AI Drafter 
TaxTMI 
TaxTMI 
2009 (8) TMI 1223
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.... appellant in that 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. BACKGROUND FACTS Appellant and the respondent No. 6 are citizens of India. He went to Michigan to pursue his studies in M.S. (Computer Engineering) between August, 1998 and May, 2000. He also worked as a Software Engineer at California in a company named Broadbase Software upto 2001. He was later on employed as a Technical Lead in a Government Contract Firm at California known as Ancore Corporation between 2001 and 2003. Appellant married the respondent No. 6 on 6.04.2002 at Mumbai. They moved to California on 19.04.2002 and stayed there till 2005. Out of the said wedlock, a daughter Eesha was born on 26.04.2003. Marital life of the Appellant and the Respondent No. 6 was however not happy. According to the respondent No. 6, she was continuously being harassed. She applied for grant of permanent asylum on 1.07.2003 allegedly under coercion from the appellant. Later on the respondent No....
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....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 to remain present in the Court with Eesha. Pursuant to the said notice of the Family Court, his father appeared before the court on 15.05.2007 and stated that the appellant had gone out of Mumbai along with Eesha. The matter, therefore, was adjourned to 18.05.2007. On that day the appellant's father again appeared and informed the Court that the appellant could not be contacted. The Family Court, thus issued a warrant of arrest against the appellant and directed grant of custody of the child to the Respondent No. 6. Appellant indisputably preferred an appeal before the High Court which was marked as Family Court Appeal (Stamp) No. 11724 of 2007. An order of stay was granted by the High Court of Bombay in the matter, which is still operative. PROCEEDINGS BEFORE THE HIGH COURT The Atlanta City Police and the American Court in the meanwhile issued a warrant of arrest against the Appellant which was transmitted through INTERPOL to the Government of India. Appellant filed a writ p....
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....ssed by the American Courts being in conflict 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, the said judgments cannot be executed in India having regard to the provisions contained in Section 44A of the Code of Civil Procedure, 1908. . (v) Respondent No. 6 having moved the Family Court for custody of the child by invoking the provisions contained in Section 13 of the Code of Civil Procedure, it could not have acted, relying on or on the basis of the orders passed by the Probate and Family Court, Massachusetts and directed grant of custody of the child on the basis thereof. So far s the judgment of the Bombay High Court is concerned, it was urged: (i) It ought to have considered that the so-called offence for which the petitioner is charged by the American Court is not an extraditable offence either within the meaning of the said Act or under the provisions of the Extradition Treaty entered into by and between the United States of America and India. (ii) It ought to h....
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....t been served with the notice of the Matrimonial Court is factually incorrect as the records of the case demonstratively establish that, not only a notice but also the order of the Court granting custody in favour of respondent No.6. was served on the appellant on 20th May, 2005 which was extended till 24th May, 2005. iv) Although the appellant appeared before the Court on 8th July, 2005 he neither sought any modification of the order nor the custody of the child. v) Appellant having forged documents to take the child out of United States of America as the American Passport was with the respondent No.6 and in that view the appellant must be held to have committed an extraditable offence. vi) Keeping in view the provisions of Section 13 read with Section 29 of the Act, the writ petition before the High Court must be held to be entirely pre-mature as all the contentions raised by the Appellant herein can be raised before the Magistrate in the event the Central Government thinks fit to issue a request to any Magistrate to hold an enquiry in terms of Section 5 of the Act. vii) Appellant even having not appeared before the Family Court at Mumbai, the ....
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....d, being violative of the civil liberties of the citizens of India. (iii). The executive power is coterminous with the legislative power but the legislative power wherever exists, should not be permitted to be used so as to interfere with the right of an individual and in particular private rights of the citizens. (iv). Any executive or departmental instructions framed for the guidance of the police officers being not a law no executive power can be exercised to curtail the fundamental right of a citizen in terms thereof (v). Central Bureau of Investigation having been constituted in terms of the provisions of Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the "DSPE Act"), and having regard to the limitations of its powers contained therein, it could not exercise its jurisdiction within the territories of a State without its consent. (vi). C.B.I. had no jurisdiction of surveillance in terms of the Red Corner Notice or Yellow Corner Notice issued by the Interpol or otherwise. (vii). C.B.I. being a creature of the statute must be held to be bound by the provisions of the DSPE Act and cannot act in a sui generis ca....
