Delhi District Court
Cr Cases/501/2020 on 22 November, 2021
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
CC No:- 501/20
In Re:
Union of India v. Majibullah Mohammad Haneef
Extradition Inquiry Report
1.Vide this order, I shall dispose of the present inquiry initiated on receipt of a request from the Ministry of External Affairs, Government of India vide Order bearing No. T-413/64/2019 dated 23.10.2019 made under Section 5 of The Extradition Act, 1962 (hereinafter referred to as the 'Act') for inquiring into the allegations of commission of offences by Majibullah Mohammad Haneef i.e. Fugitive Criminal (hereinafter referred to as 'FC') within the territory of Government of the Sultanate of Oman (hereinafter referred to as 'Requesting State').
Brief History of Proceedings
2. On 31st July 2019, Bidiyah Police Station received a report from one citizen Akram Dal Jan Murad Al-Belushi that deceased victim namely, Hamood Nasser Al-Belushi was found dead lying on the ground of his house in Shariq in Wilayat of Bidiyah. Thereafter, the police personnel reached at the spot and found dead bodies of a couple along with their three minor children in the said house.
3. On preliminary investigation, the competent authorities of Requesting State found finger prints and DNA samples of FC Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:31:50 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 1 of 24 Majibullah Mohammad Haneef matched with those found on the spot of incident. Finger prints of suspect Garibullah Mohammad Haneef were also found on the spot of incident. It is reported by the investigating agency of Requesting State that once the remaining suspects namely Nashibullah Mohammad Haneef and Abdullah Mohammad Haneef join the investigation after their extradition, their DNA samples would also be taken for matching them with those found at the spot.
4. At the outset, it is reported on behalf of Requesting State that after preliminary investigation, all the aforesaid suspects are found involved in commission of alleged offences of premeditated murder felony punishable under Article 302-A of the Penal Code.
5. It is further reported that FC Majibullah Mohammad Haneef and Garibullah Mohammad Haneef absconded from Oman on 30.07.2019 by Air India Flight No. G-830 (Muscat-Mumbai), while FC Nashibullah Mohammad Haneef and Abdullah Mohammad Haneef absconded from Oman through Kuwait vide Flight no. KU692 (Muscat-Kuwait) on 30.07.2019 and then took flight no. KU301 on 31.07.2019 from Kuwait to reach Mumbai.
6. Vide email dated 05.08.2019 and reference no.
42/10/1531/2/2019(4174) a request for provisional arrest of all the fugitive criminals namely, Majibullah Mohammad Haneef, Garibulla Mohammad Haneef, Nashibulla Mohammad Haneef and Abdullah Mohammad Haneef was made on behalf of the Digitally signed AKASH by AKASH JAIN JAIN Date: 2021.11.22 17:32:03 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 2 of 24 Requesting State in terms of Article 11 of the Treaty between both the States. Pursuant to the same an application under Section 34-B of the Act was moved by Union of India for issuing provisional arrest warrants against the FCs.
7. Vide order dated 17.08.2019, Ld. Predecessor Court issued arrest warrants against the FCs through CBI Interpol and FC Majibullah Mohammad Haneef got arrested on 12.09.2019 at Ahmedabad, Gujarat and got produced in this Court on 13.09.2019.
8. In the meantime, the Requesting State sent a formal request for extradition of all the four FCs vide Note verbale no. 5200/22230/306 dated 20.09.2019 along with original supporting documents to the Government of Republic of India (hereinafter referred to as 'Requested State'). Consequently, vide order bearing no. T-413/64/2019 dated 23.10.2019, Ministry of External Affairs, Govt. of India, made a request under Section 5 of the Act to this Court to conduct inquiry proceedings qua FCs.
9. Since, remaining FCs namely Garibulla Mohammad Haneef, Nashibulla Mohammad Haneef and Abdullah Mohammad Haneef could not be arrested despite repeated issuance of warrants against them, on request of Ld. SPP for Union of India, a separate file was ordered to be made qua said FCs on 06.02.2020 by Ld. Predecessor Court. The present inquiry proceedings, thus, continued only qua FC Majibullah Mohammad Haneef.
