Delhi High Court
Rosline George vs Union Of India And Ors. on 14 December, 1990
Equivalent citations: ILR1991DELHI308
JUDGMENT Leila Seth, J.
(1) Three interesting questions arise for decision in this case : One, whether there is a subsisting treaty between India and the United States of America with regard to extradition : two, whether an Indian citizen can be extradited under the said treaty : and three, who is the Magistrate having jurisdiction to hold an inquiry for this purpose.
(2) Mr. George Kutty Kuncheria, a citizen of India and a chartered accountant worked in the United States of America as Manager in the Banker's Acceptance Department, in the Chase Manhattan Bank, New York. He was there from 1980 and returned to India in February, 1986.
(3) It appears, that he was accused of offences of embezzleipent, fraud, forgery and receipt of stolen money and was indicted on 16th August, 1988 by a Grand Jury under section 88 Cr. 461 filed in the U.S. District Court. On the basis of the said indictment, warrants of arrest were issued by the U.S. District Court, Southern District of New York and the necessary authenticated documents were filed and sent to the Ministry of External Affairs with a request to extradite him. The request was received through the diplomatic representative of the United States Government in India and the Government of India thereafter decided to ask the Additional Chief Metropolitan Magistrate. New Delhi, to hold an inquiry under the provisions of the Extradition Act, 1962 (hereinafter referred to as "the Act"). The order dated 5th December, 1988 is as follows : NO.T./413/11/88 Government of India Ministry of External Affairs (Consular Section) New Delhi, the 5th December, 1988 Order Whereas Shri George Kutty Kuncheria, an Indian national has been accused in the United States, of the offences of embezzlement, fraud by a banker, obtaining money by false pretences, receipt of stolen money and forgery while working with the Chase Manhattan Bank, New York, in 1985. 2. Whereas the affiances cited above are extraditable offences under Article 3 (items 16, 17, 18 and 20) of the UK-USA Extradition Treaty which has been made applicable to India. 3. Whereas these offences are also punishable under the Indian Penal Code. 4. "The Central Government having been satisfied on the basis of material before them that the alleged offences are to be enquired into hereby request under Section 5 of the Extradition Act, 1962 (34 of 1962) Shri Bharat Bhushan, Additional Chief Metropolitan Magistrate, Patiala House, New Delhi to conduct an enquiry into the alleged offences. 5. The letter of request received from the Us Embassy in New Delhi for the extradition of Shri George Kutty Kuncheria together with documents furnished by the Government of Usa in support of their request are enclosed herewith. 6. Shri George Kutty Kuncheria is reported to be residing at one of the following addresses: 1. Palarivattom-Vytilla Road, Survey No. 72/9, Edappally Village, Kerala State, India. 2. 47/857A, Kalavath Road, Palarivattom, Ernakulam, Kerala, India. sd/- (SHASHANK) Joint Secretary (CPV) Shri Bharat Bhushan, Additional Chief Metropolitan Magistrate, Patiala House, New Delhi.
(4) Arrest warrants were issued by the Additional Chief Metropolitan Magistrate, New Delhi and Mr. Kuncheria was arrested on 12th April, 1989 at Ernakulam, Kerala and brought to Central Jail, Tihar, New Delhi, where he is presently lodged.
(5) Mr. Kuncheria filed a writ petition on 6th May, 1989 being Cri. W.P. 314/89. By that petition, he challenged sections 5 and 6 of the Extradition Act as ultra vires the Constitution and prayed for a writ of habeas corpus to quash his detention and set him at liberty. That petition was withdrawn on 2nd November 1989.
(6) The present writ petition was filed by his wife on 26th October, 1989, to strike down the Act as being illegal, ultra vires and unconstitutional; and seeking a declaration to quash the Treaty/order dated 1st April, 1966 between the United States of America and India and the order dated 5th December, 1988 directing an inquiry under section 5 of the Act by the Additional Chief Metropolitan Magistrate, New Delhi as illegal, unconstitutional and void.
(7) On 7th December, 1989 an order was made that the petitioner's husband will not be extradited till 10th January, 1990, but the inquiry under the Act may continue. On 10th January, 1990 this order was confirmed.
(8) Mr. Kuncheria filed various applications between 27th February 1990 and 23rd March, 1990 before the Additional Chief Metropolitan Magistrate, New Delhi for making a reference to the High Court under section 395 of the Code of Criminal Procedure. On 5th April, 1990 the Additional Chief Metropolitan Magistrate, New Delhi dealt with all these applications and dismissed them.
