Delhi High Court
Kamlesh Babulal Aggarwal vs Union Of India (Uoi) And Anr. on 1 May, 2008
Author: Rajiv Sahai Endlaw
Bench: Vikramajit Sen, Rajiv Sahai Endlaw
JUDGMENT Rajiv Sahai Endlaw, J.
1. This petition was initially instituted challenging the order dated 30.10.2002 of the Additional Chief Metropolitan Magistrate, New Delhi (ACMM) under Section 7 of the Extradition Act, 1962 (hereinafter called as the Act). The ACMM held that there existed a prima facie case in support of the requisition and recommended to the Central Government that the petitioner be ordered to be extradited to the requisitioning foreign state i.e., USA. This Court, while issuing notice of the petition, had on 21.11.2002 directed that the petitioner shall not be extradited. Vide interim order dated 15.10.2004 in the petition, it was noted that though the order dated 21.11.2002 had only restrained extradition of the petitioner but the Central Government, though not so restrained, had not acted upon the recommendation of the ACMM and had not passed any order on the request for extradition. This Court, vide order dated 15.10.2004, ordered that the petitioner may submit to the Central Government a written statement within the meaning of Section 7 (4) of the Act within two weeks and directed the Central Government to pass an order in terms of Section 8 of the Act. It was further ordered that the order, if any, passed by the Central Government under Section 8 of the Act of surrender of the petitioner to the foreign State shall not be executed without the permission of the court. The petitioner submitted a written statement dated 28.10.2004 through his advocate to the Central Government. The Government of India vide its communication dated 11.01.2005 to the Advocate for the petitioner intimated that the matter had been examined and the Government did not find reasonable grounds to accept the written statement of the petitioner and that the Government had taken a decision to surrender the petitioner to the US Authorities pursuant to the request for extradition.
2. The petitioner, thereafter, amended the petition to incorporate therein the challenge to the decision of the Central Government to extradite the petitioner.
3. The extradition of the petitioner was sought pursuant to the indictment of the petitioner for first degree murder by the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida. The indictment charged the petitioner for violation of the Florida Statutes by causing death of Ms Deepa Aggarwal.
4. From the documents enclosed to the request for extradition, it is the case against the petitioner, that the petitioner at least since 1997 was studying in USA; the deceased Ms Deepa Aggarwal was stated to be distantly related to the petitioner; the petitioner was stated to have come to India for 5 weeks and had returned to the US on 08.07.1999. The deceased Ms Deepa Aggarwal was found dead on 20.07.1999 with the injuries as mentioned in the indictment and was reported to have died in the night intervening 10th and 11th July, 1999. It is further the case against the petitioner that the petitioner left USA on 12th July, 1999 for India, i.e., within about 4 days of his return to USA and on a one way ticket and after selling his valuables there i.e., car, computer, hard disk etc at a throw away price. It is further the case against the petitioner that the petitioner had been residing along with Ms Deepa Aggarwal in her apartment and there were investigation from the neighbours to the effect that there were frequent fights between the petitioner and the deceased Deepa Aggarwal.
5. The learned ACMM recorded the statement of Mr Rupin Sharma, Under Secretary (Consular) of CPV Division in Ministry of External Affairs. The petitioner chose not to lead any evidence. It was / is not in dispute that the offence of which the petitioner had been indicted was not of political character and is an extradition offence.
6. Though the letter dated 11.01.2005 (supra) of the Central Government does not state any reason but we have examined the files of the Central Government submitted after the conclusion of the hearing Along with an affidavit of Shri P.M. Meena, Joint Secretary (Consular) Ministry of External Affairs, Government of India and find that the Minister of State, after going through the file, had considered whether exception should be given for the reason of (i) the offence being trivial or (ii) for the reason of malafide or (iii) for political reasons, and found no case for any of the exceptions to be carved out and accordingly ordered the extradition of the petitioner.
