BHAVESH JAYANTI LAKHANI Vs. STATE OF MAHARASHTRA & ORS
BHAVESH JAYANTI LAKHANI Vs. STATE OF MAHARASHTRA & ORS
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
[Arising out of SLP (Crl.) No. 6407 of 2008]
Bhavesh Jayanti Lakhani ...Appellant
Versus
State of Maharashtra & Ors. ...Respondents
JUDGMENT
S.B. SINHA, J :
Leave granted.
INTRODUCTION
Interpretation of the roles and responsibilities of the Central Bureau of
Investigation (CBI) vis-`-vis the provisions of the Extradition Act, 1962
(hereinafter referred to as "the Act") is involved in this appeal. It arises out
of a judgment and order dated 11.08.2008 passed by a Division Bench of the
High Court of Bombay in Criminal Writ Petition No.676 of 2008 whereby
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and whereunder the appellant's application questioning the validity and/ or
legality of an order issuing a warrant against the appellant by the Magistrate
Court, Clayton County, Georgia in case No. 2006/CW/06369 and Case No.
2006/CW/06370 in USA in respect of a complaint filed by the respondent
No. 6 herein, was dismissed. The appellant in that application had also
sought for a direction restraining the respondents or any other Central
Government machinery from arresting the appellant or taking any action
pursuant to or in furtherance of the Red Corner Notice issued by INTERPOL
in respect of those arrest warrants.
BACKGROUND FACTS
Appellant and the respondent No. 6 are citizens of India. He went to
Michigan to pursue his studies in M.S. (Computer Engineering) between
August, 1998 and May, 2000. He also worked as a Software Engineer at
California in a company named Broadbase Software upto 2001. He was
later on employed as a Technical Lead in a Government Contract Firm at
California known as Ancore Corporation between 2001 and 2003.
Appellant married the respondent No. 6 on 6.04.2002 at Mumbai.
They moved to California on 19.04.2002 and stayed there till 2005. Out of
the said wedlock, a daughter Eesha was born on 26.04.2003. Marital life of
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the Appellant and the Respondent No. 6 was however not happy. According
to the respondent No. 6, she was continuously being harassed. She applied
for grant of permanent asylum on 1.07.2003 allegedly under coercion from
the appellant. Later on the respondent No. 6 allegedly moved to her sister's
house at Sharon Massachusetts, USA.
PROCEEDINGS IN USA
She filed a complaint with the Sharon Police Department on
26.04.2005. On or about 09.05.2005 an application before the Probate and
Family Court of Massachusetts for grant of divorce was filed by her. In the
said proceeding, she also sought for orders of custody of her daughter.
The Probate and Family Court, Massachusetts passed an order of
temporary custody of the child, restraint and abuse prevention ex parte in
favour of the respondent No.6 and against the appellant on 10.05.2005.
Service of the said order is said to have been effected on the appellant on
20.05.2005. Allegedly, he neither appeared before the Court contesting the
said interim custody order nor sought for any modification thereof.
Respondent No.6 took up a job and continued to live with her child in
Massachusetts. She contends that her Indian Passport was stolen by the
appellant from the premises which was being occupied by her.
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Admittedly, the appellant came to India with the child on 15.04.2006
in violation of the court custody orders.
The contention of the appellant is that despite the initial marital
discord, the parties started living together. It was decided that he should
return to India with the child wherefor even a written consent was given by
the respondent No. 6 by affirming an affidavit before a Notary on or about
14.04.2006, stating:
"I, Hetal G. Thakker ...authorize my child Eesha
B. Lakhani to travel with my husband and her
father, Bhavesh Lakhani to India.
They will be leaving the United States of America
on or about April 14, 2006 and returning on or
about (Undecided)..."
Respondent No. 6, however, contends that the appellant travelled out
of the United States of America with the child by creating false and
fabricated documents including the said affidavit as would also appear from
the fact that the child already had a passport. On the premise that the child
was abducted by the appellant, warrants of arrest were issued against him on
the basis of a complaint made by the respondent No. 6 before the police
authorities. A decree for divorce as also the custody of the child was passed
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by the Norfolk Country Probate and Family Court, Canton, Massachusetts
on 2.5.2006.
PROCEEDINGS BEFORE THE FAMILY COURT
Respondent No. 6 thereafter married one Ashwin Matta. Indisputably,
she filed an application for custody of the child before the Family Court at
Mumbai on 11.05.2007. By an order dated 15.05.2007, the Family Court
directed the appellant to remain present in the Court with Eesha. Pursuant to
the said notice of the Family Court, his father appeared before the court on
15.05.2007 and stated that the appellant had gone out of Mumbai along with
Eesha. The matter, therefore, was adjourned to 18.05.2007. On that day the
appellant's father again appeared and informed the Court that the appellant
could not be contacted. The Family Court, thus issued a warrant of arrest
against the appellant and directed grant of custody of the child to the
Respondent No. 6.
Appellant indisputably preferred an appeal before the High Court
which was marked as Family Court Appeal (Stamp) No. 11724 of 2007. An
order of stay was granted by the High Court of Bombay in the matter, which
is still operative.
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PROCEEDINGS BEFORE THE HIGH COURT
The Atlanta City Police and the American Court in the meanwhile
issued a warrant of arrest against the Appellant which was transmitted
through INTERPOL to the Government of India. Appellant filed a writ
petition questioning the legality and/ or validity of the said warrant, which
by reason of the impugned judgment dated 11.08.2008 has been dismissed.
The High Court posed unto itself a question as to whether the Red
Corner Notice could be stayed by it.
Referring to the provisions of the Act it was opined :-
i) While dealing with a fugitive criminal wanted in a State with
which India has no treaty, the Magistrate can enquire into the
case in the same manner as if the case was triable by Court of
Sessions or High Court.
ii) However, while dealing with a fugitive criminal wanted in a
treaty State, such inquiry and such a trial is not open.
iii) The Magistrate neither has the power to take evidence nor can
he discharge a fugitive criminal. In the event, if two conditions,
namely, (1) whether the warrant is duly authenticated; and (2)
whether the fugitive criminal is concerned with an extradition
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offence are satisfied, the Magistrate is required to commit the
fugitive criminal to prison.
iv) Only the Central Government in exercise of its power under
Section 29 of the Act can discharge a fugitive criminal.
v) The Magistrate cannot make a roving inquiry into the facts.
vi) Extradition treaty implies mutual obligations.
vii) The Act recognizes the sanctity of an extradition treaty.
viii) The provisions of Section 105A of the Code of Criminal
Procedure would not apply in a case of this nature.
ix) The High Court cannot tinker with the Red Corner Notice.
x) The High Court should not set a precedent which could be used
to hamper investigation of crimes which have global
dimensions and for the investigation of which, Red Corner
Notices are critical tool.
CONTENTIONS ADVANCED BY THE PARTIES:
Mr. Shekhar Naphade, learned senior counsel appearing on behalf of
the appellant would contend:
(i) The purported decree for divorce and custody of the child granted
by the Probate and Family Court, Massachusetts being wholly
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without jurisdiction and, thus, being a nullity; the same is not
admissible in any Court in India.
(ii) Respondent No. 6 having prevaricated her stand from stage to
stage, no credence thereto could have been placed by the Courts of
India for the purpose of acting thereupon.
(iii) The purported order of custody in respect of the child passed by
the American Courts being in conflict with the order of custody
passed by the High Court of Bombay, the appellant could not have
been directed to be extradited.
(iv) The order passed by the American Court having been obtained
upon committing a fraud on the court, the said judgments cannot
be executed in India having regard to the provisions contained in
Section 44A of the Code of Civil Procedure, 1908. .
(v) Respondent No. 6 having moved the Family Court for custody of
the child by invoking the provisions contained in Section 13 of the
Code of Civil Procedure, it could not have acted, relying on or on
the basis of the orders passed by the Probate and Family Court,
Massachusetts and directed grant of custody of the child on the
basis thereof.
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So far s the judgment of the Bombay High Court is concerned, it was
urged:
(i) It ought to have considered that the so-called offence for which the
petitioner is charged by the American Court is not an extraditable
offence either within the meaning of the said Act or under the
provisions of the Extradition Treaty entered into by and between
the United States of America and India.
(ii) It ought to have been considered that the rights of an Indian citizen
guaranteed under Article 19 and Article 21 cannot be compromised
for enforcing any of the provisions contained in the Act.
(iii) It ought to have been considered that India is not a party or
signatory to the Hague Convention on the Civil Aspects of
International Child Abduction.
(iv) It ought to have considered that the dispute between the petitioner
and the Respondent - wife was essentially of a civil nature
pertaining to the custody of the minor child.
(v) The refusal of the High Court to stay the INTERPOL notices under
Article 226 of the Constitution of India is patently erroneous, thus,
leading to the miscarriage of justice.
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(vi) It ought to have been considered that the petitioner who is having
his own standing and reputation in the society cannot be treated
like a commodity for the sake of any treaty between India and the
United States.
