R v Governor of Pentonville Prison, ex parte Teja
| Jurisdiction | England & Wales |
| Judgment Date | 19 January 1971 |
| Date | 19 January 1971 |
| Court | Queen's Bench Division (Administrative Court) |
Conflict of Laws - Sovereign immunity - Diplomatic immunity - Costa Rican diplomatic agent visiting Europe for commercial purposes - Arrested in England and proceedings for extradition to India - Whether diplomat appointed by unilateral action of foreign state and without acceptance by receiving state entitled to diplomatic immunity - Whether diplomatic agent visiting foreign country for commercial purposes and not to negotiate with foreign government entitled to diplomatic immunity - Fugitive Offender - Jurisdiction - Habeas corpus - Costa Rican proceedings to advise whether applicant be extradited to India - Under Costa Rican law - Extradition proceedings in England for same offences - Whether res judicata - Fugitive Offender - “Relevant offence” - Offence not offence in United Kingdom - Charges alleging aggravated form of fraudulent conversion under Indian law - No similar offence in English law - Whether relevant offence - Whether evidence of prosecution for political opinions -
The applicant, an Indian national, had been chairman and a director of an Indian company, which, in 1966, was taken over by the Indian government. While the applicant was in the United States of America, committal proceedings were brought in India alleging, inter alia, that the applicant in his capacity as chairman of board of directors had been guilty of criminal breaches of trust in respect of dishonestly converting the company's money to his own use, contrary to section 409 of the Indian Penal Code and extradition proceedings were begun in America. The applicant fled to Costa Rica, where there was no extradition treaty with India but the President sought the advice of the Costa Rican Supreme Court as to whether the applicant should be extradited. The Supreme Court advised against extradition as the offences alleged were unknown to Costa Rican law. The court's advice was accepted and, in June 1970, the applicant was issued with a diplomatic passport and a letter of credence describing him as an economic adviser to the Costa Rican government studying the possibility of developing a steel mill in Costa Rica. The applicant visited a number of European countries and, during a visit to England, he was arrested and pursuant to a warrant of the chief magistrate under section 7 of the Fugitive Offenders Act 1967 he was detained in custody pending his return to India.
On an application for a writ of habeas corpus, the applicant contended that, although the certificate of the Secretary of State for Foreign and Commonwealth Affairs stated that he was not accredited to the Court of St. James, he was entitled to diplomatic immunity; that, since the question of extradition had been considered by the Costa Rican Supreme Court, the matter of extradition was res judicata, that, the facts alleged did not constitute an offence under section 409 of the Indian Penal Code and that even if they did, as there was no similar offence in English law, it was not a relevant offence under section 3 of the Fugitive Offenders Act 1967F1 and he also relied on sections 4 (1) and 8 (3) of that Act for his contentions that his return to India would be prejudicial or oppressive: —
Held, dismissing the application, (1) that a foreign state's unilateral action in appointing a diplomatic agent did not confer diplomatic immunity on that representative and, until this country had accepted and received the intended representative as a persona grata, the diplomatic agent was not immune from proceedings in the English courts (post, pp. 822D, H–823A).
Per curiam. It is almost impossible to say that a man, who is employed by a government to go to foreign countries to conclude commercial agreements and not to negotiate or have contact with the foreign governments, can be engaged on a diplomatic mission (post, p. 823H).
(2) That, since the Costa Rican court had advised against extradition on the basis that the applicant's alleged offences were not contrary to Costa Rican law and the present issue was whether those offences constituted offences under English law, the matter could not be said to be res judicata for the issues were not the same (post, p. 825D, E).
(3) That, according to Indian law the facts alleged did constitute an offence under section 409 of the Indian Penal Code and although there was no comparable offence in English law, it came within paragraph 18 of Schedule I to the Fugitive Offenders Act 1967 as an aggravated form of fraudulent conversion and, accordingly, a relevant offence under section 3 (1) of the Act for which the applicant could be extradited (post, p. 828A–C).