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Charges against FC
10. The Requesting State has sought extradition of FC, so that he could face prosecution in Sulanate of Oman for following offences:
(a) Article 302/A of the Penal Code:-
The punishment shall be the death sentence if any of the following conditions are available in the incident of willful murder:
1. With malice aforethought
2. If the murder is committed against an ascendant of the offender.
3. If the murder is committed using torture or using poisonous or explosive substance.
4. If the murder is in preparation for a felony or misdemeanour or is accompanied with or connected thereto.
5. If the murder is committed against a public official in the course of, because of, or by reason of performing his job.
6. For abhorrent reasons.
7. Against (2) two or more persons.
Allegations against FC
11. It is alleged against the FC that on 31st July 2019, Bidiyah Police Station received a report from one citizen Akram Dal Jan Murad Al-Belushi that deceased victim namely, Hamood Nasser Al-Belushi was found dead lying on the ground of his house in Shariq in Wilayat of Bidiyah. Thereafter, the police personnel reached at the spot and found dead bodies of victim Hamood Nasser Al-Belushi, Rahma Salem Abdullah Al- Belushi (wife of first deceased), Ibrahim Hamood Al-Belushi (6 years), Abdulakarim Hamood Al-Belushi (9 years) and AKASH Digitally signed by AKASH JAIN JAIN Date: 2021.11.22 17:32:17 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 4 of 24 Hamza Hamood Al-Belushi (11 years). On initial examination by the Medical Examiner, it was found that the bodies reached rigor mortis stage and the likely cause of death was head injury caused by a blunt tool.
12. It is alleged against FC Majibullah Mohammad Haneef that his finger prints were found matched with the finger prints taken from various places in the victim's house viz. from the stairs leading to the roof of the house, from white envelope inside the safe in the main room, from metal safe inside the main room and from brown box with Omantel logo inside the main room.
13. It is further alleged against FC Majibullah Mohammad Haneef that the semen DNA taken from female victim's (Rahma) dress as well as duct-tape used to gag the victim (Hamza) was found matched with the DNA sample taken from the water bottle and the glass cup seized from the residence of FC. It is further alleged that DNA sample taken from silver ring found in the FC's residence was matched with the DNA sample found on body of victim (Hamood). It is further alleged that DNA traces was taken from green comb seized and found in the residence of FC was found to be mixed from multiple sources and deceased Hamood is one of the sources of mixed DNA. It is further alleged that DNA taken from plastic clip found in victim's house (behind the sofa near Hamood's body), was mixed from multiple sources. Sources of the mixed DNA are DNA samples taken from items found inside the FC's Digitally signed residence. AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:32:25 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 5 of 24
14. It is alleged against FC Majibullah Mohammad Haneef that he withdrew money from bank Muscat's ATM in Bidiyah Branch (Mintirab) using the deceased female victim's (Rahma's) card on 29.07.2019, coinciding with the date and time of commission of crime in following manner:-
(i) On 29.07.2019 at (15:35), (100) one hundred Omani rials were withdrawn;
(ii) On 29.07.2019 at (15:36), (50) fifty Omani rials were withdrawn;
(iii) On 29.07.2019 at (15:37), (40) forty Omani rials were withdrawn.
15. It is further alleged against FC that he withdrew money from Bank Muscat's ATM in Bidiyah Branch (Mintirab) using the deceased male victim's (Hamood's) card on 29.07.2019, coinciding with the date and time of commission of crime in following manner:-
(i) On 29.07.2019 at (15:33), he withdrew (5) five Omani rials;
16. It is alleged against FC Majibullah Mohammad Haneef that the picture technically retrieved from CCTv cameras fixed on Bank Muscat's ATM in Bidiyah Banch (Mintirab) matches with his description. Moreover, his phone was found on the crime scene on the date and time of crime and the house worker who works in the victim's house recognized FC's photo when presented with the photos of the suspects. It is further alleged against FC that he left Oman on 30.07.2019 vide Indian Airline Flight no. G-830 heading to Mumbai, while accompanied by FC Garibullah Mohammad Haneef, shortly after the commission of alleged offences.
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Treaty
17. The request for extradition of FC was made by Requesting State i.e. Sultanate of Oman to the Requested State i.e. Government of Republic of India through diplomatic channels pursuant to Note Verbale No. 5200/22230/306 dated 20.09.2019. Vide G.S.R. No. 341(E) an Extradition Treaty between the Republic of India and the Sultanate of Oman was signed at Muscat on 26.12.2004 and the same got notified in the official Gazette of India on 01.06.2006.
