 must constitute an illegal/criminal act under the law of both the Requesting State as well as the Requested State.){kind=link}
A Delhi Court has recommended the extradition of an Indian, accused of killing a pedestrian and injuring another at South Bank in the State of Victoria, Australia in 2008.
Additional Chief Metropolitan Magistrate Akash Jain on August 12 noted that in order to ascertain extractability of offences in question, the most important requirement is that the conduct of Puneet (FC) must constitute an illegal/criminal act under the law of both the Requesting State as well as the Requested State. This is known as ‘Double Criminality Rule’. While there is no challenge to the fact that the conduct of FC is a criminal offence in both Australia as well as India, the only contention raised on behalf of FC is nomenclature of offences in India vis-à-vis offences qua which FC is charged in Australia.
Totality of acts alleged against the FC are to be taken into consideration and it does not matter if the constituent elements of the offences between the two States differ. Therefore, the argument of Ld. Counsel for FC that UOI has not denominated the offences of Culpable Driving (in Australia) with the same terminology by keeping it under the category of Culpable Homicide, is without any consequence, observed the Court.
Section 318 of Crimes Act, 1958 provides for death of a person in a vehicular accident due to recklessness /negligence /under the influence of liquor /under the influence of drugs and further its sub-section (4) and (5) creates offence of homicide as an exception to this offence. The punishment prescribed under this section is imprisonment for a period upto 20 years or fine or both. Under Indian Law, Section 279 IPC r/w Section 304-A IPC ordinarily deals with death of a person caused by a motor vehicle driven in rash or negligent manner. While, Section 304 Part-II of IPC deals with death of a person caused with the knowledge of the offender that he is likely by such act would cause death.
The Court held that Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005, Commonwealth is concerned, which is punishable for imprisonment for a period upto 10 years, Section 12(1)(d) of Passports Act, 1967 is prima-facie an equivalent offence which is punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs. 5,000/- or with both. This offence also fulfils the principle of dual criminality and hence, is an extraditable offence.
The Court referred the case of Puneet vs Union of India, W.P.(CRL) 1633/2017 and CRL. M.A. 9059/2017 in which the Delhi High Court had held that the treaty arrangement with Australia, which was of the year 1971, was only being replaced by extradition treaty vide notification dated 07.03.2011. Therefore, the notification of year 2011 does not affect the applicability of Extradition Act upon the Requesting State. Even otherwise, it has already been observed above that Section 304 Part-II of IPC is applicable on the facts of the present case as opposed to Section 304-A of IPC, which was duly mentioned in the list of extradition offences in the Second Schedule in the pre-amended Extradition Act, 1962.
After considering the entire facts, circumstances of the present case, duly authenticated documents received in support of the extradition request and provisions of Extradition Treaty executed between both Requesting and Requested State the Court recommend to the Union of India the extradition of FC Puneet to the Requesting State i.e. Government of the Commonwealth of Australia for facing trial for the offences of: (i) Culpable Driving under Section 318(1) of the Crimes Act, 1958 (Victoria); (ii) Negligently causing serious injury under Section 24 of the Crimes Act, 1958 (Victoria); (iii) Improper use of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Commonwealth).
It is pertinent to note that the Delhi High Court, however, on August 17, heard FC challenge to the order and issued notice to the Centre while noting that the one of the main grounds raised by the petitioner was that the request for extradition was received on February 3, 2010, whereas the treaty, on the basis of which the extradition was sought, came into operation only on January 20, 2011.
“Till the next date of hearing, the petitioner will not be extradited out of the country,” the High Court added. The matter will come up for hearing on September 20.
According to the complainant, on the intervening night of September 30 and October 1, 2008, Puneet (FC) was allegedly driving a Holden Commodore Sedan in a drunken state and in rash and negligent manner and while driving the said vehicle in the aforesaid manner, FC had hit two pedestrians walking on the city road, South Bank in the State of Victoria, Australia. As a result of the impact, one of the pedestrians namely Dean Byron Hofstee died and serious injuries were caused to another pedestrian namely, Clancy Coker . On 01.10.2008, FC was charged with Culpable Driving causing death of Hofstee and negligently causing serious injuries to Coker. He was thereafter, produced before the Melbourne Magistrate’s Court where he was granted bail on his own undertaking with a number of conditions.
