REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                  OF 2009 [Arising out of SLP (Crl.) No. 6407 of 2008]

Bhavesh Jayanti Lakhani …Appellant

Versus

State of Maharashtra & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :   

Leave granted.

INTRODUCTION

Interpretation of the roles and responsibilities of the Central Bureau of  

Investigation  (CBI)  vis-à-vis  the  provisions  of  the  Extradition  Act,  1962  

(hereinafter referred to as “the Act”) 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 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  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  

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the Appellant and the Respondent No. 6 was however not happy.  According  

to the respondent No. 6, she was continuously being harassed.  She applied  

for grant of permanent asylum on 1.07.2003 allegedly under coercion from  

the appellant.  Later on the respondent No. 6 allegedly moved to her sister’s  

house at Sharon Massachusetts, USA.     

PROCEEDINGS IN USA

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 for orders of custody of her daughter.

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 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  thereof.  

Respondent  No.6  took  up  a  job  and continued  to  live  with  her  child  in  

Massachusetts.   She contends  that  her  Indian Passport  was stolen by the  

appellant from the premises which was being occupied by her.   

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Admittedly, the appellant came to India with the child on 15.04.2006  

in violation of the court custody orders.   

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, stating:

“I, Hetal G. Thakker …authorize my child Eesha  B.  Lakhani  to  travel  with  my  husband  and  her  father, Bhavesh Lakhani to India.

They will be leaving the United States of America  on  or  about  April  14,  2006 and  returning  on or  about (Undecided)...”

Respondent No. 6, however, contends that the appellant 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  

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  

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by the Norfolk Country Probate and Family Court, Canton, Massachusetts  

on 2.5.2006.   

PROCEEDINGS BEFORE THE FAMILY COURT

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 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.   

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PROCEEDINGS BEFORE THE HIGH COURT

The Atlanta City Police and the American Court in the meanwhile  

issued  a  warrant  of  arrest  against  the  Appellant  which  was  transmitted  

through INTERPOL to the  Government of  India.   Appellant  filed a  writ  

petition questioning the legality and/ or validity of the said warrant, which  

by reason of the impugned judgment dated 11.08.2008 has been dismissed.

The High Court posed unto itself a question as to whether the Red  

Corner Notice could be stayed by it.   

Referring to the provisions of the Act it was opined :-  

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.   

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 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  

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offence are satisfied, the Magistrate is required to 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.   

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 treaty.   

viii) The  provisions  of  Section  105A  of  the  Code  of  Criminal  

Procedure would not apply in a case of this nature.   

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  which  have  global  

dimensions  and  for  the  investigation  of  which,  Red  Corner  

Notices are critical tool.  

CONTENTIONS ADVANCED BY THE PARTIES:

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,  Massachusetts  being  wholly  

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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 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 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.

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So far s the judgment of the Bombay High Court is concerned, it was  

urged:

(i) It ought to have considered that the so–called offence for which the  

petitioner is charged by the American Court is not an extraditable  

offence  either  within  the  meaning of  the  said  Act  or  under  the  

provisions of the Extradition Treaty entered into by and between  

the United States of America and India.  

(ii) It ought to have been considered that the rights of an Indian citizen  

guaranteed under Article 19 and Article 21 cannot be compromised  

for enforcing any of the provisions contained in the Act.

(iii) It  ought  to  have  been  considered  that  India  is  not  a  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 the petitioner  

and  the  Respondent  –  wife  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 is patently erroneous, thus,  

leading to the miscarriage of justice.

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(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 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  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  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 legalistic as the  

High  Court  failed  to  examine  the  core  constitutional  issues  

involved in the matter.    

Ms.  Nitya  Ramakrishnan,  learned  counsel  appearing  on  behalf  of  

Respondent No.6 on the other hand urged :-

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  

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not  interfere  with  the  impugned  order  at  this  stage,  

particularly in view of 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 matter the appellant must  

be held to have committed an extraditable offence.

iii) Contention of the learned counsel for the Appellant that he  

had  not  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  

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the respondent No.6 and in that view the appellant must be  

held to have committed an extraditable offence.

vi) Keeping  in  view  the  provisions  of  Section  13  read  with  

Section  29  of  the  Act,  the  writ  petition  before  the  High  

Court  must  be  held  to  be  entirely  pre-mature  as  all  the  

contentions  raised  by  the  Appellant  herein  can  be  raised  

before the Magistrate in the event the Central Government  

thinks  fit  to  issue  a  request  to  any Magistrate  to  hold an  

enquiry in terms of Section 5 of the Act.   

vii) Appellant even having not appeared before the Family Court  

at Mumbai, the impugned judgment should not be interfered  

with.

Mr.Radhakrishnan,  learned  senior  counsel  appearing  on  behalf  of  

Union of India submitted :-

(i) Having regard to the prayers made in the writ petition by the  

appellant  before  the  High  Court,  the  High  Court  had  no  

jurisdiction to interfere with the red corner notice or the yellow  

notice ;

(ii) Despite  the  fact  that  the  CBI  was  informed  that  fugitive  

criminal was in Mumbai, he had not been detained.  

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(iii) Keeping in view the provisions contained in Chapter III of the  

Act in terms whereof before passing an order of extradition the  

Magistrate is required to be satisfied whether the Appellant is a  

fugitive criminal and furthermore in view of Section 29 thereof  

empowers the Central Government i.e. Respondent to discharge  

any fugitive criminal if it appears to it to be a case of trivial  

nature.  

(iv) The  C.B.I.  despite  having  informed  the  U.S.  authorities  as  

regards  the  whereabouts  of  the  appellant,  no  request  for  

extradition having been received by the Central  Government,  

the writ petition must held to be pre-mature.   

 Dr. Rajiv Dhavan, learned senior counsel, who was requested to assist  

us in the matter raised the following contentions:  

(i). The  Central  Bureau  of  Investigation  does  not  have  any  

authority  to  deal  with  Red  Corner  Notices  issued  by  the  

Interpol  Secretarial  General  at  the  behest  of  any  member  

country.  

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(ii). No  red  corner  notice  can  be  issued  in  violation  of  civil  

liberties of an Indian and particularly in a matrimonial case,  

the effect whereof  may result in -

a) detention ;

b) arrest ;

c) circulation of name on website ; and

d) surveillance

which  would  amount  to  gross  violations  of  law  as  the  

appellant’s personal liberty, as contained in Articles 19 and  

21 of the Constitution of India, would have been interfered  

with, without any authority of law. As no law operates in the  

field, the actions of the State and in particular the Central  

Bureau  of  Investigation  are  unconstitutional  and  invalid,  

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.

