Holding

A Red Corner notice by itself is not a warrant of arrest or a basis for extradition; no extraditable offence arises from a private matrimonial dispute without a specific request from the requesting State, and the CBI may act only on the Executive’s authority.

Summary

The appellant, an Indian citizen, married a US citizen and had a daughter. A US probate court granted temporary custody of the child to the mother, but the appellant allegedly forged documents and took the child to India, violating the custody order. The US court issued arrest warrants which were transmitted to India via Interpol, resulting in a Red Corner notice for the appellant and a Yellow notice for the child. The appellant challenged the legality of the notices and sought a stay, arguing that the dispute was a private matrimonial matter and that no extraditable offence existed without a formal request from the United States. The Supreme Court held that a Red Corner notice alone does not constitute a warrant of arrest or a basis for extradition, that a matrimonial dispute is not an extraditable offence absent a specific treaty request, and that the CBI can act only on instructions from the Executive Government. Consequently, the High Court's order refusing to stay the notices was set aside and the appeal was allowed, with no order as to costs.

Issues considered

The validity and enforceability of an Interpol Red Corner notice in the absence of a formal extradition request.
Whether a matrimonial dispute involving alleged child abduction constitutes an extraditable offence under the Extradition Act, 1962 and the India‑US treaty.
The jurisdiction and authority of the CBI to act on Interpol notices under the Extradition Act and the DSPE Act.
The applicability of fundamental rights under Articles 14, 19 and 21 of the Constitution in the context of Interpol‑initiated proceedings.

Legislation cited

Code of Criminal Procedure, 1973s. 1058, s. 105A, s. 13, s. 41(g), s. 44A
Delhi Special Police Establishment (DSPE) Act, 1946s. 2, s. 3, s. 5
Extradition Act, 1962s. 14, s. 15, s. 17, s. 29, s. 2(c), s. 2(d), s. 2(f), s. 2(j), s. 4-18, s. 41(g)

Subjects

ExtraditionInterpol Red Corner NoticeInterpol Yellow NoticeMatrimonial disputeChild custodyFundamental rightsArticle 21CBI jurisdictionDualismInternational treatyIndian Constitution

Judgment

[2009] 12 S.C.R. 861

~ BHAVESH JAYANTI LAKHANI A
v.
STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 1452 of 2009)
AUGUST 7, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

. Extradition Act, 1962 - s. 2(c), (d), (f), (j):

Red Comer Notice - Execution of, in India - Divorce and c
custody matters of Indian citizens in· US courts - Husband

- taking minor child to India from USA in violation of custody
order - Issuance of Red Corner Notice by INTERPOL in
relation to husband in respect of arrest warrants and Yellow
notice in relation to minor daughter - High Court refusing to D
1'
stay Interpol notices - Sustainability of- Held: Not sustainable
- Dispute between the parties being a matrimonial dispute,
· is a private dispute - No extraditable offence made out under
the Act or under provisions of extradition treaty between USA
and India - No request for extradition made to Executive
E
Government of India by Government of USA - Red Comer
. Notice by itself cannot be a basis of arrest or transfer of Indian
citizen to a foreign jurisdiction - Municipal laws of country
reign supreme in matters of Extradition - Extradition Treaty
... is subject to the provisions of the Act - Husband being an
F
Indian citizen is entitled to enforcement of his fundamental
rights - CBI having regard to its limited powers, could not
exercise its jun'sdiction within the territories of a State without
its consent- Constitution of India, 1950 -Articles 14, 19 and
21 - Extradition Treaty between India and USA entered into
~ j on 21.06.1999 - Article 1, 2, 4, 9 and 21. G

Functioning of CBI vis-a-vis its role in terms of notices
issued by Interpol - Explained.

861 H
862 SUPREME COURT REPORTS [2009) 12 S.C.R.

A Arrest of a person for extradition - Procedure to be
followed - Before the arrest and after the arrest - Explained.

International Criminal Police Organisation-INTERPOL:

Functions of- Issuance of Red Comer Notice and Yellow
B Comer Notice - Procedure for - Binding nature of Interpol
notices - Explained.

