MOHINDER SINGH DAHIYA Vs. STATE

JUDGEMENT

(1.) This order would dispose of Criminal Revision Petition No. 247/83 and Criminal Misc. (Main) 581/83.

(2.) Dr. Mahender Singh Dahiya, an Indian National, belonging to Village Tinkpur, District Sonepat, Haryana, who is an M.B.B.S. and did his M.S. in Orthopaedics from All India Institute of Medical Sciences, New Delhi, married one Namita Lochav, a U.K. citizen of Indian origin in September. 1978. He is alleged to have murdered his wife while the couple were on a honeymoon in Brussels on or about 27/28th May, 1979 and left Brussels the next day and informed his in-laws in London that his wife had abandoned him and thereafter been in India, practising medicine in a small town in the State of Madhya Pradesh. It is alleged that further investigation in Belgium led to the recovery of different parts of the body of a human being from different places, which were allegedly identified as the parts of the body of Namita Lochav. On receipt of information by the C.B.I, from interpoll, Brussels, case was registered by the C.B.I, in 1983 and the petitioner was eventually arrested on May 9, 1983 in Delhi. The petitioner's case is that on coming to know of the case, he voluntarily surrendered to the C.B.I, in Delhi. The petitioner has since been in judicial custody. The petitioner made an application from Tihar Jail, inter alia, praying for bail. The petitioner would have been entitled to bail as of right as the requisite period since the arrest of the petitioner was due to expire and investigation by the C.B.I, had not concluded and no challans had been put in court. But at this stage the Central Government is alleged to have received a requisition from the Belgium Government for the extradition of the petitioner to Belgium to stand his trial on the charge pursuant to which the Central Government made an order under Section 5 of the Extradition Act 1962 requiring the Magistrate to inquire into the case. The magistrate has since held an inquiry under Section 7 of the Act and by an order made on September 8, 1983 returned the finding that there exists a prima facie case against the petitioner for the offence of murder of his wife as alleged against him in the Belgium Government requisition. This order was made after giving an opportunity to the petitioner of being heard. When the inquiry was ordered, petitioner sought leave to amend the foresaid petition and to file a fresh one in its substitution of it or in addition to it so as to assail, if advised, the magisterial report of the inquiry or the proceedings of it. That is how the petitioner filed Criminal Revision 247/83 and by this petition it is sought to quash the magisterial order. Initially, C.B.I, alone was impleaded as a respondent in the petition but in view of the genesis of the enquiry the Union of India in the Ministry of External Affairs was also added as a respondent. As desired by the petitioner a counsel was also appointed to appear for the petitioner for the petitioner in the present proceedings.

(3.) At the hearing of these petitions anumber of questions were raised on behalf of the petitioner with regard to the propriety of the proposed extradition of petitioner, the scope of the proceedings before the magistrate, the construction of the various provisions of the Extradition Act, including that of Sections 5, 7 and 25, the nature of the jurisdiction of the Magistrate and, in particular, if the report of the Magistrate, including the proceedings before him, could be said to be proceedings under the Code of Criminal Procedure and to be regulated by the Code and, therefore, amenable to the jurisdiction of this Court under Sections 397 and 482 of the Code of Criminal Procedure, as also the correctness and propriety of the finding that there was a prima facie case in support of the requisition. A reference was also made to Section 25, which provides for grant of bail to a person during the pendency of the proceedings for his extradition and grant of bail to the petitioner was ought to be justified on a number of grounds, notwithstanding that the question as to whether the petitioner should or should not be extradicted was due to be decided in a few days.