Delhi High Court
Ram K. Mahbubani vs Union Of India & Anr. on 12 September, 2008
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1249/2007
# RAM K.MAHBUBANI ..... Petitioner
! Through : Mr. D. C. Mathur, Sr. Adv.
with Mr. D. Banerjee, Adv.
versus
$ U.O.I & ANR. ..... Respondents
^ Through: Mr. Rahul Mehra, Adv. for
Ministry of External Affairs.
Date of Hearing : 27th August, 2008
% Date of Decision : 12th September, 2008
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
JUDGMENT
1. In this writ petition three prayers have been asked for -
firstly for the issuance of a writ of Habeas Corpus securing the
release of the Petitioner under Section 24 of the Extradition Act,
1962 (‗Extradition Act' for short); secondly, for quashing of the
Orders of the learned ACMM dated 31.5.2007 and 28.7.2007
whereby, according to the Petitioner, he has been detained; and
thirdly, for staying the proceedings in the Court of the learned
Additional Chief Metropolitan Magistrate (ACMM).
2. The Petition discloses that the Petitioner was detained at
Chennai Airport on 04.05.2005. He was subsequently released
on bail by Order dated 12.5.2005 by ―the Madras Court‖,
subject to his depositing the original Passport in that Court and
executing a Bond for a sum of Rupees Ten Thousand. The
Respondents have clarified that this was a ―provisional arrest‖
as requested for by the Government of the United States of
America (USA) as envisaged in Article 12 of the Extradition
Treaty between the Government of the Republic of India and the
Government of USA, duly published in the Gazette of India
Extraordinary dated September 14, 1999. The Respondents
have further stated that the provisional arrest was pursuant to
the powers contained in Section 34-B of the Extradition Act.
The Orders dated 12.5.2005 are of the Judicial Magistrate,
Alandur, Chennai. The Petitioner thereafter filed a Writ of
Mandamus seeking the return of his Sri Lankan passport and for
his discharge under Section 24 of the Extradition Act. In its
Order dated 15.11.2006 a learned Single Judge of the High
Court of Judicature of Madras noted that the case had been
initiated 18 months prior thereto and that it was ‗strange' that
no action was taken thereafter. Therefore, the retention of the
Passport was without legal authority. That Writ Petition was
allowed and the Inspector of Police, CB CID (Metro), Chennai
was directed to return the Passport to the Petitioner forthwith.
3. In the meanwhile, on 10.10.2006, the Embassy of the USA
made a request for the extradition of the Petitioner. Several
documents were annexed to the request. The Government of
India by Order dated 7.5.2007, together with Corrigendum
dated 11.6.2007, requested the Chief Metropolitan Magistrate,
Delhi to inquire into the alleged offence. This Order is
reproduced for ease of perusal:
Whereas the fugitive Mr. Ram K. Mehbubani, a
dual national of Sri Lanka and US, who is presently in
India, is wanted by the U.S. judicial authorities for trial
in respect of certain criminal offences.
2. Whereas the Government of the United States of
America has submitted a formal request on 10.10.2006
(at) 37-39, through diplomatic channels, for the
extradition of the said fugitive to the United States of
America; and
3. Whereas the offence alleged to have been
committed by the fugitive Mr. Ram K. Mehbubani is
stated to be extraditable by the US authorities in terms
of Article 2 of Extradition Treaty currently in force
between the Government of the Republic of India and
the Government of the United States of America.
4. Therefore, the Central Government, having been
satisfied on the basis of the material submitted by the
Government of the United States of America, that the
warrants of arrest were issued by the United States
District Court, New Jersey having lawful authority to
issue the same, hereby requests under Section 5 of the
Indian Extradition Act 1962 (34 of 1962), the Additional
Chief Metropolitan Magistrate, Patiala House Courts,
New Delhi, to inquire into the alleged offence.
5. The extradition request with all enclosures
received from the Government of the United States of
America for the extradition of the fugitive Mr. Ram K.
Mehbubani including the warrant of arrest issued by
the United States District court, New Jersey are being
sent herewith.
4. It appears that on 26.5.2007 a petition was filed by the
Union of India in the Court of ACMM under Section 6 of the
Extradition Act, praying for the issuance of non-bailable
warrants against the Petitioner for his immediate arrest, and for
an order impounding his travel documents. The aforementioned
Petition was accompanied by the following thirteen documents:-
(i) Original request letter no.T-413/25/2005 dated May
7, 2007 issued by the Ministry of External Affairs
(CPV Division) requesting therein this Hon'ble Court
to inquire into the alleged offence as an Inquiry
Officer as per section 5 of the Indian Extradition
Act, 1962.
(ii) True copy of Note Verbale No.05-290/CONS dated
May 4, 2005 sent by the Embassy of the United
States of America at New Delhi to the Ministry of
External Affairs requesting provisional arrest for the
purpose of extradition of Ram K. Mahbubani.
