CBI can withdraw additional charges against Salem

The Supreme Court on Monday, while reiterating that the extradition of Abu Salem from Portugal was valid, permitted the CBI to withdraw additional charges framed against him.

In a clarification, a Bench of Chief Justice P. Sathasivam and Justice J. Chelameswar referred to the question whether the validity of extradition order dated 28.03.2003 stood annulled/cancelled as alleged by Abu Salem, and said: “The decision of the courts of Portugal themselves does not contain any direction to the Union of India to return the appellant to Portugal as is being agitated by him.”

Writing the judgment, the CJI said, “The Constitutional Court of Portugal has categorically held that Portuguese law does not provide for any specific consequence for violation of the Principle of Speciality and their findings may not be construed as a direction to the Union of India to return the appellant to Portugal, but shall only serve as a legal basis for the Government of Portugal, should it choose to seek the return of the appellant to Portugal through political, or diplomatic channels, which has not been done till date .”

The extradition still stood valid and effective, the Bench ruled. “The CBI has also prayed for vacation of the stay order dated February 17, 2012 and to allow the trial to continue.”

The Bench said “As on date, there exists two divergent views with regard to the violation of the Principle of Speciality. The available options are either to approach an international forum to settle the divergent view or in alternate reconcile via diplomatic channels. Considering the two decades delay in the prosecution of the accused/appellant, the CBI is of the view that withdrawal of additional charges will cut short the process. Therefore, the CBI seeks permission to withdraw the additional charges levied against the appellant via this modification petition.”

“Taking note of the submission of the CBI that the offences for which the appellant was extradited to India are grave enough to even award the appellant with maximum punishment and therefore no prejudice would be caused if the present application for modification is allowed, we are of the considered view that allowing the present modification petition under the existing peculiar circumstance will not be detrimental to any of the parties.”

“However, it is pertinent to clarify that by allowing the petition it cannot be construed that this Court is reviewing the judgment in the light of the verdict of the Constitutional Court of Portugal. Both India and Portugal are two sovereign States with efficient and independent judicial system. As a consequence, in unequivocal terms, the verdict by the Constitutional Court of Portugal is not binding on this Court but only has persuasive value.”

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