the verifications so far conducted could not establish the location of the petitioners along with another accused and that their arrest and custodial interrogation are essential in order to bring out the facts of fraud; that the petitioners, at that point of time, were staying in USA; that the CBI had made a reference to Interpol (International Police Organization, Paris) for their arrest and subsequent handing over to Indian authorities for investigation purpose and that as per the existing guidelines, before the arrest of the accused person and allow the warrant to be circulated worldwide. Therefore, the C.B.I. prayed the Special Court as under:
It is therefore humbly prayed that this Hon'ble Court may be pleased to issue a Non-Bailable Warrant for the arrest of S. Ravi Kumar (A.4), S. Prem Kumar (A.5) and S. Gunaranjan (A.6) which is essential for the investigation of this case. Since the procedural aspects for making reference to the International Police Organization are time consuming, it is also prayed that the Non-Bailable arrest warrant may please be issued without fixing a specific date for the return of the same.
12. From the aforesaid prayer, it is clear that the intention of the CBI in approaching the Interpol was to get the petitioners arrested for the custodial interrogation and as the same was time consuming, they filed a petition, seeking for issuance of NBWs. Upon the said petition, the Special Court passed the impugned order.
13. For the sake of convenience and ready reference, it is apt to extract the impugned order, passed by the Special Court, which, in verbatim, reads thus:
Heard both sides.
The statement of applicant who is Inspector of Police is recorded. As per the said statement, it is clearly made out that the accused persons A-4 to A-6 viz., S. Ravi Kumar, S. Prem Kumar and S. Gunaranjan, who are involved in the above case are avoiding the process of law and not cooperating the investigation made against them and there is a prima facie case of their involvement in the matter involving a sum of Rs. 3.13 crores siphoned to various benami firms floated by them causing loss to the public sector undertakings viz. State Bank of India, National Remote Sensing Agency, E.T. and N.T. Department of Telecommunication. Considering the above circumstances, and keeping in view of the fact that the accused are staying abroad in United State of America and not within the reach of petitioner-investigating officer, this Court is of the view that it is fit case where extradition is to be sought and for the said purpose the Non-bailable Warrant against them is to be issued, considering the offence attributed against them viz. offences under Section 120-B, 420, 467, 468 and 471 IPC and also the offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and other allied offences.
Hence, issue Non-Bailable Warrants against A-4 to A-6. The Investigating Officer is permitted to circulate the Non-Bailable Warrant worldwide and he is also at liberty to take the assistance of Interpol or the foreign embassy for securing the production of the accused before this Court.
14. From a bare reading of the aforesaid order, it appears that the Special Court, having considered the gravity of the offences committed by the petitioners, and since the accused were not within the reach of the Investigating Officer, issued NBWs to secure their presence.
15. It is to be noticed that the C.B.I. had brought to the notice of the Special Court the original address as well as the present address of the petitioners at USA. Therefore, we are of the view that, in such circumstances, there is no concealment of any fact by the CBI since both the addresses were reflected on every petition/order/proceeding for issuance of NBWs seeking intervention of Interpol. It is also to be noticed that though the petitioners have been residing in USA, prior to 1997, and since the alleged financial irregularities have been surfaced for the first time in the year 1997, there was necessity to know their place of living. Though summons to the address at Tarnaka were served, they could not succeed since that address was no longer their place of abode. Nevertheless, it cannot be ignored, as a legal formality, that the address that was incorporated in the official records has to be necessarily reflected in every petition. Therefore, we are unable to agree with the contention of the learned Counsel appearing for the petitioners that though the CBI had knowledge of the address of the petitioners at USA, the said fact was concealed and sought for issuance of NBWs.
16. The Special Court, having recorded that the petitioners were not within the reach of the Investigating agency, issued NBWs. It is also to be noted that when complaints were made against the petitioners for the first time in the year 1997 and investigation has commenced, their whereabouts were not known for many years until their addresses were obtained from A-3, and, therefore, it is not easy for the Court to arrive at a conclusion that by mere issuance of summons, their presence could be secured.
17. An ordinary prudent person, who has been involved in serious offences of this nature, presumably, has knowledge and with all sense of responsibility, he ought to have come back to India and contest the matters in the Court of law pleading ignorance. But, that did not happen in the present case and, on the contrary, they plead total ignorance about the pending proceedings along with his father in India. An inference can be drawn that the petitioners never intended to appear before the Court and face the trial. It cannot be lost sight of that though the alleged irregularities have surfaced 13 years ago, still, some of the accused are at large. However, the progress in the investigation cannot be expected to be at the pace required, which would shatter the public faith. Technicalities, if any, in our considered view, are trivial in nature, and they shall not be treated as capable of vitiating the proceedings that have already been initiated. In spite of the order of the Special Court, dated 15-05-2001, the petitioners could be brought back to India only in the year, 2009.
