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Rediff.com  » News » Judge dismisses indictment against Devyani Khobragade

Judge dismisses indictment against Devyani Khobragade

Last updated on: March 13, 2014 10:01 IST

Dr Devyani Khobragade at her Mumbai home. Photograph: Rajesh Karkera/Rediff.com

'This current circumstance might well present the best opportunity for a lasting and final diplomatic resolution,' her lawyer Daniel Arshack told Rediff.com's Suman Guha Mozumder in New York.

Three months after she was arrested and charged with visa fraud before being freed on a bail bond, Indian diplomat Dr Devyani Khobragade's motion to dismiss the United States government's indictment on the ground of her diplomatic immunity was granted on Wednesday, March 12, by a federal judge in Manhattan.

According to court documents, Dr Khobragade's conditions of bail are terminated, and her bond is exonerated. 'It is ordered that any open arrest warrants based on this indictment must be vacated,' US District Judge Shira A Scheindlin said in the ruling.

The, prosecution, however, said that the court has permitted it to initiate a fresh indictment and the government may go ahead with that.

"Consistent with the judge's opinion, the government may seek a new indictment against Khobragade, although there is no time frame at this point of time," highly placed sources in the US Attorney's office told Rediff.com

In a statement, US Attorney Preet Bharara's office said the district court found that 'Khobragade had immunity during a limited period of time between January 8 and January 9 when the current indictment was returned by a grand jury.'

'As the court indicated in its decision and as Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct, and we intend to proceed accordingly,' the US Attorney's office added.

On December 12, 2013, Dr Khobragade was arrested and charged with visa fraud and making false statements to the US government.

On January 9, 2014, Dr Khobragade was indicted on the above charges, and she moved to dismiss the indictment on the basis of her diplomatic immunity.

Upon the government's request, the court reserved its decision pending a full briefing.

Dr Khobragade served as a consular officer in the United States from October 26, 2012 through January 8, 2014, a position that cloaked her with consular immunity pursuant to the Vienna Convention on Consular Relations.

She contended that she additionally obtained diplomatic immunity on August 26, 2013 by virtue of her appointment as a Special Advisor to the United Nations, and that such immunity continued through at least December 31, 2013.

The US government denied that Dr Khobragade ever had diplomatic immunity as a Special Advisor, and alternately argued that any period of diplomatic immunity ended well before December 2013.

On December 12, 2013, Dr Khobragade was arrested on a complaint and presented before a magistrate judge, who released her under several bail conditions including a bond in the amount of $250,000 co-signed by three other people.

Soon after, Dr Khobragade was appointed a Counselor to the Permanent Mission of India to the United Nations, a position that gave her full diplomatic immunity.

On January 9, 2014, a grand jury returned the indictment charging Dr Khobragade with visa fraud and making false statements to the US government.

Later that day, the State Department asked the Indian government to waive Dr Khobragade's diplomatic immunity 'in order that the charges may be adjudicated in accordance with the laws of the United States.'

After the Indian government declined to do so, the US State Department requested her immediate departure from the country.

On January 9, 2014, Dr Khobragade's counsel Daniel Arshack appeared before the court and moved to dismiss the case on grounds of diplomatic immunity, or alternately to exonerate her conditions of bail.

The court modified Dr Khobragade's bail conditions to permit her return to India, but withheld judgment on the remaining issues pending a full briefing by the parties.

Dr Khobragade left the US that evening.

The US government argued that the indictment should not be dismissed because Dr Khobragade did not have diplomatic immunity at the time of her arrest.

'Because diplomatic immunity is a jurisdictional bar, it is logical to dismiss proceedings the moment immunity is acquired. Even if Khobragade had no immunity at the time of her arrest and has none now, her acquisition of immunity during the pendency of proceedings mandates dismissal,' according to court documents.

Daniel Arshack, Dr Khobragade's counsel, said there is no bar against the diplomat to travel to the United States now.

"There is no legal impediment to Dr Khobragade travelling to the United States. However, as a political matter, not a legal one, the State Department required Dr Khobragade to leave," Arshack told Rediff.com

"Until they lift that order," Arshack added, "she cannot come back into the country."

"This current circumstance might well present the best opportunity for a lasting and final diplomatic resolution," Arshack added.

Dr Khobragade's husband, an Indian-American professor, and her two young daughters live in the US.

Dr Devyani Khobragade at her Mumbai home. Photograph: Rajesh Karkera/Rediff.com

Suman Guha Mozumder in New York