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CASE NO.: Writ Petition (crl.) 256  of  2000

PETITIONER: DAYA  SINGH LAHORIA

       Vs.

RESPONDENT: UNION OF INDIA  AND ORS.

DATE OF JUDGMENT:       17/04/2001

BENCH: G.B. Pattanaik & U.C. Banerjee

JUDGMENT:

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

JUDGMENT

PATTANAIK,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The Writ Petition and the Special Leave Petitions raised the common question, and as such were heard together and are disposed  of by this common judgment.  The grievance of  the petitioner Daya Singh Lahoria, in the Writ Petition is, that the  Criminal Courts in the country have no jurisdiction  to try  in respect of offences which do not form a part of  the extradition  judgment by virtue of which the petitioner  has been  brought  to this country and he can be tried only  for the  offences  mentioned  in the  Extradition  Decree.   The petitioner  has  also  prayed for quashing of  the  FIR  and charge  sheet  against  him which are not  included  in  the extradition judgment of the USA Court.  It appears, that the United  States District of Texas Fort Worth Division  issued the  judgment  of certification of extraditability  and  the said  decree  certifies to sustain under Extradition  Treaty between  the  United  States  and  the  United  Kingdom  and Northern  Ireland  with the Government of Republic of  India and  specifies the offences for which the accused, mentioned in  the  extradition  order  could  be  tried.   It  is  the contention of the petitioner that he cannot be tried for the offences   other   than  the   offences  mentioned  in   the extradition  order  as  that  would be  a  contravention  of Section   21  of  the  Extradition   Act  as  well  as   the contravention of the provisions of the International Law and the very Charter of Extradition Treaty.

   The  Special Leave Applications are directed against the order of Rajasthan High Court wherein the High Court refused to  entertain  a  Habeas  Corpus  Petition  and  decide  the question  as  to  the jurisdiction of the  Designated  Court under  the  provisions  of   the  Terrorist  and  Disruptive Activities  (Prevention)  Act, 1987, on the ground  that  an objection  to  the  said jurisdiction could  be  made  under Section  18 of the Act before the very Designated Court  and

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an application for issuance of a Writ of Habeas Corpus would not lie.  The question for consideration in the said Special Leave  Petitions,  therefore, is whether an accused, who  is being  tried  in respect of offences under  the  Extradition Treaty  can  be tried for any other offence which  does  not form  a part of the decree in view of the specific provision contained in Section 21 of the Extradition Act, 1962.

   To  consolidate  and  amend  the  law  relating  to  the extradition of fugitive criminals and to provide for matters connected  therewith, or incidental thereto, the Extradition Act of 1962 has been enacted.  Prior to the enactment of the aforesaid  law of extradition applicable to India was  found scattered in the United Kingdom Extradition Act of 1870, the Fugitive Offenders Act, 1881 and the Indian Extradition Act, 1903.   The expression extradition means, surrender by one State  to  another of a person desired to be dealt with  for crimes   of  which  he  has   been  accused  and  which  are justiciable  in the Courts of the other States.  The  rights of  a  citizen  not to be sent out to  foreign  jurisdiction without  strict compliance with law relating to  extradition is  a valuable right.  This Extradition Act is a special law dealing  with criminals and accused of certain crimes and it prescribes the procedure for trial as well as the embargo in certain contingencies.  The expression extradition offence has  been  defined in Section 2 (c) of the Act to  mean,  in relation  to  a  foreign  State, being a  treaty  State,  an offence  punishable with imprisonment for a term which shall not  be  less than one year under the laws of India or of  a foreign  State  and  includes  a  composite  offence.    The expression  extradition Treaty has been defined in Section 2(d)  to  mean, a treaty (agreement or arrangement) made  by India  with  a foreign State relating to the extradition  of fugitive  criminals and includes any treaty relating to  the extradition  of fugitive criminals made before the 15th  day of August, 1947, which extends to, and is binding on, India. The  expression  foreign State is defined in Section  2(e) includes   any  State  outside   India  and  includes  every constituent  part,  colony  or  dependency  of  such  State. Section  21  of  the  Extradition Act is  relevant  for  our purpose.

