# ~ BHAVESH JAYANTI LAKHANI v. STATE OF MAHARASHTRA & ORS

- **Citation:** [2009] 12 S.C.R. 861
- **Court:** Supreme Court of India
- **Decided:** 2009-08-07
- **Case number:** Criminal Appeal No. 1452 of 2009
- **Bench:** S.B. Sinha, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhavesh-jayanti-lakhani-v-state-of-maharashtra-ors-25094
- **Pages:** 68

## Headnote

. Extradition Act, 1962 - s. 2(c), (d), (f), (j):
Red Comer Notice - Execution of, in India - Divorce and c
custody matters of Indian citizens in· US courts - Husband
taking minor child to India from USA in violation of custody
-
order - Issuance of Red Corner Notice by INTERPOL in
relation to husband in respect of arrest warrants and Yellow
1'
notice in relation to minor daughter - High Court refusing to D
stay Interpol notices - Sustainability of- Held: Not sustainable
- Dispute between the parties being a matrimonial dispute,
· is a private dispute - No extraditable offence made out under
the Act or under provisions of extradition treaty between USA
and India - No request for extradition made to Executive E
Government of India by Government of USA - Red Comer
..
Notice by itself cannot be a basis of arrest or transfer of Indian
citizen to a foreign jurisdiction - Municipal laws of country
reign supreme in matters of Extradition - Extradition Treaty
...
is subject to the provisions of the Act - Husband being an
Indian citizen is entitled to enforcement of his fundamental F
rights - CBI having regard to its limited powers, could not
exercise its jun'sdiction within the territories of a State without
its consent- Constitution of India, 1950 -Articles 14, 19 and
21 - Extradition Treaty between India and USA entered into
G
~
j
on 21.06.1999 - Article 1, 2, 4, 9 and 21.
Functioning of CBI vis-a-vis its role in terms of notices
issued by Interpol - Explained.
861
H
862
SUPREME COURT REPORTS [2009) 12 S.C.R.
A
Arrest of a person for extradition - Procedure to be
followed - Before the arrest and after the arrest - Explained.
International Criminal Police Organisation-INTERPOL:
Functions of- Issuance of Red Comer Notice and Yellow
B Comer Notice - Procedure for - Binding nature of Interpol
notices - Explained.
Red Corner Notice/Yellow Comer Notice - Issuance of
- Red Comer Notice is issued to seek provisional arrest of a
c wanted person against whom a national or international court
has issued warrant of arrest - It does not have the effect of
warrant of arrest - It is a request of the issuing entity to
provisionally or finally arrest the wanted person for extradition
- Yellow notice is issued for finding a missing person or to
-
D identify people who are not capable of identifying themselves
- It is issued specially to locate minors.
lt
Appellant and respondent no. 6 are citizens of India.
They married in Mumbai and moved to California. A
E
daughter was born out of the wedlock. However, there
was a marital discord between the parties and the
respondent no. 6 was continuously harassed. The court
of USA by an ex parte order granted temporary custody
of the child, restraint and abuse prevention in favour of
respondent no. 6. Appellant-husband allegedly forged
F the documents and took the child to India in violation of
the custody order. Respondent no. 6 filed complaint
before the police authorities that the appellant had
abducted the child. The USA court passed a decree for
-
divorce and the custody of the child. Thereafter,
G respondent no. 6 re-married and filed for custody before
the Family Court, Mumbai. The court issued arrest
warrants against the appellant and granted custody of the
child to respondent no. 6. In appeal thereagainst order
was stayed by Mumbai High Court. The police and the
H court of USA issued warrants of arrest against the
BHAVESH JAYANTI LAKHANI v. STATE OF
863
MAHARASHTRA & ORS.
appellant which was transmitted through INTERPOL to A
the Government of India. Appellant challenged the
legality/validity of the order issuing warrant. He also
sought direction to restrain the respondents or any other
Central Government from arresting the appellant or taking
any action pursuant to or in furtherance of the red corner B
notice issued by INTERPOL in respect of those arrest
warrants. High Court dismissed the petition. Hence the
present appeal.
Allowing the appeal, the Court
c
HELD: 1. In the instant case, appellant is sou

## Text

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[2009] 12 S.C.R. 861
~
BHAVESH JAYANTI LAKHANI
A
v.
STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 1452 of 2009)
AUGUST 7, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
. Extradition Act, 1962 - s. 2(c), (d), (f), (j):
Red Comer Notice - Execution of, in India - Divorce and c
custody matters of Indian citizens in· US courts - Husband
taking minor child to India from USA in violation of custody
-
order - Issuance of Red Corner Notice by INTERPOL in
relation to husband in respect of arrest warrants and Yellow
1'
notice in relation to minor daughter - High Court refusing to D
stay Interpol notices - Sustainability of- Held: Not sustainable
- Dispute between the parties being a matrimonial dispute,
· is a private dispute - No extraditable offence made out under
the Act or under provisions of extradition treaty between USA
and India - No request for extradition made to Executive E
Government of India by Government of USA - Red Comer
..
Notice by itself cannot be a basis of arrest or transfer of Indian
citizen to a foreign jurisdiction - Municipal laws of country
reign supreme in matters of Extradition - Extradition Treaty
...
is subject to the provisions of the Act - Husband being an
Indian citizen is entitled to enforcement of his fundamental F
rights - CBI having regard to its limited powers, could not
exercise its jun'sdiction within the territories of a State without
its consent- Constitution of India, 1950 -Articles 14, 19 and
21 - Extradition Treaty between India and USA entered into
G
~
j
on 21.06.1999 - Article 1, 2, 4, 9 and 21.
Functioning of CBI vis-a-vis its role in terms of notices
issued by Interpol - Explained.
861
H
862
SUPREME COURT REPORTS [2009) 12 S.C.R.
A
Arrest of a person for extradition - Procedure to be
followed - Before the arrest and after the arrest - Explained.
International Criminal Police Organisation-INTERPOL:
Functions of- Issuance of Red Comer Notice and Yellow
B Comer Notice - Procedure for - Binding nature of Interpol
notices - Explained.
Red Corner Notice/Yellow Comer Notice - Issuance of
- Red Comer Notice is issued to seek provisional arrest of a
c wanted person against whom a national or international court
has issued warrant of arrest - It does not have the effect of
warrant of arrest - It is a request of the issuing entity to
provisionally or finally arrest the wanted person for extradition
- Yellow notice is issued for finding a missing person or to
-
D identify people who are not capable of identifying themselves
- It is issued specially to locate minors.
lt
Appellant and respondent no. 6 are citizens of India.
They married in Mumbai and moved to California. A
E
daughter was born out of the wedlock. However, there
was a marital discord between the parties and the
respondent no. 6 was continuously harassed. The court
of USA by an ex parte order granted temporary custody
of the child, restraint and abuse prevention in favour of
respondent no. 6. Appellant-husband allegedly forged
F the documents and took the child to India in violation of
the custody order. Respondent no. 6 filed complaint
before the police authorities that the appellant had
abducted the child. The USA court passed a decree for
-
divorce and the custody of the child. Thereafter,
G respondent no. 6 re-married and filed for custody before
the Family Court, Mumbai. The court issued arrest
warrants against the appellant and granted custody of the
child to respondent no. 6. In appeal thereagainst order
was stayed by Mumbai High Court. The police and the
H court of USA issued warrants of arrest against the
BHAVESH JAYANTI LAKHANI v. STATE OF
863
MAHARASHTRA & ORS.
appellant which was transmitted through INTERPOL to A
the Government of India. Appellant challenged the
legality/validity of the order issuing warrant. He also
sought direction to restrain the respondents or any other
Central Government from arresting the appellant or taking
any action pursuant to or in furtherance of the red corner B
notice issued by INTERPOL in respect of those arrest
warrants. High Court dismissed the petition. Hence the
present appeal.
Allowing the appeal, the Court
c
HELD: 1. In the instant case, appellant is sought to
be apprehended for commission of an offence u/s. 363
IPC. The dispute between the appellant and respondent
no.6 essentially being a matrimonial dispute, is a private
dispute and no extraditable offence can be made out of D
"f
the same, in the absence of a specific request for
extradition. The Municipal Laws of a country reign
supreme in matters of Extradition. It is for the State
concerned to take a decision in regard to such Notices,
keeping in view the Municipal Laws of the country. High E
Court committed a serious error insofar as it failed to take
into consideration the provisions of the Extradition Act,
1962, in the absence of any request having being made
by the Govt. of USA to the Executive Government of India
"""
or any authourization made by the latter on its behalf. It F
erred 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. Appellant
being an Indian citizen is entitled to enforcement of his G
;.
