# VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA & ORS

- **Citation:** [2016] 3 S.C.R. 48
- **Court:** Supreme Court of India
- **Decided:** 2016-04-28
- **Bench:** Madan B. Lokur, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/verhoeven-marie-emmanuelle-v-union-of-india-ors-31153
- **Pages:** 55

## Headnote

Extradition Act, I 962:
Applicability of the Act to a foreign State - Scope of judicial
review - Held: Whether the Extradition Act is to be made applicable
to a foreign State or not is entirely a political decision to be taken
by the Government of India and there must be judicial abstinence
in this regard -
There is no doubt that this is an area that cannot be
the subject matter of judicial review - Extradition Act, I 870.
s.2(d) - Binding extradition beti1•een India and Chile - Extradition Treaty entered into on 26'" January I 897 between United
Kingdom of Great Britain and Ireland with the Republic of Chile is
still in force and binding on India and Chile - The provisions of the
Act (other than Chapter JJI thereof) are applicable to the Republic
of Chile in respect of the offences specified in the Extradition Treaty.
s.2(e) - Request made by Embassy of a foreign State - Held: It
is as good as a request made by foreign State itself.
s.34-B -Applicability of- Petitioner, a french national accused
of conspiracy in the assassination of Chilean Senator - Requisition
made by Embassy of Chile through the Note Verbale of 22'"1
September, 20I 5 for the arrest of the petitioner - That Note Verbale
was acted upon by the Government of India and an application
was moved before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi who granted the prayer for the
provisional arrest of the petitioner - Legality - Held: There was no
illegality or irregularity in the procedure adopted for the provisional
arrest of the petitioner - On the basis of a request made by Chile as
contained in the Note Verba le of 22'"1 September, 20 I 5, the petitioner
could have been validly detained and placed under provisional arrest
u/s.34-B of the Act, on a reciprocal basis, Extradition Treaty or no
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VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
49
.Extradition Treaty beh1'een India and Chile - The fi1rther requirement
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(in terms of s.34-B of the Act) would however be for Chile to make
a formal request for extraditing the petitioner from India on the
basis of credible evidence against her of having committed an
extradition. offence punishable both in Chile as well as in India.
Extradition law:
8
General principles of International lm1', do not bar requisition
invoking principle of reciprocity.
Historical background of Extradition law in India, discussed.
Red notice - Meaning of. discussed.
Doctrines/Principles: Doctrine of reciprocity - For invoking
principle of reciprocity, there need not even be extradition treaty
between India and the foreign State.
Words and phrases: British possession. Governor - Meaning
c
in terms of Extradition Act, 1870.
D
Dismissing the Writ petition and appeal, the Court
HELD: 1. There is more than sufficient material to conclude
that from 1897-1898 onwards, the Government of British India
and the Government of India considered itself bound by the
Extradition Treaty entered into with the Republic of Chile on
26'h January, 1897 and the Government of India has always been
ofthe view that the Extradition Treaty is in force in India. [Para
95] (84-E-F)
2.1. A Red Notice is issued to seek the provisional arrest of
a wanted person. It is not a warrant of arrest. It is a request made
by the NCB to Interpol Headquarters for the provisional arrest
of a person wanted for extradition and against whom a national or
international court has issued a warrant of arrest. It is another
matter that a Red Notice issued by Interpol acts as a tie facto
international arrest warrant. However, this is subject to the
condition that a request for extradition, along with necessary
evidence, would be produced by the requesting State without
delay. But the absence of a Red Notice does not preclude the
Government of India from arresting a fugitive criminal and
producing him or her before a Magistrate in accordance with law.
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.Thereafter, the provisions of Section 34-B of the

## Text

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[2016] 3 S.C.R. 48
VERHOEVEN, MARIE-EMMANUELLE
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 178of2015)
APRIL 28, 2016
[MADAN B. LOKUR AND N.V. RAMANA, JJ.]
Extradition Act, I 962:
Applicability of the Act to a foreign State - Scope of judicial
review - Held: Whether the Extradition Act is to be made applicable
to a foreign State or not is entirely a political decision to be taken
by the Government of India and there must be judicial abstinence
in this regard -
There is no doubt that this is an area that cannot be
the subject matter of judicial review - Extradition Act, I 870.
s.2(d) - Binding extradition beti1•een India and Chile - Extradition Treaty entered into on 26'" January I 897 between United
Kingdom of Great Britain and Ireland with the Republic of Chile is
still in force and binding on India and Chile - The provisions of the
Act (other than Chapter JJI thereof) are applicable to the Republic
of Chile in respect of the offences specified in the Extradition Treaty.
s.2(e) - Request made by Embassy of a foreign State - Held: It
is as good as a request made by foreign State itself.
