Delhi District Court
Union Of India vs Jose Inacio Cota on 12 October, 2023
IN THE COURT OF MR. ABHISHEK KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
Ct Cases 690/21
Union of India v. Jose Inacio Cota
12.10.2023
Extradition Inquiry Report
1.The Central Government i.e. Ministry of External Affairs (CPV Division) vide its order No. T-413/70/2020 dated 21.03.2021, requested this court for an extradition inquiry under Section 5 of the Extradition Act, 1962 in respect of Jose Inacio Cota, a Portuguese national, on the request of the Government of United Kingdom of Great Britain and Northern Ireland.
2. Vide this order, I propose to conclude the inquiry conducted under Chapter II of the Extradition Act, 1962 regarding extradition of the fugitive criminal Jose Inacio Cota (hereinafter referred to as "fugitive criminal"), a Portuguese National, to the Government of United Kingdom of Great Britain and Northern Ireland.
3. The Government of United Kingdom of Great Britain and Northern Ireland have submitted an extradition request through diplomatic channels to the Union of India for extradition of fugitive criminal vide note verbale no. CH 642/20 dated 07.10.2020. There is an extradition treaty between the Government of United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as the "requesting state") which is signed notified in the Gazette of India vide order no. G.S.R. Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:29:01 +0530 Ct Cases 690/21 Page No.1 of 35 Union of India Vs. Jose Inacio Cota 274(E) dated 20th April, 1999. As per application under Section 6 of the Extradition Act, the fugitive criminal is wanted to stand trial in the Court of Law in the United Kingdom, charged with the offence of rape contrary to Section 1(1) of the Sexual Offences Act, 2003.
Brief History of the Proceedings
4. The brief case of the requesting state is that on 28.05.2017, the complainant attended Two Rivers Pub in Staines to celebrate a friend's birthday and the FC was known to the complainant through a third party. The FC while working behind the bar approached her and asked to speak with her in the back room, where he had committed rape upon her.
5. Thereafter, the accused was detained and investigation was conducted. The evidence collected was provided to the Crown Prosecution Service (CPS) of England and Wales, wherein a decision was made by the CPS prosecutor that there is a realistic prospect of conviction and to prosecute the FC for the offence of rape contrary to Section 1(1) of the Sexual Offences Act, 2003.
6. Furthermore, had FC remained in the country, a charge- sheet would have been prepared, and FC would have been brought before the Magistrate's Court. However, FC left the country before he could be formally charged for the offense. The CPS decision gave police authority to use the power under section 1 of the Magistrates' Court Act 1980, which allows the police to make a formal written statement (known as 'laying an Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:29:10 +0530 Ct Cases 690/21 Page No.2 of 35 Union of India Vs. Jose Inacio Cota information') on oath before a District Judge or Justice of the Peace at the Magistrates' Court that a person has, or is suspected of having, committed an offence. The District Judge or Justice of the Peace may issue a warrant to arrest that person and bring him before a magistrates' court.
7. Thereafter, on 11.06.2019, Detective Constable Timothy French had laid the information before Sheila Hewitt, Justice of the Peace at Guildford Magistrates' Court and provided all the information as to the commission of the offence and allegations against the FC. After consideration of the information, Sheila Hewitt, Justice of the Peace had issued warrant of arrest against the FC for the offence of rape, to bring him before a judge & jury in the Crown Court to face the trial.
8. Afterwards, Mr. Shivaun O'Shea, who is a solicitor and a Specialist Extradition Prosecutor employed by the CPS had drafted the request for extradition of the FC and forwarded it to the Home Office for onward transmission to the requested state. All the documents and certificate with statements in support of the extradition were sent along with Note Verbale dated 07.10.2020.
Evidence
9. Union of India has examined CW1 Sh. Jaideep, Deputy Secretary (Extradition), Ministry of External Affairs, Govt. of India in support of its application under section 5 & 6 of the act. The documents furnished and relied upon by the witness are as Digitally signed by ABHISHEK ABHISHEK follows: KUMAR KUMAR Date: 2023.10.12 17:29:20 +0530 Ct Cases 690/21 Page No.3 of 35 Union of India Vs. Jose Inacio Cota
i) Copy of the order No. T-413/70/2020 dated 22.03.2021 passed by the Dy. Secretary (Extradition), CPV Division, Ministry of External Affairs (Ex.CW1/G).
ii) Copy of the certificate dated 18.09.2020 of Julian Gibbs, certifying authentication of documents in support of request for surrender of Jose Inacio Cota (Ex.CW1/C).
iii) Copy of the statement of Detective Constable Timothy French on oath dated 16.09.2020 before District Judge, (Magistrate Courts) [Ex.CW1/D (Colly)].
iv) Copy of Exhibit TF/A certified copy of warrant of arrest issued by Surrey Magistrate, West Division dated 11.06.2019 [Ex.CW1/D (Colly)].
v) Copy of the Exhibit TF/B photographs of Jose Inacio Cota [Ex.CW1/D (Colly)].
vi) Copy of the Exhibit TF/C fingerprints/palm of Jose Inacio Cota before Sussex & Surrey Police [Ex.CW1/D (Colly)].
vii) Copy of the Exhibit TF/D Record of Interview of Cota Jose Inacio [Ex.CW1/D (Colly)].
viii) Copy of the affidavit of Paul Thomas, Police Officer employed by Surrey Police based as Staines Police Station dated 16.09.2020 [Ex.CW1/D (Colly)].
ix) Copy of the Exhibit GS/A Record of Interview of Cook Sarah Jane dated 01.06.2017 by Gary Standard an investigator with Surrey Police in Sex Offences Investigation Unit [Ex.CW1/D (Colly)].
x) Copy of the affidavit on oath dated 16.09.2020 of Shivaun O'Shea the Solicitor and Specialist Extradition Prosecutor of the Crown Prosecution Service of England and Wales.
Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:29:28 +0530 Ct Cases 690/21 Page No.4 of 35 Union of India Vs. Jose Inacio Cota
xi) Copy of the certificate issued by District Judge (West Minister, Magistrate Court) certifying that the written and photographic matters contained in the Exhibits a deposition of French Timothy Thomas Paul, Standard. Gary and O'Shea Shivaun [Ex.CW1/D (Colly)].
xii) Copy of the e-mail dated 12.03.2021 (Ex.CW1/E).
xiii) Copy of the treaty dated 30.12.1993 (Ex.CW1/A).
xiv) Note verbale dated 07.10.2020 (Ex.CW1/B).
xv) Copy of supplementary bundle [Ex.CW1/F (Colly)] in the case of Extradition Request of Jose Inacio Cota from India:-
a) Copy of the certificate dated 12.03.2020 issued by Julian Gibbs, Head of Extradition, Extradition Section, Home Office.
b) Statement of Law dated 22.09.2020 of Shivaun O'Shea the Specialist Extradition Prosecutor employed by the Crown Prosecution Service England and Wales.
c) Copy of Exhibit SOS/A referred to in the Deposition of Shivaun O'Shea Extract from Stones Justices Manual.
d) Copy of the Exhibit SOS/B referred to in the Deposition of Shivaun O'Shea i.e. draft indictment.
e) Copy of the certificate dated 22.12.2020 issued by District Judge, West Minister, Magistrates Court certifying the Exhibits in the deposition of O'Shea Shivaun.
xvi) Second Supplementary Bundle (Ex.CW1/H) along with Digitally signed
ABHISHEK by ABHISHEK
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Union of India Vs. Jose Inacio Cota
the certificate of the Extradition Section dated 04.08.2022 which is Mark B. xvii)Certificate of David Robinson, District Judge dated 02.08.2022 (Ex.CW1/J).
xviii) Warrant of Arrest [Ex.CW1/D (Colly)]. xix) Third supplementary bundle [Ex.CW1/M (Colly)] along with the certificate dated 02.08.2023 (Ex.CW1/L).
10. CW1 was duly cross examined at length on behalf of the FC on 23.05.2023, 08.06.2023, 01.07.2023, 03.07.2023 & 14.07.2023. Thereafter, CW1 was re-examined on 05.09.2023 and FC again cross examined the witness. Written Statement was filed on behalf of the FC on 13.09.2023. Final arguments were heard and matter was reserved for orders.
Arguments on behalf of the Union of India
11. The learned Special Public Prosecutor, Ms. Rekha Pandey argued on behalf of the Union of India that there is ample evidence on record, establishing a prima facie case for the extradition of FC on charges of rape. Furthermore, the documents received with the extradition request have been appropriately authenticated and certified in accordance with the provisions of Section 10 of the Act and article 14 of the treaty. Moreover, the offense with which FC has been charged by the requesting country is an extraditable offense, as similar conduct is punishable under Section 375 of the IPC with an imprisonment of more than one year.
12. The learned Special Public Prosecutor also stressed the Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:29:50 +0530 Ct Cases 690/21 Page No.6 of 35 Union of India Vs. Jose Inacio Cota point that strict formal proof of evidence is not required under the law, as there is no formal trial to be conducted; instead, only a report needs to be prepared by the magistrate. In support of her contentions, the learned Special Public Prosecutor cited the following judgment:
(i) Roseline George V. Union of India (1994 2 SCC 80)
(ii) Kamlesh Babulal Aggarwal v. UOI (2008 9104 DRJ 78)
(iii) Jose Inacio Cota v. UOI (2022 SCC onLine Del 1417)
(iv) Aman Vyas v. UOI (2019 SCC onLine Del 9168) Arguments on behalf of the FC
13. Mr. Arpit Batra, the learned counsel for FC primarily disputed the admissibility of the documents relied upon by the Union of India, arguing that no prima facie case has been established against the accused for extradition.
14. Counsel has asserted that the purpose of the inquiry is to ascertain whether the authentication and evidentiary requirements of the Act have been fulfilled. Furthermore, the judicial inquiry into the sufficiency of the evidence entails an evaluation of whether the conduct described by the admissible evidence would warrant committal for trial in the requested state, i.e, India.
15. Counsel also argued while referring to the judgement of Kamlesh Babulal v. Union of India & Anr. (2008 SCConline Del 533), that prima facie offence signifies "on the face of it" or "at the first impression" and the inquiry conducted under section Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:00 +0530 Ct Cases 690/21 Page No.7 of 35 Union of India Vs. Jose Inacio Cota 7 of the act is akin to the stage of charge as mentioned under section 228 Code of the Criminal Procedure, 1973, wherein too a prima facie satisfaction is to be reached.