;
fundamental rights. [Paras 39, 49, 53, 57, 128 and 129]
[895-B; 897-F; 899-E-F; 900-D-E; 927-A-D]
2.1. CBI has an Indian Interpol Wing. It works as an
interface between the Interpol Secretariat General,
France, Interpol member countries and various law H
864
SUPREME COURT REPORTS [2009] 12 S.C.R.
A enforcement agencies of India. CBI for intent and purport
exercises the power of National Control Bureau-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
B essential attribute of the procedure for the
implementation of the Treaty. C.B.I. in its website
maintains that it handles all procedures related to
Extradition and Issuance of Interpol Notices. One of its
functions is to circulate the Red Corner as also Yellow
c Notices issued by Interpol Secretariat General at the
behest of any member country within India. It is
proceeded on the basis that the power of CBI and its
delegated authority namely, the State police to keep a
person under surveillance ; arrest him in terms of
0 warrant of arrest issued by a foreign country and Red
Corner Notit.:e is an absolute one. Similarly the power to
"lt
find out a missing person in terms of the Yellow Notice
is also absolute. [Paras 41, 59, 97, 100 and 101] [895-FG; 901-B; 914-G; 915-C; 915-D-E]
E
2.2. 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. A Red Corner
notice is issued to seek the provisional arrest of a wanted
F 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
G extradition. An arrest may also be made under the
Extradition Act, 1962. The Ministry of External Affairs
works for the administrative watching of the Act. A Yellow
notice is issued for finding a missing person or to identify
people who are not capable of identifying themselves. It
H is a"n "International Missing Person Notice". It is issued
-
BHAVESH JAYANTI LAKHANI v. STATE OF
865
MAHARASHTRA & ORS.
specially to locate minors. [Paras 41 and 72] [895-G; 905A
B-0]
.
2.3. A Red Corner Notice has large number of
consequences. They are: (i) The requesting country may
make a deportation request. (ii) The law enforcement
8
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 C
its instructions for surveillance, arrest and detenti~n. (v)
The requesting Embassy can even contact the Indian
police directly. (vi) Thereafter, extradition proceedings
may follow. 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
D
strictly construed. Any request for extradition therefore
must undergo the strict scrutiny test. Extradition offence
keeping in view its definition in s. 2(c) of the Act in relation
to a treaty State must be one provided for the extradition
treaty therewith. [Paras 42 and 43] (896-A-F]
E
2.4. The application of the provisions of the Act, in a
case ·of this nature must be held to be imperative in
character. For the purpose of applying the provisions of
the Act, existence of a treaty between the requesting State
F
and the requested State plays an important role. It makes
a distinction between an extraditable offence and other
offences including political offences. 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 G
concerned country. The requirements are specific in
nature and are required to be accompanied by a large
number of documents. [Para 44] [896-F-H; 897-A-B]
2.5. No request for extradition has been received by
the Government of India. It could act only when a request
H
866
SUPREME COURT REPORTS [2009] 12 S.C.R.
A is received. Red Corner Notice by itself cannot be a basis
of arrest or transfer of an Indian citizen to a foreign
jurisdiction. The Act cannot be bypassed in red corner
cases concerning Indian citizens. Hence, the Extradition
Treaty is subject to the provisions of the Act. [Paras 45
8 and 49] [897-B, F, G]
2.6. A person cannot be arrested without any
authority of law. Thus, the arrest of a person must be
effected in terms of the provisions of the Act. A person
C wanted for an offence in a foreign jurisdiction may be
arrested on fulfillment of the following conditions: that the
offence should be counted as one by Indian Law as well,
and the person must be liable to be arrested in Indiaeither under any law relating to extradition, or otherwise.
D [Para 50] (897-H; 898-A-C]
E
2.7. Respondent no.6 herself accepts that she had
pursued only civil remedies and the order of the custody
Court was passed under civil remedies. [Para 52] (899C-D]
2.8. India follows the doctrine of dualism and not
monoism. The Act as also the treaties entered into by and
between India and foreign countries are subject to the
municipal law. Enforcement of a treaty is in the hands of
F the Executive. But such enforcement must conform to the
domestic law of the country. Whenever a conflict arises
between a treaty and the domestic law or a municipal
law, the latter shall prevail. [Paras 54 and 55] [899-F-H;
900-A-B]
G
Mis Entertainment Network (India) Ltd. vs. Mis Super
Cassettee Industries Ltd. 2008 (9) SCALE 69, relied on.