(iii) True copy of the Diplomatic Note vide Note No.06-
794/CONS dated October 10, 2006 sent by the
Embassy of the United States of America at New
Delhi to the Ministry of External Affairs transmitting
a request (including an original set of documents
accompanied by one copy thereof) to extradite Ram
K. Mahbubani aka M. Ram to the United States, duly
issued under the signature and seal of the US
Secretary of State, Condoleeza Rice, original copy of
which is enclosed herewith.
(iv) Original certificate of Authentication
No.WAS/CONS/4151/9/06 dated September 15,
2006 by Shri Alok Pandey, First Secretary
(Consular), Embassy of India, Washington D.C.
(v) Original of the Certification dated September 15,
2006 issued under the signature and seal of
Mr. David Warner, Associate Director, Office of
International Affairs solemnly stating therein that
original affidavit with attachments, of Assistant
District Attorney R. Joseph Gribko, of the District of
New Jersey, are being offered in support of the
request for the extradition of the said Fugitive
Criminal.
(vi) Original affidavit with attachments, of Assistant
District Attorney R. Joseph Gribko, of the District of
New Jersey which was sworn before a United States
Magistrate Judge of the District of New Jersey, on
August 30, 2006 and which is offered in support of
the request for the extradition of the said Fugitive
Criminal.
(vii) Certified copy of the indictment in docket No.97-CR-
673 (Exhibit A).
(viii) Certified copy of the Warrant of arrest for Ram K.
Mahbubani, signed by U.S. District Court Magistrate
Judge Joel Pisano (Exhibit B).
(ix) Affidavit dated November 28, 2005 of Sandra
Holthhouse an employee working with North Supply
Company from 1971 to 1993, sworn before the
Hon'ble Judge of the District Court (Exhibit C).
(x) Affidavit dated December 8, 2005 of Eli White and
accompanying copy of a photograph of Ram K.
Mahbubani (Exhibit D).
(xi) True copy of Ram K. Mahbubani's US Passport
application (Exhibit E).
(xii) True copy of letters sent on Gifties Letterhead
(Exhibit F).
(xiii) Copy of the Treaty between the Government of the
Republic of India and the Government of the United
States of America, which is currently in force.
5. On 28.7.2007 the learned ACMM dismissed the bail
application of the Petitioner. This appears to have acted as the
catalyst for the filing of the present Writ Petition.
6. Generally stated, in all common law countries only those
offences committed within its national boundaries are
prosecuted by the State concerned. It is axiomatic that crimes
committed in a particular country are of no direct concern to
others. Extradition runs counter to this concept in that one
country assists another in apprehending a person accused of or
found guilty of the commission of an offence in the other
country. This obligation has its origins as an important precept
of comity of nations. Extradition is of ever increasing relevance
since crime is very often of transnational dimensions, and
criminals can easily and speedily traverse the globe and escape
to different legal jurisdiction with intent to defeat the ends of
justice. The observation in Liangsiriprasert -vs- Government of
the United States of America, [1991] 1 AC 225 that ―it is no
direct concern of English society if a crime is committed in
another country‖ is already archaic. The world is fast becoming
a global village and increasingly the same crimes are being
committed by the same persons in different countries. While
prosecution is the preserve of the society where the offence has
allegedly been committed, the fight against crime, if it is to
succeed, should be sans national borders. Section 34 of the
Extradition Act stipulates that an extradition offence committed
by any person in a foreign state shall be deemed to have been
committed in India and such person shall be liable to be
prosecuted in India for such offence.
7. One of the earliest statutes dealing with the subject of
extradition is the Extradition Act, 1870 and the Fugitive
Offenders Act, 1881, which, along with the Indian Extradition
Act, 1903, stood repealed by the Extradition Act, 1962. The
Extradition Act contains five Chapters. Originally, prior to the
amendment effected by the Extradition (Amendment) Act, (66 of
1993) Chapter-II comprising Sections 4 to 11 contained the
caption - ―EXTRADITION OF FUGITIVE CRIMINALS TO
FOREIGN STATES AND TO COMMONWEALTH COUNTRIES
TO WHICH CHAPTER III DOES NOT APPLY‖. Chapter-III
containing Sections 12 to 18 concerned - ―RETURN OF
FUGITIVE CRIMINALS TO COMMONWEALTH COUNTRIES
WITH EXTRADITION ARRANGEMENTS‖. Section 11 gives
statutory effect to the caption at the head of the Chapter-II as it
originally ordained that nothing in Chapter-II would apply to
fugitive criminals of commonwealth countries to which Chapter-
III applied.
