Delhi District Court
Union Of India vs Randall John Caffery on 6 March, 2025
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, NEW DELHI, PATIALA
HOUSE COURTS, DELHI
Cr. Cases No. 8115/2017
CNR No. DLND020252582017
UNION OF INDIA ...Petitioner
Vs.
RANDALL JOHN CAFFERTY ...Respondent
Date of Institution : 06.10.2017
Reserved for Judgment : 24.01.2025
Date of Decision : 06.03.2025
PETITION UNDER SECTION 5 OF THE EXTRADITION
ACT, 1962
INQUIRY REPORT
1. The present extradition petition under section 5 was
moved by Union of India seeking an inquiry into the extradition
request of Indonesia for extradition of the Mr. Randall John
Cafferty. The Indian Govt. received request for extradition
through diplomatic channel for extradition of Mr. Randall John
Cafferty, a US national, vide Note verbale No. AHU.5.AH.12.07-
113 dated 13.11.2017, in pursuance to the treaty between
Republic of India and Republic of Indonesia being treaty No.
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GSR 845(E) dated 06.11.2015.
2. As per the extradition request, Mr. Randall John
Cafferty committed the offences of causing death by person by
negligence under Article 83, 84 and 191 of Indonesian Law
No.36 of 2014, Articles 78 & 79 of Indonesian Law No. 29 of
2004 in regard to Medical Practice and Article 359 of Indonesian
Criminal Code. It is stated in the petition that all these offences
were punishable by imprisonment for more than one year. It is
stated in the petition that the said offences are punishable under
section 304A of the Indian Penal Code and under section 15(2) of
Indian Medical Council Act, 1956 by imprisonment for more
than one year. It is stated that since the offences alleged to have
been committed by Mr. Randall are punishable by imprisonment
for more than one year under the Indonesian law as well as under
Indian law, the offences are extraditable in terms of Article 2 of
the Extradition Treaty between the Republic of India and
Republic of Indonesia.
3. Mr. Randall was arrested on 29.09.2017 in
Bengaluru upon his arrival pursuant to a Red Corner Notice
dated 08.04.2016 being Control No. A-2965/4-2016. Therefore,
upon an application being made by Union of India under section
34B of Extradition Act, Mr. Randall was detained in custody.
Thereafter, a request for extradition was made by Republic of
Indonesia and the Govt. of India, upon being satisfied with the
requirement of the treaty, passed an order dated 12.12.2017 for
initiation of an inquiry under section 5 of Extradition Act, 1962.
4. The facts leading to the present petition are that on
06.082016, the FC Mr. Randall John Cafferty had given
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treatments to the victim Allya Siska Nadya two times i.e. at 13:00
hrs and 18:15 hrs Jakarta local time, at Chiropractic First Clinic
Pondok Indah Mall, South Jakarta. That the method of treatments
was by way of applying pressure motions from the waist upwards
to the neck, whereby cracking sounds occurred during the five
minutes treatments. That the last treatment took place at 22:30
hrs Jakarta local time, and thereafter, the victim Allya Siska
Nadya experienced very severe pain on her back and neck and
was then brought and admitted to the Emergency Installation of
Pondok Indah Hospital, Jakarta. It is further alleged that on
07.08.2015, at 01:20 hrs Jakarta local time, a lump on the front
neck was found which was believed to have been caused by
broken blood vessels, and at 06:15 hrs Jakarta local time, the
victim Allya Siska Nadya was declared dead at the hospital.
5. It is further alleged in the extradition request that FC
Randall John Cafferty did not have the Traditional Healer
Registration Certificate (Surat Terdaftar Pengobat
Tradisional/STPT) or Traditional Healer Permit (Surat Izin
Pengobat Tradisional/SIPT) and that Chiropractic First Clinic at
Pondok Indah Mall did not have a business license. It is further
alleged that no traditional healer permit has been issued to
Randall John Cafferty but despite that Mr. Randall John Cafferty
had given Chiropractic treatment to the deceased Allya Siska
Nadya for two times.
6. It is further averred in the request that Dr. Lutfi
Gatham, the orthopedic doctor at Pondok Indah Hospital deposed
that on 17.07.2014, he treated Ms. Allya Siska Nadya and based
on X-Ray photograph dated 14.07.2014, Ms. Allya Siska Nadya
was diagnosed to have cervical kyphosis and advised to undergo
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Magnetic Resonance Imaging (MRI). According to the expert
testimony of Dr. Dohar L. Tobing, the orthopedic specialist,
based on the X-Ray photograph dated 14.07.2014, Ms. Allya
Siska Nadya had severe kyphosis and no manipulation should
have been made. That on 05.08.2015, Ms. Allya Siska Nadya
went to the Chiropractic First Clinic with Ms. Allya Siska Nadya
along-with X-Ray photograph dated 14.07.2014. Ms. Allya Siska
Nadya was then given a form and after that she met Mr. Randall
John Cafferty. Mr. Randall John Cafferty who was not a
radiologist then observed/read the X-Ray photograph and
examined the spine of Ms. Allya Siska Nadya as if he was a
physician. That on 06.08.2015, at 13:00 hrs Jakarta local time,
Allya Siska Nadya together with the witness Arnisda Helmy went
to the Chiropractic First Clinic of Pondok Indah Mall. That at
that time Ms. Allya Siska Nadya chose the S40 package, namely
40 (forty) sessions of treatment with total cost of Rp.
17,000,000.-(seventeen million rupiah). That she was then given
a Health Card, and at around 13:16 hrs Jakarta local time, Ms.
Allya Siska Nadya together with the witness Arnisda Helmy
entered the treatment room. Ms, Allya Siska Nadya was then
asked to lie on her stomach on the bed and then Randall John
Cafferty accompanied by the witness Febie Tamanita conducted
the treatment/therapy to Allya Siska Nadya.
7. It is further averred in the request that after the
treatment, Ms. Allya Siska Nadya was asked to return to the
clinic for afternoon treatment as per the instructions of Mr.
Randall John Cafferty. That at around 19.00 hrs Jakarta local
time, Ms. Allya Siska Nadya together with the witness Arnisda
Helmy returned to the Chiropractic First Clinic of Pondok Indah
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Mall. Ms. Allya Siska Nadya was then treated by the Mr. Randall
John Cafferty for around five minutes, and thereafter, Ms. Allya
Siska Nadya had returned home. That after returning home from
the Chiropractic First Clinic, at around 22:30 hrs Jakarta local
time, Ms. Allya Siska Nadya complained very severe pain on her
neck to left back. That Ms. Allya Siska Nadya was then taken to
Pondok Indah Hospital and at the said hospital, she was
examined by the witness Dr. Fahreza. That at 01:20 hrs Jakarta
local time, Dr. Fahreza examined Allya Siska Nadya who was
still in pain and found a lump on the front part of left neck. That
at 05:00 hrs Jakarta local time, Ms. Allya Siska Nadya lost heart
rate and pulse. Dr. Fahreza then pumped heart of Ms. Allya Siska
Nadya but failed to wake her up and then Ms. Allya Siska Nadya
was declared dead at 06:15 hrs Jakarta local time.