2.9. It is for the State concerned to take a decision in
regard to such notices, keeping in view the Municipal
H Laws. The steps to deal with the request contained in the
BHAVESH JAYANTI LAKHANI v. STATE OF
867
MAHARASHTRA & ORS.
notices, thus, must abide by the domestic laws of the
A
concerned country. Recognition of the request as the
basis for an arrest operate an internationalization or tansnationalization of a foreign administrative decision. The
formal admission procedure by Interpol cannot be the
single cause of internalization. It is just a precondition for B
the recognition by the other states. [Para 57] [900-D-E]
2.10. The appellant received a notice from Interpol
A dated 13.06.2007 being a Yellow or Watch notice as also
a Notice dated 21.06.2007 being a Red or Detain and
Arrest notice. Yellow notice was in relation to the child C
whereas the red notice was in relation to the Appellant.
The Assistant Director of National Crime Bureau (NCB)
forwarded a letter dated 4.01.2008 from the U.S. Embassy
(Department of Justice) on or about 14.01.2009 to the
f.
Mumbai Police to locate the Appellant and his daughter.
D
On 18.03.2008 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 3.05.2008
which information was passed on to U.S. Embassy on
E
9.05.2008. [Para 58] [900-F-H; 901-A]
2.11. The notices issued by INTERPOL are not
considered as administrative decisions on individual
cases with transnational effect. They are not construed
F
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 G
}
1
Human Rights through multiplication ,of its recipients.
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
H
868
SUPREME COURT REPORTS [2009] 12 S.C.R.
A extradition with supporting evidence will follow the red
notice, without delay. The suspect rriust 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
B 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
c 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.
[Paras 77, 78 and 79) [906-E-H; 907-A-C]
D
2.12. 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
E 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
F 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. [Paras
80, 81 and 82] [907-C-F]
G
Bettina Schondorf-Haubold, The Administration of
Information in International Administrative Law - The Example
of Interpol, 9 Gennan L.J. 1719, referred to.
2.13. The provisions relating to issuance of the notice
H by INTERPOL; warrant of arrest by foreign courts vis-a-
BHAVESH JAYANTI LAKHANI v. STATE OF
869
MAHARASHTRA & ORS.
vis the power of NCB and the local police to act in terms
A
~
thereof are contained not only in the Act but also in the
provisions of the concerned Treaty, Cr.P.C. as also the
various Notifications issued by the Central Government
in that behalf. [Para 91] [912-A-D]
2.14. Power to apprehend or investigate a fugitive B
criminal, is conferred bys. 14 rw s.15. Section 14
prescribes the form of apprehension of a fugitive criminal
~
under an endorsed warrant or a provisional warrant.
Warrant can be issued by a foreign country to arrest a c
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: Endorsed Warrant;
and Provisional Warrant. An Endorsed Warrant is one
which is a warrant that has, at first been issued by the
D
foreign country with which India has an Extradition
i
Treaty and subsequently been endorsed by the Central
Government. Hence once a warrant issued by the foreign
country is endorsed by Central government, it becomes
an Endorsed Warrant in terms whereof sufficient
authority is conferred to apprehend a person and to E
bring him before any Magistrate in India. Power to
~
apprehend includes the power to investigate. S. 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'. [Paras 93 and 94] [912-G-H; 913-A-E]
F
2.15. The requirement to arrest a person for the
purpose of his extradition is in two categories: the cases
in which India has an Extradition Treaty with the
concerned country and those in which no such G
~
.,
extradition treaty exits. In the former category, the
provisions of Chapter Ill of the Act shall apply. Arrest is
made by the police authorities in terms of endorsed
warrant; whereafter the procedure laid down in s. 17 is
to be followed by reason whereof the fugitive criminal is
H
870
SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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.
B A certificate of committal is thereafter sent to the Central
Government. [Para 95] (914-A-D]
2.16. The power is exercised by the C.B.I. or a police
officer to arrest a person, although no warrant is issued
C in terms of s. 41(1)(g) Cr.P.C. 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
D 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
E onward transmission to the Government of India to take
a decision or otherwise. In terms of the said provisions,
sanction of the Central Government is contemplated.
