Delhi District Court
Unknown vs Vide This Order on 13 April, 2022
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
In Re:
Union of India v. Sewa Singh Shergill
CC No:- 6874/18
Extradition Inquiry Report
1. Vide this order, I shall dispose of the present inquiry
initiated on receipt of a request from the Ministry of
External Affairs, Government of India vide Order bearing
No. T-413/36/2015 dated 21.11.2017 made under Section 5
of The Extradition Act, 1962 (hereinafter referred to as the
'Act') for inquiring into the allegations of commission of
offences by Sewa Singh Shergill i.e. Fugitive Criminal
(hereinafter referred to as 'FC') within the territory of
Government of the United Kingdom of Great Britain and
Northern Ireland (UK) (hereinafter referred to as
'Requesting State').
Brief History of Proceedings
2. The case of Requesting State is that on 08.08.2010, 'SM'
(name of the victim is not being mentioned for keeping her
identity safe), a 19 year old female reported to the police
that she had been walking alone along Crookhay Lane Hill
Top West Bromwich at approximately 23:15 hrs when she
was approached and dragged from behind onto the adjacent
parkland where she was subjected to a vaginal rape. She
alleged that the person who did this was a stranger to her, a
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foreign speaking male and appeared Asian in appearance.
She reported that she froze in fear when she was being
raped but then something came over her and she started to
punch the male which resulted in him making a good
escape, leaving her with an injured hand. The victim whilst
still distressed gathered her clothing and made her way back
onto the street. Thereafter, she came across people from the
local area and with there assistance immediately reported
the matter to the police.
3. The medical swabs obtained from the body of victim were
later on sent to the forensic lab and a full DNA profile in the
form of semen was recovered and matched with the DNA
profile of FC i.e. Sewa Singh Shergill. This resulted in FC
being identified by his uncle and he informed that FC was
back in India which fact later on got confirmed by Interpol.
4. The Requesting State sent a formal request for extradition
of FC vide Note verbale no. CH/251/2015 dated 30.03.2015
along with original supporting documents to the
Government of Republic of India (hereinafter referred to as
'Requested State'). The Requesting State further sent
additional documents vide Note Verbale No. CH/883/2017
dated 13.10.2017. Consequently, vide order bearing no. T-
413/36/2015 dated 21.11.2017, Ministry of External Affairs,
Govt. of India, made a request under Section 5 of the Act to
this Court to conduct inquiry proceedings qua FC.
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signed by
AKASH AKASH JAIN
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5. Vide order dated 03.02.2018, Ld. Predecessor Court issued
arrest warrants against the FC through CBI Interpol and FC
Sewa Singh Shergill got arrested on 26.11.2020 at Philaure,
Jalandhar, Punjab and got produced in this Court on
02.12.2020. Thereafter, copy of documents received from
Requesting State were supplied to him and inquiry
proceedings commenced.
Charges against FC
6. The Requesting State has sought extradition of FC, so that
he could face prosecution in United Kingdom for following
offences:
Count 1: Section 1 (1) of the Sexual Offences Act, 2003
Rape:-
(1) A person (A) commits an offence if--
(a) he intentionally penetrates the vagina, anus or
mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents
(2) Whether a belief is reasonable is to be determined
having regard to all the circumstances, including
any steps A has taken to ascertain whether B con-
sents.
(3) Sections 75 and 76 apply to an offence under this
section.
(4) A person guilty of an offence under this section is li-
able, on conviction on indictment, to imprisonment
for life.
Section 74 of the Sexual Offences Act
74 Consent:
For the purposes of this Part, a person consents if he
agrees by choice, and has the freedom and capacity to
make that choice. Digitally signed
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Section 75 of the Sexual Offences Act
75 Evidential presumptions about consent:
(1) If in proceedings for an offence to which this section
applies it is proved-- (a) that the defendant did the
relevant act, (b) that any of the circumstances
specified in subsection (2) existed, and (c) that the
defendant knew that those circumstances existed, the
complainant is to be taken not to have consented to
the relevant act unless sufficient evidence is adduced
to raise an issue as to whether he consented, and the
defendant is to be taken not to have reasonably
believed that the complainant consented unless
sufficient evidence is adduced to raise an issue as to
whether he reasonably believed it.
(2) The circumstances are that-- (a) any person was, at
the time of the relevant act or immediately before it
began, using violence against the complainant or
causing the complainant to fear that immediate
violence would be used against him; (b) any person
was, at the time of the relevant act or immediately
before it began, causing the complainant to fear that
violence was being used, or that immediate violence
would be used, against another person; (c) the
complainant was, and the defendant was not,
unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise
unconscious at the time of the relevant act; (e)
because of the complainant's physical disability, the
complainant would not have been able at the time of
the relevant act to communicate to the defendant
whether the complainant consented; (f) any person
had administered to or caused to be taken by the
complainant, without the complainant's consent, a
substance which, having regard to when it was
administered or taken, was capable of causing or
enabling the complainant to be stupefied or
overpowered at the time of the relevant act.
(3) In subsection (2)(a) and (b), the reference to the time
immediately before the relevant act began is, in the
case of an act which is one of a continuous series of
sexual activities, a reference to the time immediately
before the first sexual activity began.
Count 2: Section 47 of Offences against the Person Act,
1861 Digitally signed
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The offence is committed when a person intentionally or
recklessly assaults another, thereby causing Actual
Bodily Harm. It must be proved that the assault (which
includes "battery") "occasioned" or caused the bodily
harm.
Allegations against FC
7. The case of Requesting State is that on 08.08.2010, SM
reported to the police that she had been walking alone along
Crookhay Lane Hill Top West Bromwich at approximately
23:15 hrs when she was approached and dragged from
behind onto the adjacent parkland where she was subjected
to a vaginal rape. She alleged that the person who did this
was a stranger to her, a foreign speaking male and appeared
Asian in appearance. She reported that she froze in fear
when she was being raped but then something came over
her and she started to punch the male which resulted in him
escaping from the place of incident. The victim thereafter
called police with the assistance of people from the local
area.
