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2016 DIGILAW 327 (ALL)

OM PRAKASH SRIVASTAVA @ BABLOO v. STATE OF U. P.

2016-01-25

MANOJ MISRA

body2016
JUDGMENT Hon’ble Manoj Misra, J.—Counter-affidavit has been filed on behalf of the Union of India today, which is taken on record. Learned counsel for the applicant states that since there is no dispute on facts, he does not wish to file rejoinder-affidavit and, therefore, the matter be heard finally. 2. Heard Sri Deepak A. Masih assisted by Ms. Manreet Kaur and Sri Ashok Pandey for the applicant; Sri P.S. Sisodia for the Union of India; Sri Akhilesh Singh, Government Advocate, for the State respondents; and perused the record. 3. By this application, the applicant has prayed for quashing of the order dated 22.11.2013 passed by the Judicial Magistrate-II, Allahabad in Case No. 1334 of 2013 by which the Court below held that there is no legal bar to proceed further against the applicant for offences pertaining to Case Crime No. 08 of 1988, under Section 307 I.P.C. and Case Crime No. 11 of 1988, under Section 25 Arms Act, concerning P.S. Georgetown, Allahabad and after holding as above, fixed a date for the committal proceeding. 4. The brief facts of the case are that the applicant was a fugitive, wanted for various offences committed within the territory of India, but was found and arrested in Singapore. Under the Extradition Arrangement between Republic of India and Singapore, the applicant was extradited by the State of Singapore and was handed over to the Indian Authorities. The warrant for surrender of the fugitive i.e. the applicant read as under : “WARRANT FOR SURRENDER OF FUGITIVE To the Director of Prisons to Mr. Sharad Kumar (Indian Passport No. 0-275309), Mr. Harbhajan Ram (Indian Passport No. 0-317006), and Mr. D.P. Singh (Indian Passport No. 0-222527). The warrant for surrender of the fugitive i.e. the applicant read as under : “WARRANT FOR SURRENDER OF FUGITIVE To the Director of Prisons to Mr. Sharad Kumar (Indian Passport No. 0-275309), Mr. Harbhajan Ram (Indian Passport No. 0-317006), and Mr. D.P. Singh (Indian Passport No. 0-222527). Whereas Om Prakash Srivastava @ Arun Kumar Aggarwal @ Babloo (referred to in this Warrant as the fugitive) who is accused of the following offences : (i) conspiracy to commit murder of one L.D. Arora, an offence punishable under Section 120-B read with Section 302 of the Indian Penal Code, 1860; (ii) murder of one Ram Pratap Singh Chauhan, an offence punishable under Section 302 of the Indian Penal Code, 1860; (iii) conspiracy to commit murder of one Lalit Kumar Suneja, an offence punishable under Section 120-B read with Section 302/34 of the Indian Penal Code, 1860; and (iv) conspiracy to kidnap one Vishwanath Mittal, an offence punishable under Section 120-B read with Section 341, 365, 324 and 307 of the Indian Penal Code alleged to have been committed within the jurisdiction of the Republic of India, was delivered into the custody of you the Director of Prisons by Warrant dated the 11th day of August, 1995, in pursuance of the Extradition Act: NOW, THEREFORE, I, the Minister for Law, in pursuance of the Extradition Act, hereby order : (a) you, the Director of Prisons, to deliver the fugitive into the custody of the said Mr. Sharad Kumar (Indian Passport No. 0-275309), Mr. Harbhajan Ram (Indian Passport No. 0-317006), and Mr. D.P. Singh (Indian Passport No. 0-222627); and (b) you, the said Mr. Sharad Kumar (Indian Passport No. 0-275309), Mr. Harbhajan Ram (Indian Passport No. 0-317006), and Mr. D.P. Singh (Indian Passport No. 0-222627), to receive the fugitive into your custody and to convey him to a place in or within the jurisdiction of the Republic of India and there surrender him to some person appointed to receive him. Given under my hand at Singapore this 30th day of August, 1995. Sd/- (S. Jayakumar) Minister for Law Republic of Singapore” 5. It appears that after the applicant was brought to India, he was also found involved in Case Crime No. 08 of 1988 and Case Crime No. 11 of 1988 both relating to P.S. George Town, District Allahabad. Given under my hand at Singapore this 30th day of August, 1995. Sd/- (S. Jayakumar) Minister for Law Republic of Singapore” 5. It appears that after the applicant was brought to India, he was also found involved in Case Crime No. 08 of 1988 and Case Crime No. 11 of 1988 both relating to P.S. George Town, District Allahabad. Case Crime No. 08 of 1988 related to an offence punishable under Section 307 IPC whereas Case Crime No. 11 of 1988 related to an offence punishable under Section 25 Arms Act. Both these offences relate to the year 1988, which is prior to the date of surrender of the fugitive by the Government of Singapore to the Republic of India. 