18. Subsequent to the issuance of NBWs Corner Notice was issued. Once Red Corner Notice was issued, the petitioners cannot gain entry to any port of entry escaping the hawk's eye of the Interpol. Obviously, little progress could be seen from CBI, since 2001 to 2009, and no plausible explanation is forthcoming. We put on record our displeasure in this regard. However, the first contention raised by the learned Counsel appearing for the petitioners cannot be sustained.
19. It is the further contention of the learned Counsel appearing for the petitioners that Clause (ii) of Sub-section (1) of Section 105 Cr.P.C., deals with the procedure for service or execution of summons or warrants in relation to criminal matters. Similarly, he points out that, even as per Section 105-B Cr.P.C., summons ought to be issued initially to enable the persons who are to be interrogated in the process of investigation before straight away resorting to issuance of warrants. His main thrust is that, during the course of investigation and consequential interrogation, the Investigating Agency may arrive at a conclusion that the presence of the accused is totally unwarranted, in case their participation in the offence could not be established and in the event of issuing summons, the petitioners could have proved their innocence and had got themselves exonerated from the offences and because of the issuance of warrants by the Special Court at the instance of CBI, the petitioners have been branded as accused.
20. From a combined reading of Clause (ii) of Sub-section (1) of Section 105 Cr.P.C. read with Sub-section (2) of Section 105-B Cr.P.C., it is clear that the Courts have jurisdiction to issue either summons or warrants under the procedure prescribed therein and that the summons or warrants must be in the form as the Central Government may, by notification, specify in this behalf, to cause the same to be served or executed against the persons whose presence is required. Neither of these provisions do identify the situations where only summons or warrants should be issued, implying thereby that the Courts have to look into the facts and circumstances of the case and as and when a petition is sought to be filed seeking issuance of warrants and after satisfying itself, it may pass orders issuing NBWs.
21. However, the facts, in the present case, cannot be ignored. The allegation against the petitioners was that they played fraud along with the other accused and misappropriated huge sum belonging to the public. The Courts will only first look into the gravity of the allegation and the consequences thereof, which will affect the social order, and nextly consider the right guaranteed under Article 21 of the Constitution of India. No doubt, Article 21 finds its place of distinction in the Constitution of India. While dealing with an issue or controversy, issuance of warrants and arrest as a sequel to it, ought not to be resorted to as a matter of routine at the peril of right under Article 21 of the Constitution of India, unless the facts and circumstances are so apparent that it requires the intervention of the Investigating Agency. There cannot be such impediment in its rigid sense. The simple reason is that no citizen can take shelter under Article 21 of the Constitution of India and escape from the clutches of Investigating Agency and the consequential adjudicatory process.
22. Coming to the aspect mentioned under Sub-section (2) of Section 105-B Cr.P.C., relating to notification issued by the Central Government, specifying the procedure to issue summons or warrants, it is to be seen that no such procedure, as prescribed by the Central Government, is placed before this Court by the learned Standing Counsel appearing for the CBI.
23. According to the learned Counsel appearing for the petitioners, the guidelines for Extradition and investigation are as follows:
Extradition request for an accused:
Extradition request for an accused/fugitive can be initiated after charge sheet has been filed before an appropriate Court and said court having taken cognizance of the case has issued orders/directions justifying accused/fugitive's committal for trial on the basis of evidence made available in the charge sheet and has sought presence of the accused/fugitive to face trial in the case. All extradition requests should be supported by documents and information enumerated below.Note: If an extradition treaty exists between India and the requested country, the extradition request and documents connected therewith should be prepared on the basis of provisions of Extradition Treaty.
(emphasis supplied by us)
24. From the above note, it is clear that when extradition treaty exists between India and the requested country, the material should be prepared on the basis of the provisions of Extradition Treaty. The other procedural aspects are also mentioned, which, in our considered view, are not relevant. It appears that the provisions in the Extradition Treaty gain primacy when the provisions of Act 34 of 1962 are required to be applied.
25. Coming to the case on hand, NBWs were issued on 15-05-2001 and, in pursuance thereof, Red Corner Notice was issued and as a consequence, the petitioners were under the surveillance and as soon as they were traced, they were extradited to India.