Red Corner Notice/Yellow Comer Notice - Issuance of
- Red Comer Notice is issued to seek provisional arrest of a
c wanted person against whom a national or international court
has issued warrant of arrest - It does not have the effect of
warrant of arrest - It is a request of the issuing entity to
provisionally or finally arrest the wanted person for extradition
- Yellow notice is issued for finding a missing person or to -
D identify people who are not capable of identifying themselves
- It is issued specially to locate minors. lt

Appellant and respondent no. 6 are citizens of India.
They married in Mumbai and moved to California. A
daughter was born out of the wedlock. However, there
E was a marital discord between the parties and the
respondent no. 6 was continuously harassed. The court
of USA by an ex parte order granted temporary custody
of the child, restraint and abuse prevention in favour of
respondent no. 6. Appellant-husband allegedly forged
F the documents and took the child to India in violation of
the custody order. Respondent no. 6 filed complaint
before the police authorities that the appellant had
abducted the child. The USA court passed a decree for
divorce and the custody of the child. Thereafter, -
G respondent no. 6 re-married and filed for custody before
the Family Court, Mumbai. The court issued arrest
warrants against the appellant and granted custody of the
child to respondent no. 6. In appeal thereagainst order
was stayed by Mumbai High Court. The police and the
H court of USA issued warrants of arrest against the
BHAVESH JAYANTI LAKHANI v. STATE OF 863
MAHARASHTRA & ORS.

appellant which was transmitted through INTERPOL to A
the Government of India. Appellant challenged the
legality/validity of the order issuing warrant. He also
sought direction to restrain the respondents or any other
Central Government from arresting the appellant or taking
any action pursuant to or in furtherance of the red corner B
notice issued by INTERPOL in respect of those arrest
warrants. High Court dismissed the petition. Hence the
present appeal.

Allowing the appeal, the Court
c
HELD: 1. In the instant case, appellant is sought to
be apprehended for commission of an offence u/s. 363
IPC. The dispute between the appellant and respondent
no.6 essentially being a matrimonial dispute, is a private
dispute and no extraditable offence can be made out of D
"f
the same, in the absence of a specific request for
extradition. The Municipal Laws of a country reign
supreme in matters of Extradition. It is for the State
concerned to take a decision in regard to such Notices,
keeping in view the Municipal Laws of the country. High E
Court committed a serious error insofar as it failed to take
into consideration the provisions of the Extradition Act,
1962, in the absence of any request having being made
by the Govt. of USA to the Executive Government of India
""" or any authourization made by the latter on its behalf. It F
erred in holding that a Red Corner Notice should not be
tinkered with. When a person complains of a violation of
his fundamental right and/or otherwise of his fundamental
right he is entitled to the right of judicial review. Appellant
being an Indian citizen is entitled to enforcement of his
G
;. ; fundamental rights. [Paras 39, 49, 53, 57, 128 and 129]
[895-B; 897-F; 899-E-F; 900-D-E; 927-A-D]

2.1. CBI has an Indian Interpol Wing. It works as an
interface between the Interpol Secretariat General,
France, Interpol member countries and various law H
864 SUPREME COURT REPORTS [2009] 12 S.C.R.

A enforcement agencies of India. CBI for intent and purport
exercises the power of National Control Bureau-NCB in
terms of the Treaty and thus derive its authority from
INTERPOL itself. C.B.I. is thus the designate of the
INTERPOL in India and endorsing warrants is an
B essential attribute of the procedure for the
implementation of the Treaty. C.B.I. in its website
maintains that it handles all procedures related to
Extradition and Issuance of Interpol Notices. One of its
functions is to circulate the Red Corner as also Yellow
c Notices issued by Interpol Secretariat General at the
behest of any member country within India. It is
proceeded on the basis that the power of CBI and its
delegated authority namely, the State police to keep a
person under surveillance ; arrest him in terms of
warrant of arrest issued by a foreign country and Red
0
Corner Notit.:e is an absolute one. Similarly the power to "lt
find out a missing person in terms of the Yellow Notice
is also absolute. [Paras 41, 59, 97, 100 and 101] [895-F-
G; 901-B; 914-G; 915-C; 915-D-E]

E 2.2. The Red Corner Notice is issued to the border
control authorities and others so as to enable them to
effect an arrest along with details and papers including
a warrant from the originating country. A Red Corner
notice is issued to seek the provisional arrest of a wanted
F person. However, it by itself does not have the effect of
warrant of arrest. It is issued for persons, against whom
a national or international court has issued a warrant of
arrest. It is solely a request of the issuing entity to
provisionally or finally arrest the wanted person for
G extradition. An arrest may also be made under the
-
Extradition Act, 1962. The Ministry of External Affairs
works for the administrative watching of the Act. A Yellow
notice is issued for finding a missing person or to identify
people who are not capable of identifying themselves. It
H is a"n "International Missing Person Notice". It is issued
BHAVESH JAYANTI LAKHANI v. STATE OF 865
MAHARASHTRA & ORS.
specially to locate minors. [Paras 41 and 72] [895-G; 905- A
B-0] .