   Section  21, as it stood in the Extradition Act of  1962 is extracted hereinbelow in extenso:

   Section 21:  Accused or convicted person surrendered or returned  by foreign State or Commonwealth country not to be tried  for previous offence:- Whenever any person accused or convicted  of an offence, which if committed in India, would be  an extradition offence, is surrendered or returned by  a foreign  State  or Commonwealth country, that  person  shall not, until he has been restored or has had an opportunity of returning to that State or country, be tried in India for an offence  committed  prior to the surrender or return,  other than  the  extradition offence proved by the facts on  which the surrender or return is based.

   This  section  is  based  on Section 19  of  the  United Kingdom Extradition Act, 1870.  The original Act of 1962 was amended  by  Act  66  of  1993.    Under  the  1962  Act,  a distinction   had  been   maintained  between   Commonwealth countries  and  foreign States and the foreign  States  were considered   as  treaty  States.    The   extradition   with Commonwealth  countries  were  separately  governed  by  the Second  Schedule  of the Act and the Central Government  was

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given   power   under  Chapter   III  to  conclude   special extradition   arrangements  with   respect  to  Commonwealth countries  only.   The amended Act of 1993 enables India  to conclude  extradition  treaty with foreign State,  including the   Commonwealth   countries,    without   treating   them structurally  different.  It provides for  extra-territorial jurisdiction  over  foreigners for crimes committed by  them outside  India and it incorporates composite offences in the definition  of  extradition offence.  It excludes  political offences  as  a  defence in cases of offences of  a  serious nature  and  it covers extradition requests on the basis  of international  convention.   It  also  enables  the  Central Government  to  make  and receive requests  for  provisional arrest  of fugitives in urgent cases pending the receipt  of the  formal extradition request.  Section 21 of 1962 Act was substituted by Act 66 of 1993, as follows:

   Section 21  Accused or convicted person surrendered or returned  by  foreign  State  not to be  tried  for  certain offences.   - Whenever any person accused or convicted of an offence,   which,  if  committed  in   India  would  be   an extradition offence, is surrendered or returned by a foreign State,  such person shall not, until he has been restored or has  had an opportunity of returning to that State, be tried in India for an offence other than.

   (a)  the extradition offence in relation to which he was surrendered or returned;  or

   (b) any lesser offence disclosed by the facts proved for the  purposes of securing his surrender or return other than an  offence in relation to which an order for his  surrender or return could not be lawfully made;  or

   (c)  the  offence in respect of which the foreign  State has given its consent.

   The   provision   of  the   aforesaid   Section   places restrictions  on  the trial of the person extradited and  it operates  as a bar to the trial of the fugitive criminal for any  other  offence  until the condition of  restoration  or opportunity  to return is satisfied.  Under the amended  Act of 1993, therefore, a fugitive could be tried for any lesser offence,  disclosed  by  the facts proved or  even  for  the offence  in respect of which the foreign State has given its consent.   It thus, enables to try the fugitive for a lesser offence, without restoring him to the State or for any other offence, if the State concerned gives its consent.  In other words,  it may be open for our authorities to obtain consent of  the  foreign  State to try the fugitive  for  any  other offence  for  which  the extradition decree might  not  have mentioned,  but  without obtaining such consent, it  is  not possible  to  try  for  any other offence,  other  than  the offence  for which the extradition decree has been obtained. The  Extradition  Treaty contains several articles of  which Article  7 is rather significant for our purpose, which  may be quoted hereinbelow in extenso:-

   Article 7.  A person surrendered can in no case be kept in  custody or be brought to trial in the territories of the High  Contracting Party to whom the surrender has been  made for  any other crime or offence, or on account of any  other matters,  than  those for which the extradition  shall  have taken  place,  until  he has been restored, or  has  had  an

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opportunity  of  returning, to the territories of  the  High Contracting Party by whom he has been surrendered.

