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

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.

1. 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.
2. 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 of sentence, in compliance of its commitment to the courts in Portugal, it is required that the Government of India advise the President of India to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers under Sections 432 and 433 of the Cr.P.C. We do believe that there is a necessity of making this time bound so that it does not result in an unending exercise and, thus, the Government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence.We say so also to respect the very basis on which the Courts of Portugal observed the principles of comity of courts by recognising that there is a separation of powers in India and, thus, the Courts cannot give any assurance. The corresponding principle of comity of courts, thus, has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid. We are, thus, taking a call on this issue now and do not want to leave it to any uncertainty in future. This is of course subject to any aggravating aspect of the appellant."

The Court noted that the sovereign assurance itself mentioned how the obligation has to be complied with by the executive in India. The methodology put forth, by way of the assurance, before the Portuguese Courts for compliance was grant of remission in exercise of power conferred upon the President under Article 72(1) of the Constitution and the Government's power to grant remission under Section 432 and 433 of the Cr.P.C. Accordingly, the Supreme Court of Portugal in its order dated 27.01.2005 opined that the assurance was a guarantee only by the Government of India that should a sentence be imposed higher than that is specified, the Government of India would take all measures to comply with its obligations.

Plea Regarding Set Off

Mr. Malhotra argued that as per Section 428 Cr.P.C. Salem is entitled to set off for the period of detention undergone in Portugal as a result of the Red Corner notice issued by INTERPOL issued pursuant to the issuance of non-bailable warrants by TADA Court, Mumbai, against the remainder of his sentence. It was vehemently asserted that that set-off period should commence from 18.09.2002, when he was arrested in Portugal. Section 428 Cr.P.C. reads as under -

"Period of detention undergone by the accused to be set off against the sentence or imprisonment. Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, any, of the term of imprisonment imposed on him."

He relied on judgment of the Bombay High Court in Allan John Waters v. State of Maharashtra wherein the convict was arrested in the United States of America pursuant to Red Corner notice on 02.07.2003 and was finally brought to India on 06.09.2004. Considering it to be the period under investigation, the Bombay High Court had set off the period of detention in the USA. Reliance was also placed on the judgments of the Apex Court in State of Maharashtra v. Najakat Ali Mubarak Ali and Bhagirath v. Delhi Administration to argue Salem's case for set-off.

Refuting Mr. Malhotra's argument, the AGS stated that Salem was convicted by the Courts in Portugal for an offence committed in Portugal and was serving a sentence cannot be referred to to claim benefit of set-off under Section 428. He contended that the period for considering set-off would start only from the date Salem was handed over to the Indian authorities, i.e. 12.10.2005. It was also argued that Salem being sentenced to life imprisonment, which extends to the entirety of one's life, the setting-off would have no consequence in his case, specially when no order of remission has been passed by the President/Governor/Appropriate Government. He referred to the judgment in Raghbir Singh v. State of Haryana, wherein it was held that benefit of Section 428 can be secured only when it is shown that the detention was for the purpose of investigation, inquiry or trial of the case in which later there was a conviction and sentence. Reliance was placed on Atul Manubhai Parek v. CBI, wherein accused was restrained from claiming double benefit under Section 428 i.e. same period cannot be counted as part of the period of imprisonment for the former offence and also as the set-off period for the latter offence.

The Court noted that -

"It cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country. The criminal law of the land does not have any extra-territorial application. Thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country…The mere fact that there was also a detention order under the Red Corner notice was of no significance."

Salem was charged for possession of a fake passport. He was convicted and sentenced for 5 years from 18.09.2002 till 18.03.2007. However, on 12.10.2005, he was granted conditional release for the remaining sentence. When he was handed over to the Indian authorities, he was again imprisoned from 12.10.2005 till 10.11.2005. Accordingly, the Apex Court was of the view that the reckoning date for setting-off can at best be 12.10.2005, when he was granted conditional release and handed over to the Indian authorities -

"We cannot accept the plea of the learned counsel for the appellant that the formal arrest on 18.09.2002 of the appellant under the Red Corner notice is the date to be taken into reckoning for serving out sentence in the present case or for that matter that the relevant date should be 28.03.2003, when the extradition proceeding started. In view of what we have said, the only case which could emerge was of taking the date when he was given a conditional release on 12.10.2005. Thus, if one looks from the perspective of detention of the case in India, the period commences only on his being detained at Portugal on 12.10.2005, albeit giving him benefit of a little less than one month."

The Court further emphasised the double benefit under Section 428 Cr.P.C. cannot be claimed. Moreover, the law would not have extra-territorial application and extend to Portugal where the trial and conviction was for a local offence. Thus the period of detention in Portugal cannot be a set off against the detention in the present case, but post 12.10.2005, his detention was with respect to the present case and therefore, 12.10.2005 would be the reckoning time for the purpose of set-off.

[Case Title: Abu Salem v. State of Maharashtra Criminal Appeal No. 679 of 2015]

Citation : 2022 LiveLaw (SC) 578

Headnotes

Code of Criminal Procedure; Section 428 - Period of detention undergone by the accused to be set off against the sentence or imprisonment - it cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country - the criminal law of the land does not have any extra-territorial application - thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country - 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. [Paragraph 50, 52]

Extradition Act 1962 : 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 [Para 39]

Extradition Act 1962 - Supreme Court holds that Union Government is bound to release Bombay Blast case convict Abu Salem by granting remission of him after he completes 25 years of sentence from the date on which he was detained for extradition to India (12.10.2005) as per the sovereign assurance given to Portugal.

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