Criminal Writ Petition No. 2196 of 2011. Case: Allan John Waters Vs State of Maharashtra and Anr. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 2196 of 2011 |
| Counsel | For Petitioner: Taraq Sayyed with Ms. Sartaj Shaikh, Adv. and For State: Mrs. R. M. Gadhavi, APP |
| Judges | A. V. Nirgude, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 2(h), 428 |
| Citation | 2012 CriLJ 2996 |
| Judgement Date | March 13, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
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Heard.
Rule. Rule made returnable forthwith.
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The question required to be decided is whether the detention period of the petitioner from 2nd July, 2003 to 6th September, 2004 in United State of America would amount to his "period of detention" as understood by Section 428 of Code of Criminal Procedure, 1973 (Cr.P.C.)?' The facts are admitted and can be stated as under:
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Offence under Section 377 etc. was registered by Colaba Police Station on 15th November, 2001 vide Crime No. 312/2001. The name of the petitioner was shown as one of the accused since beginning. The police, therefore, went in search of the petitioner. After investigation, it was learnt that the petitioner had gone out of India and would be found in America etc. Accordingly, the police obtained warrant of arrest from the concerned Magistrate. It was a red corner notice issued to Central Bureau of Investigation (C.B.I.). Pursuant to this notice/warrant, the petitioner was arrested in America on 2nd July, 2003 at New York. He was admittedly not wanted in any other case in America at that time. He was admittedly arrested pursuant to the warrant issued by the Indian Court. Investigating Officer then started procedure for extradition of the petitioner from America to India and pursuant to certain extradition treaty, the competent Court in America allowed extradition of the petitioner to India. This order was passed on 24th November, 2003 and on 6th September, 2004 the petitioner was finally brought to India. It is, thus, an admitted fact that the petitioner was under the detention of the America Court from 2nd July, 2003 to 6th September, 2004. The Sessions Court vide order dated 18th March, 2006 convicted the petitioner for various offences and sentenced him to suffer rigorous imprisonment. After the petitioner was convicted, the usual order of set off was passed. The said order was not disturbed by the final Court. The question is whether the detention period of the petitioner in America is a period of detention as understood by Section 428 of Cr.P.C. Section 428 of Cr.P.C. reads as under:
428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of...
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