s.34-B -Applicability of- Petitioner, a french national accused
of conspiracy in the assassination of Chilean Senator - Requisition
made by Embassy of Chile through the Note Verbale of 22'"1
September, 20I 5 for the arrest of the petitioner - That Note Verbale
was acted upon by the Government of India and an application
was moved before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi who granted the prayer for the
provisional arrest of the petitioner - Legality - Held: There was no
illegality or irregularity in the procedure adopted for the provisional
arrest of the petitioner - On the basis of a request made by Chile as
contained in the Note Verba le of 22'"1 September, 20 I 5, the petitioner
could have been validly detained and placed under provisional arrest
u/s.34-B of the Act, on a reciprocal basis, Extradition Treaty or no
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VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
49
.Extradition Treaty beh1'een India and Chile - The fi1rther requirement
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(in terms of s.34-B of the Act) would however be for Chile to make
a formal request for extraditing the petitioner from India on the
basis of credible evidence against her of having committed an
extradition. offence punishable both in Chile as well as in India.
Extradition law:
8
General principles of International lm1', do not bar requisition
invoking principle of reciprocity.
Historical background of Extradition law in India, discussed.
Red notice - Meaning of. discussed.
Doctrines/Principles: Doctrine of reciprocity - For invoking
principle of reciprocity, there need not even be extradition treaty
between India and the foreign State.
Words and phrases: British possession. Governor - Meaning
c
in terms of Extradition Act, 1870.
D
Dismissing the Writ petition and appeal, the Court
HELD: 1. There is more than sufficient material to conclude
that from 1897-1898 onwards, the Government of British India
and the Government of India considered itself bound by the
Extradition Treaty entered into with the Republic of Chile on
26'h January, 1897 and the Government of India has always been
ofthe view that the Extradition Treaty is in force in India. [Para
95] (84-E-F)
2.1. A Red Notice is issued to seek the provisional arrest of
a wanted person. It is not a warrant of arrest. It is a request made
by the NCB to Interpol Headquarters for the provisional arrest
of a person wanted for extradition and against whom a national or
international court has issued a warrant of arrest. It is another
matter that a Red Notice issued by Interpol acts as a tie facto
international arrest warrant. However, this is subject to the
condition that a request for extradition, along with necessary
evidence, would be produced by the requesting State without
delay. But the absence of a Red Notice does not preclude the
Government of India from arresting a fugitive criminal and
producing him or her before a Magistrate in accordance with law.
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.Thereafter, the provisions of Section 34-B of the Act can be
brought into play, provided there is an urgent request from a
foreign State for the provisional arrest of a fugitive criminal. This
is precisely what transpired in the present case when the Embassy
of Chile made an urgent request through the Note Verbale of 22"0
September, 2015 for the arrest of the petitioner. That Note Verbale
was acted upon by the Government of India and an application
moved before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi who granted the prayer for the
provisional arrest of the petitioner. No illegality or irregularity
can be found in the procedure adopted for the provisional arrest
of the petitioner. [Paras 121 and 122] [97-C-F]
Bhavesh .Jayanti Lakhani v. State of Maharashtra &
Ors. (2009) 9 SCC 551: 2009 (12) SCR 861 - relied
on.
2.2. Section 2(e) of the Act defines a foreign State to mean
any State outside India and it includes every constituent part,
colony or dependency of such State. A request made by the
Embassy of a foreign State is as good as a request made by the
foreign State itself. If this is not accepted, it will lead to an absurd
situation where the Head of State or the Head of the Government
of a foreign State would be required to make a request for
extradition. This is simply not an acceptable proposition.
Therefore, submission that the petitioner's arrest under Section
34-B of the Act could be made only on a request from a foreign
State (as mentioned in the Section) and not by a representative
of a foreign State or even the Embassy of a foreign State is
rejected.[Para 123] [97-G-H; 98-A-B]
3. If a State is unwilling to extradite a fugitive criminal, it
should undertake the responsibility of prosecuting him or her,
the theory being that a criminal should not go unpunished. It is
on the basis of reciprocity that the Republic of Chile first sought
the extradition of the petitioner as mentioned in the Note Verbale
of 24'h February, 2015. The same principle of reciprocity was
resorted to by the Government of India when it sought the
extradition of Abu Salem from Portugal, although the request made
by the Government of India to Portugal sought his extradition
also by relying on the International Convention for the
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
[MADAN B. LOKUR, J.]
Suppression of Terrorist Bombings. For invoking the principle
of reciprocity, there need not even be an extradition treaty
between India and the foreign State as is apparent from a reading
of the decision of this Court in Abu Salem. In fact, India did not
have any extradition treaty with Portugal and yet it made a request
for the extradition of Abu Salem on the basis of reciprocity. It is
only around the time that the request was made that the
Government of India issued a notified order under Section 3(1)
of the Act directing that the provisions of the Extradition Act,
1962 other than Chapter III shall apply to the Republic of Portugal.