8. It is further averred that on 13.01.2016, an autopsy
was conducted on the corpse of Ms. Allya Siska Nadya. That as
per the the testimony of Dr. Wahyu, the forensic expert, the blood
spot existing in the corpse of Ms. Allya Siska Nadya was due to
blood vessel burst in muscle and soft tissue in the left part of the
neck. The requesting state has recorded detailed statements of the
witness during the course of investigation into the alleged
offences, and all the above said information was based upon the
investigation progress report Ex. CW 1/8.
9. The FC Mr. Randall John Cafferty is charged with
the following offences in Indonesia:
Article 83 of the Law Number 36 Year 2014:
Any person who is not a Health Worker performs the practice as
if the Health Worker who already has a license as referred to in
Article 64 shall be liable to a maximum imprisonment of 5
(five) years.
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Article 84 of the Law Number 36 Year 2014:
(1) Any Health Worker who carries out a heavy negligence
resulting in a seriously injured Medical Service Receiver being
punished with a maximum imprisonment of 3 (three) years.
(2) If the gross negligence as referred to in paragraph (1)
resulted in death, every Health Worker shall be punished with
imprisonment for a maximum of 5 (five) years.
Article 77 of the Law Number 29 Year 2004:
Any person who deliberately uses another form identity that
creates an impression on the community/public/society as if he
or she is a doctor or dentist who already has a doctor’s
registration letter or dentist’s registration letter and/or a license
for medical practice as has been previously explained in Article
73 (1) shall be punished with imprisonment for a maximum
imprisonment of 5 (five) years or a maximum fine of Rp.
150.000.000 (one hundred and fifty million rupiah).
Article 78 of the Law Number 29 Year 2004:
Any person who deliberately uses other tools, methods or
means of providing services to the community/public/society
that gives the impression as if the person concerned is a doctor
of dentist who already has a doctor’s registration letter or
dentist’s registration letter or a license for medical practice as
has been previously explained in Article 73 paragraph (2) shall
be sentenced to a maximum imprisonment of 5 (five) years or a
maximum fine of Rp150.000.000 (one hundred and fifty million
rupiah).
Article 359 of the Indonesian Penal Code:
Any person for his negligence causes the death of another
person, threatened with a maximum imprisonment of five years
or a maximum of one year’s imprisonment.
Article 191 of the Law Number 36 Year 2009:
Any person without permission to practice the traditional health
services that use tools and technology as referred to in Article
60 paragraph (1) resulting in a loss property, serious injury or
death shall be imprisoned with a maximum imprisonment of 1
(one) year and a fine of at most Rp100.000.000 (one hundred
million rupiah).
Evidence Adduced
10. Upon receipt of the petition under section 5 of the
Extradition Act, 1962, on 19.12.2017, the copy of the petition
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.6/32
along-with documents received from the requesting State were
supplied to the FC Mr. Randall. In support of the petition, Union
of India examined Sh. Sandeep Kumar, Deputy Secretary
(Extradition) as witness CW1 who relied upon the following
documents:
(a) Treaty dated 06.11.2015 Ex. CW1/1,
(b) The Extradition Note Verbale date 21.11.2017 Ex.
CW1/2,
(c) The certificate appended to the Note Verbale Ex.
CW1/3,
(d) The extradition request Ex. CW1/4,
(e) The attachments i.e. attachment A documents relating
to identity of FC, attachment B red corner notice dated
08.04.2016, attachment C copy of arrest warrant dated
12.10.2017, Ex. CW1/5 to Ex. CW1/7.
(f) The police investigation report Ex. CW1/8,
(g) The order of the Under Secretary (Extradition), Govt.
of India dated 12.12.2017 Ex CW1/9.
CW1 was cross-examined by Ld. Counsel for the
FC. The evidence on behalf of Union of India was completed on
08.11.2021.
11. The FC Mr. Randall Cafferty examined himself as
witness DW1 in his defence. He tendered his evidence by way of
affidavit Ex. DW1/A. He relied upon his licence of practice as
Chiropractic bearing registration No. 20474 dated 02.04.1990
issues by State Board of Chiropractic Examiner, State of
California Ex. DW1/C. He was cross-examined by Ld. SPP for
Union of India.
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Arguments and Submissions
12. I have heard the arguments advanced. Both parties
have filed written synopsis of their submissions. Briefly stated, it
is contended on behalf of the FC that the prima facie case is
required to be shown and in the present case, there is no prima
facie case for causing death by negligence. It is the contention of
the FC that the death occurred due to the medications given by
the Pondok Indah Hospital and not by the therapy given by the
FC. It is further submitted that there was proximity between the
drug administered by the Pondok Indah Hospital and the death of
the victim. It is the further contention of the FC that arrest of the
FC on 29.09.2017 pursuant to the red corner notice dated
08.04.2016 was illegal as on that date, there was no legal warrant
issued by judicial authority was in existence. It is further
contention of the FC that no autopsy was conducted after the
death of the victim and the same was conducted after the expiry
of about 06 months, whereas as per the Indonesian Criminal
Procedure Code, conducting autopsy is mandatory. It is further
submitted that the autopsy was conducted at a time when the
body was in advanced decay. It is further submitted that as per
the autopsy, no cause of death could be assigned. It was further
submitted that the forensic report does not suggest that the death
of the victim occurred due to the Chiropractic therapy. It is
submitted that the extradition of the FC is sought due to the
nationality and religion of the FC. Ld. Counsel for the FC has
relied upon the following authorities:
(i) Bhavesh Jayanti vs. State of Maharashtra & Ors.,
2009 9 SCC 551.
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(ii) Sarabjit Rick Singh vs. Union of India, 2008 2 SCC
417.
(iii) Jacob Mathew vs. State of Punjab & Anr., 2005 6
SCC 1.
13. On the other hand, Ld. SPP for UOI has supported
the extradition request on the ground that as per the testimonies
of the witnesses who were the medical practioners, as per the
condition of the victim, no manipulation should be carried out
and that no pressure ought to have been applied on the spine of
the victim. That the FC was not registered as a health worker nor
was he medical practioner and despite that he not only given the
treatment but also examined the x-ray reports of the victim. That
the arrest of the FC was not illegal in as much as the red corner
notice Ex.CW1/6 itself mentions arrest warrant issued on
14.01.2016 by the Indonesian police. It is further submitted that
as per the Article 6 of the Treaty, the arrest warrant can be issued
by a court or other competent authority. That as per the
Indonesian Law, police is competent to issue arrest warrant. It is
submitted that there was no material placed on record by the FC
to show that he is being prosecuted for his religion, nationality,
colour, political ideology etc. Ld. SPP has relied upon the
following authorities:-
(i) Sarabjit Rick Singh Vs. Union of India, 2008 2 SCC
417.