8. In support of its case, the Requesting State, along with
request of extradition, had appended affidavits of various
witnesses alongwith original documents in two volumes
duly forwarded by Julian Gibbs and Amanda Shiels,
Extradition Section, Home Office, UK. Brief account of
evidence given by these witnesses is being discussed for
better understanding of nature of offences.
9. Prosecutrix SM deposed that on 08.08.2010 (Sunday) she
left Dovecote PH Holloway Bank, West Bromwich at about
11:02 PM and crossed over the road from the pub to the
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traffic lights where she turned right on to Witton Lane.
Thereafter, she crossed over Brindley Road and at the end
of Brindley Road she turned left in to Crookhay Lane.
While she walked past the first set of four houses and then a
couple of bungalows, she was suddenly grabbed from
behind by a man who dragged her backwards and also
covered her mouth so she could not shout. SM further
deposed that the man dragged her to the bushes and pulled
her down to the floor. The lighting was not so good and it
was quite dark, so the face of the man was not clearly
visible. SM stated that she had seen the man but could not
tell with conviction as to which dark skinned race he was.
He had black/brown hair, as if someone had put a sauce pan
over his head. SM further deposed that she got froze with
fear, could not move and the man took all her clothes off
except a pair of socks and one shoe. She stated that the man
thereafter, raped her by thrusting his penis in and out of her
vagina. SM further deposed that she somehow managed to
get out from under him and started punching him in his face
and he pushed her back. Thereafter, the man ran away from
there and SM chased her but in vain. Thereafter, she
returned back to where she was raped and recovered all her
clothes except her knickers because she did not know where
they were. During examination, SM further stated that the
man was approximate 5 ft. 5 inch to 6 inch tall having facial
stubble of Asian origin.
10. Witness Nicola Jayne Mathison, a Forensic Scientist was
examined, who deposed that SM was examined within
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approximately 13 hours after the allegedly incident when
intimate samples were taken. She examined the vulval
swabs, low and high vaginal swabs of SM and opined that
semen was detected on all of these items. She further
opined that the major DNA profile originated from the
detected semen and the result of complete major DNA
profile matched with the DNA of FC. She further stated
that the findings are of the order of a billion times more
likely that semen originated from FC rather than some other
person.
11. Testimony of Abdul Malik Qureshi is also attached who is a
medical practitioner working as Forensic Physician since
April, 2006. He deposed that on 09.08.2010, he attended lda
Road, Walsall at the request of Primecare to assess the
victim regarding her rape allegations. He deposed that he
medically examined the victim and found bruises on her
right shoulder, left breast, left thigh, right knee cap and
abrasion on both the knees. He further took requisite swabs
from the body of victim after taking prior consent from her.
12. Another witness examined by prosecution was Aimee
Louise Gibson, Police Constable, who deposed that she was
posted at West Bromwich Police Station and at about 11:50
PM, she was informed via police issued radio to attend
Crookhay Lane, Hill Top West Bronwich to a report of
female having been raped. On her arrival, she saw group of
people and a young female i.e. SM who was extremely
upset and crying. SM was intoxicated
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the police vehicle, she told her that she was working in
Dovecote pub and after having few drinks she left the pub
and was walking down Crookhay Lane towards the home.
Suddenly, an Indian male approached her, dragged her into
the field, pulled her trousers down and put his penis inside
her. Thereafter, she punched him to the face and came out
of the field towards the Cottage Spring pub and wake up the
landlord George. Consequently, the police was called. The
witness further deposed that SM took her near the bushes
where the rape took place and there they found a pair of
pink underwear on the grass. SM pointed to the same and
said they were her knickers. Thereafter, they sealed the said
area.
13. Witness Soniya Ram, Detective Constable Smethwick
Police Station deposed that on 09.08.2010 at about 10:40
AM, she visited the house of the SM who confirmed that
she had not taken a shower since the incident. She
accompanied her to the Sexual Assault Referral Centre
Walsall, where Dr. Qureshi was also present and conducted
medical examination of SM. The witness deposed that she
conducted a video interview upon SM, transcript of which
is also placed on record. The witness further deposed that
after approximately two weeks of the incident, it was
confirmed that the DNA profile of FC matched with the
DNA profile of semen found in the swabs taken from the
body of victim. Witness stated that FC had previously been
arrested in 2006 for residing in UK as illegal immigrant and
his DNA sample and an imageDigitally
was signed
taken by the police. The
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FC had been regularly reporting to the local police but
failed to report after the date of offence. In an effort to
locate FC a press release was issued by the police and uncle
of FC namely Ajit Singh Shergill came forward and
provided the home address of FC in India and also
confirmed that he had seen FC in India at the end of
September, 2010.
14. Witness Andrew Slocombe, who was a student deposed that
on 08.08.2010 he along with few of his friends were
walking along Crookhay Lane from Witton Lane. They saw
a girl coming from the Millfields Park. He recognized the
girl as SM as she was from his locality and was one year
senior in the school. He further deposed that SM was
crying very hard and screaming. He calmed her down and
she informed that she had been raped. Witness further
deposed that his friend Carlton got on the phone to police
and George also came there who owns The Cottage Pub.
SM stated that while she was walking on the Crookhay
Lane, an Asian man ragged her from behind into the bushes
and raped her. In the meantime, police arrived and put SM
into the car. They also went to the field. Later on, SM was
taken to the police station and the witness also followed
them and gave his statement.