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....f Article 1 thereof the Contracting States agreed to extradite to each other, pursuant to the provisions thereof, persons who, by the authorities in the requesting State are formally accused of, charged with or convicted of an extraditable offence, whether such offence was committed before or after the entering into force of the Treaty. Article 2 defines extraditable offence to mean an offence punishable under the laws in both the Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty. An offence shall also be an extraditable one if it consists of an attempt or a conspiracy to commit, aiding or abetting, counseling or procuring the commission of or being an accessory before or after the fact to, any offence described in paragraph 1. Article 4 defines political offenses. Clause (2) of Article 4 inter alia provides that offences related to illegal drugs, shall not be treated to be political offence. Article 9 provides for extradition procedures and required documents, the relevant portion whereof reads as under: "Article 9 - Extradition Procedures and Required Documents :- 1. A....
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.... the existence of a warrant of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and (f) a statement that a request for extradition for the person sought will follow. 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of provisional arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 9. 5. The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date." Article 17 provides that a person extradited under the Treaty may not be detained, tried or punished in the requesting State except for the offenses enumerated therein. Lastly, it is also imperative to note the provisions of Article 21 which r....
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....f the Act deals with return of fugitive criminals to foreign States which have Extradition Agreements. CODE OF CRIMINAL PROCEDURE: In 1994, Parliament added Chapter VIIA titled: "Reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property" to the Criminal Procedure Code, 1973. This Chapter was introduced to facilitate the agreement between the Government of United Kingdom of Great Britain and Northern Ireland. This was to facilitate cooperation in investigation of crime, secure, evidence, documents and witnesses. It primarily deals with the question of attachment of property (Section 105C to J and Section 105A(b) to (e)). It also contains provisions for "Assistance in securing the transfer of persons" (Section 105B). We are concerned with the latter provisions relating to arrest and transfer. The following threshold requirements are that these reciprocal procedures are: (i) Applicable only in respect of contracting States. Section 105A contains the interpretation Clause. Some of the relevant provisions are as under: "In this Chapter, unless the context otherwise requires,-- (a) "contracting State" means any ....
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....d in custody in India;" ISSUES: In view of the rival contentions of the parties, the following questions which arise for our consideration are: (i) Whether having regard to the concept of sovereignty the Executive Government of India can enforce a warrant passed by the Probate and Family Court, Massachusetts? (ii) Having regard to the provisions contained in Sections 44A and 13 of the Code of Civil Procedure, is the foreign judgment enforceable in India? (iii) Whether the CBI established under the DPSE Act has the authority to deal with INTERPOL notices? MATRIMONIAL DISPUTE AND THE COURT'S POWER OF REVIEW: The dispute between the appellant and the respondent No.6 essentially being a matrimonial dispute, is a private dispute. Criminal offences, if any, are sought to be made out relate to the violation of the Order of the Court which speaks of commission of an offence of forgery as well. A `Yellow Corner Notice' is evidently used to trace missing minors. The Interpol issued a yellow or watch notice on 13.6.2007 in respect of Eesha, minor daughter of the respondent No. 6. It, however, issued a red or detain and arrest notice on 21.6.2007 to locate and a....
