SUPREME COURT OF INDIA
(P. SATHASIVAM & ASOK KUMAR GANGULY, J.)
ABU SALEM ABDUL QAYOOM ANSARI Appellant(s)
VERSUS
STATE OF MAHARASHTRA & ANR Respondent(s)
Criminal Appeal No. 990 of 2006 With Criminal Appeal Nos. 1142-1143 of 2007 And Writ
Petition (Criminal) No. 171 of 2006-Decided on 10-09-2010.
Jurisdiction of Criminal Courts – Extradition offence
JUDGMENT
P. Sathasivam, J.-The appeals and the writ petition raised a common question, as such were
heard together and are being disposed of by this common judgment. The grievance of the
appellant-Abu Salem Abdul Qayoom Ansari in the appeals and writ petition is that the criminal
courts in the country have no jurisdiction to try in respect of offences which do not form part of
the extradition judgment, by virtue of which he has been brought to this country and he can be
tried only for the offences mentioned in the extradition decree.
2. Criminal Appeal No. 990 of 2006, filed under Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA Act"), arose out of
framing of charge on 18.03.2006 against the appellant by the Designated Court at Arthur Road
Jail, Mumbai in RC No.1(S/93)/CBI/STF known as Bombay Bomb Blast Case No. 1 of 1993 and
the order dated 13.06.2006 passed by the said Court separating the trial of the accused/appellant
from the main trial in the Bombay Bomb Blast Case.
3. The appellant filed Criminal Appeal Nos. 1142-1143 of 2007 against the order dated
16.04.2007 by the same Designated Court, framing charges against him under Sections 120B,
302, 307, 387, 382 IPC and under Sections 3(2)(i), 3(2)(ii), 3(3), 3(5) and 5 of the TADA Act.
4. In addition to filing of the abovesaid appeals, the appellant has also filed Writ Petition (Crl.)
No. 171 of 2006 under Article 32 of the Constitution of India seeking a) to issue a writ of
Certiorari to quash the charges framed against him in Bombay Bomb Blast Case No. 1 of 1993
arising out of RC No. 1 (S/93)/CBI/STF by framing of charge on 18.03.2006; b) to issue a writ of
Certiorari to quash the order passed by the Designated Court under TADA Act dated 13.06.2006
passed in Misc. Application No. 144 of 2006; c) issue a writ of Certiorari to declare that the
charges framed on 18.03.2006, in Bombay Bomb Blast Case No. 1 of 1993, as violative of the
Rule of Speciality and Section 21 of the Extradition Act, 1962; (d) issue a writ of Mandamus to
release and discharge the writ petitioner by quashing all the proceedings against him; (e) issue a
writ of Prohibition prohibiting the respondents from prosecuting the writ petitioner any further for
the offences for which the petitioner has not been extradited by the Court of Appeals at Lisbon as
affirmed by the order of the Supreme Court of Portugal; f) issue a writ of Prohibition prohibiting
the Designated Court at Arthur Road Jail at Mumbai from separating the trial of the writ
petitioner from the other accused whose trial is stated to have been completed.
5. Prosecution Case:
(a) On 12.03.1993, there were a series of bomb explosions in the Mumbai City which
resulted in death of 257 persons, injuries of various types to 713 persons and destruction
of properties worth more than Rs. 27 crores (approximately). These bomb explosions
were caused at vital Government installations, public places and crowded places in the
city and its suburbs with an intention to overawe the Government established by law, and
to strike terror among the public at large and also to adversely affect the peace and
harmony among different sections of the people. Twenty-seven criminal cases were
registered at respective Police Stations with regard to the said bomb explosions and
subsequent recovery of arms, ammunitions and explosives, which were illegally
smuggled into the country with the intention to commit the said terrorist acts. On
completion of investigation, it was disclosed that various acts committed by the accused
persons were out of a single conspiracy and, therefore, a single charge-sheet was filed in
the specially created Designated Court, Mumbai, against 189 accused persons including
44 absconders on 04.11.1993 for offences punishable under Section 120B read with
Sections 324, 326, 427, 435, 121, 121-A, 122, 307, 302 and 201 of the Indian Penal Code
read with Sections 3, 4 and 5 of the TADA Act read with Sections 3, 7(a), 25(1A),
25(1AA), 26, 29, 35 of the Arms Act, 1959 read with Sections 3, 4, 5 and 6 of the
Explosive Substances Act, 1908. The appellant-Abu Salem was one of the absconders
mentioned in the charge-sheet.
(b) The investigation disclosed that the appellant-Abu Salem and other accused persons
hatched a criminal conspiracy during the period December, 1992 to April, 1993 with an
object to create disturbances of serious nature by committing terrorist acts by bomb
explosions, murders and causing destruction of properties throughout India. In pursuance
of the said criminal conspiracy, a large quantity of arms like AK-56 rifles, pistols, handgrenades,
ammunitions and RDX explosives were illegally smuggled into the country
through sea at Dighi Jetty and Shekhadi ports in Maharashtra State during January and
February, 1993. These illegal arms and ammunitions were kept and stored at different
places with different persons with the object to commit terrorist acts.
(c) The appellant-Abu Salem was entrusted with the task of transportation of illegally
smuggled arms and ammunitions, their storage and distribution to other co- accused
persons. Investigation has disclosed that a portion of arms and explosives, which were
smuggled and brought illegally into India on 09.01.1993, were taken to the State of
Gujarat and stored at Village Sansrod, Dist. Bharuch. In the second week of January,
1993, on the instructions of absconding accused, Anees Ibrahim Kaskar, appellant-Abu
Salem brought AK-56 rifles, their ammunitions and hand-grenades from Village Sansrod
to Mumbai and distributed the same among co-accused persons.
(d) On 12.03.1993, RDX filled vehicles and suit-cases were planted at strategic places
like Bombay Stock Exchange, Air India Building, Near Shiv Sena Bhawan, Plaza cinema
and thickly populated commercial places like Zaveri Bazar, Sheikh Memon Street etc.
The suit-case bombs were also planted in the rooms of 3 five-star Hotels, namely, Hotel
Sea Rock, Bandra, Hotel Juhu Centaur and Airport Centaur, Mumbai. Explosions were
caused from the said vehicle-bombs and suit-case bombs in the afternoon of 12.03.1993
and within a period of about two hours, large-scale deaths and destruction was caused, as
described earlier. Hand-grenades were also thrown at two places i.e. Sahar International
Airport, Mumbai and Fishermen Colony, Mahim, Mumbai. The explosions caused by
hand-grenades also produced similar results.
(e) During the course of investigation, a large quantity of arms, ammunitions and
explosives were recovered from the possession of accused persons. In India, AK-56
rifles, ammunitions and hand-grenades cannot be possessed by private individuals, as
these types of sophisticated arms and ammunitions can only be used by the armed forces
and other law enforcing agencies.
(f) Since the appellant-Abu Salem absconded and could not be arrested during the course
of investigation, he was shown as an absconder in the charge-sheet. The Designated
Court, Mumbai, issued Proclamation No. 15777 of 1993 against him on 15.09.1993. As
the accused did not appear before the Court despite issuance of Proclamation, he was
declared as a Proclaimed Offender on 15.10.1993. The Designated Court, Mumbai issued
Non-bailable Warrant against appellant-Abu Salem and Interpol Secretariat General,
Lyons, France also issued a Red Corner Notice No. A-103/3-1995 for his arrest.
(g) During the course of trial, the Designated Court, Mumbai, framed common charge of
criminal conspiracy punishable under Section 3(3) of the TADA Act and Section 120 B
of the Indian Penal Code read with Sections 3(2)(i), (ii), 3(3), 3(4), 5 and 6 of the TADA
Act read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Indian
Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B), (a) of
the Arms Act, 1959, Sections 9-B(1), (a), (b), (c) of the Explosives Act, 1884, Sections 3,
4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention
of Damage to Public Property Act, 1984 against all the accused who were present before
the Court, as also the accused who are absconding including the appellant. The
Designated Court, Mumbai, on 19.06.1995, ordered that the evidence of the witnesses
may be recorded against absconding accused persons in their absence in accordance with
the provisions of Section 299 Cr.P.C.
