Delhi District Court
Union Of India vs Randall John Caffery on 6 March, 2025
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, NEW DELHI, PATIALA
HOUSE COURTS, DELHI
Cr. Cases No. 8115/2017
CNR No. DLND020252582017
UNION OF INDIA ...Petitioner
Vs.
RANDALL JOHN CAFFERTY ...Respondent
Date of Institution : 06.10.2017
Reserved for Judgment : 24.01.2025
Date of Decision : 06.03.2025
PETITION UNDER SECTION 5 OF THE EXTRADITION
ACT, 1962
INQUIRY REPORT
1. The present extradition petition under section 5 was moved by Union of India seeking an inquiry into the extradition request of Indonesia for extradition of the Mr. Randall John Cafferty. The Indian Govt. received request for extradition through diplomatic channel for extradition of Mr. Randall John Cafferty, a US national, vide Note verbale No. AHU.5.AH.12.07- 113 dated 13.11.2017, in pursuance to the treaty between Republic of India and Republic of Indonesia being treaty No. Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.1/32 GSR 845(E) dated 06.11.2015.
2. As per the extradition request, Mr. Randall John Cafferty committed the offences of causing death by person by negligence under Article 83, 84 and 191 of Indonesian Law No.36 of 2014, Articles 78 & 79 of Indonesian Law No. 29 of 2004 in regard to Medical Practice and Article 359 of Indonesian Criminal Code. It is stated in the petition that all these offences were punishable by imprisonment for more than one year. It is stated in the petition that the said offences are punishable under section 304A of the Indian Penal Code and under section 15(2) of Indian Medical Council Act, 1956 by imprisonment for more than one year. It is stated that since the offences alleged to have been committed by Mr. Randall are punishable by imprisonment for more than one year under the Indonesian law as well as under
Indian law, the offences are extraditable in terms of Article 2 of the Extradition Treaty between the Republic of India and Republic of Indonesia.
3. Mr. Randall was arrested on 29.09.2017 in Bengaluru upon his arrival pursuant to a Red Corner Notice dated 08.04.2016 being Control No. A-2965/4-2016. Therefore, upon an application being made by Union of India under section 34B of Extradition Act, Mr. Randall was detained in custody. Thereafter, a request for extradition was made by Republic of Indonesia and the Govt. of India, upon being satisfied with the requirement of the treaty, passed an order dated 12.12.2017 for initiation of an inquiry under section 5 of Extradition Act, 1962.
4. The facts leading to the present petition are that on 06.082016, the FC Mr. Randall John Cafferty had given Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.2/32 treatments to the victim Allya Siska Nadya two times i.e. at 13:00 hrs and 18:15 hrs Jakarta local time, at Chiropractic First Clinic Pondok Indah Mall, South Jakarta. That the method of treatments was by way of applying pressure motions from the waist upwards to the neck, whereby cracking sounds occurred during the five minutes treatments. That the last treatment took place at 22:30 hrs Jakarta local time, and thereafter, the victim Allya Siska Nadya experienced very severe pain on her back and neck and was then brought and admitted to the Emergency Installation of Pondok Indah Hospital, Jakarta. It is further alleged that on 07.08.2015, at 01:20 hrs Jakarta local time, a lump on the front neck was found which was believed to have been caused by broken blood vessels, and at 06:15 hrs Jakarta local time, the victim Allya Siska Nadya was declared dead at the hospital.
5. It is further alleged in the extradition request that FC Randall John Cafferty did not have the Traditional Healer Registration Certificate (Surat Terdaftar Pengobat Tradisional/STPT) or Traditional Healer Permit (Surat Izin Pengobat Tradisional/SIPT) and that Chiropractic First Clinic at Pondok Indah Mall did not have a business license. It is further alleged that no traditional healer permit has been issued to Randall John Cafferty but despite that Mr. Randall John Cafferty had given Chiropractic treatment to the deceased Allya Siska Nadya for two times.
6. It is further averred in the request that Dr. Lutfi Gatham, the orthopedic doctor at Pondok Indah Hospital deposed that on 17.07.2014, he treated Ms. Allya Siska Nadya and based on X-Ray photograph dated 14.07.2014, Ms. Allya Siska Nadya was diagnosed to have cervical kyphosis and advised to undergo Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.3/32 Magnetic Resonance Imaging (MRI). According to the expert testimony of Dr. Dohar L. Tobing, the orthopedic specialist, based on the X-Ray photograph dated 14.07.2014, Ms. Allya Siska Nadya had severe kyphosis and no manipulation should have been made. That on 05.08.2015, Ms. Allya Siska Nadya went to the Chiropractic First Clinic with Ms. Allya Siska Nadya along-with X-Ray photograph dated 14.07.2014. Ms. Allya Siska Nadya was then given a form and after that she met Mr. Randall John Cafferty. Mr. Randall John Cafferty who was not a radiologist then observed/read the X-Ray photograph and examined the spine of Ms. Allya Siska Nadya as if he was a physician. That on 06.08.2015, at 13:00 hrs Jakarta local time, Allya Siska Nadya together with the witness Arnisda Helmy went to the Chiropractic First Clinic of Pondok Indah Mall. That at that time Ms. Allya Siska Nadya chose the S40 package, namely 40 (forty) sessions of treatment with total cost of Rp. 17,000,000.-(seventeen million rupiah). That she was then given a Health Card, and at around 13:16 hrs Jakarta local time, Ms. Allya Siska Nadya together with the witness Arnisda Helmy entered the treatment room. Ms, Allya Siska Nadya was then asked to lie on her stomach on the bed and then Randall John Cafferty accompanied by the witness Febie Tamanita conducted the treatment/therapy to Allya Siska Nadya.
