Malik Sharief-Ud-Din, J.:— In pursuance of the requisition from the State of Thailand for extradition of Mr. Charles Gurmukh Sobhraj for facing trial and punishment in Thailand for the alleged offences of murder, attempt to murder, theft, receiving stolen property, forgery and using forged documents in Thailand, the Government of India issued an order dated 10/11-1-1985 requesting Mr. Subhash Wason, Chief Metropolitan Magistrate, Delhi, to hold an enquiry into the alleged offences and to submit a report under section 7 of the Extradition Act, 1962. The fugitive offender was brought before him and after holding an enquiry as envisage under section 7 of the aforesaid act a report dated 28-9-1985 was submitted to the Government of India holding that there was a prima-facie case against the fugitive offender. In all there were five cases but Shri D. Goverdhan, counsel representing the Government of Thailand, made a statement that he does not want to press the extradition on the basis of all the cases and he sought extradition mainly in two cases which are known as “LAPTHORNES” case and “WANG NOI” case.
2. In the WANG NOI CASE the allegations against the fugitive offender are that on December 11, 1975, Mr. H. Bintanja and Miss Cocky Henken came to Thailand by air and both of them filled up disembarcation cards, that they would stay at Asia Hotel but they did not stay there. Instead, they stayed with Mr. Alian Gauthier, one Miss Marie Androe Larc and Mr. Ajay Chaudhary at Kanit apartment housed at Salabeeng Road, Bangkok in room No. 503. Both of them thereafter were not seen coming oat of their apartment for five days and were lying sick in room No. 503. It is further alleged that during this period Mr. Alian Gauthier prevented other persons from seeing or visiting Mr. H. Bintanja and Miss Cocky Henken so much so that even the cleaning of the room was prevented. During the night of December 15/16 of 1975 at about 00.02 hours Mr. Alian Gauthier and Mr. Ajay Chaudhary took Mr. H. Bintanja and Miss Cocky Henken out of the Kenit appartment by a motor car and by putting them on the back seat in a manner as if they were sleeping. On the following day i.e 16th December, 1975 at about 00.09 hours Mr. Alian Gauthier and Mr. Ajay Chaudhary returned back, both of them had their legs splashed with mud from their shoes upto their knees and had with them a rubber hose with smell or oil. The daily newspaper on that day published the news of foreigners having been killed by soaking with oil and burning them. This incident took place by the side of Paholyothin Road, Wangnoi. The case, came to be investigated and it was revealed that Mr. Alian Gauthier and his accomplice murdered the two victims and fled from Thailand. The search made by the Thailand police at the room of Mr. Alian Gauthier at Kanit Appartment resulted in the discovery of belongings of both the victims. This was two days after the murder. Mr. Alian Gauthier and Miss Monique forged their victims' passport by taking out the photos of deceased and by replacing these with their own photographs and thereafter presenting the same to the Immigration Officials at Donmuang Airport and made their trip to Kathmandu, Nepal.
3. In this case English translation of the depositions of police Capt. Chitti Pannopas, Mrs. Nadine Giress, a French national, Mr. Giree Remy Andre Raymond, again a French national and husband of the preceding Witness, Mr. Paitoon Swasdee, who at the relevant time was working at the Kanit appartment, Mrs. Boonnuang Yukuntorn, a room cleaner at Kanit appartment, Mr. Sanong Wattananakorn, Mr. Sambat Pohjaksu. Mr. Jon Yusabai, Mr. Patanasek Kritramruang, Miss Pinant Krajangsri, Miss Vimol Sae Tae, Miss Sompong Chaipong, Mr. Eric Damour, again a French national, Mr. Tate Bruno, another French national, were placed before the learned Magistrate who acting under Sub-section (1) of section 10 of Extradition Act received these depositions in evidence and after a careful perusal of the same came to the conclusion that prima-facie case is made out against the fugitive offender, Mr. Charles Gurmukh Sobhraj.
