Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(Crl) No.1330/2002
% Date of decision : 01.05.2008
KAMLESH BABULAL AGGARWAL ….… Petitioner
Through: Mr. Aman Lekhi, Sr Advocate with
Mr Jaspreet Rai, Rajan K Chourasia,
Mr Rohit Nagpal, Mr Harish Pandey,
Mr Shyamal Kumar and Mr Rakesh Kumar
Advocates.
Versus
UNION OF INDIA AND ANOTHER ....... Respondents
Through: Mr. S.K. Dubey, Advocate.
CORAM :-
HON’BLE MR. JUSTICE VIKRAMAJIT SEN
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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 YES
in the Digest?
RAJIV SAHAI ENDLAW, J
1. This petition was initially instituted challenging the order
dated 30.10.2002 of the Additional Chief Metropolitan Magistrate,
New Delhi (ACMM) under Section 7 of the Extradition Act, 1962
(hereinafter called as the Act). The ACMM held that there existed a
prima facie case in support of the requisition and recommended to the
Central Government that the petitioner be ordered to be extradited to
the requisitioning foreign state i.e., USA. This court, while issuing
notice of the petition, had on 21.11.2002 directed that the petitioner
WP(Crl)1330/2002 Page no. 1 of 15
shall not be extradited. Vide interim order dated 15.10.2004 in the
petition, it was noted that though the order dated 21.11.2002 had only
restrained extradition of the petitioner but the Central Government,
though not so restrained, had not acted upon the recommendation of
the ACMM and had not passed any order on the request for
extradition. This court, vide order dated 15.10.2004, ordered that the
petitioner may submit to the Central Government a written statement
within the meaning of Section 7 (4) of the Act within two weeks and
directed the Central Government to pass an order in terms of Section
8 of the Act. It was further ordered that the order, if any, passed by
the Central Government under Section 8 of the Act of surrender of the
petitioner to the foreign State shall not be executed without the
permission of the court. The petitioner submitted a written statement
dated 28.10.2004 through his advocate to the Central Government.
The Government of India vide its communication dated 11.01.2005 to
the Advocate for the petitioner intimated that the matter had been
examined and the Government did not find reasonable grounds to
accept the written statement of the petitioner and that the
Government had taken a decision to surrender the petitioner to the
US Authorities pursuant to the request for extradition.
2. The petitioner, thereafter, amended the petition to
incorporate therein the challenge to the decision of the Central
Government to extradite the petitioner.
3. The extradition of the petitioner was sought pursuant to
the indictment of the petitioner for first degree murder by the Circuit
WP(Crl)1330/2002 Page no. 2 of 15
Court for the Ninth Judicial Circuit in and for Orange County, Florida.
The indictment charged the petitioner for violation of the Florida
Statutes by causing death of Ms Deepa Aggarwal.
4. From the documents enclosed to the request for
extradition, it is the case against the petitioner, that the petitioner at
least since 1997 was studying in USA; the deceased Ms Deepa
Aggarwal was stated to be distantly related to the petitioner; the
petitioner was stated to have come to India for 5 weeks and had
returned to the US on 08.07.1999. The deceased Ms Deepa Aggarwal
was found dead on 20.07.1999 with the injuries as mentioned in the
th
indictment and was reported to have died in the night intervening 10
th
and 11 July, 1999. It is further the case against the petitioner that
th
the petitioner left USA on 12 July, 1999 for India, i.e., within about 4
days of his return to USA and on a one way ticket and after selling his
valuables there i.e., car, computer, hard disk etc at a throw away
price. It is further the case against the petitioner that the petitioner
had been residing along with Ms Deepa Aggarwal in her apartment
and there were investigation from the neighbours to the effect that
there were frequent fights between the petitioner and the deceased
Deepa Aggarwal.
5. The learned ACMM recorded the statement of Mr Rupin
Sharma, Under Secretary (Consular) of CPV Division in Ministry of
External Affairs. The petitioner chose not to lead any evidence. It
was / is not in dispute that the offence of which the petitioner had
WP(Crl)1330/2002 Page no. 3 of 15
been indicted was not of political character and is an extradition
offence.