7. It is further averred in the request that after the treatment, Ms. Allya Siska Nadya was asked to return to the clinic for afternoon treatment as per the instructions of Mr. Randall John Cafferty. That at around 19.00 hrs Jakarta local time, Ms. Allya Siska Nadya together with the witness Arnisda Helmy returned to the Chiropractic First Clinic of Pondok Indah Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.4/32 Mall. Ms. Allya Siska Nadya was then treated by the Mr. Randall John Cafferty for around five minutes, and thereafter, Ms. Allya Siska Nadya had returned home. That after returning home from the Chiropractic First Clinic, at around 22:30 hrs Jakarta local time, Ms. Allya Siska Nadya complained very severe pain on her neck to left back. That Ms. Allya Siska Nadya was then taken to Pondok Indah Hospital and at the said hospital, she was examined by the witness Dr. Fahreza. That at 01:20 hrs Jakarta local time, Dr. Fahreza examined Allya Siska Nadya who was still in pain and found a lump on the front part of left neck. That at 05:00 hrs Jakarta local time, Ms. Allya Siska Nadya lost heart rate and pulse. Dr. Fahreza then pumped heart of Ms. Allya Siska Nadya but failed to wake her up and then Ms. Allya Siska Nadya was declared dead at 06:15 hrs Jakarta local time.
8. It is further averred that on 13.01.2016, an autopsy was conducted on the corpse of Ms. Allya Siska Nadya. That as per the the testimony of Dr. Wahyu, the forensic expert, the blood spot existing in the corpse of Ms. Allya Siska Nadya was due to blood vessel burst in muscle and soft tissue in the left part of the neck. The requesting state has recorded detailed statements of the witness during the course of investigation into the alleged offences, and all the above said information was based upon the investigation progress report Ex. CW 1/8.
9. The FC Mr. Randall John Cafferty is charged with the following offences in Indonesia:
Article 83 of the Law Number 36 Year 2014:
Any person who is not a Health Worker performs the practice as if the Health Worker who already has a license as referred to in Article 64 shall be liable to a maximum imprisonment of 5 (five) years.Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.5/32
Article 84 of the Law Number 36 Year 2014:
(1) Any Health Worker who carries out a heavy negligence resulting in a seriously injured Medical Service Receiver being punished with a maximum imprisonment of 3 (three) years.
(2) If the gross negligence as referred to in paragraph (1) resulted in death, every Health Worker shall be punished with imprisonment for a maximum of 5 (five) years.
Article 77 of the Law Number 29 Year 2004:
Any person who deliberately uses another form identity that creates an impression on the community/public/society as if he or she is a doctor or dentist who already has a doctor's registration letter or dentist's registration letter and/or a license for medical practice as has been previously explained in Article 73 (1) shall be punished with imprisonment for a maximum imprisonment of 5 (five) years or a maximum fine of Rp. 150.000.000 (one hundred and fifty million rupiah).
Article 78 of the Law Number 29 Year 2004:
Any person who deliberately uses other tools, methods or means of providing services to the community/public/society that gives the impression as if the person concerned is a doctor of dentist who already has a doctor's registration letter or dentist's registration letter or a license for medical practice as has been previously explained in Article 73 paragraph (2) shall be sentenced to a maximum imprisonment of 5 (five) years or a maximum fine of Rp150.000.000 (one hundred and fifty million rupiah).
Article 359 of the Indonesian Penal Code:
Any person for his negligence causes the death of another person, threatened with a maximum imprisonment of five years or a maximum of one year's imprisonment.
Article 191 of the Law Number 36 Year 2009:
Any person without permission to practice the traditional health services that use tools and technology as referred to in Article 60 paragraph (1) resulting in a loss property, serious injury or death shall be imprisoned with a maximum imprisonment of 1 (one) year and a fine of at most Rp100.000.000 (one hundred million rupiah).
Evidence Adduced
10. Upon receipt of the petition under section 5 of the Extradition Act, 1962, on 19.12.2017, the copy of the petition Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.6/32 along-with documents received from the requesting State were supplied to the FC Mr. Randall. In support of the petition, Union of India examined Sh. Sandeep Kumar, Deputy Secretary (Extradition) as witness CW1 who relied upon the following documents:
(a) Treaty dated 06.11.2015 Ex. CW1/1,
(b) The Extradition Note Verbale date 21.11.2017 Ex. CW1/2,
(c) The certificate appended to the Note Verbale Ex. CW1/3,
(d) The extradition request Ex. CW1/4,
(e) The attachments i.e. attachment A documents relating to identity of FC, attachment B red corner notice dated 08.04.2016, attachment C copy of arrest warrant dated 12.10.2017, Ex. CW1/5 to Ex. CW1/7.
(f) The police investigation report Ex. CW1/8,
(g) The order of the Under Secretary (Extradition), Govt. of India dated 12.12.2017 Ex CW1/9.
CW1 was cross-examined by Ld. Counsel for the FC. The evidence on behalf of Union of India was completed on 08.11.2021.
11. The FC Mr. Randall Cafferty examined himself as witness DW1 in his defence. He tendered his evidence by way of affidavit Ex. DW1/A. He relied upon his licence of practice as Chiropractic bearing registration No. 20474 dated 02.04.1990 issues by State Board of Chiropractic Examiner, State of California Ex. DW1/C. He was cross-examined by Ld. SPP for Union of India.