(ii) Kamlesh Babulal Aggarwal Vs. Union of India &
Anr., 2008 104 DRJ 78 (DB).
Analysis and findings
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14. Before averting to the merits of the case, it is
necessary to take a glance at the law governing the procedure and
nature of inquiry to be conducted by the Magistrate under section
7 of Extradition Act. The following provisions of the Extradition
Act, 1962 are germane to the inquiry for an extradition request:
Section 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.
Section 6. Issue of warrant for arrest: On receipt of an order of
the Central Government under sec tion 5, the magistrate shall
issue a warrant for the arrest of the fugitive criminal.
Section 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 is 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.
15. It was held by Hon’ble Supreme Court in Sarabjit
Rick Singh Vs Union of India, 2007 13 (Addl.) SCR 321 , that
under the Extradition Act, the Magistrate is not required to hold a
trial. It was held that section 7(2) of the Act envisages taking of
such evidence as may be produced in support of the requisition of
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.10/32
the foreign State as also on behalf of the FC. It was held that the
Magistrate in both the situation is required to arrive at a prima
facie finding either in favour of the FC or in support of the
requesting State. It was further held that in such an inquiry, no
formal trial is required to be held and only a report is required to
be made. It was held that an inquiry under the Extradition Act is
to be conducted only to find out a prima facie case against the
fugitive criminal for extradition to the requesting State. It was
held that the Magistrate is not required to evaluate the evidence
so as to arrive at a finding that the FC is or is not guilty. The
relevant observations of the Hon’ble apex Court read as under:
“30. Article 9(3) of the Treaty says that the request for
extradition should be supported by such infom1ation as would
justify the committal for trial of the person if the offense had
been committed in the Requested State. Section 7 of the
Extradition Act prescribes that 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 same
were one triable by a Court of Sessions or High Court.
31. Difference between incorporation by reference and a mere
citation is now well known in view of the decisions of this
Court in Karnataka State Road Transport Corporation v. B.A.
Jayaram and A Ors., [1984] Supp. SCC 244. and Nagpur
Improvement Trust v. Vasantrao and Ors., and Jaswantibai and
Ors., [2002] 7 SCC 657. Incorporation by reference provides
for a legislative device where the legislature instead of
repeating the provisions of the statute incorporates it in another
statute.
32. We may, however, notice that in Mis. Girnar Traders v. State
of Maharashtra and Ors., (2007) 10 SCALE 391, the question
has been referred to a larger bench. We would, however,
proceed on the assumption that the doctrine of incorporation of
reference as said to be containing in Section 7 of the Act would
apply in the instant case. We may, however, hasten to add that
the said Act being a self contained Code, the provisions thereof
must be applied on their own terms.
33. Sections 208 and 209 of the Code of Criminal Procedure,
1898 contemplate taking of such evidence as may be produced
in support of the prosecution or on behalf of the accused that
may be called for by the Magistrate. Compliance of the
principle of natural justice or the extent thereof and the
requirement of law is founded in the statutory scheme. The
Magistrate is to make an enquiry. He is not to hold a trial. CodeCr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.11/32
of Criminal Procedure makes a clear distinction between an
enquiry, investigation and trial. Authority of the Magistrate to
make an enquiry would not lead to a final decision wherefor a
report is to be prepared. Findings which can be rendered in the
said enquiry may either lead to discharge of the fugitive
criminal or his commitment to prison or make a report to the
Central Government forwarding therewith a written statement
which the fugitive criminal may desire to submit for
consideration of the Central Government. Sub-section (2) of
Section 7 envisages taking of such evidence as may be
produced in support of the requisition of the foreign . State as
also on behalf of the fugitive criminal. It is open to the fugitive
criminal to show that the offence alleged to have been
committed by him i.s of political character or the offence is not
an extraditable offence. He may also show that no case of
extradition has been made out even otherwise. The Magistrate,
therefore, in both the situations is required to arrive at a prima
facie finding either in favour of fugitive criminal or in support
of the requesting state. [See Sohan Lal Gupta (dead) through
LRs. And Ors v. Asha Devi Gupta (Smlj and Ors., [2003] 7
SCC 492]. 34. What would constitute “evidence” came up for
consideration before this Court in Ramnarayan Mor and Anr v.
State of Maharashtra, [1964] 5 SCR 1064 to hold that the
documents also formed part of the evidence within the meaning
of Section 207 A ( 6) of the Code of Criminal Procedure, 1898.
35. In a proceeding for extradition no witness is examined for
establishing an allegation made in the requisition of the foreign
State. The meaning of the word “evidence” has to be considered
keeping in view the tenor of the Act. No formal trial is to be
held. Only a report is required to be made. The Act for the
aforementioned purposes only confers jurisdiction and powers
on the Magistrate which he could have exercised for the
purpose of making an order of commitment. Although not very
relevant, we may observe that in the Code of Criminal
Procedure, 1973, the powers of the committing Magistrate has
greatly been reduced. He is now required to look into the entire
case through a very narrow hole. Even the power of discharge
in the Magistrate at that stage has been taken away.
36. Law in India recognizes affidavit evidence. (See Order IXX
of the Code of Civil Procedure and Section 200 of the Code of
Criminal Procedure). Evidence in a situation of this nature
would, thus, in our opinion mean, which may be used at the
trial. It may also include any document which may lead to
discovery of further evidence. Section 3 of the Indian Evidence
Act which defines “evidence” in an enquiry stricto sensu may
not, thus, be applicable in a proceeding under the Act.
37. Section 10 of the Act provides that the exhibits and
depositions (whether received or taken in the presence of the
person, against whom they are used or not) as also the copies
thereof and official certificates of facts and judicial documents
standing facts may, if duly authenticated, be received as
evidence. Distinction must be borne in mind between the
evidence which would be looked into for its appreciation or
otherwise for a person guilty at the trial and the one which isCr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.12/32
required to make a report upon holding an enquiry in terms of
the provisions of the Act. Whereas in the trial, the court may
look into both oral and documentary evidence which would
enable him to ask question in respect of which the accused may
offer explanation, such a detailed procedure is not required to
be adopted in an enquiry envisaged under the said Act. If
evidence stricto sensu is required to be taken in an enquiry
forming the basis of a prima facie opinion of the Court, the
same would lead to a patent absurdity. Whereas in a trial the
court for the purpose of appreciation of evidence may have to
shift the burden from stage to stage, such a procedure is not
required to be adopted in an enquiry. Even under the Code of
Criminal Procedure existence of strong suspicion against the
accused may be enough to take cognizance of an offence which
would not meet the standard to hold him guilty at the trial.