16. Ld. Counsel also submitted that opinion can be made only on the basis of admissible evidences as per the Indian Evidence Act, 1872. He also placed reliance upon Smt. Nagawwa vs Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, stating that if the material on record are based upon inadmissible or irrelevant documents, the same is liable to be quashed. Further, when treaty bearing G.S.R 790(E) dated 30.12.1993 and Extradition Act, 1962 are read together, it is clear that the said opinion can only be formed when the said evidence is duly authenticated and the same is admissible in light of the Indian Evidence Act, 1872 as the law of the requested state is to be followed. He also highlighted that the extradition act does not particularly define what authentication means. He elucidated the concept of authentication by referencing the dictionary definition as cited in the written arguments and argued that, therefore, it is necessary that documents be in proper form and that the certifying officer is competent to provide such certification, a point the complainant has failed to establish.
17. Ld. Counsel for the FC raised objections regarding the authenticity & admissibility of the document Ex.CW1/C i.e authentication certificate accompanied by documents Ex.CW1/D (colly). The counsel has argued that the certificate pertains to the warrant of arrest and all other documents authenticated under the Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:13 +0530 Ct Cases 690/21 Page No.8 of 35 Union of India Vs. Jose Inacio Cota seal of the secretary of the state but it fails to disclose information of the secretary at the relevant time, whether he was the original keeper of documents and the existence of the seal. Therefore, these documents do not meet admissiblility requirements of section 78(6) of the Indian Evidence Act. Furthermore, the purported seal is not legible, which further undermines its reliability as evidence. In support of the aforementioned contention, the relevant cross-examination of CW1 was highlighted. Additionally, he addressed the argument that the complainant failed to establish that Mr. Julian Gibbs was the lawful custodian of the original documents.
18. The counsel also argued that the certificates pertaining to the statements (Ex. CW1/D) were originally signed by Angus Hamilton or Angus Nichol, and there is evidence of interpolation with the name of Dennis Brennan. The documents accompanying the statements are xerox copies and not the original.
19. The counsel has also objected to the authenticity of first supplementary bundle of documents received by way electronic means. He pointed out that, according to the witness's explanation, these documents were received during the COVID- 19 pandemic. However, it is evident that after the COVID period, neither the original documents nor properly certified versions were received. These documents are also not supported by certificate under section 65B of the Indian Evidence Act.
20. Second and third supplementary bundle of documents was Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:22 +0530 Ct Cases 690/21 Page No.9 of 35 Union of India Vs. Jose Inacio Cota also disputed on the point of authenticity as well as admissibility by the Ld. Counsel. The counsel also presented the argument that FC has been a victim of racial discrimination and, therefore, is protected by the extradition treaty. He further contended that there is also one pending criminal case against FC in the state of Goa, and as such, until the trial is concluded, FC cannot be extradited. The counsel concluded the arguments by stating that FC should be discharged as the essential requirements under the extradition act have not been met.
21. In support of the contentions, the counsel for the FC has relied upon the following judgments:
(i) Salwant Singh Sandhu Vs. State of Delhi & Ors., 2001 SCC OnLine Del 442
(ii) R. Selvi Vs. Union of India, 2011 SCC OnLine Mad 655
(iii) Kamlesh Babulal Aggarwal Vs. Union of India & Anr., 2008 SCC OnLine Del 533
(iv) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors., (1976) 3 SCC 736
(v) Srichand P. Hinduja Vs. State through CBI, 121 (2005) DLT 1 Findings
22. Before proceeding to provide findings, it is pertinent to discuss the relevant legal provisions pertaining to extradition.
23. The pertinent legal provisions of the Act that are relevant for deciding the current inquiry proceedings are as follows:
Section 5. Order for magisterial inquiry:- ABHISHEK by Digitally signed ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:30 +0530 Ct Cases 690/21 Page No.10 of 35 Union of India Vs. Jose Inacio Cota 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 pow-
ers, 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.
Section 10. Receipt in evidence of exhibits, depositions and other documents and authentication thereof.-- (1) In any proceedings against a fugitive criminal of a foreign State 1[***] 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.-- (1) In any proceedings against a fugitive criminal of a foreign State 1[***] 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 Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:38 +0530 Ct Cases 690/21 Page No.11 of 35 Union of India Vs. Jose Inacio Cota 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 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 where the same was issued or acting in or for such State 2;"
(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 2, to be the original depositions or statements or to be true copies thereof, as the case may require; where the same were taken, or acting in or for such State 2, 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; 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 where the same were issued, taken or given."
ARTICLE 11 : Extradition Procedures (1) Subject to the provisions of Article 22 of this Treaty, the request for extradition shall be made through the diplomatic channel.
(2) The request shall be accompanied by:
(a) as accurate a description as possible of the person sought, together with any other information which would help to establish his identity, nationality and residence;
(b) a statement of the facts of the offence for which extradition is requested, and
(c) the text, if any, of the law:
(i) defining that offence and
(ii) prescribing the maximum punishment for that offence.Digitally signed
ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:45 +0530 Ct Cases 690/21 Page No.12 of 35 Union of India Vs. Jose Inacio Cota (3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority, in the territory of the Requesting State and by such evidence as according to the law of the Requested State, would justify his committal for trial if the offence had been committed in the territory of the Requested State, including evidence that the person requested is the person to whom the warrant of arrest refers. (4) If the request relates to a person already convicted and sentenced, it shall be accompanied:
(a) by a certificate of the conviction and sentence;
(b) by a statement that the person is not entitled to question the conviction or sentence and showing how much of the sentence has not been carried out.
