MAJIBULLAH MOHAMMAD HANEEF vs UNION OF INDIA

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 10th November, 2023
Judgment delivered on:24th November, 2023

+ W.P.(CRL) 275/2022 & CRL.M.A. 27212/2023 (directions), CRL.M.A. 28432/2023 (directions)

MAJIBULLAH MOHAMMAD HANEEF ….. Petitioner
Through: Mr.Bahar U. Barqui and Mr.Maroof Ahmad, Advocates.

Versus

UNION OF INDIA ….. Respondent
Through: Mr.Chetan Sharma, ASG, Mr.Ajay Digpaul, CGSC, Mr.Amit Gupta, Ms.Swati Kwatra, Ms.Ishita Pathak, Mr.Kamal Digpaul and Mr.Saurabh Tripathi, Advocates.

CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

1. The present writ petition has been filed by the petitioner challenging his extradition by the Respondent/Union of India (Requested State) to the Sultanate of Oman (Requesting State).
2. Brief facts giving rise to the present petition are as follows:-
2.1. The petitioner being a permanent resident of Uttar Pradesh, India was working as a labourer in Bidiyah, the Sultanate of Oman.
2.2. On 31st July, 2019, Bidiyah Police Station received a report that one Omani national along with his wife and three minor children was found dead at his home. On preliminary investigation, the authorities in Oman found finger prints and DNA samples of the petitioner along with that of the other Fugitive Criminals (FCs) being, Garibulla Mohammad Haneef, Nashibullah Mohammad Haneef and Abdullah Mohammad Haneef. As per the preliminary investigation, all the aforesaid four FCs were found to have committed offences of premeditated murder felony punishable under Article 302-A of the Penal Code of Oman. Subsequently, all the aforesaid FCs absconded from Oman to India.
2.3. Vide email dated 5th August, 2019, a request for provisional arrest of all the FCs was made on behalf of the Requesting State in terms of Article 11 of the Extradition Treaty between the Republic of India and the Sultanate of Oman (Extradition Treaty). Pursuant to the same, an application under Section 34-B of the Extradition Act, 1962 (Extradition Act) was moved by the Respondent for issuing provisional arrest warrants against the FCs. Vide order dated 17th August, 2019, arrest warrants were issued against the FCs through CBI Interpol and the petitioner was arrested on 12th September, 2019.
2.4. In the meantime, the Requesting State sent a formal request for extradition of all the four FCs vide Note Verbale No. 5200/22230/306 dated 20th September, 2019 along with the original supporting documents to the Respondent. Pursuant thereto, vide order dated 23rd October, 2019, the Ministry of External Affairs, Union of India made a request under Section 5 of the Extradition Act for an inquiry to be conducted by the learned Additional Chief Metropolitan Magistrate (ACMM-01), New Delhi District, Patiala House Courts, New Delhi. Since the remaining FCs could not be apprehended, the inquiry proceeded against the present petitioner.