However, it is placed on record that strictly construed in
a case involving extradition, s. 41(g) may not have any
F application. Section 41(g) 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 Cr.P.C. are subject to those
G in the Act. (Paras 103 and 106] (916-A-B, E-F]
H
2.17. 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
)t
BHAVESH JAYANTI LAKHANI v. STATE OF
871
MAHARASHTRA & ORS.
country, is within the exclusive domain of the Central A
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-a-vis the Resolutions adopted by the C.8.1.
from time to time, although a Red Corner Notice per se B
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 c
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 D
1
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
E
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
F
find out the missing person or fugitive criminal. Only
when an investigation is carried out in relation to an
offence which has been committed in a State and not in
t
i
the Indian territory or within the territo1"ial jurisdiction of
:•
the Central Government the consent of the State
concerned is required to be obtained. (Paras 111 and
G
• ..
112] [919-G-H; 920-A-E; 920-H; 921-A]
2.18. Surveillance per se under the provisions of the
Act may not violate individual or private rights including
H
872
SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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. However, it is held to
be an essential ingredient of 'personal liberty'. In the
instant case, except giving information in regard to
8 whereabouts of the appellant and his daughter, no other
action was taken. [Paras 117, 118 and 119) [921-H; 922A; 923-C]
Kharak Singh v. State of UP. and others (1964) 1 SCR
c 332; Govind v. State of Madhya Pradesh (1975) 2 SCC 148;
R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632;
People's Union for Civil Liberties (PUCL) v. Union of India
(1997) 1 SCC 301; State of Maharashtra v. Madhukar
Narayan Mardikar (1991) 1 SCC 57; Malak Singh v. State of
D
P&H (1981) 1 SCC 420, referred to.
2.19. The Central Government and in particular the
Ministry of External Affairs, should frame appropriate
guidelines in respect of surveillance conducted pursuant
to a Red Corner or Yellow Corner Notice. In the instant
E case, further action in terms of the Red Corner Notice has
not been and could not be taken against the appellant.
[Paras 122 and 123) [923-G-H; 924-A]
2.20. The proceedings for extradition of a citizen
G 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
H
initiated. [Para 124] [924-8)
2.21. CBI stated that 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
j
Government as per s. 5 of the Act or subsequent to the
BHAVESH JAYANTI LAKHANI v. STATE OF
873
MAHARASHTRA & ORS.
Extradition of the Petitioner to the country in question. In A
t
any event, there has been no arrest of the Petitioner as
the CBI is awaiting the necessary papers from the
American Government. The fact that India is not a party
or signatory to the Hague Convention 9n the Civil
Aspects of International Child Abduction does not make B
any difference. 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 c
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 D
-f
he is ultimately extradited). Till date the CBI has not
received any request from the US authorities for the arrest
..
and Extradition of the Petitioner. [Para 125] [925-C-H; 926A-B]
2.22. The Ministry of External Affairs, Government of E
India, New Delhi by means of an affidavit admitted that it
-I
is the nodal agency for Extradition as per the Act and the
Extradition Treaty between the Government of India and
the United States of America. On receipt of a Red Corner
Notice, it is not the invariable practice to arrest the person F
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 G
-
"
person would only arise after request for extradition is
-·
formally received from the country. 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. In any case, since H
874
SUPREME COURT REPORTS [2009] 12 S.C.R.
A the instant case is 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. [Para 125) [925B C-H; 926-A-B]
2.23. A fundamental right of a citizen whenever
infringes, the High Courts having regard to their
extraordinary power under Article 226 of the Constitution
c 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
D
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
t
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, the court will enquire as to
E whether the same has undergone the tests laid down
under sections 13 and 44A C.P.C. [Paras 129 and 130)
[927-A-F]
2.24. Although the family court at Bombay for all
F 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 stayed the operation thereof. Therefore, the
~
appellant must be held to be in lawful custody of his -
G daughter unless any other or further order is passed by
a court of competent jurisdiction. [Para 131) [927-F-H]
,.
...,..
2.25. The State did not seek for enforcement of the
custody and/ or restrain order passed by the Probate
and Family Court, Massachusetts in view of the rigours
H contained in ss. 13 and 44A C.P.C. Even the Family Court
BHAVESH JAYANTI LAKHANI v. STATE OF
875
MAHARASHTRA & ORS.
t
did not deal with this aspect. In any event, as the matter A
is pending before the High Court, it alone will have a final
say. [Para 132) [928-A-B]
Case Law Reference:
2008 (9) SCALE 69
Relied on.
Para 53
B
(1964) 1 SCR 332
Referred to.
