Maninder Pal Singh Kohli v. Uoi & Ors

Mukul Mudgal, J.— This petition seeks the review of the judgment of this Court dated 6th July 2007 by which this Court had upheld the findings recorded by the Extradition Magistrate under Section 7(4) of the Extradition Act (hereinafter referred to as the “Act”) as being prima facie in nature.

2. The learned counsel for the review petitioner had filed a Special Leave Petition (Crl.) No. 3765/2007 in the Hon'ble Supreme Court against the judgment of this Court dated 6th July 2007 which was dismissed as withdrawn. However, it is the submission of the learned counsel for the review petitioner that the Hon'ble Supreme Court had permitted the filing of the review petition against the aforesaid judgment of this Court dated 6th July 2007. Therefore, it would be appropriate to extract the order dated 20th July 2007 passed by the Hon'ble Supreme Court as under:

“Upon hearing counsel the Court made the following

Learned counsel for the petitioner seeks leave of the Court to withdraw the Special Leave Petition. The Special Leave Petition is, accordingly, dismissed as withdrawn.”

Thus, a perusal of the aforesaid order of the Hon'ble Supreme Court does not appear to have given any permission to the petitioner to file a review petition in this Court against the judgment of this Court dated 6th July 2007. In this view of the matter, the present review petition is liable to be dismissed on this ground alone.

3. However, even on merits of the pleas raised in the review petition, we find that the only grievance in the writ petition which was urged by the learned counsel for the petitioner in Court on 6th July 2007 was that the findings in the Enquiry Report passed by the Extradition Magistrate under Section 7(4) of the Act are conclusive findings and would prejudice him severely in proceedings in the Courts in U.K as these conclusive findings could not have been recorded in an Extradition Report under Section 7 (4) of the Act and are contrary to the position of the law laid down by a Division Bench of this Court in Smt. Nina Pillai and others v. Union of India and others, 1997 CRL.L.J 2358. However, this Court while allaying the apprehension of the petitioner had made it clear while disposing of the writ petition that the findings of the Extradition Magistrate in the Enquiry Report are merely prima facie in nature and not akin to the findings in a trial. It was also held that the Enquiry Report is not required to decide any issue about the innocence and guilt of the fugitive criminal and the only purpose of the enquiry is to determine whether a prima facie case or reasonable grounds exist which warrant the fugitive criminal being extradited to the demanding State. The relevant portion of the judgment dated 6th July 2007 of this Court reads as follows:

“4. The principal and indeed the only plea raised by the learned counsel for the petitioner Shri Charanjit Singh Bakshi is that the findings recorded by the Extradition Magistrate under Section 7(4) of the Act far from being prima facie findings, in fact conclusively indict the petitioner for the aforesaid offences and thus run counter to the position of law laid down by the Division Bench of this Court in Smt. Nina Pillai and others v. Union of India and others, 1997 CRL.L.J 2358 and in particular the position of law formulated in paragraph 11 thereof which reads as follows:—

“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.” (emphasis supplied)

8. During the course of these arguments, we enquired from the counsel as to the length of time it took for the Magisterial inquiry under Section 7(4) of the Act. They informed us that the case was argued at length for several days and for several hours. In view of such protracted hearing if a detailed conclusion has been arrived at then it cannot be faulted merely on account of being comprehensive. However, in view of the law laid down by the Division Bench of this Court in Nina Pillai's case (supra) and the plea raised by Mr. Vali, we clarify the position in respect of the findings as under:

We make it clear that the above noted findings of the Extradition Magistrate are merely prima facie in nature in view of the fact that the Magisterial Inquiry postulated under Section 7(4) of the Act has been held by a Division Bench of this Court not to be akin to a trial and that the inquiry report in law is not required to decide any issue about the innocence and guilt of the fugitive criminal and that the only 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. This Court has held that the jurisdiction of the Magisterial enquiry under the Act is thus limited to the former part of the request and is not concerned with the merits of the trial. We are indeed bound by the said position of law and do reiterate the law laid down by the Division Bench in the above extracted judgment. Thus it is made clear that none of the findings recorded by the Magistrate by its order dated 8th June, 2007 shall be read to have determined the innocence or guilt of the petitioner. The findings of the Extradition Magistrate shall be treated as prima facie findings whatever be the semantics of the reasoning. In fact, we have also noticed that the Magistrate herself has clearly held that there is strong prima facie case against the fugitive. We reiterate the same prima facie nature of the Magisterial enquiry report by this judgment. (emphasis supplied)