Evidence
18. The Union of India (hereinafter referred to as 'UOI') examined one witness Sh. Sandeep Kumar, Deputy Secretary, (Extradition), Ministry of External Affairs as CW-1 in support of the request for Extradition. CW-1 exhibited following documents received from the Requesting State to make out a prima-facie case for Extradition as under:-
i. Ex. CW 1/A : Extradition treaty between Government of India and the Sultanate of Oman;
ii. Ex. CW 1/B : Order bearing No. T-413/64/2019, dated 23.10.2019;
iii. Ex. CW 1/C : Note Verbale bearing no. 5200/222000/306 dated 20.09.2019;
iv. Ex. CW 1/D : Details of the Fugitive Criminals and the
(28 pages) brief facts of the incident;
v. Ex. CW 1/E-1 : Finger Prints and Photograph of FC
Majibullah Mohd. Haneef;
vi. Ex. CW 1/F-1 : Arrests Warrants issued against FC Majibullah
Mohd. Haneef;
vii. Ex. CW 1/G : Translated Crime Report;
viii. Ex. CW 1/H-1 : Autopsy report of Hamoud Nasser Hassan Al
Balushi (Male);
ix. Ex. CW 1/H-2 : Autopsy report of Rahma Salem Abdullah Al
Balushi (Female);
x. Ex. CW 1/H-3 : Autopsy report of Abdul Karim Hamoud Naseer
Hassan Al Balushi (Male);
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xi. Ex. CW 1/H-4 : Autopsy report of Ibrahim Hamoud Nasser
Hassan AI Balushi (Male);
xii. Ex. CW 1/H-5 : Autopsy report of Hamza Hamoud Nasser
Hassan Al Balushi (Male);
xiii. Ex. CW 1/J : Tool report;
xiv. Ex. CW 1/K (colly) : Technical Report of the Crime Scene including
Photographs;
xv. Ex. CW 1/L : Note Verbale no. 5200/22230/331, dated
09.10.2019;
xvi. Ex. CW 1/M : Response to the queries made to the Requesting
State;
xvii. Ex. CW 1/N : Comparison result of photographs of FC
(11 pages) Majibullah;
xviii. Ex. CW 1/O : An application for placing additional
documents provided by the Requesting State; xix. Ex. CW 1/P : The case summary (supplementary report);
(08 pages) xx. Ex. CW 1/Q : Communication analysis;
xxi. Ex. CW 1/R : Finger print examination and comparison;
(43 pages) xxii. Ex. CW 1/S : Biological analysis report; xxiii. Ex. CW 1/T : Certificate of authentication and signature authorization;
xxiv. Ex. CW 1/U : An application u/s 34B of the Extradition Act 1962, dated 16.08.2019;
xxv. Ex. CW 1/V (OSR) : The facts of the case in Arabic;
(9 pages) xxvi. Ex. CW 1/W (OSR) : Transcript in English language;
(9 pages) xxvii. Ex. CW 1/X (OSR) : Summary of the crime report in Arabic; xxviii. Ex. CW 1/Y (OSR) : Transcript in English; xxix. Ex. CW 1/Z1 (OSR) : Arrest Warrants of FC;
xxx. Ex AA1(OSR) : Finger prints of FC;
xxxi. Ex. CW 1/BB1 : Copy of first page of passport of FC;
(OSR)
xxxii. Ex CW1/BB1A : Photographs of FC;
xxxiii. Ex. CW 1/CC : Secondment Order in Arabic;
(OSR)
xxxiv. Ex. CW 1/DD : Transcript in English language;
(OSR)
19. CW-1 got duly cross-examined by Ld. Counsel for FC. During his cross-examination, CW-1 stated that he has no personal knowledge of the present case and that he was not aware that the punishment for the offence in question is death penalty in The Sultanate of Oman. He denied the suggestion of Ld. Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:32:44 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 8 of 24 Counsel for FC that FC may not get a fair trial in the Sultanate of Oman and that FC has been falsely implicated in the present case.
20. After cross-examination of CW-1, on request of Ld. SPP for UOI, evidence got closed. The matter thereafter, proceeded for recording of defence evidence. It was submitted by FC and his Counsel that they did not wish to lead any defence evidence, as such, the matter straightaway got fixed for final arguments.
Arguments
21. Ld. Counsel for FC argued that FC has been falsely implicated in the present case and that UOI has failed to produce any cogent and worthy material before the Court which could justify the involvement of FC in the alleged offence.