15. Finally, affidavit of prosecutor Stuart Allen is attached, who
had delineated the brief synopsis of incident in question on
the lines of statement of SM. He further stated that evidence
of victim had been corroborated by witness Aimee Louise
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Gibson and that victim reported the crime immediately to
the police and FC is linked to the offence in question as
DNA found in the semen found on the high vaginal, low
vaginal and vulval swabs taken from the victim was found
matched with DNA profile of FC taken by UK authorities in
the year 2006. The photograph of FC was further shown to
brother of father of FC namely Ajit Singh Shergill on
24.03.2011, who confirmed that the photograph belonged to
FC. Witness further deposed that FC had left the UK before
19th September, 2010 and not returned since then. Witness
further deposed that a communication dated 30.05.2015 was
received from MEA stating that the charging documents
were incomplete. The said document remained incomplete
as FC was absent from the jurisdiction of UK. Thus, the
matter was taken to the Court by the Investigating
Authorities at UK and warrants of first instance were issued
by Ld. District Judge at Sandwell Magistrates Courts on
11.03.2013. The photographs and fingerprints of FC were
exhibited by the witness.
16. Additional statement of witness DC Soniya Ram was sent
on behalf of Requesting State vide second volume. In her
additional statement, witness deposed that in 2011, she
received information from Interpol that FC was holder of
Indian passport no. E0312242. She further continued
making inquiries with the Immigration services to locate the
immigration file of FC. On 21.02.2017, the witness
received the file of FC where FC had completed and signed
an application for re-issue of his Indian passport on the
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required form issued by Indian High Commission in
London. It was reaffirmed from the file that FC is an Indian
National born on 27.01.1974. The file also contained
photographs of FC, which on verification with the record
found to be of a same person. The witness exhibited the
application form for Indian passport as well as his
photographs on record.
17. Finally, statement of Barrister Kate Martin Leonard was
recorded who clarified certain points raised by Indian
Authorities vide Note Verbale dated 08.03.2016 reference T-
413/36/2016. He stated that the details about identity,
nationality and residence of FC had been clarified with the
supplementary testimony of DC Soniya Ram. He further
clarified that the signed warrant of District Judge Graham
Wilkinson on 11.03.2013 had been lawfully issued and valid
and there is no legal requirement for the document, based
on which the warrant was issued, to be signed. The witness
further confirmed that there is no objection to the FC or his
representative having copies of all the papers in the
Extradition request.
Treaty
18. The request for extradition of FC was made by Requesting
State i.e. Government of the United Kingdom through
diplomatic channels pursuant to Extradition Treaty between
both the Contracting States signed on 22nd September 1992
and notified in Gazette of India vide Order no. G.S.R. No.
790(E) dated 30.12.1993.
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Evidence
19. The Union of India (hereinafter referred to as 'UOI')
examined one witness Sh. Sandeep Kumar, Deputy
Secretary, (Extradition), Ministry of External Affairs as
CW-1 in support of the request for Extradition. CW-1
exhibited following documents received from the
Requesting State to make out a prima-facie case for
Extradition as under:-
(i) Ex. CW1/A : Extradition Treaty between Govt. of India and
Govt. of United Kingdom;
(ii) Ex. CW1/B : Order bearing no. T-413/36/2015 dated
21.11.2017;
(iii) Ex. CW 1/C : Note verbale bearing no. CH/251/2015
(OSR) dated 30.03.2015;
(iv) Ex. CW 1/D : Note verbale no. CH/883/2017 dated
(OSR) 13.10.2017;
(v) Ex. CW 1/E : Documents and documents in spiral
(colly) binding;
(vi) Ex. CW 1/F : The authentication certificate in regard to the
compilation of documents which had been
certified by Julian Gibbs, Extradition Section,
Home Office, UK dated 18.12.2015;
(vii) Ex. CW 1/G : Supplementary compilation of documents;
(colly)
(viii) Ex. CW 1/H : Authentication certificate in regard to
supplementary compilation of documents
which had been certified by Amanda Shiels,
Extradition Section, Home Office, UK dated
02.10.2017.
20. CW-1 got duly cross-examined by Ld. Counsel for FC.
During his cross-examination, CW-1 stated that he was not
personally aware of the facts of the present case. He
admitted that at the time of receipt of Extradition Request
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in this case from Requesting State, file was looked after by
Sh. Rajeev Ranjan, then under Secretary (Extradition),
MEA, Government of India. He further admitted that
MEA received two note verbales dated 30.03.2015 and
13.10.2017 Ex. CW 1/C and Ex. CW 1/D respectively in
the present case. He further admitted that MEA did not
issue any order for initiation of extradition inquiry on the
Note Verbale Ex. CW 1/C dated 30.03.2015. He further
admitted that the official request letter sent by MEA to the
Requesting State seeking clarifications qua Note Verbale
Ex. CW 1/C is not on judicial record. CW-1 further
admitted that Note Verbale T-413/36/2015 dated
08.03.2016 sent by MEA to the Requesting State is not on
judicial record. CW-1 further admitted that the Requesting
State did not send any warrant/summons/notice/any other
document along with the Extradition Request, relating to
FC being an illegal immigrant in the UK. CW-1 further
affirmed that DNA profile of FC and statement of uncle of
FC namely Ajit Singh Shergill were not received from the
Requesting State.
21. After cross-examination of CW-1, on request of Ld. SPP
for UOI, evidence got closed. The matter thereafter,
proceeded for recording of defence evidence. It was
submitted by FC and his Counsel that they did not wish to
lead any defence evidence, as such, the matter straightaway
got fixed for final arguments.
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Arguments
22. Ld. Counsel for FC argued that FC has not been identified
either by victim or by any other person. In fact, victim
clearly stated in her testimony that she did not know the
person who committed the alleged crime and could also not
recognize him. The only description of the alleged culprit
given by the victim was that he was a non-white male of
Asian origin, which is a very vague description and does not
indicate that FC was involved in the alleged offence.
23. It is argued that there is no CCTv footage, phone records or
any other evidence produced by Requesting State which
could establish the presence of FC at or around the place of
incident on the given date and time.
24. It is further argued that there is no document to support as to
how FC managed to leave London without proper
permission, if he was residing there illegally.