2.3. A Red Corner Notice has large number of
consequences. They are: (i) The requesting country may
make a deportation request. (ii) The law enforcement 8
agency in India is required to "take follow up action with
regard to the arrest of a fugitive criminal". (iii) The information
emanating from the red corner notice is required to be
distributed all over the Interpol website. (iv) The
requesting Embassy would instruct the CBI to carry out C
its instructions for surveillance, arrest and detenti~n. (v)
The requesting Embassy can even contact the Indian
police directly. (vi) Thereafter, extradition proceedings
may follow. Therefore, when a proceeding under the Act
is initiated, the civil liberty of a person would be directly
affected. The provisions of the Act, therefore, should be D
strictly construed. Any request for extradition therefore
must undergo the strict scrutiny test. Extradition offence
keeping in view its definition in s. 2(c) of the Act in relation
to a treaty State must be one provided for the extradition
treaty therewith. [Paras 42 and 43] (896-A-F] E

2.4. The application of the provisions of the Act, in a
case ·of this nature must be held to be imperative in
character. For the purpose of applying the provisions of
the Act, existence of a treaty between the requesting State F
and the requested State plays an important role. It makes
a distinction between an extraditable offence and other
offences including political offences. Sections 4-18
provides for the mode and manner in which a request for
extradition of a person is required to be made by the G
concerned country. The requirements are specific in
nature and are required to be accompanied by a large
number of documents. [Para 44] [896-F-H; 897-A-B]

2.5. No request for extradition has been received by
the Government of India. It could act only when a request H
866 SUPREME COURT REPORTS [2009] 12 S.C.R.

A is received. Red Corner Notice by itself cannot be a basis
of arrest or transfer of an Indian citizen to a foreign
jurisdiction. The Act cannot be bypassed in red corner
cases concerning Indian citizens. Hence, the Extradition
Treaty is subject to the provisions of the Act. [Paras 45
8 and 49] [897-B, F, G]

2.6. A person cannot be arrested without any
authority of law. Thus, the arrest of a person must be
effected in terms of the provisions of the Act. A person
C wanted for an offence in a foreign jurisdiction may be
arrested on fulfillment of the following conditions: that the
offence should be counted as one by Indian Law as well,
and the person must be liable to be arrested in India-
either under any law relating to extradition, or otherwise.
D [Para 50] (897-H; 898-A-C]

2.7. Respondent no.6 herself accepts that she had
pursued only civil remedies and the order of the custody
Court was passed under civil remedies. [Para 52] (899-
C-D]
E
2.8. India follows the doctrine of dualism and not
monoism. The Act as also the treaties entered into by and
between India and foreign countries are subject to the
municipal law. Enforcement of a treaty is in the hands of
F the Executive. But such enforcement must conform to the
domestic law of the country. Whenever a conflict arises
between a treaty and the domestic law or a municipal
law, the latter shall prevail. [Paras 54 and 55] [899-F-H;
900-A-B]

G Mis Entertainment Network (India) Ltd. vs. Mis Super
Cassettee Industries Ltd. 2008 (9) SCALE 69, relied on.

2.9. It is for the State concerned to take a decision in
regard to such notices, keeping in view the Municipal
H Laws. The steps to deal with the request contained in the
BHAVESH JAYANTI LAKHANI v. STATE OF 867
MAHARASHTRA & ORS.

notices, thus, must abide by the domestic laws of the A
concerned country. Recognition of the request as the
basis for an arrest operate an internationalization or tans-
nationalization of a foreign administrative decision. The
formal admission procedure by Interpol cannot be the
single cause of internalization. It is just a precondition for B
the recognition by the other states. [Para 57] [900-D-E]

2.10. The appellant received a notice from Interpol
A dated 13.06.2007 being a Yellow or Watch notice as also
a Notice dated 21.06.2007 being a Red or Detain and
Arrest notice. Yellow notice was in relation to the child C
whereas the red notice was in relation to the Appellant.
The Assistant Director of National Crime Bureau (NCB)
forwarded a letter dated 4.01.2008 from the U.S. Embassy
(Department of Justice) on or about 14.01.2009 to the
f. Mumbai Police to locate the Appellant and his daughter. D
On 18.03.2008 notice of arrest warrant issued by
INTERPOL was circulated against the Appellant on the
Interpol Website. Mumbai police is said to have found the
location of the Appellant and his daughter on 3.05.2008
which information was passed on to U.S. Embassy on E
9.05.2008. [Para 58] [900-F-H; 901-A]

2.11. The notices issued by INTERPOL are not
considered as administrative decisions on individual
cases with transnational effect. They are not construed F
as an "international administrative act." They lack a
character of regulation. They do not constitute an
international arrest warrant and they are not in any other
form binding the individuals concerned legally. They,
however, gain de facto with special relevance to the G
} 1 Human Rights through multiplication ,of its recipients.
Interpol's "red notices" often function as de facto
international arrest warrants and countries issue warrants
immediately upon receipt of such a notice. However, they
do so with the understanding that a request for
H
868 SUPREME COURT REPORTS [2009] 12 S.C.R.