8. The reproduction of the Extradition Act in the AIR Manual
as well as in the Bare Act published by Law Publishers (India)
Pvt. Ltd. is not accurate. This would be evident from a perusal of
Section 8 of Act 66 of 1993 since the amendments are not
restricted to Section 11 but span the entire statute. As on date,
the dichotomy between Commonwealth countries and other
countries has totally lost its relevance. Presently, the only
distinction relates to those few countries who have signed
Extradition Treaties with India, and have opted that Chapter-III
and not Chapter-II of the Extradition Act would apply. Chapter-
II concerns the extradition of fugitive criminals to those nations
who have either not entered into extradition arrangements with
India or having done so have preferred that Chapter-III, along
with the other provisions of the Extradition Act, would govern
their requests. This is the position that obtains owing to the
Indo-US Extradition Treaty. It appears that a statute similar to
the Extradition Act does not exist in the USA and therefore it
was essential to spell out in detail in the said Treaty itself all the
provisions that would regulate an Indian request for extradition
of a fugitive criminal from the USA. It is trite that these
questions are invariably predicated on reciprocity.
9. Mr. Mathur, learned Senior Counsel for the Petitioner, has
vociferously voiced the view that it is Chapter-III and not
Chapter-II that applies to the Petitioner herein, who enjoys dual
citizenship of the USA as well as of Sri Lanka. As has already
been mentioned above, an Extradition Treaty between India and
the USA came into effect on 14.9.1999. A conjoint reading of
Sections 3 and 12 of the Extradition Act mandates the Central
Government to notify the States to which Chapter-III will apply
so far as extradition arrangements are concerned. For the
present purposes, the Extradition Treaty between India and the
USA itself notifies that ―the provisions of the said Act, other
than Chapter-III, shall apply to the United States of America‖.
In other words, Chapter-III does not apply to request for
extradition between India and USA.
10. Nevertheless, we shall succinctly adumbrate the
fasciculus comprising Sections 12 to 18 which are found in
Chapter-III of the Extradition Act. Section 12 deals with the
applicability of Chapter-III and not Chapter-II, along with the
other provisions of the Extradition Act. Section 13 provides for
the apprehension and return of a fugitive criminal to the
requesting foreign state on the strength of an endorsed warrant
or a provisional warrant (Section 14), respectively dealt with
Sections 15 and 16. Section 17 provides that if the Magistrate is
satisfied, on inquiry, firstly that the endorsed warrant has been
duly authenticated and secondly that the offence of which the
person is accused, or has been convicted is an extradition
offence, he shall commit the fugitive criminal to prison to await
his return. The Magistrate is also obligated to send a Certificate
of Committal to the Central Government. Section 18 empowers
the Central Government to issue a warrant for custody and
removal to the foreign state concerned of the fugitive criminal
and for his delivery at a place and to a person to be named in
the warrant. Briefly stated, the obligations cast on the
Magistrate under Chapter-III are not of a judicial nature stricto
senso, in that the scope of inquiry is clerical or secretarial in
substance. The Magistrate has to ascertain whether the
formalities pertaining to the authentication of the ‗Endorsed
Warrant' have been complied with and secondly that the offence
for which the fugitive criminal has been accused or has been
found guilty is punishable with imprisonment for a term not less
than one year under the laws obtaining in both countries. The
provisions of Chapter-II, it shall be seen, require a wider
scrutiny and the exercise of judicial functions.
11. Chapter-II is a pandect comprising Sections 4 to 11.
Section 5 prescribes that where a Requisition is received in the
manner set-down in the preceding provision, the Central
Government has the discretion to issue an order to any
Magistrate who would have had jurisdiction to inquire into the
offence if it had occurred within his jurisdiction directing him to
inquire into the case. Under Section 6 the Magistrate must
simultaneously issue a warrant for the arrest of the fugitive.
Section 7 is of great importance as it bestows on the Magistrate
powers of inquiry akin to that of the Court of Session or High
Court. Thus, the Magistrate would be competent to inquire into
a case of murder, in respect of which extradition has been
requested for, despite the fact that ordinarily he would not be
empowered by the Code of Criminal Procedure, 1973 (CrPC) to
do so. Conceptually, this should not pose any problem since the
Magistrate is to return a finding only of a prima facie character;
he does not sentence or punish the fugitive criminal.
12. This question was raised and clarified by the Division
Bench in Charles Gurmakh Sobhraj -vs- Union of India,
29(1986) DLT 410, Maninder Pal Singh Kohli -vs- Union of
India, 142(2007) DLT 209 (DB) and by a Single Bench in Nina
Pillai -vs- Union of India, 1997 I AD (Delhi) 463. Kamlesh
Babulal Aggarwal -vs- Union of India, 2008 VI AD (Delhi) 37 was
recently decided by a Division Bench of which one of us
(Vikramajit Sen, J.) was a member holding, inter alia, that (a)
Section 7 is independent of Section 17, (b) the enquiry under
Section 7 is similar to an indictment or the framing of charges
under Section 228 of the CrPC and (c) under Section 7(3) and
(4) of the Extradition Act the Court is only to satisfy itself that a
prima facie case exists in support of the requisition for
extradition. The Special Leave Petition against this Judgment
has been dismissed by the Supreme Court on 15.5.2008. In
Sarabjit Rick Singh -vs- Union of India, 2008 I AD (Cr.) (S.C.)