38. Reliance has been placed by Mr. Vishwanathan, learned
counsel for the appellant, on Land Acquisition Officer and
Mandal Revenue Officer v. V Narasaiah, [2001] 3 SCC 530
wherein interpreting Section 51-A of the Land Acquisition Act
this Court held that the certified copy of a registered sale deed
would be admissible in evidence. The said decision, we may
notice, has been approved by the Constitution Bench of this
Court in Cement Corporation of India Ltd. v, Purya and Ors.,
[2004] 8 sec 270. It may be true that a document does not prove
itself Its contents, unless admitted, should be proved in terms of
the provisions of the Evidence Act, unless the contents of the
documents are said to be admissible by reason of a provision of
a statute, as for example Section 90 of the Evidence Act. But
what misses the aforementioned submission/ contention is that
whereas the contents of the document is to be proved for the
purpose of trial but not for the purpose of arriving at an opinion
in regard to existence of a prima facie case in an enquiry. Strict
formal proof of evidence in an extradition proceeding is not the
requirement of law. While conducting an enquiry the Court may
presume that the contents of the documents would be proved
and if proved, the same would be admitted as evidence at the
trial in favour of one party or the other. We, therefore, are
unable to accept the submission of Mr. Vishwanathan that even
at this stage the affidavits by way of evidence of the
accomplices Michael Ryan ‘O’ Mealey and Alan Lane Blackley
who had been arrested and pleaded guilty and had been
cooperating with DEA Agent were required to be excluded from
consideration by the learned Magistrate without any
corroboration.
xxxxxxx
46. The provisions of a statute, it is trite law, must be
harmoniously construed. When a statute is required to be read
with an International Treaty, consideration of the provisions
contained in the latter is also imperative. On a conjoint reading
of Section 7 and Section 10 of the Act read with paragraphs 2
and 3 of Article 9 of the Treaty, we are of the opinion that the
word “information” occurring in Section 7 could not mean an
evidence which has been brought it on record upon strict
application of the provisions of the Evidence Act. The termCr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.13/32
“information” contained therein has a positive meaning. It may
in a sense be wider than the words “documents and the
evidence”, but when a document is not required to be strictly
proved upon applying the provisions of the Indian Evidence Act
or when an evidence is not required to be adduced strictly in
terms thereof, the use of the word “information” in Section 10
of the Extradition Act as also Articles 9(2) and 9(3) of the
Treaty becomes relevant. Documentary evidence, no doubt
form part of a judicial record; but then G even in a court
governed by Criminal Procedure Code 1973 documents are to
be supplied only when the cognizance of the offence is taken.
At this stage, therefore, the requirement of sub-section (5) of
Section 173 of the Code of Criminal Procedure was not
necessary.
Section 10 of the Extradition Act speaks of certification
of facts. Such certification is found in the affidavit of Mr.
Gilpin. How such certificate A of fact is to be furnished does
not appear from the provisions of the said Act and the affidavit
may serve the said purpose. It is not, therefore, possible to hold
that the report of the learned Magistrate is vitiated on the
premise that he has failed to apply a mandatory provision
thereof.
47. Section 208 of the Old Code of Criminal Procedure is not
required to be applied in its entirety. The said provision were
required to be applied as far as practicable. The provisions of
the Act confer power B and jurisdiction upon the Magistrate as
the case is not brought before it by the prosecutor or the
complainant, but an enquiry is entrusted to the designated court
by the Central Government. A power was, therefore, required to
be conferred under a statute to the Magistrate, so that, it may
have the requisite power and jurisdiction to make an enquiry. Its
function are quasi judicial in nature; its report being not a
definitive order. Further section does not stop at that. It refers to
the committal proceeding only for the manner in which the
same is to be conducted. While a court would commit an
accused in terms of Section 208, it was required to arrive at a
finding for the said purpose. It postulates that a finding has to
be arrived at only for the purpose of discharge of an accused or
his extradition upon formation of a prima facie view. The legal
principle in this behalf has clearly been laid down in sub
sections (2), (3) and (4) of Section 7 of the Extradition Act. The
said sub-sections cannot be ignored. Unlike Section 208 of the
Code, no witnesses need be examined and cross examined. If
the State has been able to prima facie establish that a case has
been made out for bringing an accused to trial, it will be for the
accused to show that no such case is made out of the offences
complained or for extradition. 48. In a case of this nature the
second part of Section 10 of the Act would apply which does
not contemplate production of any oral evidence by the Central
Government. No fact needs to be proved by evidence. What is
necessary is to arrive at a prima facie case finding that a case
has been made out for extradition from the depositions,
statements, copies and other informations which are to be
gathered from the official certification of facts and judicialCr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.14/32
documents that would include the indictment by the Grand Jury.
49. Section 10 of the Act provides as to what would be received
in evidence. The marginal note although may not be relevant for
rendition of decisions in all types of cases but where the main
provision is sought to be interpreted differently, reference to
marginal note would be permissible in law. [See Deewan Singh
and Ors. v. Rajendra Pd Ardevi and Ors., (2007) 1 SCALE 32].
50. The use of the terminology ‘evidence’ in Section 7 of the
Act must be read in the context of Section 10 and not d’hors the
same. It is trite that construction of a statute should be done in a
manner which would give effect to all its provisions.”
16. In Smt. Nina Pillai and Others v. Union of India and
Others, ILR 1997 Delhi 271. The relevant excerpts are
reproduced as under:
“… 9. We have given our careful consideration and
thought to the submissions made by the learned Counsel for the
peti tioner. It is clear from the scheme of the Extradition Act
that pursuant to a request made under section 4 of the Act, the
or der contemplated to be passed for a Magisterial inquiry un
der section 5 does not contemplate a pre-decisional or prior
hearing. Section 5 of the Act is an enabling provision by which,
a Magistrate is appointed to inquire into the case. The
Magistrate on the order of inquiry being passed by Cen tral
Government issues a warrant of arrest of the fugitive criminal.
The whole purpose is to apprehend or prevent the further escape
of a person who is accused of certain offences and/or is
convicted and wanted by the requesting State for trial or for
undergoing the sentence passed or to be passed. The Act
contains sufficient safeguards in the procedure to be followed in
the inquiry by the Magistrate to protect the fugi tive criminal.
The Magistrate is to receive evidence from the requesting State
as well as of the fugitive criminal. The fugi tive criminal is
entitled to show that the offences of which he is accused or
convicted are offences of political character or not an
extradition offence. Besides, the Magistrate, if he comes to a
conclusion that a prima facie case is not made in support of the
requisition by the requesting State, he is re quired to discharge
fugitive criminal….
