Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 454 (RAJ)

Ultramed Private Ltd. v. Union of India

2006-02-08

K.S.RATHORE

body2006
Honble RATHORE, J.–The petitioner is a private limited company registered under the Companies Act and the present petition is filed through its Managing Director, Dr. Anil Sharma, for the purpose of issuance of writ order or direction to the respondents for initiating extradition proceedings against Frank Martin Ruseler and Gerrit Jan Vijfvinkel. The Additional Chief Judicial Magistrate No. 2, Jaipur City, Jaipur issued bailable warrants against following persons:– i) Mr. Frank Ruseler (International Sales and Marketing Manager of M/s. Dutch Ophthalmic Research Centre International By Oude Singe 12, 3211 B.A. Geervliet, Holland) New Address : Scheijdelveweg 2, 3214 vN Zuibland, The Netherlands). ii) G. Vijfvinkel, President, M/s. Dutch Ophthalmic Research Centre International By Oude Singe 12, 3211 B.A. Geervliet, Holland). (New Address : Scheijdelvweg 2, 3214 VN Zuibland, The Netherlands). (2). The bailable warrants were issued on 22.2.95 which reads as under:– 22.2.1995 ``Application for exemption of attendance of complainant produced and it was accepted for today. File was examined. Complainant and Vastalla Garg, have corroborated the complaint. The complaint is based on the facts that the complainant purchased ophthalmic equipments from accused no. 1 and 3 and the payment of the same was to be made through accused no. 4 and 5 and it was the settled term that in case there was no complaint of any nature regarding those equipment, the payment could be made after the expiry of six months but the equipment did not work properly within that period of six months and accused no. 4 and 5 made the payment of those equipments to accused no. 1 and 3 before the expiry of the period of 6 months and the accused persons committed criminal breach of trust. these facts had been verified from the statements of complainant and his witness Vatsalla Garg, and prima facie case of offences under Sections 406, 420 IPC has been made out against all the accused persons from the complaint, prosecution evidence and the documents produced and the cognizance is taken against the accused persons under those sections. Case be registered, after deposit of list of witnesses and the process fee bailable warrants of Rs. 3,000.00 may be issued against the accused. For requisitioning accused adjourned to 1.5.1995. (3). Case be registered, after deposit of list of witnesses and the process fee bailable warrants of Rs. 3,000.00 may be issued against the accused. For requisitioning accused adjourned to 1.5.1995. (3). A letter of request was sent by the Ministry of Home affairs to the Ministry of External Affairs vide letter dated 3.4.95 for execution of warrants issued by the learned Additional Chief Judicial Magistrate in Criminal Case No. 128/95. In response to the aforesaid letter, the Ministry of External Affairs, sent a letter to the learned Additional Chief Judicial Magistrate No. 2, Jaipur City. Again, the Ministry of External Affairs responded vide letter dated 13.6.2001 and it was informed that the warrant of arrest involve arrest of persons and production of the arrested persons before the court. Such process has affect of extradition. It is informed that the Govt. of India and Govt. of Netherlands have entered into extradition treaty w.e.f. 28.7.99 hence, the warrants of arrest are returned with a request to the Investigating Officer to prepare the extradition of the individual accused. (4). A letter of request was also sent by the Additional Chief Judicial Magistrate No. 2, Jaipur City to the Director (CPV) Ministry of External Affairs, Patiala House, New Delhi on 9.11.2001 and warrant of arrest were sent to Ministry of External Affairs through Registrar General, Rajasthan High Court vide letter dated 9.9.02. (5). Again, the Ministry of External Affairs vide its letter dated 29.10.2002 informed the Registrar (Admn.), Rajasthan High Court that since the offence for which warrants have been issued are in a criminal case and an extradition treaty exist between the Government of India and the Netherlands, hence the Government of India in principal have no objection to the extradition request from the legal angle however such request should come through the State Government. (6). The petitioner thereafter made a request to the State Government for initiating extradition proceedings against the accused, but the Home Department vide its letter dated 7.5.2003 informed the petitioner that the Police Officer cannot personally effectuate execution of warrants under the General Rules (Criminal), 1980 which provides that the execution of proceedings are made through Indian Embassy. (7). Since the warrants which are issued by the Court under sections 406 and 420 IPC are not being executed therefore, the present writ petition is preferred. (8). (7). Since the warrants which are issued by the Court under sections 406 and 420 IPC are not being executed therefore, the present writ petition is preferred. (8). Learned counsel for the petitioner referred Rule 16 of the General Rules (Criminal) 1980 which deals with the process for execution in foreign country and no legal process of any kind shall be sent for execution in violation to the Ministry of External Affairs Govt. of India. (9). As per Rule 16 since the Registrar High Court has forwarded the warrant to the Ministry of External Affairs Govt. of India for execution of the warrant it is not essentially to make any request through State. (10). Learned counsel for the state submits that as per rule 16, warrants were sent through Registrar General and the