New Delhi, Sep 1 (ILNS) The Delhi High Court issued notice to the Centre and sought their clarification on the treaty between India and Australia on the rules of extradition between both the countries. .
The High Court also stayed the ruling of the Delhi Chief Metropolitan Magistrate who had recommended the extradition of an Indian national accused of killing a pedestrian in Australia.
The Delhi High Court, on August 17, issued notice to the Centre, on the petition filed by the accused which raising a question that the request of his extradition by Australian authorities was received on February 3, 2010, whereas the treaty, on the basis of which the extradition was sought, came into operation only on January 20, 2011.
A Delhi Court had in the case where the death of a pedestrian was caused by an Indian national in Australia in 2008 by rash and negligent driving, recommended his extradition to Australia. The accused was declared as a “fugitive criminal”(FC).
Additional Chief Metropolitan Magistrate Akash Jain had on August 12, noted that to ascertain extractability of offences in question, the most important requirement is that the conduct of FC must constitute an illegal/criminal act under the law of both the Requesting State as well as Requested State. This rule is known as ‘Double Criminality Rule’. While there is no challenge to the fact that the conduct of FC is a criminal offence in both Australia as well as India, the only contention raised on behalf of the accused is the nomenclature of offences in India vis à vis offences qua which he is charged in Australia.
The matter of Puneet vs Union of India was referred to the Delhi High Court in which it held that the treaty arrangement with Australia, which was of the year 1971, was only being replaced by extradition treaty vide notification dated March 07, 2011. Therefore, the notification of year 2011 does not affect the applicability of Extradition Act upon the Requesting State. Even otherwise, it has already been observed above that Section 304 Part-II of IPC is applicable on the facts of the present case as opposed to Section 304-A of IPC, which was duly mentioned in the list of extradition offences in the Second Schedule in the pre-amended Extradition Act, 1962.
The Delhi High Court, on August 17, heard the petition of Puneet challenging the order of the CMM and issued notice to the Centre. The High Court noted that the one of the main grounds raised by the petitioner was that the request for extradition was received on February 3, 2010, whereas the treaty, on the basis of which the extradition was sought, came into operation only on January 20, 2011.
The Delhi High Court however ruled that the petitioner will not be extradited out of the country till the next date, September 20.
The background of the proceeding is that in the intervening night of September 30 and October 1, 2008 Puneet (FC) was allegedly driving a Holden Commodore Sedan in a drunken state and in rash and negligent manner and while driving the said vehicle in aforesaid manner, FC hit two pedestrians walking on the city road, South Bank in the State of Victoria, Australia. As a result of the impact, one of the pedestrians namely Dean Byron Hofstee died and serious injuries were caused to another pedestrian namely, Clancy Coker. On October 01, 2008, FC was charged with Culpable Driving causing death of Hofstee and negligently causing serious injuries to Coker. He was thereafter, produced before the Melbourne Magistrate’s Court where he was granted bail on his own undertaking with a number of conditions.
On April 17, 2009, FC pleaded guilty in the County Court at Melbourne in the State of Victoria to the offences of culpable driving and negligently causing serious injury. The proceedings thereafter got adjourned and bail of FC got extended. FC was asked to appear at a plea hearing on August 20, 2009 in the County Court. FC though failed to appear at the said hearing, as a result of which a warrant of arrest was issued against him by County Court for offences of culpable driving and negligently causing serious injury. FC reportedly left Australia on June 12, 2009 using the passport of another Indian National namely, Sukhcharanjit Singh. Thus, on October 02, 2009, Magistrate’s Court at Melbourne issued a warrant of arrest against FC in respect of the offence of improper use of a foreign travel document.
Vide Note of October 06, 2009, a request for provisional arrest of the accused was made by Australia to the Government of Republic of India as he was wanted by Authorities in Requesting State to face prosecution for the offences of Culpable driving under Section 318(1) of the Crimes Act, 1958 (Victoria); Negligently causing serious injury under Section 24 of the Crimes Act, 1958 (Victoria) and Improper use or possession of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005, (Commonwealth).
Thereafter, two requests for urgent provisional arrest of the accused were received from the Requesting State. A formal request for extradition of the accused was received on February 03, 2010 along with supporting documents in six parts from Australia. On receipt of an order of the Ministry of External Affairs, Govt. of India vide June 08, 2010 order made under Section 5 of the Act by the Predecessor Court, issued a warrant of arrest against Puneet under Section 6 of the Act.