(h) On 18.09.2002, the appellant-Abu Salem was detained by the Portugese Police at
Lisbon on the basis of the above mentioned Red Corner Notice. In December 2002, on
receipt of the intimation about his detention in Lisbon, the Government of India
submitted a request for his extradition in 9 criminal cases (3 cases of CBI, 2 cases of
Mumbai Police and 4 cases of Delhi Police). The request was made relying on the
International Convention for the Suppression of Terrorist Bombings and on an assurance
of reciprocity as applicable in international law. Along with the requisition of extradition,
the relevant facts of the cases were enclosed in the form of duly sworn affidavits of the
concerned Police officers, together with other supporting documents. The letter of
requisition was issued under the signature of the then Minister of State for External
Affairs and the affidavit-in-support was affirmed by Sr. Superintendent of Police,
CBI/STF.
(i) On 13.12.2002, the Government of India issued Gazette Notification No.
G.S.R.822(E) in exercise of the powers conferred by Sub-section (1) of Section 3 of the
Extradition Act, 1962, directing that the provisions of the Extradition Act, other than
Chapter-III, shall apply to the Portuguese Republic with effect from 13.12.2002.
(j) The Government of India gave an undertaking under the signatures of the then Dy.
Prime Minister that on the basis of provisions of the Constitution of India, Indian
Extradition Act, and the Code of Criminal Procedure, 1973 assured the Government of
Portugal that it will exercise its powers conferred by the Indian Laws to ensure that if
extradited by the Portugal for trial in India, appellant-Abu Salem would not be visited by
death penalty or imprisonment for a term beyond 25 years. The Ambassador of India in
Lisbon, by letter dated 25.05.2003, gave another assurance that in the event of extradition
of the appellant- Abu Salem, he will :
(i) not be prosecuted for offences other than those for which his extradition has
been sought.
(ii) not be re-extradited to any third country.
(k) The request for the extradition of the appellant-Abu Salem was considered and
examined by the authorities in Government of Portugal and by the Court of Appeals,
Lisbon, Supreme Court of Justice, Portugal and Constitutional Court of Portugal. The
Authorities/Courts in Portugal granted extradition of the appellant-Abu Salem in 8
criminal cases (3 cases of CBI, 2 cases of Mumbai Police and 3 cases of Delhi Police).
Extradition in one case of Delhi Police was not granted. The Supreme Court of Justice,
Portugal granted extradition of appellant-Abu Salem for the following offences, included
in the request of Public Prosecution, as is clear from Para 13.1 of the order dated
27.01.2005 of Supreme Court of Justice, Portugal, which was also confirmed by the
Constitutional Court of Portugal. The maximum sentence prescribed under the Indian
Laws for these offences is mentioned here under:
S.No. Offence Maximum Punishment
(i) The offence of criminal conspiracy
punishable u/s. 120B IPC
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 IPC Imprisonment 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
Upon extradition, custody of the appellant-Abu Salem was handed over by the Govt. of
Portugal to Indian Authorities on 10.11.2005 and he was brought to Mumbai on
11.11.2005. He was produced in the Designated Court, Mumbai, in connection with the
serial Bombay Bomb Blast Cases (CBI Case RC No. 1 (S/93)/CBI/STF, Court case No.
BBC 1 of 1993)
(m) On 01.03.2006, after completion of further investigation against the appellant-Abu
Salem, a Supplementary Report u/s. 173(8) of Cr.P.C. was filed in the Designated Court,
Mumbai. Prior to that, on 09.12.2005, the Designated Court altered the common charge
of criminal conspiracy by adding the name of the appellant-Abu Salem in the list of the
accused persons before the Court by deleting his name from the list of absconding
accused in the said charge. On 18.03.2006, after hearing the counsel for the appellant and
the Prosecution, the Court framed substantive charges against the appellant-Abu Salem.
(n) The Designated Court has framed charges for the following offences against the
appellant-Abu Salem vide its orders:
(i) Offence of criminal conspiracy punishable u/s. 120-B IPC r/w. offences
punishable under IPC, TADA (P) Act, Explosive Substances Act, Explosives
Act, Arms Act and Prevention of Damage to Public Property Act.
(ii) Offence punishable under Section 3 (3) of TADA (P) Act, 1987.
(iii) Offence punishable under Section 5 of TADA (P) Act, 1987.
(iv) Offence punishable under Section 6 of TADA (P) Act, 1987.
(v) Section 4(b) of the Explosive Substances Act, 1908.
(vi) Section 5 of the Explosive Substances Act, 1908.
(vii) Section 25 (1-A)(1-B)(a) r/w Sections 3 and 7 of the Arms Act, 1959.
(viii) Offence punishable u/s. 9-B of the Explosives Act, 1884.
(o) These charges have been framed by the Designated Court keeping in view the
provisions contained under Section 21 of the Extradition Act, 1962.
(p) The extradition order of the Supreme Court of Justice, Portugal, did not include the
following offences for which the charges have been framed by the Designated Court,
Mumbai. The maximum punishment provided for these offences is given here:-
S.No. Offence Punishment
(i) Section 5 of TADA (P) Act, 1987. Imprisonment for Life
(ii) Section 6 of TADA (P) Act, 1987. Imprisonment for Life
(iii) Section 4-b of Explosive 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. Article 2
of the Convention defines the extraditable offences. The above mentioned offences for
which the extradition has not been specifically granted, also covered under the definition
of extraditable offence, as mentioned in Article 2 of the said Convention.
(r) The punishment provided for the offences, not included in the order of Supreme Court
of Justice of Portugal, is lesser than the punishment provided for the offences included in
the said order of Extradition. The said offences are disclosed by the facts, which were
considered/proved for the purposes of extradition of appellant-Abu Salem from Portugal.
It was further stated that the said offences are extradition offences, as defined under
Section 2(c)(ii) of the Extradition Act, 1962 and, thus, the trial of appellant-Abu Salem
for these offences is permissible under Section 21(b) of the Extradition Act, 1962.
(s) After framing of the charges on 18th March, 2006, the Designated Court invited the
views of the prosecution and the defence about the further course of action for the trial of
appellant-Abu Salem. The prosecution, Vide M.A. No. 144 of 2006, submitted its views
to the Designated Court, suggesting therein that the trial of appellant-Abu Salem may be
separated in the same manner as was done by the Designated Court in respect of
absconding accused Mustafa Ahmed Dossa, upon his arrest in March 2003, to avoid
hardships to 123 accused persons whose trial had already been completed. It was further
submitted by the prosecution that 33 accused persons were in custody for the last about
12-13 years. The course of action as suggested by the prosecution would not cause any
prejudice to any accused, including appellant-Abu Salem and would also avoid further
delay in pronouncement of the judgment in the case. The Designated Court, Mumbai,
after hearing both the sides, by its order dated 13.06.2006 ordered that the trial of
appellant-Abu Salem, co-accused Riyaz Ahmed Siddique and other absconding accused,
mentioned in the common charge of criminal conspiracy, and jointly in progress along
with the other co-accused mentioned in the said charge, stood separated from the ongoing
trial in progress. The Court further ordered that the said separated trial from that day
(13.06.2006) to be continued under No. BBC-1-B of 1993, in continuity with the earlier
joint case.
6. These orders are under challenge in these appeals and writ petition.
7. Stand of the appellant-Abu Salem The appellant has been extradited from Portugal for being
tried in eight cases including the Bombay Bomb Blast Case No. 1 of 1993 subject to certain
conditions and the sovereign assurance given by the Government of India to the Government of
Portugal. It was his stand that the charges under Sections 3(4), 5 and 6 of the TADA Act,
Sections 4(b) and 5 of the Explosive Substances Act, Section 25 of the Arms Act and Section 9B
of the Explosives Act (in R.C. No. 1(S/93)/CBI/STF (Bomb Blast Case) and charges under
Section 120B, 387 and 386 of the Indian Penal Code and under Section 5 of the TADA (in C.R.
No. 144 of 1995) are in flagrant disobedience of the mandate of Section 21 of the Indian
Extradition Act as well as the solemn sovereign assurance of the Government of India, the
ministerial order of extradition of the appellant passed by the Government of Portugal, the
judgment of the Court of Appeals as well as the Supreme Court of Portugal.