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(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 capacity.  

(viii). C.B.I.  having  a  limited  territorial  jurisdiction,  its  services  

cannot be used outside its territorial framework.

(ix). The High Court  committed  a  manifest  error  in  passing  the  

impugned  judgment  insofar  as  it  failed  to  take  into  

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consideration the relevant provisions of the Code of Criminal  

Procedure enacted in  terms of  Code of  Criminal  Procedure  

(Amendment) Act, 1993  

(x). In terms of  inserted Section 105A to 105L of the  Code of  

Criminal Procedure, the C.B.I. could not have acted except  in  

terms of specific order of the court passed in that regard.   

(xi). A matrimonial dispute between spouses and in particular in  

regard to the custody of a child being essentially a dispute of  

civil nature, the provisions of the Act could not have been put  

to service.   

(xii). In any event the provisions of the Act cannot be pressed in red  

corner notice cases and the deportation provisions under the  

Foreigners Act should not be misused thereby.  

(xiii). The  High  Court  committed  a  serious  error  in  passing  the  

impugned judgment both in regard to the conclusion as well  

as  directions  in  so  far  as  it  utterly  failed  to  take  into  

consideration the civil liberties aspect as also the provisions of  

the Criminal Procedure Code.   

Mr. G.E. Vahanvati, learned Attorney General for India, who was also  

requested to assist us in the matter upon taking appropriate instructions from  

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the Ministry of External Affairs, as would appear from our order dated 24th  

March,  2009,  would  also  contend  that  the  High  Court  judgment  is  

unsustainable as it failed to take into consideration:

a) There is nothing on record to show that the appellant had  

committed an extraditable offence within the meaning of  

the provisions of the Extradition Treaty entered into by  

and between India and the United States of America ;

b) A matrimonial dispute would not ordinarily come within  

the purview of the Act;

c) The  provisions  of  the  Act  as  also  enforcement  of  the  

Extradition Treaty would arise only when a person is a  

fugitive criminal  and he has committed an extraditable  

offence and not otherwise.  

THE EXTRADITION TREATY

The Extradition Treaty between the Government of Republic of  

India and the Government of the United States of America entered into  

on 21st July, 1999. It was published in the Official Gazette dated 14th  

September, 1999.  By reason of 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  

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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 :-

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1. All  requests  for  extradition  shall  be  submitted  through the diplomatic channel.

2. All requests for extradition shall be supported by :

(a) documents,  statements,  or  other  types  of  information which describe the identity and  probable location of the persons sought ;

(b) information  describing  the  facts  of  the  offense  and  the  procedural  history  of  the  case ;

(c) a  statement  of  the  provisions  of  the  law  describing  the  essential  elements  of  the  offense for which extradition is requested ;

(d) a  statement  of  the  provisions  of  the  law  describing the punishment for the offense ;  and

(e) the documents, statements, or other types of  information  specified  in  paragraph  3  or  paragraph 4 of this Article, as applicable.  

3. A request for extradition of a person who is sought  for prosecution shall also be supported by :

(a) a  copy  of  the  warrant  or  order  of  arrest,  issued  by  a  judge  or  other  competent  authority ;

(b) a copy of the charging document, if any, and

(c) such  information  as  would  justify  the  committal  for  trial  of  the  person  if  the  offense  had  been  committed  in  the  Requested State.”

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Article  10  provides  that  the  documents  accompanying  an  

extradition  request  shall  be  received  and  admitted  as  evidence  in  

extradition  proceedings  if  in  the  case  of  a  request  from the  United  

States,  they  are  certified  by  the  principal  diplomatic  or  principal  

consular officer of the Republic of India resident in the United States or  

they are certified or authenticated in any other manner accepted by the  

laws in the Requested State.   

Article 12 of the Treaty reads as under:  

“ Provisional Arrest

1. In case of urgency, a Contracting State may  request the provisional arrest of the person sought  pending presentation of the request for extradition.  A request for provisional arrest may be transmitted  through the diplomatic channel.  The facilities of  the  International  Criminal  Police  Organisation  (Interpol) may be used to transmit such a request.

2. The application  for  provisional  arrest  shall  contain: (a) a description of the person sought; (b) the location of the person sought, if known; (c) a  brief  statement  of  the  facts  of  the  case,  including, if possible, the time and location of the  offense;  (d) a description of the laws violated; (e) a statement of 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.

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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 read as under:

“Article 21 -   Consultation

The  competent  authorities  of  the  United States and the Republic of  India  may  consult  with  each  other  directly  or  through  the  facilities  of  Interpol  in  connection with the processing of individual  

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cases and in furtherance of maintaining and  improving  procedures  for  the  implementation of the Treaty.”  

Furthermore  it  ought  to  be  noted  that  India  has  entered  into  two  

treaties with the United States of America. The first treaty has been entered  

into in 1999 and the second in 2001. The 2001 Treaty however deals with  

rendering of mutual legal assistance by one country to another is not fairly  

applicable in the instant case.   

THE ACT

The Act was enacted to consolidate and amend the law relating to  

extradition  of  fugitive  criminals  and  to  provide  for  the  matters  

connected therewith or incidental thereto.  

It is a special statute.   

Section  2(c)  of  the  Act  defines  an  “Extradition  Offence”  in  the  

following words:

“(c) "extradition offence" means--

(i) in  relation  to  a  foreign  State,  being  a  treaty  State,  an  offence  provided  for  in  the  extradition treaty with that State;

22

(ii)  in relation to a foreign State other than a  treaty  State  an  offence  punishable  with  imprisonment for a term which shall not be less  than one year under the laws of India or of a  foreign  State  and  includes  a  composite  offence;”

Section 2(d) defines “Extradition Treaty” to mean a treaty, agreement  

or  arrangement  made  by  India  with  a  foreign  State  Relating  to  the  

extradition of fugitive criminals, and includes a treaty, agreement or arrange-

ment relating to the extradition of fugitive criminals made before the 15th  

day of August, 1947, which extends to, and is binding on, India;

A “fugitive criminal” is defined under Section 2 (f) of the Act to mean  

a person who is accused or convicted of an extradition offence within the  

jurisdiction of a foreign State and includes a person who, while in India,  

conspires, attempts to commit or incites or participates as an accomplice in  

the commission of an extradition offence in a foreign State.

A “treaty State” is defined under Section 2 (j) of the Act to mean a  

foreign State with which an extradition treaty is in operation.  