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.7/32Arguments and Submissions
12. I have heard the arguments advanced. Both parties have filed written synopsis of their submissions. Briefly stated, it is contended on behalf of the FC that the prima facie case is required to be shown and in the present case, there is no prima facie case for causing death by negligence. It is the contention of the FC that the death occurred due to the medications given by the Pondok Indah Hospital and not by the therapy given by the FC. It is further submitted that there was proximity between the drug administered by the Pondok Indah Hospital and the death of the victim. It is the further contention of the FC that arrest of the FC on 29.09.2017 pursuant to the red corner notice dated 08.04.2016 was illegal as on that date, there was no legal warrant issued by judicial authority was in existence. It is further contention of the FC that no autopsy was conducted after the death of the victim and the same was conducted after the expiry of about 06 months, whereas as per the Indonesian Criminal Procedure Code, conducting autopsy is mandatory. It is further submitted that the autopsy was conducted at a time when the body was in advanced decay. It is further submitted that as per the autopsy, no cause of death could be assigned. It was further submitted that the forensic report does not suggest that the death of the victim occurred due to the Chiropractic therapy. It is submitted that the extradition of the FC is sought due to the nationality and religion of the FC. Ld. Counsel for the FC has relied upon the following authorities:
(i) Bhavesh Jayanti vs. State of Maharashtra & Ors., 2009 9 SCC 551.Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.8/32
(ii) Sarabjit Rick Singh vs. Union of India, 2008 2 SCC
417.
(iii) Jacob Mathew vs. State of Punjab & Anr., 2005 6 SCC 1.
13. On the other hand, Ld. SPP for UOI has supported the extradition request on the ground that as per the testimonies of the witnesses who were the medical practioners, as per the condition of the victim, no manipulation should be carried out and that no pressure ought to have been applied on the spine of the victim. That the FC was not registered as a health worker nor was he medical practioner and despite that he not only given the treatment but also examined the x-ray reports of the victim. That the arrest of the FC was not illegal in as much as the red corner notice Ex.CW1/6 itself mentions arrest warrant issued on 14.01.2016 by the Indonesian police. It is further submitted that as per the Article 6 of the Treaty, the arrest warrant can be issued by a court or other competent authority. That as per the Indonesian Law, police is competent to issue arrest warrant. It is submitted that there was no material placed on record by the FC to show that he is being prosecuted for his religion, nationality, colour, political ideology etc. Ld. SPP has relied upon the following authorities:-
(i) Sarabjit Rick Singh Vs. Union of India, 2008 2 SCC
417.
(ii) Kamlesh Babulal Aggarwal Vs. Union of India & Anr., 2008 104 DRJ 78 (DB).
Analysis and findings Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.9/32
14. Before averting to the merits of the case, it is necessary to take a glance at the law governing the procedure and nature of inquiry to be conducted by the Magistrate under section 7 of Extradition Act. The following provisions of the Extradition Act, 1962 are germane to the inquiry for an extradition request:
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.
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.
15. It was held by Hon'ble Supreme Court in Sarabjit Rick Singh Vs Union of India, 2007 13 (Addl.) SCR 321 , that under the Extradition Act, the Magistrate is not required to hold a trial. It was held that section 7(2) of the Act envisages taking of such evidence as may be produced in support of the requisition of Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.10/32 the foreign State as also on behalf of the FC. It was held that the Magistrate in both the situation is required to arrive at a prima facie finding either in favour of the FC or in support of the requesting State. It was further held that in such an inquiry, no formal trial is required to be held and only a report is required to be made. It was held that an inquiry under the Extradition Act is to be conducted only to find out a prima facie case against the fugitive criminal for extradition to the requesting State. It was held that the Magistrate is not required to evaluate the evidence so as to arrive at a finding that the FC is or is not guilty. The relevant observations of the Hon'ble apex Court read as under:
"30. Article 9(3) of the Treaty says that the request for extradition should be supported by such infom1ation as would justify the committal for trial of the person if the offense had been committed in the Requested State. Section 7 of the Extradition Act prescribes that 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 same were one triable by a Court of Sessions or High Court.
31. Difference between incorporation by reference and a mere citation is now well known in view of the decisions of this Court in Karnataka State Road Transport Corporation v. B.A. Jayaram and A Ors., [1984] Supp. SCC 244. and Nagpur Improvement Trust v. Vasantrao and Ors., and Jaswantibai and Ors., [2002] 7 SCC 657. Incorporation by reference provides for a legislative device where the legislature instead of repeating the provisions of the statute incorporates it in another statute.
32. We may, however, notice that in Mis. Girnar Traders v. State of Maharashtra and Ors., (2007) 10 SCALE 391, the question has been referred to a larger bench. We would, however, proceed on the assumption that the doctrine of incorporation of reference as said to be containing in Section 7 of the Act would apply in the instant case. We may, however, hasten to add that the said Act being a self contained Code, the provisions thereof must be applied on their own terms.
33. Sections 208 and 209 of the Code of Criminal Procedure, 1898 contemplate taking of such evidence as may be produced in support of the prosecution or on behalf of the accused that may be called for by the Magistrate. Compliance of the principle of natural justice or the extent thereof and the requirement of law is founded in the statutory scheme. The Magistrate is to make an enquiry. He is not to hold a trial. Code Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.11/32 of Criminal Procedure makes a clear distinction between an enquiry, investigation and trial. Authority of the Magistrate to make an enquiry would not lead to a final decision wherefor a report is to be prepared. Findings which can be rendered in the said enquiry may either lead to discharge of the fugitive criminal or his commitment to prison or make a report to the Central Government forwarding therewith a written statement which the fugitive criminal may desire to submit for consideration of the Central Government. Sub-section (2) of Section 7 envisages taking of such evidence as may be produced in support of the requisition of the foreign . State as also on behalf of the fugitive criminal. It is open to the fugitive criminal to show that the offence alleged to have been committed by him i.s of political character or the offence is not an extraditable offence. He may also show that no case of extradition has been made out even otherwise. The Magistrate, therefore, in both the situations is required to arrive at a prima facie finding either in favour of fugitive criminal or in support of the requesting state. [See Sohan Lal Gupta (dead) through LRs. And Ors v. Asha Devi Gupta (Smlj and Ors., [2003] 7 SCC 492]. 34. What would constitute "evidence" came up for consideration before this Court in Ramnarayan Mor and Anr v. State of Maharashtra, [1964] 5 SCR 1064 to hold that the documents also formed part of the evidence within the meaning of Section 207 A ( 6) of the Code of Criminal Procedure, 1898.