4. Similarly, in tire ‘LAPTHORNES’ CASE the learned Magistrate has relied on the depositions of Mr. and Mrs. Lapthorne, Dr. Duangjai Rungdanaj. The facts of this case, as alleged before the learned Magistrate, are that Allan Gauthier and Mrs. Monique attempted to murder Mr. and Mrs. Russell Lapthorne with intention to rob them of their personal belongings. On September 1, 1975 both the victims had gone to Pattaya beach Amphoe Bang Lamung, Chon Buri and there they came to know Mr. Alian Gauthier under the name of Jean Belmont and Miss Marie Andree Lere as Monique. Mr. Alian Gauthier and Miss Monique came to greet them and invited them to stroll to the Tropicana Hotel where, they were staying. During conversation at the hotel, Mr. Alian Gauthier asked Mr. Lapthorne about his tour programme. In his turn Mr. Lapthorne told him that they were planning to visit Singapore by rail and to visit Amphoe Hua Bin Changwat Prachuap Khiri Khan en route. Mr. Alian Gauthier and Miss Monique expressed their wish to join the trip and gave a sum of 200 Baht to Mr. Lapthorne for two rail tickets. On September 3, 1975 they joined together and arrived at Hua Hin near-about 16.00 hours and checked in two connected rooms 208 and 209 in the Railway Hospital.
5. On September 4, 1975 at about 14.30 hours while Mr. and Mrs. Lapthorne were at leisure at the balcony, Mr. Alian Gauthier and Miss Monique came to join them. Each of them was holding a glass of chocolate milk shake. Mr. Alian Gauther handed over his glass to Mrs. Lapthorne and Miss Monique handed over her glass to Mrs. Lapthorne. Mrs. Lapthorne after drinking a part of the contents of the glass told Mr. Lapthorne that she was feeling giddy and she was removed to her room. Mr. Lapthorne had put his glass aside as he was reading a newspaper but soon after he took its contents he was rendered unconscious. Both of them gained consciousness with the help of physician who gave them enema. Mrs. Lapthorne gained consciousness on September 6, 1975 at 3 hours whereas Mr. Lapthorne gained consciousness on the same day at 5 hours. They returned to their room and found that 13 items of the personal belongings costing 23,200 Baht were lost and on checking it was found that Mr. Alian Gauthier and Miss Monique left the hotel on September 5, 1975 at 7 hours.
6. We have already noticed that the learned Magistrate while holding an enquiry under Sub-section (1) of section 7 of the Extradition Act took into consideration the entire evidence and came to the conclusion that on these two counts there is a prima facie case against the fugitive offender. A report was actually submitted to the Central Government. After going through the depositions and other documents placed on record we are of the view that this conclusion was rightly arrived at.
7. We have given our careful consideration to the arguments advanced by the petitioner and by the counsel for the opposite party. The petitioner invited our attention to section 31, sub-section (c) which reads as under: —
Sec. 31 (c)
“Restrictions on surrender:— A fugitive criminal shall not be surrendered or returned to a foreign State or Commonwealth country: —
(c) unless provision is made by the law of the foreign State or Commonwealth country or in the extradition treaty with the foreign State or extradition arrangement with the Commonwealth country, that the fugitive criminal shall not, until he has been restored or has had an opportunity of returning to India, be detained or tried in that State or country for any offence committed prior to his surrender or return, other than the extradition offence proved by the facts on which his surrender or return is based.”
8. The petitioner urged before us that since there is no extradition agreement and consequently no provision that he will not, until he has been restored, or has an opportunity to return to India, be detained or tried in the State of Thailand for an offence committed prior to his surrender or return, other than the extradition offence proved by the learned Magistrate. According to respondents the Government of India was conscious of this fact and it was in pursuance of this awareness that they demanded an undertaking through the usual diplomatic channel from the Government of Thailand in this regard and that is a sufficient guarantee for the fact that the petitioner will not be tried for any other offence excepting the two which have been mentioned in this order.
9. In order to appreciate the point we deem it proper to give to the question of the law of extradition, its development and amplitude it has attained now. The exercise of the jurisdiction by the State over all persons within its territory and of the right to punish them for the violation of laws, is frequently frustrated by the escape of offenders into the territory of another State. On the other hand, it is the matter of domestic law of a State to whose territory the offender has escaped where he can be tried and punished for the offences he committed prior to his entry, and the State may upholding common law principles refuse to exercise jurisdiction over such offences committed outside its territory. Even if the State of refuge will exercise jurisdiction over such offences, it is the State authorities on whose territory the offence has been committed who are in the best position to assemble relevant evidence for trial and, in addition, have greater interest in the punishment of the offender. It is these considerations which have given rise to legal institution known as ‘extradition’ which has been defined as a formal surrender of a person by a State to another State for prosecution or punishment.