(9) Mr. Kuncheria then filed Cr. M.(M) 873/90 on 26th April, 1990 praying that the Additional Chief Metropolitan Magistrate, New Delhi be directed to refer the issues raised under section 395 of the Code of Criminal Procedure to this Court for determination. The matter came up for hearing before Mr. Justice P. K. Bahri on 30th April, 1990. On being informed that similar questions were being agitated in Cr. W. 692/89, he directed, in the interests of justice, that it be listed along with the present writ petition.
(10) On 2nd May, 1990, Mr. G. L. Sanghi, learned counsel who appeared for Mr. Kuncheria before us and who was already appearing for the petitioner, said that he would not repeat the arguments already made as the points raised are identical. He also said that the proceedings before the Magistrate may continue and that the order passed in Cr. W. 692/89 that Mr. Kuncheria will not be extradited till the disposal of the writ petition was sufficient. We then directed Cr. M. (M) 873/ 90 to be listed for hearing along with this writ petition.
(11) The hearing of the case concluded on 11th July, 1990. On 16th July, 1990, Ms. Lily Thomas, learned counsel for the petitioner moved an application, being Cr. M. 223/90. It was averred in the said application, which was without a supporting affidavit, that counsel in the course of her study had come across documents of the respondent, Ministry of External Affairs which substantiated her submission that on accession to the Treaty on behalf of India, made under Article 14 of the Treaty, the Treaty became applicable to British India only and if the Treaty were to be made applicable to the Indian native States, they being British Protected States, separate accession provided in Article 17 of the Treaty ought to have been resorted to.
(12) On 27th July, 1990 notice of this application was issued. On 10th August, 1990. Ms. Thomas prayed for leave to withdraw this application and stated that is why she had not given notice of the application. But as the application consisted of submissions made by counsel regarding certain documents, we were of the view that a copy of the application be given to counsel for the respondents and only after that an order passed. On 28th September, 1990 when the application was again listed, Ms. Thomas prayed for leave to withdraw this application as she stated that, in fact, she had not come across any documents of the External Affairs Ministry which would substantiate her submissions made herein regarding the Treaty being applicable to British India only. She was then allowed to withdraw her application, which was dismissed as withdrawn.
(13) A brief history and background of the treaty is set out. In 1931 a Treaty of Extradition was entered into between the President of the United States of America and His Majesty the King of Great Britain and the Emperor of India. Article I provides that the High Contracting Parties "engage to deliver up to each other", under certain circumstances and conditions "those persons who, being accused or convicted of any of the crimes or offence" enumerated in Article 3, committed within the jurisdiction of the one Party, who are found within the territory of the other Party. Article 3 provides that extradition "SHALL be reciprocally granted" for the crimes or offences set out in the said Article, Article 14 provides that His Britannic Majesty may accede to the Treaty on behalf of, inter alia, India; such accession to be effected by a notice given to the appropriate diplomatic representative and India will be deemed to be a territory of his Britannic Majesty for the purpose of the Treaty from the date when such notice comes into effect."
(14) It was under provisions of Article 14 that in 1942 the accession was made on behalf of India.
(15) The relevant portion of the order of 23rd February, 1942 is as follows : "ANDWHEREAS, under the provisions of Article 14 of the Treaty signed on the 22nd day of December, 1931, between His Majesty and the President of the United States of America for the mutual extradition of fugitive criminals, the terms whereof were recited in the United States of America (Extradition) Order in Council, 1935, His Majesty was acceded to the said Treaty on behalf of India : And Whereas in accordance with the provisions of Article 18 of the said Treaty, on the coming into force thereof, the above mentioned Conventions and the provisions of Article 10 of the Treaty signed on the 9th August, 1842, between Her late Majesty Queen Victoria and the President of the United States of America will cease to have effect in respect of India on the accession of that territory to the said Treaty : Now, Therefore, His Majesty, by and with the advice of His Privy Council, and in virtue of the authority committed to Him by the said recited Acts, doth order, and it is hereby ordered, as follows : (1) From and after the 9th day of March, 1942, the Extradition Acts 1870-1935, shall apply in respect of India in the case of the United States of America under and in accordance with the said Treaty of the 22nd December, 1931. (2) From and after the 9th day of March, 1942, the said Orders in Council shall be revoked in so far as they relate to India. This Order may be cited as the "United States of America (Extradition; India) Order in Council, 1942."
(16) After Independence the Treaty was continued because the Indian Independence (International Arrangements) Order, 1947 stated : "RIGHTS and obligations under international agreements haying an exclusive territorial application to an area comprised in the Dominion of India will devolve upon that Dominion."