35. 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.
36. 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 sensu may not, thus, be applicable in a proceeding under the Act.
37. Section 10 of the Act provides that the exhibits and depositions (whether received or taken in the presence of the person, against whom they are used or not) as also the copies thereof and official certificates of facts and judicial documents standing facts may, if duly authenticated, be received as evidence. Distinction must be borne in mind between the evidence which would be looked into for its appreciation or otherwise for a person guilty at the trial and the one which is Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.12/32 required to make a report upon holding an enquiry in terms of the provisions of the Act. Whereas in the trial, the court may look into both oral and documentary evidence which would enable him to ask question in respect of which the accused may offer explanation, such a detailed procedure is not required to be adopted in an enquiry envisaged under the said Act. If evidence stricto sensu is required to be taken in an enquiry forming the basis of a prima facie opinion of the Court, the same would lead to a patent absurdity. Whereas in a trial the court for the purpose of appreciation of evidence may have to shift the burden from stage to stage, such a procedure is not required to be adopted in an enquiry. Even under the Code of Criminal Procedure existence of strong suspicion against the accused may be enough to take cognizance of an offence which would not meet the standard to hold him guilty at the trial.
38. Reliance has been placed by Mr. Vishwanathan, learned counsel for the appellant, on Land Acquisition Officer and Mandal Revenue Officer v. V Narasaiah, [2001] 3 SCC 530 wherein interpreting Section 51-A of the Land Acquisition Act this Court held that the certified copy of a registered sale deed would be admissible in evidence. The said decision, we may notice, has been approved by the Constitution Bench of this Court in Cement Corporation of India Ltd. v, Purya and Ors., [2004] 8 sec 270. It may be true that a document does not prove itself Its contents, unless admitted, should be proved in terms of the provisions of the Evidence Act, unless the contents of the documents are said to be admissible by reason of a provision of a statute, as for example Section 90 of the Evidence Act. But what misses the aforementioned submission/ contention is that whereas the contents of the document is to be proved for the purpose of trial but not for the purpose of arriving at an opinion in regard to existence of a prima facie case in an enquiry. Strict formal proof of evidence in an extradition proceeding is not the requirement of law. While conducting an enquiry 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. We, therefore, are unable to accept the submission of Mr. Vishwanathan that even at this stage the affidavits by way of evidence of the accomplices Michael Ryan 'O' Mealey and Alan Lane Blackley who had been arrested and pleaded guilty and had been cooperating with DEA Agent were required to be excluded from consideration by the learned Magistrate without any corroboration.
xxxxxxx
46. The provisions of a statute, it is trite law, must be harmoniously construed. When a statute is required to be read with an International Treaty, consideration of the provisions contained in the latter is also imperative. On a conjoint reading of Section 7 and Section 10 of the Act read with paragraphs 2 and 3 of Article 9 of the Treaty, we are of the opinion that the word "information" occurring in Section 7 could not mean an evidence which has been brought it on record upon strict application of the provisions of the Evidence Act. The term Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.13/32 "information" contained therein has a positive meaning. It may in a sense be wider than the words "documents and the evidence", but when a document is not required to be strictly proved upon applying the provisions of the Indian Evidence Act or when an evidence is not required to be adduced strictly in terms thereof, the use of the word "information" in Section 10 of the Extradition Act as also Articles 9(2) and 9(3) of the Treaty becomes relevant. Documentary evidence, no doubt form part of a judicial record; but then G even in a court governed by Criminal Procedure Code 1973 documents are to be supplied only when the cognizance of the offence is taken. At this stage, therefore, the requirement of sub-section (5) of Section 173 of the Code of Criminal Procedure was not necessary.
Section 10 of the Extradition Act speaks of certification of facts. Such certification is found in the affidavit of Mr. Gilpin. How such certificate A of fact is to be furnished does not appear from the provisions of the said Act and the affidavit may serve the said purpose. It is not, therefore, possible to hold that the report of the learned Magistrate is vitiated on the premise that he has failed to apply a mandatory provision thereof.
47. Section 208 of the Old Code of Criminal Procedure is not required to be applied in its entirety. The said provision were required to be applied as far as practicable. The provisions of the Act confer power B and jurisdiction upon the Magistrate as the case is not brought before it by the prosecutor or the complainant, but an enquiry is entrusted to the designated court by the Central Government. A power was, therefore, required to be conferred under a statute to the Magistrate, so that, it may have the requisite power and jurisdiction to make an enquiry. Its function are quasi judicial in nature; its report being not a definitive order. Further section does not stop at that. It refers to the committal proceeding only for the manner in which the same is to be conducted. While a court would commit an accused in terms of Section 208, it was required to arrive at a finding for the said purpose. It postulates that a finding has to be arrived at only for the purpose of discharge of an accused or his extradition upon formation of a prima facie view. The legal principle in this behalf has clearly been laid down in sub sections (2), (3) and (4) of Section 7 of the Extradition Act. The said sub-sections cannot be ignored. Unlike Section 208 of the Code, no witnesses need be examined and cross examined. If the State has been able to prima facie establish that a case has been made out for bringing an accused to trial, it will be for the accused to show that no such case is made out of the offences complained or for extradition. 48. In a case of this nature the second part of Section 10 of the Act would apply which does not contemplate production of any oral evidence by the Central Government. No fact needs to be proved by evidence. What is necessary is to arrive at a prima facie case finding that a case has been made out for extradition from the depositions, statements, copies and other informations which are to be gathered from the official certification of facts and judicial Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.14/32 documents that would include the indictment by the Grand Jury.
49. Section 10 of the Act provides as to what would be received in evidence. The marginal note although may not be relevant for rendition of decisions in all types of cases but where the main provision is sought to be interpreted differently, reference to marginal note would be permissible in law. [See Deewan Singh and Ors. v. Rajendra Pd Ardevi and Ors., (2007) 1 SCALE 32].
