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CASE NO.: Appeal (crl.)  728 of 2007

PETITIONER: DAYA SINGH LAHORIYA @ RAJEEV SUDAN @ VINAY KUMAR

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 14/05/2007

BENCH: C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 728 OF 2007 ARISING OUT OF Special Leave Petition (Criminal) No. 4570 of 2006

Hon. C.K. Thakker, J.

1.              Leave granted. 2.              The present appeal is filed against the  judgment and order dated December 6, 2005 passed by a  Single Judge of the High Court of Judicature for  Rajasthan (Jaipur Bench) in S.B. Criminal Appeal No.  332 of 2005. By the said order, a Single Judge of the  High Court dismissed the appeal filed by the appellant  herein who had been convicted by the Additional  Sessions Judge (Fast Track Court) No.1, Jaipur City,  Jaipur in Session Case No. 27 of 2003. 3.              It is not necessary to set out facts in detail  since we have stated all the facts in Criminal Appeal No.  867 of 2006 (Suman Sood @ Kamal Jeet Kaur v. State of  Rajasthan) and a cognate matter which we have decided  today. Suffice it to state that a complaint being First  Information Report (FIR) No. 84 of 1995 was registered at  Malviya Nagar Police Station, Jaipur on February 26,  1995 against Daya Singh, appellant herein, Suman Sood  @ Kamal Jeet Kaur  (accused No.2) and one Harnek  Singh @ Surender Verma (absconding) for offences  punishable under Sections 353, 420, 468, 471, 472, 473,  474 read with Section 120B Indian Penal Code (’IPC’ for  short), for offences punishable under Sections 4 and 5 of  the Explosive Substances Act, 1908, Sections 7 and 25 of  Arms Act, 1959 and Section 18 of TADA etc.  4.              The case of the prosecution was that the  appellant herein along with his wife Suman Sood @  Kamal Jeet Kaur fabricated Registration Certificate for  purchasing several vehicles in order to carry out  conspiracy of kidnapping and abducting one Rajender  Mirdha, son of Shri Ram Niwas Mirdha to exert pressure  on the Government of India to release one Devendra  Singh Bhullar, an alleged Khalistani terrorist who was  being held in custody by the police. It was also alleged  that the appellant was found to be in possession of  prohibited arms and ammunition allegedly recovered  from House No. B-117, Model Town, Ashok Nagar during  police raid where the appellant was staying. 5.              Initially, prosecution was launched in the

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Designated Court at Ajmer since the provisions of TADA  were also invoked. The appellant herein, however,  challenged his prosecution under TADA. In Daya Singh  Lahoria v. Union of India & Ors., (2001) 4 SCC 516, this  Court upheld the challenge since the prosecution of the  accused could only be maintained in accordance with the  Extradition Treaty and the Decree of Extradition under  which the accused were extradited by the United States  of America to India. 6.              Thereafter, the case was registered as Sessions  Case No. 27 of 2003 under the Indian Penal Code and  also under the Explosive Substances Act, 1908. The trial  Court, after considering the evidence on record, convicted  accused No.1 (appellant herein) as under: Under Section 420 IPC : to 7 years R.I. and  a fine of Rs.500/-, in default of payment of  fine, to further undergo 6 months S.I.

Under Section 468 IPC : to 7 years R.I. and  a fine of Rs.500/-, in default of payment of  fine, to further undergo 6 months S.I.

Under Section 471 IPC : to 2 years R.I.

Under Section 4 of the Explosive  Substances Act: to 7 years R.I. and a fine of  Rs.500/-, in default of payment of fine, to  further undergo 6 months S.I.