2.5. Before the learned ACMM, one witness, being the Deputy Secretary (Extradition), Ministry of External Affairs, Government of India was examined on behalf of the Respondent as CW-1 in support of the request for extradition. CW-1 exhibited the following documents received from the Requesting State:-
“
i. Ex. CW 1/A : Extradition treaty between Government of India and the Sultanate of Oman;
ii. Ex. CW 1/B : Order bearing No. T-413/64/2019, dated 23.10.2019;
iii. Ex. CW 1/C : Note Verbale bearing no. 5200/222000/306 dated 20.09.2019;
iv. Ex. CW 1/D :Details of the Fugitive Criminals and the (28 pages) brief facts of the incident;
v. Ex. CW 1/E-1 : Finger Prints and Photograph of FC Majibullah Mohd. Haneef;
vi. Ex. CW 1/F-1 : Arrests Warrants issued against FC Majibullah Mohd. Haneef;
vii. Ex. CW 1/G : Translated Crime Report;
viii. Ex. CW 1/H-1 : Autopsy report of Hamoud Nasser Hassan Al Balushi (Male);
ix. Ex. CW 1/H-2 : Autopsy report of Rahma Salem Abdullah Al Balushi (Female);
x. Ex. CW 1/H-3 : Autopsy report of Abdul Karim Hamoud Naseer Hassan Al Balushi (Male);
xi. Ex. CW 1/H-4 : Autopsy report of Ibrahim Hamoud Nasser Hassan AI Balushi (Male);
xii. Ex. CW 1/H-5 : Autopsy report of Hamza Hamoud Nasser Hassan Al Balushi (Male);
xiii. Ex. CW 1/J : Tool report;
xiv. Ex. CW 1/K (colly) : Technical Report of the Crime Scene including Photographs;
xv. Ex. CW 1/L : Note Verbale no. 5200/22230/331, dated 09.10.2019;
xvi. Ex. CW 1/M : Response to the queries made to the Requesting State;
xvii. Ex. CW 1/N : Comparison result of photographs of FC (11 pages) Majibullah;
xviii. Ex. CW 1/O :An application for placing additional documents provided by the Requesting State;
xix. Ex. CW 1/P : The case summary (supplementary report); (08 pages)
xx. Ex. CW 1/Q : Communication analysis;
xxi. Ex. CW 1/R : Finger print examination and comparison; (43 pages)
xxii. Ex. CW 1/S : Biological analysis report;
xxiii. Ex. CW 1/T : Certificate of authentication and signature authorization;
xxiv. Ex. CW 1/U : An application u/s 34B of the Extradition Act 1962, dated 16.08.2019;
xxv. Ex. CW 1/V (OSR) : The facts of the case in Arabic; (9 pages)
xxvi. Ex. CW 1/W (OSR) : Transcript in English language; (9 pages)
xxvii. Ex. CW 1/X (OSR) : Summary of the crime report in Arabic;
xxviii. Ex. CW 1/Y (OSR) : Transcript in English;
xxix. Ex. CW 1/Z1 (OSR) : Arrest Warrants of FC;
xxx. Ex AA1(OSR) : Finger prints of FC;
xxxi. Ex. CW 1/BB1 : Copy of first page of passport of FC;
(OSR)
xxxii. Ex CW1/BB1A : Photographs of FC;
xxxiii. Ex. CW 1/CC : Secondment Order in Arabic;
(OSR)
xxxiv. Ex. CW 1/DD : Transcript in English language;
(OSR)”
2.6. The petitioner made a statement before the learned ACMM that he does not wish to lead any defence evidence. However, submissions were made before the learned ACMM on behalf of the petitioner stating that he had falsely been implicated in the case and that he would not get a fair trial in the Requesting State, if extradited. It was further submitted that the only punishment for the offence in question in the Requesting State is that of death penalty.
3. After hearing both sides, the learned ACMM came to the following conclusion:-
I. In both the States, i.e., India and Oman, the offence in question constitutes an offence punishable with imprisonment for a period more than one year. Thus, the principle of ‘Dual Criminality’ stands satisfied.
II. A prima-facie case was made out against the petitioner in support of the requisition of the Requesting State.
III. The documents submitted on behalf of the Requesting State were duly authenticated.
IV. The offence for which the extradition is sought is not a political offence.
V. There is no basis to state that the petitioner would not receive fair trial in the Requesting State.
VI. There is no merit in the argument of the petitioner regarding non-compliance with Section 34-B of the Extradition Act.
4. Accordingly, the learned ACMM vide the impugned order dated 22nd November, 2021 recommended to the Respondent the extradition of the petitioner to the Requesting State for facing trial for offence under Article 302-A of the Penal Code of the Requesting State.