6. Challenging the jurisdiction of the Indian Courts to proceed further in connection with Case Crime No. 08 of 1988 and Case Crime No. 11 of 1988, an objection was raised on behalf of the applicant that by virtue of Section 21 of the Extradition Act, 1962, the applicant cannot be tried for an offence other than those for which he has been surrendered by the State of Singapore to the Republic of India unless he has been restored or has had an opportunity of returning to the State of Singapore inasmuch as the offences for which he was being sought to be tried were neither disclosed by the facts of those cases on which he was surrendered nor there was anything on record to suggest that consent of the State of Singapore was obtained to proceed against the applicant for those cases as well. 7. The Court below rejected the objection of the applicant by the impugned order dated 22.11.2013 by observing that the State of Singapore had surrendered the applicant unconditionally to the Republic of India and, therefore, there was no jurisdictional limitation on the Indian Courts in trying the applicant for all the offences that were committed by him within the territorial jurisdiction of the Indian Courts. 8. 8. Assailing the order passed by the Court below, it was contended on behalf of the applicant that the order passed by the Court below is in the teeth of the Extradition Act, 1962 as also the judgment of the Apex Court rendered in the case of Daya Singh Lahoria v. Union of India and others, (2001) 4 SCC 516 , wherein, upon interpretation of the provisions of Section 21 of the Extradition Act, the Apex Court had observed 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. 9. Upon consideration of the plea raised by the applicant, this Court vide order dated 26.10.2015 invited response not only from the State and its officers but also from the Union of India. It was specified in the order dated 26.10.2015 that while filing counter-affidavit, the State of U.P. as well as Union of India would take care to address to the following aspects : “(a) Whether the offences pertaining to case crime Nos. It was specified in the order dated 26.10.2015 that while filing counter-affidavit, the State of U.P. as well as Union of India would take care to address to the following aspects : “(a) Whether the offences pertaining to case crime Nos. 08 of 1988; 09 of 1988; 10 of 1988; and 11 of 1988 concerning P.S. George Town, Allahabad are in any way connected with the offences, which find mention in the warrant for surrender of fugitive issued by the Minister for Law, Republic of Singapore; (b) whether the involvement of the applicant in those offences mentioned in point (a) was brought to the notice of Singapore at the time when the extradition was sought; (c) whether there is extradition treaty between India and Singapore or not, if yes, then the terms of treaty should be brought on record; (d) if, there is no extradition treaty then whether there is any extradition arrangement with Singapore Government or not, if yes, what are the terms of such arrangement; (e) whether under the extradition arrangement, the person extradited is surrendered unconditionally to enable the nation to whom the fugitive is surrendered to try him for any offence and not just for those offences for which extradition application has been moved; (f) whether an extradition decree was passed by Singapore Court/Authority in respect of extradition of the present applicant or not, if yes, the same should be brought on record; and (g) whether any consent has been subsequently obtained by the Central Government or other appropriate authority from Singapore for trying the applicant for the offences in question.” 10. Pursuant to the order passed by this Court, on behalf of Union of India Dr. Rajeev Ranjan, Under Secretary (Extradition), CPV Division in the Ministry of External Affairs filed counter-affidavit dated 14.1.2016; whereas on behalf of State of U.P. Sri Jai Prakash, Under Secretary, Home Department, Government of Uttar Pradesh, Lucknow filed his affidavit dated 5.1.2016. Sri K. Sunil Emmanuel, Senior Superintendent of Police, Allahabad also filed his affidavit dated 2.1.2016. 11. With respect to the first query (a) as to whether the offences pertaining to case crime Nos. Sri K. Sunil Emmanuel, Senior Superintendent of Police, Allahabad also filed his affidavit dated 2.1.2016. 11. With respect to the first query (a) as to whether the offences pertaining to case crime Nos. 08 of 1988; 09 of 1988; 10 of 1988; and 11 of 1988 concerning P.S. George Town, Allahabad are in any way connected with the offences, which finds mention in the warrant for surrender of fugitive issued by the Minister for Law, Republic of Singapore, the Senior Superintendent of Police, Allahabad, in paragraph Nos. 7 and 8 of his counter-affidavit dated 2.1.2016 stated as follows : “7. That so far as the query made by this Hon’ble Court, whether the offences pertaining to case crime No. 8 of 1988, 9 of 1988, 10 of 1988 and 11 of 1988 concerning Police Station Georgetown, Allahabad are anyway connected with the offences, which finds mentioned in the warrant of surrender of fugitive issued by the Ministry of Law, Republic of Singapore is concerned, it is most respectfully submitted that the above noted present case are not related to the criminal case in question mentioned in the fugitive warrant issued by the Ministry of Law, Republic of Singapore. 