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2022 (7) TMI 1511
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....e said case, the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. We are faced with a somewhat similar scenario though with certain crucial nuances, which have to be considered. Facts: 2. Abu Salem Abdul Kayyum Ansari has a history-and not a palatable one at all. He has been a part of the crime syndicate as is obvious from the facts of the two criminal appeals before us. Criminal Appeal No. 679/2015 emanates from threatening a party in a civil dispute relating to a property and extracting money, which under threat was conceded by the litigating party, i.e., Jain brothers. On failure to make the payment of some instalments of the threat money, one of the Jain brothers, i.e., Pradeep Jain, was murdered on 07.03.1995. As a result the crime was registered at D.N. Nagar Police Station Under Sections 302, 307, 452, 506(ii) read with Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'), read with Sections 5, 27 of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act') read with Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinaf....
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....e. To complete the period of detention, he was again imprisoned from 12.10.2005 till 10.11.2005 for a month when he was handed over to the Indian authorities. Extradition request and Sovereign assurance by the Government of India: 7. The Government of India through Mr. Omar Abdullah, who was the then Minister of State for External Affairs, submitted a requisition for extradition dated 13.12.2002 to Portugal in nine criminal cases 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, relevant facts of the cases were enclosed in the form of duly sworn affidavits of the concerned police officers along with supporting documents. Subsequently, the Government of India issued a notification Under Section 3(1) of the Extradition Act, 1962 (hereinafter referred to as the 'Extradition Act') applying the provisions of the Extradition Act to Portugal with effect from 13.12.2002. 8. The Government of India further gave a solemn sovereign assurance on 17.12.2002 through the then Deputy Prime Minister, Shri L.K. Advani, to the effect that the Government will ex....
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....l, Lisbon and the said Court vide order dated 14.07.2004 allowed the Appellant's extradition for offences mentioned in the request, except those which are punishable with death or life imprisonment. The Supreme Court of Portugal confirmed the aforesaid order of the Court of Appeal, Lisbon on 27.01.2005 in view of the assurance given by the Government of India that the person extradited would not be visited with death penalty or imprisonment for a term beyond 25 years. The Courts in Portugal granted extradition for the following offences: S.No. Offence Maximum Punishment (i) The offence of criminal conspiracy punishable under Section 120-B IPC Death penalty in the present case (ii) Murder punishable under Section 302 IPC Death Penalty (iii) Attempt to murder punishable under Section 307 IPC Imprisonment for life (iv) Mischief punishable under Section 435 IPC Imprisonment for 7 years (v) Mischief by fire or explosive punishable under Section 436 IPC Imprisonment for life (vi) Offence punishable under Section 3(2) of the TADA Act Death penalty in this case (vii) Offence punishable under Section 3(3) of the TADA Act Life Imprisonment (viii) Offence punish....
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....n trial as well as a prior order dated 18.03.2006 of the Designated Court, Mumbai, where substantive charges were framed against the Appellant for different offences relating to the Indian Penal Code and TADA. In addition, Criminal Appeals Nos. 1142-1143 of 2007 were filed against the order framing charges dated 16.04.2007. A writ petition was also filed seeking quashing of charges and proceedings against him on the ground that the trial for offences for which he has specifically not been extradited is violative of the fundamental rights enshrined Under Article 21 of the Constitution. This was coupled with the Appellant moving an application before the Court of Appeal, Lisbon which was predicated on the violation of the assurance given by India as he was sought to be tried in India in violation of "principle of speciality". 15. The Court of Appeal in Lisbon passed an order dated 18.05.2007 while opining that it did not have the competence to order the devolution of the Appellant, observed that if the alleged violations were confirmed, it could only justify the accountability of the State (India in this case) at an international level, which does not depend on the action of any Por....
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....cts. The Court further opined that Law 144/99 of 31 August does not anticipate any specific consequences for violation of "principle of speciality", however, this did not prevent Portugal from calling for intervention of instances of international jurisdiction, drawing due political conclusions from the case, and reacting through political-diplomatic channels, for which the judgment passed by the Portuguese Courts would be relevant. However, crime punishable Under Section 3(3) of the TADA had not been expressly or implicitly excluded by Portugal in the Appellant's extradition and, thus, the same could be imputed on the Appellant without violation of "principle of speciality" laid down in Article 16 of Law 144/99 of 31 August, which reads as under: Article 16-Rule of Speciality 1. The person who, as a consequence of an act of international cooperation appears in Portugal to participate in a penal procedure as a suspect, Defendant or convicted person cannot be prosecuted, tried, detained or subjected to any other restriction of his freedom for a fact prior to his presence on national territory, other than the one which gives rise to the request for cooperation formulated by a....