CLAUSE4 of the Order provided that "rights and obligations under all international agreements to which India is a party immediately before the appointed day will devolve" on the Dominion of India.
(17) In 1962 the Act was passed and this Treaty was notified under section 3 of the Act on 1st April, 1966.
(18) As stated, in an affidavit affirmed on 8th January, 1990 by Mr. Jagannathan, Deputy Secretary, Ministry of External Affairs, Government of India, a diplomatic note was sent on 11th July, 1967 by the Embassy of India in Washington to the United States Government and on 22nd July, 1967 the United States Government sent a reply to the said note. The operative part of the note of IIth July, 1967 is as follows : "THE Dominion of India, which came into being on August 15, 1947, became the Republic of India on January 26, 1950 but remains a member of the British Commonwealth of Nations. This change is understood not to have affected any agreements in their application between the United States and India. The Treaty of Extradition between the United States and Great Britain entered into on December 22, 1931 and made applicable to India on March 9, 1942 is therefore considered a good subsisting and binding convention between the United States and India as of this date. A copy of the said Treaty is annexed hereto."
(19) The United States Government acknowledged the said note and was pleased to confirm the acceptance of the Extradition Treaty in force between the United States of America and India.
IT is in this back ground that we have to examine the matter.
(20) Learned counsel for the petitioner contended that the Treaty became inapplicable to Indians when they ceased to be British Subjects in 1947; alternatively, it was urged 'hat the Treaty lapsed and became inapplicable to India when India ceased to be a British possession and became a sovereign Republic in 1950; or in any case, it came to an end in 1962 when the Indian Parliament repealed the U.K. Extradition Act, 1870, which was the statutory sanction for the Treaty, by Section 37 of the Act, and the subsequent notification of the Treaty on 1st April, 1966 was of no effect; it was also urged that the Treaty ceased to be applicable in India in 1976 when the signatories to the original Treaty, United Kingdom and' the United States of America repealed the Treaty. Counsel also argued that accession to the Treaty on behalf of India in 1942 was without the authority of law and contrary to the Government of India Act, 1935. Another submission of counsel was that since Mr. Kuncheria was arrested in Ernakulam, Kerala, the arrest was illegal and unauthorised as the Treaty did not extend to Kerala and applied only to what was British India.
(21) The next contention of counsel was, that assuming the Treaty to be in force, it was not enforceable as the Municipal law applied and in any case the Act and the Treaty did not apply to citizens of India and they are not extraditable persons within the meaning of section 2(f) of the Act.
(22) The last contention of counsel was that the Additional Chief Metropolitan Magistrate, New Delhi was not the appropriate court with regard to the fugitive criminal in view of Section 188 of the Code of Criminal Procedure.
(23) Learned counsel for respondent No. I has refuted the contentions of learned counsel for the petitioner. He also submitted that the writ petition, though indicated as a criminal writ, is in effect a civil writ as what is sought is, a writ of certiorari, because the prayers are only for declaring and striking down the Act. the Treaty and the order directing inquiry as unconstitutional and void. According to counsel it is only a habeas corpus petition, which can be registered as a criminal writ under the Delhi High Court Rules. Consequently, counsel urged that the petition be decided on the basis of the pleadings of parties and not on the basis of additional submissions, in which emphasis has been laid on the fact that. the Extradition Treaty of 1931 between the United Kingdom and the United States of America was not validly acceded to on behalf of India in 1942. Counsel submits that since this fact was not pleaded in the writ petition, it is too late in the day to verbally argue that it was not valid, especially as, accession took place almost 50 years ago (24) Counsel also commented on the conduct of Mr. Kuncheria and said that the Union of India has to examine only one witness before the Magistrate to prove the document which has been placed on record, but on one pretext or another, Mr. Kuncheria is not allowing this evidence to be recorded and is adopting dilatory tactics, so that the proceedings do not continue.
(25) Whether the petition should be shown as a criminal writ or a civil writ, according to us, is not a matter of moment. It is true that this is not a habeas corpus petition. But if the prayer in the writ petition is granted then the extraditable person will be released. Consequently, we do not intend to dilate "in whether this petition should be renumbered and shown as a civil writ petition. We will deal with the matter on merits.
(26) There is no dispute that a request for extradition was received from the United States Government by the Indian Government in 1988 and an inquiry was ordered under the provisions of the Act and Mr. Kuncheria was apprehended on the basis of that request. Consequently, it is necessary to examine whether there was a subsisting treaty between India and the United States of America in 1988 and whether there is any sanction in law to extradite a citizen under that treaty.
(27) Section 2(d)of the Act defines extradition treaty as follows: 'extradition treaty' means a treaty or agreement made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty, or agreement relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India."