25. It is contended by Ld. Counsel for FC that the entire case of
prosecution rests on the DNA sample of the FC which was
allegedly found matched with the DNA sample present in
the semen found on the body of the victim, however, no
document is produced on record to show as to when and
how the DNA sample of the FC was taken by the UK
Authorities. It is further contended that the DNA profile of
FC is not found attached with the documents given by the
Requesting State. In the alternative, it is argued that DNA
test or medical examination cannot be deemed as conclusive
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evidence in rape cases and cannot be solely relied upon to
convict a person.
26. Ld. Counsel for FC argued that Ex. CW 1/E at page no. 36
indicated presence of DNA on the body of victim of more
than one person. Thus, the possibility of victim having
being sexually assaulted by some other person cannot be
ruled out.
27. Ld. Counsel for FC further argued that no documentary
evidence is produced on record to show that FC was an
illegal immigrant in UK as alleged. It is further argued that
the investigation in this case is totally sham as it took more
than 5 years to complete. Moreover, the investigating
agency took more than 2 years to just record the statement
of the victim and even failed to record the statement of Sh.
Ajit Singh Shergill at whose behest arrest warrant of FC
was obtained.
28. It is further argued that the documents supplied by the
Requesting State are insufficient and are not duly
authenticated in terms of Section 10 of the Extradition Act
and they cannot be treated or received as evidence.
29. It is further argued that CW-1 admitted in his cross
examination that MEA had not issued any written authority
or appointment letter in his favour to depose in this case and
that he was not even aware of the facts of the present case,
as such, his testimony holds no value.
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30. It is further argued that the Note Verbales written by MEA
seeking clarifications from the Requesting State do not
admittedly form part of record, as such, no case of
Extradition is made out on the basis of deficient documents.
31. It is further argued that FC had spent more than 16 months
in custody in the present inquiry proceedings and has no
money and resources to contest this case in a foreign
jurisdiction.
32. It is argued by Ld. Counsel for FC that FC has been falsely
implicated on the basis of his nationality, colour and race
and that he will not be given a fair trial and justice in the
UK. It is further argued that trial and sentencing would be
prejudiced against FC.
33. Per contra, it is argued by Ld. Counsel for UOI that scope of
present extradition inquiry is very narrow and limited in
terms of judgment of Hon'ble Supreme Court of India in
Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417.
It is argued that this Court has to examine only three
requirements in present proceedings i.e.
(i) whether the offence involved is an extraditable
offence?
(ii) whether a prima-facie exists against the FC?
(iii) whether the extradition request and documents
received are duly authenticated?
34. It is argued by Ld. SPP for Union of India that FC is
accused of rape contrary to Section 1(1) of Sexual Offences
Act, 2003 and assault occasioning actual body harm,
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contrary to Section 47 of the Offences against the Person
Act, 1881. The similar offences in India are punishable
under Section 376 of Indian Penal Code (hereinafter
referred to as 'IPC') and are punishable with imprisonment
for a period more than one year. Hence, the offences
involved in the present inquiry proceedings are extraditable
offences.
35. It is further argued that a voluminous record in two parts
had been received from Requesting State along with the
request for extradition of FC. Affidavit of Special
Prosecutor Stuart Allen is attached who delineated the
summary of offences and charging process against the FC.
He affirmed that after commission of alleged offence, the
FC had left the UK before 19.09.2010 and had not returned
back. Thereafter, the warrant of first instance was issued
against the FC by District Judge sitting at Sandwell
Magistrates Court on 11.03.2013. The affidavit of
prosecutrix/victim SM is further appended wherein she
disclosed the entire details of alleged offences committed
against her on 08.08.2010. Testimony of Forensic Scientist
Nicola Jayne Mathison is attached who had opined that the
DNA profile of FC was found matched with the DNA
present in the semen found on the body of the victim after
alleged incident. Testimonies of Forensic Physician Abdul
Qureshi, Aimee Louise Gibson, Police Constable and
Andrew Slocombe are also attached who had corroborated
the version of victim to the effect that alleged offence of
rape was committed upon her. Testimonies of Detective
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Constable Soniya Ram, who had conducted investigation in
the present case are also appended with the request. The
present witness conducted video interview upon the victim
and also obtained the DNA profile and finger prints of FC
from previous records maintained by Immigration
Authorities, UK. Vide her second deposition, the witness
confirmed the identity and Indian Nationality of FC and
exhibited the application form completed and signed by FC
for re-issuance of Indian Passport from Indian High
Commission in London.
36. It is argued by Ld. Counsel for UOI that the testimonies of
all the aforesaid witnesses clearly establish a prima-facie
case against the FC and thereby successfully fulfilling the
second requirement.
37. It is further argued by Ld. Counsel for UOI that all the
documents exhibited in the testimony of CW-1 are duly
authenticated in compliance of Section 10 of Extradition
Act, 1962 and bear proper seal and signatures on the
respective pages. Thus, the third requirement also stands
duly fulfilled and clear case to extradite FC to face trial in
Requesting State is made out.
Analysis and findings
38. I have heard rival contentions on behalf of both UOI as well
as FC and carefully perused the record. I have also gone
through the detailed written submissions filed on behalf of
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39. The term 'Extradition' has not been defined under the Act.
However, a comprehensive definition of extradition has
been given in Gerhard Terlinden v. John C. Ames in which
Chief Justice Fuller defined extradition as:-
"... the surrender by one nation to another of an individual
accused or convicted of an offence outside of its own
territory, and within the territorial jurisdiction of the other,
which, being competent to try and to punish him, demands
the surrender..."