50. The use of the terminology 'evidence' in Section 7 of the Act must be read in the context of Section 10 and not d'hors the same. It is trite that construction of a statute should be done in a manner which would give effect to all its provisions."
16. In 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 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 fugitive 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 credible information being Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.15/32 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 nothing 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..."
17. In Kamlesh Babulal Aggarwal v. Union of India & another, 2008 (104) DRJ 178, it was observed:
"... 15. In our opinion, the power of the Magistrate in con ducting 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 mate rials is uncalled for. The persons who are not examined by the original investigating agency may be examined by an other 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 be ing targeted for extraneous reasons..."
18. From the above position of law, it is clear that while Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.16/32 conducting an inquiry under Extradition Act, 1962 following aspects are required to be examined:
(a) Whether a prima-facie case exists against the FC in support of the requisition of the requesting State;
(b) Whether the offence for which extradition of FC is sought is an extraditable offence;
(c) Whether the extradition request and documents received are duly authenticated;
(d) Whether the offence for which extradition of FC is sought for extraneous reasons.
19. In the present case, the investigation progress report Ex. CW1/8 is the backbone of the extradition request. The said document contains the testimonies of the witness on the basis of which the extradition is sought. It is necessary to examine the case of the requesting State so as to determine whether there is, prima facie, case for extradition, or whether the extradition of the FC is sought for extraneous reasons. The witness Arnisda Helmy, who was the mother of the deceased, stated that on 06.08.2015 at about 13:00 hrs she accompanied the deceased to the clinic and the deceased was given the first session of the chiropractic therapy by the FC, which lasted for about 05 minutes. That on the same day at around 19:00 hrs, she accompanied the deceased to the clinic for the second session and similarly, another session of the therapy for 05 minutes was given to the deceased by the FC. That at about 22:30 hrs the deceased complained of pain in her back and then, the witness and her husband brought the victim to Pondok Indah Hospital.
20. The witness Alfian Helmy Hasjim, who was the Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.17/32 father of the deceased, stated that initially the deceased complained of pain in her upper back but the same was tolerable. He stated that since the deceased had to go to abroad for her schooling, they wanted to find a solution to alleviate the pain and thus, on 05.08.2015, the deceased visited the clinic to search for information. In addition to the testimony of Ms Arnisda Helmy, he stated that on return of the deceased from the clinic, the face of the deceased looked tired and pale. He stated that when the deceased was taken to Pondok Hospital, she was treated by Dr. Fahreza Aditya Neldy and he saw the deceased was in intense pain due to swelling on the left side of her neck which was due to blockage in the throat. That on 07.08.2015 at about 01:00 hrs he saw the deceased shouting in agony. That the doctor had given pain killers gradually upto the morphine level. That at 04:00 hrs the deceased was unconscious and there was swelling between the neck and left chest. That as per Dr. Chipy, the blood vessel in the neck was broken and that MRI was required to be done. That thereafter, the deceased started experiencing seizures and the doctors and the nurse staff gave ventilator support, among other things. That after some time the deceased regained consciousness but was in agony and she was then put to sleep again to calm her down. Shortly thereafter, the equipment started showing absence of heart rate and the doctor in the emergency room told them that maximum dosage of the drug was going to be administered but if the heart beat did not improve, it would be difficult to help the patient. That at 05:45 hrs, the doctor asked for the permission to pump her heart so that the patient could be revived but after 30 minutes of all the efforts, the patient did not respond and ultimately at around 06:15 hrs, Dr. Fahreza declared the deceased Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.18/32 to be dead.
21. The witness Dr. Fahreza Aditya Neldy, who was a general practitioner at Pondok Hospital, stated that on 06.08.2015 he was on duty as attending physician and at around 23:45 hrs, the deceased came to ER of the Pondok Hospital. He stated that he interviewed the deceased and the deceased stated that he was experiencing pain on her back and neck which was got worsen since afternoon. He stated that as per the mother of the deceased i.e. Ms. Arnisda Helmy, the deceased had been experiencing pain in her neck and back for a long time. The witness found from the medical records that the deceased had been treated at Pondok Hospital a year ago i.e. in 2014 and had undergone X-ray photograph from which it was known that she had spinal abnormalities (cervical kyphosis). The witness, to alleviate the pain, gave Remopain injection to the deceased and had also given Omz to the decease to prevent gastritis which may result from the use of Remopain. That even after 15-30 minutes, the pain of the deceased was not alleviated and the deceased was having acute neck pain at C5 level (cervical 5 level). He stated that at around 00:30 hrs, she gave Lameson to the deceased via injection in order to strengthen the anti-pain effect by the eliminating inflammation but the deceased was still in pain. He further stated that at 00:45 hrs, consulted with a neurologist i.e. Dr. Suryo and he was instructed by the said neurologist to give Ketesse as much as half ampoule but the condition of the deceased did not improve. He stated that at 01:00 hrs, he consulted with an Anesthetic doctor i.e. Dr. Dimas for pain management. That at around 01:20 hrs, the witness found a lump on the front part of her neck and thereafter, the witness once again consulted ENT Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.19/32 specialist Dr. Chippy as he was concerned that such lump could interfere with breathing of the deceased. He stated that he has asked Dr. Chippy to come to the hospital immediately. The witness also consulted with a spine specialist i.e. Dr. Asanto and a vascular specialist i.e. Dr. Deddy Zaelani as he was concerned that there could be blood vessel bursts. The witness was suggested to reduce the pain and perform MRI but the witness stated that MRI could not be performed because the deceased was still in pain and kept moving. The witness further stated that thereafter, throacic and neck photographs were taken of the frontal part of the the neck and thorax. That the photographs of the front part of the thorax had shown a white shadow in the upper part of the neck, which was suspected to be a mass but no conclusions could be made. That as about 02:20 hrs, the deceased had a seizure and her consciousness was dropping. That she was given intravenous fluids in order to raise blood pressure to the average target of 65 cmhg. The witness further stated that at about 05:00 hrs, the deceased lost heart rate and pulse. The witness stated that he pumped her heart but failed to revive the deceased and ultimately, she was declared dead at about 06:15 hrs due to lack of supply of oxygen to the brain resulting from extreme pain, neurogenic shock failure of blood pump, decreased blood pressure and loss of consciousness.