(5) In relation to a convicted person who was not present at his trial, the person shall be treated for the purposes of paragraph (4) of this Article as if he had been accused of the offence of which he was convicted.
(6) If the Requested State considers that the evidence produced or information supplied for the purposes of this Treaty is not sufficient in order to enable a decision to be taken as to the request, additional evidence or information shall be submitted within such time as the Requested State shall require.
ARTICLE 14: Evidence (1) The authorities of the Requested State shall admit as evidence, in any proceedings for extradition, any evidence taken on oath or by way of affirmation, any warrant and any certificate of or judicial document stating the fact of, a conviction, if it is authenticated.
(a) (i) in the case of a warrant being signed, or in the case of any original document by being certified, by a judge, magistrate or other competent authority of the Requesting State; and
(ii) either by oath of some witness or by being sealed with the official seal of the appropriate Minister of the Requesting State; or
(b) in such other manner as may be permitted by the law of the Requested State.
(2) The evidence described in paragraph (1) shall be admissible in extradition proceedings in the Requested State whether sworn or affirmed in the Requesting State or in some third State. ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:30:55 +0530 Ct Cases 690/21 Page No.13 of 35 Union of India Vs. Jose Inacio Cota
24. 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 under section 5 does not contemplate a pre-decisional or prior hear- ing. Section 5 of the Act is an enabling provision by which, a Magistrate is appointed to inquire into the case. The Magis- trate on the order of inquiry being passed by Central Govern- ment 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 con- victed and wanted by the requesting State for trial or for un- dergoing the sentence passed or to be passed. The Act con- tains sufficient safeguards in the procedure to be followed in the inquiry by the Magistrate to protect the fugitive criminal. The Magistrate is to receive evidence from the requesting State as well as of the fugitive criminal. The fugitive criminal is entitled to show that the offences of which he is accused or convicted are offences of political character or not an extradi- tion offence. Besides, the Magistrate, if he comes to a conclu- sion that a prima facie case is not made in support of the req- uisition by the requesting State, he is required 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 per- son without warrant who is concerned in any cognizable of- fence or against whom a reasonable complaint has been made or credible information has been received or a reasonable sus- picion exists of his having been so concerned in the offence, under section 41 of the Code. Accordingly, on credible infor- mation being received from a requesting State, with sufficient particulars, about a person having been involved in any of- Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:31:03 +0530 Ct Cases 690/21 Page No.14 of 35 Union of India Vs. Jose Inacio Cota fence, the said person could be arrested in India without war- rant. It is now fairly well-settled that the Magisterial in- quiry which is conducted pursuant to the request for ex- tradition 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 war- rant 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 para- graph 7, in which case the request for extradition is denied by the Central Government..."
25. Further, in the case of 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 fram- ing 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 require- ment 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 ob- tained 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 ac- cused. 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 fa- Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:31:12 +0530 Ct Cases 690/21 Page No.15 of 35 Union of India Vs. Jose Inacio Cota cie case only "in support of requisition". Reading the said provision Along with Section 29, we feel that the ambit of in- quiry under Section 7 is in fact narrower than Section 228 Cr.PC and is limited to find that the fugitive is not being tar- geted for extraneous reasons..."
26. In light of the above, it is abundantly clear that the extradition inquiry under the Extradition Act must encompass the following aspects:
i) Whether the offence for which extradition of FC is sought is an extraditable offence;
ii) Whether the extradition request and documents received are duly authenticated
iii) Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State;
27. Let us analyze these aspects in the context of the facts and circumstances of the case hereinafter.
Whether the offence is Extraditable?
28. In every extradition request, it is an essential requirement to ascertain whether the offence alleged against the accused is an extraditable offence or not. The extradition offence has been defined in the Extradition Act, 1962. In case of existence of a valid Treaty between the Requesting State and the Requested State, the extradition offence would be as defined in the Treaty, if the offence is not covered within the definition provided under the Extradition Act.
29. Section 2(c) of the Extradition Act, 1962 defines an extradition offence as follows:
(c) "extradition offence" means -
(i) in relation to a foreign State, being a treaty state, an Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:31:25 +0530 Ct Cases 690/21 Page No.16 of 35 Union of India Vs. Jose Inacio Cota offence provided for in the extradition treaty with that state;
(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of foreign State and includes a composite offence.
30. In the present case since a Treaty exists between the Requesting State and India which has been placed on record, the definition of the extradition offence as provided in the Treaty would be applicable in view of the provisions in Section 2(c)(i) of The Extradition Act, 1962.
31. A combined reading of the definition of extradition offence in Section 2(c) of The Extradition Act, 1962 and in Article 2 of The Extradition Treaty would show that the extradition offence for the purposes of this Treaty is constituted by conduct which under the laws of each Contracting Party is punishable by a term of imprisonment for a period of at least one year.
32. Keeping in view the definition of the extradition offence as provided in The Extradition Act, 1962 and The Extradition Treaty applicable in the present case, one has to consider the nature of the offence alleged against the fugitive criminal. It is pertinent to mention that to understand the real nature of the offence the substance of the allegations are to be considered and not the terminology.