Chapter II of the Act deals with extradition of fugitive criminals to  

foreign States to which Chapter III does not apply. Chapter III of the Act  

23

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:

24

(i) Applicable  only  in  respect  of  contracting  States.   Section  105A  

contains the interpretation Clause.  Some of the relevant provisions are as  

under:

“In this Chapter, unless the context otherwise requires,--  

(a) "contracting State" means any country or place outside  

India in respect of which arrangements have been made by the  

Central  Government  with  the  Government  of  such  country  

through a treaty or otherwise;”

(ii) The  statutory  procedures  and  the  institutions  put  in  place  for  

processing  these  arrangements  have  been  statutorily  prescribed.   Section  

105B which is relevant for our purpose reads as under:

“105B - Assistance in securing transfer of persons. —

(3) Where  a  Court  in  India,  in  relation  to  a  criminal matter, has received a warrant for arrest of  any  person  requiring  him  to  attend  or  attend  and  produce a document or other thing in that Court or  before any other investigating agency,  issued by a  Court, Judge or Magistrate in a contracting State, the  same  shall  be  executed  as  if  it  is  the  warrant  received  by  it  from  another  Court  in  India  for  execution within its local limits.

(4) Where  a  person  transferred  to  a  contracting  State  pursuant  to  sub-section  (3)  is  a  prisoner  in  

25

India, the Court in India or the Central Government  may  impose  such  conditions  as  that  Court  or  Government deems fit.”

In any reciprocal arrangement:  

(a) the Court, Judge or Magistrate to whom such a request can be  

made shall be specified by the Central Government (Section 105B (1)  

and (2).

(b) the form in which such a request can be made shall be specified  

by the Central Government (Section 105B(1)).

(c) After  due application  of  mind,  a  transfer  of  a  person out  of  

India  would  be  on  the  basis  that  “the  Court  in  India  or  Central  

Government  may  impose  such  conditions  as  that  Court  or  

Government thinks fit” (Section 105B(4)”

Section  41(g)  of  the  Code  of  Criminal  Procedure  also  assumes  

relevance here. It reads as under:-

“41. When police may arrest without warrant.—(1)  Any  police  officer  may  without  an  order  from  a  Magistrate and without a warrant, arrest any person—

(a) ……………

……………

26

…………….

(g) who has been concerned in, or against whom  a  reasonable  complaint  has  been made,  or  credible information has been received, or a  reasonable  suspicion  exists,  of  his  having  been concerned in, any act committed at any  place  out  of  India  which,  if  committed  in  India,  would  have  been  punishable  as  an  offence, and for which he is, under any law  relating to extradition, or otherwise, liable to  be  apprehended  or  detained  in  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?

27

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 arrest  the  Appellant.  

Pursuant thereto or in furtherance thereof, the Assistant Director, National  

Crimes Bureau (NCB) forwarded a letter dated 4.1.2008 received from the  

U.S. Embassy (Department of Justice) to the Mumbai Police to locate the  

appellant  and  his  daughter  on  14.01.2008.   Appellant  was  located  by  

Mumbai Police on 3.5.2008 and the said information was passed on to the  

U.S. Embassy on 9.5.2008.   

The CBI has also filed its counter affidavit before this Court stating  

that  the Indian Interpol Wing works as  an interface between the Interpol  

Secretariat  General,  France,  Interpol  member  countries  and  various  law  

28

enforcement agencies of India.  One of its functions is to circulate the Red  

Corner  Notice  as  also  Yellow  Corner  Notices  issued  by  the  Interpol  

Secretariat General at the behest of any member country within India.  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.  An arrest may also be made under the  

said Act.    The Ministry of External Affairs works for the administrative  

watching of the Act.   

A Red Corner  Notice  has  large  number  of  consequences,  some of  

which are:

(i) The requesting country may make a deportation request.  

(ii) The law enforcement 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 its  

instructions for surveillance, arrest and detention.   

(v) The  requesting  Embassy  can  even  contact  the  Indian  police  

directly.  

29

(vi) Thereafter extradition proceedings may follow.   

Indisputably, 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  strictly  construed.   Any  request  for  extradition  

therefore must undergo the strict scrutiny test.  Extradition offence keeping  

in view its definition in Section 2(c) of the Act in relation to a treaty State  

must be one provided for the extradition treaty therewith.  

Application of the provisions of the Act, thus, in a case of this nature  

must be held to be imperative in character. 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.   

30

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.  

Article 2 provides for the extraditable office.  Article 4 provides for  

political  offences  which  are  outside  the  purview of the  Treaty.  Article  9  

provides for the extradition procedures and required documents.    

It is beyond any doubt or dispute that no request for extradition has  

been received by the Government of India.  It could act only when a request  

is received.  It is accepted at the Bar that Red Corner Notice by itself cannot  

be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction.  

There  is  furthermore  no  dispute  that  the  Act  cannot  be  bypassed  in  red  

corner cases concerning Indian citizens.   Hence the Extradition Treaty is  

subject  to  the  provisions  of  the  Act.   It  also  stands  admitted  that  the  

31

Appellant  being  an  Indian  citizen  is  entitled  to  enforcement  of  his  

fundamental rights.  

The  legal  position  that  a  person  cannot  be  arrested  without  any  

authority of law again is not denied or disputed.  Thus, the arrest of a person  

must be effected in terms of the provisions of the Act.  A person wanted for  

an offence in a foreign jurisdiction may be arrested on fulfillment of the  

following conditions:

(i) That the offence should be counted as one by Indian Law as  

well, and  

(ii) The person must be liable to be arrested in India – either under  

any law relating to extradition, or otherwise.  

Such an arrest can be effected only pursuant to a warrant issued by the  

Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant  

issued by a foreign country and endorsed by the Central Government under  

Section 15 of the Act. It is also not in doubt or dispute that in a case where  

there is no treaty, it is only the Magistrate who issues the warrant for arrest  

subject of course to the condition that the Central Government had ordered a  

Magisterial Inquiry in terms of Section 5 of the Act.  Such an order of arrest,  

emanating from a Treaty  –State,  is  also permissible  under  a  ‘Provisional  

32

Warrant’ issued by a Magistrate in exercise of its power under Section 16 of  

the Act, upon information that the fugitive should be apprehended subject to  

the condition that the detention thereunder may continue only for the time  

requisite for obtaining an endorsed warrant from the Central Government.  

