India v Rajarathinam & Anor

For a non-exempt category 2 territory, extradition material must satisfy the Extradition Act 2003 case-to-answer requirement. A statement may be treated as admissible evidence where it is made by a person capable of giving admissible direct evidence to an officer responsible for investigating offences or charging offenders. A document may also contain a summary of such evidence, but the summary must accurately and securely convey the underlying witness evidence. Narrative or partial summaries based on an accountant’s report do not qualify merely because they describe the report. Where the defect may be technical and capable of prompt correction, the appellate court may remit the matter so that the extradition judge can decide the issue on proper evidence.

The Government of India appealed under section 105 of the Extradition Act 2003 from District Judge Purdy’s preliminary ruling of 28 June 2006. The district judge held that paragraphs 6 and 7 of an affidavit by a Tamil Nadu police superintendent did not constitute admissible evidence under section 84. Those paragraphs recounted the contents and conclusions of a chartered accountants’ report concerning alleged fraud, but were not a statement by the accountants or a proper summary of intended witness evidence. The central issues were the scope of section 84(2) and section 84(4), and whether the defect required discharge or could be corrected on remittal.

The court agreed with the district judge that the affidavit’s account of the chartered accountants’ report could not be relied on under section 84(1).

1. Section 84(2). A statement made by a person capable of giving admissible evidence may constitute evidence for the case-to-answer inquiry if it was made to a police officer or another person charged with investigating offences or charging offenders. Where the document itself indicates that it was so made, the court may rely on that indication unless there is a proper basis for doubt.
2. Section 84(4). The phrase referring to a summary in a document is ambiguous. The court indicated, without deciding the point, that it may include a summary made by another person of evidence given by a person capable of giving admissible evidence. A summary by the intended witness would ordinarily fall within section 84(2), making a narrower construction unnecessary.
3. Application. Paragraphs 6 and 7 were partly narrative and partly a summary based on the police superintendent’s reading of the report. They were not a statement by the accountants, nor a sufficiently clear summary of their report. They therefore did not provide evidence for the section 84(1) inquiry.
4. Disposition. The defect might be one of form rather than substance. Given the seriousness of the allegations and the possibility that an accurate account could promptly be supplied, the matter was remitted to the district judge. He was to reconsider extradition on the proper material, including any significant deficiency in the report or its account. No order for costs was made at that stage; the statutory costs provisions could operate when extradition or discharge was ultimately ordered.

• High Court (Administrative Court): District Judge Purdy’s preliminary ruling of 28 June 2006 was upheld as to the inadmissibility of the affidavit material, but the matter was remitted for reconsideration on proper evidence.