7. The foremost contention of the learned Senior counsel for the petitioner was with respect to the scope of inquiry under Section 7 of the Act; he urged that Section 7 of the Act in Chapter II of the Act has to be read in contradistinction with Section 17 of the Act in Chapter III of the Act; it is the submission that admittedly the request in the present case is under Chapter II of the Act - This position is not controverter by the Union of India also. The petitioner submits that while the inquiry by the Magistrate under Section 17 of the Act is limited to (i) as to whether the warrant received from the requesting country is duly authenticated or not and (ii) whether the offence of which the fugitive is accused or convicted is or is not an extradition offence, the inquiry under Section 7 of the Act has to encompass whether a prima facie case is made out or not. Reliance in this regard is also placed on the expression "including any evidence..." in Section 7(2) of the Act. It is the submission of the learned Senior Counsel for the petitioner that the the inquiry under Section 7 of the Act has to be such as to find out whether a case of having committed an offence for which extradition is sought was committed by the fugitive or not. It was submitted that this Court in Nina Pillai case 65(1997) DLT 487 (DB) has wrongly presumed in para 11 of the judgment that:
It is now fairly well settled that the Magisterial inquiry which is conducted pursuant to the request for extradition is not a trial. The said inquiry decides nothing about innocence or guilt of the fugitive criminal. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable grounds which warrant the fugitive criminal being sent to the demanding State. The jurisdiction is limited to the former part of the request and does not concern itself with the merits of the trial....
8. He submitted that it was not so laid down in any of the earlier judgments. He further submitted that the subsequent judgment in Darshan Kumar case 73 (1998) DLT 113 (DB) merely reiterated para 11 of Nina Pillai case and again itself did not lay down any law as to the nature of the inquiry under Section 7 of the Act. It was argued that the said two judgments were not binding precedent. Darshan Kumar case was also sought to be distinguished on the ground that the fugitive therein had led evidence before the Magistrate, while in this case petitioner has not led any evidence. The counsel further submitted that both of the said judgments did not deal with the difference between Sections 7 and 17 of the Act. It is further submitted that the evidence on the basis of which the petitioner was indicted, did not make out a prima facie case of the guilt of the petitioner for the offence for which he was indicted.
9. The petitioner also relied upon Schtraks case 1962 (3) ALL.E.R. 529; para 229 of Volume 18, 4th Edition of Halsbury's Laws of England and Gulshan Kumar Case and (2001) 4 All. E.R. 168. In Schtraks case Lord Reid observed : that the proper test for the Magistrate to apply was whether if the evidence stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty." In Gulshan Kumar case, extradition of Nadeem on request of Indian Government was declined by the English Court inter alia on the ground:
65. The cumulative effect of all these circumstances causes us to infer that the accusation of murder and conspiracy made against this applicant is not made in good faith and in the interests of justice.
66. Having reached this conclusion we are also satisfied that it would not be fair and would be unjust to return the applicant, because of the appearance of misbehavior by the police in pursuing their inquires and the significant risk that the activities surrounding that misbehavior have so tainted the evidence as to render a fair trial impossible.
The Senior counsel for the petitioner further urged that the ACMM erred in construing Section 10 of the Act and consequently, erred in reading as evidence material which was not admissible in evidence. It is the submission that Section 10 merely permitted receiving the documents as evidence without requiring the author thereof to present himself and prove the same but did not permit automatic admission into evidence of the said material. Reliance in this regard was placed on R v. Governor of Pentonville Prison (1979) 2 All E.R. 1094 (1099).
10. The Apex Court in Rosiline George case negatived the challenge to the existence of the extradition treaty between India and USA. The counsel for the petitioner also rightly did not challenge the same.
11. We do not feel that for the purposes of determining the ambit of the inquiry under Section 7 of the Act any help is to be taken from Section 17 of the Act. Section 17 of the Act, which admittedly is not applicable in the present case, limits the inquiry to the authentication of the warrant and as to whether the offence is an extradition offence or not. On the contrary, Section 7 requires the Magistrate to inquire whether a prima facie case is made out in support of the requisition of the foreign State. Thus, the Magistrate while holding an inquiry under Section 7 of the Act is entitled to take evidence on aspects other than as to whether the offence is of political character or not and / or is an extradition offence or not. The other evidence naturally would be as to the existence of a prima facie case.
12. "Prima facie" has a definite connotation in law. It is defined as "at first sight" or "accepted as so until proved otherwise" or "on face of it", or "so far as it can be judged from the first disclosure." The prima facie case will prevail until contradicted and overcome by other evidence. While determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence laid it was possible to arrive at the conclusion in question.
