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5. United States of America is a Treaty State. An Extradition Treaty was entered into between the Government of the Republic of India and the Government of the United States of America on or about 21st July, 1999.

Proceedings

6. A warrant of arrest is said to have been issued by the U.S. District Court for the Southern District of Texas, Housing Division for the arrest of the appellant. Pursuant to the request made by the Government of the United States of America, he was arrested on 10th November, 2002. The Government of India in exercise of its power conferred upon it under Section 5 of the Extradition Act, 1962 (for short, 'the Act') made a request to the Additional Chief Metropolitan Magistrate, New Delhi, to make an enquiry in respect of Page 0047 the alleged offences leveled against him. He was produced before the said court. The documents appended to the formal request for extradition containing 154 pages were supplied to him. He was granted an opportunity to file written statement.

16. Article 9 provides for extradition procedures and required documents of which we may immediately notice:

Article 9 - Extradition Procedures and Required Documents:
1. All requests for extradition shall be submitted through the diplomatic channel.
2. All requests for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the persons sought ;
(b) information describing the facts of the offense and the procedural history of the case ;

18. Article 17 provides that a person extradited under the Treaty may not be detained, tried or punished in the Requesting State except for the offenses enumerated therein.

The Act

19. The Act was enacted to consolidate and amend the law relating to extradition of fugitive criminals and to provide for the matters connected therewith or incidental thereto. It is a special statute.

20. "Extradition treaty" has been defined in Section 2(d) to mean a treaty or agreement made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty or agreement relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India. "Fugitive criminal" has been defined in Section 2(f) to mean an individual who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign State or a commonwealth country and is, or is suspected to be, in some part of India. Section 4 occurring in Chapter II of the Act provides for requisition for surrendering of fugitive criminal of a foreign State. It also provides for the manner in which such requisition is to be made. When such a requisition is made in terms of Section 5 of the Act, 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 offence committed within the local limits of his jurisdiction, directing him to inquire into the case. Section 6 empowers the Magistrate to issue a warrant for the arrest of the fugitive criminal on receipt of the order of Central Government.

Section 10 of the Extradition Act speaks of certification of facts. Such certification is found in the affidavit of Mr. Gilpin. How such certificate of fact is to be furnished does not appear from the provisions of the said Act and the affidavit may serve the said purpose. It is not, therefore, possible to hold that the report of the learned Magistrate is vitiated on the premise that he has failed to apply a mandatory provision thereof.

Jurisdictional Issue

47. Section 208 of the Old Code of Criminal Procedure is not required to be applied in its entirety. The said provision were required to be applied as far as practicable. The provisions of the Act confer power and jurisdiction upon the Magistrate as the case is not brought before it by the prosecutor or the complainant, but an enquiry is entrusted to the designated court by the Central Government. A power was, therefore, required to be conferred under a statute to the Magistrate, so that, it may have the requisite power and jurisdiction to make an enquiry. Its function are quasi judicial in nature; its report being not a definitive order. Further section does not stop at that. It refers to the committal proceeding only for the manner in which the same is to be conducted. While a court would commit an accused in terms of Section 208, it was required to arrive at a finding for the said purpose. It postulates that a finding has to be arrived at only for the purpose of discharge of an accused or his extradition upon formation of a prima facie view. The legal principle in this behalf has clearly been laid down in sub-sections (2), (3) and (4) of Section 7 of the Extradition Act. The said sub-sections cannot be ignored. Unlike Section 208 of the Code, no witnesses need be examined and cross-examined. If the State has been able to prima facie establish that a case has been made out for bringing an accused to trial, it will be for the accused to show that no such case is made out of the offences complained or for extradition.