Delhi Court recommends extradition of Indian fugitive to Australia for rash, negligent driving [Read Order]

A Delhi Court has recommended the extradition of an Indian national declared as a “fugitive criminal” for rash and negligent driving resulting in the death of a pedestrian in Australia in 2008 [Union of India v. Puneet]..The Delhi High Court, however, on August 17, heard Puneet's challenge to the order and issued notice to the Centre. "Till the next date of hearing, the petitioner will not be extradited out of the country," it added.The High Court noted 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.The matter will come up for hearing on September 20, 2021..The Magisterial Court, on August 12, interestingly weighed in on Australian laws in the context of provisions of the Indian Penal Code to hold that the fugitive criminal ought to face trial for the offences he is charged under in the foreign country as the offence committed there was an extraditable offence..Additional Chief Metropolitan Magistrate Akash Jain was dealing with an "extradition inquiry report" of Puneet who was accused of knocking down two pedestrians - one of whom succumbed to his injuries.Upon the conclusion of the inquiry, the Court recommended the Centre to extradite Puneet to the “requesting state," Australia, for him to face trial for the offences;.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);Improper use of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Commonwealth)..Background.In the intervening night of September 30, 2008 and October 1, 2008, Puneet was reportedly driving a sedan in a rash and negligent manner in a drunken state. While at the wheel, he hit two pedestrians in the State of Victoria, Australia. As a result of the impact, one of the pedestrians, Dean Byron Hofstee, died, and serious injuries were caused to Clancy Coker.On October 1, 2008, Puneet was charged with culpable driving causing the 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. On April 17, 2009, he pleaded guilty to the offences of culpable driving and negligently causing serious injury. After the collision, Puneet's breath analysis showed a blood alcohol concentration of 0.165%, while the prescribed limit in Victoria being 0.05%.The fugitive reportedly left Australia on June 12, 2009 using the passport of another Indian national, following which a warrant was issued against him with respect to the offence of the improper use of a foreign travel document.Subsequent to the request for extradition and arrest, thereafter, a communication from Punjab Police in 2013 showed that Puneet had been arrested on November 29, 2013..Arguments raised.Counsel for the defence argued that as per Section 318(1) of the Crimes Act under the Australian law, 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. In Indian law as well, it was stated, that death caused by rash or negligent act not amounting to culpable homicide was covered under Section 304-A of IPC, while the offence of culpable homicide was defined under Section 299 of IPC and punishable under Section 304 of IPC. It was, therefore, highlighted that the offence of Section 318 of Crimes Act was at par with provision of Section 304-A of IPC which is only punishable with upto two years of imprisonment. Even otherwise, the two other provisions of the Australian law he was charged under did not carry an imprisonment of more than two years.Further, under the Extradition Act, 1988 of Australia, an extradition offence was defined as an offence for which the maximum penalty was death or imprisonment, or other deprivation of liberty for a period not less than 12 months. It was argued that since the offences made out against his client under the Indian law were Sections 279/338/304-A IPC and Section 12(1)(d) of Passports Act, which do not carry any mandatory minimum sentence of one year, and were punishable for any period of imprisonment upto two years, the offences in question did not fall under the category of “extradition offence”.The point of discrimination on the basis of Puneet's race and nationality was also raised by the counsel while referring to witness’s testimony. Discrimination and violence against Indians on account of their race and nationality is very common in Australia, and Wikipedia and Google is full of such cases, it was argued.The counsel expressed reservations about his client getting a fair trial, arguing that several social media campaigns were initiated against the fugitive in Australia and even the Melbourne Lord Mayor had publicly called him names..Observations and verdict.The Court noted that by merely stating there is a racial bias and allegations that the campaigns are politically motivated without “cogent proof” was not enough.Further, the Court noted,“With respect to arguments of the Counsel for the fugitive criminal that he had already spent almost 18 months in custody in India, faced extradition proceedings for the last seven years and has no money to fight litigation in foreign country, it is held that the same are no grounds for refusing his extradition in terms of statutory provisions and treaty obligations. The plea of period of incarceration already undergone by the FC in India, may be raised by him before the concerned courts in requesting state,” it stated.It also held that it was not within its jurisdiction to conduct a trial or to return a finding of guilt with respect to the offences for which Puneet was wanted for extradition. “The final decision to extradite FC to requesting state effectively rests with Central Government,” it clarified.The Court noted that Article 2(1) of the treaty between Australia and India defined extraditable offences as offences, which are punishable under the laws of both contracting states by imprisonment for a maximum period of at least one year or by a more severe penalty. It further provided that where the request for extradition relates to a person convicted for such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.It also came on record that the terminology used to define an “extradition offence” in the treaty i.e., an offence punishable with imprisonment for a maximum period of at least one year or by a more severe penalty, is thus, different from language used in Extradition Act, 1962, which defines the same as an offence punishable with imprisonment for a term which shall not be less than one year.“Since, the offences prima-facie made out against the FC under Indian law are under Section 304 Part-II IPC, Section 279/338 IPC and Section 12(1)(d) of Passports Act, which are punishable with imprisonment for a period more than one year and upto 10 years, they fulfil the criteria of ‘extradition offence’ as defined in the treaty,” the order underscored..The inquiry report, therefore, concluded that with respect to the charge of culpable driving under Section 318(1) of the Crimes Act, 1958 (Victoria), offence under Section 304 Part-II of IPC was made out being an extraditable offence. Further it was held that the charges of negligently causing serious injury and improper use of a foreign travel document under Australian law were made out.The Court thus held that there is a prima facie case against the fugitive for initiating a trial with respect to the offences mentioned above.Special Public Prosector Bhaskar Vali represented the Union of India whereas Advocate Kanhaiya Singhal appeared for Puneet. Advocates Raghav Bansal and Shashwat Bansal appeared for the Australian High Commission..[Read order]