Flemming Lunding Larsen vs Union Of India & Anr.
1998 Latest Caselaw 7 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioner, who is a Danish National, has sought the quashing of order (Annexure 10) dated 26th November, 1997 passed by Shri Dharmesh Sharma, Metropolitan Magistrate, Delhi by which the petitioner's applica- tion for being discharged was dismissed.

2. The facts as revealed are that on the basis of information received by the Deputy Commissioner of Police (Airport), New Delhi from the Assistant Director, Central Bureau of Investigation, Interpol Wing, New Delhi, who in his turn had received a communication from U.S., Narcotics Control Bureau, the Petitioner was arrested on 6th August, 1997. He was then produced before the Additional Chief Metropolitan Magistrate, New Delhi on the same day and was remanded to judicial custody till 12th August, 1997.

3. A request was made by the Central Government on 12th August, 1997 to the Additional Chief Metropolitan Magistrate for issuance of provisional warrant of arrest against the petitioner, as envisaged in Sub-section (1) of 34-B of the Extradition Act (Act No. 34 of 1962) (hereinafter referred to as 'the Act'), which was issued. The petitioner thereafter was remanded from time to time. It is not in dispute that a request for the petitioner's (a fugitive criminal of a foreign State) surrender was re- ceived by the Central Government on 30th September, 1997. On that basis the Central Government on 22nd October, 1997 passed an order as per provision of Section 5 of the Act calling upon the Metropolitan Magistrate, having jurisdiction in the matter, to make necessary enquiries. Requisite request papers received by the Ministry of External Affairs from the Diplomatic Representative of the U.S. Government in India were also sent to the Metro- politan Magistrate.

4. On the basis of the aforementioned facts an application was moved on behalf of the Section petitioner for his discharge. It was alleged that within the period of sixty days from the date of petitioner's provisional arrest on 12th August, 1997, no request was received by the Metropolitan Magistrate for the petitioner's surrender or return. As such in terms of Subsection (2) of Section 34-B of the Act the petitioner was liable to be discharged. This application was dismissed by the Metropolitan Magistrate through the impugned order.

5. We heard learned Counsel for the parties and were taken through the entire record.

6. Learned Counsel for the petitioner urged that the provision of Subsection (2) of Section 34-B of the Act is mandatory in nature. In the absence of any request within a period of sixty days from the date of arrest, from the Central Government for surrender or return, a fugitive criminal, who is arrested under Subsection (1) of Section 34-B of the Act would be liable to be discharged. According to him, request to the Magistrate has to be made by the Central Government. In the instant case request admittedly was received from the Diplomatic Representative of U.S. Government in India by the Ministry of External Affairs on 30.9.1997. No further request was made to the Metropolitan Magistrate till 22.10.1997. Period of sixty days expired on 11.10.1997. Accordingly the petitioner is entitled to discharge.

7. Mr. Vali, learned Counsel for the respondents, on the other hand, contended that the request as referred to in Subsection (2) of Section, 34B of the Act is the requisition for surrender or return of a fugitive criminal, which is received by the Central Government from a foreign State and not a request made by the Central Government to the Magistrate.

8. Under the Scheme of the Act, a fugitive criminal can be put under arrest under three circumstances: firstly when an order is issued by the Central Government under Section 4 of the Act to the Magistrate for making an enquiry into the offence, on receipt of such an order of the Central Government the Magistrate is empowered to issue warrants for the arrest of fugitive criminal and thereafter to proceed to make necessary enquiry as per the procedure laid down in Section 7 of the Act; the second eventuality under which arrest of a fugitive criminal can be made is under Section 9 of the Act when it appears to any Magistrate that a person within the local limits of his jurisdiction is a fugitive criminal of a foreign State, he may issue a warrant for his arrest. The Magistrate thereafter is required to report to the Central Government the fact of issuance of warrants. Such a person cannot be detained for more than 90 days unless within the said period the Magistrate receives from the Central Government an order made with reference to such a person under Section 5 of the Act; the third category is the provisional arrest as provided in Section 34B of the Act, which is made on the basis of an urgent request from a foreign State for immediate arrest of a fugitive criminal. On receipt of such a request the Central Government may request the Magistrate of competent jurisdiction to issue provisional warrant for the arrest of such fugitive criminal. Discharge of such fugitive criminal on expiry of the period of sixty days is mandatory under Subsection (2) of Section 34-B, if no request is made for his surrender or return within the said period. The question in this case is that whether request for surrender or return has to be received by the Magistrate from the Central Government or by the Central Government from a Foreign State. Section 34-B of the Act reads as under:

"34-B. Provisional Arrest---(1) On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.

(2) A fugitive criminal arrested under Subsection (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period."

9. Only Section 4 of the Act deals with the requisition for surrender or return of a fugitive criminal, which reads:

"4. Requisition for surrender--A requisition for the surrender of a fugitive criminal of a foreign State or a foreign State may be made to the Central Government---

(a) by a diplomatic representative of the foreign State at Delhi; or

(b) by the Government of that foreign State communicating with the Central Government through its diplomatic representative in that State or country;

and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of the foreign State with the Government of India."

10. Only on the basis of a request made in consonance with Section 4 of the Act for surrender of a fugitive criminal that the Central Government is to have the enquiry conducted through Magistrate for which purpose the Central Government is required to pass an order to the Magistrate under Section 5 of the Act directing him to make an enquiry. The procedure to be followed by a Magistrate is laid down in Section 7 of the Act. In case after enquiry the Magistrate holds that a prima facie case is not made out, the fugitive criminal is to be discharged as provided in Subsection (3) of Section 7 of the Act. In case prima facie case is held to have been made out in support of the requisition of the foreign State, the fugitive criminal is to be committed to prison to await the orders of the Central Government for which purpose the Magistrate is to report the result of the enquiry to the Central Government as envisaged in Subsection (4) of Section 7 of the Act. Section 7 of the Act reads:

"7. Procedure before Magistrate---(1) When the fugitive criminal appears or is brought before the Magistrate, the Magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a Court of Session or High Court.

(2) Without prejudice to the generality of the foregoing provisions, the Magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence.

(3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal.

(4) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State, he may commit the fugitive criminal to prison to await the orders of the Central Government, and shall report the result of his inquiry to the Central Government, and shall forward together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Govern ment."

11. The only purpose of putting a fugitive criminal under provisional arrest on the basis of a provisional warrant under Subsection (1) of Section 34-B of the Act is to await a request for surrender or return. As noticed above the only provision under the Act for making a request for surrender or return is Section 4, which provides for the manner of making a request to the Central Government for surrender by a foreign State. The Central Government is not to make a request for surrender or return of a fugitive criminal. On receipt of request from a foreign State the Central Government is required to have an enquiry conducted from Magistrate as envisaged in Section 5 of the Act. Thus, the petitioner's contention that the request has to be made to the Magistrate by the Central Government within sixty days has no force.

Consequently, there being no substance in this petition, the same is dismissed.