On the basis of a request made by Chile as contained in the Note
Verbale of 22•rt September, 2015 the petitioner could have been
validly detained and placed under provisional arrest under Section
34-B of the Act, on a reciprocal basis, Extradition Treaty or no
Extradition Treaty between India and Chile. The further
requirement (in terms of Section 34-B of the Act) would however
be for Chile to make a formal request for extraditing the
petitioner from India on the basis of credible evidence against
her of having committed an extradition offence punishable both
in Chile as well as in India. [Paras 124, 127, 128, 129) [98-E; 99E-H; 100-A-C]
Rosiline George v. Union of India & Ors. (1994) 2 SCC
80: 1993 (3) Suppl. SCR 141; Abu Salem Abdul Qayoom
Ansari v. State of Maharashtra (2011) 11 SCC 214:
2010 (13) SCR 8 - referred to ..
4. A notified order under section 3(1) has been issued in
respect of the Republic of Chile and the natural presumption is
that this official act has been done after due application of mind.
In any event, whether the Extradition Act is to be made applicable
to a foreign State or not is entirely a political decision to be taken
by the Government of India and there must be judicial abstinence
in this regard. There is no doubt that this is an area that cannot
be the subject matter of judicial review. [Para 130) [100-D-E]
5. The extradition proceedings pertaining to the petitioner
are pending before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi. The Magistrate should decide
on the extradition of the petitioner on the merits of the case and
the evidence before him. [Para 137) [ 102-D-E]
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Messrs. Yangtze (London) Ltd. v. Barias Brothers PLD
1961 SC 573; Babu Ram Saksena v. State 1950 SCR
573; Sayne v. Shipley 418 F.2d 679; Terlinden v. Ames
184 U.S. 270; Ivancevic v. Artukovic 211 F. 2d 565;
Jhirad v. Ferrandina 355 F. Supp. 1155; Baker v. Carr
369 U.S. 186; Tom C. Clark v. Alvina Allen 331 U.S.
503, 518 - referred to.
Halsbury~· Lmt'S of England Volume 18(2) 41h Edition -
referred to.
Case Law Reference
1993 (3) Suppl. SCR 141 referred to
1950 SCR 573
2010 (13) SCR 8
2009 (12) SCR 861
referred to
referred to
relied on
Para 108
Para 108
Para 117
Para 120
CIVIL ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 178
of2015.
[Under Article 32 ofThe Constitution oflndia]
WITH
CRL. A. No. 417 of 2016.
C. A. Sundaram, Chander Uday Singh, Sr. Advs., Ms. Ramni Taneja,
Ms. Rohini Musa, Abhishek Gupta, Zafar lnayat, Anil Shrivastav, Rishi
Singh Gautam, Dhaval Mehrotra, Ms. Savita Singh, Advs. for the
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Petitioner.
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P. S. Patwal ia, ASG, Ms. V. Mohana, Sr. Adv., Arij it Prasad, Dhruv
Sheoran, Archit Upadhayay, B. Krishna Prasad, B. V. Balaram Das,
Ms. Natasha Vinayak, Rajat Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. I. The writ petition is admitted and in
the connected matter, special leave is granted.
2. The principal question for consideration is whether there is a
binding extradition treaty in terms of Section 2(d) of the Extradition Act,
1962 between India and Chile. Our answer to this question is in the
VERHOEVEN, MAR!E-EMMANUELLE v. UNION OF INDIA
[MADAN B. LOKUR, J.]
affirmative.
3. The subsidiary question, equally iviportant, is assuming there is
no binding extradition treaty between India and Chile, whether a
requisition by Chile invoking the principle ofreciprocity and the general
principles of international law for extraditing the petitioner from India is
maintainable. In our opinion, the general principles of international law
do not debar the requisition. However, whether the petitioner ought to
be extradited or not is a decision that the concerned Magistrate, before
whom the extradition proceedings are pending, will need to take on the
evidence and material before him.
4. The case before us has a chequered history inasmuch as the
Republic of Chile has sought the extradition of the petitioner who is
believed to be a French national. The petitioner is accused of being a
conspirator in the assassination of a Chilean Senator on 1" April, 1991.
She was sought to be extradited from Germany but the proceedings
terminated in her favour. She was then sought to be extradited from
India but the Delhi High Court held thatthe extradition proceedings initiated
against her were not in accordance with law. The present proceedings
have arisen out of yet another requisiti~n made by the Republic of Chile
for her extradition to Chile to face trial in the assassination of the Chilean
Senator.