40. In the case of Abu Salem Abdul Qayoom Ansari v. State Of
Maharashtra & Anr, (2011) 11 SCC 214, Hon'ble Supreme
Court of India had observed that though extradition is
granted in implementation of the international commitment
of the State, the procedure to be followed by the courts in
deciding whether extradition should be granted and on what
terms, is determined by the municipal law of the land. It
was further emphasized that extradition is founded on the
broad principle that it is in the interest of civilized
communities that criminals should not go unpunished and
one State should ordinarily afford another State necessary
assistance towards bringing offenders to justice.
41. The relevant legal provisions of the Act, for deciding the
present inquiry proceedings are reproduced as under:
Section 5. Order for magisterial inquiry:-
Where such requisition is made, the Central Government
may, if it thinks fit, issue an order to any Magistrate who
would have had jurisdiction to inquire into the offence if it
had been an offence committed within the local limits of his
jurisdiction directing him to inquire into the case.
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Section 6. Issue of warrant for arrest:-
On receipt of an order of the Central Government under sec-
tion 5, the magistrate shall issue a warrant for the arrest of
the fugitive criminal.
Section 7. Procedure before magistrate:-
(1) When the fugitive criminal appears or is brought before
the magistrate, the magistrate shall inquire into the case in
the same manner and shall have the same jurisdiction and
powers, as nearly as may be, as if the case were one triable
by a court of Session or High Court.
(2) Without prejudice to the generality of the foregoing
provisions, the magistrate shall, in particular, take such
evidence as may be produced in support of the requisition of
the foreign State and on behalf of the fugitive criminal,
including any evidence to show that the offence of which the
fugitive criminal is accused or has been convicted is an
offence of political character or is not an extradition offence.
(3) If the Magistrate is of opinion that a prima facie case is
not made out in support of the requisition of the foreign
State, he shall discharge the fugitive criminal.
(4) If the Magistrate is of opinion that a prima facie case is
made out in support of the requisition of the foreign State, he
may commit the fugitive criminal to prison to await the
orders of the Central Government and shall report the result
of his inquiry to the Central Government, and shall forward
together with such report, any written statement which the
fugitive criminal may desire to submit for the consideration
of the Central Government.
42. The scope of inquiry to be conducted by a Magistrate under
the Act was comprehensively discussed by Hon'ble Delhi
High Court in the case of Smt. Nina Pillai and Others v.
Union of India and Others, ILR 1997 Delhi 271. The
relevant excerpts are reproduced as under:
"... 9. We have given our careful consideration and thought
to the submissions made by the learned Counsel for the peti-
tioner. It is clear from the scheme of the Extradition Act that
pursuant to a request made under section 4 of the Act, the or-
der contemplated to be passed for a Magisterial inquiry un-
der section 5 does not contemplate a pre-decisional or prior
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hearing. Section 5 of the Act is an enabling provision by
which, a Magistrate is appointed to inquire into the case.
The Magistrate on the order of inquiry being passed by Cen-
tral Government issues a warrant of arrest of the fugitive
criminal. The whole purpose is to apprehend or prevent the
further escape of a person who is accused of certain offences
and/or is convicted and wanted by the requesting State for
trial or for undergoing the sentence passed or to be passed.
The Act contains sufficient safeguards in the procedure to be
followed in the inquiry by the Magistrate to protect the fugi-
tive criminal. The Magistrate is to receive evidence from the
requesting State as well as of the fugitive criminal. The fugi-
tive criminal is entitled to show that the offences of which he
is accused or convicted are offences of political character or
not an extradition offence. Besides, the Magistrate, if he
comes to a conclusion that a prima facie case is not made in
support of the requisition by the requesting State, he is re-
quired to discharge fugitive criminal....
.... 11. We may notice here that upon receiving information
with sufficient particulars from a requesting State that a fugi-
tive criminal is wanted for any alleged offence committed in
the requesting State or for undergoing trial or sentence, the
Central Government passes an order under section 5 of the
Act, appointing a Magistrate to inquire into the case. The
Criminal Procedure Code also provides for the arrest of a
person without warrant who is concerned in any cognizable
offence or against whom a reasonable complaint has been
made or credible information has been received or a reason-
able suspicion exists of his having been so concerned in the
offence, under section 41 of the Code. Accordingly, on credi-
ble information being received from a requesting State, with
sufficient particulars, about a person having been involved
in any offence, the said person could be arrested in India
without warrant. It is now fairly well-settled that the Magis-
terial inquiry which is conducted pursuant to the request
for extradition is not a trial. The said enquiry decides noth-
ing about the 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, subject to exceptions, as outlined in the preceding
paragraph 7, in which case the request for extradition is de-
nied by the Central Government..."
43. On conjoint reading of aforesaid statutory provisions and
judgments of Superior Courts, it is clear that this Court
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while conducting an inquiry under Extradition Act, 1962
has to examine following aspects:
(a) Whether the offence for which extradition of FC
is sought is an extraditable offence;
(b) Whether a prima-facie case exists against the FC
in support of the requisition of the Requesting
State;
(c) Whether the extradition request and documents
received are duly authenticated;
(d) Whether the offence for which extradition of FC
is sought is a political offence.
44. It is also trite to say, that this Court does not have to decide
that FC is innocent or guilty but only has to see that the
material is sufficient to send the FC for trial. Scope of
inquiry under the Act is very limited and court cannot sift
the evidence against FC and decide its veracity and
credibility.
45. Whether the offence for which extradition of FC is
sought is an extraditable offence:
It is the case of UOI that the incident in question constitute
an offence under Section 1(1) of Sexual Offences Act, 2003
and assault occasioning actual body harm, contrary to
Section 47 of the Offences against the Person Act, 1881 in
UK, punishment for which is life imprisonment in the
Requesting State. It is further contended that the similar
conduct in the Requested State is punishable under Section
376 IPC and 354 IPC. The relevant sections of Indian Penal
Code are reproduced as under: Digitally
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(a) Section 354 of Indian Penal Code, 1860 JAIN 2022.04.13
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354. Assault or criminal force to woman
with intent to outrage her modesty.:-
Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely
that he will thereby outrage her modesty, shall be pun-
ished with imprisonment of either description for a
term which may extend to two years, or with fine, or
with both.