8. It is also his grievance that time and again the authorities abused the process of criminal law by
failing to file the orders passed by Portugal Courts and by willfully and deliberately violating the
solemn sovereign assurance. It is his categorical claim that the respondents are lowering the
esteem of the nation by their deceitful behaviour in the field of international law, breaching the
principle of speciality established under the rule of international law and recognized by Section
21 of the Extradition Act after securing the extradition and gaining control of the appellant. The
construction made by the Designated Court is not acceptable and the appellant is being wrongly
tried by the Designated Court in violation of the extradition decree and prayed for quashing of the
entire proceedings.
9. Heard Mr. S. Pasbola, learned counsel for the appellant and Mr. Gopal Subramaniam, learned
Solicitor General and Mr. H.P. Rawal, learned Additional Solicitor General for the respondents.
10. The contention of the appellant that he is being tried for the offences for which he has not
been specifically extradited, has been rejected by way of the impugned order on the ground that
the extradition has been granted for the offences of higher degree and the additional offences for
which he is being tried are subsumed/included in the said higher degree of offences and the trial
would be permissible by virtue of clause (b) of Section 21 of the Extradition Act, 1962. As
pointed out earlier, apart from the appeals against the order of the Designated Court, the appellant
has also preferred a writ petition seeking to invoke the extraordinary writ jurisdiction of this
Court on the ground that the trial for the offences for which he has specifically not been
extradited is violative of the fundamental rights enshrined under Article 21 of the Constitution of
India which guarantees a fair trial with due process of law.
11. The term `extradition' denotes the process whereby under a concluded treaty one State
surrenders to any other State at its request, a person accused or convicted of a criminal offence
committed against the laws of the requesting State, such requesting State being competent to try
the alleged offender. Though extradition is granted in implementation of the international
commitment of the State, the procedure to be followed by the courts in deciding, whether
extradition should be granted and on what terms, is determined by the municipal law of the land.
Extradition is founded on the broad principle that it is in the interest of civilised communities that
criminals should not go unpunished and on that account it is recognised as a part of the comity of
nations that one State should ordinarily afford to another State assistance towards bringing
offenders to justice.
12. With the tremendous increase in the facility of international transport and communication,
extradition has assumed prominence since the advent of the present century. Because of the
negative attitude of the customary international law on the subject, extradition is by and large
dealt with by bilateral treaties. These treaties, inasmuch as they affected, the rights of private
citizens, required in their turn alterations in the laws and statutes of the States which had
concluded them. The established principle requires that without formal authority either by treaty
or by statute, fugitive criminals would not be surrendered nor would their surrender be requested.
13. There is no general rule that all treaty rights and obligations lapse upon external changes of
sovereignty over territory nor is there any generally accepted principle favouring the continuity of
treaty relations. Treaties may be affected when one State succeeds wholly or in part to the legal
personality and territory of another. The conditions under which the treaties of the latter survive
depend on many factors including the precise form and origin of the succession and the type of
treaty concerned. The emancipated territories on becoming independent States may prefer to give
general notice that they were beginning with a "clean slate" so far as their future treaty relations
were concerned, or may give so-called "pick and choose" notifications as to treaties as were
formally applicable to it before achieving independence. The "clean slate" doctrine was
ultimately adopted in the relevant provisions of the Vienna Convention of 1978. The sound
general working rule which emerges is to look at the text of the relevant treaty and other
arrangements accompanying change of sovereignty and then ascertain as to what was the
intention of the State concerned as to the continuance or passing of any rights or obligations
under the treaty concerned. The question whether a State is in a position to perform its treaty
obligations is essentially a political question which has to be determined keeping in view the
circumstances prevailing and accompanying the change of sovereignty.
14. We have already referred to the factual details. Hence there is no need to repeat the same once
again. However, it is useful to advert the following information, namely, on 04.11.1993, a single
charge-sheet was filed in the Designated Court against 189 accused persons, of which, 44 accused
persons were shown absconding. The role attributed to Abu Salem in RCI(S) relating to the
Bombay Bomb Blast case of 1993 was that he was entrusted with the task of transportation of
illegally smuggled arms and ammunitions and their storage and distribution to other co-accused.
A portion of arms smuggled on 09.01.1993 were taken to village Sansrod, Distt. Bharuch, Gujarat
on the instructions of absconding accused Anees Ibrahim Kaskar. Subsequently, the appellant
took AK-56, ammunitions and hand grenades to Mumbai and distributed amongst various coaccused.
A Red Corner Notice bearing No. A-103/3-1995 was issued through Interpol for the
arrest of the appellant. On 19.11.1993, further investigation was transferred to C.B.I. The CBI
registered case Crime No. RC1(S)/93/STF/BB. Consequently, further investigation was
conducted by CBI and supplementary reports were filed under Section 173(8) of Cr.P.C. before
the Designated Court on various dates. On 10.04.1995, the Designated Court, Mumbai, after
hearing the arguments of both sides, framed charges against the accused persons. The Court
framed a common charge of criminal conspiracy against all the accused persons present before it,
absconding accused and other unknown accused persons. The appellant has been named in the
charge as absconding accused. The charge included the offence of conspiracy also for the
offences with which he has been substantively charged. By order dated 19.06.1995, before
commencing examination of witnesses, the Designated Court directed that evidence to be
adduced against the absconding accused persons for the purpose of Section 299 of the Cr.P.C. On
18.09.2002, the appellant was detained by Portuguese Police, initially in a passport case and
subsequently, in view of the Red Corner Notice.
15. In December, 2002, Government of India submitted request for extradition of the appellant in
9 criminal cases (three cases of CBI, two cases of Mumbai Police and four cases of Delhi Police).
16. Before going into the requisition made by the Government of India and the orders passed by
the Government of Portugal as well as the Supreme Court of Justice, it is useful to refer certain
provisions of the Extradition Act, 1962. In order to codify the laws relating to the extradition to
fugitive criminals, the Parliament enacted the Extradition Act, 1962 which came into force on
05.01.1963. It extends to the whole of India. The following definitions are relevant:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(a) .....
(b) .....
(c) extradition offence" means--
(i) in relation to a foreign State, being a treaty State, an offence provided for in
the extradition treaty with that State;
(ii) in relation to a foreign State other than a treaty State an offence punishable
with imprisonment for a term which shall not be less than one year under the
laws of India or of a foreign State and includes a composite offence;
(d) "extradition treaty" means a treaty, agreement or arrangement made by India with a
foreign State relating to the extradition of fugitive criminals, and includes any treaty,
agreement or arrangement relating to the extradition of fugitive criminals made before the
15th day of August, 1947, which extends to, and is binding on, India;
(e) "foreign State" means any State outside India, and includes every constituent part,
colony or dependency of such State;
(f) "fugitive criminal" means a person who is accused or convicted of an extradition
offence within the jurisdiction of a foreign State and includes a person who, while in
India, conspires, attempts to commit or incites or participates as an accomplice in the
commission of an extradition offence in a foreign State.
(g) .....
(h) .....
(i) ......
(j) "treaty State" means a foreign State with which an extradition treaty is in operation."
"3. Application of Act.--
(1) The Central Government may, by notified order, direct that the provisions of this Act
other than Chapter III shall apply to such foreign State or part thereof as may be specified
in the order.
(2) The Central Government may, by the same notified order as is referred to in subsection
(1) or any subsequent notified order, restrict such application to fugitive criminals
found, or suspected to be, in such part of India as may be specified in the order.
(3) Where the notified order relates to a treaty State,-
(a) it shall set out in full the extradition treaty with that State;
(b) it shall not remain in force for any period longer than that treaty; and
(c) the Central Government may, by the same or any subsequent notified order,
render the application of this Act subject to such modifications, exceptions,
conditions and qualifications as may be deemed expedient for implementing the
treaty with that State.
(4) Where there is no extradition treaty made by India with any foreign State, the Central
Government may, by notified order, treat any Convention to which India and a foreign
State are parties, as an extradition treaty made by India with that foreign State providing
for extradition in respect of the offences specified in that Convention."
"Section 21: Accused or convicted person surrendered or returned by foreign State not to
be tried for certain offences - Whenever any person accused or convicted of an offence,
which, if committed in India would be an extradition offence, is surrendered or returned
by a foreign State, such person shall not, until he has been restored or has had an
opportunity of returning to that State, be tried in India for an offence other than--
(a) the extradition offence in relation to which he has surrendered or returned; or
(b) any lesser offence disclosed by the facts proved for the purpose of securing
his surrender or return other than an offence in relation to which an order for his
surrender or return could not be lawfully made; or
(c) the offence in respect of which the foreign State has given its consent."
