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High Court Of Delhi
DARSHAN KUMAR - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 12/20/1996
EXTRADITION ACT, 1962 - SECTION 4, 5, 6, 7, 12, 24 - EXTRADITION OF FUGITIVE CRIMINALS - APPLICABILITY OF CHAPTER II AND CHAPTER III - INTERPRETATION OF SECTIONS - COURT'S JURISDICTION TO DISCHARGE PERSON APPREHENDED - SUMMARY
Fact of the Case:
Petitioner, an NRI, was arrested in Delhi under Section 41(1)(g) of the Criminal Procedure Code based on arrest warrants issued by the Canadian Government. He challenged his detention, arguing that it was unlawful and unconstitutional, and sought his discharge and the release of his belongings.
Finding of the Court:
The court held that Chapter II of the Extradition Act, 1962, dealing with the extradition of fugitive criminals to foreign states and Commonwealth countries, was applicable in this case, and not Chapter III, which deals with the return of fugitive criminals to Commonwealth countries with extradition arrangements.
Issues: 1. Whether Chapter II or Chapter III of the Extradition Act, 1962, was applicable in the case. 2. Whether the court had jurisdiction to discharge the petitioner under Section 24 of the Act.
Ratio Decidendi: 1. The court interpreted Section 12 of the Act and the relevant notifications to conclude that Chapter II, dealing with extradition to foreign states and Commonwealth countries, was applicable, as Canada was not included in the notifications making Chapter III applicable to certain Commonwealth countries. 2. The court held that its jurisdiction to discharge the petitioner under Section 24 of the Act would arise only after the Magistrate appointed under Section 5 of the Act submitted a report to the Central Government regarding the committal of the petitioner to prison to await the Central Government's orders.
Final Decision: The court dismissed the petition, holding that the petitioner was not entitled to the relief claimed since the Magistrate had not yet submitted the report under Section 7(4) of the Act to the Central Government.
( 1 ) IN this petition u/section 482, Criminal Procedure Code read with Article 227 of the Constitution of India, the petitioner prays for his discharge as also the direction for release of the goods and belongings of the petitioner taken into possession by the of Police Station Darya Ganj, New Delhi, prayed more particularly in the prayer clause of the petition.
( 2 ) IT is the say of the petitioner that the petitioner is a NRI and is having permanent abode in Jallandhar (Punjab); that the petitioner had gone to Canada where the settled his business and residence; that the petitioner had come to India to meet his family members after a long time and particularly as his mother had expired; that while the petitioner had come to India, his wife Smt. Bimla Batra had lodged some complaint in Canada persuant to which arrest warrants were issued against the petitioner and in execution of the warrants of arrest issued by the Canadian Government, the petitioner was arrested in Delhi by P. S. Darya Ganj on 6. 4. 96 u/section 41 (l) (g) of Criminal Procedure Code and since then the petitioner is in judicial custody; that the detention of the petitioner is totally unlawful, unconstitutional and illegal; that the petitioner is being deprived of his fundamental rights of doing his business and to lead his life permanently; that as per the Extradition Treaty, the detention of the petitioner is invalid and cannot be prolonged any more.
( 3 ) IT is submitted by Mr. K. K. Sharma, learned Counsel for the petitioner that Chapter-111 of the Extradition Act, 1962 is applicable and not Chapter II of the said Act; that the three notifications under the said Act do not refer to Canada; that the trial of the petitioner would be in Canada. As against this, it is submitted by Mr. A. K. Vali, learned Counsel for the respondent that this Court can exercise the powers only u /section 24 and that too after committal of the petitioner to the prison under Section 7 (4) of the Act.
( 4 ) CHAPTER II of the Act deals with the extradition of fugitive criminals to foreign State and to Commonwealth countries to which Chapter III does not apply whereas Chapter-111 of the Act deals with the return of the fugitive criminals to Commonwealth Countries with extradition arrangements. Section 12 deals with the application of Chapter III. Sub-section (1) thereof provides that "this chapter shall apply only to any such Commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem expedient to the Central Government to apply the same. " Notifications GSR 433 (E), GSR 434 (E) and GSR 38 (E) make the Act other than Chapter III applicable to Papua-New Guinea w. e. f. 1. 9. 78, to Sri Lanka w. e. f. 1. 9. 78 and to Fiji w. e. f. 1. 2. 79 respectively. The conjoint reading of Chapter III (Section 12) and the Notifications referred to above suggests Chapter II of the said Act to be applicable to the present case and not Chapter III, as sought to be contended by the petitioner.
( 5 ) SECTION 4 deals with the requisition for surrender. Section 5 deals with order of Magisterial inquiry. Section 6 deals with the issue of warrant for arrest and Section 7 deals with procedure before the Magistrate. Sub-section (4) of Section 7 provides that "if the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State of Common wealth country, he may commit the fugitive criminal to prison to await the orders of the Central Government and shall report the result of his inquiry to the Central Government, and shall forward together with such report, and written statement which the gugitive criminal may desire to submit for the consideration of the Central Government". Section 24 deals with the discharge of person apprehended if not surrendered or returned within two months. It provides that "if a fugitive criminal who, in pursuance of this Act, has been committed to prison to await
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