22. It is pointed out by Ld. Counsel for FC that pursuant to application moved on behalf of UOI under Section 34-B of the Act, FC got arrested on 12.09.2019 at Ahmedabad and was produced before this Court on 13.09.2019 and was thereafter, sent to judicial custody. Ld. Counsel for FC argued that the Requesting State submitted documents to the Requested State in support of their extradition case on 05.02.2021, i.e. beyond statutory period of 60 days from the date of arrest of FC in terms of Section 34-B of the Act. As such, FC is liable to be discharged and the present proceedings are void ab initio.
23. It is further argued by Ld. Counsel for FC that the Requesting State is governed by Shariat/Islamic Law which prescribes AKASH Digitally signed by AKASH JAIN JAIN Date: 2021.11.22 17:32:51 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 9 of 24 only the death penalty for the offence in question which takes away the discretion of the Court in imposing punishment and is violative of Article 14 and 21 of the Constitution of India.
24. It is further argued that FC, if extradited, would not get a fair trial in the Requesting State.
25. Per contra, it is argued by Ld. SPP for UOI that scope of present extradition inquiry is very narrow and limited in terms of judgment of Hon'ble Supreme Court of India in Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417. It is argued that this Court has to examine only three requirements in present proceedings i.e.
(i) whether the offence involved is an extraditable offence?
(ii) whether a prima-facie exists against the FC?
(iii) whether the extradition request and documents received are duly authenticated?
26. It is argued by Ld. SPP for UOI that all the aforesaid three conditions are fulfilled in the present matter and the offence for the commission of which FC is wanted by the Requesting State i.e. Murder, is an extraditable offence and punishable for imprisonment for a term more than one year in both the Requesting as well as Requested States.
27. It is argued by Ld. SPP for UOI that the 'Dual Criminality Rule' is duly satisfied in the present matter and the conduct of FC is a criminal act under the laws of both the Contracting Digitally signed States. AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:32:57 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 10 of 24
28. It is further argued that voluminous record sent by the Requesting State along with the Extradition Request contained Extradition Treaty between both the States, Relevant Note Verbale, facts and summary of the crime, autopsy and medical reports of the victims, arrest warrants, finger prints, identity proof, copy of passport, secondment order etc., which clearly establish existence of prima-facie case against the FC.
29. It is further argued that all the aforesaid documents are duly authenticated by the competent authorities in the Requesting State and have been exhibited in the testimony of CW-1, Deputy Secretary, Ministry of External Affairs, Govt. of India. As such, requirement of Section 10 of the Act is duly complied with.
30. It is further argued that no witness has been examined by the FC in support of his case to suggest non-existence of prima- facie case. Moreover, the authenticity of aforesaid documents is also not challenged. Thus, in lieu of judgments of Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417; Smt. Nina Pillai and Others v. Union of India and Others, ILR 1997 Delhi 271; Kamlesh Babu Lal Aggarwal and Daya Singh Lahoria v. Union of India, (2001), 4 SCC 516, clear case of extradition is made out against the FC.
Analysis and findings
31. I have heard rival contentions on behalf of both UOI as well as FC and carefully perused the record. I have also gone through AKASH Digitally signed by AKASH JAIN CC No. 501/20 JAIN Date: 2021.11.22 17:33:03 +0530 Union of India v. Majibullah Mohammad Haneef Page No. 11 of 24 the detailed written submissions filed on behalf of FC as well as UOI.
32. The term 'Extradition' has not been defined under the Act.
However, a comprehensive definition of extradition has been given in Gerhard Terlinden v. John C. Ames in which Chief Justice Fuller defined extradition as:-
"... the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender..."
33. In the case of Abu Salem Abdul Qayoom Ansari v. State Of Maharashtra & Anr, (2011) 11 SCC 214, Hon'ble Supreme Court of India had observed that though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding whether extradition should be granted and on what terms, is determined by the municipal law of the land. It was further emphasized that extradition is founded on the broad principle that it is in the interest of civilized communities that criminals should not go unpunished and one State should ordinarily afford another State necessary assistance towards bringing offenders to justice.
