Avadh Behari Rohtagi, J.
(1) This is an extradition case. The petitioner Prem Swarup Puri has brought this writ petition under Article 226 of the Constitution. He is a citizen of India. When he was standing trial in criminal cases here he fled to France. In 1970 the Government of India requested the French Government for his extradition for prosecuting him for the following three offences:
'(I)Falsifications affixed on passport No. A-668077 delivered in New Delhi on 28th August, 1958 and use of this falsified passport;
(II)The fraudulent obtaining on June 29, 1965 of a false passport No. 1-282813 by using the false name of Anand Prakash and on July 17, 1965, of a false passport No. 1-282846 under the false identity of K. V. Sridharan of. Delhi;
(III)The fraudulent obtaining from the Regional Passport Office in New Delhi of a passport delivered on 3rd May, 1967 under No. 1-454020 by using the false name of Ravi Batra and the 'use of this false passport.'
The offences disclosed in Nos. (i) and (ii) above are the subject matter of cases RCI/FS(1)162 and Rcr 31lEW;65 and the offence in (iii) was RC. 4/EW/68. The French Government granted extradition of the petitioner by an extradition decree dated July 30, 1971 only in respect of the last offence i.e. of 1967. For the other two offences extradition was refused. The operative portion of the decree reads :
'DECREEDARTICLE One : The extradition of said Prem Swarup Puri or Sarup Puri is accorded to the Government of India for the sole facts of forgery committed on the occasion of the delivery of passport No. I-454020 of 3 May, 1967.'
(2) France surrendered the petitioner to this country. On October 22, 1971, he arrived in India. He was then brought before the magistrate. He was tried for the offence of forgery committed in 1967. The Additional Chief Judicial Magistrate framed the charge against him. The petitioner contended that the charge as framed was not in conformity with the extradition decree and asked for a writ of habeas corpus. He came to this court in 1973. (See State v. Prem Sarup Puri, 2nd (1973) I Delhi 803 (1). This Court refused to quash the charge. The trial proceeded. On August 31, 1974, the Metropolitan Magistrate convicted the petitioner and sentenced him to six months. On November 26, 1974, he was released after serving sentence. He preferred an appeal against his conviction to the court of session. On December 13, 1979. his appeal was allowed and conviction set aside.
(3) Now the case of the petitioner is that he cannot be prosecuted in India for the offences of 1958 and 1965. He bases his claim on the mandate in Article one of the decree and section 21 of the Indian Extradition Act 1962 (the Act). The Union of India, on the other hand, contend that they are entitled to try him for the other two previous offences which are said to be pending against him and in which he absconded during the trial.
(4) The single question that arises for decision in this case is whether it is open to the Government of India to try the petitioner for the offences of 1958 and 1965. There is no dispute with regard to the offence of 1967. The petitioner was tried for that offence and convicted. He has served the sentence. Nothing more now remains in respect of that offence. Even the decision in the appeal is purely of academic interest as the petitioner has served the sentence awarded to him by the Metropolitan Magistrate.
(5) The decision of this case turns on the true construction of section 21 of the Act. That section reads :
'WHENEVERany 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.'
(6) This section is based on section 19 of the United Kingdom Extradition Act, 1870. It provides to foreign countries the same safeguards in our law as we insist upon from them under section 31(c) before allowing surrender of fugitive criminals.
(7) In terms of section 21 of the Act and the provision of the French decree it is quite clear that the petitioner could be tried only for the extradition offence of 1967. His surrender was made on the condition that he shall be tried only for the offence of 1967 and for no other offence. Section 21 also says that he cannot be tried in India for an offence committed prior to his surrender 'until he has been restored or has had an opportunity of returning to that State or country.' thereforee, petitioner could only be tried in this country for such offence as is proved by the facts on which the surrender was based and for no other 'until he has been restored or has had an opportunity of returning to that State or country'. These are the important words which have to be construed. The Union of India claim that they can' try the petitioner for the offences of 1958 and 1965 because the petitioner has had an opportunity of returning to France.