(28) A reading of the said provision would indicate that such a treaty is one that is made by India with a foreign States and includes a treaty made before 15th August, 1947 which extends to and is binding on India.
(29) A treaty is in the nature of a contract between two countries. Both the contracting parties have confirmed the acceptance of the treaty as noticed above by exchange of diplomatic notes on 11th July, 1967 and 22nd July, 1967. They have specifically referred to the original Treaty of Extradition dated 22nd December, 1931, the applicability to India on 9th March, 1942 and the fact that it is "a good subsisting and binding convention" between the United States of America and India as of date.
(30) Nothing has been brought on record by the petitioner to indicate that this exchange of notes between the two contracting parties accepting the position of the Treaty has been reversed. Whether an extradition treaty exists is an issue with major foreign policy implications and one which does not easily fall within the sphere of determination of the Judiciary. Consequently, we are of the view that we must give due weight to the position taken by the Executive concerning the validity of the Extradition Treaty.
(31) A similar view was expressed by the United States District Court in Elijah Ephralm Jhirad v. Thomas E. Ferrandina, United States Marshal, Southern District of New York, 355 Federal Supplement 1155 (1173) (1) while dealing with the diplomatic affirmations of 11th July, 1967 and 22nd July, 1967 abovementioned. It opined that though the position of the Executive Branch on the validity of an extradition treaty is persuasive and not conclusive, yet the courts give great weight to the position taken by the Executive Branch, concerning the validity of extradition treaties.
(32) In that case Jhirad, an Indian, was a resident alien in the United States of America and the Indian Government had made a request to the United States of America to extradite him on allegations of embezzlement of large sums of money from a naval fund., One of the arguments on behalf of Jhirad attacking the jurisdiction of the United States Magistrate to determine the appropriateness of extraditing him, was that there was no subsisting treaty. The court held that the Extradition Treaty of 22nd December, 1931 between the United States of America and Great Britain served to support jurisdiction. It noted that by Article 14 the Treaty provided that Great Britain could accede to the Treaty on behalf of certain listed territories amongst which was India. On 9th March, 1942 the Treaty was made effective to India. It came to the conclusion that the Treaty of 1931 was valid and continuing between the Governments of India and the United States of America and the Magistrate had jurisdiction to hear the evidence against Jhirad.
(33) It noted that as with much of international law, the question of treaty succession is muddled. Yet, with reference to emerging nations the weight of authority supports the view that new nations inherit the treaty obligations of the former colonies. As part of the creation of the Dominion of India, the Indian Government agreed to take an assignment of all treaties signed on its behalf by Great Britain. Therefore, the Treaty of 1931 was in effect in 1946. The subsequent change to a Republic was only evolutionary in nature and the Treaty would certainly survive. Applying the principle of continuity, it held that it is reasonable to hold that the Republic of India inherited these treaties.
(34) It was also of the view that the actions of the two countries involved regarding the extradition treaty are of great importance in deciding the validity of the treaty. Both the Governments had unequivocally been relying on the validity of the Treaty of 1931 and there had been extraditions from both the countries in the past on that basis.
(35) Consequently, the Court held that taking into consideration the advice of the Executive Department, the actions of both the Governments and the principle of continuity, the Treaty of 1931 is validly existing between India and the United States of America.
WE are inclined to accept this view.
(36) The decision of the Supreme Court in The State of Madras v. G. C. Menon and another, relied on by learned counsel for the petitioner is clearly distinguishable. In that case the Supreme Court held that the Act of the British Parliament i.e. the Fugitive Offenders Act 1881 which dealt with conditions for extradition among British Possessions, was no longer valid after the creation of the Republic of India in 1950.
(37) The basic feature of the Fugitive Offenders Act was to simplify procedures among British Possessions. The Court expressed the view that the provisions of the Fugitive Offenders Act were concerned with British Possessions which were contiguous to one another, and between whom there was frequent inter-communication, and were treated for purposes of the said Act as one integrated territory. After Independence and the Constitution came into force when India became a Sovereign Democratic Republic, the situation completely changed and India could by no stretch of imagination be described as a British Possession, therefore, the Court held that it could not be grouped amongst those Possessions and thereafter any extradition could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government. Consequently, the whole basis of the applicability of the Fugitive Offenders Act 1881 had gone. No Order-in-Council could be made to group it with other British Possessions.
(38) This is not the position with the Treaty of 1931. This is an external act whereby India as an international country gained rights and obligations with another international country.
