The Supreme Court has held that a warrant issued by a foreign court could not be executed in India without a formal request from the Government concerned for extradition of the accused.
A bench comprising Justices S B Sinha and Mukundakam Sharma in Bhavesh Jayanti Lakhani vs. State of Maharashtra & Ors., on 7/8/2009, set aside the Bombay High Court order, whereby it had refused to stay the arrest of an NRI B J Lakhani who is facing allegations of kidnapping his own daughter from the custody of her mother.
Interpretation of the roles and responsibilities of the Central Bureau of Investigation (CBI) vis-`-vis the of the Extradition Act, 1962 referred to as "the Act") is involved in this appeal.
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.
Contentions of Parties:
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 ower 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 boundby 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 and the Government of the United States of America entered into 21st July, 1999. It was published in the Official Gazette dated 14th 1999. By reason of Article 1 thereof the Contracting States to extradite to each other, pursuant to the provisions thereof, who, by the authorities in the requesting State are formally
of, charged with or convicted of an extraditable offence, such offence was committed before or after the entering into of the Treaty.
Article 2 defines extraditable offence to mean an offence under the laws in both the Contracting States by deprivation liberty, including imprisonment, for a period of more than one year by a more severe penalty.
An offence shall also be an extraditable one if it consists of an or a conspiracy to commit, aiding or abetting, counseling or the commission of or being an accessory before or after the to, any offence described in paragraph 1.
Article 4 defines political offenses. Clause (2) of Article 4 inter provides that offences related to illegal drugs, shall not be treated to political offence.
Article 9 provides for extradition procedures and required 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 ;
(c) a statement of the provisions of the law
describing the essential elements of the
offense for which extradition is requested ;
(d) a statement of the provisions of the law
describing the punishment for the offense ;
and
(e) the documents, statements, or other types of
information specified in paragraph 3 or
paragraph 4 of this Article, as applicable.
3. A request for extradition of a person who is sought
for prosecution shall also be supported by :
(a) a copy of the warrant or order of arrest,
issued by a judge or other competent
authority ;
(b) a copy of the charging document, if any, and
(c) such information as would justify the
committal for trial of the person if the
offense had been committed in the
Requested State."
Article 10 provides that the documents accompanying an request shall be received and admitted as evidence in proceedings if in the case of a request from the United they are certified by the principal diplomatic or principal officer of the Republic of India resident in the United States or
are certified or authenticated in any other manner accepted by the in the Requested State.
Article 12 of the Treaty reads as under:
" Provisional Arrest
1. In case of urgency, a Contracting State may
request the provisional arrest of the person sought
pending presentation of the request for extradition.
A request for provisional arrest may be transmitted
through the diplomatic channel. The facilities of
the International Criminal Police Organisation
(Interpol) may be used to transmit such a request.
2. The application for provisional arrest shall
contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case,
including, if possible, the time and location of the
offense;
(d) a description of the laws violated;
(e) a statement of the existence of a warrant of a
warrant of arrest or a finding of guilt or judgment
of conviction against the person sought; and
(f) a statement that a request for extradition for
the person sought will follow.
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3. The Requesting State shall be notified
without delay of the disposition of its application
and the reasons for any denial.
4. A person who is provisionally arrested may
be discharged from custody upon the expiration of
sixty (60) days from the date of provisional arrest
pursuant to this Treaty if the executive authority of
the Requested State has not received the formal
request for extradition and the supporting
documents required in Article 9.
5. The fact that the person sought has been
discharged from custody pursuant to paragraph (4)
of this Article shall not prejudice the subsequent
rearrest and extradition of that person if the
extradition request and supporting documents are
delivered at a later date."
Article 17 provides that a person extradited under the Treaty may be detained, tried or punished in the requesting State except for the 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 with the United States of America. The first treaty has been entered in 1999 and the second in 2001. The 2001 Treaty however deals with of mutual legal assistance by one country to another is not fairly
in the instant case.
A Georgia court in the US had issued an arrest warrant against Lakhani and Interpol subsequently issued red cornered notice (RCN) for his arrest.
Disposing Lakhani’s appeal, the apex court concurred with the stand of Ministry of External Affairs (MEA), which had said, ‘Even violation of an order passed by the court of competent jurisdiction in the US was punishable for six months only. Lakhani cannot be extradited for the commission of such an offence.’ Lakhani had married H Thakker on April 6, 2002, in Mumbai. The couple later shifted to California where they had a daughter in April 2003.
A family court at Massachusets had handed over the custody of the child to the mother.
