DAYA SINGH LAHORIA v. UNION OF INDIA AND ORS

Citation: [2001] 3 S.C.R. 1

Court: Supreme Court of India

Bench: G.B. PATTANAIK, U.C. BANERJEE

Judgment text

DAYA SINGH LAHORIA v. UNION OF INDIA AND ORS. APRIL 17, 2001 [G. B. PATTANAIK AND U. C. BANERJEE, JJ. ] Extradition Act, 1962 (as amended by Amending Act of 1993) : Section 21-Scope and ambit of-Criminal courts-Jurisdiction of-To try offences not included in extradition judgment-Fugitive criminals- Extradition of-Accused extradited from USA for trial of certain offences . included in the extradition judgment of USA Court-Accused sought to be tried for certain offences including those under TADA-Held: A fugitive brought into India under an Extradition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence- Hence, criminal courts in India have no jurisdiction to try such fugitive for any other offence. Doctrine: Doctrine of Speciality-Applicability of Words and Phrases: "Extradition offence "-Meaning of-In the context ofS2(c) of the Extradition Act, 1962.

The l>etitioner was extradited from USA to India for trial of ce1iain offences included in the judgment of the USA Court. The petitioner was sought to be tried for certain offences, which were not included in the extradition judgment of the USA Court. On behalf of the petitioner it was contended that the Criminal Courts in India have no jmisdiction to try the petitioner in respect of offences which do not form a part of the e:dradition . iud~'ltlent; and, therefore, the FIR and the charge sheet against the l>etitioner which was not included in the extradition judgment of the USA Comi should be quashed. The following question arose before this Court : Whether an accused who is being tried in respect of offences under the El. 1radition Treaty can be hied for another 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? Disposing of the 11etition, the Com1 HELD : 1. 1.

Under the 1993 amendment of Section 21 of the Extradition Act, 1962 a fugitive could be tried for any lesser offence disclosed by the facts proved or even for the offence in respect of which the forei! ,rn 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 the Indian authorities to obtain the 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 11ossihle to try him for any other offence, other than the offence for which the extradition decree has been obtained. [6-D) 1. 2. The doctrine of speciality is yet another established rule of international law relating to extradition. Thus, when a 11erson is extradited for a 11articular c1ime, 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 el. iradition, the fugitive has to be brought to the ~1atus 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 he requested for the latter crime. The Extradition Act, 1962 makes a s11ecifie 1irovision to that effect. In view of Section 21 of the Extradition Act an extrndited 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 011110rtunity to ). · return to the State which surrendered him. [8-G-H] 1. 3.

The doctrine of s11eciality is in fact a corollary to the principles of double criminality, and the aforesaid docttine is premised on the assum11tion that whenever a State uses its formal 1n·ocess to surrender a person to another State for a specific charge, the requesting State shall carry out its intended 1mr110se of11rosecuting or 1mnishing the offender for the offence charged in its request for extradition and none other. [9-A] United States v. Rauscher 1019 US 407, M Chief Bassiouni, referred to. D. S. LAHORIA v. U. O. l. [PATTANAIK, J. ] 3 International Extradition and World Public Order, 0 'Connell International Law and Oppenhiem : International Law, referred to. 2. In view of the aforesaid position in law, both on international law as well as the relevant statute in India, these cases are disposed of with the -conclusion that a fugitive brought into India under an El.

1radition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence and Criminal Comis in India will have no . imisdiction to try such fuf,,ritive for any other offence. [9-G] CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl. ) No. 256 of 2000. (Under Article 32 of the Constitution of India) WITH Special Leave Petition (Crl. ) Nos. 2697-2698 of2000. Mukul Rohtagi, Additional Solicitor General, M. C. Bhandare, Debasis · Misra, Shanif Ahmad, Ch. Shamsuddin Khan, Satya Prakash Sharma, Hemant Shanna, Rajeev Sharma, B. V Balram Dass, P. Parmeshwaran, Jayshree Anand, Addi. General for State of Punjab, G. Sivabalamurugan for Rajeev Kumar + Sharma, R. S. Suri and Sushil Kumar Jain for the appearing parties. The Judgment of the Court was delivered by PATTANAIK, 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 fa. "tradition 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 e::\. 1raditability 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 e>.. iradition 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 Cha_rter 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 an application for issuance ofa Writ ofHabeas 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 Extraditi11n 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 ofthe Extradition Act, 1962. To consolidate and amend the law relating to the extradition offugitive 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 Kingd0111 Extradition Act of 1870, the Fugitive Offenders Act, 1881 and the Indian Extradition Act, 1903. The expression 'e>.. iradition' 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 1'.

ot to be sent out to foreign jurisdiction without strict compliance with Jaw 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 'e>.. iradition offence' has been defined in Section 2 (c) of the Act to mean, in relation to a foreign State, being a treaty s"tate, an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India 0r 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 e>.. iradition offugitive criminals and includes any treaty relating to the extradition offugitive 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 triedfor 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 bas in the process.

The doctrine of speciality is yet another established rule of International Law relating to e"'tradition. 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 comn. 1itted , 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 r-· Indian E"'tradition Act makes a specific provision to that effect. In view of Section 21 ofthe 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. CherifBassiouni - 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 extradite~. 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 la''" did in fact arrive at the same conclusion in the case of United States v. 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 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 to 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 fa. iradition 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. • V. S. S. Petition disposed of.