Procedure to be followed by the Magistrate in Case of Extradition inquiry

Once a request for extradition is received in India, the Central Government may by virtue of Section 5 of the Extradition Act issue an order to any Magistrate who would have jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction to inquire into the case. Section 5 of the Extradition Act reads as under:

“5. Order for magisterial inquiry. Where such requisition is made, the Central Government may, if it thinks fit, issue an order to any Magistrate who would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction, directing him to inquire into the case.”
13. Section 7 of the Act lays down the procedure that is to be followed before the Magistrate in such an inquiry:-

“7. Procedure before Magistrate. (1) When the fugitive criminal appears or is brought before the Magistrate, the Magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a court of session or High Court.
(2) Without prejudice to the generality of the foregoing provisions, the magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence.
(3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal.
(4) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State, 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, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Government.”

 In Sarabjit Rick Singh v. Union of India (UOI), (2008) 2 SCC 417 their Lordships held:

“34. Sections 208 and 209 of the Code of Criminal Procedure, 1898 contemplate taking of such evidence as may be produced in support of the prosecution or on behalf of the accused that may be called for by the Magistrate. Compliance of the principle of natural justice or the extent thereof and the requirement of law is founded in the statutory scheme. The Magistrate is to make an enquiry. He is not to hold a trial. The Code of Criminal Procedure makes a clear distinction between an enquiry, investigation and trial. Authority of the Magistrate to make an enquiry would not lead to a final decision where for a report is to be prepared. Findings which can be rendered in the said enquiry may either lead to discharge of the fugitive criminal or his commitment to prison or make a report to the Central Government forwarding therewith a written statement which the fugitive criminal may desire to submit for consideration of the Central Government. Sub-section (2) of Section 7 envisages taking of such evidence as may be produced in support of the requisition of the foreign State as also on behalf of the fugitive criminal. It is open to the fugitive criminal to show that the offence alleged to have been committed by him is of political character or the offence is not an extraditable offence. He may also show that no case of extradition has been made out even otherwise. The Magistrate, therefore, in both the situations is required to arrive at a prima facie finding either in favour of fugitive criminal or in support of the requesting state. [See Sohan Lal Gupta v. Asha Devi Gupta (Smt) and Ors. (2003) 7 SCC492 ].

 In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word “evidence” has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate have greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.”

In Smt. Nina Pillai and others v. Union of India and others, 1997 Crl.LJ 2359, this Court, considering the scope of inquiry to be conducted by a Magistrate under the Extradition Act, observed:-

“9. We have given our careful consideration and thought to the submissions made by the learned Counsel for the petitioner. It is clear from the scheme of the Extradition Act that pursuant to a request made under Section 4 of the Act, the order contemplated to be passed for a Magisterial inquiry under Section 5 does not contemplate a pre-decisional or prior hearing. Section 5 of the Act is an enabling provision by which, a Magistrate is appointed to inquire into the case. The Magistrate on the order of inquiry being passed by Central Government issues a warrant of arrest of the fugitive criminal. The whole purpose is to apprehend or prevent the further escape of a person who is accused of certain offences and/or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. The Act contains sufficient safeguards in the procedure to be followed in the inquiry by the Magistrate to protect the fugitive criminal. The Magistrate is to receive evidence from the requesting State as well as of the fugitive criminal. The fugitive criminal is entitled to show that the offences of which he is accused or convicted are offences of political character or not an extradition offence. Besides, the Magistrate, if he comes to a conclusion that a prima facie case is not made in support of the requisition by the requesting State, he is required to discharge fugitive criminal. The Act also has provisions under section 25 of the Act for grant of bail. The Act under section 29 confers wide powers on the Central Government to discharge the accused or cancel any warrants issued, if it finds that the application for surrender of return of the fugitive criminal has not been made in good faith. It may also discharge the fugitive criminal in the interest of justice or for political reasons if it is unjust or inexpedient to surrender or return the fugitive criminal. We are of the view that the challenge to Section 5 of the Act on the ground that it does not provide any pre-decisional hearing or is vocative of natural justice is without any merit and misconceived and it must fail.

 We may notice here that upon receiving information with sufficient particulars from a requesting State that a fugitive criminal is wanted for any alleged offence committed in the requesting State or for undergoing trial or sentence, the Central Government passes an order under Section 5 of the Act, appointing a Magistrate to inquire into the case. The Criminal Procedure Code also provides for the arrest of a person without warrant who is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned in the offence, under Section 41 of the Code. Accordingly, on credible information being received from a requesting State, with sufficient particulars, about a person having been involved in any offence, the said person could be arrested in India without warrant. It is now fairly well-settled that the Magisterial inquiry which is conducted pursuant to the request for extradition is not a trial. The said enquiry decides nothing about the innocence or guilt of the fugitive criminal. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable grounds which warrant the fugitive criminal being sent to the demanding State. The jurisdiction is limited to the former part of the request and does not concern itself with the merits of the trial, subject to exceptions, as outlined in the preceding paragraph 7, in which case the request for extradition is denied by the Central Government.”

 In Kamlesh Babulal Aggarwal v. Union of India (UOI) and another, 2008(104) DRJ 178, it was observed:

“15. In our opinion, the power of the Magistrate in conducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure, 1973. At the stage of the framing of charge even a strong suspicion founded upon material and presumptive opinion would enable the court in framing a charge against the accused. At that stage, the court possess wider discretion in the exercise of which it can determine the question whether the material on record is such on the basis of which a conviction can be said reasonably to be possible. The requirement of Section 228 also is of a prima facie case. Sufficiency of evidence resulting into conviction is not to be seen at that stage and which will be seen by the trial court. At that stage meticulous consideration of materials is uncalled for. The persons who are not examined by the original investigating agency may be examined by another investigating agency to make the investigation more effective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not. At the stage of framing of charge, evidence is not to be weighed. The court is not to hold an elaborate inquiry at that stage.

 Section 7 (3) and (4) of the Act in fact require a prima facie case only “in support of requisition”. Reading the said provision Along with Section 29, we feel that the ambit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not being targeted for extraneous reasons.”