ABU SALEM ABDUL
QAYOOM ANSARI v. STATE OF MAHARASHTRA & ANR [2010] INSC 728 (10 September
2010)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 990 OF 2006 Abu
Salem Abdul Qayoom Ansari .... Appellant(s) Versus State of Maharashtra &
Anr. .... Respondent(s) WITH CRIMINAL APPEAL NOS. 1142-1143 OF 2007 AND WRIT
PETITION (CRIMINAL) NO. 171 OF 2006
P. Sathasivam, J.
1) The appeals and
the writ petition raised a common question, as such were heard together and are
being disposed of by this common judgment. The grievance of the appellant-Abu
Salem Abdul Qayoom Ansari in the appeals and writ petition is that the criminal
courts in the country have no jurisdiction to try in respect of offences which
do not form part of the extradition judgment, by virtue of which he has been
brought to this country and he can be tried only for the offences mentioned in
the extradition decree.
2) Criminal Appeal
No. 990 of 2006, filed under Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA
Act"), arose out of framing of charge on 18.03.2006 against the appellant
by the Designated Court at Arthur Road Jail, Mumbai in RC No.1(S/93)/CBI/STF
known as Bombay Bomb Blast Case No. 1 of 1993 and the order dated 13.06.2006
passed by the said Court separating the trial of the accused/appellant from the
main trial in the Bombay Bomb Blast Case.
3) The appellant
filed Criminal Appeal Nos. 1142-1143 of 2007 against the order dated 16.04.2007
by the same Designated Court, framing charges against him under Sections 120B,
302, 307, 387, 382 IPC and under Sections 3(2)(i), 3(2)(ii), 3(3), 3(5) and 5
of the TADA Act.
4) In addition to
filing of the abovesaid appeals, the appellant has also filed Writ Petition
(Crl.) No. 171 of 2006 under Article 32 of the Constitution of India seeking a)
to issue a writ of Certiorari to quash the charges framed against him in Bombay
Bomb Blast Case No. 1 of 1993 arising out of RC No. 1 (S/93)/CBI/STF by framing
of charge on 18.03.2006; b) to issue a writ of Certiorari to quash the order
passed by the Designated Court under TADA Act dated 13.06.2006 passed in Misc.
Application No. 144 of 2006; c) issue a writ of Certiorari to declare that the
charges framed on 18.03.2006, in Bombay Bomb Blast Case No. 1 of 1993, as
violative of the Rule of Speciality and Section 21 of the Extradition Act,
1962; (d) issue a writ of Mandamus to release and discharge the writ petitioner
by quashing all the proceedings against him; (e) issue a writ of Prohibition
prohibiting the respondents from prosecuting the writ petitioner any further
for the offences for which the petitioner has not been extradited by the Court
of Appeals at Lisbon as affirmed by the order of the Supreme Court of Portugal;
f) issue a writ of Prohibition prohibiting the Designated Court at Arthur Road
Jail at Mumbai from separating the trial of the writ petitioner from the other
accused whose trial is stated to have been completed.
5) Prosecution Case:
a) On 12.03.1993,
there were a series of bomb explosions in the Mumbai City which resulted in
death of 257 persons, injuries of various types to 713 persons and destruction
of properties worth more than Rs. 27 crores (approximately). These bomb
explosions were caused at vital Government installations, public places and
crowded places in the city and its suburbs with an intention to overawe the
Government established by law, and to strike terror among the public at large
and also to adversely affect the peace and harmony among different sections of
the people. Twenty-seven criminal cases were registered at respective Police
Stations with regard to the said bomb explosions and subsequent recovery of
arms, 4
ammunitions and explosives, which were illegally smuggled into the country with
the intention to commit the said terrorist acts. On completion of investigation,
it was disclosed that various acts committed by the accused persons were out of
a single conspiracy and, therefore, a single charge-sheet was filed in the
specially created Designated Court, Mumbai, against 189 accused persons
including 44 absconders on 04.11.1993 for offences punishable under Section
120B read with Sections 324, 326, 427, 435, 121, 121-A, 122, 307, 302 and 201
of the Indian Penal Code read with Sections 3, 4 and 5 of the TADA Act read
with Sections 3, 7(a), 25(1A), 25(1AA), 26, 29, 35 of the Arms Act, 1959 read
with Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908. The
appellant-Abu Salem was one of the absconders mentioned in the charge-sheet.
b) The investigation
disclosed that the appellant-Abu Salem and other accused persons hatched a
criminal conspiracy during the period December, 1992 to April, 1993 with an
object to create disturbances of serious nature by committing terrorist acts by
bomb explosions, murders and causing destruction of properties throughout
India. In pursuance of the said criminal conspiracy, a large quantity of arms
like AK-56 rifles, pistols, hand- grenades, ammunitions and RDX explosives were
illegally smuggled into the country through sea at Dighi Jetty and Shekhadi
ports in Maharashtra State during January and February, 1993. These illegal
arms and ammunitions were kept and stored at different places with different persons
with the object to commit terrorist acts.
c) The appellant-Abu
Salem was entrusted with the task of transportation of illegally smuggled arms
and ammunitions, their storage and distribution to other co- accused persons.
Investigation has disclosed that a portion of arms and explosives, which were
smuggled and brought illegally into India on 09.01.1993, were taken to the
State of Gujarat and stored at Village Sansrod, Dist.
Bharuch. In the
second week of January, 1993, on the instructions of absconding accused, Anees
Ibrahim Kaskar, appellant-Abu Salem brought AK-56 rifles, their ammunitions and
hand-grenades from Village Sansrod to Mumbai and distributed the same among
co-accused persons.
d) On 12.03.1993, RDX
filled vehicles and suit-cases were planted at strategic places like Bombay
Stock Exchange, Air India Building, Near Shiv Sena Bhawan, Plaza cinema and
thickly populated commercial places like Zaveri Bazar, Sheikh Memon Street etc.
The suit-case bombs were also planted in the rooms of 3 five-star Hotels,
namely, Hotel Sea Rock, Bandra, Hotel Juhu Centaur and Airport Centaur, Mumbai.
Explosions were caused from the said vehicle-bombs and suit-case bombs in the
afternoon of 12.03.1993 and within a period of about two hours, large-scale
deaths and destruction was caused, as described earlier. Hand-grenades were
also thrown at two places i.e. Sahar International Airport, Mumbai and Fishermen
Colony, Mahim, Mumbai. The explosions caused by hand-grenades also produced
similar results.
e) During the course
of investigation, a large quantity of arms, ammunitions and explosives were
recovered from the possession of accused persons. In India, AK-56 rifles,
ammunitions and hand-grenades cannot be possessed by private individuals, as
these types of sophisticated arms and ammunitions can only be used by the armed
forces and other law enforcing agencies.
f) Since the
appellant-Abu Salem absconded and could not be arrested during the course of
investigation, he was shown as an absconder in the charge-sheet. The Designated
Court, Mumbai, issued Proclamation No. 15777 of 1993 against him on 15.09.1993.
As the accused did not appear before the Court despite issuance of
Proclamation, he was declared as a Proclaimed Offender on 15.10.1993. The
Designated Court, Mumbai issued Non-bailable Warrant against appellant-Abu
Salem and Interpol Secretariat General, Lyons, France also issued a Red Corner
Notice No. A-103/3-1995 for his arrest.
g) During the course
of trial, the Designated Court, Mumbai, framed common charge of criminal
conspiracy punishable under Section 3(3) of the TADA Act and Section 120 B of
the Indian Penal Code read with Sections 3(2)(i), (ii), 3(3), 3(4), 5 and 6 of
the TADA Act read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212
of the Indian Penal Code and offences under Sections 3 and 7 read with Sections
25 (1A), (1B), (a) of the Arms Act, 1959, Sections 9-B(1), (a), (b), (c) of the
Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive
Substances Act, 1908 and Section 4 of the Prevention of Damage to Public
Property Act, 1984 against all the accused who were present before the Court,
as also the accused who are absconding including the appellant. The Designated
Court, Mumbai, on 19.06.1995, ordered that the evidence of the witnesses may be
recorded against absconding accused persons in their absence in accordance with
the provisions of Section 299 Cr.P.C.
h) On 18.09.2002, the
appellant-Abu Salem was detained by the Portugese Police at Lisbon on the basis
of the above mentioned Red Corner Notice. In December 2002, on receipt of the
intimation about his detention in Lisbon, the Government of India submitted a
request for his extradition in 9 criminal cases (3 cases of CBI, 2 cases of
Mumbai Police and 4 cases of Delhi Police). The request was made relying on the
International Convention for the Suppression of Terrorist Bombings and on an
assurance of reciprocity as applicable in international law. Along with the
requisition of extradition, the relevant facts of the cases were enclosed in
the form of duly sworn affidavits of the concerned Police officers, together
with other supporting documents. The letter of requisition was issued under the
signature of the then Minister of State for External Affairs and the
affidavit-in-support was affirmed by Sr. Superintendent of Police, CBI/STF.
i) On 13.12.2002, the
Government of India issued Gazette Notification No. G.S.R.822(E) in exercise of
the powers conferred by Sub-section (1) of Section 3 of the Extradition Act, 1962, directing that the
provisions of the Extradition Act, other than Chapter-III, shall apply to the
Portuguese Republic with effect from 13.12.2002.
j) The Government of
India gave an undertaking under the signatures of the then Dy. Prime Minister
that on the basis of provisions of the Constitution of India, Indian Extradition
Act, and the Code of Criminal Procedure, 1973 assured the Government of
Portugal that it will exercise its powers conferred by the Indian Laws to
ensure that if extradited by the Portugal for trial in India, appellant-Abu
Salem would not be visited by death penalty or imprisonment for a term beyond
25 years. The Ambassador of India in Lisbon, by letter dated 25.05.2003, gave
another assurance that in the event of extradition of the appellant- Abu Salem,
he will :
1 (i) not be
prosecuted for offences other than those for which his extradition has been
sought.
