Delhi District Court
Ct Cases/401/2022 on 24 August, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
In Re:
Union of India v. Bernd Alexander Bruno Wehnelt
CC No:- 401/2022
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-413/43/2020 dated 17.03.2022 made under Section 12 of The Extradition Act, 1962 (hereinafter referred to as the 'Act') for inquiring into the extradition request as to the extraditability of the offences involved allegedly committed by Bernd Alexander Bruno Wehnelt i.e. Fugitive Criminal (hereinafter referred to as 'FC') within the territory of Federal Republic of Germany (hereinafter referred to as 'Requesting State').
History of Proceedings
2. The case of Requesting State is that the FC is wanted by the Requesting State as he is the subject of a complaint in case number 6 Gs 103/19 before the District Court Muhdorf a. Inn. As per translated copy of arrest warrants dated 12 th August, 2019, it is alleged that on 2 nd September, 2003 at about 05:00 PM, FC approached LZ (name of prosecutrix is Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:50:28 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 1 of 22 withheld as per POCSO Act) (then 4 years old, born on 14.12.1998) and MS (name of prosecutrix is withheld as per POCSO Act) (then 6 years old, born on 16.11.1996), while they were playing on a green area between the last garages in Baltenstrabe in D-93057 Regensburn and the railway line there. He told them that he was a photographer and would take photographs for a magazine. He took several pictures of them and then gave LZ (five Euros) and MS a little less and asked them to pull down their trousers and underpants. Unlike MS, LZ complied with the request. Then, when LZ had bared her lower abdomen, the FC manipulated with one hand on her naked vagina while holding camera in his other hand and started taking photographs of it.
3. At the time of opening of the locker of the FC located in the premises of the faculty of Biology and Preclinical medicine of the University of Regensburg, he was found in possession of a total of 158 CDs and DVDs. In the said CDs and DVDs, it was found that images of both male and female children were stored and same was shown as they were performing sexual acts (hand, oral, sexual and anal intercourse) with adult persons. As such, FC is alleged to have committed the following offences under German Criminal Code :-
Provision Offence
Section 176 Sexual Abuse of Children
Section 184(b) Dissemination/procurement and
possession of child pornography
Digitally signed
by NABEELA
NABEELA WALI
WALI Date: 2022.08.24
16:50:42 +0530
CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 2 of 22
Section 223 Bodily Harm
Section 230 Request to prosecute
Section 234 Kidnapping
Section 52 Several offences committed by
one act
Section 53 Joinder of offences
4. The Requesting State sent a formal request for extradition of FC, vide Note verbale no. 358/2020 dated 27.07.2020 along with supporting documents to the Government of Republic of India (hereinafter referred to as 'Requested State'). Consequently, vide order bearing no.T-413/43/2020 dated 17.03.2022, Ministry of External Affairs, Govt. of India, made a request under Section 12 of the Act to this Court to conduct inquiry proceedings qua the FC.
5. Vide order dated 22.03.2022, Ld. Predecessor Court issued production warrants as FC was found facing trial in SC No. 5023/2021 under Section 14, 14(c) of Foreigners Act, 1946, Police Station Hebbagodi, Karnataka, before the Court of Ld. Third Additional Sessions Judge, Anekal Bengaluru, Rural District Courts, as such, he was produced before Ld. Predecessor Court on 01.04.2022. Thereafter, copy of documents received from Requesting State were supplied to him and inquiry proceedings commenced.
Charges against FC
6. The Requesting State has sought extradition of FC, so that he could face prosecution in Federal Republic of Germany CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 3 of 22 Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:50:51 +0530 for following offences:
Section 176- Sexual abuse of Children:-
(1) Whoever performs sexual acts on a person under 14 years of apn (child) or has the child perform sexual acts on them incurs a penalty of imprisonment for a term of between six months and 10 years, in less serious cases a penalty of imprisonment for a term of up to five years or a fine.
(2)-(4) Section 184 (b) of Dissemination, procurement and possession of child pornography (1)-(3) (4) Whoever undertakes to procure child pornographic material which reproduces actual or realistic acts, incurs a penalty of imprisonment for a term not exceeding two years or a fine Whoever possesses the material mentioned under clause 1 will also incur a penalty.
