What is the purpose of an INTERPOL Red Notice?
A Red Notice is a request to locate and provisionally arrest an individual pending extradition. It is issued by the General Secretariat at the request of a member country or an international tribunal based on a valid national arrest warrant. It is not an international arrest warrant.
INTERPOL cannot compel any member country to arrest an individual who is the subject of a Red Notice. Each member country decides for itself what legal value to give a Red Notice within their borders.
When INTERPOL publishes a Red Notice this is simply to inform all member countries that the person is wanted based on an arrest warrant or equivalent judicial decision issued by a country or an international tribunal. INTERPOL does not issue arrest warrants.
Who are the subjects of Red Notices?
Red Notices are issued for individuals sought for prosecution or to serve a sentence. When the individual is sought for prosecution it means they are suspected of committing a crime but have not yet been prosecuted and so should be considered innocent until proven guilty.
How is a Red Notice issued?
- Police in one of our member countries request a Red Notice via their National Central Bureau and provide information on the case.
- The INTERPOL General Secretariat publishes the Notice after a compliance check is completed.
- Police all around the world are alerted.
Why is the Red Notice important?
- It gives high, international visibility to cases
- Criminals and suspects are flagged to border officials, making travel difficult
- Countries can request and share critical information linked to an investigation.
A Series (Red) Notices
The 'A' series notices also known as 'Wanted notices' are published in respect of offenders wanted at international level. This type of notice invariably ask that the subject may be arrested, at least in certain countries, with a view to subsequent extradition to the country where he is wanted.
The publication of an 'A' series notice should only be requested if all the following conditions are fulfilled:
- The person against whom the notice is to be published has committed an offence against ordinary criminal law.
- The offence is an "extraditable offence" under the Indian Extradition Act, 1962.
- A warrant of arrest has been issued for his/her arrest.
- Extradition will be requested, at least from certain countries.
If any of the above conditions is not satisfied, a 'B' series notice should probably be requested.
If a person whether an Indian or a foreigner has committed an offence in India and is subsequently believed to have absconded to a foreign country, a request can be made by the concerned police authorities etc. to the Interpol Wing of the CBI for publication of an 'A' series (red) notice against that person provided all the conditions are satisfied. At the time of making such a request efforts should be made to furnish maximum information as mentioned under:
- Complete personal particular of the person wanted i.e. full name, date and place of birth, parentage, family status, name of spouse, occupation, nationality, complete passport details, aliases and nicknames, address(es), etc.
- Descriptive particulars i.e. height, colour of eyes, colour of hair, beard, forehead, nose, chin, ears, face (shape), distinguishing identification marks (tattoos, scars, amputations, etc.).
- Three copies of photograph and fingerprints. Since photograph and fingerprints cannot be reproduced satisfactorily unless they are of high quality, original photograph and fingerprints should be sent wherever possible. These can be returned on request.
- Languages spoken.
- Previous convictions, if any.
- A short account of the circumstances of the case in which he/she is wanted including full details of the charge(s).
- The name of the court that issued the warrant, date and number of the warrant of arrest.
- An assurance that extradition will be requested ( if arrested anywhere in the world or at least in certain countries).
- The names of the countries from which extradition will be requested.
If the wanted person is found and/or arrested in India or if the extradition has taken place, the Interpol Wing should be immediately informed so that the General Secretariat can be requested to publish a cancellation notice, if the person is no longer wanted by the judicial authorities.
In India the extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of Indian Extradition Act, 1962. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.
Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities.
The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:
- Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.
- Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.
In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.
The Red Corner notices against Indian nationals are issued by the General Secretariat of Interpol, Lyon, France, on the recommendation of the CBI, which also acts as the National Central Bureau (NCB) for Interpol.
The law on this point has been settled by the Hon’ble Supreme Court in the matter of Bhavesh Jayanti Lakhani vs. State of Maharashtra and Ors.  12 SCR 861 wherein it observed as follows:
75. The organizational system of issuing International notices forms the backbone of its functioning. The Member countries in terms of notices share 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.
76. 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.
PROCEDURE FOR ISSUING NOTICE
77. 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.
78. 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 from the NCB or international organization or entities with whom the INTERPOL has special agreements.
79. 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.
80. 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.
POWERS UNDER THE ACT
98. We will deal with this subject in two parts one is stage before arrest and second stage after arrest.
99. Power to apprehend or investigate a fugitive criminal, we have noticed hereinbefore, is conferred by Section 14 read with Section 15 of the 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.
100. 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".
101. 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.
102. 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 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.
103. 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.
104. 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.
105. 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.
106. 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.
107. 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.
108. 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. However, the question in regard to the necessity of warrant being endorsed or the effect of the Red Corner Notice vis-à-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 PROCEDUR
109. We may also notice some of the provisions of the Code of Criminal Procedure laying down the procedures after arrest.
110. 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.
111. 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.
112. 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.
113. 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
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 General, 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.
(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.
114. 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.
115. 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 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 matter relating to criminal law the Concurrent List provides therefore 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.
116. 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.
117. Does this violates the doctrine of federalism is the question?
118. The power of the Central Government vis-à-vis State is in two categories.
119. 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.
120. 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 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-à-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.
121. 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.
122. 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.
123. 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 therefore. 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 therefore 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.
124. 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.
125. 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.
126. Surveillance per se under the provisions of the Act may not violate individual or private rights including the right to privacy.
127. 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 Ors. MANU/SC/0085/1962 : (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 MANU/SC/0119/1975 : (1975) 2 SCC 148 upon taking an elaborate view of the matter in regard to right to privacy vis-à-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 characterize as a fundamental right, we do not think that the right is absolute.
128. The law, however, was developed by this Court in R. Rajagopal v. State of Tamil Nadu MANU/SC/0056/1995 : (1994) 6 SCC 632.
129. The law was crystallized in the People's Union for civil Liberties (PUCL) v. Union of India MANU/SC/0149/1997 : (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".
130. In State of Maharashtra v. Madhukar Narayan Mardikar MANU/SC/0032/1991 : (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.
131. In this case, except giving information in regard to whereabouts of the Appellant and his daughter, no other action was taken.
132. It is in the aforementioned context, we may notice a decision of this Court in Malak Singh v. State of P&H MANU/SC/0157/1980 : (1981) 1 SCC 420. This case dealt 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.
133. 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.
134. The Central Government and in particular the Ministry of External Affairs, in our opinion, should frame appropriate guidelines in this behalf.
135. 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.
136. 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 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.
137. We have noticed hereinbefore, the affidavit affirmed on behalf of CBI while dealing with the question of the limitation of its power.
138. 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 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.
139. The Ministry of External Affairs, too, through its Joint Secretary (Consular), 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 Government 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 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.
140. 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.
141. 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 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.”