Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2010)

It is the Indian authority on the rule of speciality in extradition, and on how far a receiving State may go beyond the offences named in the extradition decree. It also shows the role of a sovereign assurance given by the requesting State, and the interaction of a multilateral convention with a bilateral arrangement founded on reciprocity.

The appellant was extradited from Portugal to India to face trial in the Bombay bomb blast case of 1993. The Supreme Court of Justice of Portugal granted extradition for the offences set out in paragraph 1 of its order of 27 January 2005. By a Gazette Notification of 13 December 2002 the Government of India applied all the provisions of the Extradition Act 1962 to the extradition of the appellant, except those in Chapter III. On 25 May 2003 the Indian Ambassador gave a solemn sovereign assurance to the Government of Portugal that the appellant would not be prosecuted for offences other than those for which extradition was sought, and would not be re-extradited to a third country.

Before the Designated Court under the 1987 Act charges were framed on 18 March 2006 and 16 April 2007 under sections 120B, 302, 307, 387 and 382 of the Penal Code and several provisions of the 1987 Act, and the appellant's trial was separated from the main trial. The appellant's case was that the criminal courts had no jurisdiction to try offences not forming part of the extradition judgment, and he sought certiorari, mandamus and prohibition.

May a person extradited for specified offences be tried in India for offences not named in the extradition decree, without breaching the rule of speciality?

Yes, within limits. Under section 21 of the Extradition Act the appellant may be tried for the offences for which he was extradited, and in addition for lesser offences disclosed by the facts proved for the purpose of securing his surrender. There was no violation of the rule of speciality or of the sovereign assurance.

What section 21 permits. A bare reading shows that the appellant can be tried for the offences for which he has been extradited. Beyond that, he "can also be tried for lesser offence/offences in view of Section 21 of the Extradition Act disclosed by the facts proved for the purposes of securing his surrender."

What a lesser offence is. The Court gave the definition that examiners want. "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." It must still be an extradition offence as defined in section 2(c)(ii), that is, one punishable with imprisonment for a term of not less than one year under the laws of India or of the foreign State.

Lesser is not minor. The distinction is the fine point of the case. "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." The consequence follows: "Thus, the punishment provided for the offence is relevant and not the ingredients for the purposes of interpretation of the term lesser offence."

So the test for a lesser offence is a sentence test, not an ingredients test. A minor offence under section 222 is one whose ingredients are a subset of the charged offence. A lesser offence under section 21(b) is simply one carrying a smaller punishment and arising from the proved facts.

The Convention argument. The appellant said he could be tried only for offences covered by Article 2(1) of the Convention on Terrorist Bombings. The Court held this misconceived. He was extradited not only under the Convention but also "in the light of the principle of reciprocity made applicable through the application of the Extradition Act to the Republic of Portugal." Further, Article 2 as a whole deals not only with those who commit the substantive offences but also with conspirators and those under constructive liability by virtue of Article 2(3), a point the Portuguese Supreme Court of Justice had itself noted. And Article 1(3)(d) defines an explosive or lethal device as a weapon or device designed or capable of causing death, serious bodily injury or substantial material damage through its release; AK-56 rifles are weapons capable of causing death and serious bodily injury through the release of cartridges, and the charges concerned possession, transportation and distribution of such rifles, their ammunition and hand grenades smuggled into the country in pursuance of a criminal conspiracy.

The sovereign assurance. The assurance was that the appellant would not be prosecuted for offences other than those for which his extradition had been sought and would not be re-extradited. The Court held there had been no violation. The Gazette Notification had applied the Extradition Act to Portugal save Chapter III; the Court of Appeals in Lisbon had recognised the principle of reciprocity and the applicability of the Act, and the Supreme Court of Justice and the Constitutional Court of Portugal had approved it. Section 21 therefore came into operation in the trial. Since the Portuguese courts were aware of section 21 and placed no bar on trial for lesser offences, the Designated Judge had correctly concluded that the appellant could be tried for them even though they were not covered by the extradition decree.

• State the rule of speciality first in its general form, that the requesting State is under a duty not to punish the fugitive for any offence other than that for which he was extradited, and then show how section 21 of the Extradition Act qualifies it by admitting lesser offences.
• The two-limb test for a lesser offence: the offence must be made out from the proved facts, and it must carry a lesser punishment while remaining an extradition offence punishable with at least one year.
• The comparison with section 222 of the Code is the discriminating point. Punishment governs, not ingredients.
• For an essay on extradition generally, place this case after the four conditions of extradition, double criminality, speciality, extraditable crime and extraditable person, and after the exceptions for political, military and religious offences. Contrast it with Savarkar, where the question was not what the fugitive could be tried for but whether he had to be returned at all.