(8) The controversy in this case centres round two facts of capital significance. One is about the grant of passport to the petitioner. The second is the order of expulsion passed by the French Government against the petitioner after his extradition in 1971. Twice in 1977 the petitioner was given a passport to which following conditions were attached :
'(1)That the passport is valid for six months.
(2)No further clearance or endorsement should be granted on this passport without prior clearance from the Ministry of External Affairs.
(3)You are required to report your movements to our Indian Missions in the country you visit.
(4)You should surrender your passport to this office in New Delhi within three days of the expiry of its validity.'
(9) The petitioner did not avail of this passport, limited as it wain duration to six months with so many harsh conditions attached to it. Can the grant of such a passport be said to afford to the petitioner a genuine opportunity of returning to France The real question is : Did the petitioner have an opportunity of returning to France within a reasonable time The answer must be 'no'. Because the Indian Government never issued an ordinary passport for the prescribed period to the petitioner. No police clearance was given to him. A passport valid for six months with humiliating conditions attached to it made it impossible for the petitioner to avail of this opportunity, if opportunity it can be called in any sense of the word.
(10) But then it is said that the petitioner cannot return to France because of the expulsion order. Obviously the petitioner cannot be restored to France. That country does not want to have him. He has been expelled from there. Petitioner's counsel argued that it is the obligation of the Indian Government to negotiate with France on the political level and see to it that the order of expulsion is revoked. This is an untenable proposition. The Act does not say 80. Nor is this done in the international community.
(11) Expulsion is the termination of the legal entry and right to remain. Deportation to the country of crime amounts to (his, and if the country of the crime is the national country there can be no ground of protest or complaint. A state possesses the general right of expulsion of an undesirable resident. The right of expulsion in the interest of the public order or the welfare of the State is well recognised. The droit de conservation is said to render exclusion of undesirable aliens legitimate. The petitioner is not a national of France. The French Government cannot be asked to take him back.
(12) The sole question is : Can the petitioner be tried for the previous offences of 1958 and 1965 The petitioner has now been in India for more than 9 years. For the offence of 1967 he was tried. He served the sentence. He came out of prison on November 26, 1974. Since then he has been asking the Government either to restore him to France or to give him an opportunity of returning to that country. But the Government insist that they can try him for the offences of 1958 and 1965 because they argue that they gave him an opportunity and he did not utilise it.
(13) In my opinion, the Government cannot try the petitioner for offences of 1958 and 1965. This is because of the doctrine of specialty. The specialty doctrine forms an important part of the law of extradition. The doctrine means that an extradited person can be tried only for the offence for which he was surrendered and none other.
MOOREin his classic work says : 'Thus the act of7 extradition assumes the form of a contract; the two states being the parties, the delivery of the criminal the subject-matter, and the repression of crime undertaken by the demanding state, the consideration.'
[MOOREExtradition, Vol. I, page 4(1891)]. And again : 'From the right to refuse surrender flows the right to affix conditions to surrender. When, thereforee, the offender is delivered up for a definite purpose, it is implied that he was delivered up for that purpose and no other.' (Vol. Ii p. 1045).
(14) An extradition decree such as the one in this case which contains the terms of surrender constitutes a mutual agreement or a contract between the sovereign states concerned and as such it is on par with the provisions in a treaty where a treaty exists. We do not have any extradition treaty with France. thereforee, the extradition decree is the controlling document. The extradition decree says that the extradition of the petitioner is accorded to the Government of India for 'the sole facts of forgery committed on the occasion of the delivery of passport of May 3, 1967.' The specialty doctrine says that he cannot be prosecuted for any prior offence except the offence of 1967 on which his surrender was grounded. According to the principle of specialty :
'THEState to which a person has been extradited may not, without the consent of the requisitioned State, try a person extradited save for the offence for which he was extradited.'
(D.P.O.' Connell International Law, Volume Two, page 804).
