Himachal Pradesh High Court
Should Be In Spiral Bound And Contain An vs Union Of India on 8 October, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
CWP No. 3987/2019 a/w Cr.MMO No. 246/2020 .
8.10.2020 Present: Mr. B. B. Vaid, Advocate, for the petitioner.
Mr. Vikas Rathore, Mr.Vinod Thakur, Mr. Shiv Pal Manhans, Addl. A.Gs with Mr. J. S. Guleria, Dy.A.G.Ms. Seema Sharma, Mr. Bhupinder Thakur and Mr. Yudhvir Singh Thakur, Dy.A.Gs. for respondents No. 1 to 3State.
Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Gupta, Advocate, for Mr. Adhiraj Thakur.
Mr. N.K. Thakur, Senior Advocate with Mr. Dviya Raj Singh Thakur, Advocate, for Mr. Maneesh Kumar Bali.
Mr. Rakesh Raghuvanshi, Oath Commissioner, in person.
(Through Video Conferencing) In compliance to the order dated 15.9.2020, Mr. Maneesh Kumar Bali, Advocate, is present in person and states that affidavit in terms of the aforesaid order is being filed in the registry during the course of the day.
His statement is taken on record.
2 We have been dealing with the instant case, pertaining to extradition of the accused, for a long time, but unfortunately, proper assistance was not forthcoming from either of the parties.
3 The parties including the State had been groping in the dark and the relevant provisions of law were not being quoted or followed, while filing the status report(s) as ordered by this Court from time to time, constraining ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP us to request the parties, more especially, the State to .
render effective assistance.
4 Today, Mr. J.S. Guleria, Dy. A.G. and Mr. B.B. Vaid, Advocate, have impressed us with their preparation and have taken us through some of the relevant provisions of law pertaining to extradition.
5 As regards Indian Penal Code, Section 3 thereof provides for punishment of offences committed beyond, but which by law may be tried within, India and reads as under: "3. Punishment of offences committed beyond, but which by law may be tried within, India.--Any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India."
6 As regards Cr.P.C., relevant provisions are contained in Section 41(b)(g) Sections 70, 105(2), Sections 105A, 105B(2) (5), 105(k) and 188, which are reproduced hereinbelow: 41(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP may extend to seven years whether with or without .
fine, if the following conditions are satisfied, namely:
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary--
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this subsection, record the reasons in writing for not making the arrest.
41(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP extradition, or otherwise, liable to be apprehended or .
detained in custody in India; or
70. Form of warrant of arrest and duration.--(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
105 (2) Where a Court in the said territories has received for service or execution--
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or
(d) a searchwarrant, issued by--
(i) a Court in any State or area in India outside the said territories;
(ii) a Court, Judge or Magistrate in a contracting State, it shall cause the same to be served or executed] as if it were a summons or warrant received by it from another Court in the said territories for service or execution within its local jurisdiction; and where--
(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81,
(ii) a searchwarrant has been executed, the things found in the search shall, so far as possible, be dealt ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP with in accordance with the procedure prescribed by .
Provided that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the Court issuing the summons or searchwarrant through such authority as the Central Government may, by notification, specify in this behalf.
105A. Definitions.--In this Chapter, unless the context otherwise requires,--
(a) "contracting State" means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;
(b) "identifying" includes establishment of a proof that the property was derived from, or used in, the commission of an offence;
(c) "proceeds of crime" means any property derived or obtained directly or indirectly, by any person as a result of criminal activity (including crime involving currency transfers) or the value of any such property;
(d) "property" means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime;
(e) "tracing" means determining the nature, source, disposition, movement, title or ownership of property.::: Downloaded on - 13/10/2020 20:17:54 :::HCHP
105B. Assistance in securing transfer of persons.--
.
(2) Notwithstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a person who is in any place in a contracting State is required in connection with such investigation or inquiry and the Court is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such Court, Judge or Magistrate, in such form as the Central Government may, by notification, specify in this behalf, to cause the same to be served or executed.