7.              So far as accused No.2 (Suman Sood) is  concerned, she was acquitted by the Court observing that  the prosecution was unable to prove the case beyond  doubt against her. 8.              The appellant, being aggrieved by the order of  conviction and sentence, preferred an appeal in the High  Court of Rajasthan. Likewise, the State of Rajasthan,  being aggrieved by an order of acquittal passed by the  trial Court against Suman Sood instituted an application  for leave to appeal against acquittal. 9.              A Single Judge of the High Court refused to  grant leave against accused No.2 (Suman Sood) holding  that the trial Court was right in recording an order of  acquittal against her and no case had been made out to  grant leave. Leave was accordingly refused. 10.             So far as the appellant is concerned, at the  time of hearing of appeal, it was stated by the learned  counsel for the appellant that maximum sentence  awarded to the appellant was of seven years and all  sentences were ordered to run concurrently. The  appellant had already remained in jail for seven years  and thus he had already undergone the sentence of  imprisonment. He, therefore, did not press the appeal.  The High Court disposed of the appeal and observed;

"At the very outset, the learned counsel  Mr. G.S. Fauzdar for the accused appellant  Daya Singh contended that maximum  sentence in the present case was seven years  and all the sentences were ordered to run  concurrently and appellant has already  completed his sentence of imprisonment of  seven years, therefore, in these circumstances,  he does not press the appeal filed on behalf of  Daya Singh, challenging his order of conviction  and sentence passed by the trial Court as

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mentioned above. In view of the above  statement of the learned counsel for the  appellant Daya Singh @ Vinay Kumar, the SB  Cr. Appeal No. 332/05 filed by Daya Singh is  hereby dismissed as not pressed".

11.             Ms. Kamini Jaiswal, appearing for the  appellant, challenged the order of conviction and  sentence. When her attention was invited by the Court to  the above paragraph, she submitted that she did not  dispute that such a statement was made on behalf of the  accused in the High Court, but submitted that, she be  permitted to argue the appeal, particularly when in other  Special Leave Petitions, leave was granted and appeals  were heard on merits. She also submitted that the  impugned judgment and order of conviction and sentence  are ex facie, illegal, unlawful and liable to be set aside.  She also submitted that considering the Extradition  Treaty of 1931 between United States of America and  Great Britain and the Extradition Order passed by the  American Court on June 11, 1997, the appellant could  not have been prosecuted in Indian Court and the trial of  the appellant was without authority of law. On merits  also, no case had been made out by the prosecution. The  other accused (Suman Sood) was acquitted on the same  evidence and leave to appeal against an order of acquittal  was refused by the High Court. The conviction recorded  by the trial Court against the appellant on the same  evidence is also vitiated and deserves to be set aside. 12.             We would have considered the prayer of the  learned counsel particularly when the case relates to  administration of criminal justice and other matters were  pending. In the facts and circumstances, however, we are  of the considered opinion that no useful purpose would  be served in entering into the merits of the matter. 13.             So far as extradition of the appellant is  concerned, we have already dealt with all contentions  relating to Extradition Treaty as well as Extradition Order  exhaustively in the other matter. There we have noted  that extradition of the appellant was also allowed for trial  of offences punishable under the Explosive Substances  Act, 1908. 14.             In our opinion, therefore, prosecution,  conviction and sentence of the appellant for offences  punishable under Explosive Substances Act, 1908  cannot be said to be without jurisdiction or in excess of  authority of law. The said contention, therefore, has no  force and must be negatived. 15.             So far as the other contention is concerned, we  have dismissed the appeal filed by the appellant against  his conviction for an offence punishable under Section  364A IPC wherein the appellant-accused has been  ordered to undergo imprisonment for life. No useful  purpose, therefore, will be served by entering into the  merits of the matter as the maximum punishment  awarded by the trial Court and confirmed by the High  Court in the present appeal was of seven years for the  offences said to have been committed by the appellant  and the appellant had already undergone the said  sentence. The counsel appearing for the appellant in the  High Court appears to have kept in view the above  position and did not press the appeal. In the light of the  finding recorded by us in the cognate matter, this appeal  is, more or less, academic and has become infructuous in

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view of the following circumstances; (i)    the appellant has been convicted for an  offence punishable under Section 364A,  IPC and has been ordered to undergo  sentence of imprisonment for life and we  have upheld the said order; and (ii)    in the present appeal, the appellant has  challenged his conviction and sentence  whereby he has been ordered to undergo  imprisonment for seven years. The  appellant has remained in jail for seven  years and the said period is over. 16.             For the foregoing reasons, the appeal deserves  to be disposed of and is accordingly disposed of without  entering into merits of the case.