13. The petitioner, as aforesaid, while referring to the Schtrak case relied upon a passage in the judgment of Lord Reid only. In the judgment of Lord Hodson it is held that committal under the Extradition Act is on the same footing as committal for trial by a Magistrate in an ordinary case.
14. The Division Bench of this Court in Charles Sobhraj case (29) (1986) DLT 410 also held that the entire jurisdiction under the Act vested in the Magistrate is restricted to find out whether there is a prima facie case and that there is no further power vested in the Magistrate. It is perhaps for this reason that the Division Bench of this Court in Nina Pillai case held that the position was fairly well settled.
15. In our opinion, the power of the Magistrate in conducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure, 1973. At the stage of the framing of charge even a strong suspicion founded upon material and presumptive opinion would enable the court in framing a charge against the accused. At that stage, the court possess wider discretion in the exercise of which it can determine the question whether the material on record is such on the basis of which a conviction can be said reasonably to be possible. The requirement of Section 228 also is of a prima facie case. Sufficiency of evidence resulting into conviction is not to be seen at that stage and which will be seen by the trial court. At that stage meticulous consideration of materials is uncalled for. The persons who are not examined by the original investigating agency may be examined by another investigating agency to make the investigation more effective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not. At the stage of framing of charge, evidence is not to be weighed. The court is not to hold an elaborate inquiry at that stage.
16. Section 7(3) and (4) of the Act in fact require a prima facie case only "in support of requisition". Reading the said provision Along with Section 29, we feel that the ambit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not being targeted for extraneous reasons.
17. This, according to us, is the test to be applied in conducting an inquiry under Section 7 of the Act and this is the ambit and scope of the inquiry and no more.
18. The counsel for the respondent has, besides relying upon Nina Pillai case and Darshan Kumar case also relied upon Sarabjit 'Rick' case 2007 (93) DRJ 712 (DB) and Maninder Pal Singh Kohli case 142 (2007) DLT 209 (DB) and 129 (2006) DLT 185.
19. In Sarabjit 'Rick' Singh case another Division Bench of this Court, besides relying upon Nina Pillai case, in para 19 of the judgment further held that holding of an inquiry under Section 5 of the Act is only an enabling provision and does not cast an obligation on the Government to order an inquiry in every case of a request to extradite a person. Thus, the request for extradition could be honoured even without a judicial scrutiny of the same. The Division Bench thus held that when the Government opted to ask for a Magisterial inquiry, its scope is only limited to find the existence of a prima facie case for extradition and that for such inquiry only the documents enclosed with the request for extradition and the statements of the investigating officers may suffice.
20. Again in Maninder Pal Singh Kohli case the grievance before yet another Division Bench was only that the findings recorded by the Extradition Magistrate under Section 7(4) of the Act far from being prima facie were conclusive. This Court nevertheless on interpretation of the law held that any finding under Section 7(4) of the Act necessarily has to be prima facie and could never be conclusive. Earlier a Single Judge of this Court also on an earlier petition of the same Maninder Pal Singh Kohli had also held that the object of extradition proceedings is mainly to find out if the request made by the foreign State has a sound basis and material which would justify the extradition of the person sought to be extradited. It was further held that the inquiry before the Magistrate in extradition proceedings cannot be converted into trial of the offence for which the extradition of the fugitive is sought. At the inquiry the Magistrate has only to find out if based on the evidence and material produced in support of the requisition of foreign State and that produced by the fugitive, a prima facie case is made out in support of the requisition and nothing more.
21. We do not find any merit in the other submission also of the petitioner of the ACMM having misconstrued Section 10 of the Act. The Apex Court in the Rosiline George case itself has held that the documents certified and authenticated as required under Section 10 of the Act are eligible to be treated and received as evidence and that the said documents when placed on record of the Magistrate are part of the evidence in support of extradition. The relevancy of weightage to be given to the said evidence is beyond the scope of an inquiry under Section 7 of the Act.
22. The ACMM, in the present case, has, after a detailed discussion, held that on the basis of the said documents, a prima facie case was made out.