compliance of provisions of rule 16 is fully made by the state and state need not send fresh request to this effect. (11). Learned counsel appearing for Union of India Shri K.K. Sharma has categorically stated that the warrant of arrest issued by the Court of Additional Chief Judicial Magistrate Jaipur City were received by the Ministry of External Affairs in May, 2001. Since a warrant of arrest is meant for the arrest and production of an accused before the court issuing the warrant, it is not served but executed. If the accused person is suspected to be in a foreign country, then the warrant of arrest cannot be executed and a formal extradition request needs to be submitted to the competent authority of that country. Accordingly vide letter dated June 13, 2001, warrants were returned to the Court of Additional Chief Judicial Magistrate, Jaipur City and it was conveyed that the investigation officer in the case may be requested to prepare the extradition request as per the established procedure. (12). Mr. Accordingly vide letter dated June 13, 2001, warrants were returned to the Court of Additional Chief Judicial Magistrate, Jaipur City and it was conveyed that the investigation officer in the case may be requested to prepare the extradition request as per the established procedure. (12). Mr. Sharma also submitted a check list prepared by the Ministry of External Affairs and referred an order dated 28.7.1989 issued by the Ministry of External Affairs (Legal & Treaties Division) whereby the treaty was entered between India and Netherlands for the extradition of criminals on dated 26th day of September 1898 and ratifications exchanged on December 14, 1989 which provides that ``The High Concerning Patties engage to deliver up to each other those persons who, being accused or convicted of a crime or offence committed in the territory of the one Party, shall be found within the territory of the other Party, under the circumstances and conditions stated in the present Treaty. (13). In the second part of the order dated 28.7.1989, the crimes or offences for which the extradition is to be granted, are given. (14). In the present case the petitioner filed a criminal complaint against Frank Martin Ruseler, Gerrit Jan Vijfvinkel, K.K. Gupta and G.S. Shastri. Shri Frank Ruseler was working as Sales & Marketing Manager of M/s. Dutch Ophthalmic Research Centre International B.V. Holland whereas G. Vijfvinkel was working as its President. The complaint filed by the petitioner for the offence under sections 120-B, 206, 406, 409, 420 and 424 IPC before the learned court of ACJM No. 2, Jaipur City, Jaipur. And the complaint is based on the fact that the petitioner purchased ophthalmic equipments from accused persons and payment for the same was to be made by the petitioner to them, through its Banker. The equipment supplied by the accused did not properly work within the stipulated period of six months and the Banker of the petitioner in spite of instructions of petitioner not to make payment, deliberately and willfully in conspiracy with Frank Ruseler and G. Vijfvinkel, made the payment for those equipments to Frank Ruseler and G. Vijfvinkel before the expiry of the period of six months. (15). (15). The offence committed by the accused covers the offence as mentioned in Clause 7 which includes embezzlement; fraud by a bailee, banker, agent, factor, trustee or director or member or public officer of any company, by any law for the time being in force as mentioned in Clause 7 Part II of the Order dated 28.7.1989. (16). There is a condition stipulated in this order also where Extradition is also to be granted, at the discretion of the State applied to, in respect of any other crime for which, according to the laws for both the contracting parties for the time being in force, the grant can be made. (17). The extradition shall only be granted on the production, either in original or in authenticated copy– 1. Of a conviction; of (a) Of a warrant of arrest (which, by the law of the British documents, is the only document which is granted when it is adjudged upon evidence taken on oath that the accused ought to be taken into custody), issued in a form prescribed by British Law, and indicating the offence in question to enable the Netherland Government to decide whether it constitutes, in contemplation of Netherland Law, a case provided for by the present Treaty, and (b) Of the evidence– In the examinations, which they have to make in accordance with the foregoing stipulations, the authorities of the Netherland dominions shall admit as valid evidence depositions or statement or oath, or the athirmations of witness taken in the British documinions, or copier thereof, and likewise the warrants and sentences, issued therein, and certificates of, or judicial documents stating the fact of a conviction, provided the same are authenticated as follows : 1. A warrant must purport to be signed by a Judge, Magistrate or officer of the British dominions. 2. Depositions or affirmations, or the copies thereof, must purport to be certified under the hand or a Judge, Magistrate, or officer of the British dominions, to be the original depositions or affirmations, or to be true copies thereof, as the case may require. 3. A certificate of or judicial document stating the fact of a conviction, must purport to be certified by a Judge, Magistrate, or officer of the British dominions. 4. 3. A certificate of or judicial document stating the fact of a conviction, must purport to be certified by a Judge, Magistrate, or officer of the British dominions. 