22. The witness Dr. Wahyu Hidajati, who was the forensic expert, stated that autopsy of the deceased was conducted on 13.01.2016 at around 08:30 hrs. He stated that during the external examination of the body it was found that skin colour on the left side of the face to the left neck, left collar bone basin and entire back of the neck got darken. He further Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.20/32 stated that from the internal examination of the body, a blackish brown colour on the muscles and soft tissue of the entire front and left part of the neck and black colour on the upper left neck/around first to third collar bones, were found. He stated that blood spots were found on the body of the deceased occurred due to rupture of blood vessels in the area of muscle and soft tissue of the left neck and the larger size of the broken vessel. The witness could not be sure because the broken blood vessels could not be found due to the state of the most of the soft tissue including blood vessels having been decayed. He stated that from the thickness of the blood spot on the upper neck area compared to its surrounding area, it could be suspected that around such area blood vessels got burst. He stated that broken blood vessels can lead to a lump especially when surrounding skin is not open. He stated that there is a basin in the neck area above the collar bone (claviacule) layered by neck muscles so that in case of broken blood vessel around the neck the blood will go down and accumulate in such basin. He stated that if the bleeding continues, the blood will fully fill the entire subcutaneous part around the neck and the same will appear as a lump from the outside. He further stated that if the blood vessels in the neck area are broken the blood supply to the brain will decrease and can cause death. He further stated that the volume of blood accumulating around the neck area due to rupture of blood vessels is significant, it can suppress important organs in the neck area such as other blood vessels around the neck which may also lead to disruption of blood supply to the brain. The witness was not sure about the extent of the broken blood vessels and its impact. The witness stated that he was not authorized to give Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.21/32 answer to the side-effects or risk of medication by medical personnel of Pondok Hospital in handling the patient. The witness stated that on the basis of the existing scientific literature, act of neck manipulation as conducted during a chiropractic therapy may potentially tear the arteries of the vertebrae. The witness Dr. Dohar A.L. Tobing, doctor orthopedic, stated that the X-ray of the deceased dated 14.07.2014, had shown that there was severe kyposis and therefore, no manipulation was possible to be conducted. He stated that the said condition required surgery but it was also risky.
23. The witness Cecep Syaifudin, who was technical staff at KPTSP (One stop integrated service office) of south Jakarta, stated that as per data available, the Chiropractic First Clinic, Pondok Indah Mall, did not hold the facility permit but the same was still registered. He stated that the said clinic has never applied for licenses and data verification and that its healers/chiropractors have not applied for licenses but they still held the requisite STPT (Traditional Healer Registration Certificate).
24. The witness Sundoyo, who was expert from Ministry of Health, stated that pursuant to the decree of Minister of Health, Chiropractic is categorized as traditional medicine and its practitioners are called Chiropractor. That as per the decree, every traditional healer should hold the traditional healer registration certificate or the traditional healer permit issued by Local Regency/City Health Officer. That the said decree was superseded by Law No. 36 of 2014 regarding Health Workers and Government Regulation No. 103/2014 regarding traditional health services and as per the said law, certain traditional healers Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.22/32 are called traditional health workers i.e. traditional healers who have acquired knowledge from higher education atleast D3 (diploma), therefore, by law chiropractor is currently categorized as health worker. That chiropractor education at D3 level in Indonesia did not exists as on date and therefore, there is no Indonesian chiropractor graduate. That there is not standard of competence, educational standards, registration requirements and licensing requirements. That chiropractors who are foreign graduates and foreign citizens are not allowed to practice in Indonesia as on date. That in order to enable the chiropractors to practice in Indonesia a professional association, collegiate, registration requirements and licensing requirements should be established.
25. Now, it is to be examined as to whether the offences for which the extradition is sought are extraditable offences or not. As per Article 2 of the treaty Ex. CW1/1, an offence is an extraditable offence, if it is punishable under the laws in both the treaty States, by imprisonment of at least one year or by a more severe penalty. The requesting State has alleged that the FC Mr. Randall John Cafferty has committed offences under Article 83 and 84 of Law No. 36 of 2014 regarding health workers, Article 73, 77 and 78 of the Law No. 29 of 2004 regarding Medical Practices, and Article 359 of the Indonesian Penal Code. First, Article 83 and 84 of the Law No. 36 of 2014 shall be examined. Article 83 prohibits a person from practicing as a health worker who does not hold a licence in this regard. Article 84 punishes a health worker who carries out heavy negligence resulting in serious injury. As per the Union of India, these offences alleged against the FC are similarly punishable under section 15 of the Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.23/32 Indian Medical Council Act, 1956. Section 15 of the Indian Medical Council Act reads as under:
15. Right of persons possessing qualifications in the Schedules to be enrolled.--(1) Subject to, the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
(2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register, --
(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority.
(b) shall practice medicine in any State;
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner.
(d) shall be entitled to give evidence at any inquest or in any Court of Law as an expert under section 45 of the Evidence Act, 1872 (1 of 1872) or on any matter relating to medicine. (3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
It can be seen from the above that section 15 prohibits practice of medicine by a person other than a registered medical practitioner. In the present case, it is no where alleged that the FC was practicing medicine. There is no dispute about the fact that the FC was carrying out chiropractic therapy and the treatment given by the FC was also not of medicine was purely of chiropractic therapy. Thus, the offences being not similarly punishable in India, much less by imprisonment of one year, are not extraditable offence in terms of the treaty.
