Saturday, November 12 2005 20:39 Hrs (IST) - World Time -

New Delhi: The 'no-death' penalty undertaking given by the Government to Portugal for extraditing underworld don Abu Salem has kicked off a debate over the sentence for the prime accused in the Mumbai 1993 serial blast case after a TADA Court questioned the pre-condition.

Though experts are unanimous that adhering to the undertaking given in this case would help in building confidence among the comity of nations, they differ whether Indian Courts are bound to the terms and conditions under which a fugitive is brought for trial from foreign land.

Among the points of undertaking given by the Government for extradition of Salem, were that he and his companion Monica Bedi would not be given death penalty and the imprisonment would not exceed 25 years.

Under the EU Charter, to which Portugal is a signatory, a person may not be extradited if there is a possibility of a death sentence visiting the convict.

Senior advocate K K Venugopal felt that courts are not bound by the undertaking given by the Government to Portugal but senior advocates K T S Tulsi and Ashok Arora opined that it is binding on courts to respect the undertaking given by the executive.

"All courts are bound by the undertaking by the country to another court while extraditing an accused," said Tulsi and Arora.

Giving a different argument, Venugopal said, "Perhaps the court is not bound by the undertaking given by the Government as there is a safety valve in the Constitution which gives power to the President and Governors to remit the death sentence into life imprisonment."

He said in case the court awards death sentence to the convict he can always approach President or Governor with a mercy plea.

Tulsi and Arora differ. They firmly believe that the court will have to honour the undertaking given to a foreign country by the Government.

Both said it was a big achievement for CBI to convince the Portugal Court about the adequacy of material against Salem for his alleged involvement in the 12-year old blast case.

"If the undertakings are not respected, the country will lose its credibility even while it has to get many other fugitives back for trial in this case and many others," they said.

Arora said the queries by the designated Judge were totally uncalled for at this stage when after great hardship the accused has been brought to the country to stand a trial. It was only the beginning and the quantum of sentence was not to be decided," he said.

But Tulsi said the queries by the judge were only an expression of surprise. "The Court may not know the entire legal position," he added.

Going a step further, Arora said if the court will not honour the undertaking given to a foreign country then it will go against the principles of fair play.

"If you do not violate the extradition condition, it will only help in extraditing more dreaded offenders," Arora said, adding that this should always be kept in mind.

Echoing the same view, Tulsi said to curb international terrorism, cooperation between countries is a must as terrorist plans are hatched in one country, executed in another and the impact is on the third country also.

"And this serial bomb blasts of Mumbai are not an ordinary case. It is case in which more then 200 innocent people had been killed and it is for the first time one of the key accused has been brought to stand the trial," he said.