8. That it is most respectfully submitted that the criminal case mentioned in the fugitive warrant against the present applicant have no concern with the Police Station George Town, Allahabad. The fugitive warrant is annexed by the counsel for the petitioner as annexure No. 1 in the application.” 12. In respect of query (b) that is whether the involvement of the applicant in those offences mentioned in query (a) was brought to the notice of Singapore at the time when the extradition was sought, in paragraph 3 of the counter-affidavit filed on behalf of Union of India, it has been stated that a copy of the extradition request is not presently available in the CPV Division, therefore, as per the record available in the CPV Division, the Ministry is not aware of the offences pertaining to case crime Nos. 8/1988; 9/1988; 10/1988 and 11/1988 concerning police station George Town, Allahabad. Further, in paragraph 5 of the counter-affidavit filed on behalf of Union of India, it has been stated as follows : “The Ministry of Home Affairs vide their letter No. 25015/41/2015-LC dated 15.12.2015 have examined the matter in consultation with Central Bureau of Investigation (CBI) (Interpol), New Delhi. 8/1988; 9/1988; 10/1988 and 11/1988 concerning police station George Town, Allahabad. Further, in paragraph 5 of the counter-affidavit filed on behalf of Union of India, it has been stated as follows : “The Ministry of Home Affairs vide their letter No. 25015/41/2015-LC dated 15.12.2015 have examined the matter in consultation with Central Bureau of Investigation (CBI) (Interpol), New Delhi. In the letter it is stated that: (a) the fugitive Om Prakash Srivastava @ Babloo was extradited to India in the year 1995 from Singapore in following cases : (i) RC. 10(S)/93/SIU.V/CBI/SIC.II/New Delhi dated 13.7.1993 for conspiracy to commit murder of one L.D. Arora under Section 120-B r/w 302 IPC. (ii) Crime No. 361/88 dated 24.7.1988 P.S. Naka, Lucknow for the murder of one Ram Pratap Singh Chauhan under Section 302 IPC. (iii) FIR No. 258/92 dated 2.8.1992 P.S. Sakarpur, New Delhi for conspiracy to commit murder of one Lalit Kumar Suneja under Section 120-B r/w 302/34 IPC. (iv) FIR No. 251/94 dated 21.6.1994 P.S. Cuff Parade Bombay for conspiracy to kidnap one Vishwa Nath Mittal under Section 341, 365, 324 & 307 I.P.C. (b) that the offences mentioned in the letter dated 4.12.2015 of Secretary (Home), Government of Uttar Pradesh are different from the cases in which accused Om Prakash Srivastava was extradited from Singapore. A copy of the MHA letter No. 25015/41/2015-LC dated 15.12.2015 is placed at Annexure -1.” 13. With respect to query (c) that is whether there is extradition treaty between India and Singapore or not and, if so, its terms; and query (d) that if there is no extradition treaty then whether there is any extradition arrangement with Singapore Government or not, the reply on behalf of the Union of India, in paragraph 6 of the counter-affidavit, states as follows : “6. That regarding query (c) and (d) raised by the Hon’ble High Court, it is stated that there is no Extradition Treaty between India and Singapore. However, there is an Extradition Arrangement between India and Singapore by virtue of which a notification was issued in 1972 under Section 3 of the Extradition Act, 1962, extending the provisions of the Extradition Act with respect to Singapore. This is a recognition of reciprocal arrangement between India and Singapore and it is governed in accordance with the provisions of the Extradition Act, 1962.” 14. This is a recognition of reciprocal arrangement between India and Singapore and it is governed in accordance with the provisions of the Extradition Act, 1962.” 14. In respect of query (e) that is whether under the extradition arrangement, the person extradited is surrendered unconditionally to enable the nation to whom the fugitive is surrendered to try him for any offence and not just those offences for which extradition application has been moved, the reply on behalf of Union of India, in paragraph 7 of its counter-affidavit, states as follows : “7. That regarding query (e) raised by the Hon’ble High Court, it is stated that the Extradition is governed in accordance with the provisions of Extradition Act, 1962. As per Section 21 of Extradition Act, 1962, which provides for Rule of Specialty, a fugitive criminal upon extradition cannot be tried in India for an offence other than- (a) the extradition offences 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 would not be lawfully made; or (c) the offence in respect of which the foreign State has given its consent.” 15. In respect of query (f) that is whether an extradition decree was passed by Singapore Court/Authority in respect of extradition of the present applicant or not, there is no specific reply in any of the counter-affidavits that have been filed. However, it would not make a material difference as the warrant for surrender itself details the offences for which the fugitive was extradited to the Republic of India. 