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PROSECUTION CASE

4. To appreciate the controversy raised by the parties, few relevant facts may be stated.

5. It was the case of the prosecution that one Rajendra Mirdha, son of Shri Ram Niwas Mirdha was staying at 81-C, Azad Marg, C-Scheme, Jaipur. He used to regularly wake up at about 6.30/6.45 in the morning and to take walk for about an hour or an hour and a half. According to the prosecution, on February 17, 1995, as usual, he left his residence for a morning walk at about 7.00 a.m. He had hardly completed two or three rounds and when again he reached at the road for further rounds, he saw a white Maruti car and one man came out of it. The said man asked Rajendra Mirdha about the location of House No. 105 or 106. Before he could reply, he was pushed into the car and was taken away. There were three persons in the car having weapons. Rajendra Mirdha did not know why he was kidnapped. After some time, Mr. Mirdha was taken in one house. The kidnappers then told Mr. Mirdha that they were the members of the Khalistan Liberation Force (KLF). One of their members, Devendra Pal Singh Bhullar was arrested at the Indira Gandhi International Airport on the night of January 18-19, 1995 on his return to India after the German authorities declined to grant him asylum and the kidnappers wanted him to be released. It was also stated that the kidnappers had nothing against Rajendra Mirdha personally. It was also the case of the prosecution that at the relevant time, Shri Ram Niwas Mirdha, father of Rajendra Mirdha was heading Joint Parliamentary Committee, being a Chairman of the Committee. According to the kidnappers, Shri Ram Niwas Mirdha was thus an influential person and was in a position to get the said act done by the Government. According to the prosecution, PW 5 Udai Rani Mirdha, wife of Rajendra Mirdha received a telephonic call at about 8.40 a.m. from an unknown person who stated that Rajendra Mirdha had been made hostage and until and unless Devendra Pal Singh Bhullar was freed, they would not release Rajendra Mirdha. He further stated that neither Police should be informed nor the telephone be tapped. The caller also stated that he would again telephone Udai Rani Mirdha. Udai Rani informed the above incident and a call from unknown person to Harendra Mirdha, PW 29, younger brother of Rajendra Mirdha. Harendra Mirdha went to Ashok Nagar Police station and lodged First Information Report (FIR) about abduction of his elder brother Rajendra Mirdha. A case was registered as FIR No. 57 of 1995 (Ex.P-29) under Section 365 IPC and investigation started. During the investigation, according to the prosecution, it was revealed that accused Daya Singh, Suman Sood and other persons were involved in the abduction of Rajendra Mirdha. Necessary steps were, therefore, taken to arrest the accused. Daya Singh and Suman Sood were arrested from Minneapolis Airport, Minnesota, USA on August 3, 1995 while they were illegally trying to cross over to Canada. The United States District Judge, Northern District of Texas, Fort Worth Division allowed the extradition of accused Daya Singh to India inter alia for offences punishable under Sections 343, 346, 353, 364A, 365, 420, 468, 471, 120A and 120B IPC as also for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908. Likewise, extradition of accused Suman Sood was allowed for offences punishable under Sections 343, 346, 353, 364A, 420, 468, 471, 120A and 120B IPC. It appears that after the accused were brought to India, prosecution was launched against them also for offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 ("TADA" for short). Since the order of extradition did not mention trial of offences under TADA, Daya Singh filed a Writ Petition in this Court by invoking Article 32 of the Constitution contending that the prosecution under TADA was without authority, power and jurisdiction and no prosecution could have been launched. This Court, considering the relevant provisions of the Extradition Act, 1962, in the light of the order of extradition held the contention well-founded and allowed the petition holding that no prosecution under TADA could have been instituted. The said decision was reported as Daya Singh & Ors. v. Union of India, (2001) 4 SCC 516 : JT 2001 (5) SCC 31. After the above decision, prosecution for offences under TADA was dropped, the case was transferred from the Designated Court, Ajmer under TADA to the Court of Sessions Judge, Jaipur City which was finally tried and decided by the Additional Sessions Judge (Fast Track), Category No.1, Jaipur and was registered as Sessions Case No. 26 of 2003.

(emphasis supplied)

27. It, therefore, cannot be successfully contended that the appellants-accused could not have been prosecuted and tried for an offence punishable under Section 364A, IPC. The contention of the appellants, therefore, has no substance and must be rejected.

28. On behalf of Suman Sood, one more argument was advanced. It was contended that Extradition Order in her case did not refer to Section 365, IPC but both the Courts convicted her for the said offence under Section 365/120B, IPC which was illegal, unlawful and without authority of law. Her conviction and imposition of sentence for an offence punishable under Section 365 read with Section 120B, IPC, therefore, is liable to be set aside.

29. We find no substance in the said contention as well. It is no doubt true that Section 365, IPC had not been mentioned in the order of extradition. But as already seen earlier, Section 364A, IPC had been included in the decree. Now, it is well-settled that if the accused is charged for a higher offence and on the evidence led by the prosecution, the Court finds that the accused has not committed that offence but is equally satisfied that he has committed a lesser offence, then he can be convicted for such lesser offence. Thus, if A is charged with an offence of committing murder of B, and the Court finds that B has not committed murder as defined in Section 300, IPC but is convinced that B has committed an offence of culpable homicide not amounting to murder (as defined in Section 299, IPC), there is no bar on the Court in convicting B for the said offence and no grievance can be made by B against such conviction.

(emphasis supplied)

34. Now, it cannot be disputed that an offence under Section 365, IPC is a lesser offence than the offence punishable under Section 364A, IPC. Since extradition of Suman Sood was allowed for a crime punishable with higher offence (Section 364A, IPC), her prosecution and trial for a lesser offence (Section 365, IPC) cannot be held to be without authority of law. The contention, therefore, has no force and is hereby rejected.

MERITS