The court considered the plea of double jeopardy and the discretion of the court in issuing non-bailable warrants, highlighting the importance of ensuring the petitioners' security and avoiding undue incarceration.

1. On 29.9.1981, Flight No. IC-423 of Indian Airlines had taken off from New Delhi for Srinagar enroute Amritsar. Midair, it is stated, the petitioners herein with some other associates hijacked the aeroplane. The aircraft eventually landed in Lahore (Pakistan) where after a commando operation, the passengers and the crew were rescued and the petitioners with their associates detained.

2. On the report of Mr. G.S. Diwan, Chief Security Officer, Palam Airport, first information report (FIR) No. 105/1981 had been registered and taken up for investigation by police station Palam at New Delhi respecting offences punishable under Sections 392/397/398 and Section 34 of Indian Penal Code, 1860 (IPC), Section 27 Arms Act and Section 10 of Indian Aircrafts Act, 1934. The petitioners meanwhile had been arrested by the law enforcement agencies in Lahore (Pakistan), FIR No. 216/1981 having been registered by police station South Cantonment, Lahore for offences under Section 402-B read with Section 34 of Pakistan Penal Code.

3. The investigation into the FIR registered at Lahore resulted in trial in criminal case No. 15/1985 in a special court at Lahore (Punjab) in Pakistan which culminated in judgment dated 20.01.1986 whereby the petitioners (and others) were held guilty and convicted for offences under Section 402-B read with Section 34 of Pakistan Penal Code and sentenced to imprisonment for life with fine of Rs. 1,000/- in default rigorous imprisonment for six months. It may be noted here that the gravamen of the charge for offence under Section 402-B read with Section 34 of Pakistan Penal Code was primarily that the petitioners, with the co-accused persons, in furtherance of their common intention, had committed the offence of hijacking the said Aircraft Boeing 737 during flight from New Delhi to Srinagar. It may also be noted here that the plea and defences urged before the said special court in Pakistan not only in the trial but also at the stage of consideration of sentence, were that the petitioners had been aggrieved with certain policies of Indian State towards the community to which they belonged and that the hijacking was staged by way of a protest.

4. The respondent-State does not dispute that the petitioners served the sentences awarded against them after conviction by the special court in Lahore, Punjab (Pakistan) in the afore-mentioned case, the said judgment and order on sentence having attained finality. It is stated that after serving the sentences both were released by the concerned authorities in Pakistan.

5. It is alleged that the second petitioner Satnam Singh surreptitiously entered India via Nepal, and thereafter he surrendered himself to the custody of the court of Additional Chief Metropolitan Magistrate (ACMM), New Delhi in the context of the case registered at Palam Airport police station. It may further be noted that in the proceedings that followed after surrender of the second petitioner, he had moved an application seeking discharge primarily on the ground that he had already served the sentence upon conviction for the corresponding offence in Pakistan and that any further proceedings here would render him subjected to double jeopardy against the fundamental rights guaranteed to him as a citizen of India.

6. The ACMM, New Delhi by her order dated 11.2.2000 upheld the above contention and ordered “discharge” of the second petitioner. Noticeably, there was no charge-sheet laid before the court of ACMM at that stage, the ACMM having acted only on the report which had been called vis-a-vis the status of the case on the application for discharge moved by the second petitioner.

7. Be that as it may, in the subsequent period, the presence of the first petitioner also came to be secured after his return from Pakistan on 25.12.1997. After the ACMM, New Delhi, by her order dated 11.2.2000 had “discharged” the second petitioner, the question of further proceedings in the case arising out the above-mentioned FIR regi