All  arrested  persons  are  required  to  be  immediately  produced  before  a  

Magistrate  whereupon  it  would  have  power  to  grant  bail.  Section  34B  

provides 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  

33

repetition to state that an arrest can be effected at the instance of the Central  

Government only when such a request is made by the foreign country and  

not otherwise.  Respondent No.6 herself accepts that she had pursued only  

civil  remedies and the order of the custody Court was passed under civil  

remedies.   Section  29  of  the  Act  as  indicated  hereinbefore  provides  for  

power of Central Government to discharge any fugitive criminal.  If it has  

arrived at a conclusion that it is unjust or inexpedient to surrender or return  

the fugitive criminal.  

The High Court, therefore, in our opinion, committed a serious error  

insofar as it failed to take into consideration the provisions of the Act, in the  

absence of  any request  having been made by the  Government of  United  

States of America to the Executive Government of the Union of India or any  

authorization made by the latter in this behalf.   

India follows the doctrine of dualism and not monoism.  We may,  

however, hasten to add that this Court, however, at times for the purpose of  

interpretation of statute has taken into consideration not only the treaties in  

which  India  is  a  party  but  also  declarations,  covenants  and  resolutions  

passed  in  different  International  Conferences.   {See  M/s  Entertainment  

Network  (India)  Ltd.  vs.  M/s  Super  Cassettee  Industries  Ltd. [2008  (9)  

SCALE 69]

34

The Act as also the treaties entered into by and between India and  

foreign countries are admittedly subject to our municipal law.  Enforcement  

of a treaty is in the hands of the Executive.  But such enforcement must  

conform to the domestic law of the country. Whenever, it is well known, a  

conflict arises between a treaty and the domestic law or a municipal law, the  

latter shall prevail.   

It furthermore stands admitted that matrimonial dispute as such does  

not  constitute an extraditable  offence and,  thus,  no effect  could be given  

thereto.  However, whether this case concerns an extraditable offence or not  

has to be determined by the Magistrate under the Act.  

We have noticed hereinbefore that the Treaty itself provides that the  

same is subject to any Municipal Laws of the country.  It is thus for the State  

concerned to take a decision in regard to such notices, keeping in view the  

Municipal Laws.  The steps to deal with the request contained in the notices,  

thus,  must  abide  by  the  domestic  laws  of  the  concerned  country.  

Recognition  of  the  request  as  the  basis  for  an  arrest  operate  an  

internationalization  or  tans-nationalization  of  a  foreign  administrative  

decision.  The formal admission procedure by Interpol cannot be the single  

35

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.  

36

Before, however, we advert to the functioning of CBI vis-à-vis its role  

in terms of notices issued by Interpol, it would be appropriate to place on  

record the constitution of Interpol.  

APPLICABILITY  OF  CHAPTER  VIIA  OF  THE  CODE  OF  CRIMINAL PROCEDURE

For the purposes of effectively implementing the treaty providing for  

mutual  assistance  between the Government  of  United  Kingdom of  Great  

Britain  and  Northern  Ireland,  Chapter  VIIA  of  the  Code  of  Criminal  

Procedure  was enacted  as  is  also  provided  in  the  Statement  and Objects  

thereof.   The said provisions were laid down by the Parliament  so as to  

consider implementation of the provisions of the reciprocal arrangements for  

assistance in certain matters and procedure for attachment.   

The provisions contained in Section 105A onwards of the Code of  

Criminal Procedure are subject to additions, exceptions or qualifications as  

may be specified in the Notification issued by the Central Government.   

Indisputably  where  there  exists  any  reciprocal  arrangement,  the  

following are required to be complied with:

37

(i) The Court, Judge or Magistrate is required to be specified by  

the Central Government to whom a request can be made.  

(ii) The  form  in  which  such  a  request  is  to  be  made  is  again  

required to be specified by the Central Government.

(iii) A transfer  of  a  person  out  of  India  must  precede  upon  due  

application of mind on the part of the Magistrate subject again  

to the condition that either the Court or the Central Government  

may impose such conditions as they may seem fit and proper.  

It is submitted by the learned counsel that with regard to dispute of the  

provisions of international comity

(a) any transfer of a human being to another country goes to the  

root of fundamentally protected civil liberties.  

(b) Chapter VIIA of the Code of Criminal Procedure is hedged in  

with  limitations  requiring  the  intervention  of  the  Court  and  Central  

Government with due application of mind.

(c) No mechanical transfer can be made simply at the instance of  

government or the CBI which in any case has no role to play.

(d) The  application  of  the  Act  is  not  ousted  and  cannot  be  by  

passed.  

38

(e) The Court may examining equitable and other factors.  This is  

implied from the condition imposing power.

(f) To that extent, the provisions of Chapter VIIA shall be read up  

to bring 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  

39

Rights and keeping in view the limitation of existing municipal laws of the  

country concerned.   

It has six departments, namely –  

i) The General Assembly ;

ii) Executive Committee ;

iii)General Secretariat ;

iv) National Control Bureaus  

v) Advisers ; and

vi)  Commission for the Control of Interpol Files.  

We are concerned here only with the National Central Bureaus.  Each  

INTERPOL member country maintains a National Control Bureau (NCB)  

staffed by national law enforcement officers.  The NCB is the designated  

contact  point  for  the  General  Secretariat,  Regional  Officers  and  other  

member countries requiring assistance with overseas investigations and the  

location of fugitives.  It  serves as operational center and liking platforms  

between the national and the international level.  

It  is  not  in  dispute  that  in  terms of  Article  32  of  the  INTERPOL  

Constitution  each  member  country  is  to  have  a  NCB  responsible  for  

exchanging information and data for coordination the functioning within its  

40

own  country,  with  other  member  countries  as  also  with  the  General  

Secretariat of the INTERPOL.  

The INTERPOL Constitution prohibits any intervention or activities  

of  a  political,  military,  religious  or  racial  character.   The  International  

policing ultimately depends on coordinated action on the part of the Member  

State’s police forces so as to obtain the required information or services as  

and when any occasion arises therefor.   

We  may  furthermore  place  on  record  that  the  Constitution  of  the  

Interpol  was  adopted by a  Resolution of  the  General  Assembly  i.e.  AG-

2005-Res-05.  Initially its status was of an observed as Non Governmental  

Organisation  (NGO).   In  Public  International  Law,  keeping  in  view  its  

status, INTERPOL is considered to be an International Organisation with its  

own legal personality.   The contribution to the financing of the organization  

is by the Member States.  Member States can have several delegates in the  

General Assembly.   

