☐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 ...
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REPORTABLE
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
J U D G M E N T
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
1
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.
2
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
3
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,
5
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
6
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
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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
8
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
9
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.
1
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
1
prescribed under the Indian Laws for these offences is
mentioned here under:
S.No.Offence Maximum Punishment
i) The offence of criminal conspiracy
punishable u/s. 120B IPC
Death Penalty in the
present case
ii) Murder punishable U/s. 302 IPC Death Penalty
iii)Attempt to murder punishable
u/s. 307 IPC
Imprisonment for Life
iv) Mischief punishable u/s. 435 IPCImprisonment for 7 years
v) Mischief by fire or explosive
punishable u/s. 436 IPC
Imprisonment for Life
vi) Offence punishable u/s. 3(2) of
TADA (P) Act.
Death Penalty in this case
vii)3(3) of TADA (P) Act Life Imprisonment
viii)Section 3 of Explosive Substances
Act, 1908
Life Imprisonment
ix) Offence punishable u/s. 4 of
Prevention of Damage to Public
Property Act
Imprisonment for 10 years
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)
1
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.
1
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,
1
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
Substances Act, 1908
Imprisonment for 20 years.
iv) Section 5 of the Explosive
Substances Act, 1908
Imprisonment for 14 years.
v) Section 25 (1-A) (1-B) (a) of Arms
Act, 1959.
Imprisonment for 10 years.
vi) Section 9-B of Explosives Act,
1884
Imprisonment for 3 years.
(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.
1
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 18
th
March, 2006, the
Designated Court invited the views of the prosecution and
1
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,
1
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
1
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
2
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
2
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
2
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
2
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
2
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
2
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
2
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
“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
2
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.”
2
17)United Nations General Assembly adopted the
Convention for the Suppression of Terrorist Bombings on 15
th
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);
3
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 13
th
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
3
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
3
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
3
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
3
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
3
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
3
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
abovesaid 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 Speciality 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.
3
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.
4
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
4
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
4
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
4
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
4
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, 4
th
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, 2
nd
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
4
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
4
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.
5
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
5
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.
5
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
5
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
5
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
5
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.
5
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
5
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
6
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
J U D G M E N T
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.
6
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 15
th
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 5
th
of August, 1999 and India formally ratified it on 17
th
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, 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.
7
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
7
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.
7
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.
New Delhi (ASOK KUMAR GANGULY)
September 10, 2010
7
Legal Notes
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