Despite issuance of repeated warrants against the accused at his Panchkula, Haryana address, he could not be apprehended. On February 13, 2011, father of the accused gave an affidavit that his son was no longer residing in India and had left for Australia. As such, the inquiry proceedings were adjourned sine-die on October 04, 2012 till he got traced. On December 05, 2013 an application was moved by Union of India before the CMM Court for issuance of production warrants against the accused as it was reported that a communication was sent by Punjab police, Patiala that FC had been arrested on November 29, 2013 and was sent to judicial custody.
Consequently, production warrants were issued against the accused by Predecessor Court on December 05, 2013 and he was produced from Central Jail, Patiala, Punjab before Magisterial Court in Delhi.
Counsel for FC argued that a bare reading of Section 318 of Crimes Act, 1958 makes it absolutely clear that the death of a person in a vehicular accident due to recklessness/negligence/under the influence of liquor/under the influence of drugs is considered as Culpable Driving and that sub-section (4) and (5) of Section 318 of Crimes Act, creates offence of Homicide as an exception to the offence of Culpable Driving.
It is further argued by the Counsel for FC that in Indian Law as well, death caused by rash or negligent Act not amounting to culpable homicide is covered under Section 304-A of Indian Penal Code, 1860 (IPC), while offence of culpable homicide is defined under Section 299 of IPC and punishable under Section 304 of IPC. Thus, it was argued that the offence of Section 318 of Crimes Act is at par with provision of Section 304-A of IPC which is only punishable upto 2 years of imprisonment. Moreover, the other offences charged against FC i.e. Section 24 of Crimes Act and Section 21(2) of the Foreign Passports Act (Law Enforcement and Security) Act 2005 are pari materia with Section 279 r/w Section 338 of IPC and Section 12 (1) (d) of Passports Acts under Indian Law, both of which offences do not carry imprisonment more than 2 years.
It is further contended by Counsel for FC that under Extradition Act, 1988 of Australia, extradition offence is defined as an offence for which the maximum penalty is death or imprisonment, or other deprivation of liberty for a period not less than 12 months. Thus, even as per the law of Extradition of Requesting State, extradition is permissible only with respect to offences for which penalty is for a period not less than 12 months. Since, the offences made out against the FC under Indian Law i.e. Section 279/338/304-A IPC and Section 12(1)(d) of Passports Act do not carry any mandatory minimum sentence of one year and are punishable for any period of imprisonment up to 2 years, thus, the offences in question do not fall under the category of ‘Extradition offence’.
Additional Chief Metropolitan Magistrate Akash Jain on August 12 , the most important requirement is that the conduct of FC must constitute an illegal/criminal act under the law of both the Requesting State as well as Requested State. This rule is known as ‘Double Criminality Rule’. The only contention raised on behalf of FC is nomenclature of offences in India vis à vis offences qua which he is charged in Australia.
Totality of acts alleged against the FC are to be taken into consideration and it does not matter if the constituent elements of the offences between the two States differ. Therefore, the argument of Ld. Counsel for FC that UOI has not denominated the offences of Culpable Driving (in Australia) with the same terminology by keeping it under the category of Culpable Homicide, is without any consequence, CMM observed.
Section 318 of Crimes Act, 1958 provides for death of a person in a vehicular accident due to recklessness /negligence /under the influence of liquor /under the influence of drugs and further its sub-section (4) and (5) creates offence of homicide as an exception to this offence. The punishment prescribed under this section is imprisonment for a period upto 20 years or fine or both. Under Indian Law, Section 279 IPC r/w Section 304-A IPC ordinarily deals with death of a person caused by a motor vehicle driven in rash or negligent manner. While, Section 304 Part-II of IPC deals with death of a person caused with the knowledge of the offender that he is likely by such act would cause death.
The Court held that Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005, Commonwealth is concerned, which is punishable for imprisonment for a period upto 10 years, Section 12(1)(d) of Passports Act, 1967 is prima-facie an equivalent offence which is punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs. 5,000/- or with both. This offence also fulfils the principle of dual criminality and hence, is an extraditable offence.
After considering the entire facts, circumstances of the present case, duly authenticated documents received in support of the extradition request and provisions of Extradition Treaty executed between both Requesting and Requested State the Court recommend to the Union of India the extradition of Puneet to the Requesting State, the Commonwealth of Australia for facing trial for the offences of Culpable Driving under Section 318(1) of the Crimes Act, 1958 (Victoria), Negligently causing serious injury under Section 24 of the Crimes Act, 1958 (Victoria), Improper use of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Commonwealth), the High Court noted that The High Court noted that the request for extradition was received by Indian authorities on February 3, 2010, whereas the treaty, on the basis of which the extradition was sought by Australian authorities came into operation only on January 20, 2011.
The High Court directed, “Till the next date of hearing, the petitioner will not be extradited out of the country.” The matter will come up for hearing on September 20, 2021./ILNS/SS/SNG