( 1 ) CHALLENGE in this writ petition, under Articles 226 and 227 of the Constitution, is to the legality and validity of order dated 23 October 2003, passed by the Government of India, against the petitioner under Section 5 of the Indian Extradition Act, 1962 (for short the Act ) and to his continued judicial custody.

( 2 ) THE factual background, on which the foundation of this judicial action is laid, is as follows: the petitioner, though of Indian origin being born in India, is a naturalized citizen of the United States of America and is a permanent resident of that country. On or about 7 February 2003 the petitioner and his fiancee, namely, Leona Swiderski, flew to India. Upon arrival at Bombay, they got separated at the airport. The petitioner claims to have lodged a missing report at the police station on the same day. On or about 8 February 2003, the police found the body of Leona Swiderski lying by the side of the road at Ahmedabad national highway No. 8, near Varsova village. Autopsy conducted by the local authorities revealed that her death was caused by asphyxia due to strangulation. The petitioner was arrested on 11 February 2003 and was charged with the murder of Leona Swiderski. However, he was acquitted by the Sessions Court, Thane, on 26 September 2003.

( 3 ) WHILE the petitioner was in judicial custody pending trial before the Sessions Court, Thane, on or about 5 May 2003, the United States District Court for the District of New Jersey registered a complaint (No. 03-8042) against the petitioner charging him with one count of wire fraud (engaging in a scheme to obtain money and property by false and fraudulent pretenses, representations and promises, by transmitting and causing to be transmitted in interstate and foreign commerce by means of wire communication, certain writings, signs and signals and pictures for the purposes of executing such scheme) for the purpose of obtaining a $ 1 Million life insurance policy on the life of Leona Swiderski, in violation of Title 18, United States Code, Sections 1343 and 2. The Magistrate Judge also issued a warrant for the arrest of the petitioner based on the charges contained in the complaint.

( 4 ) ON 7 May 2003, the Embassy of the United States of America made a request to the Government of India, Ministry of External Affairs, to provisionally arrest the petitioner for the purpose of his extradition, as the petitioner was wanted in the United States to stand trial for the aforementioned offences. In the said request it was also mentioned that provisional arrest is covered by Article 12 of the Extradition Treaty between the United States and the Republic of India, signed on 25 June 1997, entered into force on 21 July 1999. The said offence was stated to be covered by Article 2 of the Treaty. Subsequently, vide Embassy note dated 23 July 2003, supporting material for United States request for extradition of the petitioner was furnished to the Government of India.

( 5 ) PURSUANT to the request received from the Embassy of United States, the petitioner was provisionally arrested on 8 October 2003, but was released on bail on 10 October 2003 by the Chief Judicial Magistrate, Thane. On 23 October 2003 the Government of India, Ministry of External Affairs, (CPV Division) Extradition Section, issued an order under Section 5 of the Act requesting the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi to enquire into the alleged offences. On the basis of the said order, the petitioner was produced before the Chief Judicial Magistrate, Thane on 29 November 2003 for taking him into magisterial custody. The Magistrate took the petitioner in custody and directed the police to produce him before the Court concerned in New Delhi. Accordingly, the petitioner was brought to Delhi in custody and produced before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, who committed the petitioner to judicial custody on 2 Dece