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5. The extradition ofa fugitive criminal is a serious matter since it
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involves the liberty of a person and therefore learned counsel for the
petitioner placed a large amount of material before us, which he was
entitled to do since the matter involved the liberty of his client. The case
before us was, therefore, argued for several days and we were taken
through the history of extradition laws in India, the procedure in Chile
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and some general principles of international law were also placed before
us.
6. At one stage, it was submitted on behalf of the Government of
India that a French national could not challenge the existence of an
extradition treaty between India and Chile but in view of Article 21 of
our Constitution which beriefits all persons in India, including non-citizens,
we did not accept this argument and proceeded to hear the case on the
entirety of the material before us. All that we need say in this context is
that Article 21 of the Constitution is entitled to the respect and expansive
interpretation that it deserves, and more. It is in view of this that we
have considered the 111atter before us.
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7. To answer the questions before us, it is necessary to go all the
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way back to the Extradition Act, 1870 ('the 1870 Act') when India was
a colony and a 'possession' of the British Empire.
The Extradition Act, 1870
8. In terms of Section 2 of the 1870 Act, by an Order in Council,
Her Majesty could direct the application of the 1870 Act in the case of a
foreign State with which an arrangement had been made with respect to
the surrender to such State ofany fugitive criminal. The Order in Council
was required to recite or embody the terms of arrangement; it was also
required to be laid before both Houses of Parliament within a specified
period, and it was required to be published in the London Gazette.
Section 2 of the Extradition Act, 1870 reads as follows:
"2. Where arrangement for surrender of criminals made,
Order in Council to apply Act.--Where an arrangement has
been made with any foreign state with respect to the surrender to
such state of any fugitive criminals, Her Majesty may, by Order
in Council, direct that this Act shall apply in the case of such
foreign state."
9. Section 17 of the 1870 Act provided for the application of that
Act, unless otherwise provided by an Order in Council, to extend to
every British possession in the same manner as ifthe British possession
were substituted for the United Kingdom or England. The operative
part of Section 17 of the 1870 Act reads as follows:-
"17. Proceedings as to fugitive criminals in British
Possessions.-ThisAct when applied by Order in Council, shall,
unless it is otherwise provided by such order, extend to every
British possession in the same manner as if throughout this Act
the British possession were substituted for the United Kingdom
or England, as the case may require."
10. Section 26 of the 1870Act dealt with the interpretation of certain
terms used therein and the term 'British possession' meant (inter alia)
any colony within Her Majesty's dominions. The term 'governor' meant
any person or persons administering the government ofa British possession
and included a governor of any part of India.
11. Clearly therefore, the 1870 Act applied to that part of India as
was a colony within Her Majesty's dominion or was a possession in Her
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
[MADAN B. LOKUR, J.]
Majesty's dominions. The terms 'British possession' and 'governor' as
mentioned in Section 26 of the 1870 Act read as follows:-
26. Interpretation.-The term "British possession" means any
colony, plantation, island, territory, or settlement within Her
Majesty's dominions. and not within the United Kingdom, the
Channel ls lands, and Isle of Man; and all colonies, plantations,
islands, territories, and settlements under one legislature, as
hereinafter defined, are deemed to be one British possession."
The term "governor" means any person or persons administering
the government of a British possession, and includes the governor
of any part of India."
12. Section 18 of the 1870 Act provided for the saving of laws of
British possessions. In other words, the provisions of the Extradition
Act, 1870 could be applied by Her Majesty, by Order in Council, to any
law enacted before or after the 1870 Act by a British possession to any
foreign State, inter alia, by directing that such law shall have effect in
such British possession, with or without modifications and alterations, as
if it were a part of the 1870 Act. Section 18 of the Extradition Act, 1870
reads as follows:-
"18. Saving of laws of British possessions.- If by any law
or ordinance made before or after the passing of this Act by the
Legislature of any British possession, provision is made for carrying
into effect within such possession the surrender offugitive criminals
who are in or suspected of being in such British possession, Her
Majesty may, by the Order in Council applying this Act in the
case of any foreign state, or by any subsequent order, either
Suspend the operation within any such British possession of this
Act, or any part thereof, so far as it relates to such foreign state,
and so long as such law or ordinance continues in force there, and
no longer;
or direct that such law or ordinance, or any part thereof, shall
have effect in such British possession, with or without
modifications or alterations, as ifit were part of this Act."
The Extradition Treaty
13. On 261h January, 1897 the United Kingdom of Great Britain and
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Ireland and the Republic of Chile entered into a Treaty for the Mutual
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Surrender of Fugitive Criminals (for short 'the Extradition Treaty' or
'the Treaty'). In terms of Article I of the Treaty, the High Contracting
Parties engaged to deliver up to each other under certain circumstances
and conditions those persons who, being accused or convicted of any of
the crimes or offences mentioned in Article II thereof committed in the
territory of one Party are found within the territory of the other Party.