161, the request of the USA for extradition of the Petitioner was
‗recommended' by the learned ACMM, Delhi, which Order was
affirmed by the Division Bench of this Court. Their Lordships
have opined that in extradition proceedings ―no witness is
examined for establishing an allegation made in the requisition
of the foreign state ..... No formal trial is to be held. ..... whereas
the contents of a documents is to be proved for the purposes of
trial but not for the purposes of arriving at an opinion in regard
to the existence of a prima facie case in an enquiry. Strict
formal proof of evidence in extradition proceedings is not the
requirement of law‖. By virtue of Section 7, the Magistrate has
the power, inter alia, to take such evidence as may be produced
in support of the requisition of the foreign state on the one hand
and on behalf of the fugitive criminal on the other.
13. It will be at once obvious that the Magistrate has greater
judicial powers and responsibilities under Section 7 than those
contained in Section 17. The first sub-section of Section 7
clarifies that when the Magistrate inquires into the case, he
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. The second Sub-Section empowers the Magistrate to take
evidence and consider the case as may be produced in support
of the requisition of the foreign state as well as evidence on
behalf of the fugitive criminal in order to dispel any doubt 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. It will be relevant to refer to the Schedule to
the Extradition Act which enumerates the offences which are
not to be regarded as offences of political character. Sub-
section(3) thereafter clarifies that the Magistrate is to return
only a prima facie finding pertaining to the requisition of the
foreign state, and if he arrives at the conclusion that a prima
facie case is not made out, he shall discharge the fugitive
criminal. Sub-section(4) thereafter spells out that if the
Magistrate is of the opinion that a prima facie case is made out
for 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 a written statement which the fugitive criminal may
desire to submit for the consideration of the Central
Government.
14. In contradistinction, Section 17 prescribes a simple
procedure and lays down what is expected of the Magistrate.
Sub-Section(1) of Section 17 restricts the magisterial inquiry to
ascertainment of the existence of an endorsed warrant for the
apprehension of the fugitive criminal is duly authenticated and
secondly that the offences of which the person is accused or has
been convicted is an extradition offence. If the findings are in
favour of the requisition, the Magistrate must commit the
fugitive criminal to prison to await his return; the Magistrate
should also forthwith send to the Central Government a
certificate of the committal. Sub-section(2) empowers the
Magistrate to detain or release such person, dependent on the
outcome of his inquiry. Sub-section (3) enjoins the Magistrate to
report the result of his inquiry to the Central Government, and
simultaneously to forward any written statement which the
fugitive criminal may desire to submit for the consideration of
the Government. The obvious and substantial difference is that
since the inquiry under Section 17 is of a secretarial nature, the
Magistrate has not been vested with the powers of a Court of
Session or of a High Court. He has also not been vested with
any power of taking or recording evidence or of perusing the
evidence produced in support of the requisition. Furthermore,
discretion has been granted to the Magistrate under Section
7(4) to commit the fugitive criminal to prison, whereas this
discretion is missing under Section 17(1). Our inquiry reveals
that only two Treaties, that is between India and Bhutan and
India and Turkey, make Chapter-III applicable, whereas in all
other cases of Treaties or Arrangements it is Chapter-II, along
with the provisions, other than Chapter-III that are enforced.
This position is also obvious on a reading of Section 3 of the
Extradition Act which is to the effect that the Central
Government may, by notified order, direct that the provisions of
this Act, other than Chapter III, shall apply to such foreign
States or part thereof as may be specified in the order.
Application of Chapter-III is, therefore, the exception and if it is
to be applied, there must be an explicit indication to that effect.
This is obviously for the reason that the countries across the
world prefer to reserve the right to a Judicial Officer to come to
at least a prima facie conclusion that the fugitive criminal,
whose extradition is prayed for, deserves to be removed from
that country to a foreign country to face prosecution at the
place where the culpable act has taken place. As has already
been mentioned, a request for an extradition of a person for
political considerations would normally be turned down.
15. We do not find any provision in the Extradition Act which
renders it applicable only if a Treaty or an Arrangement has
been entered into between India and the said foreign countries.
A requisition for extradition can always be made, but in the
absence of a Treaty or an Arrangement, India has the unfettered
right not to accede to the request for extradition. The Indo-US
Treaty, in terms, notifies that the provisions of the Extradition
Act, other than Chapter-III, shall apply. It is indeed paradoxical
that Mr. Mathur, learned Senior Counsel for the Petitioner,
contends before us that it is Chapter-III which must be complied
with in the present case. As we have already analysed, Chapter-
III expects almost negligible exercise of judicial mind, which no
fugitive criminal would want if another choice is available. If
Chapter-III were to apply, and Mr. Mathur's arguments
necessarily implies that Chapter-II does not apply, the
Magistrate would not be required even to form a prima facie
opinion, that the case as contained in the Requisition, is made
out. All that is expected of the Magistrate is to ensure the
existence of an endorsed warrant for the apprehension of the
Petitioner, and that it is duly authenticated, and that the offence
of which the petitioner is accused is an extradition offence. As
per Section 17 he would then have no discretion but to commit
the Petitioner to prison to await his return regardless of
whether there is or is not any substance in the charges or
indictment.
