New Delhi [India], October 27 (ANI): The Supreme Court on Tuesday stayed the Madras High Court’s September 8 order directing the Centre to take custody of alleged international art trafficker Subash Chandra Kapoor from Tiruchirappalli Central Prison and proceed in accordance with law for returning him to Germany.
A bench of Justices BV Nagarathna and R Mahadevan stayed the operation of the Madras High Court judgment that had allowed a habeas corpus petition filed by Kapoor, holding that his continued detention in India in connection with other offences allegedly committed before his extradition from Germany could not be sustained without the consent of the German authorities.
Kapoor, an American (US) citizen, was extradited from Germany to India on July 13, 2012, in connection with an idol theft case registered at Udayarpalayam Police Station in Tamil Nadu under Sections 457 and 380 of the Indian Penal Code. The case related to the theft of temple idols from Tamil Nadu and other regions in the South of India.
He was subsequently tried in the case and convicted by the Additional Chief Judicial Magistrate, Kumbakonam, on November 1, 2022. He was sentenced to 10 years’ imprisonment. The High Court noted that, after giving him set-off for the period already undergone, the sentence in the extradition case stood completed, with the custody certificate recording February 22, 2023 as the date of release for that conviction.
The central issue before the High Court was whether Kapoor could continue to be detained in connection with other offences allegedly committed before his extradition, after he had completed the sentence in the case for which Germany had surrendered him.
The High Court examined the issue under Article 19 of the India-Germany Extradition Treaty, which incorporates the rule of speciality, and Section 21 of the Extradition Act, 1962. Article 19 does not merely restrict prosecution for pre-extradition offences; it also prohibits detention or any other restriction on personal liberty for such offences, subject to specified exceptions including consent of the extraditing state.
The court noted that Germany had expressly declined a proposed extension of prosecution. The Ministry of External Affairs had informed the High Court that Germany did not consent to the proposed extension and that, under the principle of speciality, further prosecution in India was excluded. Germany subsequently reiterated its position in another diplomatic note.
The High Court also noted that the Tamil Nadu Chief Secretary had assured the German authorities in October 2019 that the rule of speciality would not be violated and that Kapoor would not be tried for any offence other than Crime No. 65 of 2008, for which clearance had been obtained from Germany.
The State and intervenors had argued that the other cases against Kapoor were interconnected and formed part of a larger continuing conspiracy involving the theft and trafficking of antique temple idols. They also stressed the serious nature of the allegations against him. The High Court, however, held that the gravity of the allegations could not substitute for the consent required under the treaty and the Extradition Act.
The High Court further held that a pending request seeking Germany’s consent could not itself be treated as consent. It said Kapoor’s continued detention had to be supported by a presently existing legal authority and could not rest on the possibility that consent might be obtained in the future.
The Supreme Court accordingly held that Kapoor’s continued detention was “without authority of law” and allowed his habeas corpus petition. It directed the Centre to take custody of Kapoor from Central Prison, Trichy, within two weeks and “proceed in accordance with law for returning him to Germany.”
The High Court judgment had also recorded that the United States had made an extradition request dated September 27, 2021 in respect of Kapoor. According to the Ministry of External Affairs’ status report, if Kapoor were released from domestic detention, he would have to be produced before the Special Court at Patiala House, New Delhi, for proceedings under Section 5 of the Extradition Act in relation to the US extradition request.
The Supreme Court’s stay has, for now, put the operation of the Madras High Court judgment on hold.
The appeal was filed before the apex court by the petitioner and temple devotee S Vijay Narayanan, acting as next friend/custodian of the desecrated deities. Senior Advocate PV Yogeshwaran, Advocates Ram Shankar and Naveen Atman represented the petitioners. (ANI)
SC stays Madras HC order directing return of international art trafficker Subash Chandra Kapoor to Germany