(vii) It ought to have considered that before touching the petitioner on
the basis of a warrant issued by the American Courts proper
investigation into the allegations against the petitioner was a must.
(viii) It ought to have considered that the provisions of the Constitution
of India conferring fundamental rights to its citizens are superior
and, thus, prevail over the provisions of the said Act or the
Extradition Treaty executed between the Government of India and
the United States.
(ix) That the entire approach of the High Court was legalistic as the
High Court failed to examine the core constitutional issues
involved in the matter.
Ms. Nitya Ramakrishnan, learned counsel appearing on behalf of
Respondent No.6 on the other hand urged :-
i) Keeping in view the Scheme of the Act especially as the
question whether the appellant should be extradited or not
was not an issue before the High Court, this Court should
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not interfere with the impugned order at this stage,
particularly in view of the fact that no request for extradition
has yet been made by the authorities of U.S.A.
ii) Taking away the child out of the country in violation of an
order passed by a competent court of law would amount to
abduction and in that view of the matter the appellant must
be held to have committed an extraditable offence.
iii) Contention of the learned counsel for the Appellant that he
had not been served with the notice of the Matrimonial
Court is factually incorrect as the records of the case
demonstratively establish that, not only a notice but also the
order of the Court granting custody in favour of respondent
No.6. was served on the appellant on 20th May, 2005 which
was extended till 24th May, 2005.
iv) Although the appellant appeared before the Court on 8th
July, 2005 he neither sought any modification of the order
nor the custody of the child.
v) Appellant having forged documents to take the child out of
United States of America as the American Passport was with
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the respondent No.6 and in that view the appellant must be
held to have committed an extraditable offence.
vi) Keeping in view the provisions of Section 13 read with
Section 29 of the Act, the writ petition before the High
Court must be held to be entirely pre-mature as all the
contentions raised by the Appellant herein can be raised
before the Magistrate in the event the Central Government
thinks fit to issue a request to any Magistrate to hold an
enquiry in terms of Section 5 of the Act.
vii) Appellant even having not appeared before the Family Court
at Mumbai, the impugned judgment should not be interfered
with.
Mr.Radhakrishnan, learned senior counsel appearing on behalf of
Union of India submitted :-
(i) Having regard to the prayers made in the writ petition by the
appellant before the High Court, the High Court had no
jurisdiction to interfere with the red corner notice or the yellow
notice ;
(ii) Despite the fact that the CBI was informed that fugitive
criminal was in Mumbai, he had not been detained.
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(iii) Keeping in view the provisions contained in Chapter III of the
Act in terms whereof before passing an order of extradition the
Magistrate is required to be satisfied whether the Appellant is a
fugitive criminal and furthermore in view of Section 29 thereof
empowers the Central Government i.e. Respondent to discharge
any fugitive criminal if it appears to it to be a case of trivial
nature.
(iv) The C.B.I. despite having informed the U.S. authorities as
regards the whereabouts of the appellant, no request for
extradition having been received by the Central Government,
the writ petition must held to be pre-mature.
Dr. Rajiv Dhavan, learned senior counsel, who was requested to assist
us in the matter raised the following contentions:
(i). The Central Bureau of Investigation does not have any
authority to deal with Red Corner Notices issued by the
Interpol Secretarial General at the behest of any member
country.
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(ii). No red corner notice can be issued in violation of civil
liberties of an Indian and particularly in a matrimonial case,
the effect whereof may result in -
a) detention ;
b) arrest ;
c) circulation of name on website ; and
d) surveillance
which would amount to gross violations of law as the
appellant's personal liberty, as contained in Articles 19 and
21 of the Constitution of India, would have been interfered
with, without any authority of law. As no law operates in the
field, the actions of the State and in particular the Central
Bureau of Investigation are unconstitutional and invalid,
being violative of the civil liberties of the citizens of India.
(iii). The executive power is coterminous with the legislative
power but the legislative power wherever exists, should not be
permitted to be used so as to interfere with the right of an
individual and in particular private rights of the citizens.
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(iv). Any executive or departmental instructions framed for the
guidance of the police officers being not a law no executive
power can be exercised to curtail the fundamental right of a
citizen in terms thereof
(v). Central Bureau of Investigation having been constituted in
terms of the provisions of Delhi Special Police Establishment
Act, 1946 (hereinafter referred to as the "DSPE Act"), and
having regard to the limitations of its powers contained
therein, it could not exercise its jurisdiction within the
territories of a State without its consent.
(vi). C.B.I. had no jurisdiction of surveillance in terms of the Red
Corner Notice or Yellow Corner Notice issued by the Interpol
or otherwise.
(vii). C.B.I. being a creature of the statute must be held to be bound
by the provisions of the DSPE Act and cannot act in a sui
generis capacity.
(viii). C.B.I. having a limited territorial jurisdiction, its services
cannot be used outside its territorial framework.
(ix). The High Court committed a manifest error in passing the
impugned judgment insofar as it failed to take into
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consideration the relevant provisions of the Code of Criminal
Procedure enacted in terms of Code of Criminal Procedure
(Amendment) Act, 1993
(x). In terms of inserted Section 105A to 105L of the Code of
Criminal Procedure, the C.B.I. could not have acted except in
terms of specific order of the court passed in that regard.
(xi). A matrimonial dispute between spouses and in particular in
regard to the custody of a child being essentially a dispute of
civil nature, the provisions of the Act could not have been put
to service.
(xii). In any event the provisions of the Act cannot be pressed in red
corner notice cases and the deportation provisions under the
Foreigners Act should not be misused thereby.
(xiii). The High Court committed a serious error in passing the
impugned judgment both in regard to the conclusion as well
as directions in so far as it utterly failed to take into
consideration the civil liberties aspect as also the provisions of
the Criminal Procedure Code.
Mr. G.E. Vahanvati, learned Attorney General for India, who was also
requested to assist us in the matter upon taking appropriate instructions from
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the Ministry of External Affairs, as would appear from our order dated 24th
March, 2009, would also contend that the High Court judgment is
unsustainable as it failed to take into consideration:
a) There is nothing on record to show that the appellant had
committed an extraditable offence within the meaning of
the provisions of the Extradition Treaty entered into by
and between India and the United States of America ;
b) A matrimonial dispute would not ordinarily come within
the purview of the Act;
c) The provisions of the Act as also enforcement of the
Extradition Treaty would arise only when a person is a
fugitive criminal and he has committed an extraditable
offence and not otherwise.
THE EXTRADITION TREATY
The Extradition Treaty between the Government of Republic of
India and the Government of the United States of America entered into
on 21st July, 1999. It was published in the Official Gazette dated 14th
September, 1999. By reason of Article 1 thereof the Contracting States
agreed to extradite to each other, pursuant to the provisions thereof,
persons who, by the authorities in the requesting State are formally
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accused of, charged with or convicted of an extraditable offence,
whether such offence was committed before or after the entering into
force of the Treaty.
Article 2 defines extraditable offence to mean an offence
punishable under the laws in both the Contracting States by deprivation
of liberty, including imprisonment, for a period of more than one year
or by a more severe penalty.
An offence shall also be an extraditable one if it consists of an
attempt or a conspiracy to commit, aiding or abetting, counseling or
procuring the commission of or being an accessory before or after the
fact to, any offence described in paragraph 1.
Article 4 defines political offenses. Clause (2) of Article 4 inter
alia provides that offences related to illegal drugs, shall not be treated to
be political offence.
Article 9 provides for extradition procedures and required
documents, the relevant portion whereof reads as under:
"Article 9 - Extradition Procedures and Required
Documents :-
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1. All requests for extradition shall be submitted
through the diplomatic channel.
2. All requests for extradition shall be supported by :
(a) documents, statements, or other types of
information which describe the identity and
probable location of the persons sought ;
(b) information describing the facts of the
offense and the procedural history of the
case ;
(c) a statement of the provisions of the law
describing the essential elements of the
offense for which extradition is requested ;
(d) a statement of the provisions of the law
describing the punishment for the offense ;
and
(e) the documents, statements, or other types of
information specified in paragraph 3 or
paragraph 4 of this Article, as applicable.
3. A request for extradition of a person who is sought
for prosecution shall also be supported by :
(a) a copy of the warrant or order of arrest,
issued by a judge or other competent
authority ;
(b) a copy of the charging document, if any, and
(c) such information as would justify the
committal for trial of the person if the
offense had been committed in the
Requested State."
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Article 10 provides that the documents accompanying an
extradition request shall be received and admitted as evidence in
extradition proceedings if in the case of a request from the United
States, they are certified by the principal diplomatic or principal
consular officer of the Republic of India resident in the United States or
they are certified or authenticated in any other manner accepted by the
laws in the Requested State.
Article 12 of the Treaty reads as under:
" Provisional Arrest
1. In case of urgency, a Contracting State may
request the provisional arrest of the person sought
pending presentation of the request for extradition.
A request for provisional arrest may be transmitted
through the diplomatic channel. The facilities of
the International Criminal Police Organisation
(Interpol) may be used to transmit such a request.
