A Single- Bench of Justice Chandra Dhari Singh dismissed the present writ petition instituted under Article 226 of the Constitution by observing that under Article 226, the Court observed that scope of inquiry of this Court is limited and can only be exercised in exceptional circumstances. Thus, the only circumstance where the petitioner's concern of ‘lack of disclosure of evidence’ would require an intervention from this Court would be if such alleged lack of disclosure amounts to a violation of the Principles of Natural Justice.
The present writ petition was preferred before the High of Court Delhi under Article 226 of the Indian Constitution read with Section 482 of the Code of Criminal Procedure praying for mandamus to the respondents to make full disclosure of the evidence collected during investigation of crime of rape registered against the petitioner in London.
The facts of the case were that the petitioner was a Portuguese national and a person of Indian origin, born in Goa. He was accused of committing a rape of a lady in London in a pub on May 28, 2017. The petitioner returned to India on June 5, 2017. Thereafter, petitioner was charged with the offence of rape under Section 1 (1) of the Sexual Offences Act, 2003 of UK. Consequently, an arrest warrant was issued against the petitioner on June 11, 2019.
In pursuance of the same, on September 18, 2020 upon the request for extradition, the Government of India, on March 22, 2021 ordered for magisterial inquiry under Section 5 of the Extradition Act of 1962.
Subsequently, Extradition proceedings were initiated on March 26, 2021 against the petitioner. Thereafter a non- bailable warrant was issued against the petitioner on June 3, 2021.
Amid this situation, the petitioner approached the Apex Court under Article 32 of the Constitution of India. However, the petition was dismissed by an order passed on December 3, 2021. The petitioner also instituted an application before the European Courts of Human Rights seeking evidence and documents gathered against the petitioner by the police in the U.K.
Thus, the petitioner being aggrieved on the initiation of Extradition Proceedings against him approached this Court for seeking directions to be issued to the respondents to make full disclosure of the evidence collected at the time of investigation.
This Court after hearing the submissions from both the sides, stated that the question of c that was posed for consideration before this Court was whether the accused/ petitioner was entitled to disclosure of evidence qua proceedings under Article 226 of the Constitution of India.
Before reverting back to the facts of the case, the Court took into account the relevant statutes applicable in the instant case, the Extradition Treaty between India and UK and the Extradition Act, 1962 of India.
The Court after referring to the relevant statutes, observed that in the instant case, the evidence envisaged under Section 10 of the Act was produced before the Magistrate for inquiry into the Extradition Proceedings. It was further observed that the Court has to arrive at a conclusion where there is prima facie evidence that an extraditable offence may have been committed. Whether the evidence is sufficient or fit for conviction or acquittal is a matter of trial, the Court submitted. In view of the aforesaid observation, the Court stated that the issue before this Court was not whether a prima facie case was made out or not, thus this Court refrained itself from dealing itself with the same.
With respect to the present petition being instituted under Article 226, the Court observed that scope of inquiry of this Court is limited and can only be exercised in exceptional circumstances. Thus, the only circumstance where the petitioner's concern of ‘lack of disclosure of evidence’ would require an intervention from this Court would be if such alleged lack of disclosure amounts to a violation of the Principles of Natural Justice, which is not the case in these circumstances. Reliance was placed in the case of Natwar Singh Vs. Director of Enforcement for the same.
In the present case, the enquiry by the Magistrate is a preliminary enquiry only to ascertain whether a prima facie case can be made against the petitioner, as clearly stipulated by the statute as well as the treaty which vests the magistrate in such authority. Furthermore, the Magistrate noted sufficient reasons to uphold a prima facie case being made, including a number of pieces of evidence as mentioned in the Extradition Petition.
Further on the contention of the petitioner that Article 9 of the treaty ought to be applied on account of racial motivation behind this trial, the Court stated that in order for Article 9 to be applicable the petitioner must reasonably satisfy the Court that request for his extradition has been made for the purpose of prosecuting him on account of his race. A mere unsubstantiated apprehension of discrimination or bias cannot be held to be a sufficient reason to mistrust the state functionaries of the United Kingdom, hence, a case for claiming of relief under Article 9 of the Treaty is not made out, the Court observed.
It was also observed that the petitioner was evading the process of law, secondly requisite evidence for extradition proceedings were also supplied. It was also observed that no case of violation of scheme or provisions of the Extradition Act or Treaty has been made out and lastly, the Court submitted that there no proof on record to show that the petitioner was arraigned with a racial motive.
Accordingly, the writ petition was dismissed.
Case name: JOSE INACIO COTA Vs. UNION OF INDIA AND ORS
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