   This  stipulation  does not apply to crimes or  offences committed after the extradition.

   The  aforesaid Article unequivocally indicates that  the person  concerned  cannot  be tried for any other  crime  or offence  than  those  for which the extradition  shall  have taken  place  until  he  has been restored or  has  had  the opportunity  of  returning  to the territories of  the  High Contracting  Party  by  whom he has been  surrendered.   The provisions  of  Section  21  of the Extradition  Act  is  in consonance  with  the aforesaid Article of  the  Extradition Treaty.   In  the modern world interdependence of States  is natural  and  essential and consequently the  importance  of extradition and problems of extradition would arise.  It has become  so easy of a fugitive to escape from the law of  the land  and  if  law  has to take its course  and  pursue  the offender, extradition proceedings are a necessary instrument to  secure  the return of the offender to the altar of  law. Laxity  in  the extradition efforts would only increase  the offenders  appetite  to  commit  crimes  with  impunity  by fleeing  to  a foreign territory where he cannot be  touched except  through extradition.  There is a natural tendency on the  part of the State of asylum to facilitate the surrender of  the fugitive.  But extradition of a fugitive is not that smooth as one thinks.  The liberty of an individual being an inalienable  right,  many  States, particularly  the  United States  of America and the United Kingdom, prescribe that no fugitive will be extradited in the absence of an extradition treaty between the two countries.  But extradition is always necessary  and  no fugitive should be given  the  impression that  he can commit an offence and flee from the country  by taking  shelter  in  a foreign country.  At  the  same  time surrender  must  be  preceded by proper precautions  to  the effect  that  nobody  is denied the due process of  law  and nobody  is being made a victim of political  vindictiveness. Extradition  is practised among nations essentially for  two reasons.  Firstly, to warn criminals that they cannot escape punishment  by fleeing to a foreign territory and  secondly, it  is  in  the  interest of the territorial  State  that  a criminal  who  has fled from another territory after  having committed  crime,  and  taken refuge within  its  territory, should not be left free, because he may again commit a crime and  run  away to some other State.  Extradition is a  great step towards international cooperation in the suppression of crime.   It  is for this reason the Congress of  Comparative Law held at Hague in 1932, resolved that States should treat extradition   as   an  obligation    resulting   from   the international  solidarity  in the fight against  crime.  In Oppenhiem,  International  Law the expression is defined  as Extradition  is  a  delivery of an accused or  a  convicted individual  to the State on whose territory he is alleged to have  committed or to have been convicted of a crime, by the State  on  whose territory the alleged criminal happens  for the  time  to  be.  There is no rule of  international  law which imposes any duty on a State to surrender a fugitive in the  absence of extradition treaty.  The law of extradition, therefore, is a dual law.  It is obtensibly a municipal law; yet  it is a part of international law also, inasmuch as  it governs  the relations between two sovereign States over the question  of whether or not a given person should be  handed over  by  one  sovereign State to another  sovereign  State. This question is decided by national courts but on the basis