INTERPOL NOTICES  

The organizational system of issuing International notices forms the  

backbone of its functioning.  The Member countries in terms of notices share  

41

critical  crime  related  information.   They  concern  individuals  wanted  for  

serious  crimes,  missing  persons,  unidentified  bodies  etc.   Such  notices  

contain  comprehensive  identity  particulars  of  the  individuals  concerned  

including the physical description, fingerprinting, occupation and all other  

relevant information including the offence with which the person has been  

charged,  reference  to  the  law  under  which  the  charge  was  made  or  the  

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.   

42

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 Notices.  

Usually, the NCBs are the authors of a Red or Yellow Notice.  The General  

Secretariat before issuing or distributing Notices, especially to other offices  

than the NCBs, has to evaluate, whether the issue is necessary and advisable  

having  regard   to  the  aims  and  tasks  of  the  organization,  the  respect  of  

Human Rights and the required security measures against possible menaces  

to the police cooperation, to Interpol itself or to the member states.  The  

General Secretariat has been authorized by the General Assembly to forbid  

the issuing of a Notice, if it does not meet the requirements of a request for  

provisional arrest.  However, we must place on record that a reference to the  

presumption of innocence of the wanted person is not a part of the published  

rules  and  regulations.   Only  the  corresponding  pages  of  the  internet  

appearance of  the  organization contain  explicitly  highlighted warnings of  

this kind.

It bears repetition to state that the General Secretariat of the Interpol  

publishes the notices either on its own initiative, or based on the requests  

43

from  the  NCB  or  international  organization  or  entities  with  whom  the  

INTERPOL has special agreements.   

It may be of some interest also to notice that in the year 2008 alone  

the INTERPOL issued 3126 Red Corner Notices and around 385 Yellow  

Corner Notices.

At this juncture we may also place on record that Article 12 of the  

Extradition  Treaty  dated  14th September,  1999  entered  into  between  the  

Government of India and the Government of the United States of America  

deals with provisional arrest of the person sought pending presentation of  

the request  for extradition providing that the facilities  of the INTERPOL  

may be used to transmit  such a request.    Furthermore, Article 21 of the  

Treaty  providing  for  Consultation  also  contemplates  the  use  of  the  

INTERPOL’S services.  

BINDING NATURE OF THE INTERPOL NOTICES:

The  notices  issued  by  INTERPOL  are  not  considered  as  

administrative decisions on individual cases with transnational effect. They  

are  not  construed  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.  

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They, however, gain de facto with special relevance to the Human Rights  

through multiplication of its recipients.   

Infact 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  

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.

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A  successful  search  does  not  result  in  Interpol's  further  operative  

involvement,  either.  Concerned  authorities  or  the  public  are  supposed  to  

contact  the local police office,  which then gets in touch with the issuing  

authority and initiates the necessary steps.  

Therefore, the member state usually gives the initiative for a Notice,  

and cooperates with one or several other member states in order to find and  

arrest the wanted person. Existing information is just distributed through a  

special communication channel. Interpol's role is limited to that of a service  

agency.  {See  Bettina  Schondorf-Haubold,  The  Administration  of  

Information in International Administrative Law – The Example of Interpol,  

9 German L.J. 1719}

CENTRAL BUREAU OF INVESTIGATION (C.B.I.)

A  Special  Police  Force  was  constituted  in  the  year  1943  by  

promulgation of an Ordinance by the Government of India in terms whereof  

the powers of investigation of certain offences committed in connection with  

the departments of the Central Government committed any where in British  

India were vested with it.   The said Ordinance lapsed on 30th September,  

1946.  As the Central Government felt the necessity to cope with the cases  

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of  bribery  and corruption investigated  after  the  end of  the  war,  the  said  

Ordinance was repealed and replaced by Delhi Special Police Ordinance of  

1946.  The DSPE Act was brought into existence the same year.   

After the promulgation of the DSPE Act, superintendence of Special  

Police Establishment (SPE) was transferred to the Home Department and its  

functions  were  enlarged  to  cover  all  departments  of  the  Government  of  

India.  It  jurisdiction was also extended to all the Union territories.   The  

DSPE  Act  provided  for  its  extension  to  States  with  the  consent  of  the  

concerned State Government.  The C.B.I. was established, as it was felt that  

SPE would not be able to cope with the problems arising out of the country’s  

over-expanding  economy,  by  reason  of  a  Resolution  adopted  by  the  

Government of India vide Resolution No.4/31/61-T dated 1st April, 1963.   

Later on the SPE was merged with the C.B.I and became one of its  

Division.  In terms of the provisions contained in Section 3 of the DSPE Act,  

the  Central  Government  issues  Notifications  empowering  the  C.B.I.  to  

investigate in regard to the offences specified by it; The Notification dated  

23rd September 1989, S.O. 2301 empowered the CBI to investigate, among  

other things, offences relating to Sections 363 ; 363A ; 365 and 368 of the  

Indian Penal Code  being some of them.   

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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 anything in  the  Police  Act,  1861  (5  of  1861),  the  Central  Government may constitute a special police force  to be called the Delhi Special Police Establishment  for  the  investigation  in  any  Union  Territory  of  offences notified under Section 3.

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(2)  Subject  to  any  orders  which  the  Central  Government may make in this behalf, members of  the said police establishment shall have throughout  in  any  Union  Territory,  in  relation  to  the  investigation of such offences and arrest of persons  concerned in such offences, all the powers, duties,  privileges  and liabilities  which police  officers  of  that Union Territory have in connection with the  investigation of offences committed therein.

(3) Any member of the said police establishment  of or above the rank of Sub-Inspector may, subject  to any orders which the Central Government may  make in this behalf, exercise any Union Territory  or any of the powers of the officer-in-charge, of a  police station in the area in which he is for the time  being and when so exercising such powers shall,  subject to any such order as aforesaid, be deemed  to  be  an  officer-in-charge  of  a  police  station  discharging the functions of such an officer within  the limits of his station.

3. Offences to be investigated by special police  establishment.  The Central Government may, by  notification  in  the  official  Gazette,  specify  the  offences  or  classes  of  offences  which  are  to  be  investigated  by  the  Delhi  Special  Police  Establishment.

5.  Extension  of  powers  and  jurisdiction  of  special police establishment to other areas. : (1)  Central  Government may by order extend to any  area (including Railway areas) a State, not being a  Union  Territory  the  powers  and  jurisdiction  of  members of the Delhi Special Police Establishment  for the investigation of any offences or classes of  offences specified in a notification under Section  3.