34. The relevant legal provisions of the Act, for deciding the present inquiry proceedings are reproduced as under:
Section 5. Order for magisterial inquiry:-
Where such requisition is made, the Central Government may, if it thinks fit, issue an order to any Magistrate who would have had jurisdiction to inquire into the offence if it had been an AKASH Digitally signed by AKASH JAIN CC No. 501/20 JAIN Date: 2021.11.22 17:33:09 +0530 Union of India v. Majibullah Mohammad Haneef Page No. 12 of 24 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 section 5, the magistrate shall issue a warrant for the arrest of the fugitive criminal.
Section 7. Procedure before magistrate:- (1) When the fugitive criminal appears or is brought before the magistrate, the magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a court of Session or High Court.
(2) Without prejudice to the generality of the foregoing provisions, the magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence. (3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal.
(4) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State, he may commit the fugitive criminal to prison to await the orders of the Central Government and shall report the result of his inquiry to the Central Government, and shall forward together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Government.
35. 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:
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"... 9. We have given our careful consideration and thought to the submissions made by the learned Counsel for the petitioner. It is clear from the scheme of the Extradition Act that pursuant to a request made under section 4 of the Act, the order contemplated to be passed for a Magisterial inquiry under section 5 does not contemplate a pre-decisional or prior hearing. Section 5 of the Act is an enabling provision by which, a Magistrate is appointed to inquire into the case. The Magistrate on the order of inquiry being passed by Central Government issues a warrant of arrest of the fugitive criminal. The whole purpose is to apprehend or prevent the further escape of a person who is accused of certain offences and/or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. The Act contains sufficient safeguards in the procedure to be followed in the inquiry by the Magistrate to protect the 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 extradition offence. Besides, the Magistrate, if he comes to a conclusion that a prima facie case is not made in support of the requisition by the requesting State, he is required to discharge fugitive criminal....
.... 11. We may notice here that upon receiving information with sufficient particulars from a requesting State that a fugitive criminal is wanted for any alleged offence committed in the requesting State or for undergoing trial or sentence, the Central Government passes an order under section 5 of the Act, appointing a Magistrate to inquire into the case. The Criminal Procedure Code also provides for the arrest of a person without warrant who is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned in the offence, under section 41 of the Code. Accordingly, on credible information being received from a requesting State, with sufficient particulars, about a person having been involved in any offence, the said person could be arrested in India without warrant. It is now fairly well-settled that the Magisterial inquiry which is conducted pursuant to the request for extradition is not a trial. The said enquiry decides nothing about the innocence or guilt of the fugitive criminal. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable grounds which warrant the fugitive criminal being sent to the demanding State. The jurisdiction is limited to the former part of the request and does not concern itself with the merits of the trial, subject to exceptions, as outlined in the preceding Digitally signed by AKASH JAIN AKASH Date:
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paragraph 7, in which case the request for extradition is denied by the Central Government..."
36. 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 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..."
37. A conjoint reading of aforesaid statutory provisions and judgments of Superior Courts, it is clear that this Court while conducting an inquiry under Extradition Act, 1962 has to examine following aspects:
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(a) Whether the offence for which extradition of FC is sought is an extraditable offence;
(b) Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State;
(c) Whether the extradition request and documents received are duly authenticated;
(d) Whether the offence for which extradition of FC is sought is a political offence.
38. It is also trite to say, that this Court does not have to decide that FC is innocent or guilty but only has to see that the material is sufficient to send the FC for trial. Scope of inquiry under the Act is very limited and court cannot sift the evidence against FC and decide its veracity and credibility.
39. Whether the offence for which extradition of FC is sought is an extraditable offence:
It is the case of UOI that the incident in question constitute premeditated felony under Article 302/A of Penal Code, punishment for which is death sentence in the Requesting State. It is further contended that the similar conduct in the Requested State is punishable under Section 302 of Indian Penal Code, 1860. The relevant sections of Indian Penal Code are reproduced as under:
(a) Section 299 of Indian Penal Code, 1860
299. Culpable homicide:-
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
(b) Section 302 of Indian Penal Code, 1860
302. Punishment for murder:-Digitally signed
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Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
40. Now, Section 2(c)(i) of the Act, defines extradition offence, in relation to a treaty state, as an offence as provided in the extradition treaty between the two States. In terms of Article 2 of Extradition Treaty between both the Contracting States, the following persons shall be extradited:
(i) Persons accused of an offence punishable under the laws of both Contracting States by imprisonment for not less than one year of for more severe punishment.
(ii) Persons sentenced by the Courts of the Requesting State with imprisonment for six months or more in respect of an extraditable offence.