Article II of the Treaty provided forthe reciprocal extradition for, inter ·
alia, the crime or offence of murder (including assassination, parricide,
infanticide, poisoning) or attempt or conspiracy to murder.
14. Article VIII of the Treaty provided that the requisition for
extradition shall be made through the diplomatic agents of the High
Contracting Parties respectively and that the requisition must be
accompanied by a warrant of arrest issued by the competent authority
of the State requiring the extradition and also by necessary evidence
which, according to the laws of the place where the accused is found,
would justify his arrest if the crime had been committed there.
15. The Treaty having been signed, an Order in Counci 1 was made
on 91h August, 1898 and this was published in the London Gazette on I 21h
August, 1898. Both the Order in Council and the London Gazette
embodied the text of the Treaty between the United Kingdom of Great
Britain and Ireland and the Republic of Chile.
16. The Extradition Treaty was subject to ratification and on 141h
April, 1898 Her Majesty and the President of the Republic of Chile
ratified the Treaty which was brought in force from and after 22"d August,
1898.
17. Soon thereafter, the Gazette of India of I 21h November, 1898
reproduced the Order in Council published in the London Gazette of 12'"
August, 1898 pertaining to the Extradition Treaty between the United·
Kingdom of Great Britain and Ireland and the Republic of Chile. The
Extradition Treaty with the Republic of Chile was, therefore, independently
applicable to India as well. Incidentally, none of the affidavits filed by
the Union oflndia, either in the Delhi High Court or in this Court, refer
to or mention this gazette notification. The notification was handed over
to us in Court by the learned Additional Solicitor General during the
course of his submissions. This shows the seriousness with which the
Government of India conducted the litigation in the Delhi High Court
and initially in this Court and the level of its preparedness.
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
[MADAN B. LOKUR, J.]
The Indian Extradition Act, 1903
18. The Indian Extradition Act, 1903 (the 1903 Act) was brought
into force on I" June, 1904 in terms of Section 1(3) thereof. Section
2( c )_ of the 1903 Act provided that a 'Foreign State' meant a State to
which, for the time being, the Extradition Act, 1870 applied.
19. Section 3 of the 1903 Act provided for a requisition being made
by the government of any Foreign State for the surrender of a fugitive
criminal of that State, who is in or who is suspected of being in the
Provinces of India (later comprising of Part A States and Part C States
of India). The surrender was subject to an enquiry in this regard by a
Magistrate havingjurisdiction to enquire into the crime as ifit had been
anoffence committed within the local limits of his jurisdiction.
20. The relevant provisions of Section 3 of the Indian Extradition
Act, 1903 read as follows:-
"3(1)
Where a requisition is made to the Central Government
by the Government of any Foreign State for the surrender of a
fugitive criminal of that State, who is in or who is suspected of
being in the States, the Central Government may, if it thinks fit,
issue an order to any Magistrate who would have had jurisdiction
to inquire into the crime if it had been an offence committed
within the local limits ofhisjurisdiction; directing him to inquire
into the case.
(2) The Magistrate so directed shall issue a summons or warrant
for the arrest of the fugitive criminal according as the case
appears to be one in which a summons or warrant would
ordinarily issue.
(3) When such criminal appears or is brought before the Magistrate,
the Magistrate shall inquire into the case in the same manner and
have the same jurisdiction and powers, as nearly as may be, as if
the case were one triable by the Court of Session or High Court,
and shall take such evidence as may be produced in support of
the requisition and on behalf of the fugitive criminal, including any
evidence to show that the crime of which such criminal is accused
or alleged to have been convicted is an offence of a political
character or is not an extradition crime."
21. On 71h March, 1904 an Order in Council was made declaring
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that Chapter II of the Indian Extradition Act, 1903 shall have effect in
British India as if it were a part of the Extradition Act, 1870.
Consequently, the provisions of Chapter JI of the Indian Extradition Act,
1903 which dealt with the surrender of a fugitive criminal in the case of
a Foreign State was made applicable to British India. This position
continued till Independence.
Indian Independence (International Arrangements) Order, 1947
22. Around the time of Independence, the Indian Independence
(International Arrangements) Order, 1947 (for short 'the Order') was
notified by the Secretariat of the Governor-General (Reforms) on 141h
August, 1947 in exercise of powers conferred by Section 9 of the Indian
Independence Act, 194 7. The Order has the effect of an agreement
duly made between the Dominion oflndia and the Dominion of Pakistan
and came into effect from l S1h August, 194 7 .1 The Order provides, inter
alia, that the rights and obligations under all international agreements to
which India is a party immediately before the appointed day will devolve
upon both the Dominion oflndia and the Dominion of Pakistan and will,
if necessary, be apportioned between the two Dominions. The effect of
this is that the Extradition Treaty entered into by the United Kingdom of
Great Britain and Ireland and the Republic of Chile continued in force as
far as India is concerned.