17. United Nations General Assembly adopted the Convention for the Suppression of Terrorist
Bombings on 15th December, 1997. It is not in dispute that both India and Portugal are
signatories to the said Convention. In the absence of any special treaty between India and
Portugal, being the signatories to the said Convention, the requisition for extradition of the
appellant-Abu Salem was signed by the then Minister of State of External Affairs. The said
communication reads as under:-
"Omar Abdullah
MINISTER OF STATE FOR EXTERNAL AFFAIRS REQUISITION FOR
EXTRADITION OF MR. ABU SALEM ABDUL QAYOOM ANSARI FROM THE
PORTUGUESE REPUBLIC
I, Omar Abdullah, Minister of State for External Affairs, Government of the Republic of
India, relying on the International Convention for the Suppression of Terrorist Bombings
and on an assurance of reciprocity as applicable in international law, hereby request that
Mr. Abu Salem Abdul Qayoom Ansari, Indian national, who is accused of having
committed certain criminal offences in India, and has been charged under the following
Sections of the Indian Penal Code:
201 (causing disappearance of evidence of offence); 302 (Punishment for
Murder);
307 (Attempt to murder);
324 (Voluntarily causing hurt by dangerous weapons);
326 (voluntarily causing grievous hurt by dangerous weapons);
427 (Mischief causing damage); 435 (Mischief by fire);
468 (Forgery for purpose of cheating);
471(Using as genuine a forged document) of the Indian Penal Code read with
Sections 3, 4 and 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987
read with Sections 3, 7(a), 25(1)(A), 25(1)(AA), 26, 29, 35 of Arms Act 1959
read with Sections 3, 4, 5 & 6 of Explosive Substances Act of 1998 read with
Section 12(1)(b) of the Passport Act, 1967 and 120-B (Punishment for Criminal
Conspiracy) of Indian Penal Code.
In connection with Criminal Case Nos. CR.1(S)/93/ CBI/STF/ Mumbai, RC 15(S)/97/ CBI/STF/
NE. Delhi and RC 34(A)/2002-CBI/Hyderabad of the Central Bureau of Investigation;
And
Sections 387 (Putting person in fear of death);
506 (Punishment for criminal intimidation);
507 (Criminal Intimidation by an Anonymous Communication);
120-B (Punishment for Criminal Conspiracy);
201 (Causing Disappearance of Evidence of Offence) of Indian Penal Code read with 3(ii), 3(iv)
of Maharashtra Control of Organized Crime Act, 1999 in connection with Criminal Case No.
88/2002 dated 04/04/2002 of Police Station Greater Kailash, New Delhi
And
Sections 387 (Putting person in fear of death); 506 (Punishment for Criminal Intimidation); 120-
B (Punishment for Criminal Conspiracy) of Indian Penal Code in connection with Case FIR No.
39/02 dated 26/07/02 of Police Station Special Cell, Lodhi Colony, New Delhi And Section 120-
B (Punishment for Criminal Conspiracy) of Indian Penal Code; read with 302 (Punishment for
Murder) of Indian Penal Code in connection with Case FIR No. 849/98 of Police Station, Hauz
Khas, New Delhi. And Sections 120-B (Punishment for Criminal Conspiracy) read with Section
384 (Punishment for Extortion) of Indian Penal Code, in connection with Case FIR No. 850/98 of
Police Station, Hauz Khas, New Delhi And Section 302 (Punishment for Murder) of Indian Penal
code; read with Arms Act and Maharashtra Control of Organized Crime Act, in connection with
Criminal Case No. CR No. 52/2001 of Crime Branch -CID Mumbai. And Section 307 (Attempt
to Murder); and 34 (Acts done by several persons in furtherance of common intention) of Indian
Penal Code in connection with CR No. 144/99 of Police Station D.N. Nagar, Mumbai.
Be surrendered to the Republic of India to be dealt with according to law.
Particulars of the person whose extradition is being requested, facts of the cases, relevant laws
under which he has been charged and the evidence to justify the issue of warrant for his arrest
have been given in the form of duly sworn Affidavit together with other supporting documents in
the enclosed volumes.
I may further state that there are a number of other criminal cases in which Mr. Abu Salem Abdul
Qayoom Ansari is involved. A formal extradition request in respect of some of these criminal
cases will be submitted shortly.
I, hereby, certify that all documents enclosed herewith have been authenticated, I have signed my
name and caused my seal to be affixed hereunto at New Delhi today, the 13th December, 2002.
Sd/-
illegible (Omar Abdullah)
Minister of State for External Affairs
Government of the Republic of India"
The above communication was supported on facts with a detailed affidavit dated 11.12.2002 duly
sworn to by Mr. Om Prakash Chhatwal, Senior Superintendent of Police, Central Bureau of
Investigation, Special Task Force, New Delhi
18. On 13.12.2002, a Gazette Notification was issued making the provisions of the Extradition
Act, except Chapter III, applicable to Portuguese Republic under sub-Section (1) of Section 3 of
the said Act. (published in the Gazette of India, Extraordinary, Pt. II, Section 3(i) Dated
13.12.2002).
19. In addition to the requisition by the then Minister of State for External Affairs and the Gazette
Notification, on 17.12.2002, an assurance was extended by the then Deputy Prime Minister of
India which reads as under:
"L.K. ADVANI
Deputy Prime Minister
No. I/11011/90/2000-IS-IV December 17, 2002
Excellency,
At the outset, I would like to express my deep appreciation for your letter October 4,
2002 in response to the letter of our External Affairs Minister of September 23, 2002
regarding the return of Abu Salem Abdul Qayoom Ansari to India. In your letter, you had
advised that a formal extradition request be presented which would fulfill the
requirements of Portuguese law. Accordingly, the concerned authorities in India have
been in the process of preparing the required formal extradition request for presentation.
In this context, we have been informed that under Portuguese law, an offender cannot be
extradited to the requesting country if the offence or offences committed attract the
visitation of either the death penalty or imprisonment for an indefinite period beyond 25
years. As the offences Abu Salem Abdul Qayoom Ansari is charged with or accused of
would attract the death penalty and life imprisonment under Indian law, a solemn
sovereign assurance is required to enable his extradition from Portugal to India.
The Government of India also desires that Abu Salem Abdul Qayoom Ansari's
accomplice, Monica Bedi, be extradited to India. One of the offences she is accused of
would carry the penalty of life imprisonment, Monica Bedi was arrested in Portugal on
September 18, 2002 along with Abu Salem Abdul Qayoom Ansari.
The issue of the legal basis for the above assurance to be given by the Government of
India has been given due attention. I may mention that Section 34(c) of the Indian
Extradition Act, 1962 states that "Notwithstanding anything contained in any other law
for the time being in force, where a fugitive criminal, who has committed an extradition
offence punishable with death in India is surrendered or returned by a foreign State on the
request of the Government and the laws of that foreign State do not provide for the death
penalty for such an offence, such fugitive criminal shall be liable for punishment of
imprisonment for life only for that offence."
Further Article 72 (1) of the Constitution of India provides that "The President shall have
the power to grant pardons, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offence." In all cases
where the punishment or sentence is for any offence against any law relating to a matter
to which the executive power of the Union extends including where the sentence is a
sentence of death. Further, it is a settled law that the power under Article 72 of the
Constitution of India is to be exercised on the advice of the Government and not by the
President acting on his own and that the advice of the Government is binding on the Head
of the State. Also, the President's power under the said Article 72 is a constitutional
power and is beyond judicial review.
It is also pertinent to state that in addition to the above provisions, Section 432 and 433 of
the Code of Criminal Procedure of India 1973 confer power on the Government, to
commute a sentence of life imprisonment to a term not exceeding 14 years.
The Government of India, therefore, on the basis of the provisions of the Constitution of
India, the Indian Extradition Act, 1962 and the Code of Criminal Procedure of India,
1973 solemnly assures the Government of Portugal that it will exercise its powers
conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Abu
Salem Abdul Qayoom Ansari and Monica Bedi would not be visited by death penalty or
imprisonment for a term beyond 25 years.