…. 11. We may notice here that upon receiving information
with sufficient particulars from a requesting State that a fugitive
criminal is wanted for any alleged offence committed in the
requesting State or for undergoing trial or sentence, the Central
Government passes an order under section 5 of the Act,
appointing a Magistrate to inquire into the case. The Criminal
Procedure Code also provides for the arrest of a person without
warrant who is concerned in any cognizable offence or against
whom a reasonable complaint has been made or credible
information has been received or a reason able suspicion exists
of his having been so concerned in the offence, under section 41
of the Code. Accordingly, on credible information beingCr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.15/32
received from a requesting State, with sufficient particulars,
about a person having been involved in any offence, the said
person could be arrested in India without warrant. It is now
fairly well-settled that the Magis terial inquiry which is
conducted pursuant to the request for extradition is not a trial.
The said enquiry decides nothing about the innocence or guilt
of the fugitive criminal. The main purpose of the inquiry is to
determine whether there is a prima facie case or reasonable
grounds which warrant the fugitive criminal being sent to the
demanding State. The jurisdiction is limited to the former part
of the request and does not concern itself with the merits of the
trial, subject to exceptions, as outlined in the preceding
paragraph 7, in which case the request for extradition is de nied
by the Central Government…”
17. In Kamlesh Babulal Aggarwal v. Union of India &
another, 2008 (104) DRJ 178, it was observed:
“… 15. In our opinion, the power of the Magistrate in
con ducting an inquiry under Section 7 of the Act is akin to
framing of the charge under Section 228 of the Code of
Criminal Procedure, 1973. At the stage of the framing of charge
even a strong suspicion founded upon material and presumptive
opinion would enable the court in framing a charge against the
accused. At that stage, the court possess wider discretion in the
exercise of which it can determine the question whether the
material on record is such on the basis of which a conviction
can be said reasonably to be possible. The requirement of
Section 228 also is of a prima facie case. Sufficiency of
evidence resulting into conviction is not to be seen at that stage
and which will be seen by the trial court. At that stage
meticulous consideration of mate rials is uncalled for. The
persons who are not examined by the original investigating
agency may be examined by an other investigating agency to
make the investigation more effective. The materials so
obtained could also be used at trial. The court is not required to
appreciate the evidence and arrive at the conclusion that the
materials produced are sufficient or not for convicting the
accused. If the court is satisfied that a prima facie case is made
out for proceeding further, then a charge has to be framed. The
sifting of evidence at this stage is permissible only for a limited
purpose to find out a prima facie case but the court cannot
decide at this stage that the witness is reliable or not. At the
stage of framing of charge, evidence is not to be weighed. The
court is not to hold an elaborate inquiry at that stage.
16. Section 7(3) and (4) of the Act in fact require a prima facie
case only “in support of requisition”. Reading the said provision
Along with Section 29, we feel that the ambit of inquiry under
Section 7 is in fact narrower than Section 228 CrPC and is
limited to find that the fugitive is not be ing targeted for
extraneous reasons…”
18. From the above position of law, it is clear that while
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conducting an inquiry under Extradition Act, 1962 following
aspects are required to be examined:
(a) Whether a prima-facie case exists against the FC in
support of the requisition of the requesting State;
(b) Whether the offence for which extradition of FC is
sought is an extraditable offence;
(c) Whether the extradition request and documents
received are duly authenticated;
(d) Whether the offence for which extradition of FC is
sought for extraneous reasons.
19. In the present case, the investigation progress report
Ex. CW1/8 is the backbone of the extradition request. The said
document contains the testimonies of the witness on the basis of
which the extradition is sought. It is necessary to examine the
case of the requesting State so as to determine whether there is,
prima facie, case for extradition, or whether the extradition of the
FC is sought for extraneous reasons. The witness Arnisda Helmy,
who was the mother of the deceased, stated that on 06.08.2015 at
about 13:00 hrs she accompanied the deceased to the clinic and
the deceased was given the first session of the chiropractic
therapy by the FC, which lasted for about 05 minutes. That on the
same day at around 19:00 hrs, she accompanied the deceased to
the clinic for the second session and similarly, another session of
the therapy for 05 minutes was given to the deceased by the FC.
That at about 22:30 hrs the deceased complained of pain in her
back and then, the witness and her husband brought the victim to
Pondok Indah Hospital.
20. The witness Alfian Helmy Hasjim, who was the
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.17/32
father of the deceased, stated that initially the deceased
complained of pain in her upper back but the same was tolerable.
He stated that since the deceased had to go to abroad for her
schooling, they wanted to find a solution to alleviate the pain and
thus, on 05.08.2015, the deceased visited the clinic to search for
information. In addition to the testimony of Ms Arnisda Helmy,
he stated that on return of the deceased from the clinic, the face
of the deceased looked tired and pale. He stated that when the
deceased was taken to Pondok Hospital, she was treated by Dr.
Fahreza Aditya Neldy and he saw the deceased was in intense
pain due to swelling on the left side of her neck which was due to
blockage in the throat. That on 07.08.2015 at about 01:00 hrs he
saw the deceased shouting in agony. That the doctor had given
pain killers gradually upto the morphine level. That at 04:00 hrs
the deceased was unconscious and there was swelling between
the neck and left chest. That as per Dr. Chipy, the blood vessel in
the neck was broken and that MRI was required to be done. That
thereafter, the deceased started experiencing seizures and the
doctors and the nurse staff gave ventilator support, among other
things. That after some time the deceased regained consciousness
but was in agony and she was then put to sleep again to calm her
down. Shortly thereafter, the equipment started showing absence
of heart rate and the doctor in the emergency room told them that
maximum dosage of the drug was going to be administered but if
the heart beat did not improve, it would be difficult to help the
patient. That at 05:45 hrs, the doctor asked for the permission to
pump her heart so that the patient could be revived but after 30
minutes of all the efforts, the patient did not respond and
ultimately at around 06:15 hrs, Dr. Fahreza declared the deceased
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.18/32
to be dead.
