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All of the documents included in the aforementioned index, certified by the Judicial Authorities of Chile, are duly authenticated by the Ministry of Justice of Chile, the Ministry of Foreign Affairs of Chile and the Embassy of the Republic of India in Chile.

The Government of Chile wishes to reiterate to the Government of the Republic of India its full willingness to provide the supplementary information that the competent Indian authorities may deem necessary for the successful development of this extradition case.

The Embassy of the Republic of Chile avails itself of this opportunity to convey to the Ministry of External Affairs of the Republic of India the assurances of its highest consideration and esteem.”

53. Based on the Note Verbale of 24th March, 2015 and the accompanying documents as well as the notified order dated 28th April, 2015 the Government of India passed an order on 18th May, 2015 noting that the offences alleged to have been committed by the petitioner are stated to be extradition offences in terms of the Extradition Treaty between Chile and India. Accordingly, a request was made under Section 5 of the Act to the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi to inquire whether a prima facie case for the extradition of the petitioner is made out. Accordingly, the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi took up the case for consideration and this led the petitioner to challenge the notified order of 28th April, 2015 and the order of 18th May, 2015 by filing W.P. (Crl.) No. 1215 of 2015 in the Delhi High Court.

72. In the present case, such extradition request under Section 4 of the Act was made by the Republic of Chile through its Embassy on 24.03.2015.

However, the fact remains that by that date the provisions of the Extradition Act were not made applicable to the Republic of Chile since the notification under Sub-section (1) read with Sub-section (3) of Section 3 came to be published only on 29.04.2015. We have already held that by virtue of the said notification dated 28.04.2015 published in the Gazette of India dated 29.04.2015, the provisions of the Act are made applicable to the Republic of Chile w.e.f. 29.04.2015 only. That being so, we are of the view that the extradition request dated 24.03.2015 cannot be treated as a requisition for surrender in terms of Section 4 of the Act. In other words, a request made on or after 29.04.2015 can only be acted upon for directing Magisterial Inquiry into the extraditability of the alleged offence committed by the petitioner in  Chile. Therefore, we are of the view that the first respondent had erred in passing the order dated 18.05.2015 directing Magisterial Inquiry accepting the extradition request dated 24.03.2015 of the Republic of Chile. The fact that the provisions of the Act are made applicable subsequently to the Republic of Chile by notification dated 28.04.2015 published in terms of Section 3(1) of the Act, in our considered opinion, is of no consequence. The extradition request dated 24.03.2015 cannot be held to have been validated by virtue of the subsequent notification dated 28.04.2015.

Extradition and reciprocity

124. The principle of reciprocity has quite an ‘ancient’ history. As noted in the Final Report of the International Law Commission (2014) on “The obligation to extradite or prosecute” (aut dedere aut judicare):

“The role the obligation to extradite or prosecute plays in supporting international cooperation to fight impunity has been recognized at least since the time of Hugo Grotius, who postulated the principle of aut dedere aut punire (either extradite or punish): “When appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal.” The modern terminology replaces “punishment” with “prosecution” [aut dedere aut judicare] as the alternative to extradition in order to reflect better the possibility that an alleged offender may be found not guilty.”18 In other words, if a State is unwilling to extradite a fugitive criminal, it should undertake the responsibility of prosecuting him or her, the theory Hugo Grotius lived from 1583 to 1645 being that a criminal should not go unpunished. The prosecute-or-extradite regime received the imprimatur of the International Court of Justice in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) 19 in the context of the Convention against Torture, but “the Court’s ruling may also help to elucidate the meaning of the prosecute-or-extradite regime under …. other conventions” which have followed the same formula as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft.20