REVA KHETRAPA, J. -
(1.) The prayer made in this petition is for taking on record additional evidence, which was not allowed to be taken on record by the impugned order dated 4th December, 2006 passed by the learned Extradition Magistrate in the Extradition Enquiry proceedings pending before her.
(2.) The facts relevant for the decision of the present petition are as follows: On 14th March, 2003, one Hannah Foster aged about 17 years was reported to be missing by her parents at Southampton, England, United Kingdom. Two days later, that is, on 16.03.2003, the body of Hannah Foster deceased was found in the undergrowth by the side of Allington Lane in West End, Southampton. On investigation by the Hampshire Constabulary, Maninder Pal Singh Kohli (hereinafter referred to as the "Fugitive-Criminal") was suspected for the offence of kidnapping, rape and murder of the deceased Hannah Foster. Sometime in June, 2004, the Fugitive-Criminal was arrested by the West Bengal Police from Patnighata (Indo-Nepal Border), Kalimpong, West Bengal while he was about to flee from India to Nepal. Consequent to his arrest, the ACMM, New Delhi was, as per law, appointed as an Extradition Magistrate by the Central Government vide order dated 6th September, 2004 on account of the extradition treaty between India and U.K., copy whereof is enclosed with the petition as Annexure P-1. During the period from September, 2004 to July, 2006, the ACMM remained seized of the matter. In August, 2006, during the course of enquiry proceedings in the matter, some queries were raised and clarification sought on some points and issues by the learned Extradition Magistrate as evidenced by her orders dated 7th August, 2006, 23rd August, 2006 and 25th August, 2006 enclosed with the petition as Annexure P-2 (collectively). It is not proposed to dwell at length on the said orders. Suffice it to say, that a perusal of the said orders shows that the learned Extradition Magistrate desired to seek certain clarifications with regard to the route taken by the Fugitive-Criminal and as to whether the blood sample of the Fugitive-Criminal had been taken for the purpose of DNA testing, to which the Fugitive-Criminal furnished an affidavit on 25th August, 2006 to the effect that after he had been brought from Patnighata to Kalimpong, his blood samples for DNA tests and finger prints were taken by the British Police. In this regard, he also placed before the learned Extradition Magistrate two news item in the "Chandigarh Tribune" dated 16.07.2004 and 17.07.2004 to show that DNA testing had been done pursuant to his arrest. In his affidavit, the Fugitive-Criminal also submitted that his DNA test was also conducted by the Crime Branch of Delhi in the Swiss Diplomat rape case after taking his blood samples when he was lodged in Kalimpong jail. In this regard also, he placed on record the news item published in "The Hindu" dated 21st July, 2004, wherein DCP Sh. Tajender Luthra had stated that "........... Kohli's DNA test would be conducted ...........". It was submitted that all these tests were done on the asking of the British agencies and the Crime Branch while he was at the Kalimpong Hospital. Pursuant to a query put by the learned Extradition Magistrate as to whether he was ready and willing to submit for DNA examination by the investigating agency, the Fugitive-Criminal submitted that he was not willing to submit for DNA test, in view of the fact that his blood samples, DNA tests and finger prints had been taken on several occasions, and several blood tests had been conducted by both the British agencies and the Delhi Police; which reports, according to him, should be available with the concerned agencies. In the aforesaid circumstances, the following observations were made by the learned Extradition Magistrate in her order dated 25th August, 2006:
"............................. I have considered the submissions made before me. In case if what has been submitted by the Fugitive Criminal is correct then it is certainly a matter of serious concern as to why the results in respect of the DNA analysis carried out by the British agencies and the Delhi Police have not been placed before this court till date. This aspect assumes importance in view of the fact that both the investigating agency and the prosecution are relying upon the DNA test report in respect of the samples taken from the children of fugitive in order to connect the present Fugitive Criminal with the offence. This court is given to understand that the DNA science is an exact science and leaves no chance to probabilities or conclusiveness. In this background once the Fugitive Criminal had been apprehended in India and if in case his blood samples had been taken for the purposes of conducted (sic.) DNA testing as alleged, the report in respect of the same could have been relevant for the purposes of present inquiry in order to conclusively connect the Fugitive Criminal with the offence. In this background, I direct the UOI to: (i) inform this court regarding the correctness of the claims of the Fugitive Criminal with regard to taking of his blood samples by the British Agencies at Kalimpong at the time of his arrest for DNA analysis and also by the Delhi Police during the investigations of the Swiss diplomat rape case. (ii) In case if the blood samples of the Fugitive Criminal as alleged had been taken by the concerned agencies whether the DNA matching had been carried out vis-a-vis the present case or not. (iii) In case if the said tests have been carried out, to inform this court why the reports in respect of the same have not been placed before this court."
(3.) On 20th October, 2006, the petitioner/U.O.I. pursuant to the queries put and clarifications sought by the learned Extradition Magistrate filed an application for taking on record additional evidence/documents/ photographs, copy whereof is enclosed with the petition as Annexure P-3. The said application was opposed by the respondent/Fugitive-Criminal by filing a reply dated 04.11.2006, copy whereof is enclosed with the petition as Annexure P-4. On 13.11.2006, the petitioner filed a rebuttal to the reply filed by the respondent/Fugitive-Criminal to the application dated 20th October, 2006, copy whereof is Annexure P-5. On 4th December, 2006, the learned Extradition Magistrate after hearing arguments passed the impugned order on the application dated 20th October, 2006, whereby the application of the petitioner for taking on record the additional evidence was partly allowed. The grievance of the petitioner is that some very material evidence has not been permitted to be taken on record which, in fact, was filed by the petitioner pursuant to the queries raised and the clarifications sought by the learned Extradition Magistrate herself. This material evidence/record was called for from the Requesting State, i.e., U.K. pursuant to the queries raised by the learned Extradition Magistrate. Copies of the documents/additional evidence, which were not permitted to be taken on record are annexed with the petition as Annexure P- 6 (collectively), while a copy of the impugned order dated 04.12.2006 is annexed as Annexure P-7.;