16. Extradition offence has been defined in Section 2(c) of the
Extradition Act to mean (i) in relation to a foreign State, being a
Treaty state, an offence provided for in the Extradition Treaty
with that State; (ii) in relation to a foreign State other than a
Treaty State an offence punishable with imprisonment for a
term which shall not be less than one year under the laws of
India or of a foreign State. Since the powers of the Magistrate
are much wider as envisaged in Section 7 than what is
contemplated by Section 17, it is conceivable that when a
requisition is received, to which Chapter-III applies, the
Magistrate concerned would be expected to do no more than to
ascertain that the offence in the Requisition is also an offence in
both countries attracting imprisonment for a term of not less
than one year; or that it is in fact an offence mentioned in the
Treaty exchanged between India and the requisitioning State.
The Magistrate would not have to conclude that a prima facie
case has been made out. In actual terms, the fugitive criminal
would not be prejudiced if the provisions of the Chapter-II
rather than Chapter-III of the Extradition Act are applied. A writ
of Habeas Corpus would normally not issue where no prejudice
is caused to the Petitioner and, to the contrary, he has received
protection or consideration which is much wider and meaningful
than what is provided under the statue. We have perused the
documents filed by the Respondents in the Court of learned
ACMM, all of which have been authenticated in the manner
provided by law, viz., a certificate of authentication has been
issued by the Embassy of India in the USA. So far as the
existence of an endorsed warrant is concerned as soon as the
Government of India makes a request under Section 5 of the
Extradition Act, the endorsement would be deemed to have
come into effect. The Order dated 7.5.2007, as corrected by
Corrigendum dated June 11, 2007, constitutes such an
endorsement. In any event, the discussion is academic and of
little consequence since it is Chapter-II and not Chapter-III
which is relevant to the case in hand.
17. We must now turn our attention to the question of
whether an extradition offence has been mentioned in the
requisition for the extradition of the Petitioner. Mr. Mathur,
learned Senior Counsel for the Petitioner, has both eloquently
and vehemently argued that the offence mentioned in the
requisition is ―wire fraud‖ as covered by Title 18, United States
Code, Sections 1343 and 2, which has been cited in the
Indictment and the Warrant of Arrest. Article 2(1) defines
extraditable offence with reference to the punishment that can
be given, viz., that it should be punishable for a period of more
than one year. Article 2(3) clarifies that an offence shall be an
extraditable offence regardless of whether it is similarly
categorised or nomenclature or described by the same
terminology. The learned ACMM has returned a finding that the
offence for which the Petitioner has been indicted and for which
warrants of Arrest had been issued against him are defined in
Section 420 of the Indian Penal Code (IPC) and are punishable
for more than one year. Mr. Mathur has contended that Section
420 prescribes the punishment for cheating but does not define
it. There can be no gainsaying that the definition of cheating is
contained in Section 415 of the IPC. We are, however, not
impressed with the argument that because the learned ACMM
has stated that cheating is defined in Section 420 of the IPC, his
Order should be set aside. Every Appellate Court, and much
more a Writ Court, should take the trouble to ascertain the
essence of the relevant Order and not be impressed by minor
irregularities which may have accidentally or inadvertently
crept in. Neither Appellate Courts nor Writ Courts should adopt
a pedantic or superficial approach while analysing the Judgment
of a lower or inferior Court. On our perusal of the Order dated
18.8.2008 we can come to no conclusion other than that the
learned ACMM meant that the offence for which the Petitioner
has been indicted would be punishable, if tried in India under
Section 420 of the IPC.
18. Pinochet (No.3) [2000], 1 AC 147 states that - ―the most
important requirement is that the conduct complaint of must
constitute the crime under the law of both the States of Spain
and U.K. This rule is known as double criminality rule‖. This
requires that the conduct of the fugitive criminal in U.S.A.
should be transposed to India and then consideration must be
given as to whether it constitutes crime in India.
19. As can be expected from the erudition and sagacity of
Mr. Mathur, he had drawn our attention to the views of the
Supreme Court in Hridaya Ranjan Prasad Verma -vs- State of
Bihar, 2000 SCC (Cri.) 786 and Anil Mahajan -vs- Bhor
Industries Ltd., (2006) 1 SCC (Cri.) 746. We do not find either
of these cases relevant to the issue before us since the learned
ACMM was not required to conduct a trial or to return a finding
of guilt in respect of the offences for which the Petitioner has
been indicted in the USA; he has merely to satisfy himself that,
prima facie, an offence punishable in both countries has been
committed. The jural duties of determining guilt fall within the
province of the criminal courts in the requesting country, that is
USA, which will put the Petitioner on Trial, if and when he is
extradited. We should not lose sight of the fact that the
Petitioner is not being tried for an offence committed in this
country; he must face trial with regard to the indictment and
warrant issued by the Magistrate Judge of the District of New
Jersey. For the purposes of the request for extradition the
learned ACMM had only to satisfy himself that, had the acts
which the Petitioner has allegedly committed taken place in
India, it would attract a punishment in excess of one year or that
the said acts are punishable in both countries. It is true that on
this aspect the Magistrate must return a definite finding and not
a prima facie finding. A prima facie finding relates to whether
on the basis of the documents forwarded to the Magistrate
and/or the evidence recorded by him it appears to him that
prima facie there is sufficient material for the fugitive criminal
to stand or face a trial. In the case in hand the Magistrate has
returned a definite finding that the offence for which the
Petitioner has been charged in USA is also an offence for which
a punishment has been provided under Section 420 of the IPC
(which amounts to cheating under Section 415 of the IPC).