(ii) not be
re-extradited to any third country.
k) The request for
the extradition of the appellant-Abu Salem was considered and examined by the
authorities in Government of Portugal and by the Court of Appeals, Lisbon,
Supreme Court of Justice, Portugal and Constitutional Court of Portugal. The
Authorities/Courts in Portugal granted extradition of the appellant-Abu Salem
in 8 criminal cases (3 cases of CBI, 2 cases of Mumbai Police and 3 cases of
Delhi Police). Extradition in one case of Delhi Police was not granted. The
Supreme Court of Justice, Portugal granted extradition of appellant-Abu Salem
for the following offences, included in the request of Public Prosecution, as
is clear from Para
13.1 of the order
dated 27.01.2005 of Supreme Court of Justice, Portugal, which was also
confirmed by the Constitutional Court of Portugal. The maximum sentence prescribed
under the Indian Laws for these offences is mentioned here under: S.No. Offence
Maximum Punishment i) The offence of criminal conspiracy Death Penalty in the
punishable u/s. 120B IPC present case ii) Murder punishable U/s. 302 IPC Death
Penalty iii) Attempt to murder punishable Imprisonment for Life u/s. 307 IPC
iv) Mischief punishable u/s. 435 IPC Imprisonment for 7 years v) Mischief by
fire or explosive Imprisonment for Life punishable u/s. 436 IPC vi) Offence
punishable u/s. 3(2) of Death Penalty in this case TADA (P) Act.
vii) 3(3) of TADA (P)
Act Life Imprisonment viii) Section 3 of Explosive Substances Life Imprisonment
Act, 1908 ix) Offence punishable u/s. 4 of Imprisonment for 10 years Prevention
of Damage to Public Property Act l) Upon extradition, custody of the
appellant-Abu Salem was handed over by the Govt. of Portugal to Indian
Authorities on 10.11.2005 and he was brought to Mumbai on 11.11.2005. He was
produced in the Designated Court, Mumbai, in connection with the serial Bombay
Bomb Blast Cases (CBI Case RC No. 1 (S/93)/CBI/STF, Court case No. BBC 1 of 1993)
m) On 01.03.2006, after completion of further investigation against the
appellant-Abu Salem, a Supplementary Report u/s. 173(8) of Cr.P.C. was filed in
the Designated Court, Mumbai. Prior to that, on 09.12.2005, the Designated
Court altered the common charge of criminal conspiracy by adding the name of
the appellant-Abu Salem in the list of the accused persons before the Court by
deleting his name from the list of absconding accused in the said charge. On
18.03.2006, after hearing the counsel for the appellant and the Prosecution,
the Court framed substantive charges against the appellant-Abu Salem.
n) The Designated
Court has framed charges for the following offences against the appellant-Abu
Salem vide its orders:
i) Offence of
criminal conspiracy punishable u/s. 120-B IPC r/w. offences punishable under
IPC, TADA (P) Act, Explosive Substances Act, Explosives Act, Arms Act and
Prevention of Damage to Public Property Act.
ii) Offence
punishable under Section 3 (3) of TADA (P) Act, 1987.
iii) Offence
punishable under Section 5 of TADA (P) Act, 1987.
iv) Offence
punishable under Section 6 of TADA (P) Act, 1987.
v) Section 4(b) of
the Explosive Substances Act, 1908.
vi) Section 5 of the Explosive
Substances Act, 1908.
vii) Section 25
(1-A)(1-B)(a) r/w Sections 3 and 7 of the Arms Act, 1959.
viii) Offence
punishable u/s. 9-B of the Explosives Act, 1884.
o) These charges have
been framed by the Designated Court keeping in view the provisions contained
under Section 21 of the Extradition Act, 1962.
(p) The extradition
order of the Supreme Court of Justice, Portugal, did not include the following
offences for which the charges have been framed by the Designated Court, Mumbai.
The maximum punishment provided for these offences is given here:- S.No.
Offence Punishment i) Section 5 of TADA (P) Act, 1987. Imprisonment for Life
ii) Section 6 of TADA (P) Act, 1987. Imprisonment for Life iii) Section 4-b of
Explosive Imprisonment for 20 years.
Substances Act, 1908
iv) Section 5 of the Explosive Imprisonment for 14 years.
Substances Act, 1908
v) Section 25 (1-A) (1-B) (a) of Arms Imprisonment for 10 years.
Act, 1959.
vi) Section 9-B of
Explosives Act, Imprisonment for 3 years.
1884 (q) The request
for extradition of the appellant-Abu Salem has been made relying on the
assurance of reciprocity as applicable in international law and the International
Convention for Suppression of Terrorist Bombings. The order dated 27.01.2005 of
the Supreme Court of Justice, Portugal mentions that Article9.3 of the said
Convention applies to the case of appellant-Abu Salem. As per Article 9.3, the
State Parties, which do not make extradition conditional on the existence of a
treaty, shall recognize the offences themselves subject to the conditions
provided by the law of the requested State.
Article 2 of the
Convention defines the extraditable offences. The above mentioned offences for
which the extradition has not been specifically granted, also covered under the
definition of extraditable offence, as mentioned in Article 2 of the said
Convention.
(r) The punishment
provided for the offences, not included in the order of Supreme Court of
Justice of Portugal, is lesser than the punishment provided for the offences
included in the said order of Extradition. The said offences are disclosed by
the facts, which were considered/proved for the purposes of extradition of
appellant-Abu Salem from Portugal. It was further stated that the said offences
are extradition offences, as defined under Section 2(c)(ii) of the Extradition
Act, 1962 and, thus, the trial of appellant-Abu Salem for these offences is
permissible under Section 21(b) of the Extradition Act, 1962.
(s) After framing of
the charges on 18th March, 2006, the Designated Court invited the views of the
prosecution and the defence about the further course of action for the trial of
appellant-Abu Salem. The prosecution, Vide M.A. No. 144 of 2006, submitted its
views to the Designated Court, suggesting therein that the trial of appellant-Abu
Salem may be separated in the same manner as was done by the Designated Court
in respect of absconding accused Mustafa Ahmed Dossa, upon his arrest in March
2003, to avoid hardships to 123 accused persons whose trial had already been
completed. It was further submitted by the prosecution that 33 accused persons
were in custody for the last about 12-13 years. The course of action as
suggested by the prosecution would not cause any prejudice to any accused,
including appellant-Abu Salem and would also avoid further delay in
pronouncement of the judgment in the case. The Designated Court, Mumbai, after
hearing both the sides, by its order dated 13.06.2006 ordered that the trial of
appellant-Abu Salem, co-accused Riyaz Ahmed Siddique and other absconding
accused, mentioned in the common charge of criminal conspiracy, and jointly in
progress along with the other co-accused mentioned in the said charge, stood
separated from the ongoing trial in progress. The Court further ordered that
the said separated trial from that day (13.06.2006) to be continued under No.
BBC-1-B of 1993, in continuity with the earlier joint case.
6) These orders are
under challenge in these appeals and writ petition.
7) Stand of the
appellant-Abu Salem The appellant has been extradited from Portugal for being
tried in eight cases including the Bombay Bomb Blast Case No. 1 of 1993 subject
to certain conditions and the sovereign assurance given by the Government of
India to the Government of Portugal. It was his stand that the charges under
Sections 3(4), 5 and 6 of the TADA Act, Sections 4(b) and 5 of the Explosive
Substances Act, Section 25 of the Arms Act and Section 9B of the Explosives Act
(in R.C. No. 1(S/93)/CBI/STF (Bomb Blast Case) and charges under Section 120B,
387 and 386 of the Indian Penal Code and under Section 5 of the TADA (in C.R.
No. 144 of 1995) are in flagrant disobedience of the mandate of Section 21 of
the Indian Extradition Act as well as the solemn sovereign assurance of the
Government of India, the ministerial order of extradition of the appellant
passed by the Government of Portugal, the judgment of the Court of Appeals as
well as the Supreme Court of Portugal.
8) It is also his
grievance that time and again the authorities abused the process of criminal
law by failing to file the orders passed by Portugal Courts and by willfully
and deliberately violating the solemn sovereign assurance. It is his
categorical claim that the respondents are lowering the esteem of the nation by
their deceitful behaviour in the field of international law, breaching the
principle of speciality established under the rule of international law and
recognized by Section 21 of the Extradition Act after securing the extradition
and gaining control of the appellant. The construction made by the Designated
Court is not acceptable and the appellant is being wrongly tried by the
Designated Court in violation of the extradition decree and prayed for quashing
of the entire proceedings.
9) Heard Mr. S.
Pasbola, learned counsel for the appellant and Mr. Gopal Subramaniam, learned
Solicitor General and Mr. H.P. Rawal, learned Additional Solicitor General for
the respondents.
10) The contention of
the appellant that he is being tried for the offences for which he has not been
specifically extradited, has been rejected by way of the impugned order on the
ground that the extradition has been granted for the offences of higher degree
and the additional offences for which he is being tried are subsumed/included
in the said higher degree of offences and the trial would be permissible by
virtue of clause (b) of Section 21 of the Extradition Act, 1962. As pointed out
earlier, apart from the appeals against the order of the Designated Court, the
appellant has also preferred a writ petition seeking to invoke the
extraordinary writ jurisdiction of this Court on the ground that the trial for
the offences for which he has specifically not been extradited is violative of
the fundamental rights enshrined under Article 21 of the Constitution of India
which guarantees a fair trial with due process of law.
11) The term
`extradition' denotes the process whereby under a concluded treaty one State
surrenders to any other State at its request, a person accused or convicted of
a criminal offence committed against the laws of the requesting State, such
requesting State being competent to try the alleged offender. Though
extradition is granted in implementation of the international commitment of the
State, the procedure to be followed by the courts in deciding, whether
extradition should be granted and on what terms, is determined by the municipal
law of the land. Extradition is founded on the broad principle that it is in
the interest of civilised communities that criminals should not go unpunished
and on that account it is recognised as a part of the comity of nations that
one State should ordinarily afford to another State assistance towards bringing
offenders to justice.
