Abdul Malek Ahmad FCJ:

The Government of the Republic of India had made a request for the extradition of the respondent Ottavio Quattrocchi, an Italian residing at 12 Jalan Langgak Golf, Kuala Lumpur in Malaysia accusing him of the commission of the following offences namely" criminal conspiracy (s. 120-B) read with s. 420 (cheating and dishonestly inducing delivery of property) of the Indian Penal Code 1860 and s. 5(2) read with s. 5(1)(d) (criminal misconduct) of the Prevention of Corruption Act 1947 " within the jurisdiction of the Republic of India.

On 15 December 2000, the Minister of Home Affairs had accordingly issued a special direction under s. 3 of the Extradition Act 1992, hereinafter" the Act " , to apply the provisions of the Act to the extradition of the respondent and, by order under s. 12(3) of the Act, authorised the Magistrate to issue a warrant for the apprehension of the respondent. The said warrant of apprehension was issued by the Magistrate on 18 December 2000 and the respondent was arrested on 20 December 2000.

Learned counsel for the respondent in the Sessions Court decided to proceed only on one issue and that was the question of the absence of charges in the proceedings. He argued that the respondent had a right to know the grounds of his arrest when the warrant of apprehension was issued and failing to inform him of such would render his arrest illegal.

Further, the charges were necessary during the proceedings in the Sessions Court to determine the issue of double criminality as, under the Act, the offences committed must be offences punishable under the law of the requesting country as well as the country to which the request is made. Finally, it was his contention that the absence of charges contravened the law of criminal procedure.

The appellant's reply was that extradition proceedings were in the nature of an inquiry and since it was not a prosecution, there was no necessity for charges to be framed. All the court had to decide was whether there was a prima facie case supporting the Minister's requisition order.

It was the view of the learned Sessions Court Judge that, at that stage, it was sufficient for the requesting country to specify in general terms the offences committed by the respondent without particularising them and the Minister has a discretion to act on this request. The only point to consider was whether the steps taken subsequently are correct in law.

However, he held that the general wording of the offences does not amount to sufficient notice to the respondent of the grounds of his arrest and, therefore, his arrest was illegal. Further, although the Magistrate acted correctly in pursuance of s. 15 of the Act in transferring the proceedings to the Sessions Court, the Sessions Court does not have the jurisdiction to review the execution of powers by a Magistrate in issuing the warrant of apprehension.

As for the offences stated in the requisition order, the Sessions Court Judge took the view that by describing the first offence of criminal conspiracy read with cheating, which are two separate offences under both the Indian and Malaysian laws, it had the effect of duplicity giving rise to ambiguity as extradition proceedings are subject to the principle of double criminality in the light of s. 6 of the Act. Similarly, for the second offence of criminal misconduct, the Sessions Court Judge held that it was too vague and general to fall under s. 6 of the Act. Consequently, the Sessions Court Judge ruled that the offences stated in the requisition order was tainted with illegality which would prejudice the respondent in conducting his defence following the procedure in the Sessions Court provided for in s. 19 of the Act.

The conclusion of the Sessions Court Judge was as follows:

This being the case the law of Evidence especially the law as to relevancy of evidence applies in extradition cases. Without a proper description of the offences committed it will be impossible fo