A extradition with supporting evidence will follow the red
notice, without delay. The suspect rriust then go through
the standard extradition process. The bottom line is that
"warrants to arrest suspects must have legal authority in
the jurisdiction where the suspect is found" and Interpol
B red notices do not have such authority. They are primarily
a means of facilitating communication between police
agencies and the success of the Interpol system still
depends entirely upon voluntary cooperation. They,
however, do not entirely lack external effects. A number
c of states recognizes the Red Notices as an official
request for the arrest of a person. However, such a
request does not require the action of national police
authorities and does not provide a legal basis thereto.
[Paras 77, 78 and 79) [906-E-H; 907-A-C]
D 2.12. The trans-nationalization takes place through
the membership in the organization, through the
supervision proviso of the General Secretariat and the
recognition of the transnational effect of the information.
A successful search does not result in Interpol's further
E operative involvement, either. Concerned authorities or
the public are supposed to contact the local police office,
which then gets in touch with the issuing authority and
initiates the necessary steps. Therefore, the member state
usually gives the initiative for a Notice, and cooperates
F with one or several other member states in order to find
and arrest the wanted person. Existing information is just
distributed through a special communication channel.
Interpol's role is limited to that of a service agency. [Paras
80, 81 and 82] [907-C-F]
G
Bettina Schondorf-Haubold, The Administration of
Information in International Administrative Law - The Example
of Interpol, 9 Gennan L.J. 1719, referred to.

2.13. The provisions relating to issuance of the notice
H by INTERPOL; warrant of arrest by foreign courts vis-a-
BHAVESH JAYANTI LAKHANI v. STATE OF 869
MAHARASHTRA & ORS.

vis the power of NCB and the local police to act in terms A
~
thereof are contained not only in the Act but also in the
provisions of the concerned Treaty, Cr.P.C. as also the
various Notifications issued by the Central Government
in that behalf. [Para 91] [912-A-D]
B
2.14. Power to apprehend or investigate a fugitive
criminal, is conferred bys. 14 rw s.15. Section 14
prescribes the form of apprehension of a fugitive criminal
under an endorsed warrant or a provisional warrant.
~
Warrant can be issued by a foreign country to arrest a
fugitive criminal who is yet to be tried and a person who
c
has already been convicted. A fugitive criminal may be
apprehended either under category: Endorsed Warrant;
and Provisional Warrant. An Endorsed Warrant is one
which is a warrant that has, at first been issued by the
foreign country with which India has an Extradition D
i Treaty and subsequently been endorsed by the Central
Government. Hence once a warrant issued by the foreign
country is endorsed by Central government, it becomes
an Endorsed Warrant in terms whereof sufficient
authority is conferred to apprehend a person and to E
bring him before any Magistrate in India. Power to
~ apprehend includes the power to investigate. S. 15 uses
the term 'apprehend' which is defined as 'the seizing or
taking hold of a man; the act of arresting or seizing under
the process of law'. [Paras 93 and 94] [912-G-H; 913-A-E] F

2.15. The requirement to arrest a person for the
purpose of his extradition is in two categories: the cases
in which India has an Extradition Treaty with the
concerned country and those in which no such
G
~
., extradition treaty exits. In the former category, the
provisions of Chapter Ill of the Act shall apply. Arrest is
made by the police authorities in terms of endorsed
warrant; whereafter the procedure laid down in s. 17 is
to be followed by reason whereof the fugitive criminal is
H
870 SUPREME COURT REPORTS [2009] 12 S.C.R.

A to be brought by the Magistrate. Once the Magistrate
satisfies that the fugitive criminal has been brought
before him in terms of an endorsed warrant which is duly
authenticated and that the offence is an extraditable one,
the Magistrate shall commit the fugitive criminal to prison.
B A certificate of committal is thereafter sent to the Central
Government. [Para 95] (914-A-D]

2.16. The power is exercised by the C.B.I. or a police
officer to arrest a person, although no warrant is issued
C in terms of s. 41(1)(g) Cr.P.C. It pre-supposes satisfaction
of a police officer to arrest a person, if he has been
concerned in, or against whom a reasonable complaint
has been made, or credible information has been
received in, any act committed at any place out of India
which, if committed in India, would have been punishable
D as an offence, and for which he is, under any law relating
to extradition, or otherwise, liable to be apprehended or
detained in India. However, the CBI website states that
in case an action is taken under s. 41(1)(g), the matter
must be immediately referred to the Interpol Wing for
E onward transmission to the Government of India to take
a decision or otherwise. In terms of the said provisions,
sanction of the Central Government is contemplated. )t