The Extradition Act, 1962
23. To avoid any misgivings and apprehensions about the status of
the extradition treaties entered into between British India and foreign
States (including Commonwealth countries) the Extradition Act, 1962
(for short 'the Act') was enacted by our Parliament. It was brought into
force on S1h January, 1963.
24. Section 2(d) of the Act defines an extradition treaty as including
a treaty for the extradition of fugitive criminals made before 15'" August,
1947 which extends to and is binding on India. The definition is important
and is in the following terms:-
"2( d) "extradition treaty" means a treaty, agreement or
arrangement made by India with a foreign State relating to the
extradition of fugitive criminals, and includes any treaty, agreement
1 The agreement was reached on 6'" August. 1947 but the notification was issued on 14'"
August. 1947.
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
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[MADAN B. LOKUR, J.]
or arrangement relating to the extradition of fugitive criminals made
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before the 151h day of August, 1947, which extends to, and is
binding on, India."
25. Section 3 of the Act is also of some importance and it provides
for the issuance of a notified order by the Central Government applying
the provisions of the Act, other than Chapter III, to such foreign State or
·a
part thereof as may be specified in the notified order. The said Section
also provides that where the notified order relates to a treaty State, it
shall set out in full the extradition treaty with that State.
Section 3 of the Act reads as follows:-
"3. Application of Act. (I) The Central Government may, by
notified order, direct that the provisions of this Act, other than
Chapter III, shal I apply to such foreign State or part thereof as
may be specified in the order.
(2) The Central Government may, by the same notified order as is
referred to in sub-Section (I) or any subsequent notified order,
restrict such application to fugitive criminals found, or suspected
to be, in such part of India as may be specified in the order.
(3) Where the notified order relates to a treaty State:-
(a) it shall set out in full the extradition treaty with that State,-
(b) it shall not remain in force for any period longer than that
treaty; and
( c) the Central Government may, by the same or any subsequent
notified order, render the application of th is Act subject to such
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modifications, exceptions, conditions and qualifications as may be
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deemed expedient for implementing the treaty with that State.
(4) Where there is no extradition treaty made by India with any
foreign State, the Central Government may, by notified order, treat
any Convention to which India and a Foreign State are parties, as
an extradition treaty made by India with that foreign State providing
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for extradition in respect of the offences specified in that
Convention."
26. Another important provision in the Act is Section 34-B relating
to a provisional arrest. This Section provides that on receipt of an urgent
request from a foreign State for the immediate arrest of a fugitive criminal
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the Central Government may request the jurisdictional Magistrate to
issue a provisional warrant forthe arrest of the fugitive criminal. Section
34-B of the Act reads as follows:-
"34-B. Provisional arrest. ( 1) On receipt of an urgent request
from a foreign State for the immediate arrest of a fugitive criminal,
the Central Government may request the Magistrate having
competent jurisdiction to issue a provisional warrant forthe arrest
of such fugitive criminal.
(2) A fugitive criminal arrested under sub-section (I) shall be
discharged upon the expiration of sixty days from the date of his
arrest if no request for his surrender or return is received within
the said period."
27. On or about l 61h March, 1956 (well before the Extradition Act,
1962) came into force, an unstarred question No. 439 was raised in
Parliament by Shrimati Ha Palchoudhury requiring the Prime Minister to
state the countries with which India has an extradition treaty. In response
to the unstarred question, Prime Minister Shri Jawaharlal Nehru (who
was also the Minister for External Affairs) laid on the table of the House
a list of extradition treaties with foreign countries concluded by the British
Government on behalf of India before Independence and which were
still in force. One of the foreign countries with which an extradition
treaty had been entered into on behalf of India and still in force was the
treaty with Chile executed on 261h January, 1897.
28. When the Extradition Bill was introduced in 1961 and considered
in Parliament, Shri D.C. Sharma (an Hon'ble Member of Parliament)
referred to Clause 2( d) of the Extradition Bill and stated on 71h August,
1962 that he had a list of countries with which India has an extradition
treaty entered into prior to 1 S1h August, 194 7. One of the countries so
mentioned by Shri D.C. Shanna was Chile.
29. These details have been mentioned forthe purposes ofrecording
the submission of the learned Additional Solicitor General that the
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Extradition Treaty between India and Chile was in force not only before
Independence but also thereafter and that is how the Prime Minister of
India understood the position.
30. However, even though there might have been an extradition
treaty in force between India and Chile, the fact of the matter is that
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post S1h January, 1963 the provisions of the Act would not be applicable
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
[MADAN B. LOKUR, J.]
to the Extradition Treaty without an appropriate notified order issued in
accordance with Section 3(1) [read with Section 3(3)] of the Act.