4. It is also evident that the learned counsel for the petitioner had urged in the arguments advanced before us on 6th July 2007 that his grievance in respect of the nature of the findings in the Enquiry Report of the Extradition Magistrate under Section 7(4) of the Act, stood satisfied with the above observations. This is also clear from the judgment dated 6th July 2007 of this Court, the relevant portion of which reads as follows:

“9. The learned counsel for the petitioner states that with the above observations, his grievance stands satisfied. Since this was the only grievance raised by the learned counsel for the petitioner and this judgment adequately allays the apprehension and redresses the sole grievance raised before us, no other plea survives and the challenge raised in this writ petition to the enquiry report dated 8th June, 2007 thus fails and the said report under Section 7(4) of the Act is affirmed subject to the observations made in this judgment. The writ petition is thus dismissed and stands disposed of.

5. Further, the petitioner in this review petition has nowhere averred that apart from the above mentioned grievance any other plea was urged by him but not considered by this Court. The only plea is that the other pleas were raised in the writ petition and ought to have been considered by this Court. In our view merely because pleas though averred in the writ petition if not urged during the hearing of the petition, do not make it incumbent upon the court to decide such pleas. Moreover the judgment dated 6th July 2007 was dictated in open Court in presence of both the learned counsel for the petitioner as well as the respondent. Consequently, the review petition has no merit and warrants dismissal.

6. It was also submitted by Mr. Rajesh Srivastava, the learned counsel appearing for the petitioner that there was no evidence at all to connect the petitioner with the occurrence so as to make him reliable for extradition. The learned counsel for the petitioner further stated that there was patent lack of evidence so as to render the judgment of the Extradition Magistrate vulnerable. However, the learned counsel for the petitioner has also urged that the UK Government had repeatedly submitted the supplementary evidence before the Extradition Magistrate. Therefore, in our view, the plea of the patent lack of evidence cannot stand along with the plea that evidence was also led by supplementary evidence, and this plea is rejected.

7. We have also examined the findings of the trial Court noticed by us and observed in the judgement dated 6th July 2007 under review to be of prima facie nature, in particular the following findings:

(a) The deceased Hanahh Foster was carrying Mobile phone having No. 07855204348 on 14th March 2003 which she had been using since 2001.

(b) The deceased was last seen with her friend Helen Wilkinson which appears from the time shown on the bus ticket at 22:50 hours.

(c) A call to 999 was received at 23:00 hours on 14th March 2003 by the British Telecommunications from the mobile phone of the deceased Hannah Foster and a conversation between a male and female person was automatically recorded.

(d) At the time when the emergency call was made the mobile phone was located in an area which was covered Close Circuit Television Camera (CCTV) operated by the Road Management System for Europe (ROMANSE) in the Southampton area which showed a vehicle visually identical to that used by the fugitive Maninder Pal Singh Kohli travelling north bound on Stoneham Way, away from the Portswood area and towards junction 5 of the M27 motorway at 22.58 hours on 14th March 2003.

(e) The fugitive was employed as a Delivery Driver to deliver their sandwiches to shops and petrol stations in the Hamphshire area and was allowed to use the vehicle to drive home after work. But he was not permitted to use the van which is a distinctive refrigerated vehicle with the refrigeration unit on the top roof for his own purposes, although it was known to his employers that he did.

(f) On 16th March 2003 at 13:50 hours the body of Hannah Foster was found in the undergrowth to the side of Allington Lane in West End, Southampton.

(g) Hannah Foster was certified as dead at the scene and the body was removed for post mortem examination. Her clothing was disturbed. Her mother Hilary Foster identified the body as that of her daughter Hannah. The post mortem examination report given by Dr. Hugh White has revealed the cause of death as Compression of the neck.

(h) High and low vaginal swabs from the body of Hanna Foster revealed the presence of semen. Male DNA was also apparent on swabs from Hannah's neck and from her fingernails.