2. The application for provisional arrest shall
contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case,
including, if possible, the time and location of the
offense;
(d) a description of the laws violated;
(e) a statement of the existence of a warrant of a
warrant of arrest or a finding of guilt or judgment
of conviction against the person sought; and
(f) a statement that a request for extradition for
the person sought will follow.
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3. The Requesting State shall be notified
without delay of the disposition of its application
and the reasons for any denial.
4. A person who is provisionally arrested may
be discharged from custody upon the expiration of
sixty (60) days from the date of provisional arrest
pursuant to this Treaty if the executive authority of
the Requested State has not received the formal
request for extradition and the supporting
documents required in Article 9.
5. The fact that the person sought has been
discharged from custody pursuant to paragraph (4)
of this Article shall not prejudice the subsequent
rearrest and extradition of that person if the
extradition request and supporting documents are
delivered at a later date."
Article 17 provides that a person extradited under the Treaty may
not be detained, tried or punished in the requesting State except for the
offenses enumerated therein.
Lastly, it is also imperative to note the provisions of Article 21
which read as under:
"Article 21 - Consultation
The competent authorities of the
United States and the Republic of India
may consult with each other directly or
through the facilities of Interpol in
connection with the processing of individual
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cases and in furtherance of maintaining and
improving procedures for the
implementation of the Treaty."
Furthermore it ought to be noted that India has entered into two
treaties with the United States of America. The first treaty has been entered
into in 1999 and the second in 2001. The 2001 Treaty however deals with
rendering of mutual legal assistance by one country to another is not fairly
applicable in the instant case.
THE ACT
The Act was enacted to consolidate and amend the law relating to
extradition of fugitive criminals and to provide for the matters
connected therewith or incidental thereto.
It is a special statute.
Section 2(c) of the Act defines an "Extradition Offence" in the
following words:
"(c) "extradition offence" means--
(i) in relation to a foreign State, being a
treaty State, an offence provided for in the
extradition treaty with that State;
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(ii) in relation to a foreign State other than a
treaty State an offence punishable with
imprisonment for a term which shall not be less
than one year under the laws of India or of a
foreign State and includes a composite
offence;"
Section 2(d) defines "Extradition Treaty" to mean a treaty, agreement
or arrangement made by India with a foreign State Relating to the
extradition of fugitive criminals, and includes a treaty, agreement or arrange-
ment relating to the extradition of fugitive criminals made before the 15th
day of August, 1947, which extends to, and is binding on, India;
A "fugitive criminal" is defined under Section 2 (f) of the Act to mean
a person who is accused or convicted of an extradition offence within the
jurisdiction of a foreign State and includes a person who, while in India,
conspires, attempts to commit or incites or participates as an accomplice in
the commission of an extradition offence in a foreign State.
A "treaty State" is defined under Section 2 (j) of the Act to mean a
foreign State with which an extradition treaty is in operation.
Chapter II of the Act deals with extradition of fugitive criminals to
foreign States to which Chapter III does not apply. Chapter III of the Act
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deals with return of fugitive criminals to foreign States which have
Extradition Agreements.
CODE OF CRIMINAL PROCEDURE:
In 1994, Parliament added Chapter VIIA titled: "Reciprocal
arrangements for assistance in certain matters and procedure for attachment
and forfeiture of property" to the Criminal Procedure Code, 1973. This
Chapter was introduced to facilitate the agreement between the Government
of United Kingdom of Great Britain and Northern Ireland. This was to
facilitate cooperation in investigation of crime, secure, evidence, documents
and witnesses.
It primarily deals with the question of attachment of property (Section
105C to J and Section 105A(b) to (e)). It also contains provisions for
"Assistance in securing the transfer of persons" (Section 105B). We are
concerned with the latter provisions relating to arrest and transfer.
The following threshold requirements are that these reciprocal
procedures are:
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(i) Applicable only in respect of contracting States. Section 105A
contains the interpretation Clause. Some of the relevant provisions are as
under:
"In this Chapter, unless the context otherwise requires,--
(a) "contracting State" means any country or place outside
India in respect of which arrangements have been made by the
Central Government with the Government of such country
through a treaty or otherwise;"
(ii) The statutory procedures and the institutions put in place for
processing these arrangements have been statutorily prescribed. Section
105B which is relevant for our purpose reads as under:
"105B - Assistance in securing transfer of persons.
--
(3) Where a Court in India, in relation to a
criminal matter, has received a warrant for arrest of
any person requiring him to attend or attend and
produce a document or other thing in that Court or
before any other investigating agency, issued by a
Court, Judge or Magistrate in a contracting State, the
same shall be executed as if it is the warrant
received by it from another Court in India for
execution within its local limits.
(4) Where a person transferred to a contracting
State pursuant to sub-section (3) is a prisoner in
26
India, the Court in India or the Central Government
may impose such conditions as that Court or
Government deems fit."
In any reciprocal arrangement:
(a) the Court, Judge or Magistrate to whom such a request can be
made shall be specified by the Central Government (Section 105B (1)
and (2).
(b) the form in which such a request can be made shall be specified
by the Central Government (Section 105B(1)).
(c) After due application of mind, a transfer of a person out of
India would be on the basis that "the Court in India or Central
Government may impose such conditions as that Court or
Government thinks fit" (Section 105B(4)"
Section 41(g) of the Code of Criminal Procedure also assumes
relevance here. It reads as under:-
"41. When police may arrest without warrant.--(1)
Any police officer may without an order from a
Magistrate and without a warrant, arrest any person--
(a) ...............
...............
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................
(g) who has been concerned in, or against whom
a reasonable complaint has been made, or
credible information has been received, or a
reasonable suspicion exists, of his having
been concerned in, any act committed at any
place out of India which, if committed in
India, would have been punishable as an
offence, and for which he is, under any law
relating to extradition, or otherwise, liable to
be apprehended or detained in custody in
India;"
ISSUES:
In view of the rival contentions of the parties, the following questions
which arise for our consideration are:
(i) Whether having regard to the concept of sovereignty the Executive
Government of India can enforce a warrant passed by the Probate
and Family Court, Massachusetts?
(ii) Having regard to the provisions contained in Sections 44A and 13
of the Code of Civil Procedure, is the foreign judgment
enforceable in India?
(iii) Whether the CBI established under the DPSE Act has the authority
to deal with INTERPOL notices?
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MATRIMONIAL DISPUTE AND THE COURT'S POWER OF
REVIEW:
The dispute between the appellant and the respondent No.6 essentially
being a matrimonial dispute, is a private dispute. Criminal offences, if any,
are sought to be made out relate to the violation of the Order of the Court
which speaks of commission of an offence of forgery as well.
A `Yellow Corner Notice' is evidently used to trace missing minors.
The Interpol issued a yellow or watch notice on 13.6.2007 in respect of
Eesha, minor daughter of the respondent No. 6. It, however, issued a red or
detain and arrest notice on 21.6.2007 to locate and arrest the Appellant.
Pursuant thereto or in furtherance thereof, the Assistant Director, National
Crimes Bureau (NCB) forwarded a letter dated 4.1.2008 received from the
U.S. Embassy (Department of Justice) to the Mumbai Police to locate the
appellant and his daughter on 14.01.2008. Appellant was located by
Mumbai Police on 3.5.2008 and the said information was passed on to the
U.S. Embassy on 9.5.2008.
The CBI has also filed its counter affidavit before this Court stating
that the Indian Interpol Wing works as an interface between the Interpol
Secretariat General, France, Interpol member countries and various law
29
enforcement agencies of India. One of its functions is to circulate the Red
Corner Notice as also Yellow Corner Notices issued by the Interpol
Secretariat General at the behest of any member country within India. The
Red Corner Notice is issued to the border control authorities and others so
as to enable them to effect an arrest along with details and papers including a
warrant from the originating country. An arrest may also be made under the
said Act. The Ministry of External Affairs works for the administrative
watching of the Act.
A Red Corner Notice has large number of consequences, some of
which are:
(i) The requesting country may make a deportation request.
(ii) The law enforcement agency in India is required to "take follow
up action with regard to the arrest of a fugitive criminal".
(iii) The information emanating from the red corner notice is
required to be distributed all over the Interpol website.
(iv) The requesting Embassy would instruct the CBI to carry out its
instructions for surveillance, arrest and detention.
(v) The requesting Embassy can even contact the Indian police
directly.
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(vi) Thereafter extradition proceedings may follow.
Indisputably, therefore, when a proceeding under the Act is initiated,
the civil liberty of a person would be directly affected. The provisions of the
Act, therefore, should be strictly construed. Any request for extradition
therefore must undergo the strict scrutiny test. Extradition offence keeping
in view its definition in Section 2(c) of the Act in relation to a treaty State
must be one provided for the extradition treaty therewith.
Application of the provisions of the Act, thus, in a case of this nature
must be held to be imperative in character. We have noticed hereinbefore
that for the purpose of applying the provisions of the Act, existence of a
treaty between the requesting State and the requested State plays an
important role. It makes a distinction between an extraditable offence and
other offences including political offences subject of course to the condition
that offences relating to illegal tax are not to be treated to be a political
offence. Sections 4-18 provides for the mode and manner in which a request
for extradition of a person is required to be made by the concerned country.