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....ter. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence and other offences including political offences subject of course to the condition that offences relating to illegal tax are not to be treated to be a political offence. Sections 4-18 provides for the mode and manner in which a request for extradition of a person is required to be made by the concerned country. The requirements are specific in nature and are required to be accompanied by a large number of documents. It is accepted at the Bar that no request has yet been made to the Executive Government of the Government of India for extradition of the Appellant upon compliance of the provisions of Section 2-18 or otherwise. It is but imperative to note the provisions of the Treaty here vis-a vis the implementation of a Red/ Yellow Corner Notice. Article 1 of the Treaty provides that the Contracting States agree to extradite to each other, persons who are accused of, charged with or convicted of an extraditable offence. Articl....
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....ovides that the person so arrested would have to be released on bail after a period of 60 days. If actual request for extradition is required within the said period having regard to Section 41(g) of the Code of Criminal Procedure, the Central Government cannot direct or effect an urgent arrest in anticipation of an extradition request without obtaining a warrant issued by a Magistrate. Article 12 provides that provisions of provisional arrest according to which in a case of urgency, the Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. It also provides that the facilities of International Criminal Police Organization (Interpol) may be used to transmit such a request. However, when a request for provisional arrest in terms of Article 12 is communicated, it must satisfy the requirement of Section 34B of the Act. Such request from a foreign country must be accompanied by the requisite documents and not a communication from INTERPOL alone. It will bear repetition to state that an arrest can be effected at the instance of the Central Government only when such a request is made by the foreign country and not ....
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....terpol cannot be the single cause of internalization. It is just a precondition for the recognition by the other states. We may however add that, indisputably the appellant received a notice from Interpol dated 13th June, 2007 being a Yellow or Watch notice as also a Notice dated 21st June, 2007 being a Red or Detain and Arrest notice. Yellow notice was in relation to the child whereas the red notice was in relation to the Appellant. The Assistant Director of National Crime Bureau (NCB) forwarded a letter dated 4th January, 2008 from the U.S. Embassy (Department of Justice) on or about 14th January, 2009 to the Mumbai Police to locate the Appellant and his daughter. On 18th March, 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 3rd May, 2008 which information was passed on to U.S. Embassy on 9th May, 2008. It is also not in dispute that the CBI has an Interpol Wing as is evident from its counter-affidavit and that the U.S. Embassy was in touch with it as also of the Mumbai Police in respect of locating the Appellant. Before, h....
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....ing it in conformity with Articles 14 and 21 of the Constitution. In our opinion, however, the submissions are a clear misreading of Chapter VIIA of the Code of Criminal Procedure which does not apply in situations of Extradition. INTERPOL ((The International Criminal Police Organisation). The INTERPOL is the world's largest international police organization with 187 countries as its members. It was created in 1923. The object of establishing the INTERPOL was `to ensure and promote the widest possible mutual assistance between all criminal police authorities'. It facilitates cross - border police cooperation and supports as well as assists all organizations, authorities and services whose mission is to prevent or combat international crime. Even in a case where the country concerned inter se do not have any diplomatic relation, the INTERPOL aims to facilitate international police cooperation. Action is taken by it, having regard to the provisions contained in the Universal Declaration of Human Rights and keeping in view the limitation of existing municipal laws of the country concerned. It has six departments, namely - i) The General Assembly ; ii) Executi....
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.... conviction was obtained etc. The notices issued by the INTERPOL are of six types - Red Notice ; Yellow Notice ; Blue Notice; Green Notice ; Black Notice and Orange Notice. It also contemplates Interpol-United Nations Special Notice. We are concerned herein only with Red and Yellow Notices. A Red Corner notice is issued to seek the provisional arrest of a wanted 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 extradition. A Yellow notice, however, is issued for finding a missing person or to identify people who are not capable of identifying themselves. It is an "International Missing Person Notice". It is issued specially to locate minors. PROCEDURE FOR ISSUING NOTICE Notice in terms of Article 10.5 of the RPI (Rules governing the processing and communication of police information) of the INTERPOL can be issued by the General Secretariat either at the request of an authorized entity or on its own initiative as is the case in Green and Orange Noti....
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.... 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 extradition with supporting evidence will follow the red notice, without delay. The suspect must 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 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 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. 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 suc....
