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1998 Supreme(Del) 7
High Court Of Delhi
FLEMMING LUNDING LARSEN - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 876 of 1997
Decided On : 01/01/1998
A.K.VALI, V.K.Ohri
The request for surrender or return referred to in Section 34-B(2) of the Extradition Act, 1962, is the requisition for surrender or return of a fugitive criminal received by the Central Government from a foreign State, and not a request made by the Central Government to the Magistrate.
Headnote:
EXTRADITION ACT, 1962 - SECTION 34-B - PROVISIONAL ARREST - DISCHARGE OF FUGITIVE CRIMINAL - REQUEST FOR SURRENDER OR RETURN - INTERPRETATION.
Fact of the Case:
The petitioner, a Danish national, was arrested on the basis of an urgent request from the U.S. Narcotics Control Bureau. He was remanded to judicial custody and a provisional warrant of arrest was issued against him under Section 34-B(1) of the Extradition Act, 1962. The petitioner filed an application for discharge, arguing that no request for his surrender or return was received by the Metropolitan Magistrate within 60 days from the date of his arrest, as required by Section 34-B(2) of the Act.
Finding of the Court:
The court held that the request for surrender or return referred to in Section 34-B(2) of the Act is the requisition for surrender or return of a fugitive criminal received by the Central Government from a foreign State, and not a request made by the Central Government to the Magistrate. The court further held that the Central Government is not required to make a request for surrender or return of a fugitive criminal, but is only required to have an enquiry conducted from the Magistrate as envisaged in Section 5 of the Act upon receipt of a request from a foreign State.
Issues: Whether the request for surrender or return referred to in Section 34-B(2) of the Extradition Act, 1962, is the requisition for surrender or return of a fugitive criminal received by the Central Government from a foreign State, or a request made by the Central Government to the Magistrate.
Ratio Decidendi: The court interpreted Section 34-B(2) of the Extradition Act, 1962, and held that the request for surrender or return referred to in the provision is the requisition for surrender or return of a fugitive criminal received by the Central Government from a foreign State, and not a request made by the Central Government to the Magistrate. The court reasoned that the only provision under the Act for making a request for surrender or return is Section 4, which provides for the manner of making a request to the Central Government for surrender by a foreign State. The court further held that the Central Government is not to make a request for surrender or return of a fugitive criminal, but is only required to have an enquiry conducted from the Magistrate as envisaged in Section 5 of the Act upon receipt of a request from a foreign State.
Final Decision: The court dismissed the petitioner's application for discharge, holding that there was no substance in his contention that the request for surrender or return had to be made to the Magistrate by the Central Government within 60 days.
( 1 ) THE petitioner, who isa Danish National, has sought the quashing of order (Annexure 10) dated 26th November, 1997 passed by Shri Dharmesh Sharma, Metropolitan Magistrate, Delhi by which the petitioner s application for being discharged was dismissed.
( 2 ) THE facts as revealed are that on the basis of information received by the Deputy Commissioner of Police (Airport), New Delhi from the Assistant Director, Central Bureau of Investigation, Interpol Wing, New Delhi, who in his turn had received a communication from U. S. , Narcotics Control Bureau, the petitioner was arrested on 6th August, 1997. He was then produced before the Additional Chief Metropolitan Magistrate, New Delhi on the same day and was remanded to judicial custody till 12th August, 1997.
( 3 ) A request was made by the Central Government on 12th August, 1997 to 81 the Additional Chief Metropolitan Magistrate for issuance of provisional warrant of arrest against the petitioner, as envisaged in Sub-section (1) of Section 34-B of the Extradition Act (Act No. 34 of 1962) (hereinafter referred to as the Act ), which was issued. The petitioner thereafter was remanded from time to time. It is not in dispute that a request for the petitioner s (a fugitive criminal of a foreign State) surrender was received by the Central Government on 30th September, 1997. On that basis the Central Government on 22nd October, 1997 passed an order as per provision of Section 5 of the Act calling upon the Metropolitan Magistrate, having jurisdiction in the matter, to make necessary enquiries. Requisite request papers received by the Ministry of External Affairs from the Diplomatic Representative of the U. S. Government in India were also sent to the Metropolitan Magistrate.
( 4 ) ON the basis of the aforementioned facts an application was moved on behalf of the petitioner for his discharge. It was alleged that within the period of sixty days from the date of petitioner s provisional arrest on 12th August, 1997, no request was received by the Metropolitan Magistrate for the petitioner s surrenderor return. As such in terms of Sub-section (2) of Section 34-B of the Act the petitioner was liable to be discharged. This application was dismissed by the Metropolitan Magistrate through the impugned order.
( 5 ) WE heard learned Counsel for the parties and were taken through the entire record.
( 6 ) LEARNED Counsel for the petitioner urged that the provision of Sub-section (2) of Section 34-B of the Act is mandatory in nature. In the absence of any request within a period of sixty days from the date of arrest, from the Central Government for surrender or return, a fugitive criminal, who is arrested under Sub-section (1) of Section 34-B of the Act would be liable to be discharged. According to him, request to the Magistrate has to be made by the Central Government. In the instant case request admittedly was received from the Diplomatic Representative of U. S. Government in India by the Ministry of External Affairs on 30. 9. 1997. No further request was made to the Metropolitan Magistrate till 22. 10. 1997. Period of sixty days expired on 11. 10. 1997. Accordingly the petitioner is entitled to discharge.
( 7 ) MR. Vali, learned Counsel for the respondents, on the other hand, contended that the request as referred to in Sub-section (2) of Section 34b of the Act is the requisition for surrender or return of a fugitive criminal, which is received by the Central Government from a foreign State and not a request made by the Central Government to the Magistrate.
( 8 ) UNDER the Scheme of the Act, a fugitive criminal can be put under arrest under three circumstances: firstly when an order is issued by the Central Government under Section 4 of the Act to the Magistrate for making an enquiry into the offence, on receipt of such an order of the Central Government the Magistrate is empowered to issue warrants for the arrest of fugitive criminal and thereafter to proceed to make necessar
