Yatindra Kumar Aggarwal & Another vs Union Of India & Another [DEL HC 2012]

Background of the Case

T he United States government had requested the extradition of fugitive criminals Ms. Julie Agarwal,
Mr. Yatindra Kumar Agarwal, and Mr. Hmimanshu Kulshrestha, who were included in the US
request to be extradited, via diplomatic channels, with Order GSR633 (E) dated September 14, 1999,
the Republic of India deemed it appropriate. The Government of India, through the Ministry of External
Affairs, was satisfied that the warrant of arrest was issued by the US District Court for the Eastern District of
Virginia, based on the material submitted by the United States Government, having lawful authority to do
so, hereby demanded that the Additional Chief Metropolitan Magistrate (New Delhi) Patiala House Courts,
New Delhi, investigate the extradition request as to the extraditability of the offences involved, by deciding
if a prima facie case exists under the Extradition Act, 1962 (34 of 1962). (34 of 1962) as well as the
Extradition Treaty between the Governments of India and the United States of America, as well as other
applicable laws Shortly after, in May 2010, the Union of India filed an application under Section 6 of the
said Act seeking the issuance of arrest warrants for the wanted criminals listed above. The Additional Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi, issued an order on the 29th of June 2010
directing that the inquiry under the said Act, which had been referred to that court by virtue of the order
dated the 22nd of April 2010, be reviewed and registered. The State did not acknowledge the Sessions
Court's decision and filed an appeal with the High Court of Rajasthan, Jaipur Bench, which is currently
hearing the case.
It was argued that before ordering a Magisterial Inquiry under Section 5 of the Act, the Central Government
must consider the extradition request by determining whether any of the prohibitions contained in Sections
29 and 31, especially Section 31(1)(d), apply to the request. It was argued that a mental application was
required at the stage of Section 5, given the phrase "if it thinks fit" used in that section.

Facts of the Views of the Council

A ccording to the learned counsel, the respondents have admitted that the petitioners cannot be
surrendered due to the provisions of Section 31(1)(d). It was argued that the money laundering
offense was not an extraditable offense under Article 2(1) of the Indo-US Treaty, which stated that
an extraditable offense must be a crime in both countries.  It was also argued that more than ten of the
petitioners' charges in the United States are related to money laundering, and that they cannot be extradited
for the same.
According to the petitioners' learned counsel, this was a clear-cut case for which no investigation was
needed. The writ petitions should be allowed, and the impugned order dated 22.04.2010 ordering a
Magisterial Inquiry, as well as all subsequent proceedings, should be quashed and set aside. In the case of
Mr Himanshu Kulshrestha, there was absolutely no ground for a Magisterial Inquiry to be held.

According to Mr Chandhiok, the said observations in Pragnesh Desai (supra) were obiter dicta, not the ratio
of the situation, and did not set a binding precedent. This conduct on the part of the Central Government,
according to Mr Chandhiok, cannot be faulted or questioned. If the Magistrate determines that a prima facie
argument has not been made out in favor of the requisition by the United States Government, the fugitive
offenders, i.e. the petitioners, will be released. If the Magistrate believes that a prima facie case has been
established in support of the requisition, the fugitive criminals may be committed to prison to await Central
Government orders, and he is required to report the results of his investigation to the Central Government,
along with any written statement that the fugitive criminals may wish to send for consideration. The Central
Government will obviously have to consider the provisions of Section 31 of the said Act, which imposes
surrender limits, when determining if the fleeing criminals should be surrendered to the foreign state.

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It was also argued that the Division Bench's decision in Sarabjit Rick Singh (supra) was irrelevant since that
case dealt with the scope of a Magisterial Inquiry under Section 7, not the scope of the Central Government's
application of mind under Section 5, and there was no disagreement with the Division Bench's decision in
Pragnesh Desai. The magistrate shall issue a warrant for the arrest of the wanted criminal upon receipt of an
order from the Central Government pursuant to Section 5. When a fugitive suspect appears or is brought
before a judge, the magistrate shall investigate the case in the same manner and have the same authority and
powers as if the case were omitted. If the magistrate believes that a prima facie argument cannot be made
out in favor of the foreign State's requisition, the fugitive criminal will be released.

