- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1659 OF 2006 WRIT PETITION NO.1659 OF 2006 WRIT PETITION NO.1659 OF 2006 Union of India ...Petitioner vs. Narendra Kumar Rastogi & anr. ...Respondents Mr.R.F.Lambay with Ms Heena P. Shah for the petitioner Ms P.P.Shinde A.P.P. for State Mr.A.M.Sachwani i/b M/s.Advani, Sachwani & Heera Shah for the Respondents CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 26,2008 : SEPTEMBER 26,2008 : SEPTEMBER 26,2008 P.C.: P.C.: P.C.: 1. By this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure,1973, the petitioner-Union of India has taken an exception to the order dated 8th May 2005 passed by the learned Additional Sessions Judge,Mumbai by which the first respondent was ordered to be enlarged on bail. 2. The first respondent and others are charged with offences under section 420 read with section 120-B of the Indian Penal Code. After filing of the charge-sheet, the learned Magistrate took cognizance of the offence. It is stated that the first respondent was in judicial custody in United States of America (hereinafter referred to as USA) as he was allegedly involved in fraud case having ramifications in other countries. It is stated that the first respondent was arrested by Federal Bureau of Investigation, Guttenberg, New - 2 - Jersey, USA on 14th May 2002 along with his associates. Before the concerned court, the first respondent has pleaded guilty. 3. Non bailable warrant was issued against the first respondent by the learned Magistrate in the case of offence under section 120-B read with section 420 of the Indian Penal Code. Even extradition proceedings were initiated for procuring custody of the first respondent. An application for bail was moved on behalf of the first respondent. The learned Additional Sessions Judge passed the following impugned order: "... A Non bailable Warant was issued at the instance of CBI in the year 2002. Extradition request was made to Minister of External affairs Central Government of India. According to applicant the said NBW was executed and he is in jail in Newyork from May 2002. CBI Counsel Shri Arun informed that NBW issued has not been executed and therefore acording to him there is no question of his release onbail and therefore application is of the applicant would be misconceived and not maintainable. . Shri Prem stated that applicant was being prosecuted in another case of non payment of money given to Bank and he got bail. However, because of the present prosecution and the request for extradition of by the Ministry of - 3 - Foreign Affairs pursuant to NBW issued he was arrested in and taken in custody. To such custody and for extradition proceedings applicant consented in January 2004 and surrendered to the bail in another Bank case. . Since the non bailable warrant has been issued by the 19th M.M. Court there is no difficulty for granting bail the applicant/accused even if it is executed, arrested or not arrested to enable him to participate in the present prosecution before the 19th Court M.M. Esplanade, Mumbai. . Hence, I proceed to pass the following order : . In the light of N.B.W. issued by 19th M.M. Court, the applicant/accused Narendra Kumar Rastogi would be entitled for bail in the sum of Rs.50,000/- (Rupees fifty thousand) (cash bail). . The applicant/accused undertakes that he would come to India as soon as he is released from pending prosecution in U.S.A. for facing the trial in the present and application is allowed and accordingly disposed." 4. The submission of the learned counsel for the applicant is that non bailable warrant issued against the first respondent - 4 - by the learned Magistrate was never executed and the first respondent was not in custody. He submitted that unless the first respondent was in custody, the application for grant of bail was not maintainable. 5. The learned counsel for the first Respondent pointed out that on the basis of the extradition Agreement in force between USA and the Government of India, on 25th June 1997 a warrant was issued by the competent court in USA against the first respondent and that is how the first respondent continued to be in custody in USA. He submitted that the warrant was issued by the court in USA on the basis of the said extradition Agreement. He, therefore, submitted that the first respondent was arrested and taken in custody on the basis of the warrant issued by the learned Magistrate at Bombay and therefore, the learned Magistrate was justified in granting the bail. 6. At this stage, it must be stated that after this court entertained this petition and granted stay, on the completion of procedure of extradition, the first respondent was brought to India and was taken in custody. A fresh application for bail was filed by the first Respondent and the bail has been already granted in favour of the first Respondent. Therefore, to some extent, the prayer in this petition has become academic. However, the issue of jurisdiction of the learned - 5 - Judge to grant bail has been raised and therefore it has to be dealt with on merits. 7. The law on this point is no longer res integra and therefore, it will be necessary to refer to the decision of this Court in case of Mrs. Priya Murlidhar Chaini Vs. Govind Prasad Shriwastav and others [2006 All M.R. (cri) 2972]. After considering the decision of the Apex Court in case of Sunitadevi Vs. State of Bihar and another [2000 All M.R. (cri.) 511], this court has held that the a person can be said to be in custody within the meaning of section 439 of the said Code of 1973 when he is in duress as he is held by the investigating agency or other police or allied authority. He can be said to be in custody when he is under the control of the court having been remanded by the Judicial Officer. A person can be said to be in custody where he offers himself to the court’s jurisdiction and he submits to the orders of the court by his physical presence. 8. In the present case, though the bail was granted under the impugned order, the first respondent was not under the control of any investigating agency or police or allied authority of India. He was not remanded to judicial custody by any Court in India. In fact the extradition proceedings were initiated for bringing the first Respondent to India and for ensuring that he was placed in custody by the appropriate authority. - 6 - Therefore, the first respondent was not in "custody" within the meaning of section 439 of the said Code of 1973. The power under section 439 of the said Code could not have been exercised unless the first respondent was in custody within the meaning of the said section. In view of the law laid down by this court in the aforesaid case, it is obvious that the impugned order was illegal as the learned Judge had no jurisdiction to grant bail to the first respondent as the first respondent was not in custody at the relevant time. 9. Hence, the petition must succeed and the same is allowed in terms of prayer clause (a). JUDGE JUDGE JUDGE