Supreme Court: Set-Off Under Section 428 CrPC Can't Be Claimed For Detention Undergone For Offence In Foreign Country

Suffice for us to say that the judgment on this issue in Atul Manubhai Parek1 case discusses the earlier two opinions in Raghbir Singh1 case and Najakat Ali Mubarak Ali1 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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 679 of 2015 and 180/2018

Decided On: 11.07.2022

Abu Salem Abdul Kayyum Ansari Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: Sanjay Kishan Kaul, J.

Citation: MANU/SC/0870/2022

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Whether court should extradite an accused to his homeland if criminal prosecutions against him are pending in India?

  The common refrain in all statutes and treaties thus appears to be that if the person, sought to be extradited, is accused of an offence in the requested state, or has been convicted in the requested state, then either the extradition proceedings itself are postponed/ adjourned, or the surrender is postponed until the conviction is undergone, or the criminal proceedings have resulted in a final conclusion/ termination.{Para 30}

1 S. Bedi, Extradition in International Law & Practice, (1991, Discovery Publishing House) Vol.1 [282]

31. A perusal of Section 31(1)(d) of the Act shows that there are two situations that are contemplated within this provision where the fugitive is not to be surrendered by the Union of India. First, if the person is accused of an offence, which is not the offence in respect of which he is sought to be extradited, and secondly if the person is convicted of an offence in India. In either of these cases, until and unless there is a finality to the said criminal proceedings, either by means of a discharge of the accused - by acquittal or due to the complete sentence having been undergone, the surrender cannot be processed. The phrase “or otherwise” appears as a subset of the word discharge, and hence the same would have to be interpreted ejusdem generis and would only be deemed to mean any other form of discharge, which has a finality attached to it. For e.g., discharge by the trial court under Section 227 of the CrPC., the allowing of a mercy petition conclusively discharging the accused, the grant of a pardon, or any other relief where the criminal proceedings against the accused are concluded/terminated, and a final decision has been rendered, which would no longer require the accused’s presence in India. Mere temporary release on bail would not be sufficient.

32. Applying this rationale to the facts of the present case where the Petitioner is an accused in three FIRs, has been granted bail in all the said three FIRs, and has even been permitted to travel abroad in two of the FIRs, the Petitioner may even be able to seek permission to travel abroad in the third FIR. However, as the pendency of all these three FIRs is not disputed and the fact is that the Petitioner is still being tried for the said offences under the three FIRs, it is clear that the criminal proceedings against him have not concluded and he has not been conclusively discharged. The charges which have been levelled against him in the said FIRs are still under investigation, and he has not been acquitted or discharged in the same. Thus the grant of bail or the permission to travel abroad in pending cases/ FIRs would not be covered by the phrase “discharged, whether by acquittal or on expiration of his sentence or otherwise” under Section 31(1)(d) of the Act. Section 31(1)(d) of the Act, restricting the surrender of an accused fugitive squarely applies to the case of the Petitioner as he is still an accused in India, with cases and charges pending to be investigated and determined against him. An order of bail or an order permitting him to travel abroad would not constitute `discharge’ under Section 31(1)(d), and the said prohibition would therefore be applicable.

33. It is the settled position in law, as held in the case of State of West Bengal v Jugal Kishore More, 1969 (1) SCC 440, that the procedure of handing over or surrender of an accused fugitive would be determined by the domestic law or municipal law. Further it has also been recognized by the ld. Supreme Court of India in Bhavesh Jayanti Lakhani v. State of Maharashtra, 2009 (9) SCC 551, while holding that the Extradition Treaty between the United States of America and India is subject to the provisions of the Extradition Act, 1962, observed:

“58. The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail.”

Both these judgments of the ld. Supreme Court have been considered by the Division Bench of this court in Brij Bhushan Bansal (supra).

