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HindustanTimes Sat,20 Sep 2014

US court dismisses case against Khobragade

Yashwant Raj, Hindustan Times  Washington, March 13, 2014
First Published: 07:35 IST(13/3/2014) | Last Updated: 18:47 IST(13/3/2014)

A New York court on Wednesday dismissed criminal charges against diplomat Devyani Khobragade that had precipitated a crisis in relations between India and the US.

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"Khobragade's motion to dismiss the indictment on the ground of diplomatic immunity is granted," said judge Shira A. Scheindlin, directing the court to close the case.

Read: US to seek new indictment against Devyani

The court also terminated Khobragade's bail conditions and exonerated her bond. And withdrew any warrant of arrest issued against her in connection with the case.

But, the court said, "If the acts charged in the indictment were not performed in the exercise of official functions, then there is currently no bar to a new indictment."

There could still be, thus, a new indictment. But it couldn't be confirmed with the office of US attorney Preet Bharara. But for now the case, as filed earlier, stands closed.

Read: US asst secretary of state Biswal to visit Indian in March 

Khobragade left for India on January 9, under the protection of diplomatic immunity within hours of her indictment. Her husband and daughters joined her later.

Bharara's office had slapped charges of visa fraud and making false statements against her in connection with the employment of her housekeeper Sangeeta Richard.

Khobragade was arrested from outside her children's school on December 12 and strip-searched at a holding facility before being produced in a court.

She was out on bail in a few hours. But outraged by the manner of her arrest and treatment in custody, India demanded both an apology and the dismissal of the case citing diplomatic immunity.

A photo of India's deputy consul general in New York Devyani Khobragade. (Photo credit: via Twitter)

To press its case, India ordered retaliatory measures withdrawing privileges extended to American diplomats in India that were not reciprocated in the US.

Secretary of state John Kerry did express regrets in a call to National Security Adviser Shivshankar Menon. But the case continued with US prosecutors refusing to back down.

Bharara's office insisted in court filings that Khobragade was a consular official and, thus, did not enjoy diplomatic immunity that protects holders from criminal prosecution.

This is how the two differ: diplomatic immunity protects holders completely from criminal prosecution, whereas consular immunity extends only to official actions. At the time of her arrest, Khobragade was deputy consul-general at the Indian consulate in New York, therefore, not covered by full immunity, as argued by US prosecutors.

Read: Devyani Khobragade row: what this episode could teach us

India promptly transferred her to its permanent mission to the United Nations, also in New York, whose staff enjoy complete immunity. Khobragade was now safe, presumably. But she had to wait until January 8 for it.

And a grand jury indicted Khobragade the very next day. The US then asked India to waive her newly-acquired immunity so she could be prosecuted. India refused.

The US then asked Khobragade to leave. Still covered by immunity, the diplomat, through her lawyer, asked the court to dismiss the charges.

The court let her go, and said it would decide the case later. Two months after, on Wednesday, the court dismissed the case over-ruling prosecution, which had argued that her immunity did not accord her protection with retroactive effect.

Read: US: Relationship with India is important

The court did not disagree. But it ruled, citing precedence, that at the time of her indictment, the diplomat was covered by immunity, which was ground enough for dismissal.

"Because Khobragade moved to dismiss on January 9, 2014, the motion must be decided in reference to her diplomatic status on that date," the judge ruled.

Read: Devyani issue shouldn't have happened, says Indian envoy

In short, the day prosecution brought the indictment against Khobragade, she was covered by diplomatic immunity, therefore, protected from criminal prosecution.

The judge said she did not get into the question of Khobragade's conduct being "official" or not — for the purpose of protection from criminal prosecution as a consular officer.

And, if it was not, nothing can stop Bharara's office from bringing a fresh indictment. Will it? It couldn't be ascertained immediately.

Read more:
US healthcare costly, Devyani warned maid not to get sick
Lawyer demands apology for Bharara's wrong statement on whereabouts of Khobragade

From a missing maid to an indicted diplomat: the Khobragade timeline


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