21. The witness Dr. Fahreza Aditya Neldy, who was a
general practitioner at Pondok Hospital, stated that on 06.08.2015
he was on duty as attending physician and at around 23:45 hrs,
the deceased came to ER of the Pondok Hospital. He stated that
he interviewed the deceased and the deceased stated that he was
experiencing pain on her back and neck which was got worsen
since afternoon. He stated that as per the mother of the deceased
i.e. Ms. Arnisda Helmy, the deceased had been experiencing pain
in her neck and back for a long time. The witness found from the
medical records that the deceased had been treated at Pondok
Hospital a year ago i.e. in 2014 and had undergone X-ray
photograph from which it was known that she had spinal
abnormalities (cervical kyphosis). The witness, to alleviate the
pain, gave Remopain injection to the deceased and had also given
Omz to the decease to prevent gastritis which may result from the
use of Remopain. That even after 15-30 minutes, the pain of the
deceased was not alleviated and the deceased was having acute
neck pain at C5 level (cervical 5 level). He stated that at around
00:30 hrs, she gave Lameson to the deceased via injection in
order to strengthen the anti-pain effect by the eliminating
inflammation but the deceased was still in pain. He further stated
that at 00:45 hrs, consulted with a neurologist i.e. Dr. Suryo and
he was instructed by the said neurologist to give Ketesse as much
as half ampoule but the condition of the deceased did not
improve. He stated that at 01:00 hrs, he consulted with an
Anesthetic doctor i.e. Dr. Dimas for pain management. That at
around 01:20 hrs, the witness found a lump on the front part of
her neck and thereafter, the witness once again consulted ENT
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specialist Dr. Chippy as he was concerned that such lump could
interfere with breathing of the deceased. He stated that he has
asked Dr. Chippy to come to the hospital immediately. The
witness also consulted with a spine specialist i.e. Dr. Asanto and
a vascular specialist i.e. Dr. Deddy Zaelani as he was concerned
that there could be blood vessel bursts. The witness was
suggested to reduce the pain and perform MRI but the witness
stated that MRI could not be performed because the deceased
was still in pain and kept moving. The witness further stated that
thereafter, throacic and neck photographs were taken of the
frontal part of the the neck and thorax. That the photographs of
the front part of the thorax had shown a white shadow in the
upper part of the neck, which was suspected to be a mass but no
conclusions could be made. That as about 02:20 hrs, the deceased
had a seizure and her consciousness was dropping. That she was
given intravenous fluids in order to raise blood pressure to the
average target of 65 cmhg. The witness further stated that at
about 05:00 hrs, the deceased lost heart rate and pulse. The
witness stated that he pumped her heart but failed to revive the
deceased and ultimately, she was declared dead at about 06:15
hrs due to lack of supply of oxygen to the brain resulting from
extreme pain, neurogenic shock failure of blood pump, decreased
blood pressure and loss of consciousness.
22. The witness Dr. Wahyu Hidajati, who was the
forensic expert, stated that autopsy of the deceased was
conducted on 13.01.2016 at around 08:30 hrs. He stated that
during the external examination of the body it was found that
skin colour on the left side of the face to the left neck, left collar
bone basin and entire back of the neck got darken. He further
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.20/32
stated that from the internal examination of the body, a blackish
brown colour on the muscles and soft tissue of the entire front
and left part of the neck and black colour on the upper left
neck/around first to third collar bones, were found. He stated that
blood spots were found on the body of the deceased occurred due
to rupture of blood vessels in the area of muscle and soft tissue of
the left neck and the larger size of the broken vessel. The witness
could not be sure because the broken blood vessels could not be
found due to the state of the most of the soft tissue including
blood vessels having been decayed. He stated that from the
thickness of the blood spot on the upper neck area compared to
its surrounding area, it could be suspected that around such area
blood vessels got burst. He stated that broken blood vessels can
lead to a lump especially when surrounding skin is not open. He
stated that there is a basin in the neck area above the collar bone
(claviacule) layered by neck muscles so that in case of broken
blood vessel around the neck the blood will go down and
accumulate in such basin. He stated that if the bleeding
continues, the blood will fully fill the entire subcutaneous part
around the neck and the same will appear as a lump from the
outside. He further stated that if the blood vessels in the neck
area are broken the blood supply to the brain will decrease and
can cause death. He further stated that the volume of blood
accumulating around the neck area due to rupture of blood
vessels is significant, it can suppress important organs in the neck
area such as other blood vessels around the neck which may also
lead to disruption of blood supply to the brain. The witness was
not sure about the extent of the broken blood vessels and its
impact. The witness stated that he was not authorized to give
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.21/32
answer to the side-effects or risk of medication by medical
personnel of Pondok Hospital in handling the patient. The
witness stated that on the basis of the existing scientific literature,
act of neck manipulation as conducted during a chiropractic
therapy may potentially tear the arteries of the vertebrae. The
witness Dr. Dohar A.L. Tobing, doctor orthopedic, stated that the
X-ray of the deceased dated 14.07.2014, had shown that there
was severe kyposis and therefore, no manipulation was possible
to be conducted. He stated that the said condition required
surgery but it was also risky.
23. The witness Cecep Syaifudin, who was technical
staff at KPTSP (One stop integrated service office) of south
Jakarta, stated that as per data available, the Chiropractic First
Clinic, Pondok Indah Mall, did not hold the facility permit but
the same was still registered. He stated that the said clinic has
never applied for licenses and data verification and that its
healers/chiropractors have not applied for licenses but they still
held the requisite STPT (Traditional Healer Registration
Certificate).
24. The witness Sundoyo, who was expert from
Ministry of Health, stated that pursuant to the decree of Minister
of Health, Chiropractic is categorized as traditional medicine and
its practitioners are called Chiropractor. That as per the decree,
every traditional healer should hold the traditional healer
registration certificate or the traditional healer permit issued by
Local Regency/City Health Officer. That the said decree was
superseded by Law No. 36 of 2014 regarding Health Workers and
Government Regulation No. 103/2014 regarding traditional
health services and as per the said law, certain traditional healers
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.22/32
are called traditional health workers i.e. traditional healers who
have acquired knowledge from higher education atleast D3
(diploma), therefore, by law chiropractor is currently categorized
as health worker. That chiropractor education at D3 level in
Indonesia did not exists as on date and therefore, there is no
Indonesian chiropractor graduate. That there is not standard of
competence, educational standards, registration requirements and
licensing requirements. That chiropractors who are foreign
graduates and foreign citizens are not allowed to practice in
Indonesia as on date. That in order to enable the chiropractors to
practice in Indonesia a professional association, collegiate,
registration requirements and licensing requirements should be
established.
25. Now, it is to be examined as to whether the offences
for which the extradition is sought are extraditable offences or
not. As per Article 2 of the treaty Ex. CW1/1, an offence is an
extraditable offence, if it is punishable under the laws in both the
treaty States, by imprisonment of at least one year or by a more
severe penalty. The requesting State has alleged that the FC Mr.
Randall John Cafferty has committed offences under Article 83
and 84 of Law No. 36 of 2014 regarding health workers, Article
73, 77 and 78 of the Law No. 29 of 2004 regarding Medical
Practices, and Article 359 of the Indonesian Penal Code. First,
Article 83 and 84 of the Law No. 36 of 2014 shall be examined.
Article 83 prohibits a person from practicing as a health worker
who does not hold a licence in this regard. Article 84 punishes a
health worker who carries out heavy negligence resulting in
serious injury. As per the Union of India, these offences alleged
against the FC are similarly punishable under section 15 of the
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Indian Medical Council Act, 1956. Section 15 of the Indian
Medical Council Act reads as under:
15. Right of persons possessing qualifications in the Schedules
to be enrolled.–(1) Subject to, the other provisions contained in
this Act, the medical qualifications included in the Schedules
shall be sufficient qualification for enrolment on any State
Medical Register.