34. Accordingly, this court is of the opinion that in view of the above position, the request of the Petitioner- accused, for an expedited surrender and extradition, cannot be allowed, until the Petitioner continues to be an accused in the three FIRs lodged against him in Goa, India, and the said cases are pending before the domestic fora.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 1541/2021 & CM APPL. 8482/2021

MILEN IVANOV DAVRANSKI Vs  UNION OF INDIA 

CORAM:

JUSTICE PRATHIBA M. SINGH

Date of decision: 7th April, 2021

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Kerala HC: International Arrest Warrant By Itself Not Sufficient To Extradite A Person To UAE Unless There Is A Written Request

 The contention of the petitioner is that the

Government of Dubai has issued an International Arrest

Warrant in Case No.43177/Penal/2017 by Dubai Court

ordering the arrest of the 8th respondent for pursuing him

locally and internationally. Article 8 of Ext.P3 Extradition

Treaty would show that the request for extradition shall be

made in writing and dispatched through the diplomatic

channels with supporting documents and particulars. The

warrant of arrest is only one of the documents made mention

in Article 8 of the Extradition Treaty. In view of the specific

provisions contained in the Extradition Treaty between the

Government of Republic of India and the United Arab

Emirates, an International Arrest Warrant by itself will not

suffice to arrest an accused and extradite him to UAE. For

extradition, definitely there should be a request for extradition

in writing which should be dispatched through diplomatic

channels. In the absence of such a request in terms of Article

5 of the Extradition Treaty, Ext.P2 International Arrest Warrant

issued by the Government of Dubai would not be sufficient to

apprehend the 8th respondent and extradite him to UAE.

In the circumstances of the case, no orders can be

passed or directions be given to respondents 1 to 7 to

extradite the 8th respondent to UAE for prosecution. No relief

can be granted to the petitioner in the circumstances of the

case. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

WP(C).No.13875 OF 2020(H)

RAKHUL KRISHNAN  VS  UNION OF INDIA

Coram:  MR.JUSTICE N.NAGARESH

Dated this the 21st day of December, 2020

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Whether court can permit accused to return to his country even though there is no extradition treaty between India and that country?

 Undoubtedly, as observed by the learned Revisional Court vide the impugned order dated 30.5.2020 in CR No. 881/2019 there is no extradition treaty between India and the Republic of Kyrgyzstan. However, placed on record is the Treaty between the Republic of India and the Kyrgyz Republic on Mutual Legal Assistance in Criminal Trials with Article 1 thereof relating to the obligation to grant mutual legal assistance with paragraph 1.4 dealing specifically with criminal matters including investigations or proceedings relating to criminal offences concerning taxation, duties, customs and international transfer of capital or payments, including those for perpetuating terrorism. As per Clause 1.6 of this Treaty, assistance that is to be provided mutually between India and the Kyrgyz Republic relate to clause 1.6.8 to making persons in custody and others, including experts, available to evidence or to assist investigations through Clause 1.6.10 taking measures to locate, identify, restrain, seize and confiscate funds meant for the purposes of terrorism, thus as it has been undertaken by the Embassy of the Kyrgyz Republic through its Attache Counsel vide clause 6 of its verified document dated 6.3.2020 to the effect:

"6. In view of the above fact we undertake that under the circumstance M. Aida Askarbekova may get a leave from this Hon'ble Court to travel (to) her home, we shall ensure her presence in India as and when required by the Courts or Custom Department.",

subject to the petitioner No. 1 depositing a sum of Rs. 10,00,000/- in the form of an FDR in the Court of the Chief Metropolitan Magistrate, New Delhi, the release of which amount would be subject to the adjudication of any appeal against the order C. No. VIII (AP) 10/P&I/Adj./346/2019/1594-75 dated 6.7.2020, ORDER-IN-ORIGINAL No. 69/ADJ./2020 if any, filed by the petitioner No. 1, the petitioner No. 1 is allowed to travel to Kyrgyzstan for a period of 45 days to get her child operated with the direction to the petitioner No. 1 to return to India on the 46th day of her leaving India with the request to the Embassy of Kyrgyz Republic in India in Delhi, to ensure that the petitioner no. 1 Ms. Aida Askerbekova, holder of Kyrgyzstan Passport No. AC 3167256 returns back to India on the 46th day from the date when she leaves India to Kyrgyzstan for the operation of her son which she is permitted to go only after the deposit of the sum of Rs. 10,00,000/- in the form of an FDR as directed hereinabove, which on deposit is directed to be converted into an auto renewal mode. Furthermore, in the event of the petitioner no. 1 not returning back on the 46th day of her leaving India to Kyrgyzstan, the said amount of Rs. 10,00,000/- deposited in the form of an FDR as directed hereinabove, would stand forfeited.