12) With the
tremendous increase in the facility of international transport and
communication, extradition has assumed prominence since the advent of the
present century. Because of the negative attitude of the customary
international law on the subject, extradition is by and large dealt with by
bilateral treaties. These treaties, inasmuch as they affected, the rights of
private citizens, required in their turn alterations in the laws and statutes
of the States which had concluded them. The established principle requires that
without formal authority either by treaty or by statute, fugitive criminals
would not be surrendered nor would their surrender be requested.
13) There is no
general rule that all treaty rights and obligations lapse upon external changes
of sovereignty over territory nor is there any generally accepted principle favouring
the continuity of treaty relations. Treaties may be affected when one State
succeeds wholly or in part to the legal personality and territory of another.
The conditions under which the treaties of the latter survive depend on many
factors including the precise form and origin of the succession and the type of
treaty concerned.
The emancipated
territories on becoming independent States may prefer to give general notice
that they were beginning with a "clean slate" so far as their future
treaty relations were concerned, or may give so-called "pick and
choose" notifications as to treaties as were formally applicable to it
before achieving independence. The "clean slate" doctrine was
ultimately adopted in the relevant provisions of the Vienna Convention of 1978.
The sound general working rule which emerges is to look at the text of the
relevant treaty and other arrangements accompanying change of sovereignty and
then ascertain as to what was the intention of the State concerned as to the
continuance or passing of any rights or obligations under the treaty concerned.
The question whether a State is in a position to perform its treaty obligations
is essentially a political question which has to be determined keeping in view
the circumstances prevailing and accompanying the change of sovereignty.
14) We have already
referred to the factual details.
Hence there is no
need to repeat the same once again.
However, it is useful
to advert the following information, namely, on 04.11.1993, a single
charge-sheet was filed in the Designated Court against 189 accused persons, of
which, 44 accused persons were shown absconding. The role attributed to Abu
Salem in RCI(S) relating to the Bombay Bomb Blast case of 1993 was that he was
entrusted with the task of transportation of illegally smuggled arms and
ammunitions and their storage and distribution to other co-accused. A portion
of arms smuggled on 09.01.1993 were taken to village Sansrod, Distt. Bharuch,
Gujarat on the instructions of absconding accused Anees Ibrahim Kaskar.
Subsequently, the appellant took AK-56, ammunitions and hand grenades to Mumbai
and distributed amongst various co-accused. A Red Corner Notice bearing No. A-103/3-1995
was issued through Interpol for the arrest of the appellant. On 19.11.1993,
further investigation was transferred to C.B.I.
The CBI registered
case Crime No. RC1(S)/93/STF/BB.
Consequently, further
investigation was conducted by CBI and supplementary reports were filed under
Section 173(8) of Cr.P.C. before the Designated Court on various dates. On
10.04.1995, the Designated Court, Mumbai, after hearing the arguments of both
sides, framed charges against the accused persons. The Court framed a common
charge of criminal conspiracy against all the accused persons present before
it, absconding accused and other unknown accused persons. The appellant has
been named in the charge as absconding accused. The charge included the offence
of conspiracy also for the offences with which he has been substantively
charged.
By order dated
19.06.1995, before commencing examination of witnesses, the Designated Court
directed that evidence to be adduced against the absconding accused persons for
the purpose of Section 299 of the Cr.P.C. On 18.09.2002, the appellant was
detained by Portuguese Police, initially in a passport case and subsequently,
in view of the Red Corner Notice.
15) In December,
2002, Government of India submitted request for extradition of the appellant in
9 criminal cases (three cases of CBI, two cases of Mumbai Police and four cases
of Delhi Police).
16) Before going into
the requisition made by the Government of India and the orders passed by the
Government of Portugal as well as the Supreme Court of Justice, it is useful to
refer certain provisions of the Extradition Act, 1962. In order to codify the
laws relating to the extradition to fugitive criminals, the Parliament enacted
the Extradition Act, 1962 which came into force on 05.01.1963. It extends to
the whole of India. The following definitions are relevant:
"2.
Definitions.--In this Act, unless the context otherwise requires,-- (a) .....
(b) .....
(c) extradition
offence" means-- (i) in relation to a foreign State, being a treaty State,
an offence provided for in the extradition treaty with that State;
(ii) in relation to a
foreign State other than a treaty State an offence punishable with imprisonment
for a term which shall not be less than one year under the laws of India or of
a foreign State and includes a composite offence;
(d) "extradition
treaty" means a treaty, agreement or arrangement made by India with a
foreign State relating to the extradition of fugitive criminals, and includes
any treaty, agreement or arrangement relating to the extradition of fugitive
criminals made before the 15th day of August, 1947, which extends to, and is
binding on, India;
(e) "foreign
State" means any State outside India, and includes every constituent part,
colony or dependency of such State;
(f) "fugitive
criminal" means a person who is accused or convicted of an extradition
offence within the jurisdiction of a foreign State and includes a person who,
while in India, conspires, attempts to commit or incites or participates as an
accomplice in the commission of an extradition offence in a foreign State.
(g) .....
(h) .....
(i) ......
(j) "treaty
State" means a foreign State with which an extradition treaty is in
operation."
"3. Application
of Act.--(1) The Central Government may, by notified order, direct that the
provisions of this Act other than Chapter III shall apply to such foreign State
or part thereof as may be specified in the order.
(2) The Central
Government may, by the same notified order as is referred to in sub-section (1)
or any subsequent notified order, restrict such application to fugitive
criminals found, or suspected to be, in such part of India as may be specified
in the order.
(3) Where the
notified order relates to a treaty State,- (a) it shall set out in full the
extradition treaty with that State;
(b) it shall not
remain in force for any period longer than that treaty; and (c) the Central
Government may, by the same or any subsequent notified order, render the
application of this Act subject to such modifications, exceptions, conditions
and qualifications as may be deemed expedient for implementing the treaty with
that State.
(4) Where there is no
extradition treaty made by India with any foreign State, the Central Government
may, by notified order, treat any Convention to which India and a foreign State
are parties, as an extradition treaty made by India with that foreign State providing
for extradition in respect of the offences specified in that Convention."
"Section 21:
Accused or convicted person surrendered or returned by foreign State not to be
tried for certain offences - Whenever any person accused or convicted of an
offence, which, if committed in India would be an extradition offence, is
surrendered or returned by a foreign State, such person shall not, until he has
been restored or has had an opportunity of returning to that State, be tried in
India for an offence other than-- (a) the extradition offence in relation to
which he has surrendered or returned; or (b) any lesser offence disclosed by
the facts proved for the purpose of securing his surrender or return other than
an offence in relation to which an order for his surrender or return could not
be lawfully made; or (c) the offence in respect of which the foreign State has
given its consent."
17) United Nations
General Assembly adopted the Convention for the Suppression of Terrorist
Bombings on 15th December, 1997. It is not in dispute that both India and
Portugal are signatories to the said Convention. In the absence of any special
treaty between India and Portugal, being the signatories to the said
Convention, the requisition for extradition of the appellant-Abu Salem was
signed by the then Minister of State of External Affairs. The said
communication reads as under:- "Omar Abdullah MINISTER OF STATE FOR
EXTERNAL AFFAIRS REQUISITION FOR EXTRADITION OF MR. ABU SALEM ABDUL QAYOOM
ANSARI FROM THE PORTUGUESE REPUBLIC I, Omar Abdullah, Minister of State for
External Affairs, Government of the Republic of India, relying on the
International Convention for the Suppression of Terrorist Bombings and on an
assurance of reciprocity as applicable in international law, hereby request
that Mr. Abu Salem Abdul Qayoom Ansari, Indian national, who is accused of
having committed certain criminal offences in India, and has been charged under
the following Sections of the Indian Penal Code:
201 (causing
disappearance of evidence of offence); 302 (Punishment for Murder); 307
(Attempt to murder); 324 (Voluntarily causing hurt by dangerous weapons); 326
(voluntarily causing grievous hurt by dangerous weapons);
427 (Mischief causing
damage); 435 (Mischief by fire); 468 (Forgery for purpose of cheating);
471(Using as genuine
a forged document) of the Indian Penal Code read with Sections 3, 4 and 5 of
Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Sections
3, 7(a), 25(1)(A), 25(1)(AA), 26, 29, 35 of Arms Act 1959 read with Sections 3,
4, 5 & 6 of Explosive Substances Act of 1998 read with Section 12(1)(b) of
the Passport Act, 1967 and 120-B (Punishment for Criminal Conspiracy) of Indian
Penal Code.
In connection with
Criminal Case Nos. CR.1(S)/93/CBI/STF/Mumbai, RC 15(S)/97/CBI/STF/NE . Delhi
and RC 34(A)/2002-CBI/Hyderabad of the Central Bureau of Investigation;
And Sections 387
(Putting person in fear of death);
506 (Punishment for
criminal intimidation); 507 (Criminal Intimidation by an Anonymous
Communication); 120-B (Punishment for Criminal Conspiracy); 201 (Causing
Disappearance of Evidence of Offence) of Indian Penal Code read with 3(ii),
3(iv) of Maharashtra Control of Organized Crime Act, 1999 in connection with
Criminal Case No. 88/2002 dated 04/04/2002 of Police Station Greater Kailash,
New Delhi And Sections 387 (Putting person in fear of death);
506 (Punishment for
Criminal Intimidation);
120-B (Punishment for
Criminal Conspiracy) of Indian Penal Code in connection with Case FIR No. 39/02
dated 26/07/02 of Police Station Special Cell, Lodhi Colony, New Delhi And
Section 120-B (Punishment for Criminal Conspiracy) of Indian Penal Code; read
with 302 (Punishment for Murder) of Indian Penal Code in 3 connection with
Case FIR No. 849/98 of Police Station, Hauz Khas, New Delhi.
And Sections 120-B
(Punishment for Criminal Conspiracy) read with Section 384 (Punishment for
Extortion) of Indian Penal Code, in connection with Case FIR No. 850/98 of
Police Station, Hauz Khas, New Delhi And Section 302 (Punishment for Murder) of
Indian Penal code; read with Arms Act and Maharashtra Control of Organized
Crime Act, in connection with Criminal Case No. CR No. 52/2001 of Crime Branch
-CID Mumbai.