Apparently realizing this, the Government of India notified an Order
dated 281h April, 2015 (gazetted on 291h April, 2015) under Section 3( 1)
read with Section 3(3) of the Act making the Act applicable to the
Republic of Chile.
31. The notified order contains three errors and it is reproduced
below:-
"G.S.R. 328(E) - Whereas the Extradition Treaty between the
United Kingdom of Great Britain and Ireland, and the Republic of
Chile was concluded and signed at Santiago on the January 26,
1897 and the Ratification exchanged at Santiago on the April 14,
1898, are considered to be in force between the Republic oflndia
and the Republic of Chile;
And whereas the Central Government in exercise of the powers
conferred by sub-Section (1) of Section 3 of the Extradition Act,
1962 (34 of 1962) had directed by an order number G.S.R. 56
dated S1h January, 1963 that the provisions of the said Act, other
than Chapter III shall apply to the Republic of Chile;
Now, therefore, in exercise of the power conferred by sub-section
(3) of the Extradition Act, 1962 (34 of 1962), the Central
Government hereby sets out the aforesaid Treaty as under:-
Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, and his Excellency the President of the Republic of
Chile, having determined, by common consent, to conclude a Treaty
for the extradition of criminals, have accordingly named as their
Plenipotentiaries:-
Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland John G. Kennedy, Esq., Minister Resident of Great
Britain in Chile; and
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His Excellency the President of the Republic of Chile, Senor Don
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Carlos Morla Vicuna, Minister of Foreign Affairs;
Who, after having exhibited to each other their respective full
powers, and found them in good and due form, have agreed upon
the following Articles:-
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(The Articles of the extradition treaty are reproduced in the notified
order, but not reproduced here)
Now therefore, in the exercise of the power conferred by subsection ( 1) ofSection 4 of the Indian Extradition Act, 1962 (34 of
1962), the Central Government hereby direct that the provision of
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the said Act, other than Chapter Ill, shall apply to the Republic of
Chile with effect from the date of publication of this notification,
in respect of the offences specified in the above Treaty."
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32. The first error in the notified order is the reference to GSR 56
dated 51h January, 1963 to the effect that the provisions of the Act other
than Chapter Ill shall apply to the Republic of Chile. GSR 56 is totally
(and admittedly) irrelevant to the context and has absolutely no concern
with the Republic of Chile. The second error is that the notified order is
purported to have been issued in exercise of powers conferred by Section
4(1) of the Indian Extradition Act, 1962. Section 4(1) has no relevance
to the context. What is relevant is Section 3( 1) of the Act. The third
error is that there is no statute called the Indian Extradition Act, 1962.
What has been enacted by Parliament is the Extradition Act, 1962.
33. The validity of the notified order dated 281" April, 2015 was
challenged by the petitioner by filing W.P. (Crl.) No. 1215of2015 in the
Delhi High Court and a prayer was also made for quashing a requisition
made by the Republic of Chile for the extradition of the petitioner from
India to Chile.
34. During the pendency of the writ petition, the Government of
India having realized the errors committed in the notified order dated
281h April, 2015 issued a corrigendum on 11th August, 2015 (published in
the Gazette of India) in which reference to GSR 56 dated 51" January,
1963 was deleted and sub-section (1) of Section 4 of the Indian Extradition
Act, 1962 was substituted to read sub-section ( 1) of Section 3 of the
Indian Extradition Act, 1962. No correction was 1'nade with regard to
the so-called Indian Extradition Act, 1962. The casualness with which
the corrigendum has been issued by the Government of India is quite
apparent.
The corrigendum dated l l 1h August, 2015 reads as fol lows:-
"GSR 628(E)- In the order of the Ministry of External Affairs,
dated the 281h April, 2015 published in the Gazette of India,
Extraordinary, Part II, Section 3, Sub-Section (i) vide G.S.R.
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
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[MADAN B. LOKUR, J.]
328(E), dated the 291h April, 2015, -
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In the said order, -
(i) In the second paragraph, for "had directed by an Order number G.S.R. 56, dated January 5, 1963" read "directs";
(ii) In the last paragraph, for "sub-section (I) of section 4", read
"sub-section (I) of section 3".
35. ln view of the corrigendum dated J Jth August, 2015 it must be
held that the notified order dated 28th April, 2015 was partially defective
and therefore the application of the Extradition Act, 1962 to Chile would
be effective only from 11th August, 2015 when the corrections were
carried out and not 281h April, 2015. However, this makes no difference
to the ultimate result of this case.
The factual background
36. On I st April, 1991 (the first Red Notice issued by Interpol
erroneously shows the year as 1992) a terrorist attack was perpetrated
leading to the assassination of Senator Jaime Guzman Errazuriz of Chile.
