Full Judgment Text
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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.
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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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