The requirements are specific in nature and are required to be accompanied
by a large number of documents.
31
It is accepted at the Bar that no request has yet been made to the
Executive Government of the Government of India for extradition of the
Appellant upon compliance of the provisions of Section 2-18 or otherwise.
It is but imperative to note the provisions of the Treaty here vis-a vis
the implementation of a Red/ Yellow Corner Notice.
Article 1 of the Treaty provides that the Contracting States agree to
extradite to each other, persons who are accused of, charged with or
convicted of an extraditable offence.
Article 2 provides for the extraditable office. Article 4 provides for
political offences which are outside the purview of the Treaty. Article 9
provides for the extradition procedures and required documents.
It is beyond any doubt or dispute that no request for extradition has
been received by the Government of India. It could act only when a request
is received. It is accepted at the Bar that Red Corner Notice by itself cannot
be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction.
There is furthermore no dispute that the Act cannot be bypassed in red
corner cases concerning Indian citizens. Hence the Extradition Treaty is
subject to the provisions of the Act. It also stands admitted that the
32
Appellant being an Indian citizen is entitled to enforcement of his
fundamental rights.
The legal position that a person cannot be arrested without any
authority of law again is not denied or disputed. Thus, the arrest of a person
must be effected in terms of the provisions of the Act. A person wanted for
an offence in a foreign jurisdiction may be arrested on fulfillment of the
following conditions:
(i) That the offence should be counted as one by Indian Law as
well, and
(ii) The person must be liable to be arrested in India - either under
any law relating to extradition, or otherwise.
Such an arrest can be effected only pursuant to a warrant issued by the
Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant
issued by a foreign country and endorsed by the Central Government under
Section 15 of the Act. It is also not in doubt or dispute that in a case where
there is no treaty, it is only the Magistrate who issues the warrant for arrest
subject of course to the condition that the Central Government had ordered a
Magisterial Inquiry in terms of Section 5 of the Act. Such an order of arrest,
emanating from a Treaty -State, is also permissible under a `Provisional
33
Warrant' issued by a Magistrate in exercise of its power under Section 16 of
the Act, upon information that the fugitive should be apprehended subject to
the condition that the detention thereunder may continue only for the time
requisite for obtaining an endorsed warrant from the Central Government.
All arrested persons are required to be immediately produced before a
Magistrate whereupon it would have power to grant bail. Section 34B
provides that the person so arrested would have to be released on bail after a
period of 60 days. If actual request for extradition is required within the said
period having regard to Section 41(g) of the Code of Criminal Procedure, the
Central Government cannot direct or effect an urgent arrest in anticipation of
an extradition request without obtaining a warrant issued by a Magistrate.
Article 12 provides that provisions of provisional arrest according to which
in a case of urgency, the Contracting State may request the provisional arrest
of the person sought pending presentation of the request for extradition. It
also provides that the facilities of International Criminal Police Organization
(Interpol) may be used to transmit such a request.
However, when a request for provisional arrest in terms of Article 12
is communicated, it must satisfy the requirement of Section 34B of the Act.
Such request from a foreign country must be accompanied by the requisite
documents and not a communication from INTERPOL alone. It will bear
34
repetition to state that an arrest can be effected at the instance of the Central
Government only when such a request is made by the foreign country and
not otherwise. Respondent No.6 herself accepts that she had pursued only
civil remedies and the order of the custody Court was passed under civil
remedies. Section 29 of the Act as indicated hereinbefore provides for
power of Central Government to discharge any fugitive criminal. If it has
arrived at a conclusion that it is unjust or inexpedient to surrender or return
the fugitive criminal.
The High Court, therefore, in our opinion, committed a serious error
insofar as it failed to take into consideration the provisions of the Act, in the
absence of any request having been made by the Government of United
States of America to the Executive Government of the Union of India or any
authorization made by the latter in this behalf.
India follows the doctrine of dualism and not monoism. We may,
however, hasten to add that this Court, however, at times for the purpose of
interpretation of statute has taken into consideration not only the treaties in
which India is a party but also declarations, covenants and resolutions
passed in different International Conferences. {See M/s Entertainment
Network (India) Ltd. vs. M/s Super Cassettee Industries Ltd. [2008 (9)
SCALE 69]
35
The Act as also the treaties entered into by and between India and
foreign countries are admittedly subject to our municipal law. Enforcement
of a treaty is in the hands of the Executive. But such enforcement must
conform to the domestic law of the country. Whenever, it is well known, a
conflict arises between a treaty and the domestic law or a municipal law, the
latter shall prevail.
It furthermore stands admitted that matrimonial dispute as such does
not constitute an extraditable offence and, thus, no effect could be given
thereto. However, whether this case concerns an extraditable offence or not
has to be determined by the Magistrate under the Act.
We have noticed hereinbefore that the Treaty itself provides that the
same is subject to any Municipal Laws of the country. It is thus for the State
concerned to take a decision in regard to such notices, keeping in view the
Municipal Laws. The steps to deal with the request contained in the notices,
thus, must abide by the domestic laws of the concerned country.
Recognition of the request as the basis for an arrest operate an
internationalization or tans-nationalization of a foreign administrative
decision. The formal admission procedure by Interpol cannot be the single
36
cause of internalization. It is just a precondition for the recognition by the
other states.
We may however add that, indisputably the appellant received a
notice from Interpol dated 13th June, 2007 being a Yellow or Watch notice as
also a Notice dated 21st June, 2007 being a Red or Detain and Arrest notice.
Yellow notice was in relation to the child whereas the red notice was in
relation to the Appellant. The Assistant Director of National Crime Bureau
(NCB) forwarded a letter dated 4th January, 2008 from the U.S. Embassy
(Department of Justice) on or about 14th January, 2009 to the Mumbai Police
to locate the Appellant and his daughter. On 18th March, 2008 notice of
arrest warrant issued by INTERPOL was circulated against the Appellant
on the Interpol Website. Mumbai police is said to have found the location of
the Appellant and his daughter on 3rd May, 2008 which information was
passed on to U.S. Embassy on 9th May, 2008.
It is also not in dispute that the CBI has an Interpol Wing as is evident
from its counter-affidavit and that the U.S. Embassy was in touch with it as
also of the Mumbai Police in respect of locating the Appellant.
37
Before, however, we advert to the functioning of CBI vis-`-vis its role
in terms of notices issued by Interpol, it would be appropriate to place on
record the constitution of Interpol.
APPLICABILITY OF CHAPTER VIIA OF THE CODE OF
CRIMINAL PROCEDURE
For the purposes of effectively implementing the treaty providing for
mutual assistance between the Government of United Kingdom of Great
Britain and Northern Ireland, Chapter VIIA of the Code of Criminal
Procedure was enacted as is also provided in the Statement and Objects
thereof. The said provisions were laid down by the Parliament so as to
consider implementation of the provisions of the reciprocal arrangements for
assistance in certain matters and procedure for attachment.
The provisions contained in Section 105A onwards of the Code of
Criminal Procedure are subject to additions, exceptions or qualifications as
may be specified in the Notification issued by the Central Government.
Indisputably where there exists any reciprocal arrangement, the
following are required to be complied with:
38
(i) The Court, Judge or Magistrate is required to be specified by
the Central Government to whom a request can be made.
(ii) The form in which such a request is to be made is again
required to be specified by the Central Government.
(iii) A transfer of a person out of India must precede upon due
application of mind on the part of the Magistrate subject again
to the condition that either the Court or the Central Government
may impose such conditions as they may seem fit and proper.
It is submitted by the learned counsel that with regard to dispute of the
provisions of international comity
(a) any transfer of a human being to another country goes to the
root of fundamentally protected civil liberties.
(b) Chapter VIIA of the Code of Criminal Procedure is hedged in
with limitations requiring the intervention of the Court and Central
Government with due application of mind.
(c) No mechanical transfer can be made simply at the instance of
government or the CBI which in any case has no role to play.
(d) The application of the Act is not ousted and cannot be by
passed.
39
(e) The Court may examining equitable and other factors. This is
implied from the condition imposing power.
(f) To that extent, the provisions of Chapter VIIA shall be read up
to bring it in conformity with Articles 14 and 21 of the Constitution.
In our opinion, however, the submissions are a clear misreading of
Chapter VIIA of the Code of Criminal Procedure which does not apply in
situations of Extradition.
INTERPOL ((The International Criminal Police Organisation).
The INTERPOL is the world's largest international police
organization with 187 countries as its members. It was created in 1923. The
object of establishing the INTERPOL was `to ensure and promote the widest
possible mutual assistance between all criminal police authorities'. It
facilitates cross - border police cooperation and supports as well as assists
all organizations, authorities and services whose mission is to prevent or
combat international crime. Even in a case where the country concerned
inter se do not have any diplomatic relation, the INTERPOL aims to
facilitate international police cooperation. Action is taken by it, having
regard to the provisions contained in the Universal Declaration of Human
40
Rights and keeping in view the limitation of existing municipal laws of the
country concerned.