23. This Court, exercising the writ jurisdiction, cannot substitute its opinion for the opinion of the ACMM. In fact, the Division Bench of this Court in Charles Sobhraj case has also held that the High Court in writ jurisdiction could not re-appreciate the evidence and could only examine whether the view taken by the Magistrate was a possible view or not. In a writ petition, this Court is concerned only with the decision making process and as to whether the view formed by the Magistrate could not have been formed by any reasonable thinking person at all. We have been taken through the material on record and are unable to accept that the view of the existence of the prima facie case taken by the ACMM could not have been taken by any reasonable person.
24. The Senior counsel for the petitioner has relied upon:
(1) The photograph of the petitioner though available to the investigating agency was not shown to the neighbours from whom investigation was done and as such the identify of the petitioner as an accused had not been established.
(2) That the case made out against the petitioner was not born out from the statements of the neighbours. While the neighbour Joan Bell had stated that she heard noises from the apartment of the deceased Deepa Aggarwal at 5.30 in the morning and had heard a door bang thereafter, the prosecution case was of the deceased having been meticulously packed in a polythene bag and having been put in the cardboard box and which was not possible in a huff.
(3) That there was inconsistency in the statement of the two witnesses as to the time of the altercation between the deceased and the petitioner.
(4) that there was inconsistency in the statement of Mr Rahul Jindal who had visited the apartment of the petitioner a day prior to the discovery of the body of the deceased and the evidence at the time of the discovery of the body; Mr Rahul Jindal did not mention any stench in the apartment as noticed on the next day.
to urge that no prima facie case is made out.
25. However, the present is not a stage where the evidence/material has to be analysed in the aforesaid fashion. It is not to be forgotten that the petitioner has merely been indicted and has not been convicted. It would be open to the petitioner to take all the said defenses while facing trial. At this stage all that can be said is that none of the aforesaid submissions of the counsel for the petitioner are such which can lead to inference of no view of a prima facie case being possible on the basis of the material on record.
26. It cannot be lost sight of that the petitioner though ably assisted/represented before the learned ACMM and though aware of his right to lead evidence did not lead any evidence whatsoever. It has not been disputed that the petitioner was at the place where the offence had been committed. There is no explanation from the petitioner as to why the petitioner within four days of his return to USA after a sojourn to India chose to rush back to India. The petitioner was then midway through his course and had returned to USA on 8th July, 1999 presumably to complete his course. Not only so, it is further the case against the petitioner that the petitioner upon return to India (Mumbai) also, did not go back to his parental house but chose to stay in pseudo name in hotel. We are at this stage not concerned with the truth or relevancy of the said fact. However, the same nevertheless at this stage shows that the findings of the learned ACMM of a prima facie case is not without any basis and is not contrary to the material on record.
27. As far as the submission of the counsel for the petitioner as to the conduct of the investigation and reliance upon Gulshan Kumar case is concerned, though the view therein is not binding on this Court, we feel that in the present case no case of it being not in the interest of justice for the petitioner to face trial, in courts in the requesting state has been made out. The petitioner had of his own volition chosen to reside in USA and to pursue his education there. In the present day life of a global village persons choosing to live, pursue education and work in other nations, cannot raise such pleas. No material whatsoever was placed by the petitioner before the Magistrate or even before us that the petitioner on account of age, religion, nationality, colour, political ideology or affiliation faced any threat in the requisitioning state where he had himself chosen to live. If the law enforcing agency of that State has probable cause or reasoned ground to believe that the petitioner has committed the offence, the petitioner cannot turn around and take the plea in vacuum of fear of justice being not meted out to him in the land of his own choice. It has to be assumed by this Court that the petitioner will be fairly and properly tried on the charges made against him.
28. As aforesaid, we have not found the material/evidence accompanying the request for requisition to be glaringly defective or insufficient to establish probable cause. The request for requisition in modern times of a trans-global village has to be approached in broad spirit to suppress the crime and for promotion of justice.
29. For the same reason, we do not find any merit in the next submission of the counsel for the petitioner that the petitioner if found guilty by the US courts may be punished with imprisonment for life without parole. The counsel for the petitioner in this regard relied upon several judgments including of European Court of Human rights titled Soering v. The United Kingdom (ECHR 14)(7th July, 1989) to urge that life imprisonment without parole is worse than death sentence. Even under the laws of India, the same punishment can be meted out. This, therefore, cannot be a ground for refusing extradition.
We, therefore, find no merit in this petition and the same is dismissed.