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....ttained finality. There rests the story of the extradition proceedings in Portugal. 18. However, the Appellant filed Criminal Appeal Nos. 415-416 of 2012 before the Supreme Court of India challenging the order of the Designated Court, Mumbai dated 08.11.2011, which had dismissed the applications filed by the Appellant for stay of all further proceedings in view of the order dated 14.09.2011 passed by the Court of Appeals, Lisbon treating the extradition order dated 28.03.2003 as having been withdrawn. The abovementioned appeals were still pending when the Central Bureau of Investigation (for short 'CBI') filed an application for clarification/modification of the judgment and order dated 10.09.2010 of the Supreme Court of India and prayed for permission to withdraw certain charges levelled against the Appellant. It was the submission of the CBI that in the interest of comity of courts and united fight at international level against global terrorism, the Government of India was making further efforts through diplomatic talks and the additional charges framed against the Appellant might come as an impediment in furthering such diplomatic talks. The application of the CBI was ....
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....d as a guarantee that no court in India would award the punishment provided by Indian law and the same would, thus, come into play after awarding the punishment by the Designated Court, Mumbai. 20. On the other hand, the Appellant sought to urge that the solemn sovereign assurance given to Portugal was construed as an undertaking that no court in India shall award punishment of death or punishment for a period of more than 25 years and a paramount duty had been cast upon the Designated Court, Mumbai to enforce the solemn sovereign assurance while awarding the punishment. While conceding that Section 34C of the Extradition Act, Section 302 of the Indian Penal Code and Section 3(2)(i) of the TADA are mandatory in character, the plea was that the hands of the Designated Court, Mumbai are tied from awarding punishment for more than 25 years. 21. The Designated Court, Mumbai examined the aforesaid submissions and expressed concerns about serious repercussions if a decision was taken contrary to the letter and spirit of Indian law. At the same time, the spirit of the solemn sovereign assurance given by the Deputy Prime Minister of India and understood by the Supreme Court of Justice, P....
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....at as per Section 428 of the Code of Criminal Procedure, the period of imprisonment undergone by an Accused as an undertrial prisoner during investigation, inquiry or trial of a particular case, irrespective of whether it was in connection to that very case, or another case can be set-off for the period of detention imposed on conviction in that particular case. The Appellant, thus, submitted that he was entitled to the benefit of set off as he was already in custody for a time period in Portugal. 25. On this aspect, the Designated Court, Mumbai opined that the Appellant was not kept in detention till 12.10.2005 exclusively pursuant to the execution of the Red Corner notice by the Interpol and, thus, could not be granted set off for the period for which he was undergoing the sentence awarded to him by the Portuguese Court against the sentence awarded to him in the present case. A set off would amount to granting benefit to the Appellant even for the period for which he was sentenced for commission of offences as per Portuguese law in the Republic of Portugal. 26. The judgment in Allan John Waters v. State of Maharashtra and Anr [2012 SCCOnline Bom 389] sought to be relied upon by....
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.... the permission for extradition on account of breach of the solemn sovereign assurance given to them. 4) The Merits of the controversy. 29. He made a submission, which was recorded, that it may be possible to resolve these appeals if a reasonable stand is taken at least on the first aspect and on the second aspect, also the authorities might take a stand or in the alternative he would endeavour to persuade the Court. We found that a fair stand was taken by the counsel and called upon the Union of India to take a stand on both these aspects. However, the affidavit filed was not found to be satisfactory. We wanted a clear stand on behalf of the Government of India as to whether it stood by the international commitment made by the former Deputy Prime Minister of India and, thus, called upon the Home Secretary to file an affidavit in the case. 30. On 21.04.2022, we recorded a detailed order. We went into the affidavit filed by the Home Secretary, who had emphasised what was only obvious, that it was a dastardly act conducted with pre-meditation in which the Appellant played a very active role, was absconding and brought back to India under the Extradition Act. These powers were sta....
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....ed to the requesting country if the offences committed attract either death penalty or imprisonment for an indefinite period beyond 25 years. The supplementary assurance dated 25.05.2003 envisaged that the Appellant will not be prosecuted for offences other than those for which extradition had been sought. The affidavit submitted by the Home Secretary, Government of India dated 18.04.2022 also stated that the Government of India was bound by its assurance. These solemn assurances were considered by the Court of Appeals, Lisbon in its judgment dated 14.07.2004 and the Supreme Court of Justice, Portugal in its judgment dated 27.01.2005. It was opined that the Rule of traditional estoppel doctrine as well as International Public Law (for instance, with respect to principle of reciprocity) required that the solemn sovereign guarantees provided by sovereign States are respected in future. The consequence of failure to do so gave Portugal the right to timely demand devolution of the person to be extradited through diplomatic or judicial channel. 35. The aforesaid aspect has been kept in mind by the Designated Court, Mumbai in its main judgment dated 07.09.2017, wherein it opined that In....