However, it is placed on record that strictly construed in
a case involving extradition, s. 41(g) may not have any
F application. Section 41(g) clearly contemplates the power
of the Police to arrest under 'any law relating to
Extradition' thereby contemplating the exercise of
powers subject to the provisions of the Extradition Act.
Thus, the provisions of the Cr.P.C. are subject to those
G in the Act. (Paras 103 and 106] (916-A-B, E-F]

2.17. Extradition of a fugitive criminal from India to
any other foreign country, irrespective of the fact as to
whether any treaty has been entered into or with- that
H
BHAVESH JAYANTI LAKHANI v. STATE OF 871
MAHARASHTRA & ORS.

country, is within the exclusive domain of the Central A
Government. The extradition of a person from India to
any other foreign country is covered by the Parliament
Act, namely the Act. Keeping in view the Constitution of
INTERPOL vis-a-vis the Resolutions adopted by the C.8.1.
from time to time, although a Red Corner Notice per se B
does not give status of a warrant of arrest by a competent
court. It is merely a request of the issuing authority to
keep surveillance on him and provisionally or finally
arrest the wanted person for extradition. The provisions
of the Act and the Treaty are required to be given effect c
to. Whenever a request is received from INTERPOL the
authority must act on behalf of the Central Government.
The INTERPOL provides constitution of NCBs by
Member States. All Members are required to constitute
NCBs which should be an authority within the meaning D
1 of the provisions of INTERPOL for coordination of the
functioning within the Member States and/or the
INTERPOL in case of any request received. Location of
a missing person and or tracing the whereabouts of a
fugitive criminal is not an easy task. The authority within
E
the meaning of the words of the INTERPOL must act in
cooperation with the State police. For the said purpose
it may have to request more than one States. A missing
person or a fugitive criminal may move from one State to
another. In such a case it is not possible for one State to
find out the missing person or fugitive criminal. Only F
when an investigation is carried out in relation to an
t
offence which has been committed in a State and not in
i
the Indian territory or within the territo1"ial jurisdiction of
:• the Central Government the consent of the State

• .. concerned is required to be obtained. (Paras 111 and G
112] [919-G-H; 920-A-E; 920-H; 921-A]

2.18. Surveillance per se under the provisions of the
Act may not violate individual or private rights including
H
872 SUPREME COURT REPORTS [2009] 12 S.C.R.

A the right to privacy. Right to privacy is not enumerated
as a Fundamental Right either in terms of Article 21 of the
Constitution of India or otherwise. However, it is held to
be an essential ingredient of 'personal liberty'. In the
instant case, except giving information in regard to
8 whereabouts of the appellant and his daughter, no other
action was taken. [Paras 117, 118 and 119) [921-H; 922-
A; 923-C]

Kharak Singh v. State of UP. and others (1964) 1 SCR
332; Govind v. State of Madhya Pradesh (1975) 2 SCC 148;
c R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632;
People's Union for Civil Liberties (PUCL) v. Union of India
(1997) 1 SCC 301; State of Maharashtra v. Madhukar
Narayan Mardikar (1991) 1 SCC 57; Malak Singh v. State of
P&H (1981) 1 SCC 420, referred to.
D
2.19. The Central Government and in particular the
Ministry of External Affairs, should frame appropriate
guidelines in respect of surveillance conducted pursuant
to a Red Corner or Yellow Corner Notice. In the instant
E case, further action in terms of the Red Corner Notice has
not been and could not be taken against the appellant.
[Paras 122 and 123) [923-G-H; 924-A]

2.20. The proceedings for extradition of a citizen
could be initiated provided the conditions precedent laid
G down in terms of the provisions of the Act. The Act
prescribes a request made by a foreign country whether
with it a treaty has been entered into or not. In the
absence of any such request, no proceeding could be
initiated. [Para 124] [924-8)
H
2.21. CBI stated that the averments of the appellant. •
that prima facie the case arises out of a matrimonial
dispute are all questions that are required to be gone into
either by the Extradition Court appointed by the Central
j Government as per s. 5 of the Act or subsequent to the
BHAVESH JAYANTI LAKHANI v. STATE OF 873
MAHARASHTRA & ORS.