Section 223 Bodily harm:-
(1) Whoever physically abuses or damages the health of another person incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) ...
Section 230 Request to prosecute:-
(1) Causing intentional bodily harm under Section 223 and negligent bodily harm under Section 229 are prosecuted only upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. If the victim dies, the right to file a request in cases of intentional bodily harm under Section 77, paragraph 2 passes to the victim's relatives.
(2) Acts committed against public officials, persons entrusted with special public service functions or soldiers in the Federal Armed Forces in the discharge of their duties or in connection with their duties are also prosecuted upon the request of their superior. The same Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.08.24 16:51:06 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 4 of 22 applies to office holders in the churches and other religious communities under public law. Section 234 Kidnapping:-
(1) Whoever gains physical control over another person by Inroe, threat of serious harm or deception in order to abandon that person in a helpless situation or to introduce said person into military or paramilitary service brood incurs a penalty of imprisonment for a terms of between one year and 10 years. (2) In less serious cases, the penalty is imprisonment for a term of between six months and five years.
Section 52 Several offences committed by one act:-
(1) If the same act violates more than one criminal statute or the same criminal statute more than once, only one penalty is imposed.
(2) If more than one criminal statute has been violated, the penalty is determined according to the statute which provides for the most severe penalty. The penalty may not be more lenient than the other applicable statutes permit.
(3) Under the conditions of Section 41, the court may separately impose a fine in addition to a sentence of imprisonment.
(4) Additional penalties, incidental legal consequences and measures (Section 11, paragraph 1, no. 8) must or may be imposed if one of the applicable statutes so requires or allows.
Section 53 Joinder of offences:-
(1) If a person has committed several offences, all of which are to be adjudicated at the same time, and that person has incurred more than one sentence of imprisonment or more than one fine, an aggregate sentence is imposed.
(2) If a sentence of imprisonment concurs with a fine, an aggregate sentence is imposed. The court may, however, impose a separate fine, where a fine is to be imposed in such cases for more than one offence, an aggregate fine is imposed.
(3) Section 52, paragraph 3 and 4 applies analogously.Digitally signed by NABEELA
NABEELA WALI
WALI Date: 2022.08.24
16:51:17 +0530
CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 5 of 22
7. In support of its case, the Requesting State, along with request of extradition vide Note Verbale No. 358/2020 dated 27.07.2020 had appended the following documents:-
(i) Certified copy of Arrest warrants dated 12.08.2019 issued by the District Court Muhldorf a. inn. As per the translated copy the original arrest warrant bears the signature of Judge Sauter Orengo of the District Court;
(ii) Certification along with statement of offences under German Law signed by hand by Public prosecutor in German language bearing signatures seal of Mayer dated 18.06.2020.
(iii) Translated copy of the arrest warrant dated 12.08.2019 certified to be identical copy by Judicial Administration Inspector and bearing the signature and seal of Lisa Schranner (Translator for German and English Language);
(iv) Translated copy of certification.
(v) Details of FC along with photographs, copy of his passport and his fingerprints and palm prints;
An Endorsement certificate of Foreign Warrant of Arrest by Central Government under Section 15 of Extradition Act, 1962 endorsed by Deputy Secretary (Extradition), MEA and authenticated by Joint Secretary (CPV Division), MEA has also been placed on record by UOI.
Treaty
8. The request for extradition of FC was made by Requesting State i.e. Federal Republic of Germany through diplomatic Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 CC No:- 401/2022 16:51:23 +0530 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 6 of 22 channels pursuant to Extradition Treaty between both the Contracting States which was notified in Gazette of India vide Order no. G.S.R. No. 346(E) dated 28.05.2004.