(4) That there was no evidence that the request for the applicant's return to India was to prosecute or to punish him for his political opinions and, therefore, section 4 (1) of the Fugitive Offenders Act 1967 did not apply (post, p. 829A–C).
(5) That, although there had been delay, the passage of time had not been due to any neglect on the part of the Indian government but had been mainly caused by the applicant's conduct and, in the circumstances, it was not unjust or oppressive under section 8 (1) of the Fugitive Offenders Act 1967 to return the applicant to India (post, p. 829G).
The following cases are referred to in the judgment:
Cooray v. The Queen [
Dalmia (R.K.) v. Delhi Administration (
Fenton Textile Association Ltd. v. Krassin (
Reg. v. Portugal (
The following additional cases were cited in argument:
Assurantie Compagnie Excelsior v. Smith (
Bergman v. De Sieyes (
Reg. v. Governor of Brixton Prison, Ex parte Cook (
Reg. v. Goverrnor of Brixton Prison, Ex parte Gardner [
APPLICATION for writ of habeas corpus.
On July 24, 1970, the applicant, Jayanti Dharma Teja, was arrested at Heathrow Airport on a warrant issued by the Republic of India. By warrant dated December 11, 1970, the chief magistrate at Bow Street Magistrates Court ordered that the applicant be detained in custody pending his return to India on six charges alleged to have been committed whilst the applicant was chairman and a director of the Jayanti Shipping Co.
By notice of motion dated December 23, 1970, the applicant applied for a writ of habeas corpus and for an order under section 8 of the Fugitive Offenders Act 1967 that he be discharged from Pentonville prison and not sent back to the Republic of India.
The facts are set out in the judgment of Lord Parker C.J.
Sir Dingle Foot Q.C. and Jeffrey Thomas for the applicant.
Sir Elwyn Jones Q.C., Louis Blom-Cooper Q.C. and Vasant Kothari for the Government of India.
Gordon Slynn for the Governor of Pentonville Prison and the Home Department.
LORD PARKER C.J. In these proceedings Sir Dingle Foot moves on behalf of the applicant, one Jayanti Dharma Teja, who is now detained in Her Majesty's Prison at Pentonville, for a writ of habeas corpus. The applicant is so detained pursuant to a warrant of the chief magistrate at Bow Street dated December 11, 1970, ordering him to be held in custody pending his being sent to the Republic of India.
The matter has a somewhat long history which it is necessary to deal with as shortly as possible. The applicant is a citizen of India aged now about 48, and is a scientist. It is said that as a result of his friendship with Nehru he undertook the task of becoming chairman and director of an Indian shipping company, the Jayanti Shipping Co. which was incorporated about 1961. That company was engaged largely in the purchase of ships from Japan. A time came when, for reasons into which it is unnecessary to go, it was decided in 1966 that the government should take over the management of the shipping company. Either just before that taking over, or as a result of the taking over it was thought that this applicant in his position as chairman and director of the company had, to put it quite bluntly, feathered his nest and procured sums to be remitted to the prejudice of India's foreign exchange position into his own banking accounts abroad. By the time those suspicions had arisen, the applicant had left for the United States of America. Proceedings were taken in his absence before the magistrate in New Delhi in regard to these alleged offences, and proceedings in the nature of committal proceedings were completed there by April 27, 1967. The applicant being in the United States, and there being an extradition treaty with the United States, the Indian authorities commenced extradition proceedings in May 1967, that is to say a month after the completion of the proceedings in New Delhi. The applicant, on September 1 of that year, jumped his bail and absconded to Costa Rica. The Republic of India had no treaty of extradition with Costa Rica, but they approached the executive there with a view to the applicant being sent back to India. The President of Costa Rica referred the matter to the Supreme Court of Costa Rica to advise him, as I understand it, whether, on the basis that there had been an extradition treaty, this applicant should be extradited.
The proceedings before the Supreme Court of Costa Rica continued for a considerable period; indeed their decision was not given until June 12, 1969, when by a majority decision they...
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