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CASE NO.:

Writ Petition (crl.) 256 of 2000

PETITIONER:

DAYA SINGH LAHORIA

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 17/04/2001

BENCH:

G.B. Pattanaik & U.C. Banerjee

JUDGMENT:

With

Special Leave Petition (Crl.) Nos. 2697-2698 of 2000.

JUDGMENT

PATTANAIK,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The Writ Petition and the Special Leave Petitions raised

the common question, and as such were heard together and are

disposed of by this common judgment. The grievance of the

petitioner Daya Singh Lahoria, in the Writ Petition is, that

the Criminal Courts in the country have no jurisdiction to

try in respect of offences which do not form a part of the

extradition judgment by virtue of which the petitioner has

been brought to this country and he can be tried only for

the offences mentioned in the Extradition Decree. The

petitioner has also prayed for quashing of the FIR and

charge sheet against him which are not included in the

extradition judgment of the USA Court. It appears, that the

United States District of Texas Fort Worth Division issued

the judgment of certification of extraditability and the

said decree certifies to sustain under Extradition Treaty

between the United States and the United Kingdom and

Northern Ireland with the Government of Republic of India

and specifies the offences for which the accused, mentioned

in the extradition order could be tried. It is the

contention of the petitioner that he cannot be tried for the

offences other than the offences mentioned in the

extradition order as that would be a contravention of

Section 21 of the Extradition Act as well as the

contravention of the provisions of the International Law and

the very Charter of Extradition Treaty.

The Special Leave Applications are directed against the

order of Rajasthan High Court wherein the High Court refused

to entertain a Habeas Corpus Petition and decide the

question as to the jurisdiction of the Designated Court

under the provisions of the Terrorist and Disruptive

Activities (Prevention) Act, 1987, on the ground that an

objection to the said jurisdiction could be made under

Section 18 of the Act before the very Designated Court and

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an application for issuance of a Writ of Habeas Corpus would

not lie. The question for consideration in the said Special

Leave Petitions, therefore, is whether an accused, who is

being tried in respect of offences under the Extradition

Treaty can be tried for any other offence which does not

form a part of the decree in view of the specific provision

contained in Section 21 of the Extradition Act, 1962.

To consolidate and amend the law relating to the

extradition of fugitive criminals and to provide for matters

connected therewith, or incidental thereto, the Extradition

Act of 1962 has been enacted. Prior to the enactment of the

aforesaid law of extradition applicable to India was found

scattered in the United Kingdom Extradition Act of 1870, the

Fugitive Offenders Act, 1881 and the Indian Extradition Act,

1903. The expression extradition means, surrender by one

State to another of a person desired to be dealt with for

crimes of which he has been accused and which are

justiciable in the Courts of the other States. The rights

of a citizen not to be sent out to foreign jurisdiction

without strict compliance with law relating to extradition

is a valuable right. This Extradition Act is a special law

dealing with criminals and accused of certain crimes and it

prescribes the procedure for trial as well as the embargo in

certain contingencies. The expression extradition offence

has been defined in Section 2 (c) of the Act to mean, in

relation to a foreign State, being 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. The

expression extradition Treaty has been defined in Section

2(d) to mean, a treaty (agreement or arrangement) made by

India with a foreign State relating to the extradition of

fugitive criminals and includes any treaty relating to the

extradition of fugitive criminals made before the 15th day

of August, 1947, which extends to, and is binding on, India.

The expression foreign State is defined in Section 2(e)

includes any State outside India and includes every

constituent part, colony or dependency of such State.

Section 21 of the Extradition Act is relevant for our

purpose. Section 21, as it stood in the Extradition Act of

1962 is extracted hereinbelow in extenso:

Section 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.

This section is based on Section 19 of the United

Kingdom Extradition Act, 1870. The original Act of 1962 was

amended by Act 66 of 1993. Under the 1962 Act, a

distinction had been maintained between Commonwealth

countries and foreign States and the foreign States were

considered as treaty States. The extradition with

Commonwealth countries were separately governed by the

Second Schedule of the Act and the Central Government was

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given power under Chapter III to conclude special

extradition arrangements with respect to Commonwealth

countries only. The amended Act of 1993 enables India to

conclude extradition treaty with foreign State, including

the Commonwealth countries, without treating them

structurally different. It provides for extra-territorial

jurisdiction over foreigners for crimes committed by them

outside India and it incorporates composite offences in the

definition of extradition offence. It excludes political

offences as a defence in cases of offences of a serious

nature and it covers extradition requests on the basis of

international convention. It also enables the Central

Government to make and receive requests for provisional

arrest of fugitives in urgent cases pending the receipt of

the formal extradition request. Section 21 of 1962 Act was

substituted by Act 66 of 1993, as follows:

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 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.

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. In other

words, it may be open for our authorities to obtain consent

of the foreign State to try the fugitive for any other

offence for which the extradition decree might not have

mentioned, but without obtaining such consent, it is not

possible to try for any other offence, other than the

offence for which the extradition decree has been obtained.