Evidence
9. 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. CW1/A : Extradition Treaty between Govt. of India and Federal Republic of Germany;
(ii) Ex. CW1/B : Note Verbale bearing no. 358/2020 dated 27.07.2020;
(iii) Ex. CW 1/C : Certified copy of Arrest warrant dated 12.08.2019 issued by the District Court Muhldorf along with its English translation;
(iv) Ex. CW 1/D : Copy of Certification dated 17.06.2020 along with its English translation;
(v) Ex. CW 1/E : Personal identification documents (colly for 11 pages) including copy of passport, photographs and finger prints of FC
(vi) Ex. CW 1/F : Order bearing no. T-413/43/2020 dated 17.03.2022 by MEA, New Delhi initiating the Extradition request;
(vii) Ex. CW 1/G : Endorsement dated 17.03.2022 of Foreign Warrant of arrest by Central Government under Section 15 of Extradition Act.
10. The witness deposed that as per Ex. CW 1/C the FC is Digitally signed by NABEELA NABEELA WALI CC No:- 401/2022 WALI Date: 2022.08.24 Union of India v. Bernd Alexander Bruno Wehnelt 16:51:37 +0530 Page No. 7 of 22 wanted for crime of possession of child pornographic written material, sexual abuse of children, abduction in concomitance with malicious bodily harm. As per CW-1, Ex. CW 1/D certifies that certified copy of arrest warrants dated 12.08.2019 is identical to the original arrest warrant which is valid and enforceable and that the limitation period for prosecution has not yet commenced. He further stated that he had checked the authenticity of the documents received through Diplomatic Channels from the Embassy of Germany in New Delhi.
11. CW-1 was duly cross-examined by Ld. Counsel for FC.
During his cross-examination, CW-1 stated that he has the knowledge about the Extradition Treaty between Republic of India and Federal Republic of Germany and the Extradition Act and has followed all the procedures under them. CW-1 deposed that the diplomatic note vide which the request was received carried its seal. CW-1 admitted that Ex. CW 1/E (colly) (running into 11 pages) does not contain seal of the competent authorities of Germany and English translation of the said document was not found on record, but the same was received through diplomatic channels. He further stated that the diplomatic note vide which the Embassy of Germany sent the Extradition request carried its seal. CW-1 during his cross-examination also deposed that the translated version of Ex. CW 7/C and Ex. CW 1/D contains the seal of German to English translator. CW-1 admitted that Ex. CW 1/E does not contain seal of Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:51:44 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 8 of 22 competent authorities. He however stated that these documents were received through diplomatic channels from the Embassy. He also stated that English Translation of the said documents was not found on record.
12. No evidence in defence was put forth by the FC and hence after cross-examination of CW-1, matter was listed for addressing final argument.
Arguments
13. Ld. LAC for FC argued that as per Article 12(3) of the Treaty an extradition request for the purpose of prosecution shall be accompanied by original or certified copy of the arrest warrant and the same as per Article 12 (5) shall be signed by a judge or a competent official and authenticated by seal of the competent ministry. It is argued by Ld. Counsel for FC that Ex. CW 1/C is in German language and the translated copy of the Arrest warrant has not been signed and sealed by a Judge and only bears the stamp and signature of the translator. It is also argued by Ld. LAC for FC that the documents concerning the identity and nationality of the FC which are exhibited as Ex. CW 1/E (colly) are in German language and no translated copy has been provided. It is thus argued by Ld. LAC for FC that CW-1 has examined the documents sent by the requesting State in a mechanical manner and not as per the requirement of the treaty and hence cannot be treated or received as Digitally signed evidence. NABEELA by NABEELA WALI WALI Date:
2022.08.24 16:51:53 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 9 of 22
14. Per contra, it is argued by Ld. SPP for UOI that scope of present extradition inquiry is very narrow. It is argued that this Court has to examine only two requirements in present proceedings i.e.
(i) Endorsed warrant for the apprehension of the FC is duly authenticated?
(ii) The offence for which the FC is accused is an extradition offence?