10. Extradition did not, however, become the general legal obligation and the surrender of fugitive offenders has been dealt with through centuries mainly as a matter of courtesy or subservience on the part of one sovereign towards another. The development of international transport and communication and various other connected factors have made the escape of offenders easier. This is essentially a nineteenth century development and it is this which has led to an increased use of bipartite extradition agreement and the principles of extradition treaties have increased greatly by the advent of twentieth century. What these agreements contain is that the contracting parties undertake to surrender to each other all persons against whom the competent authorities of the requesting party order proceedings for an offence or where are wanted by the said authorities for the carrying out of sentence or detention ordered. There is, however, no uniformity in these extradition treaties though there are in all these treaties some common principles and conditions.
11. A rule is believed to exist that the State requesting extradition must not try or punish the offender, say, for the offences in respect of which extradition was not granted. This principle is usually observed even in the absence of treaty stipulations. There is a uniformity of State practice that the requested State may surrender the nationals of the requesting State or nationals of a third State. There are in existence different legal traditions in this regard. There are States who act according to the treaty obligations and there are yet others who act on the basis of reciprocity. The States which follow the common law tradition have consistently held the view that the offences must be tried at the place where the offences have been committed.
12. In principle it is now commonly recognized that the act charged must be an offence under the laws both of requesting and the requested States. However, a requested State may decline to extradite an offender if extradition is sought for an act of certain character. Significance here is to the principle of non-extradition of political offenders which is comparatively a recent development in the history of International law. In earlier days surrender of persons was normally sought precisely for political offences. This attitude came to be reversed in the early part of the nineteenth century and now this practice has been widely accepted. Non extradition of political offenders is now provided both by the Treaties and Extradition Acts.
13. There is no uniform rule on the procedure of extradition. However, the main features of the procedure are that request for extradition of fugitive offender is communicated through diplomat channels to the competent authority of the requested State. Upon receipt of the requisition, the requested State endeavours to apprehend and detain the person claimed unless it clearly appears that the person whose extradition is sought may not be extradited. In most States the final decision is in the hands of the judiciary which will declare that the requested state is either authorized or not authorised to extradite the person claimed. Such a declaration is conclusive and the person claimed is set at liberty. In India the procedure is set out in the Indian Extradition Act. The scheme is that on receiving a request, the matter is referred to a Magistrate for enquiry to find out if there is a prima facie case and this is done under section 5. This is done after the requisition is received. The Magistrate under section 6 issues a warrant for the arrest of the fugitive offender. The Magistrate then conducts an enquiry under Sub-section (1) of section 7 in the same manner and with similar jurisdiction and powers, as nearly as may be, as if the case were one triable by the court of Sessions or High Court. In conducting this enquiry under section 7, the Magistrate takes evidence as may be led in support of the requisition of 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 an extradition offence. This would show that the fugitive offender or a criminal even at this stage is entitled to show that the offence is a political one and not extradition offence. Under sub-section 3 to section 7 if the Magistrate is of the opinion that no prima facie case is made out he has the power to discharge the fugitive criminal. This is an exclusive power and cannot be interfered with by the State excepting in due course of law. Under subsection (4) of section 7, however, if the Magistrate finds that a prima facie case is established, he has to commit the fugitive criminal to prison to await the orders of the Central Government. The Magistrate has also to report the result of inquiry to the Central Government in the form of a Report together with any written report which may be submitted by the fugitive criminal.
14. Here we may pause a little to state that the entire jurisdiction under the Act vested in the Magistrate is restricted to find out whether there is a prima facie case. If the Magistrate finds none, he can discharge the fugitive offender but if he finds a prima facie case, he has to commit the fugitive offender to prison and make a report. There is no further power vested in the Magistrate. He cannot go into the validity of the extradition treaty or agreement as this is a matter within the exclusive domain of the Central Government. The power under our Act as to whether a fugitive offender should or should not be surrendered is entirely vested in the Central Government under section 8. The Magistrate has no role to play.