It has six departments, namely -
i) The General Assembly ;
ii) Executive Committee ;
iii) General Secretariat ;
iv) National Control Bureaus
v) Advisers ; and
vi) Commission for the Control of Interpol Files.
We are concerned here only with the National Central Bureaus. Each
INTERPOL member country maintains a National Control Bureau (NCB)
staffed by national law enforcement officers. The NCB is the designated
contact point for the General Secretariat, Regional Officers and other
member countries requiring assistance with overseas investigations and the
location of fugitives. It serves as operational center and liking platforms
between the national and the international level.
It is not in dispute that in terms of Article 32 of the INTERPOL
Constitution each member country is to have a NCB responsible for
exchanging information and data for coordination the functioning within its
41
own country, with other member countries as also with the General
Secretariat of the INTERPOL.
The INTERPOL Constitution prohibits any intervention or activities
of a political, military, religious or racial character. The International
policing ultimately depends on coordinated action on the part of the Member
State's police forces so as to obtain the required information or services as
and when any occasion arises therefor.
We may furthermore place on record that the Constitution of the
Interpol was adopted by a Resolution of the General Assembly i.e. AG-
2005-Res-05. Initially its status was of an observed as Non Governmental
Organisation (NGO). In Public International Law, keeping in view its
status, INTERPOL is considered to be an International Organisation with its
own legal personality. The contribution to the financing of the organization
is by the Member States. Member States can have several delegates in the
General Assembly.
INTERPOL NOTICES
The organizational system of issuing International notices forms the
backbone of its functioning. The Member countries in terms of notices share
42
critical crime related information. They concern individuals wanted for
serious crimes, missing persons, unidentified bodies etc. Such notices
contain comprehensive identity particulars of the individuals concerned
including the physical description, fingerprinting, occupation and all other
relevant information including the offence with which the person has been
charged, reference to the law under which the charge was made or the
conviction was obtained etc. The notices issued by the INTERPOL are of
six types - Red Notice ; Yellow Notice ; Blue Notice; Green Notice ; Black
Notice and Orange Notice. It also contemplates Interpol-United Nations
Special Notice.
We are concerned herein only with Red and Yellow Notices. A Red
Corner notice is issued to seek the provisional arrest of a wanted person.
However, it by itself does not have the effect of warrant of arrest. It is
issued for persons, against whom a national or international court has issued
a warrant of arrest. It is solely a request of the issuing entity to provisionally
or finally arrest the wanted person for extradition. A Yellow notice,
however, is issued for finding a missing person or to identify people who are
not capable of identifying themselves. It is an "International Missing
Person Notice". It is issued specially to locate minors.
43
PROCEDURE FOR ISSUING NOTICE
Notice in terms of Article 10.5 of the RPI (Rules governing the
processing and communication of police information) of the INTERPOL can
be issued by the General Secretariat either at the request of an authorized
entity or on its own initiative as is the case in Green and Orange Notices.
Usually, the NCBs are the authors of a Red or Yellow Notice. The General
Secretariat before issuing or distributing Notices, especially to other offices
than the NCBs, has to evaluate, whether the issue is necessary and advisable
having regard to the aims and tasks of the organization, the respect of
Human Rights and the required security measures against possible menaces
to the police cooperation, to Interpol itself or to the member states. The
General Secretariat has been authorized by the General Assembly to forbid
the issuing of a Notice, if it does not meet the requirements of a request for
provisional arrest. However, we must place on record that a reference to the
presumption of innocence of the wanted person is not a part of the published
rules and regulations. Only the corresponding pages of the internet
appearance of the organization contain explicitly highlighted warnings of
this kind.
It bears repetition to state that the General Secretariat of the Interpol
publishes the notices either on its own initiative, or based on the requests
44
from the NCB or international organization or entities with whom the
INTERPOL has special agreements.
It may be of some interest also to notice that in the year 2008 alone
the INTERPOL issued 3126 Red Corner Notices and around 385 Yellow
Corner Notices.
At this juncture we may also place on record that Article 12 of the
Extradition Treaty dated 14th September, 1999 entered into between the
Government of India and the Government of the United States of America
deals with provisional arrest of the person sought pending presentation of
the request for extradition providing that the facilities of the INTERPOL
may be used to transmit such a request. Furthermore, Article 21 of the
Treaty providing for Consultation also contemplates the use of the
INTERPOL'S services.
BINDING NATURE OF THE INTERPOL NOTICES:
The notices issued by INTERPOL are not considered as
administrative decisions on individual cases with transnational effect. They
are not construed as an "international administrative act." They lack a
character of regulation. They do not constitute an international arrest warrant
and they are not in any other form binding the individuals concerned legally.
45
They, however, gain de facto with special relevance to the Human Rights
through multiplication of its recipients.
Infact Interpol's "red notices" often function as de facto international
arrest warrants and countries issue warrants immediately upon receipt of
such a notice. However, they do so with the understanding that a request for
extradition with supporting evidence will follow the red notice, without
delay. The suspect must then go through the standard extradition process.
The bottom line is that "warrants to arrest suspects must have legal authority
in the jurisdiction where the suspect is found" and Interpol red notices do not
have such authority. They are primarily a means of facilitating
communication between police agencies and the success of the Interpol
system still depends entirely upon voluntary cooperation.
They, however, do not entirely lack external effects. A number of
states recognizes the Red Notices as an official request for the arrest of a
person. However, such a request does not require the action of national
police authorities and does not provide a legal basis thereto.
The trans-nationalization takes place through the membership in the
organization, through the supervision proviso of the General Secretariat and
the recognition of the transnational effect of the information.
46
A successful search does not result in Interpol's further operative
involvement, either. Concerned authorities or the public are supposed to
contact the local police office, which then gets in touch with the issuing
authority and initiates the necessary steps.
Therefore, the member state usually gives the initiative for a Notice,
and cooperates with one or several other member states in order to find and
arrest the wanted person. Existing information is just distributed through a
special communication channel. Interpol's role is limited to that of a service
agency. {See Bettina Schondorf-Haubold, The Administration of
Information in International Administrative Law - The Example of Interpol,
9 German L.J. 1719}
CENTRAL BUREAU OF INVESTIGATION (C.B.I.)
A Special Police Force was constituted in the year 1943 by
promulgation of an Ordinance by the Government of India in terms whereof
the powers of investigation of certain offences committed in connection with
the departments of the Central Government committed any where in British
India were vested with it. The said Ordinance lapsed on 30th September,
1946. As the Central Government felt the necessity to cope with the cases
47
of bribery and corruption investigated after the end of the war, the said
Ordinance was repealed and replaced by Delhi Special Police Ordinance of
1946. The DSPE Act was brought into existence the same year.
After the promulgation of the DSPE Act, superintendence of Special
Police Establishment (SPE) was transferred to the Home Department and its
functions were enlarged to cover all departments of the Government of
India. It jurisdiction was also extended to all the Union territories. The
DSPE Act provided for its extension to States with the consent of the
concerned State Government. The C.B.I. was established, as it was felt that
SPE would not be able to cope with the problems arising out of the country's
over-expanding economy, by reason of a Resolution adopted by the
Government of India vide Resolution No.4/31/61-T dated 1st April, 1963.
Later on the SPE was merged with the C.B.I and became one of its
Division. In terms of the provisions contained in Section 3 of the DSPE Act,
the Central Government issues Notifications empowering the C.B.I. to
investigate in regard to the offences specified by it; The Notification dated
23rd September 1989, S.O. 2301 empowered the CBI to investigate, among
other things, offences relating to Sections 363 ; 363A ; 365 and 368 of the
Indian Penal Code being some of them.
48
It is at this juncture, a discussion of the DSPE Act becomes
imperative.
The Title and Preamble of DSPE Act reads:-
"An Act to make provision for the constitution of a
special police force in Delhi for the investigation
of certain offences in the Union territories for the
superintendence and administration of the said
force and for the extension to other areas of the
power and jurisdiction of the members of the said
force in regards to the investigation of the said
offences."
"Whereas it is necessary to constitute a special
police force in Delhi for the investigation of
certain offences in the Union territories and to
make provisions of for the superintendence and
administration of the said force and for the
extension to other areas of the powers and
jurisdiction of the members of the said force in
regard to the investigation of the said offences."
The relevant provisions of the DSPE Act are Sections 2; 3 and 5,
which read as under :-
2. Constitution and powers of special police
establishment. : (1) Notwithstanding anything in
the Police Act, 1861 (5 of 1861), the Central
Government may constitute a special police force
to be called the Delhi Special Police Establishment
for the investigation in any Union Territory of
offences notified under Section 3.
49
(2) Subject to any orders which the Central
Government may make in this behalf, members of
the said police establishment shall have throughout
in any Union Territory, in relation to the
investigation of such offences and arrest of persons
concerned in such offences, all the powers, duties,
privileges and liabilities which police officers of
that Union Territory have in connection with the
investigation of offences committed therein.