(b) Section 375 of Indian Penal Code, 1860
375. Rape:-
A man is said to commit "rape" who, except in the
case hereinafter excepted, has sexual intercourse with
a woman under circumstances falling under any of the
six following descriptions:--
(First) -- Against her will.
(Secondly) --Without her consent.
(Thirdly) -- With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.
(Fourthly) --With her consent, when the man knows
that he is not her husband, and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
(Fifthly) -- With her consent, when, at the time of giv-
ing such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
(Sixthly) -- With or without her consent, when she is
under sixteen years of age. Explanation.--Penetration
is sufficient to constitute the sexual intercourse neces-
sary to the offence of rape.
****
(c) Section 376(1) of Indian Penal Code, 1860
376. Punishment for rape.--
(1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. Digitally signed AKASH by AKASH JAIN Date:
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****
****
46. Now, Section 2(c)(i) of the Act, defines extradition offence, in relation to a treaty state, as an offence as provided in the extradition treaty between the two States. In terms of Article 2 of Extradition Treaty between both the Contracting States, extradition offence is defined as :-
(i) An extradition offence for the purposes of this Treaty is constituted by conduct which under the laws of each Contracting State is punishable by a term of imprisonment for a period of at least one year.
(ii) An offence may be an extradition offence notwithstanding that it relates to taxation or revenue or is one of a purely fiscal character..
47. Since, the offences in question constitute an illegal/criminal act under the laws of both the Requesting as well as Requested States and the same are punishable by term of imprisonment for a period of at least one year (life imprisonment in UK and minimum ten years extendable upto life imprisonment in India) in both the States, the principle of Dual Criminality is duly satisfied and the offences in question are clearly 'extraditable offences'.
48. Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State:
Besides, formal Extradition Request of FC, the Requesting State had sent voluminous record in two parts delineating role of FC in commission of alleged offences along with testimonies of various witnesses including victim. It is contended by Ld. SPP for UOI that the testimony of victim Digitally signed by AKASH JAIN AKASH Date:
CC No:- 6874/18 JAIN Union of India v. Sewa Singh Shergill 2022.04.13 17:07:32 +0530Page No:- 24 of 37 SM regarding commission of alleged offence of rape on her on 08.08.2010 is duly corroborated with testimony of other supporting witnesses. Moreover, it is clearly established from the testimony of Forensic Scientist Nicola Jayne Mathison that DNA present in the semen, found on the high vaginal, low vaginal and vulval swabs taken from the body of the victim after the alleged incident, was found matched with the DNA profile of the FC. As such, the prima-facie case for extradition is made out in lieu of clear scientific evidence available on record against FC.
49. Now, it is argued by Ld. Counsel for FC that the victim herself admitted in her statement that she did not know the person who committed the alleged offence and that she could not even recognize him, as such, her statement is not sufficient to warrant extradition of FC. This argument of Ld. Counsel for FC is though without any merit. It is clearly elaborated by the victim in her statement that it was very dark when she was dragged from behind and was allegedly raped thereafter. The victim was reportedly terrified, froze with fear and under influence of liquor at the time of commission of alleged offence in question. Moreover, her medical examination report and the Forensic Expert report affirmed the matching of DNA profile of FC with that of the DNA profile present in the semen found on the body of the victim after the alleged incident.
50. The other argument raised by Ld. Counsel for FC is that the Requesting State did not produce any CCTv footage, phone Digitally signed by AKASH JAIN AKASH Date:
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record or other documentary evidence along with their request which could establish the presence of FC at or around the place of incident on the given date and time. This argument is though not tenable in lieu of conclusive scientific evidence of forensic expert Nicola Jayne Mathison against FC.
51. It is contended by Ld. Counsel for FC that the entire case of prosecution rests on the DNA sample of the FC which was allegedly found matched with the DNA sample present in the semen found on the body of the victim. However, no document is produced on record to show as to when and how the DNA sample of the FC was taken by the UK Authorities. Moreover, no documentary evidence is produced on record to show FC was an illegal immigrant in UK as alleged. It is also contended that the DNA profile of FC is not found attached with the documents given by the Requesting State and the statement of uncle of FC namely, Sh. Ajit Singh Shergill at whose behest arrest warrants of FC were obtained is also not attached with the request.
52. The aforesaid arguments of Ld. Counsel for FC certainly have merit and the Requesting State should have sent the necessary documents regarding alleged illegal immigrant status of FC in UK, documents qua taking of DNA sample of FC, statement of uncle of FC and DNA profile of FC to the Requested State. However, in the opinion of the Court, absence of these documents is not sufficient to hold that no prima-facie case is made out against the FC in the light of Digitally signed by AKASH AKASH JAIN Date:
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specific testimony of DC Soniya Ram and Forensic Scientist Nicola Jayne Mathison.
53. In the alternative, it is argued by Ld. Counsel for FC that DNA test or medical examination cannot be deemed as conclusive evidence in rape cases and cannot be solely relied upon to convict a person. In support of his arguments, Ld. Counsel for FC relied upon the judgment of State (NCT of Delhi) v. Sonu, Crl. L.P. 688/2018 decided on 10.05.2019 of Hon'ble Delhi High Court, wherein it was held that though in FSL report, semen detected from the clothes of the prosecutrix matched with the DNA profile of the accused but conviction cannot be based solely on the report of the FSL as statement of prosecutrix and her MLC does not support the case of prosecution. Ld. Counsel for FC further relied upon the judgment of Yogesh Singh v. Mahabeer Singh and Ors., reported as AIR 2016 SC 5160, wherein it was held that medical evidence is only corroborative in nature and not conclusive.