Please accept, your Excellency, the assurance of my highest consideration.
Sd/- illegible
(L.K. ADVANI)
H.E. MR. ANTONIO MARTINS DA CRUZ MINISTER FOR FOREIGN AFFAIRS
PORTUGAL"
20. In pursuance of all the above assurances and communications, on 28.03.2003, the Ministerial
order came to be passed admitting extradition amongst others for Section 120B read with Section
302 IPC, Section 3(2) of TADA. However, the ministerial order declines extradition for Section
25(1A) and (1B) of the Arms Act and Sections 4 & 5 of Explosive Substances Act. On
25.05.2003, the Ambassador of India in Lisbon gave further assurance that they will not be tried
for offences other than those for which extradition was sought for and they will not be extradited
to a third country.
21. In pursuance of the Ministerial order dated 28.03.2003, Her Excellency, the Minister of
Justice, under the terms provided in No. 2 of Article 48 of Law 144/99 submitted through the
Public Prosecution a request for extradition before the Court of Appeals of Lisbon. The appellant-
Abu Salem also preferred an appeal against the order of Extradition before the Court of Appeals,
Lisbon. By order dated 14.07.2004, the Court of Appeals Lisbon agreed to authorize extradition
for the offences contained in the request of prosecution with an exception of offences punishable
with death or life imprisonment. Aggrieved by the same, the Public Prosecution challenged the
order of Court of Appeals before the Supreme Court of Justice by lodging an appeal on
23.07.2004 and sought extradition also for offences punishable with death and life imprisonment.
On 29.07.2004, the appellant also filed an appeal against the said order of the Court of Appeals.
On 27.01.2005, the Supreme Court of Justice permitted the extradition for the offences in view of
the assurances given by the Government of India that the person extradited would not be visited
by death penalty or imprisonment for a term beyond 25 years. In addition to the same, on
03.03.2005, the Supreme Court of Justice issued a supplementary order maintaining the decision
made on 27.01.2005. On 13.06.2005, the petition for appeal of the appellant-Abu Salem was
rejected by the Constitutional Court by upholding the constitutional validity of the provisions of
Article 9.3 of the said New York Convention which obliges the signatory State for extradition for
offences covered under it notwithstanding lack of mutual extradition treaty between the parties.
On 10.11.2005, the custody of the appellant was handed over to the Indian Authorities and on
11.11.2005, the appellant was brought to India and was produced before the Designated Court,
Mumbai in RC-1(S) of 1993 and by order dated 18.03.2006, the substantive charges in addition to
charge of conspiracy were framed against the appellant and his plea of not guilty and claim of
trial was recorded. Thereafter, the prosecution filed Miscellaneous Application bearing No.
144/2006 seeking separation of the trial of the accused from the main trail in the Bombay Bomb
Blast case. In the meanwhile, the appellant also filed Misc. Appeal No. 161 of 2006 seeking
production of relevant record of extradition and sought joint trial along with other 123 accused
whose trial was nearing completion. By order dated 13.06.2006, the Designated Court allowed
the application of the Prosecution for separation of trial and held that the trial would continue as
BBC-1-B/1993 in continuity with the earlier joint case. The Designated Court has pointed out that
the assurances were given with respect to sentences which could be imposed and not with respect
to the offences with which he could be tried. It was further held that the `lesser offence' in Section
21 of the Extradition Act covers wider matters than the phraseology "minor offence" in Section
222 of Criminal Procedure Code. It was also held by the Designated Court that although the overt
acts with which the appellant has been charged may not be cognate with the ingredients of
offence with which he has been charged, however, they are lesser offences for the purposes of
Section 21 of the Extradition Act.
22. It is relevant to point out that apart from challenging the 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.
23. The main grievance of the appellant is that inasmuch as he being specifically extradited for
trial of certain offences only, the present action of the Designated Court and the prosecution
adding other offences without recourse to specific order from the Government of Portugal cannot
be sustained. Before us, learned counsel for the appellant administered the list of offences for
which Government of Portugal agreed to and adding certain other charges which are in flagrant
disobedience of the mandate of Section 21 of the Extradition Act as well as the solemn sovereign
assurance of the Government of India. According to the appellant, the charges under Sections
3(4) , 5 and 6 of the TADA Act, Sections 4(b) and 5 of the Explosive Substances Act, Section 25
of the Arms Act, Section 9B of the Explosives Act and charges under Section 120-B, 387 and 386
of IPC and under Section 5 of TADA are all impermissible, contrary to the solemn sovereign
assurance of the Government of India, the ministerial order of extradition of the appellant passed
by the Government of Portugal, the judgment of the Court of Appeals as well as the Supreme
Court of Portugal.
24. The parties are in agreement over the application of Section 21 of the Extradition Act, 1962
(which we have already extracted in the earlier part of our judgment) to the case of extradition of
the appellant from Portugal to India on 11.11.2005. We have already pointed out that in the
absence of formal treaty between India and Portugal, the request for extradition had been made
under the International Convention on Suppression of Terrorist Bombings. By virtue of
Notification dated 13.12.2002, the Government of India made the provisions of the Extradition
Act applicable for the purpose of extradition of the appellant from Portugal to India. It is also
pointed out that in the ministerial order dated 28.03.2003, the Government of Portugal rejected
the request for extradition of the appellant for the offences under Sections 201, 212, 324, 326, 427
of the Indian Penal Code, Sections 3(4), 5 and 6 of the TADA Act, Sections 4 & 5 of the
Explosive Substances Act, Section 9B of the Explosives Act and Section 25(1A) and (1B) of the
Arms Act. Similarly, the Government of Portugal rejected the request for extradition of the
appellant for the offences under Sections 120-B, 387 and 386 IPC and under Section 5 of the
TADA Act. The said Notification dated 11.04.2003 was published in the official gazette of the
Government of Portugal specifying the offences for which consent for extradition was granted.
Learned counsel for the appellant has pointed out that the Court of Appeals and the Supreme
Court of Portugal confirmed the ministerial order and the Notifications. The Supreme Court of
Portugal specifically referred to the "Principle of Speciality" and the assurances given by the
Government of India regarding the fulfillment of the speciality rule. The pith and substance of the
argument of the counsel for the appellant is that once the appellant has been brought to India on
the basis of the extradition treaty, he can only be tried for offences mentioned in the extradition
decree for which his extradition had been sought and not for other offences. He also pointed out
that the Designated Court has no jurisdiction to try the appellant for such offences. He relied on
the judgment of this Court in Daya Singh Lahoria vs. Union of India & Ors., (2001) 4 SCC
516. Learned counsel pressed into service the following principles in respect of "Doctrine of
Speciality" as discussed in pages 521-522 of the judgment:
"The doctrine of speciality is yet another established rule of international law relating to
extradition. Thus, when a person is extradited for a particular crime, he can be tried for
only that crime. If the requesting State deems it desirable to try the extradited fugitive for
some other crime committed before his extradition, the fugitive has to be brought to the
status quo ante, in the sense that he has to be returned first to the State which granted the
extradition and a fresh extradition has to be requested for the latter crime. The Indian
Extradition Act makes a specific provision to that effect. In view of Section 21 of the
Indian Extradition Act, 1962 an extradited fugitive cannot be tried in India for any
offence other than the one for which he has been extradited unless he has been restored to
or has had an opportunity to return to the State which surrendered him. The doctrine of
speciality is in fact a corollary to the principles of double criminality, and the aforesaid
doctrine is premised on the assumption that whenever a State uses its formal process to
surrender a person to another State for a specific charge, the requesting State shall carry
out its intended purpose of prosecuting or punishing the offender for the offence charged
in its request for extradition and none other. (See M. Cherif Bassiouni -- International
Extradition and World Public Order.) In the book International Law by D.P. O'Connell,
the principle of speciality has been described thus:
"According to this principle the State to which a person has been extradited may
not, without the consent of the requisitioned State, try a person extradited save
for the offence for which he was extradited. Many extradition treaties embody
this rule, and the question arises whether it is one of international law or not."
The United States Supreme Court, while not placing the rule on the plane of international
law, did in fact arrive at the same conclusion in the case of United States v. Rauscher.