6. Though the letter dated 11.01.2005 (supra) of the Central
Government does not state any reason but we have examined the files
of the Central Government submitted after the conclusion of the
hearing alongwith an affidavit of Shri P.M. Meena, Joint Secretary
(Consular) Ministry of External Affairs, Government of India and find
that the Minister of State, after going through the file, had considered
whether exception should be given for the reason of (i) the offence
being trivial or (ii) for the reason of malafide or (iii) for political
reasons, and found no case for any of the exceptions to be carved out
and accordingly ordered the extradition of the petitioner.
7. The foremost contention of the learned Senior counsel for
the petitioner was with respect to the scope of inquiry under Section 7
of the Act; he urged that Section 7 of the Act in Chapter II of the Act
has to be read in contradistinction with Section 17 of the Act in
Chapter III of the Act; it is the submission that admittedly the
request in the present case is under Chapter II of the Act – This
position is not controverted by the Union of India also. The petitioner
submits that while the inquiry by the Magistrate under Section 17 of
the Act is limited to (i) as to whether the warrant received from the
requesting country is duly authenticated or not and (ii) whether the
offence of which the fugitive is accused or convicted is or is not an
extradition offence, the inquiry under section 7 of the Act has to
encompass whether a prima facie case is made out or not. Reliance
WP(Crl)1330/2002 Page no. 4 of 15
in this regard is also placed on the expression “including any
evidence........” in Section 7(2) of the Act. It is the submission of the
learned Senior Counsel for the petitioner that the the inquiry under
Section 7 of the Act has to be such as to find out whether a case of
having committed an offence for which extradition is sought was
committed by the fugitive or not. It was submitted that this court in
Nina Pillai case [65(1997) DLT 487 (DB)] has wrongly presumed
in para 11 of the judgment that :
“It is now fairly well settled that the Magisterial
inquiry which is conducted pursuant to the request for
extradition is not a trial. The said inquiry decides
nothing about innocence or guilt of the fugitive
criminal. The main purpose of the inquiry is to
determine whether there is a prima facie case or
reasonable grounds which warrant the fugitive
criminal being sent to the demanding State. The
jurisdiction is limited to the former part of the request
and does not concern itself with the merits of the
trial......”
8. He submitted that it was not so laid down in any of the
earlier judgments. He further submitted that the subsequent
judgment in Darshan Kumar case [ 73 (1998) DLT 113 (DB)]
merely reiterated para 11 of Nina Pillai case and again itself did not
lay down any law as to the nature of the inquiry under Section 7 of the
Act. It was argued that the said two judgments were not binding
precedent. Darshan Kumar case was also sought to be
distinguished on the ground that the fugitive therein had led evidence
before the Magistrate, while in this case petitioner has not led any
evidence. The counsel further submitted that both of the said
judgments did not deal with the difference between Sections 7 and 17
WP(Crl)1330/2002 Page no. 5 of 15
of the Act. It is further submitted that the evidence on the basis of
which the petitioner was indicted, did not make out a prima facie case
of the guilt of the petitioner for the offence for which he was indicted.
9. The petitioner also relied upon Schtraks case [ 1962 (3)
th
ALL.E.R. 529]; para 229 of Volume 18, 4 Edition of Halsbury's
Laws of England and Gulshan Kumar Case and [(2001) 4 All.
E.R. 168] . In Schtraks case Lord Reid observed : that the proper
test for the Magistrate to apply was whether if the evidence stood
alone at the trial, a reasonable jury properly directed could accept it
and find a verdict of guilty.“ In Gulshan Kumar case, extradition of
Nadeem on request of Indian Government was declined by the English
Court inter alia on the ground :
“65. The cumulative effect of all these circumstances
causes us to infer that the accusation of murder and
conspiracy made against this applicant is not made
in good faith and in the interests of justice.