16. In respect of query (g) that is whether any consent has been subsequently obtained by the Central Government or other appropriate authority from Singapore for trying the applicant for the offences in question, in paragraph 8 of the counter-affidavit filed on behalf of the Union of India, it has been stated as follows : “8. That regarding the query raised by the Hon’ble Court at (g), it is stated that as per the records available in the CPV Division, Ministry of External Affairs, do not indicate any request having been made to the Ministry for seeking consent of Singapore for any offences/cases, after the extradition of the accused to India.” 17. That regarding the query raised by the Hon’ble Court at (g), it is stated that as per the records available in the CPV Division, Ministry of External Affairs, do not indicate any request having been made to the Ministry for seeking consent of Singapore for any offences/cases, after the extradition of the accused to India.” 17. From the affidavits exchanged by the parties following position emerges: (a) There is no extradition treaty between Republic of India and Singapore though there is an extradition arrangement and by virtue of notification issued under Section 3 of the Extradition Act, 1962, the provisions of the Extradition Act have been extended with respect to Singapore meaning thereby that the provisions of Section 21 of the Extradition Act, 1962 would ipso facto be applicable in respect of any fugitive extradited by Singapore to the Republic of India. (b) The applicant was not extradited to India in connection with offences pertaining to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, District Allahabad. (c) The offences pertaining to case crime numbers 08 and 11 of 1988, P.S. George Town, Allahabad are in no way connected with the offences for which the applicant was surrendered by the State of Singapore to the Republic of India. (d) There is no material on record to show that either any consent of the State of Singapore was subsequently sought or the same was given for trial of the applicant in respect of offences pertaining to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, District Allahabad. Further, it has come on record that since the year 1995 that is the year when the applicant was extradited by the State of Singapore to Republic of India, the applicant had been languishing in jail in India and there is nothing on record to suggest that the applicant has been restored or has had an opportunity of returning to Singapore. 18. Section 21 of the Extradition Act, 1962 provides as follows : “21. 18. Section 21 of the Extradition Act, 1962 provides as follows : “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.” 19. A perusal of Section 21 of the Extradition Act, the applicability of which is admitted to the parties, discloses that it puts an embargo on the Courts in India to try an accused surrendered or returned by a foreign State for an offence other than the extradition offence in relation to which he was surrendered or returned, until such accused has been restored or has had an opportunity of returning to that State. The exceptions to the above principle are carved out in clause (b) and clause (c) of Section 21. According to clause (b), the accused can be tried for 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. Clause (c) further enables the State to proceed against such an accused for the offence in respect of which the foreign State has given its consent. The above view is in consonance with the observations of the Apex Court in the case of Daya Singh Lahoria v. Union of India and others (supra) in which the Apex Court had the occasion to deal with the import of Section 21 of the Extradition Act, 1962. The above view is in consonance with the observations of the Apex Court in the case of Daya Singh Lahoria v. Union of India and others (supra) in which the Apex Court had the occasion to deal with the import of Section 21 of the Extradition Act, 1962. After examining the matter at length, the Apex Court observed : “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.” 20. In the instant case, it is not in dispute that the applicant was surrendered not for the offences pertaining to Case Crime Nos. 08 of 1988 and 11 of 1988, P.S. Georgetown, Allahabad therefore it has to be seen whether the case of the applicant falls within any of those exceptions mentioned in Section 21 of the Extradition Act, so as to enable the Courts in India to assume jurisdiction to try the applicant for those offences. 21. From the material on record it is not established that any consent of the State of Singapore was obtained for trying the applicant for the offences pertaining to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, Allahabad therefore the exception envisaged by clause (c) of Section 21 of the Extradition Act would not come into play. What now remains to be examined is whether the prosecution can be saved by the exception contained in clause (b) of Section 21 of the Extradition Act or not. 22. 