The Extradition Treaty contains several articles of which

Article 7 is rather significant for our purpose, which may

be quoted hereinbelow in extenso:-

Article 7. A person surrendered can in no case be kept

in custody or be brought to trial in the territories of the

High Contracting Party to whom the surrender has been made

for any other crime or offence, or on account of any other

matters, than those for which the extradition shall have

taken place, until he has been restored, or has had an

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opportunity of returning, to the territories of the High

Contracting Party by whom he has been surrendered.

This stipulation does not apply to crimes or offences

committed after the extradition.

The aforesaid Article unequivocally indicates that the

person concerned cannot be tried for any other crime or

offence than those for which the extradition shall have

taken place until he has been restored or has had the

opportunity of returning to the territories of the High

Contracting Party by whom he has been surrendered. The

provisions of Section 21 of the Extradition Act is in

consonance with the aforesaid Article of the Extradition

Treaty. In the modern world interdependence of States is

natural and essential and consequently the importance of

extradition and problems of extradition would arise. It has

become so easy of a fugitive to escape from the law of the

land and if law has to take its course and pursue the

offender, extradition proceedings are a necessary instrument

to secure the return of the offender to the altar of law.

Laxity in the extradition efforts would only increase the

offenders appetite to commit crimes with impunity by

fleeing to a foreign territory where he cannot be touched

except through extradition. There is a natural tendency on

the part of the State of asylum to facilitate the surrender

of the fugitive. But extradition of a fugitive is not that

smooth as one thinks. The liberty of an individual being an

inalienable right, many States, particularly the United

States of America and the United Kingdom, prescribe that no

fugitive will be extradited in the absence of an extradition

treaty between the two countries. But extradition is always

necessary and no fugitive should be given the impression

that he can commit an offence and flee from the country by

taking shelter in a foreign country. At the same time

surrender must be preceded by proper precautions to the

effect that nobody is denied the due process of law and

nobody is being made a victim of political vindictiveness.

Extradition is practised among nations essentially for two

reasons. Firstly, to warn criminals that they cannot escape

punishment by fleeing to a foreign territory and secondly,

it is in the interest of the territorial State that a

criminal who has fled from another territory after having

committed crime, and taken refuge within its territory,

should not be left free, because he may again commit a crime

and run away to some other State. Extradition is a great

step towards international cooperation in the suppression of

crime. It is for this reason the Congress of Comparative

Law held at Hague in 1932, resolved that States should treat

extradition as an obligation resulting from the

international solidarity in the fight against crime. In

Oppenhiem, International Law the expression is defined as

Extradition is a delivery of an accused or a convicted

individual to the State on whose territory he is alleged to

have committed or to have been convicted of a crime, by the

State on whose territory the alleged criminal happens for

the time to be. There is no rule of international law

which imposes any duty on a State to surrender a fugitive in

the absence of extradition treaty. The law of extradition,

therefore, is a dual law. It is obtensibly a municipal law;

yet it is a part of international law also, inasmuch as it

governs the relations between two sovereign States over the

question of whether or not a given person should be handed

over by one sovereign State to another sovereign State.

This question is decided by national courts but on the basis

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of international commitments as well as the rules of

international law relating to the subject. A number of

attempts have been made, to conclude a convention governing

extradition requests among nations. The Pan American

Conference of 1902 produced a treaty of extradition signed

by twelve States but it was not ratified. In 1933 the

Seventh Pan American Conference concluded an Extradition

Convention which was ratified by a number of States,

including United States of America but the League

Codification Committee had doubted the feasibility of the

general convention on extradition. In 1935, the Havard Law

School brought out a draft convention on the subject. The

International Law Association has also considered legal

problems relating to extradition in the conference held at

Warsaw. In 1928 the draft convention on extradition was

approved but nothing has materialised in concluding a

universal convention on extradition. Notwithstanding the

fact that most States earnestly believe in the efficacy and

usefulness of extradition proceedings which each State has

to resort to at one time or the other, The Asian-African

Legal Consultative Body also prepared a draft convention on

extradition at its meeting in Colombo in 1960. In September

1965, the Commonwealth Conference of Law Ministers and Chief

Justices expressed the desire for a Commonwealth Convention

on Extradition. In March 1966, the Commonwealth Law

Ministers reached an agreement in London for the speedy

extradition of fugitives between Commonwealth Countries.

But in the absence of any extradition convention, nations

have resorted to bilateral extradition treaties by which

they have agreed between themselves to surrender the accused

or convict to the requesting State in case such a person

comes under the purview of the given treaty. Bilateral

treaties at the international level are supplemented by

national laws or legislation at the municipal level.

Extradition treaties between nations, draft conventions and

national laws and practices have revealed that some

customary rules of international law have developed in the

process. 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

of 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. OCONNELL, the principle of

Speciality has been described thus;

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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 vs.

Rauscher 1019 US 407. The Supreme Court denied the

jurisdiction of the trial court even though the Treaty did

not stipulate that there should be no trial and held :-

The weight of authority and 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 offenses described in that treaty and for the

offense 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.

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