(15) This means that prior consent is essential for trial for any other previous offences. An extradited person may not be tried for any other offence than that for which he was surrendered 'without the consent of the requested state.' [Max Sorensen Manual of Public International Law (1968) p. 520].
(16) This principle was firmly established as part of the 'recognised public law' in the case of U.S. v. Rausher, 119 U.S. 407 (1886). (2). The U.S. Supreme Court said :
'THEweight of authority and of sound principle are in favor of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offences described in that treaty and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.'
(17) Mr. Justice Grey in a separate opinion held that a person should be tried only for the specific offence and should be allowed time to depart before he could be arrested and tried for some other offence, (page 433) It would be clear breach of faith if the petitioner is detained or tried in India otherwise than in terms of the surrender document. [See Royal Government of Greece v. Brixton Prisoner Governor (1969) 3 All. E.R. 1337(3).
(18) It is incontestable that the tribunals can try the accused only on the facts for which the extradition has been accorded. It is a rule established as firmly as possible. (Moore Vol. I p. 219). On the specialty principle a large number of cases are to be found in the British Digest of International Law Vol. VI. But I would only refer to the leading case of Fiscal v. Samper, International Law Reports (1938 40) 402(4). Spain Supreme Court. The accused was tried for an offence for which no extradition had been granted. The Spanish Supreme Court quashed the conviction in very strong terms. Oppenheim calls this case as 'an' emphatic affirmation' of the specialty principle. (International Law Vol. I p. 703 8th ed.).
(19) Upon the acceptance of the extradition decree under which the surrender of the petitioner was accepted by India, this country is bound contractually and in honour and good faith to prosecute the person surrendered in strict accord with the terms of surrender. In terms of surrender the petitioner was tried for the offence of 1967 and sentenced. Under section 21 he can be tried for the offence of 1958 and 1965 only if he is restored to the requested country or has had an opportunity of returning to that country. Obviously the petitioner cannot be restored to France. This seems impossible in view of the expulsion order passed against the petitioner. But if the petitioner can show that he was never given a genuine opportunity to leave this country, I think, he can succeed in this petition. A passport given to the petitioner which is valid for six months and to which are attached harsh and humiliating conditions cannot be considered to be a genuine opportunity. The so called opportunity was a mere pretence. It was illusory. But the court will not be deceived by an illusion. A passport valid for six months granted to the petitioner which requires him to come back to India cannot be called an opportunity because he remains under the power and control of the Indian Government. He is not free to return to the surrendering State. The petitioner's case can be put in a few words. He says : 'You clip my wings and want me to fly.' It will be an abuse of language to say that a passport such as was given in this case amounts to an opportunity within the meaning of that word as used in section 21 of the Act.
(20) A good deal of fun has been poked at the petitioner's extradition from France. But the question is : Can the scoffer take advantage of expulsion In my opinion the situation does not operate in favor of the derider. The specialty rule operates in favor of the fugitive even though it may be eminently desirable to punish him. Such is the strength and all pervasiveness of this doctrine which is essentially founded on international co-operation. This co-operation rests on a procedure of request and consent. As Lawrence said :
'THEobject of this proviso is to guard against the surrender of a person for one offence when the real reason for demanding him is to try him for another, possibly a political crime, possibly an offence not mentioned in the treaty. The condition is perhaps not unreasonable in view of the great divergencies of political condition and theory between some of the most powerful States of the civilized world, though it might easily operate in favor of a criminal whom it was eminently desirable to punish.'
(Principles of International Law 1937 p. 238 quoted in Hingorani Indian Extradition Law p. 54).
(21) The rule of specialty guarantees protection to the fugitive against fraudulent securing of his custody with a view to try him for an offence other than the one for which he was extradited from the state of refuge.