The Supreme Court denied the jurisdiction of the trial court even though the Treaty did
not stipulate that there should be no trial and held: (US pp. 429-30:L Ed p. 432)
"[T]he weight of authority and of sound principle are in favour of the proposition
that a person who has been brought within the jurisdiction of the court by virtue
of proceedings under an extradition treaty can only be tried for one of the
offences described in that treaty, and for the offence with which he is charged in
the proceedings for his extradition, until a reasonable time and opportunity have
been given him, after his release or trial upon such charge, to return to the
country from whose asylum he had been forcibly taken under those proceedings."
In view of the aforesaid position in law, both on international law as well as the relevant
statute in this country, we dispose of these cases with the conclusion that a fugitive
brought into this country under an extradition decree can be tried only for the offences
mentioned in the extradition decree and for no other offence and the criminal courts of
this country will have no jurisdiction to try such fugitive for any other offence. This writ
petition and special leave petitions are disposed of accordingly." If we apply the above
principles in terms of the order of the Government of Portugal, the Designated
Court/Prosecution cannot go beyond the various offences mentioned in extradition
decree. Mr. Gopal Subramaniam, learned Solicitor General and Mr. H.P. Rawal, learned
Additional Solicitor General explained the "Rule of Speciality". Learned Solicitor
General has highlighted his arguments by way of an illustration, namely, a defendant
extradited to UK is entitled to the speciality protection contained in Section 146 of
Extradition Act, 2003 (C.41). In other words, following his extradition, he may only be
tried in respect of the offences specified in that section. The offences specified in Section
146(3) are as follows:
(a) the offence in respect of which the defendant is extradited;
(b) an offence disclosed by the information provided to the category 1 territory in
respect of that offence;
(c) an extradition offence in respect of which consent to the defendant being dealt
with is given on behalf of the territory in response to a request made by the
appropriate judge;
(d) an offence which is not punishable with imprisonment or another form of
detention;
(e) an offence in respect of which the person will not be detained in connection
with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have
(but for Section 146(6)(f) not to be dealt with for the offence.
25. The "Rule of Speciality" has been succinctly explained in the treatise "The Law of Extradition
and Mutual Assistance". (Second Edition by Clive Nicholls QC, Clare Montgomery QC, Julian B.
Knowles - Oxford Publication) by way of the following example:
"The operation of the speciality principle in this context can be illustrated by an example,
based on the facts of Kerr and Smith (1976) 62 Cr App R 210 (a case under the EA
1870). Suppose that a Part 3 warrant is submitted to Denmark for the return of D for an
offence of robbery under Section 8(1) of the Theft Act 1968. The Part 3 warrant only
specifies the offence of robbery, however, the factual account of the offence provided by
the UK to Denmark refers to D as having carried a sawn-off shotgun in the course of the
robbery. This is an offence contrary to S. 18 of the Firearms Act, 1968. Extradition is
granted.
D could be tried for robbery and for the S.18 offence because it was disclosed in the
information provided to Denmark and S.146(6)(b) would therefore apply. If, however,
evidence came to light that prior to the robbery D had assaulted his wife, then he could
not be tried for this offence until after he had been given an opportunity to leave the UK
after serving his sentence for the robbery, unless Denmark consented or he waived his
rights. This is because the offence of assault did not form part of the information supplied
in support of the application for his extradition."
Similar principle is found in Halsbury's laws of England, 4th Ed., Vol. 18, Para 246:
"Extradition and Fugitive Offenders 246. Trial on other charges. Where a person accused
or convicted of an extradition crime is surrendered by a foreign State, then, until he has
been restored or had an opportunity of returning to the foreign State, he is not triable and
may not be tried for any offence committed prior to the surrender in any part of Her
Majesty's dominions other than such of the extradition crimes as may be proved by the
facts on which the surrender is grounded. It follows that a person extradited on a
particular charge is triable for any other crime provable by the facts upon which is
surrender is grounded. Where the defendant alleges that he is being tried for an offence
which is not an extradition crime the onus of proving that he was surrendered under
extradition law is on him."
Similarly, the American Jurisprudence also recognizes that slight variation in the description of
the offence in the extradition proceedings and in the subsequent indictment or information does
not violate the Rule of Speciality. Paragraph 155 of American Jurisprudence, 2nd Ed., Vol. 31A,
is pertinent in this regard:
"155. Effect of Variation in charges; related and included charges A slight variation in the
description of the offence in the extradition proceedings and in the subsequent indictment
or information does not violate the rule of speciality, it is generally sufficient if the facts
shown in the extradition proceedings and those relied upon in the accusation and at the
trial are substantially the same, although the crime itself may have a different name in the
surrendering country. And if extradition was based on several charges, it is immaterial
whether the trial is on all or any of them. Although a returned fugitive may ordinarily be
tried for any offence included in the crime with which he has been charged. But a person
extradited as an accomplice may be tried as a principal where the distinction between the
two has been abolished in the demanding state. Applying similar reasoning, the fact that
an extradited person could not be convicted of conspiracy, because the foreign country
took the position that the conspiracy charge was not included in the list of offences giving
rise to a treaty obligation to extradite, did not prevent the United States from using
evidence of a conspiracy to convict the defendant on the substantive counts."
The Rule of Speciality as contained in Article 16 of Law 144/99 of Portugal recognizes that the
speciality principle requires that the extradited persons should be tried for the act or acts on the
ground of which request for cooperation was made. It is pointed out that the additional charges do
not traverse beyond the facts on which request for extradition of the appellant was made by the
Indian Government. The abovesaid Portuguese Law on Speciality is reproduced hereunder:
"Article 16--Rule of Speciality 1.
No person who, as a consequence of international cooperation, appears in Portugal for the
purpose of participating in criminal proceedings, either as a suspect an accused or a
sentenced person, shall be proceeded against, sentenced or detained nor shall he be in any
way restricted in his personal freedom, for any act committed prior to his presence on the
national territory, other than the act or acts on the grounds of which the request for
cooperation was made by a Portuguese authority.
2. No person who, in the same terms as above, appears before a foreign authority shall be
proceeded against, sentenced, detained, nor shall he be in any way restricted in his
personal freedom, for any act committed, or any sentence passed, prior to his leaving the
Portuguese territory, other than those mentioned in the request for cooperation.
3. The surrender of a person to the requesting State as mentioned in the preceding
praragraph shall not be authorized unless that State provides the necessary guarantees to
the effect that the rule of speciality shall be complied with.
4. The immunity that results from the provisions of this Article shall cease to have effect:
(a) where it became possible for the person concerned to leave the Portuguese
territory or the territory of another State, as applicable, and that person does not
avail himself of that possibility within a period of 45 days, or that person
voluntarily returns to one of the said territories;
(b) where the State that authorized the transfer, once the suspect, the accused or
the sentenced person have been heard, consents to a derogation to the rule of
speciality.
5. The provisions of paragraphs 1 and 2 above do not preclude the possibility of
extending the cooperation previously sought, by way of a new request, to facts other than
those on the grounds of which the original request was made; the new request shall be
prepared or examined, as applicable, in accordance with the provisions of this law.
6. Any request made under the provisions of the preceding paragraph shall be
accompanied by a document established by the competent authority, containing the
statements made by the person who benefits from the rule of speciality.
7. Where the request is submitted to a foreign State, the document mentioned in the
preceding paragraph shall be established before the "Tribunal da Relacao" "1" (Court of
appeal) that has jurisdiction over the ara where the person who benefits from the rule of
speciality resides or is staying."
In this regard, we may point out that Indian Extradition Act of 1962 also recognizes the Doctrine
of Speciality in Section 21 of the Act which we have already extracted. The Doctrine of
Speciality is a universally recognized principle of international law and partakes of doctrines of
both double criminality and reciprocity.
26. Unlike the law in United Kingdom, United States and Portugal, the law in India only permits
the extradited person to be tried for lesser offence disclosed by the facts proved for the purpose of
securing his surrender. Apart from the said offence being made out from the facts proved by the
Indian authorities for the surrender of the fugitive, the additional indictment, if any, has to be
lesser than the offences for which the extradition has been granted. This Court while dealing with
a similar issue relating to Section 21(b) of the Extradition Act in Suman Sood @ Kamaljeet
Kaur vs. State of Rajasthan (2007) 5 SCC 634 observed as under:
"28. On behalf of Suman Sood, one more argument was advanced. It was contended that
extradition order in her case did not refer to Section 365 IPC but both the courts
convicted her for the said offence under Sections 365/120-B IPC which was illegal,
unlawful and without authority of law. Her conviction and imposition of sentence for an
offence punishable under Section 365 read with Section 120-B IPC, therefore, is liable to
be set aside.
