AVTAR SINGH GREWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition, the petitioner has prayed that the order dated 19.07.2010 passed by the learned ACMM, New Delhi directing the detention of the petitioner pursuant to the inquiry report dated 09.07.2010 be set aside and the petitioner be set at liberty. The impugned inquiry report dated 09.07.2010 was made by the learned ACMM under the provisions of The Extradition Act, 1962 (hereinafter referred to as the said Act?). The impugned order dated 19.07.2010, whereby the petitioner, being a fugitive criminal, was committed to prison to await the orders of the Central Government, was also passed pursuant to the inquiry report under the said Act.

(2.) Mr K.T.S. Tulsi, the learned senior counsel, appearing on behalf of the petitioner, has challenged the said order on three counts. The first ground is based on the doctrine of Speciality and specifically on Section 31(1)(c) of the said Act. It was argued that the State of Arizona in the United States of America, where the petitioner is sought to be tried, permits an extradited person to also be tried for crimes / offences other than those for which he was extradited. According to the learned counsel for the petitioner, this provision is to be found in the Code of Criminal Procedure, Chapter 51: Fugitives from Justice and specifically in Article 51.13, para 26, which, according to the learned counsel for the petitioner, is the Code of Criminal Procedure applicable in the United States of America. Thus, according to the learned counsel for the petitioner, the provisions of Section 31(1)(c) of the said Act are triggered and, therefore, the fugitive criminal is not to be surrendered or returned to the United States of America.

(3.) The second point urged before us by the learned counsel for the petitioner was that Article 8 of the Extradition Treaty between the Government of the United States of America and the Government of the Republic of India entered into on 25.06.1997 in Washington, USA (hereinafter referred to as the said Treaty?) would also come into play and, therefore, the Requested State may refuse extradition. Article 8 of the said Treaty deals with Capital Punishment? and stipulates that when an offence, for which extradition is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the Requested State may refuse extradition, unless, of course, the conditions stipulated in clauses (a) or (b) contained therein are fulfilled. According to the learned counsel for the petitioner, the offence, inter alia, made out as per the indictment, includes the death sentence. He submitted that, according to him, under the Indian Penal Code, 1860 (hereinafter referred to as IPC?), the offence would not amount to murder, but would be one which would fall under Exception No.1 or Exception No.4 in Section 300 IPC. Thus, it was submitted by the learned counsel for the petitioner that the offence would not be murder, but would be culpable homicide not amounting to murder. As such, it would not be punishable under Section 302 IPC, but under Section 304 IPC, even if the prosecution case is established. If that were to be so, according to the learned counsel for the petitioner, since the punishment under Section 304 does not include a death sentence, there would be a violation of Article 8 of the said Treaty if the petitioner is extradited to the United States of America.