(3) Any member of the said police establishment
of or above the rank of Sub-Inspector may, subject
to any orders which the Central Government may
make in this behalf, exercise any Union Territory
or any of the powers of the officer-in-charge, of a
police station in the area in which he is for the time
being and when so exercising such powers shall,
subject to any such order as aforesaid, be deemed
to be an officer-in-charge of a police station
discharging the functions of such an officer within
the limits of his station.
3. Offences to be investigated by special police
establishment. The Central Government may, by
notification in the official Gazette, specify the
offences or classes of offences which are to be
investigated by the Delhi Special Police
Establishment.
5. Extension of powers and jurisdiction of
special police establishment to other areas. : (1)
Central Government may by order extend to any
area (including Railway areas) a State, not being a
Union Territory the powers and jurisdiction of
members of the Delhi Special Police Establishment
for the investigation of any offences or classes of
offences specified in a notification under Section
3.
(2) When by an order under sub-section (1) the
powers and jurisdiction of members of the said
50
police establishment are extended to any such area,
a member thereof may, subject to any orders which
the Central Government may make in this behalf,
discharge the functions of a police officer in that
area and shall, while so discharging such functions
be deemed to be a member of the police force of
the area and be vested with the powers, functions
and privileges and be subject to the liabilities of a
police officer belonging to that police force.
Undoubtedly in terms of Section 5 of the DSPE Act, although the
powers of the authority established therein can be extended by the Central
Government upon the consent of the concerned State, we may notice that by
reason of the Government of India's Resolution dated 1st April, 1963 the
C.B.I. was empowered to conduct investigation with regard to co-ordination,
Inter-State matters and participation as: the National Central Bureau in the
work connected with the INTERPOL thereby presupposing the non-
requirement of the concerned State's consent.
We have referred to the said question as one of the contentions raised
by Dr. Dhawan is that without the consent of the State, the C.B.I. could not
have directed any surveillance on the Appellant or got the warrant of arrest
executed through the Mumbai police. Although, we intend to deal with the
said question separately we may at this juncture notice the relevant entries in
the List I of the Seventh Schedule of the Constitution. They read :-
51
a. Entry 8: Central Bureau of Investigation.
b. Entry 10: Foreign Affairs; all matters which bring the Union
into relation with any foreign country.
c. Entry 11: Diplomatic, consular and trade representation.
d. Entry 12: United Nations Organisation.
e. Entry 13: Participation in International Conferences,
associations and other bodies and implementing of decisions
made thereat
f. Entry 14: Entering into treaties and agreements with foreign
countries and implementing of treaties, agreements and
conventions with foreign countries.
g. Entry 18: Extradition
The legislative power of the Parliament is, therefore, broad and cover
wide ranging legislative field.
CO-ORDINATION WING OF THE CBI:
The Coordination Wing is a non- investigating Unit of CBI dealing
with the general coordination and administrative matters relating to Interpol
and Coordination functions of CBI. Its primary duty is to liaise and
coordinate with Branches of CBI and other Departments/ Ministries, Law
Enforcement Agencies, State/UT Police Forces and foreign Police/Missions
and organizations as and when required. One of the main functions which is
52
being looked after by the Coordination Wing of CBI, pertinent in the case of
Look out Circulars: All the State Police forces and other law enforcement
agencies in India have a link through INTERPOL New Delhi to their counter
- parts in other member countries through the Interpol Global
Communications System ( I- 24/7) prepared to assist in dealing with
criminal investigations.
JURISDICTION OF C.B.I.
The provisions relating to issuance of the notice by INTERPOL;
warrant of arrest by foreign courts vis-`-vis the power of NCB and the local
police to act in terms thereof are contained not only in the Act but also in the
provisions of the concerned Treaty, Code of Criminal Procedure as also the
various Notifications issued by the Central Government in that behalf.
POWERS UNDER THE ACT
We will deal with this subject in two parts one is stage before arrest
and second stage after arrest.
BEFORE ARREST
Power to apprehend or investigate a fugitive criminal, we have
noticed hereinbefore, is conferred by Section 14 read with Section 15 of the
53
Act. Section 14 prescribes the form of apprehension of a fugitive criminal
under an endorsed warrant or a provisional warrant. Section 14 of the Act
reads as hereunder:
"14. Endorsed and provisional warrants. A
fugitive criminal may be apprehended in India
under an endorsed warrant or a provisional
warrant.
Warrant can be issued by a foreign country to arrest a fugitive
criminal who is yet to be tried and a person who has already been convicted.
A fugitive criminal may be apprehended either under category (i) an
Endorsed Warrant ; and (ii) a Provisional Warrant. An Endorsed Warrant is
one which is a warrant that has, at first been issued by the foreign country
with which India has an Extradition Treaty and subsequently been endorsed
by the Central Government. Hence once a warrant issued by the foreign
country is endorsed by the Central government, it becomes an Endorsed
Warrant in terms whereof sufficient authority is conferred to apprehend a
person and to bring him before any Magistrate in India. Power to apprehend
includes the power to investigate. Section 15 uses the term "Apprehend"
which is defined as "the seizing or taking hold of a man; the act of arresting
or seizing under the process of law".
54
Section 15 of the Act describes `endorsed warrant'. It reads as:
"15. Endorsed warrant for apprehension of
fugitive criminal. Where a warrant for the
apprehension of a fugitive criminal has been issued
in any 3*[foreign state] to which this Chapter
applies and such fugitive criminal is, or is
suspected to be, in India, the Central Government
may, if satisfied that the warrant was issued by a
person having lawful authority to issue the same,
endorse such warrant in the manner prescribed,
and the warrant so endorsed shall be sufficient
authority to apprehend the person named in the
warrant and to bring him before and magistrate in
India."
PROCEDURES REQUIRED TO BE FOLLOWED AFTER A
PERSON IS ARRESTED.
The requirement to arrest a person for the purpose of his extradition is
in two categories - (1) the cases in which India has an Extradition Treaty
with the concerned country and (ii) those in which no such extradition treaty
exits. In the former category of cases the provisions of Chapter III of the
Act shall apply. Arrest, as noticed hereinbefore, is made by the police
authorities in terms of endorsed warrant ; whereafter the procedure laid
down in Section 17 is to be followed by reason whereof the fugitive criminal
is to be brought by the Magistrate. Once the Magistrate satisfies that the
fugitive criminal has been brought before him in terms of an endorsed
55
warrant which is duly authenticated and that the offence is an extraditable
one, the Magistrate shall commit the fugitive criminal to prison. A
certificate of committal is thereafter sent to the Central Government.
Section 17 states that the endorsed warrant in the case of the person
who is brought before whom is duly authenticated and that the offence with
which the person is accused of or has been convicted in an extradition
offence, the magistrate shall commit the fugitive criminal to prison to await
his return and shall forthwith send to the Central Government a certificate of
the committal.
Appellant is sought to be apprehended for commission of an offence
under Section 363 of the Indian Penal Code. We have noticed hereinbefore
that it is an extraditable offence, provided it is not a pure matrimonial
dispute. C.B.I. for intent and purport exercises the power of NCB in terms
of the Treaty and thus derive its authority from INTERPOL itself.
C.B.I. is thus the designate of the INTERPOL in India and endorsing
warrants is an essential attribute of the procedure for the implementation of
the Treaty.
56
The Ministry of Home Affairs by a circular letter dated 18th March,
1949 issued to all State Governments and Union Territories established the
Intelligence Bureau as the ICPO-INTERPOL, the National Central Bureau
for India. The C.B.I. was established as the representative of India for the
purpose of correspondence with ICPO-INTERPOL by reason of a circular
letter dated 17th October, 1966.
We have noticed hereinbefore that by a Resolution dated 1st April,
1963 the Government of India gave to the C.B.I. the powers of Investigation
of crimes, handled by the Intelligence Bureau of the SPE and for
participation as the NCB in the work connected with the INTERPOL. It is
of significance to notice that C.B.I. in its website maintains that it handles all
procedures related to Extradition and Issuance of Interpol Notices.
We have proceeded on the basis that the power of C.B.I. and its
delegated authority namely, the State police to keep a person under
surveillance ; arrest him in terms of warrant of arrest issued by a foreign
country and Red Corner Notice is an absolute one. Similarly the power to
find out a missing person in terms of the Yellow Notice is also absolute.
57
However, the question in regard to the necessity of warrant being endorsed
or the effect of the Red Corner Notice vis-`-vis the fundamental right of an
individual in terms of Article 21 of the Constitution of India as also his right
of privacy and the loss of reputation would be dealt with at an appropriate
stage.
POWERS UNDER THE CODE OF CRIMINAL PROCEDURE
We may also notice some of the provisions of the Code of Criminal
Procedure laying down the procedures after arrest.
