2009 (8) TMI 1223 - SC - Indian Laws

Challenging the order of High Court - the Validity and/ or legality of an order issuing a warrant against the appellant - Interpretation of the roles and responsibilities of the Central Bureau of Investigation (CBI) vis- -vis the provisions of the Extradition Act 1962 ( the Act ) - Appellant and the respondent No. 6 are citizens of India. 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 at 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. 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 - 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 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. HELD THAT - 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. 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. 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. 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. 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 (5) TMI 671 - SUPREME COURT . 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. The power of the Central Government vis- -vis State is in two categories - Keeping in view the Constitution of INTERPOL vis- -vis the Resolutions adopted by the C.B.I. from time to time although a Red Corner Notice per se does not give status of a warrant of arrest by a competent court. It is merely a request of the issuing authority to keep surveillance on him and provisionally or finally arrest the wanted person for extradition. The provisions of the Act and the Treaty are required to be given effect to. Whenever a request is received from INTERPOL the authority must act on behalf of the Central Government. The INTERPOL provides constitution of NCBs by Member States. 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. 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. 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.

Summary

Issues Involved:
1. Jurisdiction of the Probate and Family Court, Massachusetts.
2. Enforcement of foreign judgments in India under Sections 44A and 13 of the Code of Civil Procedure.
3. Authority of the CBI under the Delhi Special Police Establishment Act (DSPE Act) to deal with INTERPOL notices.
4. Applicability of the Extradition Act, 1962, and the Extradition Treaty between India and the USA.
5. Rights of Indian citizens under Articles 19 and 21 of the Constitution of India.
6. Role and powers of INTERPOL and the National Central Bureau (NCB) in India.
7. Impact of Red Corner Notices on civil liberties and fundamental rights.
8. Jurisdiction of Indian courts to interfere with INTERPOL notices.

Detailed Analysis:

1. Jurisdiction of the Probate and Family Court, Massachusetts:
The appellant contended that the decree for divorce and custody granted by the Probate and Family Court, Massachusetts, was without jurisdiction and thus a nullity, making it inadmissible in Indian courts. The Supreme Court acknowledged that the dispute between the appellant and respondent No. 6 was essentially matrimonial and private, with no criminal extraditable offence being made out.

2. Enforcement of Foreign Judgments in India:
The appellant argued that the foreign judgment was obtained fraudulently and conflicted with an order of custody passed by the High Court of Bombay. The Supreme Court noted that the enforcement of foreign judgments must comply with Sections 13 and 44A of the Code of Civil Procedure, which deal with the conditions under which foreign judgments can be recognized and enforced in India.

3. Authority of the CBI under the DSPE Act:
The Supreme Court examined whether the CBI, established under the DSPE Act, had the authority to deal with INTERPOL notices. It concluded that the CBI, acting as the National Central Bureau (NCB), is responsible for coordinating with INTERPOL and other member countries but must operate within the legal framework of the DSPE Act and the Extradition Act.

4. Applicability of the Extradition Act, 1962, and the Extradition Treaty:
The Supreme Court emphasized that the Extradition Act and the Extradition Treaty between India and the USA govern the extradition process. It highlighted that no formal request for extradition had been made by the USA, and thus, the provisions of the Act were not applicable in this case. The court also noted that the Act recognizes the sanctity of an extradition treaty and that extradition offences must be defined under the treaty.

5. Rights of Indian Citizens under Articles 19 and 21:
The appellant's fundamental rights under Articles 19 and 21 of the Constitution of India were considered. The Supreme Court held that any action taken by the CBI or the police must comply with the legal provisions and respect the fundamental rights of Indian citizens. The court reiterated that the arrest of a person must be effected in terms of the provisions of the Extradition Act, and any violation of fundamental rights would be subject to judicial review.

6. Role and Powers of INTERPOL and NCB:
The Supreme Court detailed the role of INTERPOL and the NCB in India. It clarified that INTERPOL notices, including Red Corner Notices, do not have the effect of an arrest warrant and are primarily requests for cooperation. The court noted that the CBI, as the NCB, coordinates with INTERPOL but must act within the bounds of Indian law.

7. Impact of Red Corner Notices on Civil Liberties:
The Supreme Court acknowledged that Red Corner Notices could have significant consequences on an individual's civil liberties, including detention, arrest, and surveillance. It emphasized that any such action must be lawful and comply with the Extradition Act and the Constitution of India. The court highlighted the importance of safeguarding fundamental rights and ensuring that any deprivation of liberty is legally justified.

8. Jurisdiction of Indian Courts to Interfere with INTERPOL Notices:
The Supreme Court held that Indian courts have the jurisdiction to review the enforcement of INTERPOL notices, especially when fundamental rights are at stake. The court criticized the High Court for refusing to interfere with the Red Corner Notice and stressed that judicial review is essential to protect the rights of citizens.

Conclusion:
The Supreme Court set aside the High Court's judgment, emphasizing that the enforcement of INTERPOL notices must comply with Indian law, including the Extradition Act and the Constitution. The court underscored the need for judicial review to protect fundamental rights and ensure that any action taken against Indian citizens is legally justified. The appeal was allowed, and the Supreme Court directed the relevant authorities to act in accordance with the legal framework and safeguard the appellant's rights.