41. Since, the offence in question constitute an illegal/criminal act under the laws of both the Requesting as well as Requested States and the same is punishable with imprisonment for a period of more than one year (Death/life imprisonment) in both the States, the principle of Dual Criminality is duly satisfied and the offence in question is clearly an 'extraditable offence'.
42. Whether a prima-facie case exists against the FC in support of the requisition of the Requesting State:
Besides, formal Extradition Request of all the four FCs, the Requesting State had sent voluminous record delineating role of each FC in commission of alleged offences. With respect to FC Majibulla Mohammad Haneef, it has been categorically reported by investigating agencies at Requesting State that his finger print reports were found matched with the finger prints taken from various places in the victim's house. Moreover, the Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:33:35 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 17 of 24 semen DNA taken from female victim's (Rahma) dress as well as duct-tape used to gag the victim (Hamza) was found matched with the DNA sample taken from the water bottle and the glass cup seized from the residence of FC. It is further alleged that DNA sample taken from silver ring found in the FC's residence was matched with the DNA sample found on body of victim (Hamood). It is further alleged that DNA traces was taken from green comb seized and found in the residence of FC was found to be mixed from multiple sources and deceased Hamood is one of the sources of mixed DNA.
43. It is alleged against FC Majibullah Mohammad Haneef that he withdrew money from bank Muscat's ATM in Bidiyah Branch (Mintirab) using the cards of deceased victim Hamood and Rahma on 29.07.2019, i.e. the date of commission of offences and his description matched with the picture technically retrieved from CCTv cameras fixed on the aforesaid ATM.
44. It is further alleged against FC that his phone was found on the crime scene on the date and time of crime and the house worker who works in the victim's house recognized FC's photo when presented with the photos of the suspects. It is further alleged against FC that he left Oman on 30.07.2019 vide Indian Airline Flight no. G-830 heading to Mumbai, while accompanied by FC Garibullah Mohammad Haneef, shortly after the commission of alleged offences.
45. Detailed autopsy and medical reports of the victims, finger print report qua FC, analysis of communication record between the AKASH Digitally signed by AKASH JAIN CC No. 501/20 JAIN Date: 2021.11.22 17:33:41 +0530 Union of India v. Majibullah Mohammad Haneef Page No. 18 of 24 victims and the FC, detailed biological/DNA sample reports have been furnished on behalf of Requesting State in support of their case.
46. Having carefully perused the aforesaid material, testimony of CW-1 and the fact that nothing contrary is brought on record on behalf of FC, this Court holds that prima-facie case exists against the FC in support of the requisition of the Requesting State.
47. Whether the extradition request and documents received are duly authenticated:
Section 10 of the Act deals with authentication of exhibits, depositions and other documents received from a foreign State. It reads as under:
Section 10. Receipt in evidence of exhibits, depositions and other documents and authentication there of:- (1) In any proceedings against a fugitive criminal of a foreign State 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.
(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;
(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, to be the original depositions or statements or to be true copies thereof, as the case may require;Digitally signed
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(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;
(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.
48. In the present case, the formal request for extradition of FC was received from Requesting State on 20.09.2019 vide Note Verbale No. 5200/22230/306 along with supporting documents i.e. brief facts of incident, details of fugitive criminals, finger prints and photographs of FC, tool report, arrest warrants, autopsy report of victims, technical report of crime scene along with photographs. All these documents have been duly signed by Attorney General, Sultanate of Oman and duly authenticated by the office of Public Prosecution, Sultanate of Oman.
49. Also, the authenticity of aforesaid documents has not been challenged on behalf of FC during entire proceedings, as such, the extradition request and abovesaid documents received stand duly authenticated in terms of Section 10 of the Act.
50. Whether the offence for which extradition of FC is sought is a political offence.
Section 7(2) of the Act provides that FC may lead evidence to show that the offence of which he is accused or has been convicted is an offence of political character or is not an extradition offence. Nothing substantial is though brought on Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:33:53 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 20 of 24 record by the FC to show that the offences in question are of political character. Also, vide Article 8(1)(b) of the Treaty executed between both the Contracting States, offence of Murder is not regarded as an offence of political character. Thus, the fourth ingredient also stands duly satisfied.