26. Similarly, the offences under Article 73, 77 and 78 of the Law No. 29 of 2004, speaks about practice of a person without being a doctor or having valid licence and registration in this regard. As already observed above, the note verbale itself concedes that the FC was not practicing as a doctor of medicine Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.24/32 and was giving treatment of chiropractic therapy only and that the treatment given to the deceased was also chiropractic therapy only and therefore, the offences under Artice 73, 77 and 78 of the Law No. 29 of 2004 were also not extraditable.
27. Further, the requesting State has alleged that the FC was practicing as a health worker and thus, was required to have a valid licence before giving treatment. It is interesting to note that the witness Sundoyo, expert of the Health Ministry, clearly stated that the governing law i.e. Law No. 36 of 2014, certain traditional healers are called traditional health workers who have acquired knowledge from higher education at least D3 level (Diploma). He stated that the law categorizes chiropractor as a health worker. He stated that chiropractor education at D3 level does not exist in Indonesia and as on date, there is no chiropractor graduate in Indonesia. He stated that as on date, the Indonesia does not have a professional association collegiate, competency standards, registration and educational requirements as well as licensing requirements. Thus, it is clear that at the date of commission of the offence, there was a complete vacuum in regard to the chiropractic therapy and its regulation. When there was no licensing, educational and registration framework for regulation of chiropractic therapy, it is entirely illogical to say that the FC violated the law of the requesting State.
28. Further, as per witness Febie Tamanita, Romadian Saputra, Widodo Heru, and Julianti Sjarief stated that there were atleast seven to eight Chiropractic First Clinic in Indonesia, i.e. at Pondok Indah Mall, Grand Indonesia, Mall Taman Anggrek, Emporium, FX Senayan, Lippo Mall Puri and Kelapa Gading. The FC was associated with only one of the clinics i.e. at Pondok Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.25/32 Indah Mall, while other clinics have their own Chiropractors. In the Chiropractic First Clinic Pondok Indah Mall also, there were other persons who were doing the work of assistants. It is interesting to note that none of the other chiropractors or the Chiropractic First Clinic Pondok Indah Mall are being prosecuted for violation of Article 83 and 84 of the Law No. 36 of 2014. Further, despite being known that the Chiropractic First Clinic Pondok Indah Mall was having no licence and admittedly, allowed the chiropractic therapy to be given to deceased, has not been prosecuted in the present case.
29. Now coming to the Article 359 of the Indonesian Penal Code, the provision is akin to section 304A of Indian Penal Code, 1860. Article 359 punishes anyone who caused death of another person by negligence by maximum of five years imprisonment. Section 304A of Indian Penal Code, 1860 makes an act punishable with maximum of two years of imprisonment, whereby death of a person is caused by a rash or negligent act. The offence was thus, an extraditable offence in terms of the treaty Ex. CW1/1. It is contended by Ld. Counsel for the FC that in terms of the judgments of Jacob Mathews Vs State of Punjab & Anr., 2005 Supp. 2 SCR 307, mere negligence by a medical practitioner was not an offence in India and thus, requirement of Article 359 must also satisfy the said requirement so as to be an extraditable offence. The contention is misconceived in as much as, the FC is a medical practitioner and chiropractors are not treated as medical practitioners under the Indian legal framework.
30. Now, it is to be examined whether there is a prima facie case exits against the FC for his extradition to the Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.26/32 requesting State. As per the case of the requesting State, the FC gave two sessions of chiropractic therapy to the victim on 06.08.2015, one at about 13:00 hrs and another at about 19:00 hrs. The victim started experiencing pain at around 22:30 hrs when she was brought to Pondok Indah Hospital. The witness Dr. Fahreza Aditya Neldy, who was a general practitioner, treated the victim at the said hospital. The victim was initially given Remopain injection for alleviating pain but when the pain was not alleviated, the victim was given Lameson. At that point of time, it was known by the doctor that the pain, instead of reducing, has elevated up to C5 levels. The victim was further administered half ampoule of Ketesse but of no avail. At this juncture, the condition of the victim had been deteriorated to the extent that her MRI scan was not possible. The witness also found lump at the front neck of the victim at about 01:20 hrs. It is interesting to note herein that the doctor being only general practitioner was keep on administering pain killers on hit and trial basis without bothering to actually diagnose the cause of the pain since the medication was not yielding desired results. Ultimately, the victim succumbed to the lump appearing on her frontal part of her left neck.
31. It is quite interesting to further note that despite the fact that the victim died while being treated in the Pondok Indah Hospital, the requesting State did not bother to investigate the probable negligence on the part of the hospital. The witness Dr. Wahyu Hidajati, who was the forensic expert, conveniently refused to answer about the possible side effects of risk of medication given by the Pondol Indah Hospital on the pretext that he was not authorized to do so. He further refused to answer Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.27/32 the suitability of the treatments given by the Pondok Hospital with the medical history of the victim on the ground that he was not authorized to do so. However, despite being only a forensic expert, he opined that act of manipulation conducted during a chiropractic therapy, arteries might tear due to high pressure. Further, the requesting State could not find out the actual cause of death of the victim on the basis of the autopsy report since at the time when the autopsy was conducted the body had been considerably decayed. It is pertinent to mention that autopsy was conducted only on 13.01.2016 despite the fact that the victim had expired on 07.08.2015. There was considerable delay in conducting the autopsy of the deceased.
32. The FC has relied upon Article 133 and 134 of the Code of Criminal Procedure of Indonesia. As per the Article 133 of the Code, it is mandatory to conduct autopsy of a victim whether he or she dies of injury, poisoning or death involving criminal act. The Articles 133 and 134 read as under:
Article 133 (1) In case an investigator for the sake of justice handles the problem of a victim, whether he is injured, poisoned or dead presumably because of an event involving a criminal act, he is authorized to submit a request for expert information from a medical expert of the judiciary or a doctor and/or other expert.