(22) Bassiouni in his International Extradition and World Public Order says that the requesting state is bound to prosecute or punish the surrendered person in accordance with the terms of surrender imposed by the requested state. Otherwise, the requested state's processes would have been set in motion under false pretences. The requested state could have refused extradition if it knew that the fugitive would be prosecuted or punished for an offence other than the one for which it granted extradition, (p. 353). A trial of the fugitive in absentia is unsatisfactory. For trial in personam international judicial assistance is required. Assistance is offered on terms. The acceptance of surrender terms makes them binding on both parties.
(23) Section 21 says that the fugitive criminal before he can be tried for previous offence must be restored to the surrendering country or must have had an opportunity of returning to that country. If for any reason it is not possible for the extradited person to return to that country either because there is an expulsion order against him or for any valid cause, the requesting country cannot take advantage of the person's helplessness, his inability to return. When France has closed its doors against the petitioner it is idle to talk of an opportunity of returning to that country. He cannot enter France. He cannot set his foot on the French soil. The talk of actual restoration or of opportunity of returning is meaningless. The petitioner can certainly depart from India. But he cannot return to France. What is to be done then Can he be tried for the offences of 1958 and 1965 in these circumstances This is the question to be decided. During the history of one hundred and ten years of English extradition law there is no judicial record of any case where the Government tried to prosecute the fugitive criminal for a crime other than that for which the extradition was granted. Section 21 embodies the doctrine of specialty. So does section 31(c). We ought to interpret this section so as to be in conformity with international law. Article 51 of the Constitution requires the State to foster respect for international law and treaty obligations in the dealings of organized people with one another.
(24) The principle of specialty which is a doctrine of international law forbids the Indian Government to try the petitioner for any offence other than the offence for which he was surrendered to this country If he cannot return to France because of the expulsion order it does not mean that he can be tried for offences of 1958 and 1965. That will be in flagrant violation of international law. If he is tried for other offences that will be a breach of faith It is true that there is no extradition treaty between India and France. But the French Government surrendered the petitioner to India acting on principles of comity. thereforee, the French decree ought to be respected. As it is the surrender document it ought to govern us. The French decree prohibits the Indian Government from trying the petitioner for the offences of 1958 and 1965. This was its manifest scope and object. The decree, the surrender document, in express terms refuses extradition for the offences of 1958 and 1962. The extradition was granted for the 1967 offence.
(25) So I come to the conclusion that the requesting country is bound in honour and in good faith to try the petitioner only for the offence of 1967 and none other. Reciprocity also demands that Indian courts should not claim a right to try an extradited persons for such offences as have not been mentioned in the extradition decree. They are not prepared to grant this right to other countries, as is clear from section 31(c) of the Act, Section 31(c) is complementary to section 21.
(26) Section 21 operates as a bar to the trial of the fugitive criminal for the previous offences until the condition of restoration or opportunity to return is satisfied. It has been held in England that section 19 of the Extradition Act, 1870, is concerned solely with jurisdiction [R. v. Aubrey-Fletcher (1968) I All. E.R. 99 J. Section 19 is in van materia with section 21 of our Act.' thereforee section 21 confers no jurisdiction on the Indian courts to try the petitioner for the offences of 1958 and 1965 until the Government satisfies the court that the petitioner has had an opportunity of returning to France. With regard to the question of opportunity I have already held that the petitioner was never given a genuine opportunity of returning to France in the real sense of the term. The passport given to him was a short-term passport. It was restricted in many ways.
(27) In two letters dated June 10, 1977 and October 12, 1977 written by the Chief Passport Officer in the Ministry of External Affairs the petitioner was informed that criminal proceedings in respect, of two cases of 1958 and 1965 'filed against you are pending in the court of the Metropolitan Magistrate, Delhi. In order to facilitate trial in those cases ft has been considered necessary that the passport should be issued to you for a shorter period than the prescribed period.' The petitioner was not given even a police clearance certificate. In the letter of October 12, 1977, the Chief Passport Officer wrote to him 'since two criminal cases are still pending against you in the court of the Metropolitan Magistrate Delhi it is not possible to issue a police clearance certificate in your case.'