It is, however, beyond any doubt that the power is exercised by the
C.B.I. or a police officer to arrest a person, although no warrant is issued in
terms of Section 41(1)(g) of the Code of Criminal Procedure. It pre-
supposes satisfaction of a police officer to arrest a person, if he has been
concerned in, or against whom a reasonable complaint has been made, or
credible information has been received in, any act committed at any place
out of India which, if committed in India, would have been punishable as an
offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in India.
58
However, the CBI website states that in case an action is taken under
S. 41(1)(g), the matter must be immediately referred to the Interpol Wing for
onward transmission to the Government of India to take a decision or
otherwise.
In terms of the aforementioned provisions, sanction of the Central
Government is contemplated. We may, however, place on record that strictly
construed in a case involving extradition, Section 41(g) of the Code may not
have any application.
It is sought to be clarified that Section 41(g) of the Code of Criminal
Procedure clearly contemplates the power of the Police to arrest under "any
law relating to Extradition" thereby contemplating the exercise of powers
subject to the provisions of the Extradition Act. Thus the provisions of the
Code of Criminal Procedure are subject to those in the Act.
LIMITATION OF POWER OF C.B.I. AND STATE POLICE
Jurisdiction of CBI in Red Corner Notice
59
In its affidavit filed on 23rd January, 2009 by C.B.I. stated as under :-
"3(a) The answering Respondent being the
functionary of Interpol, New Delhi (Central
Bureau of Investigation) submits that it works as
an interface between Interpol Secretariat Genral,
France, Interpol member countries and various law
enforcement agencies of India.
(b) with regard to location and apprehension of
a wanted fugitive, the role of the answering
Respondent is to circulate the red corner notice
issued by Interpol Secretariat General at the behest
of any member country within India.
(c) In order to trace a fugitive criminal, who
might have left his/her country, an Interpol Red
Corner Notice is got issued through IPSG
(Interpol Secretariat General) at Lyon, France
based on an arrest warrant issued by the
competent judicial authority. Red Corner Notice
is sent to the immigration/border control
authorities of various countries, who may
detain/identify such individual depending upon
provisions of their domestic laws and inform the
requesting country/and authorities concerned for
further necessary action. The domestic legal
provisions differ from country to country and
while some countries have accorded legal sanctity
to Red Corner Notice, others do not do so. Once
the fugitive is located on the basis of a Red
Corner Notice, the concerned law enforcement
agency is required to send a request for
provisional arrest followed for extradition request
duly accompanied by all necessary documents to
the concerned country through diplomatic
channels. The requesting country may also make
a deportation request.
60
(d) A red corner notice is supported by an
arrest warrant issued by the competent judicial
authority which empowers the law enforcement
agency of any member country to take follow up
action with regard to the arrest of the fugitive
criminal.
(e) The National Central Bureau of other
countries (member countries of INTERPOL) also
a request the IPSG for issuance of Red Corner
Notices against their wanted subjects and all the
member countries take action for the location,
arrest and extradition/deportation for the same as
per its law of the land.
(f) Similarly the Interpol General Secretariat
publishes `Yellow Notice' to help missing
persons, often minors, or to help identify persons
who are unable to identify themselves.
(g) Once a person is detained pursuant to a red
corner notice, he is produced before the
Magistrate and then further action is taken as per
the provisions of the Extradition Act, 1962."
The question is as to whether the consequences of the Red Corner
Notice contravene the civil liberty of a citizen in terms of Articles 14, 19 and
21 of the Constitution of India.
Before, however, we devolve thereupon, we may notice the Executive
Powers of the Union. Any action taken by the Union of India through the
Ministry of External Affairs or the C.B.I., on the request of INTERPOL, s
Executive Power as contained in Article 73 of the Constitution. We have
61
noticed heretobefore the relevant entries in the Legislative List being Entry
Nos. 8, 10 to 14 and 18 of List - 1 of the Seventh Schedule of the
Constitution. We may also notice that in regard to the the matter relating to
criminal law the Concurrent List provides therefor in Entry Nos. 1 and 2
which read :-
"1. Criminal law, including all matters included
in the Indian Penal Code at the commencement of
this Constitution but excluding offences against
laws with respect to any of the matters specified in
List I or List II and excluding the use of naval,
military or air forces or any other armed forces of
the Union in aid of the civil power.
2. Criminal procedure, including all matters
included in the Code of Criminal Procedure at the
commencement of this Constitution."
Indisputably the Central Government has no jurisdiction over the police
which is contained in Entry 2 of List II of the Seventh Schedule. It includes
railway and village police, subject to the provisions of Entry 2A of List I,
which reads as under :-
"2A. Deployment of any armed force of the
Union or any other force subject to the control of
the Union or any contingent or unit thereof in any
State in aid of the civil power; powers, jurisdiction,
privileges and liabilities of the members of such
forces while on such deployment."
62
Does this violates the doctrine of federalism is the question?
The power of the Central Government vis-`-vis State is in two
categories.
The police power of the State in respect of any offence committed in a
State comes within the legislative competence of the State. The State may
exercise some extra territorial jurisdiction only if a part of the offence is
committed in the State and the other part in another State or some other
States. In such a event the State before an investigation to that part of the
offence which has been committed in any State may have to proceed with
the consent of the concerned State or must work with the police of the other
State. Its jurisdiction over the investigation into a matter is limited.
Keeping in view the various entries contained in List I of the Seventh
Schedule of the Constitution, there cannot be any doubt whatsoever that in
the matter of investigation of the matter committed in a State, the
jurisdiction of the Central Government is excluded.
Extradition of a fugitive criminal from India to any other foreign
country, irrespective of the fact as to whether any treaty has been entered
into or with that country, is within the exclusive domain of the Central
63
Government. The extradition of a person from India to any other foreign
country is covered by the Parliament Act, namely the Act. Keeping in view
the Constitution of INTERPOL vis-`-vis the Resolutions adopted by the
C.B.I. from time to time, although a Red Corner Notice per se does not give
status of a warrant of arrest by a competent court. It is merely a request of
the issuing authority to keep surveillance on him and provisionally or finally
arrest the wanted person for extradition. The provisions of the Act and the
Treaty are required to be given effect to. Whenever a request is received
from INTERPOL the authority must act on behalf of the Central
Government. The INTERPOL provides constitution of NCBs by Member
States. All Members are required to constitute NCBs which should be an
authority within the meaning of the provisions of INTERPOL for
coordination of the functioning within the Member States and/or the
INTERPOL in case of any request received. Location of a missing person
and or tracing the whereabouts of a fugitive criminal is not an easy task.
The authority within the meaning of the words of the INTERPOL must act
in cooperation with the State police. For the said purpose it may have to
request more than one States. A missing person or a fugitive criminal may
move from one State to another. In such a case it is not possible for one
State to find out the missing person or fugitive criminal.
64
C.B.I., although constituted under the DSPE Act its functions are
multiple. While acting in terms of the provisions, in particular Sections 3
and 5 of the DSPE Act, it acts as an investigating officer. The Act
contemplates commission of the offences of the nature specified in the Act
or those specified in several Notifications issued from time to time. In terms
of Section 3 of DSPE Act first information reports are required to be lodged.
For the said purpose, the C.B.I. which has several branches all over India is
an officer incharge of a police station within the meaning of Section 154 of
the Code of Criminal procedure. The authority specified in the DSPE Act,
namely the Superintendent of Police of C.B.I. is an officer entitled to carry
out any investigation. Only when an investigation is carried out in relation
to an offence which has been committed in a State and not in the Indian
territory or within the territorial jurisdiction of the Central Government the
consent of the State concerned is required to be obtained.
We are not concerned, as it is not necessary for us to determine,
whether a direction for making investigation by the C.B.I. by the superior
courts of the country is permissible. As the law stands, we place on record
such directions by the superior courts are permissible.
65
C.B.I. has different roles to play. When it acts as NCB, being a
department of CBI, it acts under a Treaty. It acts in terms of the constitution
of the INTERPOL. It acts as a authority of the Central Government. By
reason of such an act it does not carry out investigation, although it is
entitled therefor. It functions as an NCB which is to give effect to the
request received from INTERPOL and/or foreign country. When it does so,
indisputably it has to apply its mind. It can take any action only because it is
lawful to do so. It does not exercise absolute discretion. It has to act if a
case therefor has been made out including the question as whether any
extraditable offence has been made out. For the aforementioned purpose it
does not Act as an agency within the four corners of the DSPE Act. It acts,
it will be a repetition to state, has an authority of the Central Government.
The limitation of its powers having regard to the provisions of Section
5 of DSPE Act as also some of the decisions of this Court, therefore, in our
opinion, cannot be said to have any application in the facts and
circumstances of this case.
C.B.I., therefore, is entitled to organize and coordinate in regard to the
request made by INTERPOL. It may have to obtain endorsed warrant. It
may have to give provisional warrant in terms of Section 34B of the Act.
66
Surveillance per se under the provisions of the Act may not violate
individual or private rights including the right to privacy.