(2) Save as provided in section 25, no person other than a
medical practitioner enrolled on a State Medical Register, —
(a) shall hold office as physician or surgeon or any other office
(by whatever designation called) in Government or in any
institution maintained by a local or other authority.
(b) shall practice medicine in any State;
(c) shall be entitled to sign or authenticate a medical or fitness
certificate or any other certificate required by any law to be
signed or authenticated by a duly qualified medical practitioner.
(d) shall be entitled to give evidence at any inquest or in any
Court of Law as an expert under section 45 of the Evidence Act,
1872 (1 of 1872) or on any matter relating to medicine.
(3) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a term
which may extend to one year, or with fine which may extend to
one thousand rupees, or with both.
It can be seen from the above that section 15
prohibits practice of medicine by a person other than a registered
medical practitioner. In the present case, it is no where alleged
that the FC was practicing medicine. There is no dispute about
the fact that the FC was carrying out chiropractic therapy and the
treatment given by the FC was also not of medicine was purely
of chiropractic therapy. Thus, the offences being not similarly
punishable in India, much less by imprisonment of one year, are
not extraditable offence in terms of the treaty.
26. Similarly, the offences under Article 73, 77 and 78
of the Law No. 29 of 2004, speaks about practice of a person
without being a doctor or having valid licence and registration in
this regard. As already observed above, the note verbale itself
concedes that the FC was not practicing as a doctor of medicine
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and was giving treatment of chiropractic therapy only and that
the treatment given to the deceased was also chiropractic therapy
only and therefore, the offences under Artice 73, 77 and 78 of the
Law No. 29 of 2004 were also not extraditable.
27. Further, the requesting State has alleged that the FC
was practicing as a health worker and thus, was required to have
a valid licence before giving treatment. It is interesting to note
that the witness Sundoyo, expert of the Health Ministry, clearly
stated that the governing law i.e. Law No. 36 of 2014, certain
traditional healers are called traditional health workers who have
acquired knowledge from higher education at least D3 level
(Diploma). He stated that the law categorizes chiropractor as a
health worker. He stated that chiropractor education at D3 level
does not exist in Indonesia and as on date, there is no
chiropractor graduate in Indonesia. He stated that as on date, the
Indonesia does not have a professional association collegiate,
competency standards, registration and educational requirements
as well as licensing requirements. Thus, it is clear that at the date
of commission of the offence, there was a complete vacuum in
regard to the chiropractic therapy and its regulation. When there
was no licensing, educational and registration framework for
regulation of chiropractic therapy, it is entirely illogical to say
that the FC violated the law of the requesting State.
28. Further, as per witness Febie Tamanita, Romadian
Saputra, Widodo Heru, and Julianti Sjarief stated that there were
atleast seven to eight Chiropractic First Clinic in Indonesia, i.e. at
Pondok Indah Mall, Grand Indonesia, Mall Taman Anggrek,
Emporium, FX Senayan, Lippo Mall Puri and Kelapa Gading.
The FC was associated with only one of the clinics i.e. at Pondok
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Indah Mall, while other clinics have their own Chiropractors. In
the Chiropractic First Clinic Pondok Indah Mall also, there were
other persons who were doing the work of assistants. It is
interesting to note that none of the other chiropractors or the
Chiropractic First Clinic Pondok Indah Mall are being prosecuted
for violation of Article 83 and 84 of the Law No. 36 of 2014.
Further, despite being known that the Chiropractic First Clinic
Pondok Indah Mall was having no licence and admittedly,
allowed the chiropractic therapy to be given to deceased, has not
been prosecuted in the present case.
29. Now coming to the Article 359 of the Indonesian
Penal Code, the provision is akin to section 304A of Indian Penal
Code, 1860. Article 359 punishes anyone who caused death of
another person by negligence by maximum of five years
imprisonment. Section 304A of Indian Penal Code, 1860 makes
an act punishable with maximum of two years of imprisonment,
whereby death of a person is caused by a rash or negligent act.
The offence was thus, an extraditable offence in terms of the
treaty Ex. CW1/1. It is contended by Ld. Counsel for the FC that
in terms of the judgments of Jacob Mathews Vs State of Punjab
& Anr., 2005 Supp. 2 SCR 307, mere negligence by a medical
practitioner was not an offence in India and thus, requirement of
Article 359 must also satisfy the said requirement so as to be an
extraditable offence. The contention is misconceived in as much
as, the FC is a medical practitioner and chiropractors are not
treated as medical practitioners under the Indian legal
framework.
30. Now, it is to be examined whether there is a prima
facie case exits against the FC for his extradition to the
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requesting State. As per the case of the requesting State, the FC
gave two sessions of chiropractic therapy to the victim on
06.08.2015, one at about 13:00 hrs and another at about 19:00
hrs. The victim started experiencing pain at around 22:30 hrs
when she was brought to Pondok Indah Hospital. The witness Dr.
Fahreza Aditya Neldy, who was a general practitioner, treated the
victim at the said hospital. The victim was initially given
Remopain injection for alleviating pain but when the pain was
not alleviated, the victim was given Lameson. At that point of
time, it was known by the doctor that the pain, instead of
reducing, has elevated up to C5 levels. The victim was further
administered half ampoule of Ketesse but of no avail. At this
juncture, the condition of the victim had been deteriorated to the
extent that her MRI scan was not possible. The witness also
found lump at the front neck of the victim at about 01:20 hrs. It is
interesting to note herein that the doctor being only general
practitioner was keep on administering pain killers on hit and
trial basis without bothering to actually diagnose the cause of the
pain since the medication was not yielding desired results.
Ultimately, the victim succumbed to the lump appearing on her
frontal part of her left neck.
31. It is quite interesting to further note that despite the
fact that the victim died while being treated in the Pondok Indah
Hospital, the requesting State did not bother to investigate the
probable negligence on the part of the hospital. The witness Dr.
Wahyu Hidajati, who was the forensic expert, conveniently
refused to answer about the possible side effects of risk of
medication given by the Pondol Indah Hospital on the pretext
that he was not authorized to do so. He further refused to answer
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.27/32
the suitability of the treatments given by the Pondok Hospital
with the medical history of the victim on the ground that he was
not authorized to do so. However, despite being only a forensic
expert, he opined that act of manipulation conducted during a
chiropractic therapy, arteries might tear due to high pressure.
Further, the requesting State could not find out the actual cause
of death of the victim on the basis of the autopsy report since at
the time when the autopsy was conducted the body had been
considerably decayed. It is pertinent to mention that autopsy was
conducted only on 13.01.2016 despite the fact that the victim had
expired on 07.08.2015. There was considerable delay in
conducting the autopsy of the deceased.