(5 ) Where the person transferred to India pursuant to subsection (1 ) or subsection (2 ) is a prisoner in a contracting State, the Court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.
105K. Procedure in respect of letter of request.--Every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned Court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf.
::: Downloaded on - 13/10/2020 20:17:54 :::HCHP188. Offence committed outside India.--When an .
offence is committed outside India--
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
7 Law relating to extradition of fugitive criminals is contained in Indian Extradition Act, 1962 and Section 2, which is a definition clause, is relevant for the purpose and reads as under: "2. Definitions.―In this Act, unless the context otherwise requires,―
(a) "composite offence" means an act or conduct of a person occurred, wholly or in part, in a foreign State or in India but its effects or Intended effects, taken as a whole, would constitute an extradition offence in India or in a foreign State, as the case may be;
(b) "conviction" and "convicted" do not include or refer to a conviction which under foreign law is a conviction for contumacy, but the term "person accused" includes a person so convicted for contumacy;
(c) "extradition offence" means― ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP
(i) in relation to a foreign State, being a treaty State, an .
offence provided for in the extradition treaty with that State;
(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence;
(d) "extradition treaty" means a treaty agreement or arrangement) made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty agreement or arrangement] relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;
(e) "foreign State" means any State outside India and includes every constituent part, colony or dependency of such State;
[(f) "fugitive criminal" means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State;
(g) "magistrate" means a magistrate of the first class or a presidency magistrate;
(h) "notified order" means an order notified in the Official Gazette;
(i) "prescribed" means prescribed by rules made under this Act; and
(j) "treaty State" means a foreign State with which an extradition treaty is in operation."
::: Downloaded on - 13/10/2020 20:17:54 :::HCHP8 In the instant case, the accused is in Australia, .
and, therefore, Sections 19 and 34(b) of the Act are also relevant and read as under: "19. Mode of requisition or form of warrant for the surrender or return to India of accused or convicted person who is in a foreign State (1) A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be, in any foreign State to which Chapter III does not apply, may be made by the Central Government―
(a) to a diplomatic representative of that State at Delhi; or
(b) to the Government of that State through the diplomatic representative of India in that State and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State.
(2) A warrant issued by a magistrate in India for the apprehension of any person who is, or is suspected to be, in any 1[foreign State] to which Chapter III applies shall be in such form as may be prescribed. 34B. 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 subsection (1) shall be discharged upon the expiration of sixty days ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP from the date of his arrest if no request for his .
surrender or return is received within the said period. "
9 The Central Board of Investigation has, on its official website, issued certain guidelines with respect to extradition position in India and the same are extracted below: "In India the extradition of a fugitive from India to a foreign country or viceversa is governed by the provisions of Indian Extradition Act, 1962. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.
Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPOInterpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities. The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:
Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP under certain conditions which includes receipt of the .
request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.
Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.
In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government."
10 At the same time, the Ministry of External Affairs has also issued certain guidelines, which read as under:
"Extradition request for an accused/ fugitive can be initiated after chargesheet has been filed before an appropriate Court and said court having taken cognizance of the case has issued orders/directions justifying accused/fugitive's committal for trial on the basis of evidence made available in the charge sheet and has sought presence of the accused/fugitive to face trial in the case. All extradition requests should be supported by documents and information enumerated below. Note: If an extradition treaty exists between India and the requested country, the extradition request and documents connected therewith should be ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP prepared on the basis of provisions of Extradition .
Treaty.
1. should be in spiral bound and contain an index with page numbers.
2. The request should be supported by a self contained affidavit executed by the Court by whom the fugitive is wanted or by a Senior Officer in charge of the case (not below the rank of Superintendent of Police of the concerned investigating agency) sworn before a judicial Magistrate (of the court by which the fugitive is wanted for prosecution). The affidavit should contain brief facts and history of the case, referring at the appropriate places the statements of witnesses and other documentary evidences. Criminal's description establishing his identity; provision of the law invoked etc. so that a prima facie case is made out against the fugitive criminal.