5. By way of the present petition, the petitioner challenges the aforesaid impugned order of the learned ACMM. An application to amend the present petition was filed on behalf of the petitioner being CRL.M.A. 27211/2023, which was allowed by this Court vide order dated 9th October, 2023 and the amended petition was taken on record. The prayers of the amended petition are set out below:-
“(a) issue an appropriate writ, order of direction in the nature of certiorari quashing the inquiry report dated 22.11.2021 passed by the Hon’ble ACMM, Mr. Akash Jain, Additional Chief Metropolitan Magistrate-01, New Delhi District, Patiala House Courts, New Delhi in CC No.501/20 titled as “Union of India Vs. Mahibullah Mohammad Haneef;
(b) A writ of mandamus directing the Respondent not to extradite the petitioner in any manner whatsoever and protect his fundamental rights enshrined in article 21 and other articles of the Constitution of India;
(c) Allow the petition to lead defence evidence in disposed of CC No. 501/20 titled as “Union of India Vs. Mahibullah Mohammad Haneef”

6. Counsel appearing on behalf of the petitioner has made the following submissions:-
I. The petitioner was a labourer who was engaged for whitewashing the house of the victim in the Requesting State and has been wrongly implicated in the present case.
II. The victim himself gave his ATM card along with the pin to the petitioner to withdraw money from the ATM.
III. When the petitioner came back to the house of the victim after withdrawing money, he found the victim and his family members dead. He touched the body of the victims to see if they were alive or not and hence his fingerprints and DNA were found on the bodies.
IV. The Requesting State has failed to submit the authenticated documents in terms of Article 10 of the Extradition Treaty. It is further stated that no weapon has been recovered from the petitioner. No statement of the prosecution authorities of the Requesting State has been made before the learned ACMM and the CW-1, who was the official of the Respondent, had no authority to depose in the inquiry proceedings.
V. The Respondent has failed to apply its independent mind to assess if an extraditable offence exists before requesting an Inquiry by the learned ACMM under Section 5 of the Extradition Act.
7. Per contra, the learned ASG appearing on behalf of the Respondent submits that all the requirements in terms of the Extradition Act as well as the Extradition Treaty have been duly made in the present case. It is further submitted that all material against the petitioner have been received as per the mandate of Article 10 of the Extradition Treaty. An assurance has been received from the Requesting State that the petitioner shall receive a fair and just trial. Reliance has been placed on the judgment of the Supreme Court in Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417.
8. I have heard the counsels for the parties and perused the material on record.
9. At the outset, reference may be made to the scheme of the Extradition Act, along with relevant provisions thereof:-
“2. Definitions.?In this Act, unless the context otherwise requires,?
(c) “extradition offence” means?
(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;
(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence;
XXX XXX XXX
5. Order for magisterial Inquiry.?Where such requisition is made, the Central Government may, if it thinks fit, issue an order to any Magistrate who would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction directing him to inquire into the case.
6. Issue of warrant for arrest.? On receipt of an order of the Central Government under section 5, the magistrate shall issue a warrant for the arrest of the fugitive criminal.
7. Procedure before magistrate.?(1) 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 session or High Court.
(2) Without prejudice to the generality of the foregoing provisions, the magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal accused or has been convicted is an offence of political character or is not an extradition offence.
(3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State he shall discharge the fugitive criminal.
(4) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State he may commit the fugitive criminal to prison to await the orders of the Central Government and 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 Central Government.
XXX XXX XXX
10. Receipt in evidence of exhibits, depositions and other documents and authentication thereof.?(1) In any proceedings against a fugitive criminal of a foreign State under this chapter, exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof and official certificates of facts and judicial documents stating facts may, if duly authenticated, be received as evidence.
(2) Warrants, depositions or statements on oath, which purport to have been issued or taken by any court of Justice outside India or copies thereof, certificates of, or judicial documents stating the facts of conviction before any such court shall be deemed to be duly authenticated if?
(a) the warrant purports to be signed by a judge, magistrate or officer of the State where the same was issued or acting in or of such State;
(b) the depositions of statements or copies thereof purport to be certified, under the hand of a judge, magistrate or officer of the State where the same were taken, or acting in or for such State, to be original depositions or statements or to be true copies thereof, as the case may require;
(c) the certificate of, or judicial document stating the fact of, a conviction purports to be certified by a judge, magistrate or officer of the State where the conviction took place or acting in or for such State;
(d) the warrants, depositions, statements, copies, certificates and judicial documents, as the case may be, are authenticated by the oath of some witness or by the official seal of a Minister of the State where the same were issued, taken or given.”