32. The FC has relied upon Article 133 and 134 of the
Code of Criminal Procedure of Indonesia. As per the Article 133
of the Code, it is mandatory to conduct autopsy of a victim
whether he or she dies of injury, poisoning or death involving
criminal act. The Articles 133 and 134 read as under:
Article 133
(1) In case an investigator for the sake of justice handles the
problem of a victim, whether he is injured, poisoned or dead
presumably because of an event involving a criminal act, he is
authorized to submit a request for expert information from a
medical expert of the judiciary or a doctor and/or other expert.
(2) The request for expert information as intended in section (1)
shall be made in writing by stating firmly whether it shall be for
the examination of an injury or a dead person and/or an autopsy
(3) A dead body sent to a medical expert of the judiciary or a’
hospital doctor shall be trested in a proper way with full respect
for the dead person and be provided with a label stating the
identity of the corpse which, officially sealed and stamped, shall
be attached to the toe or other part of the dead body.
Article 134
(1) In utmost necessity when for the purpose of obtaining
evidence an autopsy can no longer be avoided, the investigator
is obliged to first inform the family of the victim.
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(2) In case of an objection on the part of the family, the
investigator is obliged to explain the clearest possible way the
aim and purpose of the autopsy.
(3) In within two days there is no response whatsoever from the
family or the party to be informed is nowhere to be found, the
investigator shall immediately, carry out the provision as
intended in article 133 section (3) of this law.
In the present case, the provision of Article 133 and
134 of the Code, have not been complied. The autopsy was not
conducted soon after the death of the victim. The autopsy was
conducted after excavation of the cadaver and that time, it was
considerably decayed. There are no reasons given for such
considerable delay in conducting the autopsy.
33. Further, the therapy was given to the victim lastly at
about 19:00 hrs. in the entire investigation progress report, except
the act that the FC had given chiropractic therapy to the victim,
nothing else has mentioned as to how the death of the victim was
a result of the therapy given to the victim. There is a considerable
time gap between the therapy given and the death of the victim.
The victim was under treatment in Pondok Hospital when she
died. It was stated by the witness that while under treatment,
victim developed a lump on the frontal portion of her neck on left
side. There is no material produced which even remotely
suggests that the lump appeared due to the chiropractic therapy
conducted by the FC. As already observed above, there is no
cause of death found out during the investigation by the
requesting State. The forensic expert could not assign the cause
of death of the victim as due to the chiropractic therapy. There is
no material produced by which the role of the hospital was
investigated. The expert witness of the requesting State himself
has not stated anything about the probable negligence of the
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Pondol Hospital in handling the victim or for the suitability of the
medication given to the victim. It is pertinent to mention that the
testimony of the witnesses clearly show that the victim was
earlier diagnosed and treated in the hospital. The mother of the
victim categorically stated that the victim used to experience pain
in her neck for a long period of time. Therefore, an inquiry
should have been conducted as to whether the medication given
to the victim was suitable to her condition. There is no reason
given for non-prosecution of the Chiropractic First Clinic Pondok
Indah Mall or the hospital. It appears that the FC Mr. Randall
John has been made a scapegoat for the alleged incident.
34. It is the further contention of the FC that his arrest
pursuant to Red Corner notice was illegal. It is submitted that
when the Red Corner notice was issued, no lawful warrant was in
existence. It is also submitted that the warrants, if any, were not
issued by any judicial authority. Ld. SPP for the Union of India
submitted that as per the treaty Ex. CW1/1, it is required that
warrant of arrest can be issued by a Court or other competent
authority. It is further submitted by Ld. SPP for the Union of
India, as per Indonesian Law, Indonesian National Police has the
authority to arrest and detain in accordance with Article 6 (1) and
Article 7 (1) of Indonesian Penal Code Procedure. As per the Red
Corner notice Ex. CW1/6, the said notice was issued on the basis
of arrest warrant No. SP.KAP/84/1/2016/DITRESKRIMUM
dated 14.07.2016 by Ditreskrimum Polda Metro Jaya. The arrest
of the FC was pursuant to a request for a provisional arrest in
terms of Article 9 of the treaty Ex. CW1/1 and under section 34B
of the Extradition Act. Section 34B of the Extradition Act
mandates that upon arrest of a fugitive criminal, a request for
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.30/32
extradition must be made within sixty days. In the present case,
the FC was arrested on 29.09.2017 and the note verbale was
received on 21.11.2017. Thus, prima facie, the requirements of
section 34B had been met in the present case. I agree with the
submissions made by Ld. SPP for the Union of India in this
regard that the arrest and issuance of the Red Corner notice
against the FC was not illegal. The Red Corner notice Ex. CW1/6
is self explanatory in this regard as it has specific mention of a
warrant being issued on 14.07.2016. The FC has not able to
specially show that as per Indonesian Law, police authorities are
not competent to issue a warrant for the arrest of an accused.
Therefore, the contention is rejected.
35. It is also the contention of the FC that he was being
targeted because of his nationality. On the other hand, Ld. SPP
for the Union has submitted that no material has been placed on
record by the FC to the effect that he was being targeted because
of religion, nationality, colour, political ideology. As per section 7
(3) of the Extradition Act, it is permissible for the FC to show
that the offence of which the FC is accused of is of political
nature. Though, it does appear from the record that only the FC
has been made an accused of the incident without there being any
prima facie material to link him with the death, there is no
material to suggest that it was being done so because of his
nationality. Hence, the contention of the FC is rejected.
Conclusions
36. After considering the entire facts, circumstances of
the present case, documents received in support of the extradition
request and provisions of Extradition Treaty executed between
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.31/32
both Requesting and Requested State, I conclude my inquiry
report with the following observations:
(i) That offences under Article 83 and 84 of the Law No.
36 of 2014 regarding Health Workers, and under Article 73, 77
and 78 of the Law No. 2004 regarding Medical Practices are not
an ‘extraditable offence’ under Article 2 of Treaty executed
between both the contracting States;
(ii) That prima-facie case against FC Mr. Randall John
Cafferty is not made out in respect of the offence under Article
359 of the Indonesian Penal Code under Section 7(3) of the
Extradition Act, 1962 and FC stands discharged.
A copy of this report be given dasti to the FC as well as
sent to the UOI through the Ld. SPP.
Digitally
signed by
PRANAV
PRANAV JOSHI
JOSHI Date:
2025.03.06
Announced in open Court 17:16:37
+0530
On this 06th Day of March, 2025
(PRANAV JOSHI)
ACJM-01/NEW DELHI
PATIALA HOUSE COURT
Cr. Cases No. 8115/2017 Union of India Vs Randall John Cafferty Page No.32/32
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