Right to privacy is not enumerated as a Fundamental Right either in
terms of Article 21 of the Constitution of India or otherwise. It, however, by
reason of a elaborate interpretation of this Court in Kharak Singh v. State of
U.P. and others, [(1964) 1 SCR 332 ] it was held to be an essential
ingredient of `personal liberty'. This Court, however, in Govind v. State of
Madhya Pradesh [(1975) 2 SCC 148] upon taking an elaborate view of the
matter in regard to right to privacy vis-`-vis the Madhya Pradesh Police
Regulations dealing with surveillance, opined that the said regulation did
not violate the "procedure established by law". However, a limited
Fundamental Right to Privacy as emanating from Articles 19(a), (d) and 21
was upheld, but the same was held to be not absolute wherefor reasonable
restrictions could be placed in terms of clause (5) of Article 19.
Mathew, J. stated:
"The right to privacy in any event will necessarily
have to go through a process of case-by-case
development. Therefore, even assuming that the
right to personal liberty, the right to move freely
throughout the territory of India and the freedom
of speech create an independent right of privacy as
an emanation from them which one can
67
characterize as a fundamental right, we do not
think that the right is absolute."
The law, however, was developed by this Court in R. Rajagopal v.
State of Tamil Nadu [(1994) 6 SCC 632].
The law was crystallized in the People's Union for Civil Liberties
(PUCL) v. Union of India [(1997) 1 SCC 301], holding:
"We have, therefore, no hesitation in holding that
right to privacy is a part of the right to "life" and
"personal liberty" enshrined under Article 21 of
the Constitution. Once the facts in a given case
constitute a right to privacy, Article 21 is attracted.
The said right cannot be curtailed "except
according to procedure established by law"."
In State of Maharashtra v. Madhukar Narayan Mardikar [(1991) 1
SCC 57], this Court protected the Right to Privacy of a prostitute. It was
held that even a woman of easy virtue is entitled to her privacy and no one
can invade her privacy as and when he likes.
In this case, except giving information in regard to whereabouts of the
Appellant and his daughter, no other action was taken.
It is in the aforementioned context, we may notice a decision of this
Court in Malak Singh v. State of P&H, [(1981) 1 SCC 420]. This case dealt
68
with an application filed by applicants seeking to remove their names from
the surveillance register maintained by the Police Station of their jurisdiction
under the Punjab Police Rules. This Court while upholding the jurisdiction
of the Punjab Police made observations on the mode of surveillance.
The case directly or indirectly laid great emphasis on certain grey
areas with regard to carrying out of the activities of surveillance on the part
of the CBI and the police authorities. In Malak Singh (supra) this Court
clearly contemplated surveillance by the police in pursuance to the rules
under which they are being done. No such guideline, however, has been laid
down in respect of surveillance conducted pursuant to a Red Corner or
Yellow Corner Notice.
The Central Government and in particular the Ministry of External
Affairs, in our opinion, should frame appropriate guidelines in this behalf.
Indisputably, further action in terms of the Red Corner Notice has not
been and could not be taken against the Appellant, in the instant case.
It is conceded at the Bar that the proceedings for extradition of a
citizen could be initiated provided the conditions precedent laid down in
terms of the provisions of the Act. The Act prescribes a request made by a
69
foreign country whether with it a treaty has been entered into or not. In the
absence of any such request, no proceeding could be initiated. In the
aforementioned context, it is not necessary for us to enter into the question
as to whether the Appellant could be arrested or not.
We have noticed hereinbefore, the affidavit affirmed on behalf of CBI
while dealing with the question of the limitation of its power.
In addition thereto CBI has also stated that:
(i) In the instant case, the averments of the appellant that prima facie
the case arises out of a matrimonial dispute are all questions that
are required to be gone into either by the Extradition Court
appointed by the Central Government as per section 5 of the Act or
subsequent to the Extradition of the Petitioner to the country in
question.
(ii) In any event, there has been no arrest of the Petitioner as the CBI is
awaiting the necessary papers from the American Government.
(iii) Also, the fact that India is not a party or signatory to the Hague
Convention on the Civil Aspects of International Child Abduction
does not make any difference in the instant case.
(iv) Furthermore, it is incorrect to say that the Petitioner is being
treated like a commodity. A warrant of arrest by a competent court
70
in United States has been issued against the Petitioner. Under
International obligations, the CBI is required, when so requested to
act on the red corner notice issued pursuant to the warrant of arrest.
If fugitives are not apprehended pursuant to the warrant of arrest/
red corner notice, it would be very easy for such persons to escape
punishment. The petitioner has rights under the Act as well as the
judicial process in United States (if he is ultimately extradited).
(v) Lastly, that till date the CBI has not received any request from the
US authorities for the arrest and Extradition of the Petitioner.
The Ministry of External Affairs, too, through its Joint Secretary
(Counsular), Mr. P.M. Meena, by means of an affidavit dated 15th April
2009 admitted that:
(i) It is the Ministry of External Affairs, Government of India, New
Delhi which is the nodal agency for Extradition as per the Act and
the Extradition Treaty between the Governent of India and the
United States of America.
(ii) On receipt of a Red Corner Notice, it is not the invariable practice
to arrest the person but efforts are made to trace him though the
local police. The consideration of the question of arrest and
Extradition would be within the framework of domestic law
71
including Indian Extradition Act and the Extradition Treaty with
the Requesting Country. Extradition of a person would only arise
after request for extradition is formally received from the country.
In the present case, no formal request has been received from the
United States authorities.
(iii) Moreover, as per the prevalent practice, in cases pertaining to
matrimonial affairs, the view taken is that such matters may not
generally be held to satisfy the test of dual criminality.
(iv) In any case, since the instant case, is a case of domestic law, the
view of the Ministry of Law would be called for and taken into
consideration.
It is, therefore, clear that intervention by the Ministry of External
Affairs is crucial when a request is received by it from a foreign country.
The learned Attorney General states before us that the Ministry of
External Affairs invariably refers such matter to the Ministry of Law and
Justice for his opinion as to whether in a given situation an extraditable
offence has been made out or not. We have been informed that kidnapping
in case of matrimonial dispute per se is not considered to be an extraditable
offence. It was furthermore contended that even violation of an order passed
72
by a court of competent jurisdiction in U.S.A. being punishable for
imprisonment for six months only, the Appellant cannot be extradited for
commission of the said offence also. We may, however, place on record that
United States has enacted the International Parental Kidnapping Crime Act
of 1993. However, the law in India shall be governed by the provisions of
the Indian Penal Code, 1860.
CONCLUSION
We have already held above that the Municipal Laws of a country
reign supreme in matters of Extradition. It is thus for the State concerned to
take a decision in regard to such Notices, keeping in view the Municipal
Laws of the country. The High Court was, therefore, in our opinion, clearly
wrong in holding that a Red Corner Notice should not be tinkered with.
When a person complains of a violation of his Fundamental Right and/or
otherwise of his fundamental right he is entitled to the right of judicial
review. It ought not to be forgotten here that the dispute between the
Appellant and the Respondent No. 6, being essentially a Matrimonial
dispute, is a private dispute and no criminal extraditable offence can be
made out of the same, in the absence of a specific request for extradition.
73
The High Court, thus, in our opinion, committed a serious error
insofar as it failed to take into consideration the provisions of the Act, in the
absence of any request having being made by the Govt. of USA to the
Executive Government of the Union of India or any authourization made by
the latter on its behalf.
A fundamental Right of a citizen whenever infringes, the High Courts
having regard to their extraordinary power under Article 226 of the
Constitution of India as also keeping in view that access to justice is a
human right would not turn them away only because a Red Corner Notice
was issued. The Superior Courts in criminal cases, thus are entitled to go
into the manner in which such Red Corner Notice, if any, is sought to be
enforced and/or whether the local police is threatening a citizen of India with
arrest although they are not entitled to do so except in terms of the
provisions Act as and when applicable.
Furthermore, if a violation of any order passed by a civil court is made
the ground for issuance of a Red Corner Notice, indisputably, the court will
enquire as to whether the same has undergone the tests laid down under
Sections 13 and 44A of the Code of Civil Procedure.
74
As regards the question of custody, we have, however noticed,
hereinabove that although the family court at Bombay for all intent and
purposes relying on or on the basis of the order passed by the Massachusetts
Court directed custody of the girl in favour of her mother, the Bombay High
Court has stayed the operation thereof. The Appellant therefore, must be
held to be in lawful custody of his daughter unless any other or further order
is passed by a court of competent jurisdiction.
Lastly, it is imperative to note that the State does not seek for
enforcement of the custody and/ or restrain order passed by the Probate and
Family Court, Massachusetts in view of the rigours contained in Sections 13
and 44A of the Code of Civil Procedure. Even the Family Court does not
appear to have dealt with this aspect of the matter. In any event, as the
matter is pending before the High Court, it alone will have a final say
therein.
For the aforementioned reasons, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. However, in
the facts and circumstances of the case, there shall be no order as to costs.
......................................., J.
[S.B. Sinha]
75
......................................., J.
[Dr. Mukundakam Sharma]
New Delhi
August 07, 2009
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