15. It is argued by Ld. SPP for UOI that the requisite record had been received from Requesting State along with the request for extradition of FC. It is further argued by Ld. SPP for UOI that in terms of Article 26 of the Treaty, the documents transmitted in application of this Treaty are in the language of the Requesting State i.e. Germany accompanied by English translation of the Arrest warrant and the certification. It is further argued that in terms of the treaty, the provision of the Extradition Act, other than Chapter II shall apply to the Requesting State. It is further argued by Ld. SPP for UOI that the arrest warrants has been endorsed by the Deputy Secretary, MEA, on the basis of certification given by the Requesting State that the arrest warrant No. 6 GS/103/19 dated 12.08.2019 against the FC has been issued by a judicial authority in Germany, having lawful authority to issue such warrant and hence the same is duly authenticated as per requirement of the Act.
16. It is further argued by Ld. Counsel for UOI that all the documents exhibited in the testimony of CW-1 are duly Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:52:00 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 10 of 22 authenticated in compliance of Section 15 of Extradition Act, 1962 and bear proper seal and signatures on the respective pages. Thus, the first requirement stands duly fulfilled and clear case to extradite FC to face trial in Requesting State is made out.
17. It is further argued by Ld. SPP for Union of India that FC is accused of Section offences under the German Criminal Code i.e. 176 of Sexual Abuse of children, Section 184(b) of Dissemination/procurement and possession of child pronography, Section 223 of Bodily Harm, Section 230 of Request to prosecute, Section 234 of Kidnapping, Section 52 of Several offences committed by one act and Section 53 of Joinder of offences. The similar offences in India are punishable under Sections 3, 4, 11(vi), 12, 13, 14(1) of POCSO Act, 2012, Section 67-B of Information and Technology Act, 2000 and Section 363 of Indian Penal Code and are punishable with imprisonment for a period of more than one year. Ld. SPP for Union of India argued that the above-mentioned offences constitute an illegal/criminal act under the laws of both the Requesting as well as Requested States and the same are punishable by term of imprisonment for a period of at least one year in both the State, as such the principle of Dual Criminality is duly fulfilled and hence, the offences involved in the present inquiry proceedings are extraditable offences and the second requirement also stands complied with. Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.08.24 16:52:07 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 11 of 22 Analysis and findings
18. I have heard rival contentions on behalf of both UOI as well as FC and carefully perused the record.
19. 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..."
20. 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.
21. The relevant legal provisions of the Act, under Chapter III for deciding the present inquiry proceedings are reproduced as under: NABEELA Digitally signed by NABEELA WALI WALI Date: 2022.08.24 16:52:14 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 12 of 22 Section 15. Endorsed warrant for apprehension of fugitive criminal.
Where a warrant for the apprehension of a fugitive criminal has been issued in any 1[foreign State] to which this Chapter applies and such fugitive criminal is, or is suspected to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the warrant so endorsed shall be sufficient authority to apprehend the person named in the warrant and to bring him before any magistrate in India.--Where a warrant for the apprehension of a fugitive criminal has been issued in any 2[foreign State] to which this Chapter applies and such fugitive criminal is, or is suspected to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the warrant so endorsed shall be sufficient authority to apprehend the person named in the warrant and to bring him before any magistrate in India."
Section 17. Dealing with fugitive criminal when apprehended.--
(1) If the magistrate, before whom a person apprehended under this Chapter is brought, is satisfied on inquiry that the endorsed warrant for the apprehension of the fugitive criminal is duly authenticated and that the offence of which the person is accused or has been convicted is an extradition offence, the magistrate shall commit the fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal.
(2) If on such inquiry the Magistrate is of opinion that the endorsed warrant is not duly authenticated or that the offence of which such person is accused or has been convicted is not an extradition offence, the magistrate may, pending the receipt of the orders of the Central Government, detain such person in custody or release him on bail.
(3) The Magistrate shall report the result of his inquiry to the Central Government and shall forward together with such Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt 16:52:22 +0530 Page No. 13 of 22 report any written statement which the fugitive criminal may desire to submit for the consideration of that Government.