(39) It is interesting to note that in State of West Bengal and another v. Jugal Kishore More and another, the Supreme Court noticed the decision in Menon's case (supra) and opined that if the question were a live question, it would have thought it necessary to refer the case to a larger Bench for considering the true effect of that judgment. But since the Extradition Act 1962 (Act 34 of.1962) had repealed, inter alia, the Extradition Act of 1870 as also the Fugitive Offenders Act, 1881, the question of extradition by India of fugitive offenders under those Acts would not arise, consequently, it was not necessary to do so.
(40) The contention of learned counsel for the petitioner, that in view of Section 3(3)(b) of the Act, a notified order cannot remain in force longer than the treaty, and consequently when Great Britain and the United States of America entered into a new treaty in 1976 and repealed the Treaty of 1931 between India and the United States of America, the treaty did not survive, does not appear to have much force.
(41) It is no doubt true that the accession in 1942 was on the basis of the Treaty of 1931. But after India became a Sovereign State and the Act of 1962 was passed and the Treaty consequently notified on 1st April, 1966 under that Act, the Treaty became a Treaty between the United States of America and Sovereign India. That this Treaty was treated as subsisting, is clear from the diplomatic notes dated 11th July, 1967 and 22nd July, 1967 exchanged between India as a Sovereign State and the United States of America. The subsequent repeal of the Treaty of 22nd December, 1931 by Great Britain and the United States of America in 1976 will not effect the position with regard to India and the United States of America.
(42) The words in section 3(3)(b) that the notified order "shall not remain in force for any period longer than that treaty", must mean that if the treaty is no longer existing, the notified order can have no effect. But it is only the contracting parties that can withdraw the treaty unless there is a period prescribed. Since there is no period prescribed and the rights and obligations under international agreements having devolved upon India in view of the Indian Independence (International Arrangements) Order 1947, and the Treaty having been recognised under section 2(d) of the Act, it would appear to us that the notified order under section 3 survived after 1976.
(43) The contention of counsel that the British Crown through its representative could not accede to the Treaty on behalf of India after the Government of India Act 1935 does not appear to have any merit. Even after the coming into force of the Act of 1935, foreign affairs continued to be under the exclusive control of the Governor General. It was a reserved subject on which the Crown had a total control. The federal part of the Government of India Act 1935 never came into force. Even otherwise under sections 8 and 11 of the 1935 Act, foreign affairs was a reserved subject within the domain of the Governor General.
(44) The argument of counsel for the petitioner that the Treaty will not apply to him as he was born in Kerala and in any case it cannot be implemented in Kerala, which is an erstwhile Indian native State, does not appear to have much force.
(45) The word India' has been defined in section 3(28) of the General Clauses Act, 1897. The relevant portion reads : "(C)as respects any period after the commencement of the Constitution, all territories for the time being comprised in the territory of India".
(46) From the record it is not clear when the petitioner was born, but admittedly he was born in 1950. It appears to us that even if a person was born or is residing in an erstwhile princely state, since that princely state is now a part of the territory of India, then for the purposes of section 3(d) of the Act, he and the territory would be covered by the Extradition Treaty made by India. We are concerned with the position of India after the commencement of the Constitution and certainly the territory of Kerala is a part of India.
(47) Further as above noticed, India has categorically stated in 1967, in a diplomatic note addressed to the United States of America which has been affirmed by them that the Treaty entered on 22nd December, 1931 and made applicable to India on 9th March; 1942 is a good subsisting and binding convention. We have no doubt that it is binding and enforceable in Kerala especially after the Treaty has been notified on 1st April, 1966.
(48) Counsel for the petitioner had next contended that the Treaty is not enforceable as this is a matter of municipal laws. Without dilating on this matter at length, it would appear to us that this argument may have had some force with regard to the period 5th January, 1963, when the Act came into force, to 1st April, 1966, when the Treaty was notified under the Act, but it has no force at the present stage and we hold that the Treaty is not only binding between the contracting parties but enforceable under the provisions of the Act.
(49) The question whether a citizen is extraditable is the next point in issue. What is extradition ? The dictionary meaning is that it is the delivering up of an accused person by one government to a foreign government for trial or punishment. The Supreme Court in Jugal Kishore More's case (supra) has referred to it as the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State.
(50) The principles enunciated by the Supreme Court in the said decision are that the surrender of a person within the State to another State whether a citizen or an alien, is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interests of civilized communities that crimes should not go unpunished and it is on that account that it is recognised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. The law relating to extradition between independent States is based on treaties, but the law has national and international operation. It governs international relationship between sovereign States, which is clearly secured by treaty obligations.