54. The aforesaid argument of Ld. Counsel for FC does not hold water in as much as role of this Court under Section 7 of the Act is limited to form a prima-facie view in respect of offences in question qua FC. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the FC. In fact, the scope of inquiry under Section 7 is narrower than Section 228 of Cr.P.C. and is limited to find that fugitive is not being targeted for extraneous reasons.
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Reliance is placed upon the case of Kamlesh Babulal Aggarwal v. Union of India & another, 2008 (104) DRJ 178, wherein it was held as under:-
"... 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 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 Along with 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..."
55. It is further argued by Ld. Counsel for FC that there is no document to support as to how FC managed to leave London without proper permission, if he was residing there illegally. This argument is though without any consequence as FC's passport was in his possession at all times.
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Moreover, FC left the country i.e. UK before 19.09.2010 and by that time UK border agencies were not alerted or warned about the FC and no look out circular/red corner notice had been issued against FC by the UK authorities.
56. With respect to another argument of Ld. Counsel for FC that Ex. CW 1/E at page no. 36 indicated presence of DNA on the body of victim of more than one person, it is pertinent to note that Ld. Counsel is reading the testimony of forensic scientist Nicola Jayne Mathison in piecemeal and not as a whole. It is thus, imperative to reproduce the relevant excerpt of testimony of aforesaid witness as under:-
" ... Semen was detected on all of these items. A sample from the high vaginal swabs was submitted for DNA profiling and a DNA result was obtained that indicated the presence of DNA from more than one person. The result consisited of a complete major DNA profile matching that of Sewa SHERGILL, together with a few additional DNA components that, in my opinion, were unsuitable for comparison purposes. In my opinion, the major DNA profile originated from the detected semen.
If the semen did not originate from Sewa SHERGILL, then his DNA profile much match by chance. It is estimated that the findings are of the order of a billion (one thousand million) times more likely if the semen originated from Sewa SHERGILL rather than some other person, unrelated to him.
Interpretation and conclusion Semen with a DNA profile matching that of Sewa SHERGILL was obtained from Samantha MORRIS' high vaginal swabs (AMQ7). Semen was also detected on her low and vulval swabs (AMQ5/6 and 3/4). If vaginal intercourse with internal ejaculation had taken place between Samantha MORRIS and Sewa SHERGILL, then given Samantha MORRIS was medically examined within approximately 13 hours of the alleged incident, I would have a expectation of detecting semen matching that of Sewa SHERGILL on Digitally signed AKASH by AKASH JAIN Date: CC No:- 6874/18 Union of India v. Sewa Singh Shergill JAIN Page No:-
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Samantha MORRIS' vaginal swabs. Therefore, the findings are as expected. It is not possible to address the issue of consent..."
57. The aforesaid report clearly envisaged that major DNA profile originated from the detected semen on the body of victim was of FC. Nothing substantial is brought on record on behalf of FC to suggest that the said DNA profile could be of some other person. The Forensic Scientist had additionally reported that the findings are of the order of a billion times more likely that semen was originated from FC rather some other person. So far as traces of other DNA found on the body of the victim, the same were unsuitable for comparison purposes and could have been on account of victim having sexual intercourse with some other person prior to the incident in question.
58. Whether the extradition request and documents received are duly authenticated:
Section 10 of the Act deals with authentication of exhibits, depositions and other documents received from a foreign State. It reads as under:
Section 10. Receipt in evidence of exhibits, depositions and other documents and authentication there of:- (1) In any proceedings against a fugitive criminal of a for-
eign State under this chapter, exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof and official certificates of facts and judicial documents stating facts may, if duly authenticated, be received as evidence. (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 Digitally signed AKASH by AKASH JAIN Date: JAIN 2022.04.13 17:08:15 +0530 CC No:- 6874/18 Union of India v. Sewa Singh Shergill Page No:- 30 of 37 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 for such State;
(b) the depositions or statements or copies thereof purport to be certified, under the hand of a judge, magistrate or officer of the State where the same were taken, or acting in or for such State, to be the original depositions or statements or to be true copies thereof, as the case may require;
(c) the certificate of, or judicial document stating the fact of, a conviction purports to be certified by a judge, magistrate or officer of the State where the conviction took place or acting in or for such State;
(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.
59. In the present case, the formal request for extradition of FC was received from Requesting State on 30.03.2015 and 13.10.2017 along with supporting documents i.e. brief facts of incident, details of fugitive criminal, finger prints and photographs of FC, arrest warrant, medical examination report of victim, forensic test report, testimonies of witnesses and other documents duly certified and authenticated by District Judge, Sandwell Magistrates Court and duly forwarded and authenticated by Extradition Section, Home Office, UK. The aforesaid request for extradition of FC was received from the Requesting state through diplomatic channels vide Note verbale no. CH/251/2015 dated 30.03.2015 and Note Verbale No. CH/883/2017 dated 13.10.2017, duly authenticated by British High Commission. Digitally signed by AKASH JAIN AKASH Date:
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60. It is argued by Ld. Counsel for FC that certain documents out of the two volumes forwarded by Requesting State were not original and admittedly Note Verbales written by MEA to the Requesting State seeking clarifications do not form part of record.
61. So far as, question of certain documents being photocopies is concerned, it is well settled in the case of Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417, that strict formal proof of evidence in an extradition proceeding is not the requirement of law. While conducting an inquiry the court may presume that the contents of the documents would be proved and if proved, the same would be admitted as evidence at the trial in favour of one party or the other. The relevant excerpts from the judgment are reproduced as under:
"... 36. In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word "evidence" has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.
37. Law in India recognizes affidavit evidence. (See Order IXX of the Code of Civil Procedure and Section 200 of the Code of Criminal Procedure). Evidence in a situation of this nature would, thus, in our opinion mean, which may be used at the trial. It may also include any document which may lead to discovery of further evidence. Section 3 of the Indian Evidence Act which defines "evidence" in an enquiry stricto Digitally signed AKASH by AKASH JAIN Date: CC No:- 6874/18 JAIN Union of India v. Sewa Singh Shergill 2022.04.13 17:08:30 +0530 Page No:- 32 of 37 sensu may not, thus, be applicable in a proceeding under the Act....