Ratio: Court allowed a Kyrgyzstani national who was undergoing trial to visit her country to take care of pressing personal obligations on the basis that even though there was no extradition treaty between India and Republic of Kyrgyzstan, there was indeed a treaty between the countries on mutual legal assistance in criminal trials, the provisions of which could be resorted to ensure the return of the person concerned with the attendant undertaking of the concerned Embassy in this regard.

 IN THE HIGH COURT OF DELHI

Crl. M.C. 1529/2020

Decided On: 31.08.2020

Aida Askerbekova Vs.  Department of Customs

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1642/2020

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Basic concept of doctrine of specialty

 In Day a Singh Lahoria v. Union of India and Ors.:MANU/SC/0260/2001 : (2001) 4 SCC 516, the Supreme Court had explained the 'Doctrine of Speciality' as follows:

"The doctrine of specialty 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 specialty 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 of D.P. O'Connell, the principle of specialty 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."

 IN THE HIGH COURT OF DELHI

W.P. (Crl.) 562/2019 and Crl. M.A. 3920/2019

Decided On: 18.08.2020

Vinay Mittal Vs. Union of India and Ors.

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

Citation: MANU/DE/1573/2020

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Landmark judgment relating to issue red corner notice in matrimonial offence

We have already held above that the Municipal Laws of a country reign supreme in matters of Extradition. It is thus for the State concerned to take a decision in regard to such Notices, keeping in view the Municipal Laws of the country. The High Court was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with. When a person complains of a violation of his Fundamental Right and/or otherwise of his fundamental right he is entitled to the right of judicial review. It ought not to be forgotten here that the dispute between the Appellant and the Respondent No. 6, being essentially a Matrimonial dispute, is a private dispute and no criminal extraditable offence can be made out of the same, in the absence of a specific request for extradition.

143. The High Court, thus, in our opinion, committed a serious error insofar as it failed to take into consideration the provisions of the Act, in the absence of any request having being made by the Govt. of USA to the Executive Government of the Union of India or any authorization made by the latter on its behalf.

144. A fundamental Right of a citizen whenever infringes, the High Courts having regard to their extraordinary power under Article 226 of the Constitution of India as also keeping in view that access to justice is a human right would not turn them away only because a Red Corner Notice was issued. The Superior Courts in criminal cases, thus are entitled to go into the manner in which such Red Corner Notice, if any, is sought to be enforced and/or whether the local police is threatening a citizen of India with arrest although they are not entitled to do so except in terms of the provisions Act as and when applicable.

145. Furthermore, if a violation of any order passed by a civil court is made the ground for issuance of a Red Corner Notice, indisputably, the court will enquire as to whether the same has undergone the tests laid down under Sections 13 and 44A of the Code of civil Procedure.

146. As regards the question of custody, we have, however noticed, hereinabove that although the family court at Bombay for all intent and purposes relying on or on the basis of the order passed by the Massachusetts Court directed custody of the girl in favour of her mother, the Bombay High Court has stayed the operation thereof. The Appellant therefore, must be held to be in lawful custody of his daughter unless any other or further order is passed by a court of competent jurisdiction.

147. Lastly, it is imperative to note that the State does not seek for enforcement of the custody and/ or restrain order passed by the Probate and Family Court, Massachusetts in view of the rigours contained in Sections 13 and 44A of the Code of civil Procedure.

Supreme Court of India

Bhavesh Jayanti Lakhani vs State Of Maharashtra & Ors on 7 August, 2009

Bench: S.B. Sinha, Mukundakam Sharma

Citation: 2009((3))ALT(Cri)472, 2009(3)ALT(Cri)472, II(2009)DMC292SC, 2010GLH(1)1, JT2009(11)SC279, 2009(11)SCALE467, (2009)9SCC551,

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