RCN : India has no Jurisdiction over Foreign courts

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.676 OF 2008

Shri Bhavesh Jayanti Lakhani,
aged 33 years, residing at A/103, Star Galaxy Apartment,
L.T. Road, Opp.St. Anne’s School, Borivli (West),Mumbai – 400 092. …. Petitioner

Versus

1. The State of Maharashtra (At the
instance of Borivli Police Station,Mumbai.

2. The Commissioner of Police,Mumbai.

3. The Crime Intelligence Unit,
General Branch, Crime Branch,CID, Crawford Market, Mumbai – 400 001.

4. Central Bureau of Investigation,
Interpol Wing, Government of India, New Delhi.

5. Union of India, having address at
Law & Judiciary Department,Aaykar Bhavan, Marine Lines,Mumbai – 400 020.

6. Ms. Hetal Girish Thakkar @ Mrs.
Hetal Bhavesh Lakhani @ Mrs. Hetal Ashwin Matta,
presently residing at 7109, Avignon, Dr.Round Rock, Texas – 78681 –5332. … Respondents

1. In this petition filed under Article 226 of the Constitution of India, the warrant issued by the Magistrate Court, Clayton County, Georgia in Case No.2006/CW/06369 and Case No.2006/CW/06370 or any other Court in the U.S.A. in respect of the complaint filed by respondent 6 is sought to be stayed. The petitioner is also seeking a direction restraining the respondents or any other Central Government machinery from arresting the petitioner or taking any action pursuant to the warrants.

11. The question here is whether a Red Corner Notice can be stayed by this court. For this purpose, it is necessary to have a look at the provisions of Extradition Act, 1962 (for short, “the Extradition Act”).

12. Many International Conventions have been held to discuss how to empower State parties to deal with crimes committed by fugitive criminals. Statement of Objects and Reasons of Act 66 of93 by which the Extradition Act was amended states that India is a party to many of these conventions which lay down specific obligations on the State parties to extradite or prosecute fugitive offenders. The Extradition Act provides for extraterritorial jurisdiction over foreigners for crimes committed by them outside India. One of its objectives is to cover extradition requests on the basis of International Conventions within the scope of the Extradition Act.

13. Under Section 2(c)(i), extradition offence means in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State. Extradition treaty is defined under Section 2(d) as under :

“(d) “extradition treaty” means a treaty [, agreement or arrangement] made by India with foreign State relating to the extradition of fugitive criminals, and includes any treaty [,agreement or arrangement] relating to the extradition of fugitive criminals made before the 5th day of August, 1947, which extends to, and is binding on, India;”

Section 2(f) defines a `fugitive criminal‘a s under : “[(f)“fugitive criminal” means 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.]”

Under Section 2(j), a ‘treaty State’ means a foreign State with which an extradition treaty is in operation.

14. There is no dispute about the fact that India has extradition treaty with U.S.A. U.S.A. is therefore, a treaty State. Chapter II of the Extradition Act applies to extradition of fugitive criminals to foreign States. This chapter contains provisions which dealt with extradition of fugitive criminals to States with which India does not have extradition treaty. Though here we are concerned with a case where there is extradition treaty, it is necessary to have a look at certain provisions contained in this chapter to compare them with the provisions which relate to States which have extradition treaty to appreciate Mr. Mundargi’s argument that while considering the petitioner’s case facts will have to be gone into.

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15. Section 7 relates to the procedure before a Magistrate before whom a fugitive criminal who is wanted in a State with which India has no treaty is brought. It states that when the fugitive criminal is brought before the Magistrate, he shall inquire into the case in the same manner and shall have same jurisdiction and powers, as nearly as may be, as if the case was one triable by a court of Sessions or High Court. This section permits the Magistrate to take evidence on behalf of the requisitionist State as well as on behalf of the fugitive criminal. It empowers the Magistrate to discharge the fugitive criminal if no prima facie case is made out. But, if a prima facie case is made out, the Magistrate has to commit the fugitive criminal to prison to await order of the Central Government.

16. Chapter III provides for return of fugitive criminal to foreign States with extradition arrangements. Section 14 states that a fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant. Section 15 states that where a warrant for the apprehension of a fugitive criminal has been issued in any foreign State and such fugitive criminal is or is supposed 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 duly authenticated and that no extradition offence is said to have been committed by the fugitive criminal, the Magistrate may pending the receipt of the orders of the Central Government detain such person in custody or release him on bail. Under subsection (3), the Magistrate has to report the result of his inquiry to the Central Government.