10. A perusal of the aforesaid provisions of the Extradition Act would show that extradition in respect of a Treaty State has to be in relation to an offence provided for in the Extradition Treaty with that State. India has an Extradition Treaty with the Sultanate of Oman which has been duly notified by the Ministry of External Affairs, Union of India vide Gazette Notification dated 1st June, 2006. Article 2 of the Extradition Treaty states that “persons accused of an offence punishable under the laws of both Contracting States by imprisonment for not less than one year or for more severe punishment” shall be extradited.
11. Section 5 of the Extradition Act provides for an inquiry by a Magistrate upon an extradition request being made by the Requesting State and pursuant thereto an order being passed by the Government of India. Section 7 of the Extradition Act lays down the procedure for carrying out the inquiry by the Magistrate. Section 7(2) specifically provides that the inquiry has to determine whether the offence is of a political character or is an extraditable offence or not. Section 10 deals with the evidence in the form of exhibits, depositions and other documents and the manner of their authentication.
12. A reference may also be made to Article 10 of the Extradition Treaty which provides for the documents to be provided by the Requesting State along with the request for extradition:-
“ ARTICLE 10
The request for extradition shall be made in writing and served through the diplomatic channels accompanied by the following documents and particulars:
a. Particulars as to identify, description and photograph of the person to be extradited, if possible.
b. The warrant of arrest, remand or any document having the same effect, issued by a competent authority, if the person to be extradited is an accused.
c. The date, the place of commission of the acts for which extradition is requested, the legal characterization of those offences, and a certified copy of the applicable legal provisions, and a statement by the prosecuting authorities as to evidence against the person to be extradited.
d. In case of a convicted offender, an official copy of the judgment passed.
e. Such other evidence as according to the laws of the Requested State, would justify the offender’s arrest and committal for trial had the offence been committed within the jurisdiction of the Requested State.
All documents referred to above shall be translated into English and authenticated by the Requesting State.”
13. The judgment of the Supreme court in Sarabjit Rick Singh (supra) has laid down the parameters of an inquiry to be conducted by the Magistrate under the Extradition Act:-
(i) The Magistrate has to arrive at a prima facie finding whether the offence for which extradition is sought is of a political character or is otherwise an extraditable offence or not.
(ii) No formal trial is required to be held for determining the guilt of the fugitive criminal. Only a report is required to be made.
(iii) In terms of Section 10 of the Extradition Act, exhibits and depositions as also copies thereof, duly authenticated can be received in evidence.
(iv) Strict formal proof of evidence is not required. While conducting the inquiry, the Court may presume that the contents of the document would be proved.
14. From a reading of the above, it can be stated that the standard of proof in an inquiry in an extradition case is not of the same level as that required in a trial. This is because the scope of the inquiry is only to come to a prima facie conclusion and not to establish the actual guilt of the FCs. The inquiry envisaged under Section 5 of the Extradition Act has to examine the following four requirements:-
(i) Whether the offence for which the extradition is sought is a political offence?
(ii) Whether the offence involved is an extraditable offence?
(iii) Whether a prima-facie case exists against the FC?
(iv) Whether the extradition request and documents received are duly authenticated?
(i) Whether the offence for which the extradition is sought is a political offence?
15. There is nothing to suggest that the offence for which the petitioner is charged i.e. murder, is in the nature of a political offence. Additionally, no submissions in this regard have been made on behalf of the petitioner before this Court.
(ii) Whether the offence is an extraditable offence or not?
16. Insofar as the above said requirement is concerned, the offence of murder is punishable in both India and Oman with a punishment of more than one year imprisonment and is therefore an extraditable offence as per the Extradition Treaty. This aspect has not been contested on behalf of the petitioner before this Court.
(iii) Whether a prima facie case exists against the FC?