66. Having reached this conclusion we are also satisfied
that it would not be fair and would be unjust to
return the applicant, because of the appearance of
misbehaviour by the police in pursuing their inquires
and the significant risk that the activities
surrounding that misbehaviour have so tainted the
evidence as to render a fair trial impossible.”
The Senior counsel for the petitioner further urged that the ACMM
erred in construing Section 10 of the Act and consequently, erred in
reading as evidence material which was not admissible in evidence. It
is the submission that Section 10 merely permitted receiving the
documents as evidence without requiring the author thereof to
present himself and prove the same but did not permit automatic
admission into evidence of the said material. Reliance in this regard
WP(Crl)1330/2002 Page no. 6 of 15
was placed on R vs Governor of Pentonville Prison [ (1979) 2 All
E.R. 1094 (1099)] .
10. The Apex Court in Rosiline George case [(1994) 2 SCC
80)] negatived the challenge to the existence of the extradition treaty
between India and USA. The counsel for the petitioner also rightly
did not challenge the same.
11. We do not feel that for the purposes of determining the
ambit of the inquiry under Section 7 of the Act any help is to be taken
from Section 17 of the Act. Section 17 of the Act, which admittedly is
not applicable in the present case, limits the inquiry to the
authentication of the warrant and as to whether the offence is an
extradition offence or not. On the contrary, Section 7 requires the
Magistrate to inquire whether a prima facie case is made out in
support of the requisition of the foreign State. Thus, the Magistrate
while holding an inquiry under Section 7 of the Act is entitled to take
evidence on aspects other than as to whether the offence is of political
character or not and / or is an extradition offence or not. The other
evidence naturally would be as to the existence of a prima facie case.
12. “Prima facie” has a definite connotation in law. It is
defined as “at first sight” or “accepted as so until proved otherwise”
or “on face of it”, or “so far as it can be judged from the first
disclosure.” The prima facie case will prevail until contradicted and
overcome by other evidence. While determining whether a prima
facie case has been made out, the relevant consideration is whether
WP(Crl)1330/2002 Page no. 7 of 15
on the evidence laid it was possible to arrive at the conclusion in
question.
13. The petitioner, as aforesaid, while referring to the
Schtrak case relied upon a passage in the judgment of Lord Reid
only. In the judgment of Lord Hodson it is held that committal under
the Extradition Act is on the same footing as committal for trial by a
Magistrate in an ordinary case.
14. The Division Bench of this court in Charles Sobhraj case
[(29) (1986) DLT 410] also held that the entire jurisdiction under
the Act vested in the Magistrate is restricted to find out whether there
is a prima facie case and that there is no further power vested in the
Magistrate. It is perhaps for this reason that the Division Bench of this
Court in Nina Pillai case held that the position was fairly well settled.
15. In our opinion, the power of the Magistrate in conducting
an inquiry under Section 7 of the Act is akin to framing of the charge
under Section 228 of the Code of Criminal Procedure, 1973. At the
stage of the framing of charge even a strong suspicion founded upon
material and presumptive opinion would enable the court in framing a
charge against the accused. At that stage, the court possess wider
discretion in the exercise of which it can determine the question
whether the material on record is such on the basis of which a
conviction can be said reasonably to be possible. The requirement of
Section 228 also is of a prima facie case. Sufficiency of evidence
resulting into conviction is not to be seen at that stage and which will
WP(Crl)1330/2002 Page no. 8 of 15
be seen by the trial court. At that stage meticulous consideration of
materials is uncalled for. The persons who are not examined by the
original investigating agency may be examined by another
investigating agency to make the investigation more effective. The
materials so obtained could also be used at trial. The court is not
required to appreciate the evidence and arrive at the conclusion that
the materials produced are sufficient or not for convicting the
accused. If the court is satisfied that a prima facie case is made out
for proceeding further, then a charge has to be framed. The sifting of
evidence at this stage is permissible only for a limited purpose to find
out a prima facie case but the court cannot decide at this stage that
the witness is reliable or not. At the stage of framing of charge,
evidence is not to be weighed. The court is not to hold an elaborate
inquiry at that stage.