Para 118
(1975) 2 sec 148
Referred to.
Para 118
(1994) 6 sec 632
Referred to.
Para 118 c
(1997) 1 sec 301
Referred to.
Para 118
(1991) 1 sec 57
Referred to.
Para 118
(1981) 1 sec 420
Referred to.
Para 120
D
t
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
No. 1452 of 2009.
From the Judgment & Order dated 11.08.2008 of the High
Court of Judicature at Bombay in Criminal Writ Petition No. 676 E
of 2008.
Dr. Rajeev Dhawan, (A.C.), Shekhar Naphade, Vinay
Navare, Abha R.Sharma for the Appellants.
G.E. Vahanvati, A. G., K. Radhakrishnan, Tufail A. Khan,
F
Devadat Kamat, D.S. Mahra, B. Krishna Prasad, Nitya
Ramakrishnan. Sarim Naved, Trideep Pais, Nikhil Nayyar,
Ravindra Keshvrao Adsure, for the Respondents.
-·
The Judgment of the Court was delivered by
G
~
S.B. SINHA, J. 1. Leave granted.
INTRODUCTION
2. Interpretation of the roles and responsibilities of the
Central Bureau of Investigation (CBI) vis-a-vis the provisions of H
876
SUPREME COURT REPORTS [2009] 12' S.C.R.
A the Extradition Act, 1962 (hereinafter referred to as "the Act")
t
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
B 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
c 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.
D BACKGROUND FACTS
\
3. 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
E 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.
F
4. 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
-
G
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.
H
BHAVESH JAYANTI LAKHANI v. STATE OF
877
MAHARASHTRA & ORS. [S.B. SINHA, J.]
PROCEEDINGS IN USA
A
t
5. 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
B
for orders of custody of her daughter.
6. 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 c
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
'\hereof. Respondent No.6 took up a job and continued to live
with her child in Massachusetts. She contends that her Indian
D
f
Passport was stolen by the appellant from the premises which
_.
was being occupied by her.
7. Admittedly, the appellant came to India with the child on
15.04.2006 in violation of the court custody orders.
E
8. 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,
F
stating:
"I, Hetal G. Thakker ... authorize my child Eesha B. Lakhani
___...
to travel with my husband and her father, Bhavesh Lakhani
to India.
G
>
1
"fhey will be leaving the United States of America on or
about April 14, 2006 and returning on or about
(Undecided) ... "
. 9. Respondent No. 6, however, contends that the appellant
H
•
878
SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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
B 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.
c
PROCEEDINGS BEFORE THE FAMILY COURT
10. 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
D 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
E 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.
F
11. 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
-
G
12. The Atlanta City Police and the American Court in the
r
1.
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
I-' and/ or validity of the said warrant, which by reason of the
BHAVESH JAYANTI LAKHANI v. STATE OF
879
MAHARASHTRA & ORS. [S.S. SINHA, J.]
impugned judgment dated 11.08.2008 has been dismissed.
A
13. The High Court posed unto itself a question as to
whether the Red Corr.er Notice could be stayed by it.
14. Referring to the provisions of the Act it was opined :-
B
(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.
c
(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 D
f
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
E
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.
F
(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
G
• ..
treaty.
(viii) The provisions of Section 105A of the Code of
Criminal Procedure would not apply in a case of this
nature.
H
880
SUPREME COURT REPORTS [2009] 12 S.C.R.
A
(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
B
which have global dimensions and for the
investigation of which, Red Corner Notices are
critical tool.
CONTENTIONS ADVANCED BY THE PARTIES:
c
15. 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,
ID
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
E
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
F
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,
G
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
H
for custody of the child by invoking the provisions
BHAVESH JAYANTI LAKHANI v. STATE OF
881
MAHARASHTRA & ORS. [S.B. SINHA, J.]
contained in Section 13 of the Code of Civil A
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
cuslody of the child on the basis thereof.
B
16. 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 c
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.
D
~
(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 E
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 !he petitioner and the Respondent - wife
F
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 G
. t
~
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
H
882
SUPREME COURT REPORTS [2009) 12 S.C.R.
A
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
B
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
c
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
D
legalistic as the High Court failed to examine the
core constitutional issues involved in the matter.
17. Ms. Nitya Ramakrishnan, learned counsel appearing
on behalf of Respondent No.6 on the other hand urged :-
E
(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
F
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
G
matter the appellant must be held to have
,.