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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 and Ors. v. Union of India . 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.

20. Article 14 of the Treaty expressly stated that His Britannic Majesty acceded to the Treaty on behalf of any of his Dominions named in the Treaty. It, inter alia included India.

21. The Extradition Treaty of 1931 continues to hold the field. In Thirad v. Ferrandina 355 Fred Supp 1155, the Government of India sought the extradition of J, an Indian citizen and a resident alien in the USA. The allegation against J was that while serving in Indian Navy, he embezzled huge sum of money. Extradition of J was, therefore, demanded. J challenged the action on the ground that 1931 Treaty was between USA and Great Britain when India was a Dominion of Great Britain. In 1950, India became Republican State and the Treaty which was as British-India did not survive. The contention, however, was negatived and extradition of J was granted.

25. In fact, in the light of the order of extradition of Daya Singh for the offences specified in the extradition decree, a contention was raised by him in this Court that he could not be prosecuted for offences punishable under TADA, which contention had been upheld by this Court in Daya Singh.

26. In the operative part, the Court stated;

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 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.

30. The same principle applies to extradition cases. Section 21 of the Extradition Act, 1962 as originally enacted read thus;

Section 21: Accused or convicted person surrendered or returned by foreign State or Commonwealth country not to be tried for 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 based.