33. As per the case of the requesting state, the fugitive criminal is charged by the Government of United Kingdom of Great Britain and Northern Ireland for the offence of rape contrary to Section 1(1) of the Sexual Offences Act 2003 and the Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:31:35 +0530 Ct Cases 690/21 Page No.17 of 35 Union of India Vs. Jose Inacio Cota imposable penalty for the said offences in the requesting State is imprisonment for life. The similar offences are reported to fall under Section 376 of Indian Penal Code, which are punishable with an imprisonment with more than one year in India. Therefore, the test of dual criminality is satisfied in this case.
34. Consequently, as elaborated earlier, the crime for which FC is accused qualifies as an extraditable offense. As a result, the requisites for evaluating the extradition request qua the extraditability of offence have been met, and FC has not contested this stance either.
Whether the extradition request and documents received are duly authenticated
35. Section 7 of the Act addresses the procedural aspects concerning extradition proceedings before the magistrate. Subsection 2 of Section 7 stipulates that the magistrate has to receive evidence presented both in support of the foreign state's requisition and on behalf of FC. In addition, Article 11(2) of the treaty provides further details, specifying that the extradition request must include precise information about the fugitive's identity, nationality, and place of residence. It should also encompass a statement of the facts pertaining to the offense for which extradition is sought, along with any relevant legal provisions defining the offense and specifying the imprisonment thereof.
36. In the current inquiry, the FC's information and the Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:31:45 +0530 Ct Cases 690/21 Page No.18 of 35 Union of India Vs. Jose Inacio Cota statement of the facts related to the offense are furnished through the statement of Detective Constable Timothy French. Moreover, the legal provisions delineating the offense and specifying the corresponding imprisonment is outlined in the statement provided by Shivan O'Shea, a specialized extradition prosecutor. These statements, in conjunction with the necessary exhibits, namely, Ex.CW1/D (colly), fulfill the stipulated criteria outlined in Article 11(2) of the treaty.
37. Article 11(3) of the treaty further provides that the request shall be accompanied by a warrant issued by a judge, magistrate or other competent authority in the territory of the requesting state. In the given case, the warrant of arrest forms the part of the record in the form of Ex. CW1/D (colly). It also provides that the request shall be accompanied by such evidence as according to the law of the requested stated would justify his committal for trial if the offence had been committed in the territory of the requested state including the evidence of the FC.
38. Article 14(1) of the treaty provides as to what can be admitted as evidence by the requested state. It states that any evidence taken on oath or by way of affirmation, any warrant and certificate of or judicial document stating the facts of conviction, if it is duly authenticated can be received as evidence.
39. Therefore, as per article 14 of the treaty, a warrant stands authenticated, (i) if signed by a judge, magistrate or other competent authority in the territory of the requesting state and (ii) Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:31:53 +0530 Ct Cases 690/21 Page No.19 of 35 Union of India Vs. Jose Inacio Cota either by oath of some witness or by being sealed with the official seal of the appropriate minister of the requesting state. Both of these requirements must be satisfied to authenticate a warrant.
40. Likewise, in the case of original document, (i) by being certified by a judge, magistrate or other competent authority in the territory of the requesting state and (ii) either by oath of some witness or by being sealed with the official seal of the appropriate minister of the requesting state. Article 14(2) of the treaty provides that the evidence referred to in article 14(1) of the treaty shall be admissible in extradition proceedings whether sworn or affirmed in the requesting state.
41. In the same manner, Section 10 of the Act states as to what can be received as evidence during the proceedings by the magistrate. It provides that exhibits and depositions and copies thereof and official certificates of facts and judicial documents stating facts if duly authenticated may be received as evidence. Hence, within the context of present inquiry, it is imperative to turn to article 14 of treaty read with section 10 of the act to understand the scope of evidence and how evidence is to be authenticated.
42. Therefore, in the light of the preceding paragraph, evidence would constitute three things, if duly authenticated. Firstly, any evidence taken on oath or affirmed. Secondly, any warrant and thirdly, any certificate of or judicial document stating Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:01 +0530 Ct Cases 690/21 Page No.20 of 35 Union of India Vs. Jose Inacio Cota the fact of conviction. Let's us see what evidence has come on record and whether the same has been duly authenticated.
43. The depositions and exhibits initially received (supplementary bundles will be dealt later) in this inquiry have been exhibited as Ex. CW1/D (colly) which contains the statement of Detective Constable Timothy French, Paul Thomas, Detective Constable Gary Stannard & Shivan O'Shea. The exhibits are certified copy of warrant (TF/A), photographs (TF/B), Fingerprint Form (TF/C), FC's interview Transcript (TF/D), and Complainants interview Transcript (GS/A).
44. Now, before delving into the analysis of evidence and authentication, it is prudent to address the FC's argument, asserting that the Extradition Act does not provide a definition for the term 'authentication,' and that reference must be made to Section 78(6) of the Indian Evidence Act to understand document authentication. In this context, I firmly believe that there is no necessity to resort to the dictionary definition, as advocated by the FC. Article 14 of the treaty read with section 10 of the act has sufficiently elucidated the method of authentication, as previously discussed. If the stipulations of Article 14(2) are met, the document will be considered properly authenticated.
45. The FC has also argued that the documents accompanying the extradition request are inadmissible and do not meet the standards outlined in Section 78(6) of the Indian Evidence Act, 1872. However, I find this contention of the FC to be untenable.
Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:08 +0530 Ct Cases 690/21 Page No.21 of 35 Union of India Vs. Jose Inacio Cota
The admissibility of evidence in extradition proceedings is clearly addressed in Article 14(2) of the treaty.