Initial investigations apparently did not point to the involvement of the
petitioner Marie Emmanuelle Verhoeven (believed to be a French
national). However, when further facts came to light in 20 I 0, it appeared
that the petitioner was a member of a subversive organization responsible
for the assassination. Accordingly, a warrant for the arrest of the petitioner
was issued on 21st September, 2010 by the Court of Appeal of Santiago
in Chile. On the basis of this arrest warrant and a request made by
National Central Bureau (or NCB) at Santiago, Chile (and presumably
on the basis of other available information) a "Red Notice" was issued
by Interpol on 27th January, 2014 for the location and arrest of the
petitioner for an incident that occurred on I st April, 1992 (actually 1991)
with a view to extradite her to Chile and also for her provisional arrest.
The Red Notice mentioned that NCB Santiago, Chile and the Interpol
General Secretariat be immediately informed on the fugitive being found.
37. A few days later on 29
1h January, 2014 the petitioner was indicted
for the offence above-mentioned.
38. lt appears that pursuant to the Red Notice issued by Interpol,
the petitioner was arrested in Germany but the concerned court in
Germany held by an order dated 6th June, 2014 that the extradition of the
petitioner was illegal. We are not concerned with the proceedings in
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Germany and this is being mentioned only for completing the factual
background.
39. Much later, on l 71h February, 2015 the petitioner was detained
and arrested while crossing the Nepal border at the immigration point in
Sunauli, Uttar Pradesh. She was produced before the concerned
Magistrate in Maharaj Ganj in Uttar Pradesh and brought to Delhi on a
transit remand. She was then produced before the Chief Metropolitan
Magistrate, Patiala House Courts, New Delhi on 21" February, 2015
and remanded to judicial custody till 241h February, 2015
40. Thereafter, on 241h February, 2015 the petitioner was produced
before the Additional Chief Metropolitan Magistrate, Patiala House
Courts, New Delhi who ordered her provisional arrest under Section 34B of the Act. The petitioner has been in judicial custody ever since that
day. The petitioner challenged her provisional arrest by filing W.P. (Crl.)
No. 666 of 20 I 5 in the Delhi High Court and also a subsequent order
continuing her judicial custody as a result of the Red Notice issued by
Interpol. In the writ petition, the petitioner sought her immediate release
from Tihar Jail, Delhi.
41. In the meanwhile and apparently on information received
regarding the arrest of the petitioner, the Embassy of Chile gave a Note
Verbale on 24'h February, 2015 to the Ministry of External Affairs,
Government of India. The Note Verbale is of some importance and it
reads as follows:-
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"The Embassy of the Republic of Chile presents its compliments
to the Ministry of External Affairs of the Republic of India -
CPV (Consular Passport, Visa) Division - and has the honor to
request the extension of the detention period of the French citizen
MARIE EMMANUELLE VERHOEVEN on the basis of the
request for preventive detention enclosed with this Note, issued
by the Supreme Court of Chile.
The request for preventive detention to secure the extradition to
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besought was issued in matter No. 3.118-2015 tried by the Supreme
Court of Justice, at the request of the Special Investigating Judge
of the Santiago Court of Appeals Hon. Mario Carroza Espinosa.
As regards Ms. Verhoeven, described in the documents enclosed,
a warrant of arrest was issued against her on January 27, 20 I 4.
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She was indicted on January 29, 2014 as perpetrator of a terrorist
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA
[MADAN B. LOKUR, J.]
attack leading to the assassination of Senator Mr. Jaime Guzman
Errazuriz on Apri I I, 1991.
The extension of Ms. Verhoeven 's detention period is grounded
on the need of taking into consideration Chilean internal procedures
to subsequently request the Government of the Republic of India
to extradite the accused. Indeed, the Chilean Supreme Comi of
Justice, upon making a decision as regards the request for
extradition filed by the Court having charged Ms. Verhoeven with
such crime, shall cause that a case file is opened, which will include
the pieces of evidence supporting the request for extradition.
Said request shall be remitted to the Chilean Ministry of Foreign
Affairs for translation into the English language before it is fonnally
submitted to the Indian Ministry of Foreign Affairs.
Additionally, to prevent the person whose extradition will be sought
from fleeing from justice, the Court of jurisdiction over the case
has asked the Supreme Court to issue a preventive detention
warrant. According to the Chilean criminal procedure system, a
request for preventive detention-just like a request for extraditionis made and decided by a court, the Executive Power having no
bearing whatsoever therein. The Executive is to act at subsequent
stages, i.e. administrative and diplomatic stages of an active
extradition proceeding.
All in all, this request for preventive detention is aimed at extending
the detention period of Ms.