(28) Such being the stand of the Government they cannot say with any show of reason or justice that the petitioner has had an opportunity of returning to France. A limited passport with no police clearance will not enable the petitioner to depart from this country and regain his freedom. He will always remain within the reach of the Indian Government and within their grasp. Such an opportunity is no opportunity in the eye of law. This is the heart of the question.
(29) Now more than five years have passed since the petitioner served his sentence for the offence of 1967. He has been asking the Government to issue him an ordinary passport for the prescribed period. This has been denied to him. For an unreasonably long period he has been kept in this country on the specious plea that cases of 1958 and 1965 are pending against him. This is against the principle of specialty and section 21 of the Act. Sir Edward Clarke has said :
'THElapse of time very often diminishes the means of defense more than those of the prosecution, and the pursuit of the fugitive three years after the alleged offence looks rather like revenge than justice.'
[Law of Extradition, 4th edition p. 257 (1903)] Summary and Conclusion :
(30) The petitioner is faced with a peculiar situation. France does not want to have him. He cannot return to France. The expulsion order bars his entry. India does not want to leave him. The passport issued for six months compels him to return to India. What do we do then Prosecute him in India. Because he has nowhere to go to and call it a day. Is it an opportunity The word 'opportunity' means an opportunity to regain freedom. The extradited person must be able to depart for the surrendering country without any let or hindrance. It means that he shall have opportunity of returning to the extraditing country on retaining his liberty. [Cosgrove v. Winney 174 U.S. 64 (1898) (6) and Johnson v. Browne (1906) 205 U.S. 309 (7). The collocation of words suggests this. This preceding word 'restored' means that the extradited person has to be replaced within jurisdiction of the surrendering country before he can be tried for previous offences. He has to be actually present there. The word 'opportunity' takes colour from what precedes. It means a real opportunity to regain the old freedom. As Moore says :
'AMONGwriters on international law there is an almost uniform concurrence in the opinion a person surrendered one offence should not be tried for another he shall have been replaced within the jurisdiction of the surren dering state or had an opportunity to return thereto.' (J.B. Moore Extradition Vol. I p. 217).
(31) I must thereforee hold that the petitioner has had no opportunity. The Government cannot prosecute him for the previous off ences. The surrender document forbids. Section 21 operates as bar. The section is designed to prevent a man from being tried after his surrender for a crime other than that for which he has been extra dited. 'From the right to refuse surrender flows the right to affix conditions to surrender.' Now the decree affixes conditions to surrender. A prosecution for offences of 1958 and 1962 will be an act of had faith. The courts will have no jurisdiction over the person under section 21. If India tries the fugitive for a crime other than the one for which extradition was granted, it violates the contractual obligations with the other country and the courts will be without jurisdiction over him.' [Corpus Jurisdiction secundum Vol. 35 (1960) p. 476-477]. For this purpose it is necessary to look at the surrender document, the decree. Keeping petitioner in India for such a length of time looks more like 'revenge than justice'.
(32) The surrender document was issued on the plane of comity. It is founded on specialty principle. This is international law. The French decree limits the surrender to one offence and the trial of the accused for that offence and no other. There is no reason to doubt that the fair purpose of the decree is that the person shall be delivered up to be tried for that offence, and for no other. Section 21 of the Act is a part of the municipal law. It ought to be interpreted in a manner so as foster respect for international law and treaty obligations. Every statute is to be interpreted and applied, so far as its langauge admits, as not to be inconsistent with the comity of nations or with established principles of international law. Shri Krishna Sharina v. Sate of West Bengal, Air 1974 Cal 591(8). Whether we look at the question from the point of international law or municipal law there is no justification for keeping the petitioner in India because cases of 1958 and 1965 are pending against him. He cannot be prosecuted for those offences. 'This is my conclusion.
(33) For these reasons I will make the order in favor of the petitioner that he cannot be prosecuted for the offences of 1958 and 1965, mainly, for cases Rc 1|FS-1|62 and Rc 31/EOW/65 and direct the respondents not to take any proceedings against him in respect thereof.