46. Article 14(2) of the treaty explicitly affirms that evidence detailed in Article 14(1) of the treaty shall be admissible in proceedings. Consequently, once the conditions stipulated in subsection (1) of Article 14 are met, such evidence becomes admissible in the inquiry. This effectively eliminates the need to seek the definition of admissibility through reference to the Indian Evidence Act, as the treaty adequately addresses the matter of admissibility. It's important to keep in mind that the extradition act mandates solely an inquiry, without conducting a formal trial. The interpretation of evidence should be in line with the provisions of the act and the treaty, and the stringent rules of the evidence act do not apply to the inquiry proceedings. These proceedings are focused on forming a prima facie opinion regarding the extradition of the fugitive, without delving into questions of their innocence or guilt.
47. To substantiate the aforementioned observation, reference is made to the judgment of the Hon'ble apex court in case titled as "Sarabajit Rick Singh V. Union of India (2008), wherein the court observed as follows:
"... 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 Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:16 +0530 Ct Cases 690/21 Page No.22 of 35 Union of India Vs. Jose Inacio Cota 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 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 vs. 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 Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:25 +0530 Ct Cases 690/21 Page No.23 of 35 Union of India Vs. Jose Inacio Cota 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. vs. Purya and others: (2004) 8 SCC 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..."
48. FC has contested the warrant's authenticity, contending that it is a photocopy and not an original issued by a judge, which purportedly appears to be signed by a clerk of the Justice of the Peace. In this context, it's important to note that neither the Act nor the treaty mandates that warrants must be in their original form. The essential requirement is that they should be signed by a judge, magistrate, or another competent authority.
49. Upon examining Exhibit TF/A as presented in CW1/D, it becomes evident that an information for the issuance of warrants was duly laid and sworn before Justice of the Peace, Sheila Hewitt. Notably, both the information and the warrant bear the Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:34 +0530 Ct Cases 690/21 Page No.24 of 35 Union of India Vs. Jose Inacio Cota unmistakable signature of Justice Sheila Hewitt. Moreover, the fact that the warrants were issued by Justice of the Peace, Sheila Hewitt, is reaffirmed in Detective Constable Timothy French's statement, as well as in the certification provided by Mr. Julian Gibbs of the Extradition Section, Home Office, UK. This solidifies the fact that the warrants were indeed signed by a judicial authority, in this case, Justice of the Peace, Sheila Hewitt, thus fulfilling the requirement for the warrant to be signed by a judge.
50. Another form of evidence comprises the original statements and exhibits initially received with the extradition request. According to the stipulations of Article 14 of the treaty in conjunction with Section 10 of the Act, these original documents must bear the certification of a judge. Upon reviewing Ex. CW1/D (colly), it is evident that the statements were sworn before the District Judge (Magistrates Court) and were also duly certified by the Judge, satisfying the required authentication criteria.
51. In this context, the FC has raised an objection, highlighting that these statements and exhibits have become questionable. This uncertainty arises because the documents were originally signed by Angus Hamilton or Angus Nicholl, with their names typed as District Judge. Subsequently, their names were crossed out with the name "Denis Brennan" handwritten next to them. The FC contends that these documents should not be deemed Digitally signed reliable due to their dubious nature. ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:44 +0530 Ct Cases 690/21 Page No.25 of 35 Union of India Vs. Jose Inacio Cota
52. The FC has indeed correctly highlighted this aspect. However, it does not necessarily cast doubt on the documents. All these documents feature identical signatures of the District Judge. If they had been signed by Angus Nicholl or Angus Hamilton, variations in the signatures would have been apparent. Yet, given the uniformity of the signatures on these documents, it can be reasonably inferred that they were all signed by a single individual, whose name is indicated as Denis Brennan for the purposes of this inquiry. It's worth noting that these documents were received under certification through diplomatic channels and bears significance.
53. It's important to note another crucial requirement regarding authentication. For documents like Ex.CW1/D (Colly) to be considered valid, they must either be sworn under oath by a witness or have the official seal of the relevant minister from the requesting state. In this case, these documents bear the seal of the state's secretary. To confirm this, one can refer to Ex.CW1/C, Julian Gibbs's certificate, specifically at point A. This certification ensures that the documents have been properly sealed with the minister's seal, meeting the necessary condition.
54. The FC's objection, stating that Ex.CW1/C does not specify who held the position of secretary at that time or whether Julian Gibbs was the rightful custodian of these documents for authentication, is not pertinent. As previously discussed, the interpretation of evidence in this inquiry is not to be interpreted Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:32:53 +0530 Ct Cases 690/21 Page No.26 of 35 Union of India Vs. Jose Inacio Cota in its strict sense.
55. Hence, the provisions of Section 78(6) of the Indian Evidence Act do not apply here, and it is not a necessity that Julian Gibbs must have been the legal custodian of the court documents to issue the certificate.
56. Furthermore, the authenticity of the minister of the state's seal should not be called into question based solely on apprehension, especially when the documents were received through diplomatic channels. Sending documents through diplomatic channels inherently implies a level of assurance in their veracity and origin, and any concerns about the legibility of the seal bear no significance in the context of these inquiry proceedings. Delving too deeply into such intricate details would undermine the very purpose of having an extradition treaty. If we examine the subsequent supplementary bundles, such as Mark B and CW1/L, we will observe that they bear the same seal as that on Ex.CW1/C.