29. We find no substance in the said contention as well. It is no doubt true that Section
365 IPC had not been mentioned in the order of extradition. But as already seen earlier,
Section 364-A IPC had been included in the decree. Now, it is well settled that if the
accused is charged for a higher offence and on the evidence led by the prosecution, the
court finds that the accused has not committed that offence but is equally satisfied that he
has committed a lesser offence, then he can be convicted for such lesser offence. Thus, if
A is charged with an offence of committing murder of B, and the court finds that A has
not committed murder as defined in Section 300 IPC but is convinced that A has
committed an offence of culpable homicide not amounting to murder (as defined in
Section 299 IPC), there is no bar on the court in convicting A for the said offence and no
grievance can be made by A against such conviction.
30. The same principle applies to extradition cases. Section 21 of the Extradition Act,
1962 as originally enacted reads thus:
"21. Accused or convicted person surrendered or returned by foreign State or
Commonwealth country not to be tried for previous offence.--Whenever any
person accused or convicted of an offence, which, if committed in India, would
be an extradition offence, is surrendered or returned by a foreign State or
Commonwealth country, that person shall not, until he has been restored or has
had an opportunity of returning to that State or country, be tried in India for an
offence committed prior to the surrender or return, other than the extradition
offence proved by the facts on which the surrender or return is based."
31. The section, however, was amended in 1993 by the Extradition (Amendment) Act,
1993 (Act 66 of 1993). The amended section now reads as under:
"21. Accused or convicted person surrendered or returned by foreign State not to
be tried for certain offences.-- Whenever any person accused or convicted of an
offence, which, if committed in India would be an extradition offence, is
surrendered or returned by a foreign State, such person shall not, until he has
been restored or has had an opportunity of returning to that State, be tried in India
for an offence other than--
(a) the extradition offence in relation to which he was surrendered or returned; or
(b) any lesser offence disclosed by the facts proved for the purposes of securing
his surrender or return other than an offence in relation to which an order for his
surrender or return could not be lawfully made; or
(c) the offence in respect of which the foreign State has given its consent."
32. It is, therefore, clear that the general principle of administration of criminal justice
applicable and all throughout applied to domestic or municipal law has also been
extended to international law or law of nations and to cases covered by extradition
treaties. 33. In Daya Singh this Court dealing with amended Section 21 of the Extradition
Act, stated: (SCC p. 519, para 3)
"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 Extradition Act, 1962 applicable to
Government of Portugal except Chapter III. As rightly pointed out by the respondents that the
Court has not granted extradition merely on the basis of Extradition Treaty but also on the basis
of reciprocity. Pursuant to Section 3 of the Act, the order of the Government of India GSR-822(E)
dated 13.12.2002 had been approved and published ensuring due regard for the principle of
reciprocity. In view of the same, the claim of the appellant is without any substance.
28. As discussed earlier, it is true that there is no Extradition Treaty between India and Portugal.
However, the laws of both the countries permit entertaining request for extradition from Non
Treaty States also. The extradition request was made to the Government of Portugal by the
Government of India under the provisions of the Extradition Act applicable to Non Treaty States
i.e. Section 19 of the Act. Although the Convention was also relied upon for the extradition, as
rightly pointed out by the respondent, it was not the sole basis as is apparent from the Letter of
Request. The primary consideration for the request of extradition was the assurance of
reciprocity. The notification dated 13.12.2002 by the Government of India directing that the
provisions contained in the Extradition Act shall be applicable to the Republic of Portugal was
issued keeping in view the said principle of reciprocity. For the purpose of extradition
proceedings, appellant-Abu Salem was treated as a fugitive criminal as defined under Section 2(f)
of the Extradition Act, 1962. We have already adverted to the Gazette Notification dated
13.12.2002 making it clear that the provisions of Extradition Act shall apply to Portuguese
Republic in accordance with the principle of reciprocity. The provisions of the Act are applicable
in respect of the extradition of appellant-Abu Salem. The Court of Appeals of Lisbon has
recognized this principle of reciprocity and the applicability of the provisions of the Extradition
Act, 1962 to the Republic of Portugal. The Supreme Court of Justice and Constitutional Court of
Portugal have also approved it. None of these Courts have mentioned in their orders that the
accused could not be tried in India for the offences for which his trial could take place as per the
domestic laws of India.
29. We have already adverted to Section 21 of the Extradition Act. A bare reading of the above
section would indicate that the appellant-Abu Salem can be tried for the offences for which he has
been extradited. The Supreme Court of Justice, Portugal has granted extradition of appellant-Abu
Salem for all the offences mentioned in para-1 of the order dated 27.01.2005. In addition, Abu
Salem can also be tried for lesser offence/offences in view of Section 21 of the Extradition Act
disclosed by the facts proved for the purposes of securing his surrender. "Lesser offence" means
an offence which is made out from the proved facts and provides lesser punishment, as compared
to the offences for which the fugitive has been extradited. The offence has to be an extradition
offence, as defined under Section 2 (c) (ii) of the Act i.e. an offence punishable with
imprisonment for a term which shall not be less than one year under the laws of India or of a
foreign State. The lesser offence cannot be equated with the term "minor offence" as mentioned
in Section 222 of the Code of Criminal Procedure. The Legislature has deliberately used the word
"lesser" in Section 21(b) of the Extradition Act instead of the word "minor". Thus, the
punishment provided for the offence is relevant and not the ingredients for the purposes of
interpretation of the term "lesser offence".
30. The contention of the appellant that he can be tried only for the offences covered under
Article 2(1) of the said Convention is misconceived in view of the fact that he was extradited not
only under the said Convention but also in the light of the principle of reciprocity made
applicable through the application of the Extradition Act to the Republic of Portugal. A complete
reading of Article 2 of the said Convention makes it clear that it deals not only with those accused
who commit the substantive offences as defined in Article 2(1) but also includes all the
conspirators and those who have constructive liability for commission of the substantive offences
as per Sub-section 3 of Article 2 of the Convention, which fact has also been mentioned by the
Supreme Court of Justice, Portugal in para 9.4 of its order. Further sub-section (d) of Article 1(3)
of the Convention makes it abundantly clear that the explosive or lethal device means a weapon
or device i.e. designed, or has the capability to cause death, serious bodily injury or substantial
material damage through its release etc. AK-56 rifles are the weapons/devices, which have the
capability to cause death and serious bodily injury through the release of cartridges and are
covered under the said Article. The appellant has been charged for possession, transportation and
distribution of AK-56 rifles, their ammunitions as well as hand-grenades, which were illegally
smuggled into the country in pursuance of the criminal conspiracy.
31. We are also satisfied that there has been no violation of Rule of Speciality and the Solemn
Sovereign Assurance given by the Government of India in the letter dated 25.05.2003 of the
Indian Ambassador to the Government of Portugal regarding the trial of the appellant-Abu Salem.
The said assurance of the Indian Ambassador was given to the effect that the appellant will not be
prosecuted for the offences other than those for which his extradition has been sought and that he
will not be re-extradited to any other third country. As rightly pointed out by the Solicitor
General, there has been no violation of Rule of Speciality. As per the Government of India
Gazette Notification dated 13.12.2002, all the provisions contained under the Extradition Act are
made applicable in respect of the extradition of Abu Salem except those contained in Chapter III
of the Act. The Court of Appeals in Lisbon, has recognized this principle of reciprocity and the
applicability of the provisions of Extradition Act to Portugal. The Supreme Court of Justice and
Constitutional Court of Portugal have also approved it. In view of the fact that the provisions of
the Extradition Act, 1962 have been made applicable to Portugal, provisions contained in Section
21 of the Act would come into operation while conducting the trial of appellant-Abu Salem.
32. We are also satisfied that the Designated Judge has correctly concluded that the appellant-
Abu Salem can be tried for `lesser offences', even if, the same are not covered by the Extradition
Decree since the same is permitted under Section 21(b) of the Extradition Act. No bar has been
placed by the Portuguese Courts for the trial of lesser offences in accordance with the provisions
contained under Section 21(b) of the Extradition Act although Portuguese Courts were aware of
the said provisions of Extradition Act.