16. Section 7(3) and (4) of the Act in fact require a prima facie
case only “in support of requisition”. Reading the said provision
alongwith Section 29, we feel that the ambit of inquiry under Section
7 is in fact narrower than Section 228 CrPC and is limited to find that
the fugitive is not being targeted for extraneous reasons.
17. This, according to us, is the test to be applied in
conducting an inquiry under Section 7 of the Act and this is the ambit
and scope of the inquiry and no more.
18. The counsel for the respondent has, besides relying upon
Nina Pillai case and Darshan Kumar case also relied upon
WP(Crl)1330/2002 Page no. 9 of 15
Sarabjit 'Rick' case [2007 (93) DRJ 712 (DB)] and Maninder
Pal Singh Kohli case [142 (2007) DLT 209 (DB)] and [129
(2006) DLT 185].
19. In Sarabjit 'Rick' Singh case another Division Bench of
this court, besides relying upon Nina Pillai case, in para 19 of the
judgment further held that holding of an inquiry under Section 5 of
the Act is only an enabling provision and does not cast an obligation
on the Government to order an inquiry in every case of a request to
extradite a person. Thus, the request for extradition could be
honoured even without a judicial scrutiny of the same. The Division
Bench thus held that when the Government opted to ask for a
Magisterial inquiry, its scope is only limited to find the existence of a
prima facie case for extradition and that for such inquiry only the
documents enclosed with the request for extradition and the
statements of the investigating officers may suffice.
20. Again in Maninder Pal Singh Kohli case the grievance
before yet another Division Bench was only that the findings recorded
by the Extradition Magistrate under Section 7(4) of the Act far from
being prima facie were conclusive. This court nevertheless on
interpretation of the law held that any finding under Section 7(4) of
the Act necessarily has to be prima facie and could never be
conclusive. Earlier a Single Judge of this Court also on an earlier
petition of the same Maninder Pal Singh Kohli had also held that
the object of extradition proceedings is mainly to find out if the
request made by the foreign State has a sound basis and material
WP(Crl)1330/2002 Page no. 10 of 15
which would justify the extradition of the person sought to be
extradited. It was further held that the inquiry before the Magistrate
in extradition proceedings cannot be converted into trial of the
offence for which the extradition of the fugitive is sought. At the
inquiry the Magistrate has only to find out if based on the evidence
and material produced in support of the requisition of foreign State
and that produced by the fugitive, a prima facie case is made out in
support of the requisition and nothing more.
21. We do not find any merit in the other submission also of
the petitioner of the ACMM having misconstrued Section 10 of the
Act. The Apex Court in the Rosiline George case itself has held that
the documents certified and authenticated as required under Section
10 of the Act are eligible to be treated and received as evidence and
that the said documents when placed on record of the Magistrate are
part of the evidence in support of extradition. The relevancy of
weightage to be given to the said evidence is beyond the scope of an
inquiry under Section 7 of the Act.
22. The ACMM, in the present case, has, after a detailed
discussion, held that on the basis of the said documents, a prima facie
case was made out.
23. This court, exercising the writ jurisdiction, cannot
substitute its opinion for the opinion of the ACMM. In fact, the
Division Bench of this Court in Charles Sobhraj case has also held
that the High Court in writ jurisdiction could not re-appreciate the
WP(Crl)1330/2002 Page no. 11 of 15
evidence and could only examine whether the view taken by the
Magistrate was a possible view or not. In a writ petition, this court is
concerned only with the decision making process and as to whether
the view formed by the Magistrate could not have been formed by any
reasonable thinking person at all. We have been taken through the
material on record and are unable to accept that the view of the
existence of the prima facie case taken by the ACMM could not have
been taken by any reasonable person.
24. The Senior counsel for the petitioner has relied upon :
(1) The photograph of the petitioner though available
to the investigating agency was not shown to the
neighbours from whom investigation was done and
as such the identify of the petitioner as an accused
had not been established.