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.... investigate, among other things, offences relating to Sections 363 ; 363A ; 365 and 368 of the Indian Penal Code being some of them. It is at this juncture, a discussion of the DSPE Act becomes imperative. The Title and Preamble of DSPE Act reads:- "An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for the extension to other areas of the power and jurisdiction of the members of the said force in regards to the investigation of the said offences." "Whereas it is necessary to constitute a special police force in Delhi for the investigation of certain offences in the Union territories and to make provisions of for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences." The relevant provisions of the DSPE Act are Sections 2; 3 and 5, which read as under :- 2. Constitution and powers of special police establishment. : (1) Notwithstanding....
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....to that police force. Undoubtedly in terms of Section 5 of the DSPE Act, although the powers of the authority established therein can be extended by the Central Government upon the consent of the concerned State, we may notice that by reason of the Government of India's Resolution dated 1st April, 1963 the C.B.I. was empowered to conduct investigation with regard to co-ordination, Inter-State matters and participation as: the National Central Bureau in the work connected with the INTERPOL thereby presupposing the non- requirement of the concerned State's consent. We have referred to the said question as one of the contentions raised by Dr. Dhawan is that without the consent of the State, the C.B.I. could not have directed any surveillance on the Appellant or got the warrant of arrest executed through the Mumbai police. Although, we intend to deal with the said question separately we may at this juncture notice the relevant entries in the List I of the Seventh Schedule of the Constitution. They read :- a. Entry 8: Central Bureau of Investigation. b. Entry 10: Foreign Affairs; all matters which bring the Union into relation with any foreign country. c. Entry 11: Dipl....
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....ugitive criminal who is yet to be tried and a person who has already been convicted. A fugitive criminal may be apprehended either under category (i) an Endorsed Warrant ; and (ii) a Provisional Warrant. An Endorsed Warrant is one which is a warrant that has, at first been issued by the foreign country with which India has an Extradition Treaty and subsequently been endorsed by the Central Government. Hence once a warrant issued by the foreign country is endorsed by the Central government, it becomes an Endorsed Warrant in terms whereof sufficient authority is conferred to apprehend a person and to bring him before any Magistrate in India. Power to apprehend includes the power to investigate. Section 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". Section 15 of the Act describes `endorsed warrant'. It reads as: "15. Endorsed warrant for apprehension of fugitive criminal. Where a warrant for the apprehension of a fugitive criminal has been issued in any 3*[foreign state] to which this Chapter applies and such fugitive criminal is, or is suspected to be, in India, the Central G....
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.... The C.B.I. was established as the representative of India for the purpose of correspondence with ICPO-INTERPOL by reason of a circular letter dated 17th October, 1966. We have noticed hereinbefore that by a Resolution dated 1st April, 1963 the Government of India gave to the C.B.I. the powers of Investigation of crimes, handled by the Intelligence Bureau of the SPE and for participation as the NCB in the work connected with the INTERPOL. It is of significance to notice that C.B.I. in its website maintains that it handles all procedures related to Extradition and Issuance of Interpol Notices. We have proceeded on the basis that the power of C.B.I. and its delegated authority namely, the State police to keep a person under surveillance ; arrest him in terms of warrant of arrest issued by a foreign country and Red Corner Notice is an absolute one. Similarly the power to find out a missing person in terms of the Yellow Notice is also absolute. However, the question in regard to the necessity of warrant being endorsed or the effect of the Red Corner Notice vis-`-vis the fundamental right of an individual in terms of Article 21 of the Constitution of India as also his right of pri....