57. As for the first supplementary bundle, identified as Ex.CW1/F (Colly), it is undisputed that this bundle was received electronically. The explanation provided in this matter is that it was submitted during the COVID-19 pandemic and, as a result, was transmitted via email. Moreover, it was received through diplomatic channels and subsequently filed in the Court along with the note verbale and extradition request. ABHISHEK by Digitally signed ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:33:02 +0530 Ct Cases 690/21 Page No.27 of 35 Union of India Vs. Jose Inacio Cota
58. During the cross-examination of CW-1, the witness confirmed that the original supplementary bundle was not received at a later point, and no communication has been exchanged on this matter. Consequently, the supplementary bundle Ex.CW1/F (Colly) does not meet the criteria outlined in Article 14 of the treaty in conjunction with Section 10 of the Act. However, its relevance to the formation of the prima facie opinion will be addressed in the later portion of this order.
59. The second supplementary bundle, Ex.CW1/H (Collected Documents), comprises statements from Timothy French and Shivaun O'Shea, alongside exhibits such as TF/A, TF/B, TF/C, SOS/A, and SOS/B. Importantly, the original statements from these individuals were duly made and sworn before District Judge (Magistrate's Court), David Robinson.
60. In addition to this, these documents have been accompanied by the certificate of GM Elks from the Extradition Section at the Home Office, bearing the seal of the Secretary of the State. However, it's noteworthy that the said certificate lacks the signature of GM Elks. Moreover, additional clarification concerning the signatures lacks supporting authentication or certification. As a result, the supplementary bundles, namely Ex.CW1/H (Collected Documents), Mark B, Ex.CW1/J, and Mark P, do not meet the criteria stipulated in Article 14 of the treaty in conjunction with Section 10 of the Act. Nonetheless, their implications regarding the formation of a prima facie opinion will be addressed in the later part of this order.
Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:33:12 +0530 Ct Cases 690/21 Page No.28 of 35 Union of India Vs. Jose Inacio Cota 61. In the third supplementary bundle, identified as
Ex.CW1/M (Colly), the statement of Detective Sergeant Ross Lilaer has been presented, accompanied by exhibits RL/A, RL/B, and RL/C. These documents have been properly sworn and submitted before the District Judge, Magistrate's Court, with due certification.
62. Additionally, a certificate of authentication, supposedly issued by Stuart Blackley from the Extradition Section at the Home Office, dated 02.08.2023, and bearing the seal of the Secretary of the State, is included. The FC has raised objections against these documents on similar grounds as previously discussed regarding Ex.CW1/D (Colly) and Ex.CW1/C. However, as discussed in paragraph 46 of this order, the third supplementary bundle adheres to the requisites outlined in Article 14 of the treaty and is therefore considered reliable.
63. The contention that the order issued by the central government to initiate the extradition process is a photocopy and lacks proper proof does not have a solid foundation. In this context, CW1 has affirmed that the order, Ex. CW1/G, is an integral part of the government's records and was signed by his predecessor while serving as the Deputy Secretary, Extradition. Consequently, there should be no dispute regarding the mode of proof in the inquiry proceedings. As previously mentioned, evidence should not be interpreted in a strict, technical sense.
Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:33:19 +0530 Ct Cases 690/21 Page No.29 of 35 Union of India Vs. Jose Inacio Cota
64. The statements of the witnesses submitted along with the extradition request and relied upon by the Union of India should not be classified as hearsay evidence. The Act necessitates the presentation of evidence and statements, and there is no obligation to examine the witnesses in the requested state since no formal trial is being conducted here. Therefore, these statements are within the domain of article 14 of the treaty as well as section 10 of the act.
65. After thoroughly examining the authentication of the documents, let's now consider whether a prima facie case can be established based on these documents.
Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State
66. In the case of Kamlesh Babulal Agarwal (supra), the Hon'ble High Court of Delhi, in paragraph number 12, has provided insight into the meaning of 'prima facie' concerning Section 7 of the Act. It has elucidated that 'prima facie' essentially signifies something that is evident at first sight, accepted as such until proven otherwise, or apparent on the face of it, or as far as can be determined from the initial disclosure. Furthermore, it's important to note that Section 7(3) and (4) of the Act specifically mandate the establishment of a prima facie case only in support of the requisition.
67. In addition to the case mentioned, it's worth noting that the legal principle of establishing a prima facie case is deeply rooted Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:33:29 +0530 Ct Cases 690/21 Page No.30 of 35 Union of India Vs. Jose Inacio Cota in extradition law. The prima facie case standard is not equivalent to the standard of proof required for a full-fledged trial. Instead, it represents a preliminary evaluation to ascertain whether there is sufficient evidence to warrant the accused's extradition. This principle is underscored in various international extradition treaties, including the one in question in this case, which typically require the requesting state to provide sufficient evidence to establish a prima facie case.
68. Furthermore, the Indian Extradition Act, 1962, specifically in Section 9, articulates that a person can be discharged from extradition if, upon a perusal of the documents and evidence submitted, the magistrate believes that the request lacks a prima facie case or is based on political or rational discrimination grounds.
69. In light of these legal principles, it's evident that the requirement for establishing a prima facie case is a fundamental step in the extradition process, serving as a threshold test to determine whether the requested person should be surrendered to the requesting state.