And Section 307
(Attempt to Murder); and 34 (Acts done by several persons in furtherance of
common intention) of Indian Penal Code in connection with CR No. 144/99 of
Police Station D.N. Nagar, Mumbai.
Be surrendered to the
Republic of India to be dealt with according to law.
Particulars of the
person whose extradition is being requested, facts of the cases, relevant laws
under which he has been charged and the evidence to justify the issue of
warrant for his arrest have been given in the form of duly sworn Affidavit
together with other supporting documents in the enclosed volumes.
I may further state
that there are a number of other criminal cases in which Mr. Abu Salem Abdul
Qayoom Ansari is involved. A formal extradition request in respect of some of
these criminal cases will be submitted shortly.
I, hereby, certify
that all documents enclosed herewith have been authenticated, I have signed my
name and caused my seal to be affixed hereunto at New Delhi today, the 13th
December, 2002.
3 Sd/- illegible (Omar
Abdullah) Minister of State for External Affairs Government of the Republic of
India"
The above
communication was supported on facts with a detailed affidavit dated 11.12.2002
duly sworn to by Mr. Om Prakash Chhatwal, Senior Superintendent of Police, Central
Bureau of Investigation, Special Task Force, New Delhi 18) On 13.12.2002, a
Gazette Notification was issued making the provisions of the Extradition Act,
except Chapter III, applicable to Portuguese Republic under sub-Section (1) of
Section 3 of the said Act. (published in the Gazette of India, Extraordinary,
Pt. II, Section 3(i) Dated 13.12.2002).
19) In addition to
the requisition by the then Minister of State for External Affairs and the
Gazette Notification, on 17.12.2002, an assurance was extended by the then
Deputy Prime Minister of India which reads as under:
"L.K. ADVANI
Deputy Prime Minister No. I/11011/90/2000-IS-IV December 17, 2002 Excellency,
At the outset, I would like to express my deep appreciation for your letter
October 4, 2002 in response to the letter of our External Affairs Minister of
September 23, 2002 regarding the return of Abu Salem Abdul Qayoom Ansari to
India. In your letter, you had advised that a formal extradition request be
presented which would fulfill the requirements of Portuguese law. Accordingly,
the concerned authorities in India have been in the process of preparing the
required formal extradition request for presentation.
In this context, we have
been informed that under Portuguese law, an offender cannot be extradited to
the requesting country if the offence or offences committed attract the
visitation of either the death penalty or imprisonment for an indefinite period
beyond 25 years. As the offences Abu Salem Abdul Qayoom Ansari is charged with
or accused of would attract the death penalty and life imprisonment under
Indian law, a solemn sovereign assurance is required to enable his extradition
from Portugal to India.
The Government of India
also desires that Abu Salem Abdul Qayoom Ansari's accomplice, Monica Bedi, be
extradited to India. One of the offences she is accused of would carry the
penalty of life imprisonment, Monica Bedi was arrested in Portugal on September
18, 2002 along with Abu Salem Abdul Qayoom Ansari.
The issue of the
legal basis for the above assurance to be given by the Government of India has
been given due attention. I may mention that Section 34(c) of the Indian Extradition
Act, 1962 states that "Notwithstanding anything contained in any other law
for the time being in force, where a fugitive criminal, who has committed an
extradition offence punishable with death in India is surrendered or returned
by a foreign State on the request of the Government and the laws of that
foreign State do not provide for the death penalty for such an offence, such
fugitive criminal shall be liable for punishment of imprisonment for life only
for that offence."
Further Article 72
(1) of the Constitution of India provides that "The President shall have
the power to grant pardons, reprieves, respites or remissions of punishment or
to suspend, remit or commute the sentence of any person convicted of any
offence." In all cases where the punishment or sentence is for any offence
against any law relating to a matter to which the executive power of the Union
extends including where the sentence is a sentence of death.
Further, it is a
settled law that the power under Article 72 of the Constitution of India is to
be exercised on the advice of the Government and not by the President acting on
his own and that the advice of the Government is binding on the Head of the
State. Also, the President's power under the said Article 72 is a
constitutional power and is beyond judicial review.
It is also pertinent
to state that in addition to the above provisions, Section 432 and 433 of the
Code of Criminal Procedure of India 1973 confer power on the Government, to
commute a sentence of life imprisonment to a term not exceeding 14 years.
The Government of
India, therefore, on the basis of the provisions of the Constitution of India,
the Indian Extradition Act, 1962 and the Code of Criminal Procedure of India,
1973 solemnly assures the Government of Portugal that it will exercise its
powers conferred by the Indian laws to ensure that if extradited by Portugal
for trial in India, Abu Salem Abdul Qayoom Ansari and Monica Bedi would not be
visited by death penalty or imprisonment for a term beyond 25 years.
Please accept, your
Excellency, the assurance of my highest consideration.
Sd/- illegible (L.K.
ADVANI) H.E. MR. ANTONIO MARTINS DA CRUZ MINISTER FOR FOREIGN AFFAIRS
PORTUGAL"
20) In pursuance of
all the above assurances and communications, on 28.03.2003, the Ministerial
order came to be passed admitting extradition amongst others for Section 120B
read with Section 302 IPC, Section 3(2) of TADA.
However, the
ministerial order declines extradition for Section 25(1A) and (1B) of the Arms
Act and Sections 4 & 5 of Explosive Substances Act. On 25.05.2003, the
Ambassador of India in Lisbon gave further assurance that they will not be
tried for offences other than those for which extradition was sought for and
they will not be extradited to a third country.
21) In pursuance of
the Ministerial order dated 28.03.2003, Her Excellency, the Minister of
Justice, under the terms provided in No. 2 of Article 48 of Law 144/99
submitted through the Public Prosecution a request for extradition before the
Court of Appeals of Lisbon. The appellant-Abu Salem also preferred an appeal
against the order of Extradition before the Court of Appeals, Lisbon. By order
dated 14.07.2004, the Court of Appeals Lisbon agreed to authorize extradition
for the offences contained in the request of prosecution with an exception of
offences punishable with death or life imprisonment. Aggrieved by the same, the
Public Prosecution challenged the order of Court of Appeals before the Supreme
Court of Justice by lodging an appeal on 23.07.2004 and sought extradition also
for offences punishable with death and life imprisonment. On 29.07.2004, the
appellant also filed an appeal against the said order of the Court of Appeals.
On 27.01.2005, the Supreme Court of Justice permitted the extradition for the
offences in view of the assurances given by the Government of India that the
person extradited would not be visited by death penalty or imprisonment for a
term beyond 25 years. In addition to the same, on 03.03.2005, the Supreme Court
of Justice issued a supplementary order maintaining the decision made on
27.01.2005. On 13.06.2005, the petition for appeal of the appellant-Abu Salem
was rejected by the Constitutional Court by upholding the constitutional
validity of the provisions of Article 9.3 of the said New York Convention which
obliges the signatory State for extradition for offences covered under it
notwithstanding lack of mutual extradition treaty between the parties. On
10.11.2005, the custody of the appellant was handed over to the Indian
Authorities and on 11.11.2005, the appellant was brought to India and was
produced before the Designated Court, Mumbai in RC-1(S) of 1993 and by order
dated 18.03.2006, the substantive charges in addition to charge of conspiracy
were framed against the appellant and his plea of not guilty and claim of trial
was recorded. Thereafter, the prosecution filed Miscellaneous Application
bearing No. 144/2006 seeking separation of the trial of the accused from the
main trail in the Bombay Bomb Blast case. In the meanwhile, the appellant also
filed Misc. Appeal No. 161 of 2006 seeking production of relevant record of
extradition and sought joint trial along with other 123 accused whose trial was
nearing completion. By order dated 13.06.2006, the Designated Court allowed the
application of the Prosecution for separation of trial and held that the trial
would continue as BBC-1-B/1993 in continuity with the earlier joint case. The
Designated Court has pointed out that the assurances were given with respect to
sentences which could be imposed and not with respect to the offences with
which he could be tried.
It was further held
that the `lesser offence' in Section 21 of the Extradition Act covers wider
matters than the phraseology "minor offence" in Section 222 of
Criminal Procedure Code. It was also held by the Designated Court that although
the overt acts with which the appellant has been charged may not be cognate
with the ingredients of offence with which he has been charged, however, they
are lesser offences for the purposes of Section 21 of the Extradition Act.
22) It is relevant to
point out that apart from challenging the above said order by way of an appeal
under Section 19 of the TADA Act and a writ petition under Article 32 of the
Constitution, the appellant has also moved an application before the Court of
Appeal in Lisbon that he is being tried in India for violation of Principles of
Specialty as contained in Article 16 of Law 144/99. It is brought to our notice
that on 18.05.2007, the Court of Appeal expressed its inability to enquire into
the question of surrender by the Indian State on the ground that the Indian
State has violated certain conditions on which extradition was granted. When
the said order was carried in appeal before the Supreme Court of Justice, which
by order dated 13.12.2007, remitted the matter to the Court of Appeals to
enquire whether there has been violation of any condition as alleged by the
appellant. The Court of Appeals, by order dated 13.10.2008, has adjourned the
matter till this Court passes a final order in the present case.
23) The main grievance
of the appellant is that inasmuch as he being specifically extradited for trial
of certain offences only, the present action of the Designated Court and the
prosecution adding other offences without recourse to specific order from the
Government of Portugal cannot be sustained.
Before us, learned
counsel for the appellant administered the list of offences for which
Government of Portugal agreed to and adding certain other charges which are in
flagrant disobedience of the mandate of Section 21 of the Extradition Act as
well as the solemn sovereign assurance of the Government of India. According to
the appellant, the charges under Sections 3(4) , 5 and 6 of the TADA Act,
Sections 4(b) and 5 of the Explosive Substances Act, Section 25 of the Arms
Act, Section 9B of the Explosives Act and charges under Section 120-B, 387 and
386 of IPC and under Section 5 of TADA are all impermissible, contrary to the
solemn sovereign assurance of the Government of India, the ministerial order of
extradition of the appellant passed by the Government of Portugal, the judgment
of the Court of Appeals as well as the Supreme Court of Portugal.