26. It is significant from the above guidelines that the accused can be extradited only after charge sheet is filed before an appropriate Court and on taking cognizance of the case. One of the guidelines postulate that an order from the Court justifying the committal of the accused for trial on the basis of evidence made available in the charge sheet and seek the presence of the accused to face trial in the case.
27. In this regard, it is necessary for us to look into the conditions of the pact between India and contracting country.
28. Article 1 reads as under:
The Contracting States agree to extradite to each other pursuant to the provision of this treaty, persons who, by the authorities in the Requesting State are formally accused or charged with or convicted of an extraditable offence, whether such offence was committed before or after the entry into force of the treaty.
29. From the above treaty, it is enough if the person is 'formally accused of. In other words, the pact never intended that the treaty has to be applied only to those who are charge-sheeted. The offences, which are extraditable, are also mentioned. However, we have no hesitation to hold that the present offences fall under that category. In other words, the provisions of Act 34 of 1962 have overruling effect over the procedure prescribed under the Cr.P.C., otherwise, the very purpose of treaty would get frustrated in the event of contracting countries sticking to their own laws. After all, the Extradition Act is akin to legislation made by the contracting country. Hence, we are of the view that the procedure prescribed under Sections 105 and 105-B Cr.P.C., would not come in the way of extraditing the petitioners.
30. It cannot be understood from the said pact to the effect that only those persons against whom charge sheet was filed before the Court can be extradited. Even a person who is found to be a formal accused can also be subjected to extradition, if the facts and circumstances do really call for. Since the petitioners were brought back to India, we need to go into the aspect as to whether the extradition proceedings have taken place, pursuant to the warrants issued by the Special Court on 15-05-2001. In a way, the present position where the petitioners are placed in is irreversible.
31. As already noticed, Crl.M.P. Nos. 1210 and 1211 of 2009, filed before the Special Court, seeking to recall the NBWs, were dismissed, and this Court, in Crl.P. Nos. 3439 and 3440 of 2009, confirmed the same. The corollary of the said orders is that the petitioners have to remain in judicial custody, pending investigation.
32. On this issue, we are fortified with the judgment in Rosiline George v. Union of India and Ors. (1) 1993 (3) Crimes 583, wherein the Supreme Court held as under:
It is obvious from the plain language of Section 5 of the Act that the Central Government can direct any Magistrate to hold inquiry provided the said Magistrate would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction. It is not disputed that the offences alleged to have been committed by George in the letter of request by the State of America would, if committed in the local limits of the Magistrate, have given the Magistrate jurisdiction to inquire into the same. The act, being a special provision dealing with the extradition of fugitive criminals, shall exclude from application the general provisions of the Code of Criminal Procedure, 1973. In any case, Section 5 of the said Code gives overriding effect to the special jurisdiction created under any special or local laws. Sections 177, 188 and 190 of the Code have no application to the proceedings under the Act. We see no force in the contention of the learned Counsel and reject the same.
33. Regarding the aspect of declaring the petitioners as absconders, the petitioners left India in the year 1996 and soon thereafter, the alleged irregularities had surfaced. It cannot be believed that the petitioners have no knowledge of the proceedings taking place in India, moreover when Red Corner Notice was issued, and their arrest could be effected only in the year 2009, indicates that the petitioners were aware of the proceedings, otherwise nonavailability of the petitioners, at any other airport cannot be believed.
34. As already noticed, much water had flown right from issuance of NBWs i.e. from 15-05-2001, and eventually, they were arrested in the year 2009 and brought back to India.
35. What was alleged in the petition, filed by the CBI, is to issue NBWs since the petitioners were absconders, but not to declare them as absconders. There is no declaration that the word 'absconder' shall not be understood as a declared absconder.
36. As already pointed out, the action of CBI also cannot be ratified as very satisfactory, in all these years, even subsequent to issuance of NBWs. What is surprising is that, while issuing NBWs to the petitioners, summons were issued to all the other accused by the Investigating Agency. It appears to be strange that both the Special Court as well as the CBI ignored this vital aspect touching upon the discrimination.
37. However, we do not accede to the request of the learned Counsel appearing for the petitioners to grant bail to the petitioners.
38. But, this does not preclude the petitioners to file an application seeking for bail in view of the circumstances prevailing as on today, particularly since all the other accused reportedly are not arrested, the petitioners are at liberty to move fresh application before appropriate Court seeking appropriate relief.
39. With the above observations, the Writ Petition is dismissed, at the stage of admission. However, there shall be no order as to costs.