Extradition of the Petitioner to the country in question. In A
t
any event, there has been no arrest of the Petitioner as
the CBI is awaiting the necessary papers from the
American Government. The fact that India is not a party
or signatory to the Hague Convention 9n the Civil
Aspects of International Child Abduction does not make B
any difference. It is incorrect to say that the Petitioner is
being treated like a commodity. A warrant of arrest by a
competent court in United States has been issued against
the Petitioner. Under International obligations, the CBI is
" required, when so requested to act on the red corner c
notice issued pursuant to the warrant of arrest. If fugitives
are not apprehended pursuant to the warrant of arrest/
red corner notice, it would be very easy for such persons
' to escape punishment. The petitioner has rights under
the Act as well as the judicial process in United States (if D
he is ultimately extradited). Till date the CBI has not
-f
received any request from the US authorities for the arrest
. and Extradition of the Petitioner. [Para 125] [925-C-H; 926-
A-B]

2.22. The Ministry of External Affairs, Government of E
India, New Delhi by means of an affidavit admitted that it
-I is the nodal agency for Extradition as per the Act and the
Extradition Treaty between the Government of India and
the United States of America. On receipt of a Red Corner
Notice, it is not the invariable practice to arrest the person F
but efforts are made to trace him though the local police.
The consideration of the question of arrest and
Extradition would be within the framework of domestic
"
law including Indian Extradition Act and the Extradition

-
-· "
Treaty with the Requesting Country. Extradition of a
person would only arise after request for extradition is
formally received from the country. As per the prevalent
practice, in cases pertaining to matrimonial affairs, the
view taken is that such matters may not generally be held
G

to satisfy the test of dual criminality. In any case, since H
874 SUPREME COURT REPORTS [2009] 12 S.C.R.

A the instant case is of domestic law, the view of the
~
Ministry of Law would be called for and taken into
consideration. It is, therefore, clear that intervention by
the Ministry of External Affairs is crucial when a request
is received by it from a foreign country. [Para 125) [925-
B C-H; 926-A-B]
2.23. A fundamental right of a citizen whenever
infringes, the High Courts having regard to their
extraordinary power under Article 226 of the Constitution
c aofhuman
India as also keeping in view that access to justice is
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
D citizen of India with arrest although they are not entitled
t
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, the court will enquire as to
E whether the same has undergone the tests laid down
under sections 13 and 44A C.P.C. [Paras 129 and 130)
[927-A-F]

2.24. Although the family court at Bombay for all
F intent and purposes relying on or on the basis of the
order passed by the Massachusetts Court directed
custody of the girl in favour of her mother, the Bombay

G
High Court stayed the operation thereof. Therefore, the
appellant 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. [Para 131) [927-F-H] ,. ...,..
2.25. The State did not seek for enforcement of the
custody and/ or restrain order passed by the Probate
and Family Court, Massachusetts in view of the rigours
H contained in ss. 13 and 44A C.P.C. Even the Family Court
BHAVESH JAYANTI LAKHANI v. STATE OF 875
MAHARASHTRA & ORS.

t
did not deal with this aspect. In any event, as the matter A
is pending before the High Court, it alone will have a final
say. [Para 132) [928-A-B]

Case Law Reference:
2008 (9) SCALE 69 Relied on. Para 53 B
(1964) 1 SCR 332 Referred to. Para 118

(1975) 2 sec 148 Referred to. Para 118
(1994) 6 sec 632 Referred to. Para 118 c
(1997) 1 sec 301 Referred to. Para 118
(1991) 1 sec 57 Referred to. Para 118
(1981) 1 sec 420 Referred to. Para 120
D
t CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1452 of 2009.

From the Judgment & Order dated 11.08.2008 of the High
Court of Judicature at Bombay in Criminal Writ Petition No. 676
of 2008. E

Dr. Rajeev Dhawan, (A.C.), Shekhar Naphade, Vinay
Navare, Abha R.Sharma for the Appellants.

G.E. Vahanvati, A. G., K. Radhakrishnan, Tufail A. Khan, F
Devadat Kamat, D.S. Mahra, B. Krishna Prasad, Nitya
Ramakrishnan. Sarim Naved, Trideep Pais, Nikhil Nayyar,

-· Ravindra Keshvrao Adsure, for the Respondents.

The Judgment of the Court was delivered by
G
~
S.B. SINHA, J. 1. Leave granted.

INTRODUCTION

2. Interpretation of the roles and responsibilities of the
Central Bureau of Investigation (CBI) vis-a-vis the provisions of H
876 SUPREME COURT REPORTS [2009] 12' S.C.R.