20. We are, therefore, unable to accept the contention raised
on behalf of the Petitioner that the offence for which the
Petitioner has been indicted in the Court of the District Judge,
New Jersey would be punishable under Section 417 of the IPC,
that is, for a period which may extend only to one year. This is
for the reason that prima facie the Petitioner has dishonestly
induced the complainant persons in the USA to deliver sundry
property.
21. Before moving to the next point we must underscore that
an Appeal against the Order of the learned ACMM has not been
provided for in the Extradition Act and, therefore, while
exercising the extraordinary powers of a Writ Court, we would
interfere with the decision of the concerned Court only if it is
perverse in the strict legal sense. We will be loathe to impose
and substitute the understanding we prefer with regard to that
of the learned ACMM. In any event, so far as the present case
goes, we are in agreement with the learned ACMM that the
offence for which the Petitioner has been indicted in the USA
corresponds to cheating as envisaged under Section 415 of the
IPC for which punishment of upto seven years is provided under
Section 420 of the IPC. The Order which has been obliquely and
indirectly questioned before us is dated 18.8.2008. The
Petitioner has not directly assailed that Order by invoking any
provision of law available to him, a fact we cannot be unmindful
of. Having argued the matter fully after bringing that Order into
issue, the matter must rest within the parameters of this
Judgment.
22. Mr. Mathur, learned Senior Counsel for the Petitioner, has
assailed vociferously what he has termed as ‗multiple arrests' of
the Petitioner. We have already narrated the asseverations in
the Petition which are to the effect that the Petitioner was
detained on 4.5.2005 at Chennai Airport, pursuant to a Red
Corner Notice issued by International Criminal Police
Organization (Interpol). In view of this categoric pleading we do
not find it necessary to go into the issue whether he was in fact
arrested on 1.5.2005. It has not been contended that this was
not a provisional arrest. Secondly, a provisional arrest has not
been covered in Chapter-II, although it has been so dealt with in
Chapter-III of the Extradition Act. However, in Chapter-V, which
is the miscellaneous pandect of the Extradition Act, provisional
arrest has been provided for in Section 34-B which was
introduced into the statute by the amendments carried out in
1993. It states that 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
jurisdiction to issue a provisional warrant for the arrest of such
fugitive criminal. Section 16 under Chapter-III, which we have
already found not to be applicable to the present case, similarly
speaks of powers of a Magistrate to issue a provisional warrant.
Avowedly, however, the Petitioner was not arrested on the
orders of any Magistrate acting under the Extradition Act or any
other Act. The Petitioner was apprehended on 1.5.2005 in
response to a Red Corner Notice issued by Interpol albeit
consequent to a request made by USA.
23. On this aspect of the case, the fifth sub-article of Article
12 of the Indo-US Treaty is reproduced below for facility of
reference:-
Provisional Arrest
1. In case of urgency, a Contracting State may
request the provisional arrest of the person sought
pending presentation of the request for extradition. A
request for provisional arrest may be transmitted
through the diplomatic channel. The facilities of the
International Criminal Police Organization (Interpol)
may be used to transmit such a request.
2. The application for provisional arrest shall
contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case,
including, if possible, the time and location of the
offence;
(d) a description of the laws violated;
(e) a statement of the existence of a warrant of
arrest or a finding of guilt or judgment of conviction
against the person sought; and
(f) a statement that a request for extradition for the
person sought will follow.
3. The Requesting State shall be notified without
delay of the disposition of its application and the
reasons for any denial.
4. A person who is provisionally arrested may be
discharged from custody upon the expiration of sixty
(60) days from the date of provisional arrest pursuant
to this Treaty if the executive authority of the
Requested State has not received the formal request
for extradition and the supporting documents
required in Article 9.
5. The fact that the person sought has been
discharged from custody pursuant to paragraph (4) of
this Article shall not prejudice the subsequent
rearrest and extradition of that person if the
extradition request and supporting documents are
delivered at a later date.