(2)  When by  an  order  under  sub-section  (1)  the  powers  and  jurisdiction  of  members  of  the  said  

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police establishment are extended to any such area,  a member thereof may, subject to any orders which  the Central Government may make in this behalf,  discharge the functions of a police officer in that  area and shall, while so discharging such functions  be deemed to be a member of the police force of  the area and be vested with the powers, functions  and privileges and be subject to the liabilities of a  police officer belonging 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 :-  

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a. Entry 8: Central Bureau of Investigation.

b. Entry 10: Foreign Affairs;  all  matters which bring the Union  

into relation with any foreign country.

c. Entry 11: Diplomatic, consular and trade representation.

d. Entry 12: United Nations Organisation.

e. Entry  13:  Participation  in  International  Conferences,  

associations  and other  bodies  and implementing  of  decisions  

made thereat

f. Entry  14:  Entering  into  treaties  and agreements  with  foreign  

countries  and  implementing  of  treaties,  agreements  and  

conventions with foreign countries.

g. Entry 18: Extradition

The legislative power of the Parliament is, therefore, broad and cover  

wide ranging legislative field.  

CO-ORDINATION WING OF THE CBI:  

The Coordination Wing is a non- investigating Unit of CBI dealing  

with the general coordination and administrative matters relating to Interpol  

and  Coordination  functions  of  CBI.  Its   primary  duty  is  to  liaise  and  

coordinate with Branches of CBI and other Departments/ Ministries, Law  

Enforcement Agencies, State/UT Police Forces and foreign Police/Missions  

and organizations as and when required.  One of the main functions which is  

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being looked after by the Coordination Wing of CBI, pertinent in the case of  

Look out Circulars:  All the State Police forces and other law enforcement  

agencies in India have a link through INTERPOL New Delhi to their counter  

–  parts  in  other  member  countries  through  the  Interpol  Global  

Communications  System  (  I-  24/7)  prepared  to  assist  in  dealing  with  

criminal investigations.   

JURISDICTION OF C.B.I.

The  provisions  relating  to  issuance  of  the  notice  by  INTERPOL;  

warrant of arrest by foreign courts vis-à-vis the power of NCB and the local  

police to act in terms thereof are contained not only in the Act but also in the  

provisions of the concerned Treaty, Code of Criminal Procedure as also the  

various Notifications issued by the Central Government in that behalf.   

POWERS UNDER THE ACT  

We will deal with this subject in two parts one is stage before arrest  

and second stage after arrest.  

BEFORE ARREST

Power  to  apprehend  or  investigate  a  fugitive  criminal,  we  have  

noticed hereinbefore, is conferred by Section 14 read with Section 15 of the  

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Act.  Section 14 prescribes the form of apprehension of a fugitive criminal  

under an endorsed warrant or a provisional warrant. Section 14 of the Act  

reads as hereunder:

“14.  Endorsed  and  provisional  warrants.  A  fugitive  criminal  may  be  apprehended  in  India  under  an  endorsed  warrant  or  a  provisional  warrant.  

Warrant  can  be  issued  by  a  foreign  country  to  arrest  a  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  (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”.   

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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 Government  may, if satisfied that the warrant was issued by a  person having lawful authority to issue the same,  endorse  such  warrant  in  the  manner  prescribed,  and  the  warrant  so  endorsed  shall  be  sufficient  authority  to  apprehend  the  person  named  in  the  warrant and to bring him before and magistrate in  India.”

PROCEDURES  REQUIRED  TO  BE  FOLLOWED  AFTER  A  PERSON IS ARRESTED.

The requirement to arrest a person for the purpose of his extradition is  

in two categories – (1) the cases in which India has an Extradition Treaty  

with the concerned country and (ii) those in which no such extradition treaty  

exits.  In the former category of cases the provisions of Chapter III of the  

Act  shall  apply.   Arrest,  as  noticed  hereinbefore,  is  made  by  the  police  

authorities  in  terms  of  endorsed  warrant  ;  whereafter  the  procedure  laid  

down in Section 17 is to be followed by reason whereof the fugitive criminal  

is to be brought by the Magistrate.  Once the Magistrate satisfies that the  

fugitive  criminal  has  been  brought  before  him  in  terms  of  an  endorsed  

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warrant which is duly authenticated and that the offence is an extraditable  

one,  the  Magistrate  shall  commit  the  fugitive  criminal  to  prison.   A  

certificate of committal is thereafter sent to the Central Government.  

Section 17 states that the  endorsed warrant in the case of the person  

who is brought before whom is duly authenticated and that the offence with  

which  the  person  is  accused  of  or  has  been  convicted  in  an  extradition  

offence, the magistrate shall commit the fugitive criminal to prison to await  

his return and shall forthwith send to the Central Government a certificate of  

the committal.  

Appellant is sought to be apprehended for commission of an offence  

under Section 363 of the Indian Penal Code.  We have noticed hereinbefore  

that  it  is  an  extraditable  offence,  provided  it  is  not  a  pure  matrimonial  

dispute.  C.B.I. for intent and purport exercises the power of 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 essential attribute of the procedure for the implementation of  

the Treaty.

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The Ministry of Home Affairs by a circular letter dated 18th March,  

1949 issued to all State Governments and Union Territories established the  

Intelligence Bureau as the ICPO-INTERPOL, the National Central Bureau  

for India.  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.  

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However, the question in regard to the necessity of warrant being endorsed  

or the effect of the Red Corner Notice vis-à-vis the fundamental right of an  

individual in terms of Article 21 of the Constitution of India as also his right  

of privacy and the loss of reputation would be dealt with at an appropriate  

stage.  

POWERS UNDER THE CODE OF CRIMINAL PROCEDURE  

We may also notice some of the provisions of the Code of Criminal  

Procedure  laying down the procedures after arrest.   

It is, however, beyond any doubt that the power is exercised by the  

C.B.I. or a police officer to arrest a person, although no warrant is issued in  

terms  of  Section  41(1)(g)  of  the  Code  of  Criminal  Procedure.   It  pre-

supposes satisfaction of a police officer to arrest a person, if he has been  

concerned in, or against whom a reasonable complaint has been made, or  

credible information has been received in, any act committed at any place  

out of India which, if committed in India, would have been punishable as an  

offence,  and  for  which  he  is,  under  any  law  relating  to  extradition,  or  

otherwise, liable to be apprehended or detained in India.      