51. With respect to argument of Ld. Counsel for FC that the Requesting State is governed by Shariat/Islamic Law which prescribes only the death penalty for the offence in question and is violative of Article 14 and 21 of the Constitution of India, it is pertinent to refer to Article 3 of the Extradition Treaty executed between both the States, which reads as under:
Article 3 of the Extradition Treaty :
The crimes punishable by death penalty in both countries shall be extraditable. Where any crime for which the extradition is sought is not punishable by death penalty in the Requested State, extradition shall not be granted unless the Requesting State gives such an assurance that the death penalty will not be imposed or if imposed will not be executed.
52. The offences complained against the FC are punishable with death penalty in both the States, as such, no question of violation of Article 14 and 21 of Constitution of India is made out. As far as the assurance regarding non awarding of death penalty to the FC in terms of Article 3 of the Extradition Treaty is concerned, the same cannot be granted by this Court and said aspect can only be considered by Central Government.
53. With respect to argument of Ld. Counsel for FC that FC would not get a fair trial in the Requesting State, nothing substantial AKASH by AKASH JAIN Digitally signed CC No. 501/20 JAIN Date: 2021.11.22 17:34:00 +0530 Union of India v. Majibullah Mohammad Haneef Page No. 21 of 24 to the contrary is brought on record on behalf of FC. Merely stating that there is bias against FC in the Requesting State will not serve his case.
54. Another leg of argument of Ld. Counsel for FC is that the Requesting State submitted documents to the Requested State in support of their extradition case on 05.02.2021, i.e. beyond statutory period of 60 days from the date of arrest of FC in terms of Section 34-B of the Act. As such, FC is liable to be discharged and the present proceedings are void ab initio.
55. Section 34-B of the Act reads as under:-
34-B Provisional arrest:-
(1). On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.
(2). A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period.
56. Now, it is admitted position of facts, as also proved by CW-1 that pursuant to arrest of FC Majibulla Mohammad Haneef on 12.09.2019 at Ahmedabad and his production before this Court on 13.09.2019, a formal request for extradition of FC was received from the Requesting State vide Note Verbale No. 5200/22230/306 dated 20.09.2019 along with supporting documents. The same is duly proved as Ex. CW1/C. Subsequently, vide order bearing no. T-413/64/2019 dated Digitally signed AKASH by AKASH JAIN Date: JAIN 2021.11.22 17:34:05 +0530 CC No. 501/20 Union of India v. Majibullah Mohammad Haneef Page No. 22 of 24 23.10.2019, Ministry of External Affairs, Government of India made a request under Section 5 of the Act to this Court to conduct inquiry proceeding under the Act qua FC.
57. The documents filed on behalf of Requesting State on 05.02.2021 are merely additional documents. Since, the formal request for extradition of FC along with supporting documents were already received from the Requesting State by UOI on 20.09.2021, the argument of Ld. Counsel for FC regarding non-compliance of Section 34-B of the Act is without any consequence.
58. With respect to argument of Ld. Counsel for FC that FC had already spent almost 26 months in custody in India and faced extradition proceedings for last more than 2 years and has no money to fight litigation in foreign country, it is held that the same are no grounds for refusing his extradition in terms of statutory provisions and Treaty obligations. The plea of period of incarceration already undergone by FC in India, may be raised by him before the concerned courts in Requesting State.
Conclusion
59. After considering the entire facts, circumstances of the present case, duly authenticated documents received in support of the extradition request and provisions of Extradition Treaty executed between both Requesting and Requested State, I conclude my inquiry report with the following observations:
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(i) That with respect to charge of Article 302 A of Penal Code,
the offence under Section 302 Indian Penal Code is made out and the same is an extraditable offence;
(ii) That the extradition request and documents received are duly authenticated in terms of Section 10 of the Act.
(iii) That there is a prima-facie case against the FC for initiating a trial qua offences mentioned above at point (i).
60. In view of my report, I hereby recommend to the Union of India the extradition of FC Majibullah Mohammad Haneef to the Requesting State i.e. Sultanate of Oman for facing trial for the offence under Article 302 A of Penal Code.
61. A copy of this report be sent to the UOI through the Ld. SPP for UOI and one copy be given to FC free of costs. The copy of this report be also uploaded on the website as per rules. The FC is also being informed of his right to file written statement/representation in terms of Section 17(3) of The Extradition Act, 1962.
ANNOUNCED THROUGH VIDEO Digitally signed CONFERENCING ON 22.11.2021 AKASH by AKASH JAIN Date:
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(AKASH JAIN)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
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