A the Extradition Act, 1962 (hereinafter referred to as "the Act") t
is involved in this appeal. It arises out of a judgment and order
dated 11.08.2008 passed by a Division Bench of the High
Court of Bombay in Criminal Writ Petition No.676 of 2008
whereby and whereunder the appellant's application
B questioning the validity and/ or legality of an order issuing a
warrant against the appellant by the Magistrate Court, Clayton
County, Georgia in case No. 2006/CW/06369 and Case No.
2006/CW/06370 in USA in respect of a complaint filed by the
respondent No. 6 herein, was dismissed. The appellant in that
c application had also sought for a direction restraining the
respondents or any other Central Government machinery from
arresting the appellant or taking any action pursuant to or in
furtherance of the Red Corner Notice issued by INTERPOL in
respect of those arrest warrants.
D BACKGROUND FACTS
\
3. Appellant and the respondent No. 6 are citizens of India.
He went to Michigan to pursue his studies in M.S. (Computer
Engineering) between August, 1998 and May, 2000. He also
E worked as a Software Engineer at California in a company
named Broadbase Software upto 2001. He was later on
employed as a Technical Lead in a Government Contract Firm
at California known as Ancore Corporation between 2001 and
2003.
F 4. Appellant married the respondent No. 6 on 6.04.2002
at Mumbai. They moved to California on 19.04.2002 and stayed
there till 2005. Out of the said wedlock, a daughter Eesha was
born on 26.04.2003. Marital life of the Appellant and the
Respondent No. 6 was however not happy. According to the
G respondent No. 6, she was continuously being harassed. She
-
•
applied for grant of permanent asylum on 1.07.2003 allegedly
under coercion from the appellant. Later on the respondent No.
6 allegedly moved to her sister's house at Sharon
Massachusetts, USA.
H
BHAVESH JAYANTI LAKHANI v. STATE OF 877
MAHARASHTRA & ORS. [S.B. SINHA, J.]

PROCEEDINGS IN USA A
t

5. She filed a complaint with the Sharon Police Department
on 26.04.2005. On or about 09.05.2005 an application before
the Probate and Family Court of Massachusetts for grant of
divorce was filed by her. In the said proceeding, she also sought
B
for orders of custody of her daughter.

6. The Probate and Family Court, Massachusetts passed
an order of temporary custody of the child, restraint and abuse
" prevention ex parte in favour of the respondent No.6 and
c
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
'\hereof. Respondent No.6 took up a job and continued to live
with her child in Massachusetts. She contends that her Indian D
f Passport was stolen by the appellant from the premises which
_. was being occupied by her.

7. Admittedly, the appellant came to India with the child on
15.04.2006 in violation of the court custody orders.
E
8. The contention of the appellant is that despite the initial
marital discord, the parties started living together. It was
decided that he should return to India with the child wherefor
even a written consent was given by the respondent No. 6 by
affirming an affidavit before a Notary on or about 14.04.2006, F
stating:

"I, Hetal G. Thakker ... authorize my child Eesha B. Lakhani
___...
to travel with my husband and her father, Bhavesh Lakhani
to India. G
> 1
"fhey will be leaving the United States of America on or
about April 14, 2006 and returning on or about
(Undecided) ... "

. 9. Respondent No. 6, however, contends that the appellant H
•
878 SUPREME COURT REPORTS [2009] 12 S.C.R.

A travelled out of the United States of America with the child by
creating false and fabricated documents including the said • ...
affidavit as would also appear from the fact that the child already
had a passport. On the premise that the child was abducted
by the appellant, warrants of arrest were issued against him on
B the basis of a complaint made by the respondent No. 6 before
the police authorities. A decree for divorce as also the custody
of the child was passed by the Norfolk Country Probate and
Family Court, Canton, Massachusetts on 2.5.2006.

PROCEEDINGS BEFORE THE FAMILY COURT
c
10. Respondent No. 6 thereafter married one Ashwin
Matta. Indisputably, she filed an application for custody of the
child before the Family Court at Mumbai on 11.05.2007. By an
order dated 15.05.2007, the Family Court directed the appellant
D to remain present in the Court with Eesha. Pursuant to the said
notice of the Family Court, his father appeared before the court •
on 15.05.2007 and stated that the appellant had gone out of
Mumbai along with Eesha. The matter, therefore, was
adjourned to 18.05.2007. On that day the appellant's father
-
E again appeared and informed the Court that the appellant could
not be contacted. The Family Court, thus issued a warrant of
arrest against the appellant and directed grant of custody of the
child to.the Respondent No. 6.

11. Appellant indisputably preferred an appeal before the
F High Court which was marked as Family Court Appeal (Stamp)
No. 11724 of 2007. An order of stay was granted by the High
-
G
Court of Bombay in the matter, which is still operative.