3. Paragraph 1 of the affidavit should indicate the basis/capacity in which the affidavit is executed.
4. The affidavit should indicate that the offences for which the accused is charged in India.
5. The affidavit should also indicate that the law in question was in force at the time of Commission of offences and it is still in force, including the penalty provisions.
6. The evidence made available should be admissible under Indian laws. Accordingly, the affidavit should indicate whether the statements of witness are admissible as evidence in India in a criminal trial/prosecution. Statements of witnesses ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP should be sworn before the Court.
.
7. The affidavit should also indicate that if the accused were extradited to India, he would be tried in India only for those offences for which his/her extradition is sought.
8. Copy of First Information Report (FIR), duly countersigned by the competent judicial authority, should be enclosed with the request.
9. Competent authority should countersign copy of charge sheet, which is enclosed with the documents.
10. A letter/order from the concerned court justifying accused person's committal for trial on the basis of evidence made available in the Charge sheet, with a direction seeking accused person's presence in court to stand trial in said court from the country of present stay.
11. Warrant of arrest should be in original and open dated indicating clearly only those offences for which the accused is charged and Court has taken cognizance with relevant sections thereof.
12. Nationality, identity and address of the accused including his photograph should be made available with the request.
13. Copy of the relevant provisions under which the accused is charged along with the provisions of the relevant laws indicating that the maximum sentence prescribed for the offence for which the accused is charged or convicted.
14. The extradition request is to be made in quadruplet (four copies). All original and ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP copies should be attested /authenticated by .
the concerned court.
15. All the documents should be very clear, legible and in presentable form as they are to be presented to the soverign Governments of Foreign Countries.
16. Original documents in national languages should be sent along with certified English translation of each such document r from authorized translators.
17. Extradition requests/documents to the country where English is not first language should be submitted along with duly translated copy in host country's local language. The Court issuing warrant should certify such translated copy.
After completion of necessary formalities, the request for extradition should contain a letter/note from a Senior Official (not below the rank of Joint Secretary) or the concerned State Government indicating the correctness of the case/material with a request to the Central Executive to forward it to the Government of the concerned foreign country. N.B.: If the concerned court is requesting for extradition of a person, the request in the form of an affidavit should be in first person, i.e. by the Hon'ble Magistrate/ Judge himself/herself. (Such requests are usually received from Court Masters or other court officials writing in third person on behalf of the Court. Requested States object to it) NOTE: The request for extradition and the documents thereof should be prepared as per the requirements of the extradition treaty between India and the country concerned from which the fugitive is ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP to be extradited to India.
.
11 As noticed above, the accused is residing in Australia and there is extradition treaty between the Republic of India and Australia that was signed at Canberra on 23.6.2008 and the treaty came into force w.e.f. 20.1.2011 in accordance with Article 20.1 and the detailed procedure of extradition has been laid down in Article 7 of the treaty, but unfortunately the respondentsState has not resorted to majority of the procedures as have been set out hereinabove.
12 In addition to the aforesaid, procedure for extradition for fugitive criminals has been dealt with, in detail, by the Hon'ble Supreme Court in Rosiline George vs. Union of India, (1994) 2 SCC 80, Sarabjit Rick Singh vs. Union of India (2008) 2 SCC 417, Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra (2011) 11 SCC 214 and Marie Emmanuelle vs. Union of India, (2016) 6 SCC 456.
13 Even the above noted judgments of the Hon'ble Supreme Court appear to be ignored, therefore, it is high time that the respondents put their house in order by conducting refresher course(s) regarding not ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP only extradition, but procedures to be adopted not .
only with respect to the cases of extradition, but even those cases, where the accused/convict(s) has fled to another country with whom the Republic of India does not even have treaty, e.g. Nepal.
14 A copy of this order be sent to the Additional Chief r Secretary (Home) to the Government of Himachal Pradesh for compliance.
15 List for consideration on 29.10.2020.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) Judge 8.10.2020 (pankaj) ::: Downloaded on - 13/10/2020 20:17:54 :::HCHP