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

The Supreme Court, on Monday, held that law pertaining to setting-off of the period of detention undergone by accused against their sentence under Section 428 of the Cr.P.C. would not have extra-territorial application to trial and conviction, when the same have taken place for a local offence in a different country. It reiterated that the accused cannot claim a double benefit under Section 428 of the Cr.P.C. i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. While passing judgment in Abu Salem's plea seeking reading down of the term of the life sentence imposed by the Trial Court to 25 years as per the sovereign assurance given by that Indian Government to the Portuguese Republic at the time of his extradition, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh observed that as criminal law of the land does not have any extra-territorial application, what happens in another country, for some other trial, some other detention, would not be relevant for the proceedings in the country. The plea also sought setting-off of the period of detention undergone by Salem's in Portugal against his life imprisonment. Advocate, Mr. Rishi Malhotra representing Abu Salem before the Apex Court, had primarily raised two issues for consideration of the Court. Imprisonment term cannot extend beyond 25 years as per the assurance given to Portuguese Republic. Even though the TADA Court does not have the power to provide specific term of incarceration, but as per the judgment in Union of India v. Sriharan alias Murugan And Ors., the Supreme Court can modify punishment to assign specific term of sentence. The period of time for which Salem was imprisoned (18.09.2002 till the time he was taken into custody by the Indian authorities on 12.10.2005) be set off against the sentence of life imprisonment. To consider the issues in its entirety the Court had directed the Union Government to take a clear stand as to whether it stood by its sovereign commitment to the Portuguese Republic. Plea Regarding Sovereign Assurance With respect to the issue of sovereign assurance, Mr. Malhotra had submitted that the assurance dated 17.12.2002, categorically notes that Portugese law does not permit extradition if the offences committed attract either death penalty or imprisonment for an indefinite period beyond 25 years. The supplementary undertaking dated 25.05.2003 assured the Portuguese authorities that Salem would not be prosecuted for offences other than those for which the extradition was requested. On perusal of the assurances, the Portuguese courts opined that the rule of transitional estoppel doctrine and International Public Law, particularly the principle of reciprocity requires that such sovereign assurances are respected by the States in future. He argued that the failure to do so would result in devolution of the person to be extradited through diplomatic or judicial channels. Reliance was placed on Sriharan's judgment to implore the Court to read down the life sentence imposed by the Trial Court to 25 years. The Court noted that, in essence, Mr. Malhotra had argued that the Apex Court opines now itself as to when the term would end and direct the release of the appellant on expiry of that term.Per contra, Additional Solicitor General, Mr. K.M. Nataraj urged that the Constitutional envisages separation of powers and in view of the same, the sovereign assurance would not bind the judiciary while it decides on the merits of the case. He submitted that the issue of honouring the sovereign assurance would arise only upon the completion of the 25 years i.e. on 10.11.2030 and no plea regarding the same can be raised before the said period lapses. Upon hearing the Counsels, the Bench observed - "We tend to agree with the submissions of the learned ASG on the larger conspectus, i.e., the separation of Judicial and Executive powers and the scheme of the Indian Constitution cannot bind the Indian courts in proceedings under the Extradition Act. Thus, the courts must proceed in accordance with law and impose the sentence as the law of the land requires, while simultaneously the Executive is bound to comply with its international obligations under the Extradition Act as also on the principle of comity of courts, which forms the basis of the extradition."Looking at the grievous nature of the crime, the Court thought it fit not to exercise special privileges to commute or restrict the period of Salem's sentence. But, the Court refused to accept the submission of the ASG that it cannot opine on the aspect of the sovereign assurance at the present stage. Considering the significance of the sovereign commitment, it held - "...on completion of the period of 25 years...

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

Sohini Chowdhury

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