9911796707
TMI Blog2009 (8) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ought 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 corn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, 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 ; (c) a statement of the provisions of the law describing the essential elements of the offense for which extradition is requested ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition 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 anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5A(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, Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant 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 lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-`-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 qualif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereto. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice vis-`-vis the fundamental right of an individual in terms of Article 21 of the Constitution of India as also his right of privacy and the loss of reputation would be dealt with at an appropriate stage. POWERS UNDER THE CODE OF CRIMINAL PROCEDURE We may also notice some of the provisions of the Code of Criminal Procedure laying down the procedures after arrest. It is, however, beyond any doubt that the power is exercised by the C.B.I. or a police officer to arrest a person, although no warrant is issued in terms of Section 41(1)(g) of the Code of Criminal Procedure. It pre- supposes satisfaction of a police officer to arrest a person, if he has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in India. 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 Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ministr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, 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-`-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ingredien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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