17. With regard to the above, the Requesting State has submitted the following documents/exhibits along with the extradition request :-
a. Detailed autopsy and medical reports of the victims [Exhibits CW1/H-1 to CW1/H-5];
b. Fingerprint reports that showed that the petitioner’s fingerprints were found at various places in the house [Exhibit CW1/R];
c. Reports of the DNA samples which were taken from the body of the victims and the house that matched with the DNA samples of the petitioner [Exhibit CW1/S];
d. Footage from CCTV cameras showing that the petitioner had withdrawn money using the ATM card of the victim [Exhibit CW1/N].
18. Counsel for the petitioner submits that the fingerprints as well as the DNA samples of the petitioner were found in the house of the victim as the petitioner was engaged for whitewashing the said house. He further submits that the fingerprints as well as the DNA samples were found on the bodies of the victims as the petitioner was trying to check if the victims were alive or not.
19. It is a matter of record that despite opportunity granted, no defence evidence was led on behalf of the petitioner before the learned ACMM. Further, these are the defences that would be open to the petitioner to be taken at the time of trial before the concerned court in the Requesting State. For the purposes of the inquiry under the Extradition Act, sufficient material has been placed by the Requesting State so as to make out a prima facie case in support of extradition.
(iv) Whether extradition request and documents are duly authenticated?
20. In respect of the above, the learned ACMM has made the following observations:-
“48. In the present case, the formal request for extradition of FC was received from Requesting State on 20.09.2019 vide Note Verbale No. 5200122230/306 along with supporting documents i.e. brief facts of incident, details of fugitive criminals, finger prints and photographs of FC, tool report, arrest warrants, autopsy report of victims, technical report of crime scene along with photographs. All these documents have been duly signed by Attorney General, Sultanate of Oman and duly authenticated by the office of Public Prosecution, Sultanate of Oman.
49. Also, the authenticity of aforesaid documents has not been challenged on behalf of FC during entire proceedings, as such, the extradition request and abovesaid documents received stand duly authenticated in terms of Section 10 of the Act.”
21. Counsel for the petitioner submits that the authorities from the Requesting State should have appeared before the learned ACMM in India so as to authenticate the aforesaid documents and the documents cannot be read in evidence by CW-1, who was an employee of the Respondent.
22. I do not find merit in the aforesaid contention. Section 10 of the Extradition Act does not envisage that authorities from the Requesting State should depose before the Indian Courts and only then the documents/exhibits submitted by the Requesting State can be admitted in evidence. The mandate of Section 10 of the Extradition Act is absolutely clear that all exhibits and depositions which are authenticated by the Requesting State can be received in evidence.
23. As noted by the learned ACMM, in the present case, all the documents have been signed by the Attorney General of the Requesting State and duly authenticated by the office of the Public Prosecution of the Requesting State [Exhibit CW1/T].
24. In view of the discussion above, in my considered view, the learned ACMM has correctly observed in his Inquiry Report that all the requirements for extraditing the petitioner stand satisfied and therefore recommended the extradition of the petitioner to the Respondent.
25. Counsel for the petitioner submits that the Respondent failed to apply its independent mind before requesting the learned ACMM for an Inquiry under the Extradition Act. From the record, it is evident that after receiving the requisition from the Requesting State, the Respondent had sought certain queries from the Requesting State vide Ministry Node No. T/413/64/2019 dated 30th September, 2019. Response was received from the Office of the Attorney General of Oman vide communication dated 9th October, 2019 and additional documents and evidence were provided [Exhibit CW1/L]. Only after receiving the response from the Requesting State, the Respondent made a request to the learned ACMM to conduct an inquiry in terms of the Section 5 of the Extradition Act. Therefore, there is no merit in the submission of the petitioner that the request for conducting the Inquiry by the Respondent was passed mechanically without applying its mind.
26. Another contention raised by the petitioner before this Court is that the petitioner would not get a fair trial in the Requesting State as it is governed by Sharia/Islamic Law. Counsel for the petitioner submits that unlike India, where an offence for murder can also be punished with life imprisonment, in Oman, the offence of murder is only punishable with death penalty. A representation in this regard was filed by the petitioner before the learned ACMM under Section 17(3) of the Extradition Act.