22. Ld. SPP for Union of India has relied upon judgment of Ram K. Mahbubani v. U.O.I. & Anr, in W.P.(CRL) 1249/2007 of Hon'ble Delhi High Court, wherein relevant paragraphs are reproduced as under:-
"... Briefly stated, the obligations cast on the Magistrate under Chapter-III are not of a judicial nature stricto senso, in that the scope of inquiry is clerical or secretarial in substance. The Magistrate has to ascertain whether the formalities pertaining to the authentication of the ‗Endorsed Warrant' have been complied with and secondly that the offence for which the fugitive criminal has been accused or has been found guilty is punishable with imprisonment for a term not less than one year under the laws obtaining in both countries.
" In contradistinction, Section 17 prescribes a simple procedure and lays down what is expected of the Magistrate. Sub-Section(1) of Section 17 restricts the magisterial inquiry to ascertainment of the existence of an endorsed warrant for the apprehension of the fugitive criminal is duly authenticated and secondly that the offences of which the person is accused or has been convicted is an extradition offence. If the findings are in favour of the requisition, the Magistrate must commit the fugitive criminal to prison to await his return; the Magistrate should also forthwith send to the Central Government a certificate of the committal..."
23. On 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:
(a) Endorsed warrant for the apprehension of the FC is duly authenticated?
(b) The offence for which the FC is accused is an extradition offence?Digitally signed by NABEELA
NABEELA WALI
WALI Date:
2022.08.24
16:52:40 +0530
CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 14 of 22
24. 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.
25. 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 an offence under relevant Sections 176, Section 184(b), Section 223, Section 234 r/w Section 230, Section 52 and Section 53 of German Criminal Code. It is further contended that the similar conduct in the Requested State is punishable under Sections 3, 41, 11(vi), 12, 13, 14(1) of the POCSO Act, 2012 and Section 67-B of the Information and Technology Act, 2000 and Section 363 of the Indian Penal Code. The relevant sections of Indian Law are reproduced as under:
(a) Section 3 of POCSO Act, 2002
3. Penetrative sexual assault.:-
(1) In this Act, unless the context otherwise requires, -
A person is said to commit "penetrative sexual assault"
if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 15 of 22 Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.08.24 16:52:47 +0530 anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
(b) Section 4 of POCSO Act, 2002
4. Punishment for penetrative sexual assault:-
(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than *ten years but which may extend to imprisonment for life, and shall also be liable to fine.
**(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
(c) Section 11(vi) of POCSO Act, 2002
11. Sexual harassment:-
A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i)**
(ii)**
(iii)**
(iv)**
(v)**
(vi) entices a child for pornographic purposes or gives gratification therefore. Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.08.24 16:52:58 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 16 of 22
(d) Section 12 of POCSO Act, 2002
12. Punishment for sexual harassment:-
Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
(e) Section 13 of POCSO Act, 2002
13. Use of child for pornographic purposes:-
Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes-
(a) representation of the sexual organs of a child;
(b) usage of a child engaged in real or simulated sexual acts (with or without penetration);
(c) the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.
(f) Section 14 (i) of POCSO Act, 2002 14. Punishment for using child for pornographic purposes:-
(1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.
(g) Section 67-B of Information & Technology Act, 2002 67-B. Punishment for publishing or transmitting of material depicting children in sexually explicit CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 17 of 22 Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:53:04 +0530 act, etc., in electronic form. -Whoever-
(a) publishes or transmites or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually esplicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
(h) Section 363 of Indian Penal Code
363. Punishment for kidnapping.
Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
26. 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 (1)(3) of Extradition Treaty between both the Contracting States, extradition offence is defined as :-
(1) Extraditable offences under this Treaty are offences which are punishable under the laws of both Contracting States. In this connection it shall not matter whether or not the laws of the Contracting States place the offence within the same category of offences or denominate an offence by the same terminology. (2) ** (3) Extradition shall be granted in respect of offences which, under the laws of both Contracting States, are punishable by a maximum term of imprisonment or other form of deprivation of liberty of at least one year.
Where extradition is requested for the purpose of enforcing a terms of imprisonment or another form of deprivation of liberty, the duration of the remainder of the prison sentence or other deprivation of liberty which is to be enforced must total at least six months.