15. Sub-section (c) to section 31 is in the form of a mandate against the State that it shall not in certain cases surrender the fugitive criminal. The petitioner has laid stress on this sub-section to contend that since there is no extradition treaty between the two states, there is no guarantee that he will not be tried for other offences. Indeed, there is no regular treaty between the Government of India and the Government of Thailand but we find no reason why the undertaking demanded by the Government of India and submitted by the Government of Thailand cannot be treated as an agreement pertaining to the case of the petitioner. Extradition Act has admittedly been made applicable to the State of Thailand by a notification dated 17th May, 1982. Extradition can be sought either in terms of the treaty or on reciprocity arrangement. These are essentially sovereign acts and the guarantee is the reciprocity and the undertaking fetched by the requesting State. There is no regular method of enforcement of international treaty obligations. The only guarantee is the solemn pledge by one sovereign state to another and the moral binding and the fear of loss of credibility. Under these circumstances, we are of the view that this undertaking can be deemed to be an agreement in so far as the petitioner is concerned and we find no basis for the apprehension expressed by the petitioner that the Government of Thailand may back out of it.
16. Now the next contention raised by the petitioner is that under section 7 the Magistrate has to enquire into a case in the same manner and with similar powers and jurisdiction as if the case were one triable by the Court of Sessions or High Court. He asserts that the enquiry is without jurisdiction in as much as the Magistrate is not a Sessions Judge. We may here notice Sub-section (1) of section 7 of the Extradition Act which is as under: —
“Sec. 7 (1):— Procedure Before Magistrate.
“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 Sessions or High Court.”
17. To us the contention appears to be misconceived. Sub-section (1) of section 7 makes it clear that an enquiry has to be made by a Magistrate. It also says that this enquiry shall be made in the same manner and the Magistrate shall have same powers and jurisdiction, as nearly as may be, as if the case were one triable by the court of Sessions or High Court. The words “as nearly as may be” are significant. In sub-section (2) of section 7 it is, however, made clear as to what the Magistrate has to do is to take evidence in support of requisition and the evidence of the fugitive offender if he so desires. We may also state that the petitioner was not facing a trial in the court of Chief Metropolitan Magistrate. That court was only holding an enquiry pursuant to an order of the Central Government issued under section 5 of the Extradition Act to find out whether there was a prima facie case against the petitioner for extradition to Thailand. The provision very clearly relates only to the mode of conducting an enquiry and not the applicability of Criminal Procedure Code in toto.
18. Challenge has also been thrown to the report on the ground that the evidence adduced by the requesting State before the learned Magistrate was not admissible in evidence and the learned Magistrate has acted on the evidence which' was non-existent. This is so suggested on the ground that statements of the witnesses and documents are not certified to be correct translations and are not duly authenticated. We do not agree with this submission. It will be seen that these depositions and the documents have been translated by high officials and have been legalised by the Ministry of Foreign Affairs Government of Thailand, duly certified by the Indian Embassy. Sub-section (1) of section 10 lays down a rule of evidence and makes deposition of witnesses or documents or copies thereof admissible if they are duly authenticated. Sub-section (1) of section 10 does not make it obligatory that these depositions must be made before a court of law. It only talks of depositions which ought to be duly authenticated and not a deposition before a court of law. In this case the depositions have been recorded by the investigating officer under Thai laws and these are on oath. We also find that they have been duly legalised, probably meaning thereby authenticated by the Ministry of Foreign Affairs, Government of Thailand. If depositions have to come from a foreign State they will essentially come, as envisaged by their laws. We are, therefore, of the view that there is no merit in this submission.
19. The last contention of the petitioner is regarding the appreciation of evidence. Sitting in our writ jurisdiction, there is no scope for going into this point. However, we are conscious that the court sitting in its revisional jurisdiction can go into this question to a limited extent. We have otherwise gone through the evidence and we find that the learned Magistrate was quite justified in coming to a conclusion that there is a prima-facie case and we find that there is no scope for conclusion other than this. In fact, the petitioner has introduced himself to his various victims under the assumed names. He could, therefore, only be identified by the witnesses from his photographs and the witnesses have clearly identified him to be the offender i.e Charles Gurmukh Sobhraj. The learned Magistrate on the basis of the whole evidence before him has found a prima facie case. We are only concerned with the prima facie case and not whether the petitioner will finally be extradited or not as that decision rests with the Central Government.
20. Under the circumstances we find no force in this petition and we find no reason to quash the report of the learned Chief Metropolitan Magistrate which is submitted to the Government of India about the existence of prima facie case against the petitioner. A copy of this order be delivered to the petitioner in Jail.
The petition is disposed of accordingly.
Writ Petition Dismissed.
Comments