24. Similar provisions are to be found in Article 11 of the
Indo-Canadian Treaty; Article 10 of the Indo-Russian Treaty;
Article 12 of the Indo-UK Treaty and Article 18 of the Indo-
Turkish Treaty. It appears to us that the legality of re-arresting
a fugitive criminal despite his release from a provisional arrest
has assumed the nature of a general tenet of extradition law. It
is palpably obvious that the existence of such a provision has
fatal consequences so far as the arguments addressed before us
on behalf of the Petitioner are concerned.
25. So far as the Extradition Act and the Indo-US Treaty are
concerned, a provisional arrest would metamorphose itself into
a ―regular arrest‖ as soon as the machinery in this regard is set
in motion. Inexplicably, the Government of the USA did not set
into motion the machinery available to transform the provisional
arrest of the Petitioner into the more enduring one as envisaged
in the Extradition Act. By virtue of Section 34-B the Petitioner
became entitled in law to be discharged upon the expiry of sixty
days from the date of his arrest since no request for his
surrender or return had been received within that period. In the
event, the Petitioner had been released on bail by Order dated
12.5.2005 of the Judicial Magistrate, Alandur, Chennai. It was
for this reason there was no restraint on his personal liberty. He
had approached the High Court of Judicature at Madras after
some delay and his Passport was returned to him in terms of
Order dated 15.11.2006.
26. The implementation of Treaty arrangements has posed
problems in courts for several centuries. In Jolly George
Varghese -vs- The Bank of Cochin, AIR 1980 SC 470 one of the
questions that had arisen was whether the International
Covenants on Civil and Political Rights would prevail over the
provisions of the Code of Civil Procedure, 1908 (CPC). Their
Lordships observed that - ―The Covenant bans imprisonment
merely for not discharging the decree debt. Unless there be
some other vice or mens rea apart from failure to foot the
decree, international law frowns on holding the debtor's person
in civil prison, as hostage by the Court. India is now a signatory
to this Covenant and Article 51(c) of the Constitution obligates
the State to ‗foster respect for international law and treaty
obligations in the dealings of organised peoples with one
another'. Even so, until the municipal law is changed to
accommodate the Covenant what binds the court is the former,
not the latter‖. This conundrum has also concerned the
Supreme Court on two other occasions, viz. In re, Berubari
Union and Exchange of Enclaves, AIR 1960 SC 845 and
Maganbhai Ishwarbhai Patel -vs- Union of India, AIR 1969 SC
783. Maganbhai contains a precise analysis of the legal
position obtaining in the USA, United Kingdom, France as
well as India. Paragraph 26 of Maganbhai is reproduced for
easy perusal:
26. In the United States of America a treaty concluded
with a foreign State by the President of the United
States alone, without the consent of the Senate, is not,
according to their Constitution, binding upon the
Nation and the foreign power derives no rights under it
(See McNair Law of Treaties, p.80 quoting from
Crandall : Treaties, Making and Enforcement, Chapter
XIV). As Chief Justice Taft put it : a treaty is the
supreme law and a treaty may repeal a statute and vice
versa. It is only when the terms of a treaty require that
a law must be passed that it has to be so passed :
Foster v. Nielsen, (1828-30) 2 Peters 253. See also
Dickinson : Law of Nations 1057.
27. We do not need to delve further into this question since
there is no repugnancy between the Extradition Act or any
municipal enactment in the USA on the one hand and the
provisions of the Indo-US Treaty on the other. In fact, so far as
India is concerned, the position is to the contrary. Section 3 (3)
(c) of the Extradition Act stipulates that - ―Where the notified
order relates to a treaty State the Central Government may, by
the same or any subsequent notified order, render the
application of this Act subject to such modifications, exceptions,
conditions and qualifications as may be deemed expedient for
implementing the treaty with that State‖. In other words,
Parliament has delegated the power of modification of the
provisions of extradition to the Central Government. This
discussion is necessary for the reason that the provisions of
Section 34-B (or for that matter Section 16 falling in Chapter-III)
does not contain terms empowering the re-arrest of a fugitive
criminal after his discharge or release from provisional arrest.
In our opinion, the re-arrest of a fugitive criminal is impliedly
sanctioned under the Extradition Act. It seems to us that Article
12(5) of the Indo-US Treaty sufficiently empowers the re-arrest
of a fugitive criminal after his release from provisional arrest.
By operation of Section 3 (3) (c) of the Extradition Act the said
Article of the Indo-US Treaty assumes the qualities of
enforceable law. So far as the position obtaining in the USA is
concerned, the provisions of the Indo-US Treaty would override
municipal/domestic legislation that may have been previously
prevailing in the event of any repugnancy.
28. Finally, we shall consider the contention of Mr. Mathur,
learned Senior Counsel for the Petitioner, that by operation of
Section 24 of the Extradition Act the Petitioner must be deemed
to have discharged. His argument is that the request for the
extradition of the Petitioner was received from the U.S.
Government on 10.10.2006. Non-bailable Warrants were issued
by the learned ACMM against the fugitive criminal on
31.5.2007. Consequent thereto, the Petitioner was arrested in
Chennai on 29.6.2007. Mr. Mathur argues that proceedings
under the Extradition Act ought to have been completed on or
before 28.8.2007, as thereafter the Petitioner would be entitled
to be discharged by virtue of Section 24 of the Extradition Act.