24) The parties are
in agreement over the application of Section 21 of the Extradition Act, 1962
(which we have already extracted in the earlier part of our judgment) to the
case of extradition of the appellant from Portugal to India on 11.11.2005. We
have already pointed out that in the absence of formal treaty between India and
Portugal, the request for extradition had been made under the International
Convention on Suppression of Terrorist Bombings. By virtue of Notification
dated 13.12.2002, the Government of India made the provisions of the Extradition
Act applicable for the purpose of extradition of the appellant from Portugal to
India. It is also pointed out that in the ministerial order dated 28.03.2003,
the Government of Portugal rejected the request for extradition of the
appellant for the offences under Sections 201, 212, 324, 326, 427 of the Indian
Penal Code, Sections 3(4), 5 and 6 of the TADA Act, Sections 4 & 5 of the Explosive
Substances Act, Section 9B of the Explosives Act and Section 25(1A) and (1B) of
the Arms Act. Similarly, the Government of Portugal rejected the request for
extradition of the appellant for the offences under Sections 120-B, 387 and 386
IPC and under Section 5 of the TADA Act. The said Notification dated 11.04.2003
was published in the official gazette of the Government of Portugal specifying
the offences for which consent for extradition was granted. Learned counsel for
the appellant has pointed out that the Court of Appeals and the Supreme Court
of Portugal confirmed the ministerial order and the Notifications. The Supreme
Court of Portugal specifically referred to the "Principle of
Speciality" and the assurances given by the Government of India regarding
the fulfillment of the speciality rule. The pith and substance of the argument
of the counsel for the appellant is that once the appellant has been brought to
India on the basis of the extradition treaty, he can only be tried for offences
mentioned in the extradition decree for which his extradition had been sought
and not for other offences. He also pointed out that the Designated Court has
no jurisdiction to try the appellant for such offences. He relied on the
judgment of this Court in Daya Singh Lahoria vs. Union of India & Ors.,
(2001) 4 SCC 516. Learned counsel pressed into service the following principles
in respect of "Doctrine of Speciality" as discussed in pages 521-522
of the judgment:
"The doctrine of
speciality is yet another established rule of international law relating to
extradition. Thus, when a person is extradited for a particular crime, he can
be tried for only that crime. If the requesting State deems it desirable to try
the extradited fugitive for some other crime committed before his extradition,
the fugitive has to be brought to the status quo ante, in the sense that he has
to be returned first to the State which granted the extradition and a fresh
extradition has to be requested for the latter crime. The Indian Extradition
Act makes a specific provision to that effect. In view of Section 21 of the
Indian Extradition Act, 1962 an extradited fugitive cannot be tried in India
for any offence other than the one for which he has been extradited unless he
has been restored to or has had an opportunity to return to the State which surrendered
him. The doctrine of speciality is in fact a corollary to the principles of
double criminality, and the aforesaid doctrine is premised on the assumption
that whenever a State uses its formal process to surrender a person to another
State for a specific charge, the requesting State shall carry out its intended
purpose of prosecuting or punishing the offender for the offence charged in its
request for extradition and none other. (See M. Cherif Bassiouni --
International Extradition and World Public Order.) In the book International
Law by D.P. O'Connell, the principle of speciality has been described thus:
"According to
this principle the State to which a person has been extradited may not, without
the consent of the requisitioned State, try a person extradited save for the
offence for which he was extradited. Many extradition treaties embody this
rule, and the question arises whether it is one of international law or
not."
The United States
Supreme Court, while not placing the rule on the plane of international law,
did in fact arrive at the same conclusion in the case of United States v.
Rauscher. The Supreme
Court denied the jurisdiction of the trial court even though the Treaty did not
stipulate that 4 there should be no trial and held: (US pp. 429-30:L Ed p.
432) "[T]he
weight of authority and of sound principle are in favour of the proposition
that a person who has been brought within the jurisdiction of the court by
virtue of proceedings under an extradition treaty can only be tried for one of
the offences described in that treaty, and for the offence with which he is
charged in the proceedings for his extradition, until a reasonable time and
opportunity have been given him, after his release or trial upon such charge,
to return to the country from whose asylum he had been forcibly taken under
those proceedings."
In view of the
aforesaid position in law, both on international law as well as the relevant
statute in this country, we dispose of these cases with the conclusion that a
fugitive brought into this country under an extradition decree can be tried
only for the offences mentioned in the extradition decree and for no other
offence and the criminal courts of this country will have no jurisdiction to
try such fugitive for any other offence. This writ petition and special leave
petitions are disposed of accordingly."
If we apply the above
principles in terms of the order of the Government of Portugal, the Designated
Court/Prosecution cannot go beyond the various offences mentioned in extradition
decree. Mr. Gopal Subramaniam, learned Solicitor General and Mr. H.P. Rawal,
learned Additional Solicitor General explained the "Rule of
Speciality". Learned Solicitor General has highlighted his arguments by
way of an illustration, namely, a defendant extradited to UK is entitled to the
speciality protection contained in Section 146 of Extradition Act, 2003 (C.41).
In other words, following his extradition, he may only be tried in respect of
the offences specified in that section. The offences specified in Section
146(3) are as follows:
(a) the offence in
respect of which the defendant is extradited;
(b) an offence
disclosed by the information provided to the category 1 territory in respect of
that offence;
(c) an extradition
offence in respect of which consent to the defendant being dealt with is given
on behalf of the territory in response to a request made by the appropriate
judge;
(d) an offence which
is not punishable with imprisonment or another form of detention;
(e) an offence in
respect of which the person will not be detained in connection with his trial,
sentence or appeal;
(f) an offence in
respect of which the person waives the right that he would have (but for
Section 146(6)(f) not to be dealt with for the offence.
25) The "Rule of
Speciality" has been succinctly explained in the treatise "The Law of
Extradition and Mutual Assistance". (Second Edition by Clive Nicholls QC,
Clare Montgomery QC, Julian B. Knowles - Oxford Publication) by way of the
following example:
"The operation
of the speciality principle in this context can be illustrated by an example,
based on the facts of Kerr and Smith (1976) 62 Cr App R 210 (a case under the
EA 1870).
Suppose that a Part 3
warrant is submitted to Denmark for the return of D for an offence of robbery
under Section 8(1) of the Theft Act 1968. The Part 3 warrant only specifies the
offence of robbery, however, the factual account of the offence provided by the
UK to Denmark refers to D as having carried a sawn-off shotgun in the course of
the robbery.
This is an offence
contrary to S. 18 of the Firearms Act, 1968. Extradition is granted.
D could be tried for
robbery and for the S.18 offence because it was disclosed in the information
provided to Denmark and S.146(6)(b) would therefore apply. If, however,
evidence came to light that prior to the robbery D had assaulted his wife, then
he could not be tried for this offence until after he had been given an
opportunity to leave the UK after serving his sentence for the robbery, unless
Denmark consented or he waived his rights. This is because the offence of
assault did not form part of the information supplied in support of the
application for his extradition."
Similar principle is
found in Halsbury's laws of England, 4th Ed., Vol. 18, Para 246:
"Extradition and
Fugitive Offenders 246. Trial on other charges. Where a person accused or
convicted of an extradition crime is surrendered by a foreign State, then,
until he has been restored or had an opportunity of returning to the foreign
State, he is not triable and may not be tried for any offence committed prior
to the surrender in any part of Her Majesty's dominions other than such of the
extradition crimes as may be proved by the facts on which the surrender is
grounded. It follows that a person extradited on a particular charge is triable
for any other crime provable by the facts upon which is surrender is grounded.
Where the defendant
alleges that he is being tried for an 4 offence which is not an extradition
crime the onus of proving that he was surrendered under extradition law is on
him."
Similarly, the
American Jurisprudence also recognizes that slight variation in the description
of the offence in the extradition proceedings and in the subsequent indictment
or information does not violate the Rule of Speciality. Paragraph 155 of
American Jurisprudence, 2nd Ed., Vol. 31A, is pertinent in this regard:
"155. Effect of
Variation in charges; related and included charges A slight variation in the
description of the offence in the extradition proceedings and in the subsequent
indictment or information does not violate the rule of speciality, it is
generally sufficient if the facts shown in the extradition proceedings and
those relied upon in the accusation and at the trial are substantially the
same, although the crime itself may have a different name in the surrendering
country. And if extradition was based on several charges, it is immaterial
whether the trial is on all or any of them. Although a returned fugitive may
ordinarily be tried for any offence included in the crime with which he has
been charged. But a person extradited as an accomplice may be tried as a
principal where the distinction between the two has been abolished in the
demanding state. Applying similar reasoning, the fact that an extradited person
could not be convicted of conspiracy, because the foreign country took the position
that the conspiracy charge was not included in the list of offences giving rise
to a treaty obligation to extradite, did not prevent the United States from
using evidence of a conspiracy to convict the defendant on the substantive
counts."
The Rule of Speciality
as contained in Article 16 of Law 144/99 of Portugal recognizes that the
speciality principle requires that the extradited persons should be tried for
the act or acts on the ground of which request for cooperation was made. It is
pointed out that the additional charges do not traverse beyond the facts on
which request for extradition of the appellant was made by the Indian
Government. The abovesaid Portuguese Law on Speciality is reproduced hereunder:
"Article
16--Rule of Speciality
1. No person who, as
a consequence of international cooperation, appears in Portugal for the purpose
of participating in criminal proceedings, either as a suspect an accused or a
sentenced person, shall be proceeded against, sentenced or detained nor shall
he be in any way restricted in his personal freedom, for any act committed
prior to his presence on the national territory, other than the act or acts on
the grounds of which the request for cooperation was made by a Portuguese
authority.
