Delhi High Court

Delhi High Court: In a case wherein a petition was filed by a German national to set aside the Extradition Inquiry Report and the Order of Union of India, a Single Judge Bench of Anish Dayal, J. upheld the impugned order of the ACMM recommending the extradition of the petitioner to the Requesting State (Government of Federal Republic of Germany) to face trial for sexual offences against children under the German Criminal Code.

Background

An extradition request was received from the Government of Federal Republic of Germany through diplomatic channels for the extradition of the petitioner, who was a German national. The petitioner was an accused in Germany and was alleged to have committed offences under Section 176 (sexual abuse of children), Section 184(b) (dissemination/procurement and possession of child pornography), Section 223 (bodily harm), Section 230 (request to prosecute), Section 234 (kidnapping), Section 52 (several offences committed by one act) and Section 53 (joinder of offences) of the German Criminal Code.

In 2020, the Republic of Germany as the Requesting State sent a formal request for extradition of the petitioner along with supporting documents to the Government of India (the Requested State). Consequently, the Ministry of External Affairs, Government of India made a request on 17-3-2022 under Section 12 of the Extradition Act, 1962 to conduct an inquiry proceeding qua the petitioner. Meanwhile, it was also transpired that the petitioner had been arrested in 2020 in the State of Karnataka in India for violation of Section 14(c) of the Foreigners Act, 1946 and was facing trial for the same. The ACMM before whom the inquiry proceedings were initiated issued production warrants in 22-3-2022, pursuant to which the petitioner was produced on 1-4-2022 and had been in custody since then. The ACMM upon examination of the settled law for conducting inquiries under the Extradition Act noted that two aspects had to be examined, firstly, whether the endorsed warrant for the apprehension of the fugitive was duly authenticated; and secondly, whether the offence for which the fugitive was accused was an extradition offence.

The ACMM relied on Article 2(1)(3) of the Extradition Treaty (“Treaty”) and Section 2(c)(i) of the Extradition Act, 1962 and held that since the offences in question constituted an illegal/criminal act under laws of both the requesting as well as the requested state and were punishable by a maximum term of imprisonment for a period of at least one year, in both the countries, the principle of dual criminality was duly satisfied and the offences in question were therefore, extraditable offences. Further, the ACMM held that the documents which had been sent with the request from Germany, including the arrest warrant and the information concerning the identity and nationality of the petitioner were duly endorsed and therefore authentic, and had been authenticated by the Ministry of External Affairs, Union of India. Thus, the ACMM recommended to the Union of India the extradition of the petitioner.

The petitioner filed a written statement under Section 17(3) of the Extradition Act, 1962 denying the allegations made against him and thereafter, Union of India considered the said written statement and thus, recommended extradition of the petitioner from India to Germany for standing trial in Germany. Counsel for the petitioner submitted that the findings of the ACMM were untenable and constituted an infirmity in the process of extradition as it did not comply with the treaty between the countries.

Analysis, Law, and Decision

The Court noted that the municipal law applicable locally in India (the Requested State) relating to extradition was the Extradition Act, 1962 and as per Section 15 of the Extradition Act, 1962, the Government of India had to be satisfied that the warrant issued against the fugitive was issued by a person having lawful authority and accordingly, if the Indian government endorsed the same, the said fugitive would be brought before a Magistrate in India. Thereafter, an enquiry was to be conducted by that Magistrate under Section 17 of the Extradition Act, 1962, which involved confirming if the endorsed warrant was duly authenticated and whether the offence in question was an “extradition offence”. If the Magistrate was satisfied then the report was sent to the Central Government with a certificate of committal of the fugitive to prison, along with any written statement which the fugitive might desire to submit for the consideration of the Government.

The Court further noted that to examine whether the offences were “extradition offences”, the reference would have to be made to the Extradition Treaty between Germany and India and as per Article 2 of the Treaty, the extraditable offences were those which were punishable under the laws of both the countries by a maximum term of punishment of at least one year. The Court opined that as per the nature of the offences which the petitioner had been accused of, the same were punishable in India under the Protection of Children from Sexual Offences Act 2012, (POCSO), where punishments for such offences ranged from a minimum of 3 years up to life imprisonment. Thus, the Court held that the offences in question would be “extradition offences”.

The Court opined that the arrest warrant issued by the Republic of Germany was duly endorsed as the arrest warrant had the signature of the Judge of the District Court along with the stamp of the District Court and it was also signed by the clerk of the registry that the copies were identical to the original documents. Moreover, these documents were duly endorsed as was required by the provisions of the Extradition Act, by the Ministry of External Affairs (UOI) through the Deputy Secretary (Extradition) who certified that the arrest warrant was issued by judicial authority in Germany who had lawful authority to issue such warrant. Thus, the Court held that the provisions of the Extradition Act and the procedure to be adopted stood duly satisfied.

The Court noted that the contention of the counsel of the petitioner that as per Article 12(2)(a) and 12(5) of the Treaty, the identity papers ought to be duly authenticated was untenable as the Note Verbal was duly signed by a competent authority and the documents such as, the passport, the fingerprints and the photographs were appended along with the arrest warrant, which was already duly authenticated and endorsed. Therefore, the Court opined that therefore, it would be implicit that the documents would also be considered as authenticated and endorsed as part of the dossier of documents which were received with the Note Verbale, and separate endorsement might not be necessary on these documents. Moreoevre, the petitioner had not denied that he did not possess the identity as per the identity documents. Thus, the Court held that the identity papers of the petitioner formed part of an authenticated chain of documents including the Note Verbale, the arrest warrant, the certification of the arrest warrant and were duly endorsed by the Union of India.

Therefore, this Court opined that the impugned order passed by the ACMM recommending the extradition of the petitioner to the Requesting State (Government of Federal Republic of Germany) to face trial for offences under the German Criminal Code, did not suffer from any infirmity and thus, the Court upheld the impugned order of the ACMM. Further, the Court dismissed the petition and held that the petitioner would be extradited by the Government of India to the Federal Republic of Germany in accordance with the applicable procedure.

[Bernd Alexander Bruno Wehnelt, 2023 SCC OnLine Del 1165, decided on 27-2-2023]


Advocates who appeared in this case :

For the Petitioner: DHCLSC Satyam Thareja;

For the Respondent: CGSC Ajay Digpaul;

Advocate Anil Soni;

Advocate Kamal Digpaul;

Advocate Swati.

*Judgment authored by: Justice Anish Dayal.

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