Digitally signed
by NABEELA
NABEELA WALI
WALI Date:
2022.08.24
16:53:12 +0530
CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 18 of 22
27. Since, the offences in question constitute an illegal/criminal act under the laws of both the Requesting as well as Requested State and the same are punishable by a maximum term of imprisonment for a period of at least one year (ten years in Requesting State and minimum seven years extendable upto life imprisonment in India) in both the States, the principle of Dual Criminality is duly satisfied and the offences in question are clearly 'extraditable offences'.
28. Whether the Endorsed warrant for the apprehension of the FC is duly authenticated:-
Article 12 of the Treaty requires that request for extradition shall be accompanied by all available information concerning identity and nationality of the person sought and a copy of the applicable statutory provision or statement of the applicable law. Further Article 12(2) of the Treaty requires that for the purpose of prosecution in addition to documents providing in paragraph no. 2, original certified copy of the arrest warrant and description of each offence is also to be sent by the Requesting State. In the present case, the formal request for extradition of FC was received from Requesting State on 27.07.2020 vide Note Verbal No. 358/2020 supported with the documents mentioned hereinbefore. The copy of arrest warrant Ex. CW 1/C mentions that a strong suspicion derives from the outcome of the investigation and the information provided by victim. Supporting documents i.e. certification mentioning that the certified copy of arrest warrant is identical to the original of CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 19 of 22 Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:53:18 +0530 the arrest warrant and that the arrest warrant is valid and enforceable has also been received. Both the arrest warrant and certificate received are in German language and accompanied by English translation as per Article 26 of the Treaty. The certified copy of arrest warrant bears the signature of Judge at the District Court as is mentioned in the translation of the arrest warrant. The arrest warrant and the certification are also accompanied by the information concerning the identity and nationality of the person sought.
29. Ex. CW 1/E (colly) running in 11 pages establish the identity and nationality of the person sought. Also, Translation of Ex. CW 1/C and Ex. CW 1/D mentions the applicable law and the punishment that can be imposed. As mentioned above, certified copy of arrest warrant Ex. CW 1/C mentioning the offences and the punishment have been placed on record. The arrest warrant and the certification in terms of Article 12(4) are signed by the Judge and the public Prosecutor respectively and bear th official seal. Ex. CW 1/G which is an endorsement of the arrest warrant stating that the same was issued by a judicial authority in Germany having lawful authority to issue such warrant has also been placed on record in terms of Section 15 of the Act. The endorsement has been authenticated by Sh. Deven Uttam, JS (CPV), MEA, New Delhi. As per Section 15 of the Act, the warrant so endorsed shall be sufficient authority to apprehend the person named and bring him before the Digitally signed Magistrate. NABEELA WALI by NABEELA WALI Date: 2022.08.24 16:53:25 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 20 of 22 Conclusion
30. 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:
(i) That the endorsed warrant for the apprehension of the fugitive criminal Bernd Alexander Bruno Wehnelt is duly authenticated in terms of Section 17 of the Act;
(ii) The offence of which the FC Bernd Alexander Bruno Wehnelt is accused are extraditable offences as discussed above.
31. In view of my report, I hereby recommend to the Union of India the extradition of FC Bernd Alexander Bruno Wehnelt to the Requesting State i.e. Government of Federal Republic of Germany for facing trial for the offences of Section 176, Section 184(b), Section 223, Section 234 r/w Section 230, Section 52 and Section 53 of German Criminal Code.
32. A copy of this report be sent to the UOI through the Ld. SPP and one copy be given to FC free of cost. 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 Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.08.24 16:53:31 +0530 CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 21 of 22 Extradition Act, 1962.
ANNOUNCED IN THE OPEN COURT DATED: 24.08.2022 NABEELA Digitally signed by NABEELA WALI WALI Date: 2022.08.24 16:53:41 +0530 (NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI This Inquiry report contains Twenty Two pages and each Digitally signed by NABEELA page is signed by me. NABEELA WALI Date: WALI 2022.08.24 16:53:47 +0530 (NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CC No:- 401/2022 Union of India v. Bernd Alexander Bruno Wehnelt Page No. 22 of 22