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1998 Supreme(Del) 261
High Court Of Delhi
DARSHAN KUMAR - Appellant
Versus
UNION OF INDIA - Respondent
Criminal 368 of 1997
Decided On : 04/01/1998
A.K.VALI, ASHOK AGARWAL
The enquiry conducted by the Extradition Magistrate is not a trial and its purpose is to determine whether a prima facie case or reasonable ground exist, which warrant the fugitive criminal being sent to the demanding state.
Headnote:
EXTRADITION - Enquiry conducted by Extradition Magistrate - Not vitiated by bias - Due and appropriate opportunity to lead defence evidence given - Prima facie case made out against petitioner - Non-application of mind by respondent not established - Petitioner's discharge under Section 24 of the Extradition Act, 1962 not permissible - Sufficient cause shown for not conveying petitioner out of India within two months.
Fact of the Case:
Petitioner challenged the order of extradition to Canada passed by the respondent under Section 8 of the Extradition Act, 1962. Petitioner alleged that the enquiry conducted by the Extradition Magistrate was vitiated by bias, he was not given due and appropriate opportunity to lead defence evidence, no prima facie case was made out against him, and the respondent failed to apply its mind to the facts and circumstances of the case.
Finding of the Court:
The Court held that the enquiry conducted by the Extradition Magistrate was not vitiated by bias, the petitioner was given due and appropriate opportunity to lead defence evidence, a prima facie case was made out against the petitioner, and the respondent did apply its mind to the facts and circumstances of the case. The Court further held that the petitioner's discharge under Section 24 of the Extradition Act, 1962 was not permissible as sufficient cause was shown for not conveying the petitioner out of India within two months.
Issues: 1. Whether the enquiry conducted by the Extradition Magistrate was vitiated by bias? 2. Whether the petitioner was given due and appropriate opportunity to lead defence evidence? 3. Whether a prima facie case was made out against the petitioner? 4. Whether the respondent failed to apply its mind to the facts and circumstances of the case? 5. Whether the petitioner's discharge under Section 24 of the Extradition Act, 1962 was permissible?
Ratio Decidendi: 1. The enquiry conducted by the Extradition Magistrate is not a trial and its purpose is to determine whether a prima facie case or reasonable ground exist, which warrant the fugitive criminal being sent to the demanding state. 2. The Magistrate is required to take such evidence, as may be produced before him in support of the requisition and on behalf of the fugitive criminal including such evidence to show that the offence of which the accused is charged or has been convicted "is an offence of political character or is not an extradition offence". 3. On consideration of the evidence, the Magistrate is to form an opinion whether prima facie a case is made out or not in support of the requisition. 4. In case no prima facie case is made out. Magistrate is required to discharge the fugitive criminal. 5. In case primafacie case is made out, fugitive criminal is to be committed to prison to await the orders of Central Government. 6. The power to be exercised by the Central Government is contained in Section 29 of the Act. It includes the consideration which are to weigh with the Central Government in declining to surrenderor return a fugitive criminal, namely that the offence is of a trival nature or that the application for surrender has not been made in good faith or it would not be, in the interest of justice expedient to surrender or return the fugitive criminal.
Final Decision: The petition was dismissed and the interim order was vacated.
( 1 ) ON 20. 5. 1997, the petitioner approached this Court praying for quashing the order dated 16. 5. 1997 passed by the respondent to extradite him to Canada and further to set him at liberty or in the alternative to direct the respondent to pass appropriate orders for conduct of his trial in India on such terms and conditions, as may be deemed appropriate.
( 2 ) PURSUANT to request for provisional arrest made on 4. 4. 1996 oh behalf of the Canadian Government, the petitioner was arrested on 6. 4. 1996 at New Delhi. On 1. 5. 1996 formal request was made by the Canadian High Commission in New Delhi to respondent No. 1 for the petitioner s extradition to Canada. Respondent No. 1, in exercise of its powers under Section 5 of the Extradition Act, 1962 (hereinafter referred to as the act ) passed an order on 19. 7. 1996 requesting Mrs. Neena Krishna Bansal, Metropolitan Magistrate, New Delhi to conduct an enquiry into the matter under the Act. Warrants of petitioner s production were issued on 6. 8. 1996 and from judicial custody he was produced before the Extradition Magistrate on 28. 9. 1996. _ Enquiry though commenced, could not be concluded by Mrs. Neena Krishna Bansal. Another order was passed for Magisterial enquiry on 7. 1. 1997 by which Mr. Virender Kumar Bansal, Metropolitan Magistrate was asked to enquire into the matter. Enquiry thereafter was conducted and completed by Mr. Virender Kumar Bansal.
( 3 ) IN support of the enquiry, witnesses were examined by the respondent. The petitioner submitted his statement in writing. After the parties were heard, Extradition Magistrate on 18. 3. 1997 prepared and signed his report. It was sent to respondent No. 1 recommending that the petitioner be extradited since in his opinion, prima facie case was made out against the petitioner. Copy of the report received by respondent No. 1 on 19. 3. 1997 is placed on record as Annexure R-1. Respondent No. 1 on 16. 5. 1997, in exercise of its powers under Section 8 of the Act passed the following order directing that the petitioner, who had been committed to judicial custody by the Extradition Magistrate, be delivered to Canadian Escort Officer for taking him back to Canada :
"order Sub: Warrant for the custody and removal of the fugitive criminal Sh. Darshan Kumar and his delivery to the Government of Canada. (Issued under Section 8 of the Extradition Act, 1962 ). 1. Whereas the Government of Canada had requested the Government of India for the extradition of the fugitive criminal, Shri Darshan Kumar, an Indian national who is alleged to have committed offences of fraud and theft in Canada; 2. And whereas, in terms of Article 3 of the Extradition Treaty between the Government of India and the Government of Canada which is in force with effect from 7. 5. 87 vide GSR No. 689 (E), these offences are extradition offences; 3. And whereas, the Government of India through its Order No. T-413/ 15/96 dated 7. 1. 97 issued under Section 5 of the Extradition Act, 1962, had requested Sh. V. K. Bansal, Metropolitan Magistrate, Patiala House Court, New Delhi to inquire into this extradition matter; 4. And whereas, the Magistrate has submitted his reply dated 18. 3. 97 and found a prima fade case in support of the request from the Canadian Government for the extradition of Sh. Darshan Kumar; 5. And whereas, the Central Government after full and careful examination of the inquiry report, has decided that it would be lawful and expedient if the said fugitive criminal, Sh. Darshan Kumar face aforesaid charges in Canada; 6. Now, therefore, in view of the above, the Central Government in exercise of the powers conferred by Section 8 of the Extradition Act, 1962 and in conformity with Article 12 of the Extradition Treaty between India and Canada, has directed that the said fugitive criminal, Shri Darshan Kumar who has been committed to judicial custody in New Delhi by Sh. V. K. Bansal, Metropolitan Magistrate, Patiala House Court, New Delhi at the