(2) That the case made out against the petitioner was
not born out from the statements of the
neighbours. While the neighbour Joan Bell had
stated that she heard noises from the apartment of
the deceased Deepa Aggarwal at 5.30 in the
morning and had heard a door bang thereafter, the
prosecution case was of the deceased having been
meticulously packed in a polythene bag and having
been put in the cardboard box and which was not
possible in a huff.
(3) That there was inconsistency in the statement of
the two witnesses as to the time of the altercation
between the deceased and the petitioner.
WP(Crl)1330/2002 Page no. 12 of 15
(4) that there was inconsistency in the statement of Mr
Rahul Jindal who had visited the apartment of the
petitioner a day prior to the discovery of the body
of the deceased and the evidence at the time of the
discovery of the body; Mr Rahul Jindal did not
mention any stench in the apartment as noticed on
the next day.
to urge that no prima facie case is made out.
25. However, the present is not a stage where the
evidence/material has to be analysed in the aforesaid fashion. It is not
to be forgotten that the petitioner has merely been indicted and has
not been convicted. It would be open to the petitioner to take all the
said defences while facing trial. At this stage all that can be said is
that none of the aforesaid submissions of the counsel for the
petitioner are such which can lead to inference of no view of a prima
facie case being possible on the basis of the material on record.
26. It cannot be lost sight of that the petitioner though ably
assisted/represented before the learned ACMM and though aware of
his right to lead evidence did not lead any evidence whatsoever. It
has not been disputed that the petitioner was at the place where the
offence had been committed. There is no explanation from the
petitioner as to why the petitioner within four days of his return to
USA after a sojourn to India chose to rush back to India. The
petitioner was then midway through his course and had returned to
th
USA on 8 July, 1999 presumably to complete his course. Not only so,
it is further the case against the petitioner that the petitioner upon
WP(Crl)1330/2002 Page no. 13 of 15
return to India (Mumbai) also, did not go back to his parental house
but chose to stay in pseudo name in hotel. We are at this stage not
concerned with the truth or relevancy of the said fact. However, the
same nevertheless at this stage shows that the findings of the learned
ACMM of a prima facie case is not without any basis and is not
contrary to the material on record.
27. As far as the submission of the counsel for the petitioner
as to the conduct of the investigation and reliance upon Gulshan
Kumar c ase is concerned, though the view therein is not binding on
this court, we feel that in the present case no case of it being not in
the interest of justice for the petitioner to face trial, in courts in the
requesting state has been made out. The petitioner had of his own
volition chosen to reside in USA and to pursue his education there.
In the present day life of a global village persons choosing to live,
pursue education and work in other nations, cannot raise such pleas.
No material whatsoever was placed by the petitioner before the
Magistrate or even before us that the petitioner on account of age,
religion, nationality, colour, political ideology or affiliation faced any
threat in the requisitioning state where he had himself chosen to live.
If the law enforcing agency of that State has probable cause or
reasoned ground to believe that the petitioner has committed the
offence, the petitioner cannot turn around and take the plea in
vacuum of fear of justice being not meted out to him in the land of his
own choice. It has to be assumed by this court that the petitioner will
be fairly and properly tried on the charges made against him.
WP(Crl)1330/2002 Page no. 14 of 15
28. As aforesaid, we have not found the material/evidence
accompanying the request for requisition to be glaringly defective or
insufficient to establish probable cause. The request for requisition in
modern times of a trans-global village has to be approached in broad
spirit to suppress the crime and for promotion of justice.
29. For the same reason, we do not find any merit in the next
submission of the counsel for the petitioner that the petitioner if found
guilty by the US courts may be punished with imprisonment for life
without parole. The counsel for the petitioner in this regard relied
upon several judgments including of European Court of Human rights
th
titled Soering v The United Kingdom (ECHR 14)(7 July, 1989)
to urge that life imprisonment without parole is worse than death
sentence. Even under the laws of India, the same punishment can be
meted out. This, therefore, cannot be a ground for refusing
extradition.
We, therefore, find no merit in this petition and the same is
dismissed.
RAJIV SAHAI ENDLAW
(JUDGE)
VIKRAMAJIT SEN
(JUDGE)
May 1, 2008
M
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