(i) The police did not have access to any sample of the DNA of the fugitive and since his wife Shalinder Kaur consented to DNA mouth swabs being taken from her and from her two sons and hence the Forensic Science Service was able to infer a DNA profile for the fugitive from their DNA.

(j) That the comparison with the profile obtained from the semen on the high vaginal swabs showed that all but one of 13 bands out of maximum number of 20 bands were represented.

(k) That the semen found on the knickers worn by Hannah Foster when her body was found matched with the inferred profile of the fugitive criminal.

The above findings clearly indicate that there was enough evidence on record to substantiate the prima facie nature of the findings of the Extradition Magistrate.

8. The learned counsel for the petitioner relying upon the letter dated 17th March 2005 by the Hampshire Constabulary to the wife of the accused, submitted that the petitioner would not be given a fair trial in the U.K due to bias against Asians. We have perused the contents of the said letter which reads as follows:

“I understand that you are proposing to visit India with your children and that you have asked PC Fiona Holland (your liaison Officer) what I think about your plans, whether you travel to India or not is completely a matter for you. The Hampshire Constabulary will not do anything to prevent your travel.

I think it is appropriate to ensure that you are fully aware that your husband and his representatives have knowledge of the content of the affidavit which you made at Southampton Magistrates Court.

I think that in traveling to India with your children you may be putting yourself and your children into circumstances over which you may not have full control.

You may wish to consider discussing your proposed visit and that of you children with someone independent. If your cannot think of anyone and would like to speak to someone from outside the local area, I an try and arrange for you to speak with person who represents the Sikh community on the Metropolitan Police's Independent of the police. This individual would be totally independent of the police. But has an awareness of policing issues and represents the community.

For your information the telephone number for the British High Commission in New Delhi is 011 2687 2161. Mrs. J. Caley has knowledge of the extradition proceedings.

Your sincerely

Alan Betts

Detective Superintendent.”

The said letter in no manner demonstrates any bias against the Asians by the U.K Government and this plea is therefore rejected.

9. It was also urged by the learned counsel for the petitioner that the judgment of the Queen's Bench Division of the English Court, (2001) 4 All ER 168, Re Nadeem Akhtar Saifi clearly showed bias against the Asians. He relied upon paragraphs 65 and 66 of the above judgment to contend that the conclusion about the lack of good faith of the Government was clearly not warranted and the conclusion in paragraph 66 that a fair trial was impossible in Mumbai due to misbehaviour of the police clearly shows the bias. Paragraphs 65 and 66 of the above judgment relied upon by the learned counsel for the petitioner Shri Rajesh Shrivastava read as follows:—

“65. The cumulative effect of all these circumstances causes us to infer that the accusation of murder and conspiracy made against this application is not made in good faith and in the interests of justice.

66. Having reached this conclusion we are also satisfied that it would not be fair and would be unjust to return the applicant, because of the appearance of the misbehaviour by the police in pursuing their inquiries and the significant risk that the activities surrounding that misbehaviour have so tainted the evidence as to render a fair trial impossible.”

We do however cannot overlook the fact that the above findings proceed on a very wide basis and we do not subscribe to the aspersion that the accusation of murder and conspiracy made against the fugitive criminal seeking to avoid extradition to Mumbai Courts, was made in bad faith and was not in the interest of justice. While the Court hearing the extradition proceedings may be justified in recording a prima facie finding that the evidence does not justify the request for extradition, but to term the action of a sovereign government not to be in good faith and in interest of justice is not justified and somewhat distressing. We are also surprised by the observations of the Queen's Bench that the police activities have been deemed to make a fair trial impossible in India particularly when the adjudicatory system under the Indian Constitution is founded on the doctrine of independence of judiciary and separation of powers. However, we do not wish to make any further comments on the above judgment which we are informed was appealed to in the House of Lords by the Government of India but the House of Lords refused leave to appeal. However, in our view, observations in one judgment cannot lead us to the sweeping conclusion that the British judicial system is biased against the Asians and the petitioner would not get a fair trial. This plea is therefore, rejected. 10. Accordingly, the review petition which lacks merit stands dismissed.