(2) The request for expert information as intended in section (1) shall be made in writing by stating firmly whether it shall be for the examination of an injury or a dead person and/or an autopsy (3) A dead body sent to a medical expert of the judiciary or a' hospital doctor shall be trested in a proper way with full respect for the dead person and be provided with a label stating the identity of the corpse which, officially sealed and stamped, shall be attached to the toe or other part of the dead body.
Article 134 (1) In utmost necessity when for the purpose of obtaining evidence an autopsy can no longer be avoided, the investigator is obliged to first inform the family of the victim.Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.28/32
(2) In case of an objection on the part of the family, the investigator is obliged to explain the clearest possible way the aim and purpose of the autopsy.
(3) In within two days there is no response whatsoever from the family or the party to be informed is nowhere to be found, the investigator shall immediately, carry out the provision as intended in article 133 section (3) of this law.
In the present case, the provision of Article 133 and 134 of the Code, have not been complied. The autopsy was not conducted soon after the death of the victim. The autopsy was conducted after excavation of the cadaver and that time, it was considerably decayed. There are no reasons given for such considerable delay in conducting the autopsy.
33. Further, the therapy was given to the victim lastly at about 19:00 hrs. in the entire investigation progress report, except the act that the FC had given chiropractic therapy to the victim, nothing else has mentioned as to how the death of the victim was a result of the therapy given to the victim. There is a considerable time gap between the therapy given and the death of the victim. The victim was under treatment in Pondok Hospital when she died. It was stated by the witness that while under treatment, victim developed a lump on the frontal portion of her neck on left side. There is no material produced which even remotely suggests that the lump appeared due to the chiropractic therapy conducted by the FC. As already observed above, there is no cause of death found out during the investigation by the requesting State. The forensic expert could not assign the cause of death of the victim as due to the chiropractic therapy. There is no material produced by which the role of the hospital was investigated. The expert witness of the requesting State himself has not stated anything about the probable negligence of the Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.29/32 Pondol Hospital in handling the victim or for the suitability of the medication given to the victim. It is pertinent to mention that the testimony of the witnesses clearly show that the victim was earlier diagnosed and treated in the hospital. The mother of the victim categorically stated that the victim used to experience pain in her neck for a long period of time. Therefore, an inquiry should have been conducted as to whether the medication given to the victim was suitable to her condition. There is no reason given for non-prosecution of the Chiropractic First Clinic Pondok Indah Mall or the hospital. It appears that the FC Mr. Randall John has been made a scapegoat for the alleged incident.
34. It is the further contention of the FC that his arrest pursuant to Red Corner notice was illegal. It is submitted that when the Red Corner notice was issued, no lawful warrant was in existence. It is also submitted that the warrants, if any, were not issued by any judicial authority. Ld. SPP for the Union of India submitted that as per the treaty Ex. CW1/1, it is required that warrant of arrest can be issued by a Court or other competent authority. It is further submitted by Ld. SPP for the Union of India, as per Indonesian Law, Indonesian National Police has the authority to arrest and detain in accordance with Article 6 (1) and Article 7 (1) of Indonesian Penal Code Procedure. As per the Red Corner notice Ex. CW1/6, the said notice was issued on the basis of arrest warrant No. SP.KAP/84/1/2016/DITRESKRIMUM dated 14.07.2016 by Ditreskrimum Polda Metro Jaya. The arrest of the FC was pursuant to a request for a provisional arrest in terms of Article 9 of the treaty Ex. CW1/1 and under section 34B of the Extradition Act. Section 34B of the Extradition Act mandates that upon arrest of a fugitive criminal, a request for Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.30/32 extradition must be made within sixty days. In the present case, the FC was arrested on 29.09.2017 and the note verbale was received on 21.11.2017. Thus, prima facie, the requirements of section 34B had been met in the present case. I agree with the submissions made by Ld. SPP for the Union of India in this regard that the arrest and issuance of the Red Corner notice against the FC was not illegal. The Red Corner notice Ex. CW1/6 is self explanatory in this regard as it has specific mention of a warrant being issued on 14.07.2016. The FC has not able to specially show that as per Indonesian Law, police authorities are not competent to issue a warrant for the arrest of an accused. Therefore, the contention is rejected.
35. It is also the contention of the FC that he was being targeted because of his nationality. On the other hand, Ld. SPP for the Union has submitted that no material has been placed on record by the FC to the effect that he was being targeted because of religion, nationality, colour, political ideology. As per section 7 (3) of the Extradition Act, it is permissible for the FC to show that the offence of which the FC is accused of is of political nature. Though, it does appear from the record that only the FC has been made an accused of the incident without there being any prima facie material to link him with the death, there is no material to suggest that it was being done so because of his nationality. Hence, the contention of the FC is rejected.
Conclusions
36. After considering the entire facts, circumstances of the present case, documents received in support of the extradition request and provisions of Extradition Treaty executed between Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.31/32 both Requesting and Requested State, I conclude my inquiry report with the following observations:
(i) That offences under Article 83 and 84 of the Law No. 36 of 2014 regarding Health Workers, and under Article 73, 77 and 78 of the Law No. 2004 regarding Medical Practices are not an 'extraditable offence' under Article 2 of Treaty executed between both the contracting States;
(ii) That prima-facie case against FC Mr. Randall John Cafferty is not made out in respect of the offence under Article 359 of the Indonesian Penal Code under Section 7(3) of the Extradition Act, 1962 and FC stands discharged.
A copy of this report be given dasti to the FC as well as sent to the UOI through the Ld. SPP.
Digitally
signed by
PRANAV
PRANAV JOSHI
JOSHI Date:
2025.03.06
Announced in open Court 17:16:37
+0530
On this 06th Day of March, 2025
(PRANAV JOSHI)
ACJM-01/NEW DELHI
PATIALA HOUSE COURT
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.32/32