(51) But whether an offender should be handed-over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of international commitments of the State, the procedure to be followed by the Court in deciding whether extradition should be granted and on what terms, is determined by the municipal law.
(52) The principle, that a citizen can be extradited at the request of a contracting party is accepted as is apparent from American Jurisprudence, Second Edition, Volume 31 page 934, which reads as follows : "A nation has no right to refuse extradition of its citizens to foreign countries which is within the terms of treaty stipulations. And where the United States enters into a treaty to surrender to another country, all persons accused of the commission of a crime in that country who seek an asylum within the borders of the United States, the word "person", without qualification, includes citizens and aliens alike under such a general designation, the: executive may not withhold the surrender of an American citizen on requisition by the other contracting party".
(53) In Halsbury's Law of England (Fourth Edition) Vol. 18, para 211, page 84, it is stated that unless "the relevant treaty or Order in Council contains express provision to the contrary, a fugitive criminal's amenability to extradition is not effected by his nationality; in particular, British subjects are in this respect in a position no different to that of aliens". It goes on to add that "Where a treaty reserves an absolute discretion as to granting or refusing the surrender of their own subjects by the contracting parties, the discretion in the United Kingdom rests with the Secretary of State".
(54) In the case of Jugal Kishore More (supra) Shah, J while speaking for the Court and dealing with extradition observed as above noticed, "that surrender of a person within the State to another State, whether a citizen or an alien is a political act done in pursuance of a treaty or an arrangement ad hoc".
(55) Consequently, it would appear to us that whether a citizen can be extradited is a matter pertaining to the particular extradition treaty. The contracting parties are bound by the terms of the agreement. If the treaty provides that citizens of contracting parties will not be extradited, then certainly a citizen cannot be extradited. But if the treaty provides for extradition of fugitive criminals or uses the word "persons" in the treaty, then there is no definitive clause in the contract prohibiting extradition of citizens. In the present Treaty the word "person" has been used in the various clauses. Consequently, it would appear that the term "person" in the Treaty would include citizen as well.
(56) The decision in Lewis J. Valentine v. United States of America on the relation of B. Coles Neidecker and others, (299 U.S. 3-18 1936 = 81 Law Ed. 5-13 (4) is not relevant as it was based on the words of the particular treaty under consideration in that case.
(57) It is, therefore, clear that in terms of the present treaty a citizen is not excluded and is amenable to extradition jurisdiction.
(58) We also do not accept the other limb of the contention of counsel, that Mr. Kuncheria, who is a citizen of India, cannot be extradited, because he can be prosecuted in India for the same offences in view of section 4 of the Indian Penal Code read with section 188 of the Code of Criminal Procedure.
(59) Section 4 of the Indian Penal Code provides that the Code may also apply to any offence committed by any citizen of India in any place without and beyond India. Consequently, it is urged that aliens are extraditable and citizens are not. Section 4 of the Indian Penal Code is an exception to the general rule that a person should be tried and punished in the place and in accordance with the laws of the place where he commits the crime. Normally the place of the crime is the best place for trial as the evidence etc. is likely to be more easily available there.
(60) The explanation to Section 4 provides that "In this section the word 'offence' includes every act committed outside India which, if committed in India, would punishable under this Code".
(61) Section 188 of the Code of Criminal Procedure provides that if a citizen in India commits an offence outside India "he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found".
(62) It is always desirable that a crime by a citizen should not go unpunished. Therefore, if an act is committed by a citizen of India outside the territory of India and is not an offence in the country where it is committed, but is an offence under the Indian law, the citizen can be tried and punished in India, in view of section 4 of the Indian Penal Code. For example, if adultery is committed in England by a citizen of India and is not an offence in England, but is a crime in India then the Indian citizen can be tried in India for adultery in view of section 4. Such an offence committed by an Indian citizen outside India, i.e. in England, is not an extraditable offence and can only be tried and punished in India. But an offence com- mitted by an Indian citizen outside India which is an extraditable offence can be tried and punished in India, if no request for extradition is received.
(63) But in cases where extradition is sought and international relationships and obligations require that the person be extradited for facing trial and punishment in the place where he committed the crime, section 4 of the Indian Penal Code and section 188 of the Code of Criminal Procedure cannot override the provisions of the Act and the Treaty. The Extradition Act is a special law and extradition treaties are special obligations between one country and another.
(64) Section 2(f) of the Act defines fugitive criminals as follows : "FUGITIVEcriminal' means an individual who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign State or a commonwealth country and is, or is suspected to be, in some part of India".
THE term 'individual' in section 2(f) of the Act does not exclude citizen. If the Extradition Act or the treaty specifically limited fugitive criminal to a non citizen, then the argument of counsel for the petitioner might have had some force.