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....that the assurance, which was given on behalf of the Executive in India was that if the Appellant was extradited by Portugal for trial in India, he would not be visited with death penalty or imprisonment for a term beyond 25 years. To achieve this objective the methodology placed before the Portugal Courts was that Article 72(1) of the Constitution conferred power on the President of India to grant pardon, reprieve, respite or remit punishment or suspend, remit or commute the sentence of any convict person convicted of any offence. This was with the assurance Under Sections 432 and 433 of the Code of Criminal Procedure which conferred the power on the Government to commute the sentence to life imprisonment with terms not exceeding 14 years. It is also the subsequent solemn assurance of the Ambassador of India given on 25.05.2003 that on the Appellant being extradited, he will not be prosecuted for offences other than those for which the extradition was sought and he will not be extradited to any third country. Insofar as the latter assurance is concerned, it is nobody's subsisting case that there is a violation or there can at all be a violation. As far as the first assurance i....
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....ant based on the judgment of this Court in Sriharan (supra) case. 42. However, we are in agreement with the submissions of the learned Counsel for the Appellant and do not accept the contention of the learned ASG that we should not opine on this aspect at present. The affidavit of the Union of India through the Home Secretary is clear, at least, to the effect that they will abide by the assurance given by the Government of India to Portugal. Thus, on completion of the period of 25 years of sentence, in compliance of its commitment to the courts in Portugal, it is required that the Government of India advise the President of India to exercise its powers Under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers Under Sections 432 and 433 of the Code of Criminal Procedure. We do believe that there is a necessity of making this time bound so that it does not result in an unending exercise and, thus, the Government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence. We say so also to respect the very basis ....
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....k Ali (supra): This Court observed that Sections 427 and 428 of the Code of Criminal Procedure are intended to provide amelioration to the prisoner. Under Section 427 of the Code of Criminal Procedure, the sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter it would flow through one stream alone. Even if the sentence in one of those two cases is not imprisonment for life, but only a lesser term, the convergence will take place and post-convergence flow would be through the same channel. In all other cases, it is left to the court to decide whether the sentences in two different convictions should merge into one period or not. Under Section 428 of the Code of Criminal Procedure, if the convict was in prison, for whatever reason, during the stages of investigation, inquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case, the earlier period of detention undergone by him should be counted as part of the sentence imposed on him and it is immaterial if the prisoner was undergoing a sentence of imprisonment in another case also during the said period. iii....
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....een detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. The Court also held that an Accused cannot claim a double benefit Under Section 428 of the Code of Criminal Procedure, i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. This view was also followed in Atul Manubhai Parek v. CBI (2010) 1 SCC 603. 49. In the context of the judgment of this Court in Najakat Ali Mubarak Ali (supra) case, it was submitted by learned ASG that the judgment in Raghbir Singh (supra) case was considered, but not overruled. It was urged before us that there is apparently a misreading of the opinion of Justice Phukan as it aligned with the dissenting opinion of Justice R.P. Sethi and did not concur with Justice K.T. Thomas's opinion, which had opined that any other period, which is not connected with a case cannot be said to be reckonable for set off. It was submitted that these judgments have also been mentioned in Atul Manubhai Parek (supra) case but....
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....scusses the earlier two opinions in Raghbir Singh (supra) case and Najakat Ali Mubarak Ali (supra) case to opine that the Accused cannot claim a double benefit Under Section 428 of the Code of Criminal Procedure. As already stated, the law would have application within the country and does not have anything to do with extra-territorial application where the trial and conviction has taken place for a local offence, i.e. Portugal in this case. 53. Now turning to Allan John Waters (supra) case relied upon by learned Counsel for the Appellant, the factual scenario is quite different from the present case. The Petitioner there was arrested pursuant to a Red Corner notice on 02.07.2003 and remained in custody till 06.09.2004. In this time period, the extradition process was on. Since the detention was in pursuance of a case in India, the benefit of period in detention in the USA was given to him. In fact, to that extent we have followed that principle in the present case by giving the benefit of detention period qua the present case and, thus, treated the date of detention in custody from 12.10.2005. We have ignored the formal detention order passed earlier for the reason that the perio....