08 and 11 of 1988, P.S. George Town, Allahabad therefore the exception envisaged by clause (c) of Section 21 of the Extradition Act would not come into play. What now remains to be examined is whether the prosecution can be saved by the exception contained in clause (b) of Section 21 of the Extradition Act or not. 22. While interpreting the import of the exception contained in clause (b) of Section 21 of the Extradition Act, 1962, the Apex Court in paragraph 66 of its judgment in the case of Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, (2011) 11 SCC 214 , observed as follows: 66. “Lesser offence” means an offence which is made out from the proved facts and provides lesser punishment, as compared to the offences for which the fugitive has been extradited. The offence has to be an extradition offence, as defined under Section 2(c)(ii) of the Act i.e. 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. The lesser offence cannot be equated with the term “minor offence” as mentioned in Section 222 of the Code of Criminal Procedure. The legislature has deliberately used the word “lesser” in Section 21(b) of the Extradition Act instead of the word “minor”. Thus, the punishment provided for the offence is relevant and not the ingredients for the purposes of interpretation of the term “lesser offence”. The above position has further been clarified in paragraphs 88 and 89 of the judgment in Abu Salem’s case (supra), which read as under: “88. There are two ways in which to describe a lesser crime. Either every single element of a lesser crime should be component of the greater crime on the basis of their statutory definitions; or the allegations of the larger crime in the indictment should include all the factual details of the lesser crime. [See “Submission of Lesser Crimes”, Columbia Law Review, Vol. 56(6), 1956 pp. 888-902, at 888-90.] 89. Section 21(b) of the Act seems to embody the latter of these two principles. This means that a crime which can be framed from out of the factual averments themselves (i.e. evidence submitted) before the requested State at the time of extradition, can be the one upon which the fugitive can be tried. 56(6), 1956 pp. 888-902, at 888-90.] 89. Section 21(b) of the Act seems to embody the latter of these two principles. This means that a crime which can be framed from out of the factual averments themselves (i.e. evidence submitted) before the requested State at the time of extradition, can be the one upon which the fugitive can be tried. A lesser crime can be a cognate crime, in that it shares its roots with the primary crime, even though it may be independent of it.” 23. From above it is clear that for the applicability of exception contained in clause (b) it is imperative that the lesser offence must be disclosed from the same set of facts/evidences submitted upon which the surrender of the fugitive or his return has been obtained. In the instant case, it is not in dispute that offences pertaining to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, Allahabad are distinct and in no way connected with the facts of those offences for which the applicant has been surrendered by the State of Singapore to the Republic of India. Therefore, the exception contemplated by clause (b) of Section 21 of the Extradition Act would not come into play to save the prosecution of the applicant in reference to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, District Allahabad. 24. Therefore, the exception contemplated by clause (b) of Section 21 of the Extradition Act would not come into play to save the prosecution of the applicant in reference to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, District Allahabad. 24. Considering that the proceedings of Case Crime No. 08 of 1988 and 11 of 1988, P.S. Georgetown, Allahabad do not relate to the offences in relation to which the applicant was surrendered or returned to India as also the fact that they relate to a period prior to the date on which the applicant was surrendered by the State of Singapore to the Republic of India and the said criminal cases are distinct from the cases, on the facts of which, the applicant was surrendered by the State of Singapore to the Republic of India and keeping in mind that there is no consent of the foreign State for proceeding against the applicant in respect of the aforesaid two cases, this Court is of the view that the proceeding against the applicant in respect of Case Crime No. 08 of 1988, under Section 307 I.P.C., and Case Crime No. 11 of 1988, under Section 25 Arms Act, P.S. George Town, Allahabad is hit by the provisions of Section 21 of the Extradition Act, 1962 and, therefore, it cannot be permitted to continue. 25. In view of the above, the application is allowed. The order dated 22.11.2013 passed by the Judicial Magistrate-II, Allahabad in Case No. 1334 of 2013 is hereby quashed to the extent it relates to Case Crime Nos. 08 and 11 of 1988, P.S. George Town, District Allahabad.