HC allows Abu Salem’s petition for quashing of production warrant

Source: The Hitavada      Date: 12 Nov 2017 10:35:40


 

Legal Correspondent,

A single bench of the Madhya Pradesh High Court comprising Justice, Vivek Agrawal has allowed the petition filed by Abu Salem Ansari, praying for setting aside the impugned order and quashing of the production warrant so also the proceedings pending before the court of 14th Additional Sessions Judge, Bhopal.


Petitioner has filed this writ petition challenging the order passed by the court of 14th Additional Sessions Judge, Bhopal vide which the court below has refused to recall the production warrant issued by the predecessor court in sessions case trying the accused under the provisions of Section 302/120 B of Indian Penal Code and Section 25 of the Arms Act on the ground that production warrant was issued by his predecessor and recalling such production warrant will amount to reviewing the earlier order, which authority is not vested in the Sessions Court. It has also come on record that no application has been moved either by the State or CBI to withdraw the pending sessions case. It is the contention of the petitioner that petitioner was extradited from Portugal to Union of India pursuant to the orders of Ministry of Justice, Portugal dated on March 28, 2003 to be tried in 9 cases.


Counsel for the petitioner submitted that the order of the 14th Additional Sessions Judge is patently illegal and not sustainable in the eyes of law because it violates the provisions contained in Section 21 (b) of the Extradition Act, 1962. He has also drawn attention of this court to Annexure P-6, which is an order passed by the designated court under TADA (P) Act for Greater Bombay in TADA Special Case No. 1-B of 1993; whereby the present petitioner had moved an application seeking direction to the Superintendent of Central Prison Taloja, Navi Mumbai in respect of case registered with Parvalia Sadak Police Station, Bhopal, MP saying that he cannot be tried in that case as it was not submitted to the Portuguese authorities before extradition of the accused to India. In view of such submissions, he prayed for setting aside the impugned order and quashing of the production warrant so also the proceedings pending before the court of 14th Additional Sessions Judge, Bhopal.

The single bench, in its order, said that, in view of such facts and also, looking to the fact that if the petitioner is tried for an offence, which was committed prior to the date of making a request for extradition, then it will violate the fundamental rights of the petitioner and will not be justifiable on the touchstone of Article 14 of the Constitution of India and also looking to the fact that the court of 14th Additional Sessions Judge, Bhopal has failed to take into consideration the fact that the proprietary of its order in issuance of production warrant against the petitioner was disapproved by the Special Judge TADA (P) at Bombay being in violation of the provisions of the Extradition Act, 1962, it was not a question of review, but the question was about the jurisdiction of the court to not take into consideration the provisions of the Extradition Act, 1962 into consideration.

The 14th Additional Sessions Judge, Bhopal should have taken the clue from the order of the Special Judge of designated court for TADA (P) and could have passed the order impugned only after taking into consideration the fact that whether State of Madhya Pradesh, through Union of India, had submitted the details of the present case to the Government of Portugal while seeking extradition or not. As the answer to this is in negative, the order of issuance of production warrant passed by 14th Additional Sessions Judge Bhopal in relation to the petitioner alone is without jurisdiction and deserves to be set aside and is hereby quashed.”


The single bench added that “it is made clear that in terms of the provisions contained in the Extradition Act, 1962 and the law laid down by the Supreme Court in case of Abu Salem Abdul Qayoom Ansari vs State of Maharashtra and another, Abu Salem Abdul Qayyum Ansari vs Central Bureau of Investigation and another and also looking to the facet of the Rule of Specialty so also the law laid down by Supreme Court in case of Daya Singh Lahoria vs Union of India and others (supra) since no request for extradition was made in relation to offence registered at Police Station Parvalia Sadak, Bhopal seeking extradition of the petitioner, he cannot be tried in respect of an offence, which does not form part of the decree of extradition. The petition is allowed to the extent above”