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7. One of the earliest statutes dealing with the subject of extradition is the Extradition Act, 1870 and the Fugitive Offenders Act, 1881, which, along with the Indian Extradition Act, 1903, stood repealed by the Extradition Act, 1962. The Extradition Act contains five Chapters. Originally, prior to the amendment effected by the Extradition (Amendment) Act, (66 of 1993) Chapter-II comprising Sections 4 to 11 contained the caption - ―EXTRADITION OF FUGITIVE CRIMINALS TO FOREIGN STATES AND TO COMMONWEALTH COUNTRIES TO WHICH CHAPTER III DOES NOT APPLY‖. Chapter-III containing Sections 12 to 18 concerned - ―RETURN OF FUGITIVE CRIMINALS TO COMMONWEALTH COUNTRIES WITH EXTRADITION ARRANGEMENTS‖. Section 11 gives statutory effect to the caption at the head of the Chapter-II as it originally ordained that nothing in Chapter-II would apply to fugitive criminals of commonwealth countries to which Chapter- III applied.

8. The reproduction of the Extradition Act in the AIR Manual as well as in the Bare Act published by Law Publishers (India) Pvt. Ltd. is not accurate. This would be evident from a perusal of Section 8 of Act 66 of 1993 since the amendments are not restricted to Section 11 but span the entire statute. As on date, the dichotomy between Commonwealth countries and other countries has totally lost its relevance. Presently, the only distinction relates to those few countries who have signed Extradition Treaties with India, and have opted that Chapter-III and not Chapter-II of the Extradition Act would apply. Chapter- II concerns the extradition of fugitive criminals to those nations who have either not entered into extradition arrangements with India or having done so have preferred that Chapter-III, along with the other provisions of the Extradition Act, would govern their requests. This is the position that obtains owing to the Indo-US Extradition Treaty. It appears that a statute similar to the Extradition Act does not exist in the USA and therefore it was essential to spell out in detail in the said Treaty itself all the provisions that would regulate an Indian request for extradition of a fugitive criminal from the USA. It is trite that these questions are invariably predicated on reciprocity.

9. Mr. Mathur, learned Senior Counsel for the Petitioner, has vociferously voiced the view that it is Chapter-III and not Chapter-II that applies to the Petitioner herein, who enjoys dual citizenship of the USA as well as of Sri Lanka. As has already been mentioned above, an Extradition Treaty between India and the USA came into effect on 14.9.1999. A conjoint reading of Sections 3 and 12 of the Extradition Act mandates the Central Government to notify the States to which Chapter-III will apply so far as extradition arrangements are concerned. For the present purposes, the Extradition Treaty between India and the USA itself notifies that ―the provisions of the said Act, other than Chapter-III, shall apply to the United States of America‖. In other words, Chapter-III does not apply to request for extradition between India and USA.

12. This question was raised and clarified by the Division Bench in Charles Gurmakh Sobhraj -vs- Union of India, 29(1986) DLT 410, Maninder Pal Singh Kohli -vs- Union of India, 142(2007) DLT 209 (DB) and by a Single Bench in Nina Pillai -vs- Union of India, 1997 I AD (Delhi) 463. Kamlesh Babulal Aggarwal -vs- Union of India, 2008 VI AD (Delhi) 37 was recently decided by a Division Bench of which one of us (Vikramajit Sen, J.) was a member holding, inter alia, that (a) Section 7 is independent of Section 17, (b) the enquiry under Section 7 is similar to an indictment or the framing of charges under Section 228 of the CrPC and (c) under Section 7(3) and (4) of the Extradition Act the Court is only to satisfy itself that a prima facie case exists in support of the requisition for extradition. The Special Leave Petition against this Judgment has been dismissed by the Supreme Court on 15.5.2008. In Sarabjit Rick Singh -vs- Union of India, 2008 I AD (Cr.) (S.C.) 161, the request of the USA for extradition of the Petitioner was ‗recommended' by the learned ACMM, Delhi, which Order was affirmed by the Division Bench of this Court. Their Lordships have opined that in extradition proceedings ―no witness is examined for establishing an allegation made in the requisition of the foreign state ..... No formal trial is to be held. ..... whereas the contents of a documents is to be proved for the purposes of trial but not for the purposes of arriving at an opinion in regard to the existence of a prima facie case in an enquiry. Strict formal proof of evidence in extradition proceedings is not the requirement of law‖. By virtue of Section 7, the Magistrate has the power, inter alia, to take such evidence as may be produced in support of the requisition of the foreign state on the one hand and on behalf of the fugitive criminal on the other.