2. No person who, in
the same terms as above, appears before a foreign authority shall be proceeded
against, sentenced, detained, nor shall he be in any way restricted in his
personal freedom, for any act committed, or any sentence passed, prior to his
leaving the Portuguese territory, other than those mentioned in the request for
cooperation.
3. The surrender of a
person to the requesting State as mentioned in the preceding praragraph shall
not be authorized unless that State provides the necessary guarantees to the
effect that the rule of speciality shall be complied with.
4. The immunity that
results from the provisions of this Article shall cease to have effect:
(a) where it became
possible for the person concerned to leave the Portuguese territory or the
territory of another State, as applicable, 4 and that person does not avail
himself of that possibility within a period of 45 days, or that person
voluntarily returns to one of the said territories;
(b) where the State
that authorized the transfer, once the suspect, the accused or the sentenced
person have been heard, consents to a derogation to the rule of speciality.
5. The provisions of
paragraphs 1 and 2 above do not preclude the possibility of extending the
cooperation previously sought, by way of a new request, to facts other than
those on the grounds of which the original request was made; the new request
shall be prepared or examined, as applicable, in accordance with the provisions
of this law.
6. Any request made
under the provisions of the preceding paragraph shall be accompanied by a
document established by the competent authority, containing the statements made
by the person who benefits from the rule of speciality.
7. Where the request
is submitted to a foreign State, the document mentioned in the preceding paragraph
shall be established before the "Tribunal da Relacao" "1"
(Court of appeal)
that has jurisdiction over the ara where the person who benefits from the rule
of speciality resides or is staying."
In this regard, we
may point out that Indian Extradition Act of 1962 also recognizes the Doctrine
of Speciality in Section 21 of the Act which we have already extracted. The
Doctrine of Speciality is a universally recognized principle of international
law and partakes of doctrines of both double criminality and reciprocity.
26) Unlike the law in
United Kingdom, United States and Portugal, the law in India only permits the
extradited person to be tried for lesser offence disclosed by the facts proved
for the purpose of securing his surrender. Apart from the said offence being
made out from the facts proved by the Indian authorities for the surrender of
the fugitive, the additional indictment, if any, has to be lesser than the
offences for which the extradition has been granted. This Court while dealing with
a similar issue relating to Section 21(b) of the Extradition Act in Suman Sood
@ Kamaljeet Kaur vs. State of Rajasthan (2007) 5 SCC 634 observed as under:
"28. On behalf
of Suman Sood, one more argument was advanced. It was contended that
extradition order in her case did not refer to Section 365 IPC but both the
courts convicted her for the said offence under Sections 365/120-B IPC which
was illegal, unlawful and without authority of law.
Her conviction and
imposition of sentence for an offence punishable under Section 365 read with
Section 120-B IPC, therefore, is liable to be set aside.
29. We find no
substance in the said contention as well. It is no doubt true that Section 365
IPC had not been mentioned in the order of extradition. But as already seen
earlier, Section 364-A IPC had been included in the decree.
Now, it is well
settled that if the accused is charged for a higher offence and on the evidence
led by the prosecution, the court finds that the accused has not committed that
offence but is equally satisfied that he has committed a lesser offence, then
he can be convicted for such lesser offence. Thus, if A is charged with an
offence of committing murder of B, and the court finds that A has not committed
murder as defined in Section 300 IPC but is convinced that A has committed an
offence of culpable homicide not amounting to murder (as defined in Section 299
IPC), there is no bar on the court in convicting A for the said offence and no
grievance can be made by A against such conviction.
30. The same
principle applies to extradition cases.
Section 21 of the Extradition
Act, 1962 as originally enacted reads thus:
"21. Accused or
convicted person surrendered or returned by foreign State or Commonwealth
country not to be tried for previous offence.--Whenever any person accused or
convicted of an offence, which, if committed in India, would be an extradition
offence, is surrendered or returned by a foreign State or Commonwealth country,
that person shall not, until he has been restored or has had an opportunity of
returning to that State or country, be tried in India for an offence committed
prior to the surrender or return, other than the extradition offence proved by
the facts on which the surrender or return is based."
31. The section,
however, was amended in 1993 by the Extradition (Amendment) Act, 1993 (Act 66
of 1993). The amended section now reads as under:
"21. Accused or
convicted person surrendered or returned by foreign State not to be tried for
certain offences.-- Whenever any person accused or convicted of an offence,
which, if committed in India would be an extradition offence, is surrendered or
returned by a foreign State, such person shall not, until he has been restored
or has had an opportunity of returning to that State, be tried in India for an
offence other than-- (a) the extradition offence in relation to which he was
surrendered or returned; or (b) any lesser offence disclosed by the facts
proved for the purposes of securing his surrender or return other than an
offence in relation to which an order for his surrender or return could not be
lawfully made; or (c) the offence in respect of which the foreign State has
given its consent."
32. It is, therefore,
clear that the general principle of administration of criminal justice
applicable and all throughout applied to domestic or municipal law has also
been extended to international law or law of nations and to cases covered by
extradition treaties.
33. In Daya Singh
this Court dealing with amended Section 21 of the Extradition Act, stated: (SCC
p. 519, para 3) 5 "The provision of the aforesaid section places
restrictions on the trial of the person extradited and it operates as a bar to
the trial of the fugitive criminal for any other offence until the condition of
restoration or opportunity to return is satisfied. Under the amended Act of
1993, therefore, a fugitive could be tried for any lesser offence, disclosed by
the facts proved or even for the offence in respect of which the foreign State
has given its consent. It thus enables to try the fugitive for a lesser
offence, without restoring him to the State or for any other offence, if the
State concerned gives its consent."
34. Now, it cannot be
disputed that an offence under Section 365 IPC is a lesser offence than the
offence punishable under Section 364-A IPC. Since extradition of Suman Sood was
allowed for a crime punishable with higher offence (Section 364-A IPC), her
prosecution and trial for a lesser offence (Section 365 IPC) cannot be held to
be without authority of law. The contention, therefore, has no force and is
hereby rejected." (Emphasis supplied) The ratio in the Suman Sood (supra)
is directly applicable to the case on hand.
27) The main
grievance of the appellant, as stated above, is that he had been extradited
under International Convention for the Suppression of Terrorist Bombings and
therefore, he can be tried only for the offences which are related to the said
Convention. The said assumption cannot be sustained. If the said claim is
accepted, it would be contrary to the judgment of the Constitutional Court of Portugal
and it also shows the ignorance of the appellant towards the notification dated
13.12.2002, issued by the Government of India making the 5 Extradition Act,
1962 applicable to Government of Portugal except Chapter III. As rightly
pointed out by the respondents that the Court has not granted extradition
merely on the basis of Extradition Treaty but also on the basis of reciprocity.
Pursuant to Section 3
of the Act, the order of the Government of India GSR-822(E) dated 13.12.2002
had been approved and published ensuring due regard for the principle of
reciprocity.
In view of the same,
the claim of the appellant is without any substance.
28) As discussed
earlier, it is true that there is no Extradition Treaty between India and
Portugal. However, the laws of both the countries permit entertaining request
for extradition from Non Treaty States also. The extradition request was made
to the Government of Portugal by the Government of India under the provisions
of the Extradition Act applicable to Non Treaty States i.e. Section 19 of the
Act. Although the Convention was also relied upon for the extradition, as
rightly pointed out by the respondent, it was not the sole basis as is apparent
from the Letter of Request. The primary consideration for the request of extradition
was the assurance of reciprocity. The notification dated 13.12.2002 by the
Government of India directing that the provisions contained in the Extradition
Act shall be applicable to the Republic of Portugal was issued keeping in view
the said principle of reciprocity. For the purpose of extradition proceedings,
appellant-Abu Salem was treated as a fugitive criminal as defined under Section
2(f) of the Extradition Act, 1962. We have already adverted to the Gazette
Notification dated 13.12.2002 making it clear that the provisions of Extradition
Act shall apply to Portuguese Republic in accordance with the principle of
reciprocity. The provisions of the Act are applicable in respect of the
extradition of appellant-Abu Salem. The Court of Appeals of Lisbon has
recognized this principle of reciprocity and the applicability of the
provisions of the Extradition Act, 1962 to the Republic of Portugal. The
Supreme Court of Justice and Constitutional Court of Portugal have also
approved it. None of these Courts have mentioned in their orders that the
accused could not be tried in India for the offences for which his trial could
take place as per the domestic laws of India.
29) We have already
adverted to Section 21 of the Extradition Act. A bare reading of the above
section would indicate that the appellant-Abu Salem can be tried for the
offences for which he has been extradited. The Supreme Court of Justice,
Portugal has granted extradition of appellant-Abu Salem for all the offences
mentioned in para-1 of the order dated 27.01.2005. In addition, Abu Salem can
also be tried for lesser offence/offences in view of Section 21 of the
Extradition Act disclosed by the facts proved for the purposes of securing his
surrender. "Lesser offence" means an offence which is made out from
the proved facts and provides lesser punishment, as compared to the offences
for which the fugitive has been extradited. The offence has to be an
extradition offence, as defined under Section 2 (c) (ii) of the Act i.e. an
offence punishable with imprisonment for a term which shall not be less than
one year under the laws of India or of a foreign State. The lesser offence
cannot be equated with the term "minor offence" as mentioned in
Section 222 of the Code of Criminal Procedure. The Legislature has deliberately
used the word "lesser" in Section 21(b) of the Extradition Act instead
of the word "minor". Thus, the punishment provided for the offence is
relevant and not the ingredients for the purposes of interpretation of the term
"lesser offence".
30) The contention of
the appellant that he can be tried only for the offences covered under Article
2(1) of the said Convention is misconceived in view of the fact that he was
extradited not only under the said Convention but also in the light of the
principle of reciprocity made applicable through the application of the Extradition
Act to the Republic of Portugal. A complete reading of Article 2 of the said
Convention makes it clear that it deals not only with those accused who commit
the substantive offences as defined in Article 2(1) but also includes all the
conspirators and those who have constructive liability for commission of the
substantive offences as per Sub-section 3 of Article 2 of the Convention, which
fact has also been mentioned by the Supreme Court of Justice, Portugal in para
9.4 of its order.
