WP(Crl.)1249/2007 Page 1 of 34 * 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. J U D G M E N T 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). WP(Crl.)1249/2007 Page 2 of 34 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 WP(Crl.)1249/2007 Page 3 of 34 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 WP(Crl.)1249/2007 Page 4 of 34 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 WP(Crl.)1249/2007 Page 5 of 34 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 WP(Crl.)1249/2007 Page 6 of 34 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 WP(Crl.)1249/2007 Page 7 of 34 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 WP(Crl.)1249/2007 Page 8 of 34 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 WP(Crl.)1249/2007 Page 9 of 34 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 WP(Crl.)1249/2007 Page 10 of 34 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 WP(Crl.)1249/2007 Page 11 of 34 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 WP(Crl.)1249/2007 Page 12 of 34 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 WP(Crl.)1249/2007 Page 13 of 34 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 WP(Crl.)1249/2007 Page 14 of 34 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 WP(Crl.)1249/2007 Page 15 of 34 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 WP(Crl.)1249/2007 Page 16 of 34 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, WP(Crl.)1249/2007 Page 17 of 34 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 WP(Crl.)1249/2007 Page 18 of 34 are much wider as envisaged in Section 7 than what is contemplated by Section 17, it is