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On April 17, 2009, FC pleaded guilty in the County Court at Melbourne in the State of Victoria to the offences of culpable driving and negligently causing serious injury. The proceedings thereafter got adjourned and bail of FC got extended. FC was asked to appear at a plea hearing on 20.08.2009 in the County Court. FC though failed to appear at the said hearing, as a result of which a warrant of arrest was issued against him by County Court for offences of culpable driving and negligently causing serious injury. FC reportedly left Australia on 12.06.2009 using the passport of another Indian National namely, Sukhcharanjit Singh. Thus, on 02.10.2009, Magistrate’s Court at Melbourne issued a warrant of arrest against FC in respect of the offence of improper use of a foreign travel document.
Vide Note dated 06.10.2009, a request for provisional arrest of FC was made by the Requesting State to the Government of Republic of India as the FC was reportedly wanted by Authorities in Requesting State to face prosecution for the offences of Culpable driving under Section 318(1) of the Crimes Act, 1958 (Victoria); Negligently causing serious injury under Section 24 of the Crimes Act, 1958 (Victoria) and Improper use or possession of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005, (Commonwealth).
Thereafter, two requests for urgent provisional arrest of FC were received from the Requesting State. A formal request for extradition of FC dated 03.02.2010 along with supporting documents in six parts were received from the Requesting State. On receipt of an order of the Ministry of External Affairs, Govt. of India dated 08.06.2010, made under Section 5 of the Act, Predecessor Court, issued a warrant of arrest against FC under Section 6 of the Act. Despite issuance of repeated warrants against FC at his Panchkula, Haryana address, the FC could not be apprehended. As per a report dated 13.02.2011, father of FC gave an affidavit that FC was no longer residing in India and had left for Australia. As such, the inquiry proceedings were adjourned sine-die on 04.10.2012 till FC got traced. On 05.12.2013 an application was moved by Union of India before this Court for issuance of production warrants against FC as it was reported that a communication was sent by Punjab police, Patiala that FC had been arrested on 29.11.2013 and was sent to judicial custody.
Consequently, production warrants were issued against the FC by Ld. Predecessor Court vide order dated 05.12.2013 and FC was produced from Central Jail, Patiala, Punjab before Magisterial Court in Delhi.
Counsel for FC argued that a bare reading of Section 318 of Crimes Act, 1958 makes it absolutely clear that the death of a person in a vehicular accident due to recklessness/negligence/under the influence of liquor/under the influence of drugs is considered as Culpable Driving and that sub-section (4) and (5) of Section 318 of Crimes Act, creates offence of Homicide as an exception to the offence of Culpable Driving.
It is further argued by the Counsel for FC that in Indian Law as well, death caused by rash or negligent Act not amounting to culpable homicide is covered under Section 304-A of Indian Penal Code, 1860 (IPC), while offence of culpable homicide is defined under Section 299 of IPC and punishable under Section 304 of IPC. Thus, it is argued that the offence of Section 318 of Crimes Act is at par with provision of Section 304-A of IPC which is only punishable upto 2 years of imprisonment. Moreover, the other offences charged against FC i.e. Section 24 of Crimes Act and Section 21(2) of the Foreign Passports Act (Law Enforcement and Security) Act 2005 are pari materia with Section 279 r/w Section 338 of IPC and Section 12 (1) (d) of Passports Acts under Indian Law, both of which offences do not carry imprisonment more than 2 years.
It is further contended by Counsel for FC that under Extradition Act, 1988 of Australia, extradition offence is defined as an offence for which the maximum penalty is death or imprisonment, or other deprivation of liberty for a period not less than 12 months. Thus, even as per the law of Extradition of Requesting State, extradition is permissible only with respect to offences for which penalty is for a period not less than 12 months. Since, the offences made out against the FC under Indian Law i.e. Section 279/338/304-A IPC and Section 12(1)(d) of Passports Act do not carry any mandatory minimum sentence of one year and are punishable for any period of imprisonment upto 2 years, thus, the offences in question do not fall under the category of ‘Extradition offence’.