Further sub-section
(d) of Article 1(3) of the Convention makes it abundantly clear that the
explosive or lethal device means a weapon or device i.e. designed, or has the
capability to cause death, serious bodily injury or substantial material damage
through its release etc. AK-56 rifles are the weapons/devices, which have the
capability to cause death and serious bodily injury through the release of
cartridges and are covered under the said Article. The appellant has been
charged for possession, transportation and distribution of AK-56 rifles, their
ammunitions as well as hand-grenades, which were illegally smuggled into the
country in pursuance of the criminal conspiracy.
31) We are also
satisfied that there has been no violation of Rule of Speciality and the Solemn
Sovereign Assurance given by the Government of India in the letter dated
25.05.2003 of the Indian Ambassador to the Government of Portugal regarding the
trial of the appellant-Abu Salem. The said assurance of the Indian Ambassador
was given to the effect that the appellant will not be prosecuted for the
offences other than those for which his extradition has been sought and that he
will not be re-extradited to any other third country. As rightly pointed out by
the Solicitor General, there has been no violation of Rule of Speciality. As per
the Government of India Gazette Notification dated 13.12.2002, all the
provisions contained under the Extradition Act are made applicable in respect
of the extradition of Abu Salem except those contained in Chapter III of the
Act. The Court of Appeals in Lisbon, has recognized this principle of
reciprocity and the applicability of the provisions of Extradition Act to Portugal.
The Supreme Court of Justice and Constitutional Court of Portugal have also
approved it. In view of the fact that the provisions of the Extradition Act,
1962 have been made applicable to Portugal, provisions contained in Section 21
of the Act would come into operation while conducting the trial of
appellant-Abu Salem.
32) We are also
satisfied that the Designated Judge has correctly concluded that the
appellant-Abu Salem can be tried for `lesser offences', even if, the same are
not covered by the Extradition Decree since the same is permitted under Section
21(b) of the Extradition Act. No bar has been placed by the Portuguese Courts
for the trial of lesser offences in accordance with the provisions contained
under Section 21(b) of the Extradition Act although Portuguese Courts were
aware of the said provisions of Extradition Act.
33) We have already
highlighted how the Government of India and the Government of Portugal entered
into an agreement at the higher level mentioning the relevant offences and the
appellant was extradited to India to face the trial. We have also noted the
Notification of the Government of India about the applicability of Extradition
Act, 1962. In the light of the said Notification, the additional charges that
have been framed fit well within the proviso to Section 21(b) of the Extradition
Act. The offences with which the appellant has been additionally charged are
lesser than the offences for which the appellant has been extradited. To put it
clear, the offences with which the appellant is charged are punishable with
lesser punishment than the offence for which he has been extradited. The
extradition granted in the present case had due regard to the facts placed
which would cover the offences with which the appellant has been charged. As
rightly pointed out by learned Solicitor General, the offences are disclosed by
the same set of facts placed before the Government of Portugal. We agree with
the submission of the learned Solicitor General and the ultimate decision of
the Designated Court.
34) Coming to the
order of the Designated Court directing separation of the trial of the appellant,
it is the grievance of the appellant that because of the separation, he would
forego the opportunity to cross-examine the witnesses. This grievance has been
dealt with in a separate set of proceeding which we have adverted to in the
earlier part of our judgment.
The order dated
24.08.2009 has granted the appellant an opportunity to submit a list of
witnesses examined in the main trial for cross-examination. Hence, there is no
basis in the apprehension raised by the appellant.
35) In the light of the
above discussion, we are of the view that the appellant has been charged within
the permissible scope of Section 21(b) of the Extradition Act and the
Designated Court has not committed any illegality in passing the impugned
orders. Consequently, all the appeals as well as the writ petition are liable
to be dismissed, accordingly dismissed. Since the trial is pending from the
year 1983 and connected matters have already been disposed of, we direct the
Designated Court to proceed with the trial expeditiously.
..........................................J.
(P. SATHASIVAM)
NEW
DELHI;
SEPTEMBER
10, 2010.
REPORTABLE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDITION CRIMINAL APPEAL NO. 990
OF 2006 Abu Salem Abdul Qayoom Ansari ...Appellant(s) Versus State of
Maharashtra & another ...Respondent(s) WITH
CRIMINAL APPEAL NOS.1142-1143 OF 2007 AND WRIT PETITION (CRIMINAL) NO.171 OF
2006 6
GANGULY, J.
1.
I
have gone through the judgment prepared by Hon'ble Brother Justice P. Sathasivam
and I agree with the conclusions reached by His Lordship.
2.
Having
regard to the importance of the issues discussed in the judgment, may I express
my views on the same.
3.
Conceptually
extradition is a rather complex jurisprudential zone as it has encompassed
within itself various trajectories of apparently conflicting ideas.
4.
Generally,
a State's criminal jurisdiction extends over offences committed within its
geographical boundaries but it is the common experience of all the countries
that often a criminal committing an offence in one country flees to another
country and thus seeks to avoid conviction and the consequential punishment.
This poses a threat in all 6 civilized countries to a fair adjudication of
crime and sustaining the Constitutional norms of Rule of Law.
5.
To
remedy such anomalous and unjust situation, Extradition has been evolved by way
of International treaty obligation which ensures a mode of formal surrender of
an accused by the one country to another based on reciprocal arrangements.
6.
In
India, extradition has not been defined under the Extradition Act 1962
(hereinafter, "the Act"). However, a comprehensive definition of
extradition has been given in Gerhard Terlinden vs. John C. Ames in which Chief
Justice Fuller defined extradition as:- "the surrender by one nation to
another of an individual accused or convicted of an offence outside of its own
territory, and within the territorial jurisdiction of the other, which, being
competent to try and to punish him, demands the surrender."
[184 U.S. 270 at p.
289]
7.
In
the above formulation, the learned Chief Justice virtually echoed the
principles of extradition laid down by Professor M. Cherif Bassiouni in his
treatise "International Extradition and World Public Order, 1974, Oceana
Publications". The learned Professor explained:
6 "In
contemporary practice extradition means a formal process through which a person
is surrendered by one state to another by virtue of a treaty, reciprocity or
comity as between the respective states. The participants in such a process
are, therefore, the two states and, depending upon value-perspectives, the
individual who is the object-subject of the proceedings. To a large extent, the
processes and its participants have not changed much in the course of time but
the rationale and purposes of the practice have changed, and as a consequence
so have the formal aspects of the proceedings." (Page 2)
8.
But
extradition is different from deportation by which competent State authorities
order a person to leave a country and prevent him from returning to the same
territory. Extradition is also different from exclusion, by which an individual
is prohibited from staying in one part of a Sovereign State. As a result of
such orders, sometimes deserters or absentees from Armed Forces of a particular
country are returned to the custody of Armed Forces of the country to which
they belong.
9.
Both
deportation and exclusion basically are non-consensual exercise whereas
extradition is based on a consensual treaty obligation between the requesting
State and the requested State. Extradition, however, is only to be resorted to
in cases of serious offences and Lord Templeman was right in holding that
extradition treaties and legislation are designed 6 to combine speed and
justice [Re Evans - 1994 (3) All E.R. 449 at 450- 451].
10.
In
the context of extradition law, which is based on international treaty
obligations, we must keep in mind the emerging Human Rights movements in the
post World War II scenario and at the same time the need to curb transnational
and international crime. The conflict between these two divergent trends is
sought to be resolved by expanding the network of bilateral and multilateral
treaties to outlaw transnational crime on the basis of mutual treaty
obligation. In such a situation there is obviously a demand for inclusion of
Human Rights concerns in the extradition process and at the same time garnering
more international support and awareness for suppression of crime. A fair
balance has to be struck between Human Rights norms and the need to tackle
transnational crime. This is best summed up in the leading decision of European
Court of Human Rights rendered in Soering vs. United Kingdom reported in 1989
(11) EHRR 439 and the relevant excerpt is quoted:
"...inherent in
the whole of the Convention (European Convention on Human Rights) is a search
for a fair balance between the demands of the general interest of the community
and the requirements of the protection of the individual's fundamental rights.
As movement about the world becomes easier and crime 6 takes on a larger
international dimension, it is increasingly in the interests of all nations
that suspected offenders who flee abroad should be brought to justice.
Conversely, the establishment of safe havens for fugitives would not only
result in danger for the State obliged to harbour the protected person but also
tend to undermine the foundations of extradition. These considerations must
also be included among the factors to be taken into account in the
interpretation and application of the notions of inhuman and degrading treatment
or punishment in extradition cases."
11.
The
extradition law, therefore, has to be an amalgam of international and national
law. Normally in extradition law the requested State is to follow the rule of
Non-Inquiry which means that the requested State is not to normally make
inquiry about the nature of criminal justice system in the requesting State.
That is why in this case, on a complaint being made by Abu Salem in the Court
of the requested country, the Courts of Portugal await the decision of this Court.
The actual conduct of trial of the extradited accused is left to the criminal
jurisprudence followed in the requesting State. This rule of Non-Inquiry is a
well developed norm both in Canada and in America [See the decision of Canadian
Supreme Court in Canada vs. Schmidt, (1987) 1 SCR 500.
12.
Justice
La Forest delivering the majority judgment in Schmidt held:
"that I see
nothing unjust in surrendering to a foreign country a person accused of having
committed a crime there for trial in the ordinary way in accordance with the
system for the administration 6 of justice prevailing in that country simply
because that system is substantially different from ours with different checks
and balances. The judicial process in a foreign country must not be subjected
to finicky evaluations against the rules governing the legal process in this
country."
13.
Whether
or not the fugitive who has been extradited would have a standing to complaint
of the judicial process in the requesting State after extradition has been done,
independent of the position taken by the requested State, is a debatable issue.
It is a part of the larger debate about the position of an individual as a
subject of international law, and the obligation of States towards individuals.