4. In every case such warrant, deposition, affirmation, copy certificate, or judicial document must be authenticated either by the oath of some witness, or by being sealed with the official seal of one of the Principal Secretaries of State, of some other Minister of State of the British dominions; but any other mode of authentication for the time being permitted by law in that part of the dominions of the Netherlands where the examination is taken may be substituted for the foregoing. (18). It was made clear by the Ministry of External Affairs CPV division (Extradition Section) for seeking extradition of a fugitive offender from a foreign country, the documents and manner of preparation should be as follows:– 1. It should contain an index with page numbers. 2. The request should be supported by a self contained affidavit, executed by the Court by which the fugitive is wanted or by a Senior Officer in charge of the case (not below the rank of Superintendent of Police of the concerned investigation agency) and sworn before a judicial Magistrate (of the court by which the fugitive is wanted for prosecution). The affidavit should contain brief facts and history of the case, referring at the appropriate places the statements of witness and other documentary evidences. Criminals description establishing his identity; provision of the law invoked etc. So that a prima facie case is made out against the fugitive criminal. 3. Paragraph 1 of the affidavit should indicate the basis/capacity in which the affidavit is executed. 4. The affidavit should indicate that the offences for which the accused is charged in India. 5. The affidavit should also indicate the law in question was in force at the time of commission of offences and it is still in force, including the penalty provisions. 6. The The evidence made available should be admissible under India laws. Accordingly, the affidavit should indicate whether the statements of witness are admissible as evidence in India in a criminal trial/prosecution. Statements of witness should be sworn before the Court. 7. The affidavit should also indicate that if the accused is extradited to India, he would be tried in India only for those offences for which his/her extradition is sought. 8. Accordingly, the affidavit should indicate whether the statements of witness are admissible as evidence in India in a criminal trial/prosecution. Statements of witness should be sworn before the Court. 7. The affidavit should also indicate that if the accused is extradited to India, he would be tried in India only for those offences for which his/her extradition is sought. 8. Copy of First Information Report (FIR), duly countersigned by the competent judicial authority, should be enclosed with the request. 9. Competent authority should countersign copy of charge sheet, which is enclosed with the documents. 10. A letter/order from the concerned court justifying accused persons committal for trial on the basis of evidence made available in the charge sheet, with a request to seek his extradition from the country of his present stay. 11. Warrant of arrest should be in original and open dated indicating clearly only those offences for which the accused is charged and Court has taken cognizance with relevant sections thereof. 12. Nationality, identity and address of the accused including his photograph should be made available with the request. 13. Copy of the relevant provisions under which the accused is charged along with the provisions of the relevant laws indicating the maximum sentence prescribed for the offence for which the accused is charged or convicted. 14. The extradition request is required to be made in quadruplet. 15. All the documents should be very clear, legible and in a presentable from the sovereign Government of a Foreign country. 16. For transmission the extradition request/documents to the country where English is not first language, the request should be submitted along with duly translated copy into that countrys local Language. In addition, the translated copy should be certified by the Court issuing warrant. After completion of necessary formalities, the request for extradition should contain a letter/note from a Senior Official (not below the rank of Joint Secretary) of the concerned State Government indicating the correctness of the case/material with a request to the Central Executive for its forwarding to the Government of the concerned foreign country. (19). Thus, upon careful perusal of the provisions of Extradition and the request made on behalf of the petitioner the execution of warrant is nothing but for seeking extradition. (19). Thus, upon careful perusal of the provisions of Extradition and the request made on behalf of the petitioner the execution of warrant is nothing but for seeking extradition. In view of this fact, the reply submitted by the State that the Officer of the State cannot execute the warrant is meaningless and the letter written by the External Affairs to this effect that the State should request the External Affairs for extradition in the manner prescribed by CPV Division of Ministry of External Affairs along with the documents which are necessary for the purpose of seeking extradition as discussed herein above. (20). In view of the fact, I deem it proper to direct the State Government to send the request as intended by the Ministry of External Affairs CPV Division (Extradition Section) and as the Ministry of External Affairs is willing to forward the same request in the manner prescribed to the country concerned for seeking extradition and execution of warrant of the accused persons. (21). With these directions, the State is thus directed to do needful in this regard as discussed herein above, the writ petition stands disposed of.