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of  international  commitments  as  well  as  the  rules  of international  law  relating  to the subject.  A  number  of attempts  have been made, to conclude a convention governing extradition  requests  among  nations.    The  Pan  American Conference  of 1902 produced a treaty of extradition  signed by  twelve  States  but it was not ratified.   In  1933  the Seventh  Pan  American Conference concluded  an  Extradition Convention  which  was  ratified  by  a  number  of  States, including   United   States  of   America  but  the   League Codification  Committee  had doubted the feasibility of  the general  convention on extradition.  In 1935, the Havard Law School  brought out a draft convention on the subject.   The International  Law  Association  has also  considered  legal problems  relating to extradition in the conference held  at Warsaw.   In  1928 the draft convention on  extradition  was approved  but  nothing  has  materialised  in  concluding  a universal  convention  on extradition.  Notwithstanding  the fact  that most States earnestly believe in the efficacy and usefulness  of extradition proceedings which each State  has to  resort  to at one time or the other,  The  Asian-African Legal  Consultative Body also prepared a draft convention on extradition at its meeting in Colombo in 1960.  In September 1965, the Commonwealth Conference of Law Ministers and Chief Justices  expressed the desire for a Commonwealth Convention on  Extradition.   In  March   1966,  the  Commonwealth  Law Ministers  reached  an  agreement in London for  the  speedy extradition  of  fugitives between  Commonwealth  Countries. But  in  the absence of any extradition convention,  nations have  resorted  to bilateral extradition treaties  by  which they have agreed between themselves to surrender the accused or  convict  to the requesting State in case such  a  person comes  under  the  purview of the given  treaty.   Bilateral treaties  at  the  international level are  supplemented  by national  laws  or  legislation  at  the  municipal   level. Extradition  treaties between nations, draft conventions and national   laws  and  practices   have  revealed  that  some customary  rules of international law have developed in  the process.    The  doctrine  of   speciality  is  yet  another established   rule   of  international   law   relating   to extradition.   Thus,  when  a  person is  extradited  for  a particular  crime, he can be tried for only that crime.   If the  requesting  State  deems  it   desirable  to  try   the extradited  fugitive  for some other crime committed  before his  extradition,  the  fugitive has to be  brought  to  the status  quo  ante, in the sense that he has to  be  returned first to the State which granted the extradition and a fresh extradition  has to be requested for the latter crime.   The Indian  Extradition  Act makes a specific provision to  that effect.  In view of Section 21 of the Indian Extradition Act of  1962 an extradited fugitive cannot be tried in India for any  offence  other  than  the one for  which  he  has  been extradited  unless  he  has been restored to or has  had  an opportunity  to  return to the State which surrendered  him. The  doctrine  of speciality is in fact a corollary  to  the principles of double criminality, and the aforesaid doctrine is premised on the assumption that whenever a State uses its formal  process to surrender a person to another state for a specific  charge,  the requesting State shall carry out  its intended  purpose  of prosecuting or punishing the  offender for  the offence charged in its request for extradition  and none  other.   (see  M.Cherif   Bassiouni     International Extradition   and   World  Public   Order).   In  the   book International  Law  by  D.P.  OCONNELL,  the  principle  of Speciality has been described thus;

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   According to this principle the State to which a person has  been  extradited  may not, without the consent  of  the requisitioned  State,  try a person extradited save for  the offence  for  which  he was  extradited.   Many  extradition treaties  embody this rule, and the question arises  whether it is one of international law or not.

   The  United States Supreme Court, while not placing  the rule  on the plane of international law, did in fact  arrive at  the  same  conclusion in the case of United  States  vs. Rauscher    1019  US  407.  The Supreme  Court  denied  the jurisdiction  of the trial court even though the Treaty  did not stipulate that there should be no trial and held :-

   The  weight  of  authority and sound principle  are  in favour of the proposition that a person who has been brought within   the  jurisdiction  of  the   court  by  virtue   of proceedings  under  an extradition treaty can only be  tried for one of the offenses described in that treaty and for the offense  with which he is charged in the proceedings for his extradition,  until  a reasonable time and opportunity  have been given him, after his release or trial upon such charge, to  return  to  the country from whose asylum  he  had  been forcibly taken under those proceedings.

   In  view  of  the  aforesaid position in  law,  both  on international  law  as well as the relevant statute in  this country,  we dispose of these cases with the conclusion that a  fugitive  brought into this country under an  Extradition Decree  can be tried only for the offences mentioned in  the Extradition Decree and for no other offence and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence.  This Writ Petition and

   Special Leave Petitions are disposed of accordingly.

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