This is pertinent here because one of the claims made by Abu Salem is with
respect to the erosion of his rights that exist by way of the international
commitments India has made through the doctrine of specialty embodied in
section 21 of the Extradition Act. His complaint is that by trying him for some
offences which are designated as `lesser offences' and calling them as
completely similar to the ones mentioned before the Portuguese authorities, as
well as by separating his trial from the other accused, the Government of India
has violated its commitments in the extradition request, and therefore has
violated the rights with which Abu Salem had been extradited. The answer to
this complaint obviously lies in the principle of non-inquiry which prohibits
questioning the fairness of the judicial process in the 6 requesting State.
That is why the Courts of Portugal await the decision of this Court. However,
non-inquiry is not an absolute principle.
14.
In
a given situation, the requested State may question the procedures in the
requesting State if they are prima facie contrary to fundamental principles of
justice and there is a high risk of the fugitive being prejudiced by the
process of extradition.
15.
There
are cases where the requested State has rejected the extradition request as the
requesting State may have procedures that are basically incompatible with the
practices of the requested State. The most remarkable example is in Soering
(supra) where the European Court of Human Rights struck down an extradition
request from the USA on the ground of it being violative of Article 3 of the
European Convention on Human Rights which prohibits inhuman and degrading
treatment of humans. It said that the prolonged delay in the form of death row,
which is a natural outcome of the criminal procedure existing in the USA, was
certainly violative of the human rights of the fugitive, for it was torturous
for him to wait in anticipation of a death that was almost certain for him in
the USA.
16.
Furthermore
obligations entered by many countries of the world, including India, in the
form of Covenant on Civil and Political Rights, and The Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (to which
India is a Signatory), would preclude a total and unconditional observance of
the principle of non-inquiry. Even though, non- inquiry is not an absolute
doctrine, but in facts of the present case, it operates.
17.
In
this case, the insistence of the Central Government on trying Abu Salem for
lesser offences is permissible, both under the Extradition Act as well as under
the Convention for Suppressing Terrorist Bombings.
18.
United
Nations General Assembly adopted on 15th December 1997, the International
Convention for the Suppression of Terrorist Bombings.
India has been a
party to this Convention, ever since the Union Cabinet approved it on 5th of
August, 1999 and India formally ratified it on 17th of September 1999. This
Convention creates a broad platform for international cooperation to suppress
and deal with unlawful and international use of explosives and other lethal
devices in various public 6 places with the intention to cause serious bodily
damage and extensive destruction.
19.
The
Convention thus fills up a huge void in international law by expanding the
legal framework and enabling several States to cooperate in the investigation,
prosecution and extradition of several persons who are engaged in such
international terrorism. It is of utmost importance as it strengthens
international law enforcement in controlling international terrorism.
20.
This
Convention is structured on prior counter terrorism conventions adopted by the
United Nations. It calls upon the member parties to declare certain specified
conducts to be criminal activities and to initiate prosecution for them, and to
extradite persons who have committed such conduct in one country and are
staying in another country. But unlike its predecessors, this Convention does
not define terrorism. However it points out particular conducts, regardless of
the motive, as internationally condemnable. Thus this convention is of crucial
importance in the field of international law enforcement devices. [See Samuel
M. Witten, The International Convention for the Suppression of Terrorist
Bombings,
21.
The
7 American Journal of International Law, Vol.92, No.4 (October 1998)
pp.774-781] 21.There are two ways in which to describe a lesser crime. Either
every single element of a lesser crime should be component of the greater crime
on the basis of their statutory definitions; or the allegations of the larger
crime in the indictment should include all the factual details of the lesser
crime. (See Submission of Lesser Crimes, Columbia Law Review, Volume 56(6),
1956 pp.888-902, at 888-890).
22.
Section
21(b) of the Act seems to embody the latter of these two principles. This means
that a crime which can be framed from out of the factual averments themselves
(i.e. evidence submitted) before the requested State at the time of
extradition, can be the one upon which the fugitive can be tried. A lesser
crime can be a cognate crime, in that it shares its roots with the primary
crime, even though it may be independent of it.
23.
The
learned Solicitor General rightly placed reliance on the following observation
of the Designated Court in Bombay Blast case where the learned Judge observed:
"Thus in true
sense all such offences would always be lesser offence of conspiracy of which
pivotal charge of conspiracy is framed at the trial subject to such offences
being punishable with lesser punishment than prescribed for main offence of
conspiracy."
24.
In
the instant case the extradition has been allowed by the requested State on the
specific undertaking of the Government of India that the extradited criminal
will not be subjected to death penalty or imprisonment beyond 25 years.
Therefore, the basic human rights considerations have been taken into account and
the guidelines in Soering (supra) have been adhered to. Thus, primacy has been
accorded to human right norms in the extradition process.
25.
Doctrinally
speaking, Extradition has five substantive ingredients. They are: (a)
reciprocity, (b) double criminality, (c) extraditable offences, (d) specialty
and (e) non inquiry.
26.
In
India, the Act suffered an amendment in 1993, by Act 66 of 1993 and in the
instant case, the amended provisions have come up for discussion.
In order to
appreciate the purport of the amendment, the Statement of Objects and Reasons
for enacting the Act 66 of 1993 (hereinafter the Amending Act) are set out:
"At present, the
Law of Extradition in India is contained in the Extradition Act, 1962 (Act 34
of 1962). The 1962-Act made a distinction between Commonwealth countries and
foreign States and considered only foreign States as treaty States. The
extradition with Commonwealth countries was separately governed by the second
schedule of the Act and the Central Government was given powers under Chapter
III to conclude special extradition arrangements with respect to Commonwealth
countries only. Such distinction made in the Extradition Act, 1962 between
foreign States and Commonwealth countries does not hold good in view of the
change of time and rapid developments in Extradition Law at international
level. Commonwealth countries are concluding extradition treaties among
themselves. India has in recent years concluded separate extradition treaties
with Canada and UK. Moreover, the Civil Law countries have specific
requirements for purposes of extradition with them. In addition, terrorism and
drug trafficking as two most heinous crimes affecting innocent lives, have
thrown new challenges necessitating changes in the existing Extradition Law to
effectively deal with these new crimes. Many International Conventions dealing
with these and other crimes have laid down specific obligation on State parties
to extradite or prosecute a fugitive offender. India is a State party to many
of these International Conventions.
2. The purpose of the
Bill is to amend the Extradition Act, 1962, to suitably incorporate in it the
above noted changes and to achieve, inter alia, the following objectives:
a. to enable India to
conclude extradition treaties with foreign States including the Commonwealth
countries without treating them structurally different;
7 b. to provide for
extra-territorial jurisdiction over foreigners for crimes committed by them
outside India;
c. to incorporate
composite offences in the definition of extradition offence;
d. to exclude
political offence as a defence in cases of offences of a serious nature;
e. to cover
extradition requests on the basis of international Conventions within the scope
of the Act;
f. to enable Central
Government to make and receive requests for provisional arrest of fugitives in
urgent cases pending the receipt of the formal extradition request;
g. to enable the
Central Government to give assurance pursuant to a treaty obligation to the
requested State for the non-execution of death penalty.
3. The Bill seeks to
achieve these objects."
27.
The
above stated objects behind the Amending Act are relevant in appreciating some
of the problems in the instant case. As a result of the amendment, Section 21
has been completely recast and the doctrine of Specialty has been introduced.
28.
A
perusal of the said Amendment Act would make it clear that the amendment
enables the requesting State to try the fugitive for a lesser 7 offence
without restoring him to the requested State. In fact the doctrine of specialty
is in fact a corollary to the principle of double criminality, and is founded
on policy and expediency and on the basic principle of reciprocity. It is thus
a universally recognized principle of international law and partakes of
doctrines of both double criminality and reciprocity.
29.
Section
21 of the Act bears close a resemblance to Section 19 of the English
Extradition Law. Both the provisions are successors to Section 19 of the United
Kingdom Extradition Act, 1870. Section 19 of the English Extradition Law reads:
"Where in
pursuance of any arrangement with a foreign State, any person accused or
convicted of any crime which, if committed in England, would be one of the
crimes described in the first schedule to this Act is surrendered by the
foreign State, such person shall not, until he has been restored or had an
opportunity of returning to such foreign State, be triable or tried for any
offence committed prior to the surrender in any part of her Majesty's dominions
other than such of the said crimes as may be proved by the fact on which the
surrender is grounded."
30.
This
is in keeping with the rule of double criminality, which requires a mutually
acceptable position between the requesting as well as the requested State on
all the aspects of the criminal act committed by the person who is to be
extradited. This understanding is not about an agreement as to the specifics, but
rather a consensus ad idem in the 7 contractual relationship between two
sovereign States. Explaining the rule of double criminality, Shearer says,
"...This rule requires that an act shall not be extraditable unless it
constitutes a crime according to the laws of both the requesting and requested
States... The validity of the double criminality rule has never seriously been
contested, resting as it does, in part on the basic principle of reciprocity,
which underlies the whole structure of extradition, and in part on the maxim
nulla poena sine lege" (no penalty without prior legal authority) (See
Extradition in International Law (1971) at page 137).
31.
This
position of extraditable offences, and the obligations of the requesting State
can further be understood, if one bears in mind the fact that the doctrines of
double criminality and specialty are both safeguards of the individual rights
of the extraditee who should not be tried on unexpected counts, as well as the
rights of the requested State to have its laws and processes given adequate
deference by the requesting State. It is not only a means to protect the person
from unexpected prosecution, but also a preventive guard against the abuse of
the legal process of the requested State. While the first takes care of the
individual's right, the second takes care of the rights of a sovereign State.
32.
Therefore
it can be said that as long as the facts that have been submitted before the
requested State prima facie show the guilt of the extraditee in a foreseeable
and logically consistent way, the said person can be tried on all such counts
that can be conclusively proved against him or her.
33.
Therefore,
I do not find any substance in the complaint of Abu Salem.
34.
Thus
I concur with Brother Sathasivam and reach the same conclusion as His Lordship
does.
...........................................J.
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