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However, the CBI website states that in case an action is taken under  

S. 41(1)(g), the matter must be immediately referred to the Interpol Wing for  

onward  transmission  to  the  Government  of  India  to  take  a  decision  or  

otherwise.  

In  terms  of  the  aforementioned  provisions,  sanction  of  the  Central  

Government is contemplated. We may, however, place on record that strictly  

construed in a case involving extradition, Section 41(g) of the Code may not  

have any application.

It is sought to be clarified that Section 41(g) of the Code of Criminal  

Procedure 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  

Code of Criminal Procedure are subject to those in the Act.  

LIMITATION OF POWER OF C.B.I. AND STATE POLICE

Jurisdiction of CBI in Red Corner Notice   

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In its affidavit filed on 23rd January, 2009 by C.B.I. stated as under :-

“3(a) The  answering  Respondent  being  the  functionary  of  Interpol,  New  Delhi  (Central  Bureau of Investigation) submits that it  works as  an  interface  between  Interpol  Secretariat  Genral,  France, Interpol member countries and various law  enforcement agencies of India.   

(b) with regard to location and apprehension of  a  wanted  fugitive,  the  role  of  the  answering  Respondent  is  to  circulate  the  red  corner  notice  issued by Interpol Secretariat General at the behest  of any member country within India.  

(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.   

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(d) A  red  corner  notice  is  supported  by  an  arrest  warrant  issued  by  the  competent  judicial  authority  which  empowers  the  law  enforcement  agency of any member country to take follow up  action  with  regard  to  the  arrest  of  the  fugitive  criminal.

(e) The  National  Central  Bureau  of  other  countries (member countries of INTERPOL) also  a request the IPSG for issuance of Red  Corner  Notices against their wanted subjects and all the  member  countries  take  action  for  the  location,  arrest and extradition/deportation for the same as  per its law of the land.

(f) Similarly  the  Interpol  General  Secretariat  publishes  ‘Yellow  Notice’  to  help  missing  persons, often minors, or to help identify persons  who are unable to identify themselves.

(g) Once a person is detained pursuant to a red  corner  notice,  he  is  produced  before  the  Magistrate and then further action is taken as per  the provisions of the Extradition Act, 1962.”   

The question is  as to whether the consequences of the Red Corner  

Notice contravene the civil liberty of a citizen in terms of Articles 14, 19 and  

21 of the Constitution of India.   

Before, however, we devolve thereupon, we may notice the Executive  

Powers of the Union.  Any action taken by the Union of India through the  

Ministry of External Affairs or the C.B.I., on the request of INTERPOL, s  

Executive Power as contained in Article 73 of the Constitution.  We have  

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noticed heretobefore the relevant entries in the Legislative List being Entry  

Nos.  8,  10  to  14  and  18  of  List  –  1  of  the  Seventh  Schedule  of  the  

Constitution.  We may also notice that in regard to the the matter relating to  

criminal law the Concurrent List provides therefor in Entry Nos. 1 and 2  

which read :-

“1.   Criminal law, including all matters included  in the Indian Penal Code at the commencement of  this  Constitution  but  excluding  offences  against  laws with respect to any of the matters specified in  List  I  or  List  II  and excluding the use of  naval,  military or air forces or any other armed forces of  the Union in aid of the civil power.  2.  Criminal  procedure,  including  all  matters  included in the Code of Criminal Procedure at the  commencement of this Constitution.”

Indisputably the Central Government has no jurisdiction over the police  

which is contained in Entry 2 of List II of the Seventh Schedule. It includes  

railway and village police, subject to the provisions of Entry 2A of List I,  

which reads as under :-

“2A.  Deployment  of  any  armed  force  of  the  Union or any other force subject 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.”  

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Does this violates the doctrine of federalism is the question?

The  power  of  the  Central  Government  vis-à-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 Government is excluded.  

Extradition  of  a  fugitive  criminal  from India  to  any  other  foreign  

country, irrespective of the fact as to whether any treaty has been entered  

into  or  with  that  country,  is  within  the  exclusive  domain  of  the  Central  

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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-à-vis  the  Resolutions  adopted  by  the  

C.B.I. from time to time, although a Red Corner Notice per se does not give  

status of a warrant of arrest by a competent court.  It is merely a request of  

the issuing authority to keep surveillance on him and provisionally or finally  

arrest the wanted person for extradition.  The provisions of the Act and the  

Treaty are required to be given effect to.  Whenever a request is received  

from  INTERPOL  the  authority  must  act  on  behalf  of  the  Central  

Government.  The INTERPOL provides constitution of NCBs by Member  

States.  All Members are required to constitute NCBs which should be an  

authority  within  the  meaning  of  the  provisions  of  INTERPOL  for  

coordination  of  the  functioning  within  the  Member  States  and/or  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 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 find out the missing person or fugitive criminal.   

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C.B.I.,  although  constituted  under  the  DSPE  Act  its  functions  are  

multiple.  While acting in terms of the provisions, in particular Sections 3  

and  5  of  the  DSPE  Act,  it  acts  as  an  investigating  officer.   The  Act  

contemplates commission of the offences of the nature specified in the Act  

or those specified in several Notifications issued from time to time.  In terms  

of Section 3 of DSPE Act first information reports are required to be lodged.  

For the said purpose, the C.B.I. which has several branches all over India is  

an officer incharge of a police station within the meaning of Section 154 of  

the Code of Criminal procedure.  The authority specified in the DSPE Act,  

namely the Superintendent of Police of C.B.I. is an officer entitled 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.    

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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  made  out  including  the  question  as  whether  any  

extraditable offence has been made out.  For the aforementioned purpose it  

does not Act as an agency within the four corners of the DSPE Act.  It acts,  

it will be a repetition to state, has an authority of the Central Government.  

The limitation of its powers having regard to the provisions of Section  

5 of DSPE Act as also some of the decisions of this Court, therefore, in our  

opinion,  cannot  be  said  to  have  any  application  in  the  facts  and  

circumstances of this case.

C.B.I., therefore, is entitled to organize and coordinate in regard to the  

request made by INTERPOL.  It may have to obtain endorsed warrant.  It  

may have to give provisional warrant  in terms of Section 34B of the Act.   

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Surveillance per se under the provisions of the Act may not violate  

individual or private rights including the right to privacy.