Power of Central Government to discharge any fugitive criminal

W hen the Magistrate receives the Central Government's Section 5 order, he is required to issue a
warrant for the fugitive criminal's arrest. It is self-evident that when deciding whether or not to
surrender the fleeing criminal to a foreign state, the Central Government will have to consider the
surrender constraints set out in Section 31 of the said Act. Since, even though the Magistrate finds a prima
facie case in favor of the foreign state's requisition, the Central Government cannot surrender the fleeing
convict to the foreign state if any of the limitations set out in Section 31 of the said Act are invoked. Section
31(1), clause (b), also states that a fugitive convict can not be surrendered or returned to a foreign state if a
prosecution for the crime in connection with his surrender is prohibited by time under the law of that state. It
states that a fugitive convict can not be surrendered or returned to a foreign country until 15 days have
passed after he was sentenced to jail by the Magistrate.
It also claimed that no fugitive criminal can be surrendered before 15 days have passed after the date of his
being committed to prison by the Magistrate, implying that no fugitive criminal can be surrendered unless
and until a Magisterial Inquiry is held, with the Magistrate committing him to prison under Section 7(4) of
the said Act. Warrants or summonses must be given under the Extradition Act, there must be a magisterial
inquiry, and any detention must be punitive in nature; and - and this is the most significant distinction of all -
the individual to be extradited does not leave India a free man. Thus stated “The Magistrate shall report the
result of his inquiry to the Central Government and shall forward, together with such report, any written
statement which the fugitive criminal may desire to submit for the consideration of the Government.”
The Supreme Court noted that under the Extradition Act, warrants must be given, a Magisterial Inquiry must
be held, and any detention must be of a penal nature. The international obligation of the State in which the
Court operates is the sanction behind an order of extradition, but courts jealously guard the right of the
applicant by insisting on strict adherence to the conditions precedent to surrender. The roles performed by
the courts in the two countries vary. Even if the Magistrate finds that a prima facie case for extradition has
been made, the Central Government has the option of refusing to hand over the fleeing convict. The
petitioners would not profit from such a decision.

Extradition Laws in India

Due to the internationalization of crime, there is a need for criminals to be transferred in order to ensure that
no crime goes unpunished and the rule of law is upheld. Extradition is a device that was developed under the
concept of national harmony, in which one country surrenders a convict to another for the purpose of
bringing him to justice in the country where the crime was committed. Extradition is a tool for resolving two
opposing principles: the first is that criminal jurisdiction only applies to crimes committed within territorial
borders, and the second is that a criminal does not go unpunished due to jurisdictional issues.
For the following purposes, a criminal is extradited to the requesting state:
 It is in the interests of civilized societies that perpetrators should not go unpunished, and it is
accepted as a part of the comity of nations that one state should provide assistance to another state in
bringing offenders to justice.
 Extradition has a deterrent impact because it warns criminals that they cannot avoid prosecution by
fleeing to another country.
 Criminals are handed over in order to protect the territorial state's interests.

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  Extradition is carried out because it is a step toward achieving international cooperation in the
resolution of social problems.
 Since evidence is more readily available in that State only, the State where the crime was committed
is in a better position to prosecute the perpetrator.

The terms of the Extradition Act, 1962 cover the extradition of a deserter from India to a foreign country or
vice versa. The act establishes the foundations of extradition law. The obligation to extradite stems from
treaties, agreements, and conventions that India has made with other countries. The Government of India
will issue a notification under Section 3 of the Extradition Act, extending the Act's provisions to the
countries notified. As a result, reading the Extradition Act in conjunction with relevant
treaties/arrangements/conventions entered into with different states is needed for a thorough understanding
of the law of extradition.
Section 2(d) of the Extradition Act states “A treaty, agreement, or arrangement with a foreign state relating
to extradition of fugitive criminals,". Extradition treaties are also known as extradition conditions precedent.
It also contains a list of extraditable offenses. It's worth noting that extradition may be allowed even in the
absence of a treaty if the principle of reciprocity is upheld. The promise of reciprocity is the most important
factor in extradition requests.

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