70. The primary focus is to determine whether there exists prima facie material in the records to suggest the fugitive's involvement in the alleged offense. It's important to emphasize that the inquiry process does not necessitate the same level of detail as a trial, where the accused may offer explanations concerning both oral and documentary evidence Digitally presentedsigned ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:33:37 +0530 Ct Cases 690/21 Page No.31 of 35 Union of India Vs. Jose Inacio Cota alongside the charge-sheet.
71. While Section 7 of the Extradition Act bears similarities to Section 228 of the Criminal Procedure Code (Cr.PC), the scope of the inquiry under Section 7 is more restricted than that under Section 228 of the Cr.PC. The inquiry's primary objective is to ensure that the fugitive is not targeted for extraneous, improper reasons.
72. Upon a thorough review of the documents i.e. Ex.CW1/D (Colly), including the statement of the investigating officer, the Court can convincingly conclude that a prima facie case has been established against the FC. The statement provided by Detective Timothy French, in conjunction with the transcripts of the interviews with the FC and the complainant, strongly indicates the commission of the offense of rape and the FC's involvement therein.
73. The Detective's statement is quite relevant at this stage, indicating that the FC is charged with rape, and the CPS has taken steps to prosecute him in the Crown Court. Both the investigating officer and the complainant make clear claims about the FC's involvement in the offense.
74. There's no dispute that the FC was present at the location of the offense on the day it happened and was asked to cooperate in the investigation based on the complaint from the victim.
Additionally, photographs of the FC and fingerprint records Digitally signed by
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support the requesting State's case.
75. Upon a comprehensive examination of all the documents received along with the request and those subsequently filed in the form of supplementary bundles, it is my assessment that Ex. CW1/D provides sufficient grounds to establish a prima facie opinion. Even if the remaining documents contained in the supplementary bundles are not considered, the case presented in the form of documents i.e. Ex.CW1/D (Colly) by the requesting State still appears plausible.
76. In the course of the inquiry proceedings, the statements from the investigating officer and the prosecutor will be satisfactory for ascertaining the case's facts. It's important to note that there is no obligation for the original charge-sheet or the statement from the victim/complainant to be included with the request for extradition.
77. The argument that this case is just a pub brawl and that the FC is wrongly accused doesn't apply at this stage. Such arguments are typically dealt with in a full trial where all the evidence and witnesses are thoroughly examined. In extradition proceedings, our main concern is to see if there's enough eviden ce to hand over the accused, not to decide their guilt or innocence. So, we don't assess the case in as much detail as in a trial. Detailed examinations and defense arguments belong in a trial in the requesting state where everything can be looked at Digitally signed more closely. ABHISHEK by KUMAR ABHISHEK KUMAR Date: 2023.10.12 17:33:55 +0530 Ct Cases 690/21 Page No.33 of 35 Union of India Vs. Jose Inacio Cota
78. The FC has raised a defense, claiming to be a victim of racial discrimination in the UK, suggesting this is why he's falsely accused in this case. He stated that he sent a complaint to UK authorities about this discrimination, but no action was taken, indicating authorities' bias. However, it's important to note that the FC has merely made an accusation of racial discrimination without presenting substantial evidence to support it. Consequently, the FC's argument that he's been wrongly implicated as a result of this discrimination is not convincingly established at this stage.
79. The FC has also presented a copy of FIR numbered 80/2021 PS Maina Cortorim and certified copies of the chargesheet, Exhibited as CW-1/D-1 & CW-1/D-2, in an attempt to demonstrate that he cannot be surrendered while the trial in this case is ongoing, as per Section 31(d) of the Act. However, it's important to note that this argument from the FC is not relevant within the context of the extradition inquiry. The primary focus of the inquiry is to establish a prima facie opinion regarding the extradition request. The FC's argument related to the ongoing trial does not fall under the scope of the inquiry and is to be looked into separately by the central government.
CONCLUSION
80. In summary, after careful consideration, I conclude that all the necessary conditions for evaluating the extradition request have been met. The offense,with which FC has been charged i.e Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.10.12 17:34:03 +0530 Ct Cases 690/21 Page No.34 of 35 Union of India Vs. Jose Inacio Cota Rape under section 1(1) of the Sexual Offences Act, 2003, qualifies as an extraditable offense. Furthermore, the documents received through the extradition request, found in Ex.CW1/D (Colly), satisfy the authentication requirements outlined in both the treaty and the act, effectively establishing a prima facie case against the FC.
81. As per the findings in the inquiry report, I recommend to the Union of India the extradition of Mr. Jose Inacio Cota, the Fugitive Criminal, on the charge of rape under Section 1(1) of the Sexual Offences Act, 2003.
82. A copy of this report alongwith the written statement of the FC be sent to UOI through Sh. Jaideep, Deputy Secretary, MEA and one copy be given to the fugitive criminal free of cost.
83. This Court formally acknowledges and expresses its sincere appreciation for the valuable assistance and cooperation provided by Ms. Rekha Pandey, Ld. Special Public Prosecutor and Sh. Arpit Batra, Ld. Counsel for the Fugitive Criminal during Digitally signed the inquiry proceedings. ABHISHEK by ABHISHEK KUMAR KUMAR Date:
2023.10.12 17:34:16 +0530 ( Abhishek Kumar ) ACMM-01/PHC/New Delhi 12.10.2023 Ct Cases 690/21 Page No.35 of 35 Union of India Vs. Jose Inacio Cota