.... 55. The use of the terminology "evidence" in Section 7 of the Act must be read in the context of Section 10 and not dehors the same. It is trite that construction of a statute should be done in a manner which would give effect to all its provisions....
... 63. Section 10 of the Act clearly provides that any exhibit or deposition which may be received in evidence need not be taken in the presence of the person against whom they are used or otherwise. It also contemplates that the copies of such exhibits and depositions and official certificates of facts and judicial documents stating facts would, if duly authenticated, be received as evidence..."
62. With respect to the other contention of Ld. Counsel for FC that all the Note Verbales, sent by MEA, Government of India to the Requesting State were not placed on record by the Department, I deem it expedient to bring on record that all the necessary correspondences and Note Verbales exchanged between the Contracting States should form part of record during inquiry proceedings to avoid any prejudice caused to the FC. CW-1 during his cross-examination admitted that the clarification letters/Note Verbales sent on behalf of MEA to the Requesting State in the year 2015 and 2016 are not on judicial record. However, perusal of Ex. CW 1/C and Ex. CW 1/D make it clear that the said Note Verbales were merely clarificatory in nature. In my view, mere absence of the aforesaid Note Verbales from record are not sufficient to refuse the extradition of FC.
63. It is further argued by Ld. Counsel for FC that CW-1 was not duly authorized by MEA to depose in this case and as such, his testimony holds no value. The aforesaid argument AKASH Digitally signed by AKASH JAIN CC No:- 6874/18 Union of India v. Sewa Singh Shergill Date: 2022.04.13 Page No:- 33 of 37 JAIN 17:08:36 +0530 of Ld. Counsel for FC is though not tenable as CW-1 is Deputy Secretary (Extradition), Ministry of External Affairs, Government of India and had come to depose before the Court on behalf of MEA by virtue of office held by him in official capacity. He had purely deposed on the basis of official record available and proved Ex. CW 1/B by identifying the signatures of then Under Secretary Sh. Rajeev Ranjan as he had seen his signatures on various other official documents during course of official work. Specific authorization letter from Ministry of External Affairs, Govt. of India was not required for CW-1 to depose in the present case.
64. Whether the offence for which extradition of FC is sought is a political offence.
Section 7(2) of the Act provides that FC may lead evidence to show that the offence of which he is accused or has been convicted is an offence of political character or is not an extradition offence. Nothing substantial is though brought on record by the FC to show that the offences in question are of political character. Also, vide Article 5(2)(g) of the Treaty executed between both the Contracting States, offence of assault occasioning bodily harm is not regarded as an offence of political character. Thus, the fourth ingredient also stands duly satisfied.
65. With respect to argument of Ld. Counsel for FC that FC has been falsely implicated on the basis of his nationality, colour and race and that he will not be given a fair trial and Digitally signed AKASH by AKASH JAIN Date:
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66. As regards argument made by Ld. Counsel for FC that FC had already spent more than 16 months in custody in the present inquiry proceedings and has no money and resources to contest this case in a foreign jurisdiction, it is held that same are no grounds for refusing his extradition in terms of statutory provisions and Treaty obligations. FC is though permitted to raise plea of period of incarceration already undergone by him in India before the concerned courts in Requesting State.
67. Finally, it is contended by Ld. Counsel for FC that the investigation in this case conducted by UK Authorities is totally sham as it took more than 5 years to complete and in terms of Article 9(c)(ii), extradition of FC be refused. It is pertinent to note that owing to gravity of offences in question, there is no limitation bar prescribed under the Statute qua alleged offences under Indian Laws. Moreover, final decision to extradite FC to Requesting State effectively rests with Central Government in terms of Section 8 of the Act. Thus, the aforesaid ground regarding passage of time since alleged offence was committed, may be moved by FC before appropriate authority. Digitally signed by AKASH JAIN AKASH Date:
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Conclusion
68. After considering the entire facts, circumstances of the present case, duly authenticated documents received in support of the extradition request and provisions of Extradition Treaty executed between both Requesting and Requested State, I conclude my inquiry report with the following observations:
(i) That with respect to charge of Section 1 (1) of the Sexual Offences Act, 2003 (UK), the offence under Section 376 IPC is made out and is an extraditable offence;
(ii) That with respect to the charge of Section 47 of Offences against the Person Act, 1861 (UK), the offence under Section 354 IPC is made out and is an extraditable offence;
(iii) That the extradition request and documents received are duly authenticated in terms of Section 10 of the Act.
(iv) That there is a prima-facie case against the FC for initiating a trial qua offences mentioned above at points (i) & (ii).
69. In view of my report, I hereby recommend to the Union of India the extradition of FC Sewa Singh Shergill to the Requesting State i.e. Government of the United Kingdom of Great Britain and Northern Ireland (UK) for facing trial for the offences of:
(i) Section 1 (1) of the Sexual Offences Act, 2003 (UK);
(ii) Section 47 of Offences against the Person Act, 1861 (UK) Digitally signed by AKASH JAIN AKASH Date: JAIN 2022.04.13 17:08:53 +0530 CC No:- 6874/18 Union of India v. Sewa Singh Shergill Page No:- 36 of 37
70. A copy of this report be sent to the UOI through the Ld. Counsel and one copy be given to FC free of costs. The copy of this report be also uploaded on the website as per rules. The FC is also being informed of his right to file written statement/representation in terms of Section 17(3) of The Extradition Act, 1962.
ANNOUNCED IN THE OPEN COURT ON 13.04.2022 AKASH Digitally signed by AKASH JAIN Date: JAIN 2022.04.13 17:09:01 +0530 (AKASH JAIN) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CC No:- 6874/18 Union of India v. Sewa Singh Shergill Page No:- 37 of 37