INTERPOL-MATRIMONIAL DISPUTES

Court :
SUPREME COURT
Brief :
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 2 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.
Citation :
Bhavesh Jayanti Lakhani …Appellant Versus State of Maharashtra & Ors. …Respondents

REPORTABLE

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

J U D G M E N T

S.B. SINHA, J :

Leave granted.

INTRODUCTION

Interpretation of the roles and responsibilities of the Central Bureau of

Investigation (CBI) vis-à-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

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

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.

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

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.

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

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

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.

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.

(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

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

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.

(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.

(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.

(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

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

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

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 :-

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 ;

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

committal for trial of the person if the

offense had been committed in the

Requested State.”

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;

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.

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

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;

(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 arrangement

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

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:

(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

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)).

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) ……………

……………

…………….

(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?

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

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.

(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.

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

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

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

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]

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

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.

Before, however, we advert to the functioning of CBI vis-à-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:

(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.

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.

(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

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

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

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.

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

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.

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.

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

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.

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.

(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

(2) When by an order under sub-section (1) the

powers and jurisdiction of members of the said

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 nonrequirement

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 :-

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

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-à-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

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”.

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

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.

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.

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 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 presupposes

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.

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

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.

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.”

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

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.”

Does this violates the doctrine of federalism is the question?

The power of the Central Government vis-à-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

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.

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.

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.

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-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.”

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

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

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

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

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

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.

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.

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]

…………………………………, J.

[Dr. Mukundakam Sharma]

New Delhi

August 07, 2009

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