Delhi High Court
Ritesh Narpatraj Sanghvi vs Union Of India on 7 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:16th November, 2018
% Delivered on: 7th January, 2019
+ W.P.(CRL) 2061/2017 & Crl.M.A.No.12002/2017
RITESH NARPATRAJ SANGHVI ..... Petitioner
Represented by: Dr. Harsh Surana and Ms.
Deepali S. Surana, Advocates
versus
UNION OF INDIA ..... Respondent
Represented by: Mr. Rajesh Gogna, CGSC with
Mr. Akhilesh Kumar,
Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present writ petition the petitioner seeks quashing of final
judgment and order cum inquiry report dated 1st June 2017 passed by the
Learned Additional Chief Metropolitan Magistrate in Complaint Case no.
22/4/13 whereby the Learned Trial Court recommended the extradition of
the petitioner to the requesting state that is Kingdom of Thailand for facing
trial for the offence of murder and quashing of letter dated 7th July 2017
issued by the Ministry of External Affairs to The Royal Thai Embassy
whereby the Government of India decided to extradite the petitioner to
Thailand to face trial in case No. 187/2555 for the offence of murder.
2. Briefly stated the allegations against the Petitioner are that he killed
an American national namely Ms. Wendy S. Albano at Bangkok, Thailand
on 12th February 2012. The Thai Government has made the petitioner, prime
suspect on the basis of evidence collected from the spot. The petitioner
surrendered before Mumbai Police on 29th September 2014 pursuant to the
issuance of non-bailable warrants. On 1st October 2014 after obtaining
transit remand from the court of Learned Additional Chief Metropolitan
Magistrate, Mumbai, he was produced before the court of Learned
Additional Chief Metropolitan Magistrate, Delhi. Thereafter, the petitioner
was sent to judicial custody.
3. Learned Additional Chief Metropolitan Magistrate, Delhi completed
the inquiry and passed the final extradition enquiry report vide impugned
order dated 1st June, 2017 and the same was communicated to The Royal
Thai Embassy vide the impugned letter dated 7th July 2017.
4. Learned counsel for the petitioner challenges the letter dated 7 th July
2017 on two grounds. Firstly, that the inquiry report having not been
received by the petitioner till the 13th July, 2017, admittedly no opportunity
was given to the petitioner to file the written statement under Section 7 (4)
of the Extradition Act and before the said written statement could be filed,
the letter dated 7th July, 2017 was sent. Learned counsel for the petitioner
further submits that supply of inquiry report to the counsel of the petitioner
on 2nd June, 2017 would not be compliance of the mandate of the Act for the
reason that supply of the inquiry report has to be to the fugitive criminal and
even if, the inquiry report was supplied, counsel for the petitioner was not in
India, hence it was no valid service of the report. The petitioner made a
request to file written statement to the court to be filed till first week of July.
It is quite evident from the order passed by the Learned Metropolitan
Magistrate dated 13th July 2017 that the copy of the Preliminary Enquiry
was not served on the Petitioner due to which he was unable to file the
Written Statement. The Ministry passed the extradition order on 7 th July
2017 when the written statement of the petitioner was not on record.
5. The second ground of challenge of learned counsel for the petitioner
to the letter dated 7th July, 2017 is that the said letter suffers from non-
application of mind as despite the petitioner having spent nearly four years
in custody in India, there is no mention of the same in the letter dated 7 th
July, 2017, informing the Kingdom of Thailand about the period spent so
that the same may be taken into account, in case, the fugitive criminal is
finally convicted and awarded sentence. The Indian authorities have also not
discussed regarding the jail term already undergone by the petitioner in India
with the Thai authorities. It is contended that the Extradition Letter dated 7th
July 2017 was passed without any application of mind, in a clerical and
mechanical manner. The Indian Authorities have not discussed with the Thai
Authorities that Death Penalty should not be imposed on the petitioner as
per universally practiced procedure in cases of Extradition of one's national
to other countries.
6. Challenging the inquiry report dated 1st June, 2017 learned counsel for
the petitioner submitted that the mandate of Section 10 (2) (a) & 10 (2) (d)
of the Extradition Act, 1962 (in short the Act) has not been followed. The
'Arrest Warrant' issued by the Thailand Court has to be signed and
sealed/stamped by the learned court issuing it. The 'Arrest Warrant' is in
Thai language and Indian External Affairs Ministry's Officials & the Courts
cannot understand Thai language. The translation in English attached with
the document in Thai language was not at all signed in the first place. The
said document cannot be termed as 'duly authenticated' as per the provisions
of the Act. He also submitted that the Union of India through Ministry of
External Affairs had filed an application under Section 5 of the Act before
the Learned Metropolitan Magistrate for Preliminary Enquiry on mere
photocopies on the basis of which cross-examination was conducted. The
documents received in India for inquiry and considered to form the basis of
the Inquiry report were not duly authenticated by the competent authority of
the requesting state.
