Delhi High Court
Maninder Pal Singh Kohli vs The Union Of India (Uoi) And Ors. on 8 July, 2005
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT B.C. Patel, C.J.
CM 8067/05 Allowed subject to just exceptions.
WP(C) No. 10993/05 and CM 8066/05
1. The petitioner seeks to challenge the constitutional validity of the provisions of Section 5 of the Extradition Act, 1962 (hereinafter referred to as the Act). A further consequential relief is sought seeking quashing of the order dated 6.9.04 (Annexure P/1) appointing Additional Chief Metropolitan Magistrate, Patiala House, New Delhi to inquire into the extradition request received from the UK in respect of the petitioner. The appointment has been made to inquire into the extradition request to establish the extradibility of the offences involved by determining whether a prima face case exists in terms of the said Act and the extradition treaty between India and UK.
2. The petitioner is detained in Tihar Jail, New Delhi and the case of defense testimonies is to begin on the next date of hearing. It may be pointed out that according to the learned counsel for the respondent proceedings have been held almost for 40 sittings where the witnesses of the authorities have already been cross examined.
3. Learned counsel for the petitioner contends by reference to Article 50 of the Constitution of India that there has to be separation of the judiciary from the executive. In this behalf reference has also been made to the provisions of Article 234 and 25 of the Constitution of India. Article 234 deals with the appointment of persons other than the District Judges to the judicial service. The appointment has to be made after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests the control over the district courts and subordinate courts in the High Court including in respect of posting and promotions. It is in view of these provisions it is submitted that the rovisions of Section 5 of the said Act are ultra vires the Constitution of India since it permits the Central Government to issue an order to any Magistrate to inquire into the offences. The contention thus is that the provision of this Section is contrary to the constitutional scheme. Section 5 reads as under:-
"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."
4. The judgment of the Division Bench of this court in the case of Smt. Nina Pillai and Ors. v. Union of India and Ors. 1997 Crl. L. J. 2358 has been brought to our notice which upheld the provision of Section 5 of the said Act. This judgment is however sought to be distinguished by learned counsel for the petitioner on the ground that the particular aspect in relation to the challenge to the provision of Section 5 of the Act did not form subject matter of adjudication before the Division Bench.
5. We are unable to accept the contention of the learned counsel for the petitioner. It has to be kept in mind that the alleged offence has been committed in UK and the petitioner is sought to be extradited from this country to face trial in UK. The said Act provides for consolidation and amendment to the law relating to the extradition of fugitive criminals and Section 5 is a salutary provision which acts as a safeguard. It has to be noticed that a Magisterial inquiry conducted in pursuance of request or extradition is not a trial and it decides only whether prima facie case is made out or not. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable ground which warrants fugitive criminal being sent to the demanding State. This position has been made specifically clear in view of the judgment in Nina Pillai (supra). Thus the inquiry has to be made within the said four corners to arrive at a prima facie conclusion whether the case is made out or not.
6. Another aspect to be kept in mind, as rightly pointed out by the learned counsel for the respondent, is that no particular Magistrate by name is appointed by the Government of India nor has such officer been appointed in terms of the impugned order. The appointment is by designation. Thus judicial officer posted to the particular post will have to conduct the inquiry. As to which officer is holding the post is determined by the High Court.
7. In view of the aforesaid we find no merit in either of the challenge to the provision of Section 5 of the said Act or to the impugned order based on the said challenge in view of the decision in Nina Pillai's case (supra) and the views expressed by us ereinabove.
8. Dismissed.