The said Section reads as follows:-
24. Discharge of person apprehended if not
surrendered or returned within two months.-- If a
fugitive criminal who, in pursuance of this Act, has
been committed to prison to await his surrender or
return to any foreign state is not conveyed out of India
within two months after such committal, the High court
upon application made to it by or on behalf of the
fugitive criminal and upon proof that reasonable notice
of the intention to make such application has been
given to the Central Government may order such
prisoner to be discharged unless sufficient cause is
shown to the contrary.
29. The starting point of the period prescribed by Section 24
is the date on which the fugitive criminal (Petitioner) has been
committed to prison. The Section does not speak of an arrest.
Advanced Law Lexicon clarifies the position thus:- ―Arrest' and
‗commit'. By arrest is to be understood to take the party into
custody. To commit is the separate and distinct act of carrying
the party to prison, after having taken him into custody by force
of the execution‖. ‗Commit' has been explained in Black's Law
Dictionary to connote the sending of a person to prison, and/or
directing an officer to take a person to a penal institution. The
same Dictionary defines ―arrest‖ as : a seizure or forcible
restraint; the taking or keeping of a person in custody by legal
authority especially in response to a criminal charge; the
apprehension of someone for the purpose of securing the
administration of the law, especially for bringing that person
before a Court. The words are not synonymous to each other. In
the case in hand, there was no committal of the Petitioner prior
to 18.8.2008, as stands clarified by the Order dated 25.8.2008.
If any doubt remains, it would be dispelled by reading further
into the Section. The fugitive criminal should have been
committed to prison either to await his surrender or for his
return to the concerned State. We must revert back to Section
7(4) which empowers the Magistrate to commit the fugitive to
prison if the Magistrate is of the opinion that a prima facie case
has been made out in support of the requisition of the State
concerned. Thereafter, Section 8 speaks of the surrender of the
fugitive criminal to the concerned State. Both these Sections are
in Chapter-II of the Extradition Act. In those cases where
Chapter-III and not Chapter-II is applicable, if upon making the
secretarial, punctilious or formal inquiry, as postulated by
Section 17, the Magistrate is satisfied that the endorsed
Warrant for the apprehension of the fugitive criminal is duly
authenticated and that the offence of which the person is
accused or has been convicted is an extradition offence, the
Magistrate shall commit the fugitive criminal to prison to await
his return, presumably to the State concerned. Section 18
clarifies the manner in which the ‗return' is to be effected by the
Central Government. From this analysis, it is obvious that the
words ‗surrender' and ‗return' are terms of art, having special
connotation in the context of the Extradition Act. Our
conclusion in the present case is that the prescription contained
in Section 24 of the Extradition Act would commence on
18.8.2008 and two months would ordinarily have to be
computed from that date.
30. In the end, we are reminded of the legal maxim actus
curiae neminem gravabit which translates to - ―An act of the
court will prejudice no one‖. Courts in India are bludgeoned by
dockets and for this reason it is well-nigh impossible to adhere
to time limits that are set by statutes. Parliament has
incorporated such constraints, inter alia, not only in the
Extradition Act but also in the CPC by requiring the disposal of
injunction applications within thirty days. What should be
simultaneously addressed by Parliament is whether the required
or optimum strength of judges, keeping the population of India
as the necessary foundation, is in existence. In the present case,
the Petitioner has indubitably received an elaborate hearing.
Keeping the dockets on the Roster of the learned ACMM in
perspective, it would have been impossible for the Court to give
a day-to-day hearing. Even if it did so, the hearing itself may
have stretched beyond the period of two months. If the very
narrow interpretation, suggested by Mr. Mathur, is to be
adopted, a fugitive criminal would easily escape extradition by
initiating and then protracting proceedings in Court. A much
more disturbing possibility is that a Judge may give a hurried
and punctilious audience to the Petitioner and hurriedly pass an
order keeping the statutory time constraints before him. Plainly,
therefore, in cases where a Petitioner initiates legal
proceedings, the prescribed period must be held to have come
to a temporary halt or cessation and it would stand revived on
the passing of an order disposing of the litigation.
31. Although in the present case there may be no impediment
in the path of the Government to bring the extradition
proceedings to their logical end, since the relevant period would
end on 17.10.2008, we clarify that the period between
18.8.2008 and the date of the pronouncement of this Judgment
would stand excluded from the prescribed prescription period of
Section 24 of the Extradition Act.
32. In this analysis, we find no merit in the Writ Petition and,
therefore, recall all interim Orders. Writ Petition is dismissed
with costs quantified at Rupees Ten Thousand. Bail Bonds are
cancelled. Surety stands discharged. Petitioner shall be taken
into custody.
( VIKRAMAJIT SEN )
JUDGE
September 12, 2008 ( V.K. SHALI )
tp JUDGE