7. Learned Standing Counsel for the Central Government submitted that
the Central Government has the discretion to either Suo moto take action to
extradite a person or may order the Magistrate to carry out an enquiry.
Counsel for the petitioner was competent to receive the copy of the Warrant
of Committal on behalf of the accused. As per the order dated 1 st June 2017
it is evident that the same was handed over to the counsel for the petitioner.
No written statement was filed on behalf of the petitioner despite notice
being received by him. The right of the petitioner is limited that he can only
prove that offence is of political character or not an extraditable offence.
Even after an inquiry, it is the sovereign power of the Government of India
whether to extradite a person or not.
8. Section 7, 10 and 17 of the Act reads as under:
Section 7. Procedure before Magistrate. -
"(1) ... ...
(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 1[***], and on behalf of the fugitive criminal,
including any evidence to show that the offence of which the
fugitive criminal accused or has been convicted is an offence of
political character or is not an extradition offence.
(3) If the Magistrate is of the opinion that a prima facie case
is not made out in support of the requisition of the foreign State
1[***], 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, and written statement which the fugitive
criminal may desire to submit for the consideration of the
Central Government."
Section 10. Receipt in evidence of exhibit depositions and other
documents and authentication thereof.-
"(1) .... .....
(2) Warrants, depositions or statements on oath which
purport to have been issued or taken by any Court of Justice
outside India or copies thereof, certificates of, or judicial
documents stating the facts of conviction before any such Court
shall be deemed to be duly authenticated if―
(a) the warrant purports to be signed by a Judge,
Magistrate or officer of the State where the same was
issued or acting in or of such State;
(b) ... ...
(c) ... ...
(d) the warrants, depositions, statements, copies,
certificates and judicial documents, as the case may be,
are authenticated by the oath of some witness or by the
official seal of a Minister of the State where the same
were issued, taken or given."
Section 17. Dealing with fugitive criminal when apprehended.-
"(1) ... ...
(2) ... ...
(3) The Magistrate 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 that Government."
9. As noted above, the challenge to the inquiry report is twofold; that the
documents received in India for inquiry and considered were not duly
authenticated by the competent authority and original documents were not
filed before the Court. Section 10 (2) of the Act provides that the warrants,
depositions or statements on oath which purport to have been issued or taken
by any Court of Justice outside India or copies thereof, certificates, etc.,
shall be deemed to be duly authenticated if purportedly signed by a Judge,
Magistrate or officer of the State. A perusal of the Trial Court Record
reveals that the warrants Ex.1/8 are duly signed by the competent authority.
Further even if no original documents were placed initially, the fact that
subsequently authenticated documents were placed in the course of inquiry
is not disputed. The scope of an inquiry as per Section 7 of the Act before
the learned Metropolitan Magistrate is limited and the Magistrate is not
required to see whether the offence alleged against the petitioner has been
proved beyond reasonable doubt but whether there is a prima facie case or
reasonable ground to believe that the fugitive criminal has committed an
extraditable offence. The documents placed on record complied with the
mandate of Section 10 of the Act. Hence there is no merit in the challenge
to the inquiry report.
10. Petitioner challenges the letter dated 7th July, 2017 of the Govt. of
India on the ground that the right to file written submissions was not given
to the petitioner as the copy of the inquiry report was supplied only on
13/14th July, 2017 and the period of incarceration undergone was not
informed so that in case the petitioner is convicted and sentenced, benefit of
the period undergone can be given to him. Admittedly, as per the record
copy of the inquiry report was served on the counsel for the petitioner on 2nd
June, 2017 in the Court and the counsel being the constituted attorney of the
petitioner, the petitioner cannot claim that he had no service of the inquiry
report till 13/14th July, 2017. It was for the learned counsel for the petitioner
to have ensured that the copy of the inquiry report was passed on to the
petitioner so that he could have filed his written statement if so desirous.
Further merely non-mentioning of the period undergone in custody in India
would not vitiate the letter dated 7th July, 2017 for the reason in case on
receipt of the inquiry report and pursuant to letter dated 7 th July, 2017 the
petitioner is extradited, he would be facing a full-fledged trial where all
these facts can be brought to the notice of the competent Court.
11. Thus this Court finds no merit in the grounds urged to challenge the
inquiry report or the letter dated 7th July, 2017. Hence the petition and
application are dismissed.
12. TCR be sent back.
(MUKTA GUPTA)
JUDGE
JANUARY 07, 2019
'vj/ga'