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....ndia. (c) In order to trace a fugitive criminal, who might have left his/her country, an Interpol Red Corner Notice is got issued through IPSG (Interpol Secretariat General) at Lyon, France based on an arrest warrant issued by the competent judicial authority. Red Corner Notice is sent to the immigration/border control authorities of various countries, who may detain/identify such individual depending upon provisions of their domestic laws and inform the requesting country/and authorities concerned for further necessary action. The domestic legal provisions differ from country to country and while some countries have accorded legal sanctity to Red Corner Notice, others do not do so. Once the fugitive is located on the basis of a Red Corner Notice, the concerned law enforcement agency is required to send a request for provisional arrest followed for extradition request duly accompanied by all necessary documents to the concerned country through diplomatic channels. The requesting country may also make a deportation request. (d) A red corner notice is supported by an arrest warrant issued by the competent judicial authority which empowers the law enforcement agency ....
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....bject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment." Does this violates the doctrine of federalism is the question? The power of the Central Government vis-`-vis State is in two categories. The police power of the State in respect of any offence committed in a State comes within the legislative competence of the State. The State may exercise some extra territorial jurisdiction only if a part of the offence is committed in the State and the other part in another State or some other States. In such a event the State before an investigation to that part of the offence which has been committed in any State may have to proceed with the consent of the concerned State or must work with the police of the other State. Its jurisdiction over the investigation into a matter is limited. Keeping in view the various entries contained in List I of the Seventh Schedule of the Constitution, there cannot be any doubt whatsoever that in the matter of investigation of the matter committed in a State, the jurisdiction of the Central Gov....
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....ntitled to carry out any investigation. Only when an investigation is carried out in relation to an offence which has been committed in a State and not in the Indian territory or within the territorial jurisdiction of the Central Government the consent of the State concerned is required to be obtained. We are not concerned, as it is not necessary for us to determine, whether a direction for making investigation by the C.B.I. by the superior courts of the country is permissible. As the law stands, we place on record such directions by the superior courts are permissible. C.B.I. has different roles to play. When it acts as NCB, being a department of CBI, it acts under a Treaty. It acts in terms of the constitution of the INTERPOL. It acts as a authority of the Central Government. By reason of such an act it does not carry out investigation, although it is entitled therefor. It functions as an NCB which is to give effect to the request received from INTERPOL and/or foreign country. When it does so, indisputably it has to apply its mind. It can take any action only because it is lawful to do so. It does not exercise absolute discretion. It has to act if a case therefor has been m....
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....dia [(1997) 1 SCC 301], holding: "We have, therefore, no hesitation in holding that right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed "except according to procedure established by law"." In State of Maharashtra v. Madhukar Narayan Mardikar [(1991) 1 SCC 57], this Court protected the Right to Privacy of a prostitute. It was held that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he likes. In this case, except giving information in regard to whereabouts of the Appellant and his daughter, no other action was taken. It is in the aforementioned context, we may notice a decision of this Court in Malak Singh v. State of P&H, [(1981) 1 SCC 420]. This case dealt with an application filed by applicants seeking to remove their names from the surveillance register maintained by the Police Station of their jurisdiction under the Punjab Police Rules. This Court while upholding the jurisdiction of the Punjab Police made observations on....
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....he CBI is required, when so requested to act on the red corner 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 he is ultimately extradited). (v) Lastly, that till date the CBI has not received any request from the US authorities for the arrest and Extradition of the Petitioner. The Ministry of External Affairs, too, through its Joint Secretary (Counsular), Mr. P.M. Meena, by means of an affidavit dated 15th April 2009 admitted that: (i) It is the Ministry of External Affairs, Government of India, New Delhi which is the nodal agency for Extradition as per the Act and the Extradition Treaty between the Governent of India and the United States of America. (ii) On receipt of a Red Corner Notice, it is not the invariable practice to arrest the person 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....
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....ific request for extradition. The High Court, thus, in our opinion, committed a serious error insofar as it failed to take into consideration the provisions of the Act, in the absence of any request having being made by the Govt. of USA to the Executive Government of the Union of India or any authourization made by the latter on its behalf. A fundamental Right of a citizen whenever infringes, the High Courts having regard to their extraordinary power under Article 226 of the Constitution 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 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 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, indisputably, the court will enquire as to whether the same has undergone the tests laid down under Sections ....