17. Therefore, while dealing with a fugitive criminal wanted in a State with which India has no treaty, the Magistrate can inquire into the case in the same manner as if the case was triable by Court of Sessions or High Court, however, while dealing with a fugitive criminal wanted in a treaty State, such inquiry and such a trial is not open. There is no provision enabling the Magistrate to take evidence. He cannot discharge the fugitive criminal. He has to only see whether the warrant is duly authenticated and whether the fugitive criminal is concerned with an extradition offence. If these two conditions are satisfied, the Magistrate shall commit him to prison. The use of the word “shall” is significant. The Magistrate has then no option but to commit him to prison. He has to then submit the result of his inquiry to the Central Government together with written statement which the fugitive criminal may desire to submit for the consideration of the Central Government. The reason for this is obvious. Section 29 gives power to the Central Government to discharge any fugitive criminal. It states that if it appears to the Central Government that by reason of the trivial nature of the case or by reason of the application for surrender or return of a fugitive criminal not being made in good faith or in the interests of justice or for political reasons or otherwise, it is unjust or inexpedient to surrender or return the fugitive criminal, it may, by order, at any time stay any proceedings under this Act and direct any warrant issued or endorsed under the Extradition Act to be cancelled and the person for whose arrest the warrant has been issued or endorsed to be discharged.

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18. In case of extradition of fugitive criminal from treaty States, the Magistrate cannot make a roving inquiry into facts. He has to only see whether the warrant is endorsed properly and whether the fugitive criminal is involved in an extradition offence. He cannot assume the role of a trial judge. The moment he is satisfied that the above two conditions are satisfied, he shall commit the fugitive criminal to custody. The reason for such stringent provision is obvious. The Extradition Act recognizes the sanctity of an extradition treaty. Extradition treaty implies mutual obligations. It demands mutual respect for warrants or notices issued by States party to it. Since an extradition treaty falls within the domain of the Central Government as per the provisions of the Extradition Act,the ultimate authority to take vital decisions is left with it. Treaty obligations have to be respected. They are international obligations. Disrespect or disregard shown to warrants issued by a treaty State may result in similar response from that State to warrants issued by India. Such approach will result in frustrating the extradition treaty.

19. The Code of Criminal Procedure also contains provisions for reciprocal arrangements. Section 105(A)(a) defines a `Contracting State’ to mean 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. Section 105k states that every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State shall be transmitted to a contracting State or, as the case may be sent to the concerned Court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf. Overall control of the Central Government is seen even here. Section 105 inter alia provides procedure for execution of process issued by any court in a contracting State.

20. Provisions of Chapter III of the Extradition Act which we have quoted hereinabove make it clear that a machinery is created for scrutiny of the warrants issued by the treaty State to find out its authenticity and to find out whether the fugitive criminal is covered by the Extradition Act because of commission of extradition offence by him. A provision is made to give him relief if the above facts are not proved. Wide powers vest in the Central Government to take necessary steps to give redress to a fugitive criminal if his case warrants it. The provision contained in Section 17 directing the Magistrate to commit the fugitive criminal from treaty State to jail on being satisfied about the existence of the conditions stated therein is of mandatory nature. In such circumstances, in our considered opinion, this court cannot tinker with the Red Corner Notice issued against the petitioner. If he is not concerned with any extradition offence, he must inform the concerned Magistrate about it. The Magistrate is duty bound to send his report and the statement if any filed by the petitioner to the Central Government. The Central Government if it feel necessary can give him relief under Section 29 of the Extradition Act.

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21. We find no substance in Mr. Mundargi’s submission that because under Section 17 of the Extradition Act while dealing with the fugitive criminal who is produced before him, the Magistrate cannot go into facts, in our writ jurisdiction we should go into the facts. He submitted that we need to go into facts because respondent 6 wife has practiced fraud and fraud vitiates everything, even the Red Corner Notice. While accepting that in a given case, we can, in our writ jurisdiction go into facts, we are not inclined to do so in this case. In her application made to the Family Court, a copy of which the petitioner has annexed to the petition, respondent 6 has made several serious allegations against the petitioner including the allegation that he has forged her signatures. According to her, while fraudulently taking Eesha to India, the petitioner took away her passport. Therefore, she could not follow him to India. She got a new passport and visited India. She could not locate the petitioner hence she went back. She again came to India after learning that the petitioner was staying in Borivali and then filed a petition in the Family Court. She has expressed a fear that the petitioner may abscond and take Eesha out of the jurisdiction of this court. Therefore, here we are concerned with disputed facts of such nature which cannot be investigated in writ jurisdiction. Besides, the Extradition Act provides for a procedure which cannot be bypassed. The Extradition Act also contains provisions which can provide relief to the petitioner. In matters of treaty obligations, we would not like to trench on the powers of the Central Government.

22. Red Corner Notice is International Criminal Police Commission Notice (Interpol Notice). It plays a vital role in tracking, tracing and extraditing internationally wanted fugitives. It is issued to seek the provisional arrest and extradition of the fugitive on the basis of valid arrest warrant. It is not possible for us to stay warrants issued against the petitioner by the American Courts. Red Corner Notice cannot be tinkered with. The procedure prescribed under the law must be followed. Apart from the fact that we are of the considered opinion that warrants issued by American Courts and the Red Corner Notice cannot be stayed, we would not like to set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notice is a critical tool.

In the circumstances, we reject the petition. Needless to say that the interim stay is vacated.

[SMT. RANJANA DESAI, J.]
[DR. D.Y. CHANDRACHUD, J.]

At this stage, Mr. Naik, learned counsel appearing for the petitioner states that the interim order may be continued for six weeks. The prayer is rejected.

[SMT. RANJANA DESAI, J.]
[DR. D.Y. CHANDRACHUD, J.]

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