27. Acting on the aforesaid representation of the petitioner, the Respondent engaged with the Requesting State to seek assurances about his fair trial, free legal aid and services of an interpreter during trial. The Respondent also explored possibilities of commutation of the death penalty to life imprisonment, in the event of conviction of the petitioner. In this regard, a communication dated 20th July, 2022 was received from the Embassy of the Sultanate of Oman, New Delhi, wherein the aforesaid concerns raised by the petitioner were addressed. The relevant extracts from the aforesaid communication are set out below:
“…The Government of Sultanate of Oman assures the Government of the Republic of India that Majibullah will have access to a fair and just trial, while ensuring that Majibullah has all the rights to defend himself under the criminal proceedings of the Sultanate of Oman. These guarantees include the right of the accused to a legal and fair trial that provides him with the necessary safeguards to exercise the right of defense.
It is further assured that Majibullah will be provided with a competent lawyer to defend himself in the event of his financial inability to hire a lawyer, and an interpreter will be provided to Majibullah during the interrogation and the trial proceedings.
It is further assured that in the event that the court judges unanimously passed a death sentence on Majibullah, the papers will be referred to a committee headed by His Eminence the mufti or his assistant to express the opinion from Sharia Law viewpoint, and then the verdict will be issued by the court, where the final verdict will be submitted to His Majesty The Sultan for final consideration.
The Indian government, Majibullah or his family can always appeal for pardon or waiver of the death penalty. It is further assured that the government of the Sultanate of Oman will consider Majibullah’s petition for reasons that allow commutation of the death sentence to life imprisonment, in the event that Majibullah is convicted for the alleged offense of murder and sentenced to death by the competent judicial authority in the Sultanate of Oman…”
28. A perusal of the above communication would show that the Requesting State has assured the Government of India that the petitioner will have a fair and just trial and he would be provided with a lawyer to defend himself and an interpreter would also be provided to him during the investigation as well as the trial. The legal provisions that exist in the Requesting State with regard to death penalty and commutation thereof as well as the provision of pardon have also been elucidated in the aforesaid communication.
29. Based on the aforesaid communication, the Respondent sent a communication dated 23rd August, 2022 to the petitioner, whereby the Respondent communicated its decision to extradite the petitioner to Oman as recommended by the learned ACMM in the Extradition Inquiry Report dated 22nd November, 2021. The relevant extracts from the said communication are set out below:
“2. This is to inform you that the Government of India has considered your Representation/Written Statement and it has been decided to extradite you from India to Oman, as recommended by Shri Akash Jain, Ld. Additional Chief Metropolitan Magistrate-01, Patiala House Court, New Delhi vide his Extradition Inquiry Report dated 22/11/2021 in CC No. 501/20, for standing trial in Oman for the alleged offence under Article 302(A) of the Penal Code of The Sultanate of Oman.
3. Please note that after a prolonged engagement with the Government of The Sultanate of Oman, relevant assurances vide their Embassy’s Note Verbale No. 5200/22230/156 July 22, 2022 (copy attached) have been obtained from them which largely take care of the concerns, raised by you in your representation/Written Statement.”
30. During the pendency of the present petition, an application being CRL.M.A. 27212/2023 was filed by the petitioner on 23rd August, 2023 before this Court seeking permission to lead defence evidence before the learned ACMM. The counsel for the petitioner submits that there was negligence on behalf of the counsel for the petitioner appearing before the learned ACMM to have not led the defence evidence. He further submits that non-production of defence evidence would cause great prejudice to the petitioner.
31. A perusal of the application would show that the petitioner has not given any details of the documents or the evidence that the petitioner seeks to rely upon in his defence. In my view, this application is devoid of merits and just an attempt on part of the petitioner to delay his extradition.
32. In view of the discussion above, the present petition, along with pending applications, is dismissed and the impugned order passed by the learned ACMM is upheld. Consequently, the decision of the Union of India to extradite the petitioner to the Sultanate of Oman is upheld.

AMIT BANSAL, J.
NOVEMBER 24, 2023
sr/rt

W.P.(CRL) 275/2022 Page 2 of 2