Right to privacy is not enumerated as a Fundamental Right either in  

terms of Article 21 of the Constitution of India or otherwise.  It, however, by  

reason of a elaborate interpretation of this Court in Kharak Singh v.  State of  

U.P.  and  others,  [(1964)  1  SCR  332  ]  it  was  held  to  be  an  essential  

ingredient of ‘personal liberty’.  This Court, however, in Govind v. State of  

Madhya Pradesh [(1975) 2 SCC 148] upon taking an elaborate view of the  

matter  in  regard to right  to  privacy vis-à-vis  the Madhya Pradesh Police  

Regulations dealing with surveillance,  opined that the said regulation did  

not  violate  the  “procedure  established  by  law”.   However,  a  limited  

Fundamental Right to Privacy as emanating from Articles 19(a), (d) and 21  

was upheld, but the same was held to be not absolute wherefor reasonable  

restrictions could be placed in terms of clause (5) of Article 19.   

Mathew, J. stated:

“The right to privacy in any event will necessarily  have  to  go  through  a  process  of  case-by-case  development.  Therefore,  even  assuming  that  the  right to personal liberty, the right to move freely  throughout the territory of India and the freedom  of speech create an independent right of privacy as  an  emanation  from  them  which  one  can  

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characterize  as  a  fundamental  right,  we  do  not  think that the right is absolute.”

The law, however, was developed by this Court in  R. Rajagopal  v.  

State of Tamil Nadu [(1994) 6 SCC 632].  

The law was crystallized  in  the  People’s  Union for  Civil  Liberties  

(PUCL) v. Union of India [(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  

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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 the mode of surveillance.

The case  directly  or  indirectly  laid  great  emphasis  on certain  grey  

areas with regard to carrying out of the activities of surveillance on the part  

of the CBI and the police authorities.  In  Malak Singh (supra) this Court  

clearly  contemplated  surveillance by the  police  in  pursuance  to the  rules  

under which they are being done. No such guideline, however, has been laid  

down  in  respect  of  surveillance  conducted  pursuant  to  a  Red  Corner  or  

Yellow Corner Notice.

The Central  Government and in particular  the Ministry of External  

Affairs, in our opinion, should frame appropriate guidelines in this behalf.   

Indisputably, further action in terms of the Red Corner Notice has not  

been and could not be taken against the Appellant, in the instant case.   

It  is  conceded at  the  Bar  that  the  proceedings  for  extradition  of  a  

citizen could be initiated provided the conditions  precedent  laid down in  

terms of the provisions of the Act.  The Act prescribes a request made by a  

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foreign country whether with it a treaty has been entered into or not.  In the  

absence  of  any  such  request,  no  proceeding  could  be  initiated.   In  the  

aforementioned context, it is not necessary for us to enter into the question  

as to whether the Appellant could be arrested or not.  

We have noticed hereinbefore, the affidavit affirmed on behalf of CBI  

while dealing with the question of the limitation of its power.

In addition thereto CBI has also stated that:

(i) In the instant case, 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 Government as per section 5 of the Act or  

subsequent  to the Extradition of the Petitioner to the country in  

question.  

(ii) In any event, there has been no arrest of the Petitioner as the CBI is  

awaiting the necessary papers from the American Government.  

(iii) Also, the fact that India is not a party or signatory to the Hague  

Convention on the Civil Aspects of International Child Abduction  

does not make any difference in the instant case.  

(iv) Furthermore,  it  is  incorrect  to  say  that  the  Petitioner  is  being  

treated like a commodity. A warrant of arrest by a competent court  

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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 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  

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including Indian Extradition Act and the Extradition Treaty with  

the Requesting Country. Extradition of a person would only arise  

after request for extradition is formally received from the country.  

In the present case, no formal request has been received from the  

United States authorities.  

(iii) Moreover,  as  per  the  prevalent  practice,  in  cases  pertaining  to  

matrimonial affairs, the view taken is that such matters may not  

generally be held to satisfy the test of dual criminality.

(iv) In any case, since the instant case, is a case of domestic law, the  

view of the Ministry of Law would be called for and taken into  

consideration.   

It  is,  therefore,  clear  that  intervention  by  the  Ministry  of  External  

Affairs is crucial when a request is received by it from a foreign country.  

The learned Attorney General  states  before us that  the Ministry  of  

External Affairs invariably refers such matter to the Ministry of Law and  

Justice  for  his  opinion as to whether  in a  given situation an extraditable  

offence has been made out or not.  We have been informed that kidnapping  

in case of matrimonial dispute per se is not considered to be an extraditable  

offence.  It was furthermore contended that even violation of an order passed  

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by  a  court  of  competent  jurisdiction in  U.S.A.  being  punishable  for  

imprisonment for six months only, the Appellant cannot be extradited for  

commission of the said offence also.  We may, however, place on record that  

United States has enacted the International Parental Kidnapping Crime Act  

of 1993.  However, the law in India shall be governed by the provisions of  

the Indian Penal Code, 1860.

CONCLUSION

We have already held above that the Municipal Laws of a country  

reign supreme in matters of Extradition. It is thus for the State concerned to  

take a decision in regard to such Notices, keeping in view the Municipal  

Laws of the country. The High Court was, therefore, in our opinion, clearly  

wrong 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.  It  ought  not  to  be  forgotten  here  that  the  dispute  between  the  

Appellant  and  the  Respondent  No.  6,  being  essentially  a  Matrimonial  

dispute,  is  a  private  dispute  and no criminal  extraditable  offence  can  be  

made out of the same, in the absence of a specific request for extradition.  

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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 13 and 44A of the Code of Civil Procedure.  

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As  regards  the  question  of  custody,  we  have,  however  noticed,  

hereinabove  that  although the  family  court  at  Bombay for  all  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  has stayed the operation thereof.  The Appellant  therefore,  must  be  

held to be in lawful custody of his daughter unless any other or further order  

is passed by a court of competent jurisdiction.  

Lastly,  it  is  imperative  to  note  that  the  State  does  not  seek  for  

enforcement of the custody and/ or restrain order passed by the Probate and  

Family Court, Massachusetts in view of the rigours contained in Sections 13  

and 44A of the Code of Civil Procedure. Even the Family Court does not  

appear  to have dealt  with this  aspect  of  the matter.  In any event,  as  the  

matter  is  pending  before  the  High  Court,  it  alone  will  have  a  final  say  

therein.

For the aforementioned  reasons,  the  impugned judgment cannot  be  

sustained. It is set aside accordingly.  The appeal is allowed.  However, in  

the facts and circumstances of the case, there shall be no order as to costs.

…………………………………, J. [S.B. Sinha]

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…………………………………, J. [Dr. Mukundakam Sharma]

New Delhi August 07, 2009

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