33. We have already highlighted how the Government of India and the Government of Portugal
entered into an agreement at the higher level mentioning the relevant offences and the appellant
was extradited to India to face the trial. We have also noted the Notification of the Government of
India about the applicability of Extradition Act, 1962. In the light of the said Notification, the
additional charges that have been framed fit well within the proviso to Section 21(b) of the
Extradition Act. The offences with which the appellant has been additionally charged are lesser
than the offences for which the appellant has been extradited. To put it clear, the offences with
which the appellant is charged are punishable with lesser punishment than the offence for which
he has been extradited. The extradition granted in the present case had due regard to the facts
placed which would cover the offences with which the appellant has been charged. As rightly
pointed out by learned Solicitor General, the offences are disclosed by the same set of facts
placed before the Government of Portugal. We agree with the submission of the learned Solicitor
General and the ultimate decision of the Designated Court.
34. Coming to the order of the Designated Court directing separation of the trial of the appellant,
it is the grievance of the appellant that because of the separation, he would forego the opportunity
to cross-examine the witnesses. This grievance has been dealt with in a separate set of proceeding
which we have adverted to in the earlier part of our judgment. The order dated 24.08.2009 has
granted the appellant an opportunity to submit a list of witnesses examined in the main trial for
cross-examination. Hence, there is no basis in the apprehension raised by the appellant.
35. In the light of the above discussion, we are of the view that the appellant has been charged
within the permissible scope of Section 21(b) of the Extradition Act and the Designated Court has
not committed any illegality in passing the impugned orders. Consequently, all the appeals as
well as the writ petition are liable to be dismissed, accordingly dismissed. Since the trial is
pending from the year 1983 and connected matters have already been disposed of, we direct the
Designated Court to proceed with the trial expeditiously.
Ganguly, J.-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 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:
"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 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 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 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 requesting State. That is why the
Courts of Portugal await the decision of this Court. However, non-inquiry is not an absolute
principle.
14. In a given situation, the requested State may question the procedures in the requesting State if
they are prima facie contrary to fundamental principles of justice and there is a high risk of the
fugitive being prejudiced by the process of extradition.
15. There are cases where the requested State has rejected the extradition request as the
requesting State may have procedures that are basically incompatible with the practices of the
requested State. The most remarkable example is in Soering (supra) where the European Court of
Human Rights struck down an extradition request from the USA on the ground of it being
violative of Article 3 of the European Convention on Human Rights which prohibits inhuman and
degrading treatment of humans. It said that the prolonged delay in the form of death row, which is
a natural outcome of the criminal procedure existing in the USA, was certainly violative of the
human rights of the fugitive, for it was torturous for him to wait in anticipation of a death that was
almost certain for him in the USA.
16. Furthermore obligations entered by many countries of the world, including India, in the form
of Covenant on Civil and Political Rights, and The Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (to which India is a Signatory), would preclude
a total and unconditional observance of the principle of non-inquiry. Even though, non- inquiry is
not an absolute doctrine, but in facts of the present case, it operates.
17. In this case, the insistence of the Central Government on trying Abu Salem for lesser offences
is permissible, both under the Extradition Act as well as under the Convention for Suppressing
Terrorist Bombings.
18. United Nations General Assembly adopted on 15th December 1997, the International
Convention for the Suppression of Terrorist Bombings. India has been a party to this Convention,
ever since the Union Cabinet approved it on 5th of August, 1999 and India formally ratified it on
17th of September 1999. This Convention creates a broad platform for international cooperation
to suppress and deal with unlawful and international use of explosives and other lethal devices in
various public 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 American Journal of International Law, Vol.92,
No.4 (October 1998) pp.774-781]
21. There are two ways in which to describe a lesser crime. Either every single element of a lesser
crime should be component of the greater crime on the basis of their statutory definitions; or the
allegations of the larger crime in the indictment should include all the factual details of the lesser
crime. (See Submission of Lesser Crimes, Columbia Law Review, Volume 56(6), 1956 pp.888-
902, at 888-890).
22. Section 21(b) of the Act seems to embody the latter of these two principles. This means that a
crime which can be framed from out of the factual averments themselves (i.e. evidence
submitted) before the requested State at the time of extradition, can be the one upon which the
fugitive can be tried. A lesser crime can be a cognate crime, in that it shares its roots with the
primary crime, even though it may be independent of it.
23. The learned Solicitor General rightly placed reliance on the following observation of the
Designated Court in Bombay Blast case where the learned Judge observed:
"Thus in true sense all such offences would always be lesser offence of conspiracy of
which pivotal charge of conspiracy is framed at the trial subject to such offences being
punishable with lesser punishment than prescribed for main offence of conspiracy."
24. In the instant case the extradition has been allowed by the requested State on the specific
undertaking of the Government of India that the extradited criminal will not be subjected to death
penalty or imprisonment beyond 25 years. Therefore, the basic human rights considerations have
been taken into account and the guidelines in Soering (supra) have been adhered to. Thus,
primacy has been accorded to human right norms in the extradition process.
25. Doctrinally speaking, Extradition has five substantive ingredients. They are:
(a) reciprocity,
(b) double criminality,
(c) extraditable offences,
(d) specialty and
(e) non inquiry.
26. In India, the Act suffered an amendment in 1993, by Act 66 of 1993 and in the instant case,
the amended provisions have come up for discussion. In order to appreciate the purport of the
amendment, the Statement of Objects and Reasons for enacting the Act 66 of 1993 (hereinafter
the Amending Act) are set out:
"At present, the Law of Extradition in India is contained in the Extradition Act, 1962 (Act
34 of 1962). The 1962-Act made a distinction between Commonwealth countries and
foreign States and considered only foreign States as treaty States. The extradition with
Commonwealth countries was separately governed by the second schedule of the Act and
the Central Government was given powers under Chapter III to conclude special
extradition arrangements with respect to Commonwealth countries only. Such distinction
made in the Extradition Act, 1962 between foreign States and Commonwealth countries
does not hold good in view of the change of time and rapid developments in Extradition
Law at international level. Commonwealth countries are concluding extradition treaties
among themselves. India has in recent years concluded separate extradition treaties with
Canada and UK. Moreover, the Civil Law countries have specific requirements for
purposes of extradition with them. In addition, terrorism and drug trafficking as two most
heinous crimes affecting innocent lives, have thrown new challenges necessitating
changes in the existing Extradition Law to effectively deal with these new crimes. Many
International Conventions dealing with these and other crimes have laid down specific
obligation on State parties to extradite or prosecute a fugitive offender. India is a State
party to many of these International Conventions.
2. The purpose of the Bill is to amend the Extradition Act, 1962, to suitably incorporate
in it the above noted changes and to achieve, inter alia, the following objectives:
(a) to enable India to conclude extradition treaties with foreign States including
the Commonwealth countries without treating them structurally different;
(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 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 contractual relationship
between two sovereign States. Explaining the rule of double criminality, Shearer says, "...This
rule requires that an act shall not be extraditable unless it constitutes a crime according to the
laws of both the requesting and requested States... The validity of the double criminality rule has
never seriously been contested, resting as it does, in part on the basic principle of reciprocity,
which underlies the whole structure of extradition, and in part on the maxim nulla poena sine
lege" (no penalty without prior legal authority) (See Extradition in International Law (1971) at
page 137).
31. This position of extraditable offences, and the obligations of the requesting State can further
be understood, if one bears in mind the fact that the doctrines of double criminality and specialty
are both safeguards of the individual rights of the extraditee who should not be tried on
unexpected counts, as well as the rights of the requested State to have its laws and processes
given adequate deference by the requesting State. It is not only a means to protect the person from
unexpected prosecution, but also a preventive guard against the abuse of the legal process of the
requested State. While the first takes care of the individual's right, the second takes care of the
rights of a sovereign State.
32. Therefore it can be said that as long as the facts that have been submitted before the requested
State prima facie show the guilt of the extraditee in a foreseeable and logically consistent way,
the said person can be tried on all such counts that can be conclusively proved against him or her.
33. Therefore, I do not find any substance in the complaint of Abu Salem.
34. Thus I concur with Brother Sathasivam and reach the same conclusion as His Lordship does.