(65) The next argument of learned counsel for the petitioner, that it is unreasonable and invalid to order an inquiry to be held at Delhi when Mr. Kuacheria was apprehended at Emakulam, Kerala, is based on the words of section 5 of the Act. Section 5 of the Act provides, "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".
(66) The argument is that the words "any Magistrate" must mean the Magistrate where the accused is "found", in view of the provisions of section 5 of the Act read with section 188 of the Code of Criminal Procedure.
(67) This appears to be erroneous reading of the section. The inquiry before the Magistrate is only with regard to a prima facie view regarding the requisition of the foreign State.
(68) The procedure followed in cases of extradition is indicated in Jugal Kishore More's case (supra). In paragraph 7 it is observed : "SANCTION behind an order of extradition is, therefore, the international commitment of the State under which the Court functions, but Courts jealously seek to protect the right of the individual by insisting. upon strict compliance with the conditions precedent to surrender. The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge. Requisition for surrender is not the function of the Courts but of the State. A warrant issued by a Court for an offence committed in a country from its very nature has no extra-territorial operation. It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court. By making a requisition in pursuance of a warrant issued by a Court of a State to another State for assistance in securing the presence of the offender, the warrant is not invested with extra-territorial operation. If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue of an independent warrant or endorsement or authentication of warrant of the Court which issued it. By endorsement or author notification of a warrant the country in which an offender has taken refuge signifies its willingness to lend its assistance in implementation of the treaties or international commitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or an endorsement is brought before the Court of the country to which the requisition is made and the Court holds an inquiry to determine whether the offender may be extradited. International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after inquiry is of the view that the offender should be surrendered".
(69) Section 2(c)(i) defines extradition offence in relation to a foreign treaty State. It provides : "IN relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State."
SECTIONS 2(e) defines foreign State as follows : "'foreign State' means any State outside India other than a Commonwealth country, and includes every constituent part, colony or dependency of such State."
SECTION 2(g) defines Magistrate and reads : "'Magistrate' means a Magistrate of the first class or a Presidency Magistrate."
(70) In this case, as above noticed, the Government of India received the request for extradition from the Government of the United States of America and it decided to issue an order for magisterial inquiry to the Additional Chief Metropolitan Magistrate, New Delhi. It is possible that this was done either because the Metropolitan Magistrates in New Delhi have more experience in dealing with extradition cases or because the Central Government is located in Delhi. After all in an extradition inquiry, there is no place of trial in India.
(71) In any case, we are of the view that the Government can issue an order for inquiry to any Magistrate in India. The only qualification being that the Magistrate holding the inquiry should have jurisdictional power making him competent to inquire into the nature of the extradition offence involved. The essence .of the matter is that it is the nature of the crime which determines the status of the Magistrate to be selected. The Magistrate is not determined by the place where the fugitive criminal is found, but the experience and competence and qualifications of the Magistrate who is to hold the inquiry. It is not disputed that the Additional Chief Metropolitan Magistrate, New Delhi was qualified to inquire into the extraditable offence. The only argument of counsel on this aspect was that he was not a Magistrate having jurisdiction over the area where Mr. Kuncheria was found and apprehended.
(72) We are supported in our view by a judgment of the Full Bench of the Calcutta High Court in re : Rudolph Stallmann alias Rudolph Von Konig, 1911 Cri. L.J. 505. (5) Mr. Justice Woodroffe dealing with similar provisions contained in the Indian Extradition Act, 1903 opined as follows : "THIRDLY,it is argued that the Magistrate who made the inquiry and arrest under section 3 was without Jurisdiction as that section does not (it is contended) empower the Government to order a Magistrate to inquire and arrest where the fugitive is a person not within the local limits of his jurisdiction. In the present case, the petitioner was at and arrested at Calcutta by the Magistrate of Alipore who was ordered to make the inquiry. I think, however, that this is an erroneous reading of that section. The Government may issue its order to any Magistrate provided that he is one who has jurisdiction to inquire into the crime of the nature of that for which extradition is sought. It is a provision in favor of the fugitive ensuring to him a right to such competency and efficiency in the Magistrate as a subject would have in the case of a crime committed in this country. The words in section 3(1) "if it had been an offence committed within the local limits of his jurisdiction" which have been relied on are not in conflict with this conclusion. They are necessary because no Magistrate is empowered to try offences committed in this country without reference to the locality where the offence is committed. This objection falls though I desire to express the opinion that it would have been better if the Chief Presidency Magistrate had been directed to inquire. In that there could have been no opportunity for the contention which has been raised before us that Alipore was selected as the venue to oust this Court's jurisdiction under section 491 of the Code. It is also advisable that one particular Magistrate may, as in England, be directed to inquire into these matters so that there may be an opportunity of gaining experience therein".
