Delhi High Court Allows Extradition of German National For Trial In Child Sexual Abuse Case

Justice Anish Dayal held that the order passed by the Court of Additional Chief Metropolitan Magistrate (ACMM), recommending extradition of the accused, Bernd Alexander Bruno Wehnelt, to Germany for trial for the offences under the German Criminal Code, does not suffer from any infirmity.

As per a complaint filed before the District Court Muhldorf a. Inn, the accused is alleged to have committed various offences under the German Criminal Code, including under Section 176 (sexual abuse of children), Section 184 (b) (dissemination/procurement and possession of child pornography), and Section 234 (kidnapping).

As per the case of the prosecution, in September 2003, Wehnelt had approached two children of four years and six years old while they were playing and had taken several objectionable pictures of them. Subsequently, after an investigation, his locker in the faculty of Biology and Preclinical Medicine at the University of Regensburg was found to have numerous CDs and DVDs containing child pornography.

In the inquiry proceedings initiated against Wehnelt for extradition, the ACMM concluded that since the offences in question constitute a criminal act under laws of both the requesting as well as the requested state, and are punishable by a maximum term of imprisonment for a period of at least one year, in both the countries, the principle of dual criminality was duly satisfied and the offences in question were therefore extraditable offences.

Thus, the ACMM passed an order recommending the extradition of the accused. Subsequently, the Union of India also recommended extradition of the accused for standing trial in Germany for the offences alleged against him.

The accused challenged the order of the ACMM and the Union of India before the Delhi High Court.

The High Court took note of the fact that the accused had been arrested in 2020 in Karnataka for violation of the Foreigners Act 1946, and was facing trial before the Additional Sessions Judge (ASJ) in Bengaluru. The ACMM, before whom the inquiry proceedings were initiated, had last year issued production warrants pursuant to which the accused was produced, and he has since been in custody in Tihar Jail in Delhi.

Wehnelt argued before the High Court that his personal identification documents, including a copy of his passports, photographs and fingerprints, do not contain the seal of the competent authorities of Germany. Therefore, he contended that the extradition process was not in compliance with the treaty between the countries.

Dismissing the contentions of Wehnelt, the Court said:

“The contention by the learned counsel for the petitioner is therefore untenable considering that the identity papers of the petitioner form part of an authenticated chain of documents including the Note Verbale, the arrest warrant, the certification of the arrest warrant and duly endorsed by the Union of India. The objection of the petitioner is therefore extremely hyper-technical in nature, and cannot be sustained in light of the provisions of the Extradition Act, provisions of the Extradition Treaty between the two countries and does not erode the substance of the extradition request, in any manner whatsoever.”

The Court ruled that to examine whether the offences were “extradition offences”, the reference would have to be made to the Extradition Treaty between Germany and India.

"As per Article 2 of the said Treaty, the extraditable offences are those which are punishable under the laws of both the countries by a maximum term of punishment of at least one year. It is quite evident that, as per the nature of the offences which the petitioner has been accused of, the same are punishable in India inter alia under the Protection of Children from Sexual Offences Act 2012, (POCSO), where punishments for such offences range from a minimum of 3 years up to life imprisonment. Undoubtedly, these offences in question, as regards the petitioner, would be extradition offences."

Concluding that the offences alleged against Wehnelt are extraditable offences, the court allowed the accused to be extradited by the Government of India to the Federal Republic of Germany in accordance with applicable procedure.

Case Title: Bernd Alexander Bruno Wehnelt vs. Union of India

Citation: 2023 LiveLaw (Del) 190

Counsel for the Petitioner: Mr. Satyam Thareja (DHCLSC)

Counsel for the Respondent: Mr. Ajay Digpaul, (CGSC) with Mr. Anil Soni, Ms. Kamal Digpaul & Ms. Swati, Advocates