NEW YORK: Indian diplomat Devyani Khobragade, whose arrest and strip-search soured Indo-US relations, today won dismissal of a federal indictment against her in the visa fraud case with a US judge ruling she had full diplomatic immunity.
In a major relief for 39-year-old Khobragade that came exactly three months after her arrest, District Judge Shira Scheindlin said in her 14-page order “it is undisputed” that the diplomat acquired full diplomatic immunity at 5:47 pm on January 8 after the US State Department approved her accreditation as a counselor to India’s mission to the UN.
The ruling, however, left open the possibility that US prosecutors could bring a new indictment against Khobragade, and they “intend to proceed accordingly,” said James Margolin, a spokesman for Manhattan US Attorney Preet Bharara.
The prosecution stand was outlined after the judge did not bar it from bringing new charges in future stemming from allegations she made a false statement to the US government in connection with visa application of her domestic help Sangeeta Richard.
While the indictment was returned on January 9, Khobragade, who was Deputy Consul General in New York at the time of arrest, had the immunity till she departed from the US for India on the evening of January 9 and so the prosecutors cannot proceed with the current indictment, the judge said.
“Khobragade’s motion to dismiss the indictment on the ground of diplomatic immunity is granted. 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,” Scheindlin said in the order capping months of diplomatic tensions between US and India.
Khobragade is a mother to two girls who are in the US now along with her husband.
“On January 9, immediately following the return of the indictment, Khobragade appeared before the court through counsel and moved to dismiss the case. Because the court lacked jurisdiction over her at that time, and at the time the indictment was returned, the motion must be granted,” the judge said ordering that the motion and the case be closed.
Bharara’s office had argued that Khobragade was not immune from her December 12 arrest on charges of visa fraud and making false statements about the visa application of Richard.
Bharara had said that the indictment should not be dismissed since Khobragade did not employ Richard in her capacity as Deputy Consul General and so does not enjoy immunity from prosecution for the “crimes” for which she was arrested in December.
Khobragade’s lawyer Daniel Arshack welcomed the ruling and said any decision to re-indict her might well be viewed as an “aggressive and unnecessary act”.
Arshack said that “the law requires that any prosecution brought against an individual with diplomatic immunity must be dismissed. We’re pleased and heartened that the rule of law has prevailed.”
“We are heartened that the court agreed with our legal analysis and rejected the prosecution’s arguments by dismissing the case,” he said.
“Technically, the prosecution remains free to re-indict Dr Khobragade. However, the decision to do so might well be viewed as an aggressive and unnecessary act. This current circumstance might well present the best opportunity for a lasting and final diplomatic resolution,” he added.
Reacting to the order, Bharara’s office said the judge has not barred them from going ahead with a new indictment against Khobragade, who now no longer enjoys diplomatic immunity in the US following her departure to India, and will “proceed accordingly” with any fresh indictment.
“As the court indicated in its decision that as Devyani 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,” Chief Public Information Officer for the US Attorney’s Office, Southern District of New York James Margolin told PTI.
Scheindlin said that “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.”
Khobragade was arrested on December 12 on visa fraud charges and for making false statements regarding the visa application of Richard.
She was strip-searched and held with criminals, triggering a row between the two countries with India retaliating by downgrading privileges of certain category of US diplomats among other steps.
The judge ruled that the government “may not proceed on an indictment obtained when Khobragade was immune from the jurisdiction of the court”.
“The court has no occasion to decide whether the acts charged in the Indictment constitute ‘official acts’ that would be protected by residual immunity. However, 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 against Khobragade,” the judge’s order said.
“Khobragade concedes that “(t)he prosecution is clearly legally able to seek a new indictment at this time or at some point in the future now that (she) no longer possesses diplomatic status and immunity ….”
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.–PTI
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