(73) Apart from these submissions, it was also urged that since Mr. Kuncheria was arrested on 12th April, 1989 and no evidence was produced within two months of that date, he should have been set at liberty forthwith and the inquiry closed as time barred. We do no find force in this contention. Article 11 of the Treaty reads : "IF sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, or within such further time as the High Contracting Party applied to, or the proper tribunal of such High Contracting Party. shall direct, the fugitive shall be set at liberty."
FROM a reading of the Article, it is clear that this refers to the evidence for extradition to be produced by the High Contracting Party that request for the extradition. In the present case, it appears that the evidence against the fugitive criminal was received along with the request from the United States Government through its diplomatic agent in India. In any case, the period of two months is not a final period and "further time" can be grant.
(74) The fugitive criminal's conduct in not allowing the inquiry to proceed on one pretext or another is also noticed. He even moved an application before the Magistrate praying that the Government officials be disallowed from being present as he felt nervous when he saw them. Counsel for respondent No. I states that only one witness is to be examined so that documents on record are proved, but Mr. Kuncheria is just not allowing this to be done.
(75) On the question of constitutionality of the Act, the only submission made was that since under section 31(e) of the Act the fugitive criminal can be surrendered to the foreign State at any time after fifteen days from the date of the order of committal to prison by the Magistrate, he doesnt 't get sufficient time to move the Court against an improper exercise of decision by the Central Government and this is violative of Articles 14 and 21 of the Constitution of India.
(76) We are not inclined to accept this contention. Extradition proceedings are by their very nature partly judicial and partly administrative. The judicial part, i.e. the inquiry before the Magistrate is sandwiched between the two administrative actions. The entertainment of the request received by the foreign State and the consideration thereof as to whether to issue an order to a Magistrate to inquire into the offence is an administrative decision of the Government of India. Thereafter, it is the Magistrate who issues or endorses the warrant for the arrest of the fugitive criminal. When the fugitive is brought before the Magistrate, he holds the inquiry and if he is of the opinion that no prima facie case is made out, he can discharge the fugitive criminal; on the other hand, if he is of the view that a prima facie case is made out, then he will make a report and forward the same with the written statement, if any; of the fugitive criminal to the Central Government for its consideration. After the report etc. is received, it is again a matter pertaining to the political will of the State, whether to pass the order of extradition. This is again an administrative act. The fugitive criminal is certainly entitled to a proper judicial inquiry and this is provided for in section 7 of the Act. An impartial scrutiny is his right, but once this takes place, the decision whether to pass an order of extradition depends on the Government of India. It is hardly legitimate to say that the discretion vested in the Government of India will be examined "with an evil eye and an unequal hand". If the decision is patently arbitrary or malafide, then the fugitive criminal has recourse to law.
(77) It is well settled that the possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The validity of a statute is not to be determined by its application to particular cases. It will have to be determined on the basis of its provisions and the ambit of its operation as reasonably construed. (See : The Collector of Customs, Madras and others v. Nathella Sampathu Chetty and another, ) (6).
(78) Mr. Sanghi, learned counsel for Mr. Kuncheria, contended that the order of the Magistrate dated 5th April, 1990 refusing to refer the matter under Section 395 of the Code of Criminal Procedure is illegal.
(79) MR.V.P.SINGH, learned counsel for the respondents urged that Section 395 of the Code of Criminal Procedure has no application to a Magistrate who is holding an inquiry under Section 5 of the Act. The section only applies where a Magistrate has to decide a case and in order to decide a case he deems it necessary to refer the question of law to the High Court.
(80) In paragraph 9 of his order dated 5th April, 1990 the Additional Chief Metropolitan Magistrate, New Delhi, on an interpretation of Section 395 of the Code of Criminal Procedure, has come to the conclusion that being an inquiry court under Section 5 of the Extradition Act, 1962 he has a very limited jurisdiction and is not empowered to entertain any such prayer as is made in the various applications for reference to the High Court.
(81) Since we have heard arguments on all the points raised, the question whether the refusal of the Magistrate to refer the legal points raised under section 395 of the Code of Criminal Procedure is justified, is essentially academic. Consequently, we do not propose to dilate on the various contentions raised by learned counsel for Mr. Kuncheria on this aspect.
IN the result, the writ petition and Cri. M. (M) 873/90 are dismissed. However, in the circumstances, we make no order as to costs.