PROCEEDINGS BEFORE THE HIGH COURT

12. The Atlanta City Police and the American Court in the r
-
1.
meanwhile issued a warrant of arrest against the Appellant
which was transmitted through INTERPOL to the Government
of India. Appellant filed a writ petition questioning the legality
and/ or validity of the said warrant, which by reason of the
I-'
BHAVESH JAYANTI LAKHANI v. STATE OF 879
MAHARASHTRA & ORS. [S.S. SINHA, J.]

impugned judgment dated 11.08.2008 has been dismissed. A

13. The High Court posed unto itself a question as to
whether the Red Corr.er Notice could be stayed by it.

14. Referring to the provisions of the Act it was opined :-
B
(i) While dealing with a fugitive criminal wanted in a
State with which India has no treaty, the Magistrate
can enquire into the case in the same manner as if
the case was triable by Court of Sessions or High
Court. c
(ii) However, while dealing with a fugitive criminal
wanted in a treaty State, such inquiry and such a
trial is not open.
"
(iii) The Magistrate neither has the power to take D
f evidence nor can he discharge a fugitive criminal.
In the event, if two conditions, namely, (1) whether
the warrant is duly authenticated; and (2) whether
the fugitive criminal is concerned with an extradition
offence are satisfied, the Magistrate is required to E
commit the fugitive criminal to prison.

(iv) Only the Central Government in exercise of its
power under Section 29 of the Act can discharge
a fugitive criminal.
F
(v) The Magistrate cannot make a roving inquiry into
the facts.

(vi) Extradition treaty implies mutual obligations.
G
• .
(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. H
880 SUPREME COURT REPORTS [2009] 12 S.C.R.

A (ix) The High Court cannot tinker with the Red Corner
Notice. "

(x) The High Court should not set a precedent which
could be used to hamper investigation of crimes
which have global dimensions and for the
B
investigation of which, Red Corner Notices are
critical tool.

CONTENTIONS ADVANCED BY THE PARTIES:

c 15. Mr. Shekhar Naphade, learned senior counsel
appearing on behalf of the appellant would contend:

(i) The purported decree for divorce and custody of the
child granted by the Probate and Family Court, I-

Massachusetts being wholly without jurisdiction and,
D thus, being a nullity; the same is not admissible in ..
any Court in India.
...
(ii) Respondent No. 6 having prevaricated her stand
from stage to stage, no credence thereto could have
E been placed by the Courts of India for the purpose
of acting thereupon.

(iii) The purported order of custody in respect of the child
passed by the American Courts being in conflict
with the order of custody passed by the High Court
F
of Bombay, the appellant could not have been
directed to be extradited.

G
(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
H for custody of the child by invoking the provisions
BHAVESH JAYANTI LAKHANI v. STATE OF 881
MAHARASHTRA & ORS. [S.B. SINHA, J.]

contained in Section 13 of the Code of Civil A
Procedure, it could not have acted, relying on or on
the basis of the orders passed by the Probate and
Family Court, Massachusetts and directed grant of
cuslody of the child on the basis thereof.
B
16. So far s the judgment of the Bombay High Court is
concerned, it was urged:

(i) It ought to have considered that- the so-called
offence for which the petitioner is charged by the
American Court is not an extraditable offence either c
within the meaning of the said Act or under the
provisions of the Extradition Treaty entered into by
and between the United States of America and
India.
D
~ (ii) It ought to have been considered that the rights of
an Indian citizen guaranteed under Article 19 and
Article 21 cannot be compromised for enforcing
any of the provisions contained in the Act.
(iii) It ought to have been considered that India is not a E
party or signatory to the Hague Convention on the
Civil Aspects of International Child Abduction.
(iv) It ought to have considered that the dispute
between !he petitioner and the Respondent - wife F
was essentially of a civil nature pertaining to the
custody of the minor child.
(v) The refusal of the High Court to stay the INTERPOL
notices under Article 226 of the Constitution of India
G
.t ~ is patently erroneous, thus, leading to the
miscarriage of justice.
(vi) It ought to have been considered that the petitioner
who is having his own standing and reputation in
the society cannot be treated like a commodity for H
882 SUPREME COURT REPORTS [2009) 12 S.C.R.

A the sake of any treaty between India and the United
States.

(vii) It ought to have considered that before touching the
petitioner on the basis of a warrant issued by the
American Courts proper investigation into the
B
allegations against the petitioner was a must.

(viii) It ought to have considered that the provisions of
the Constitution of India conferring fundamental
rights to its citizens are superior and, thus, prevail
c over the provisions of the said Act or the Extradition
Treaty executed between the Government of India
and the United States.

(ix) That the entire approach of the High Court was
D legalistic as the High Court failed to examine the
core constitutional issues involved in the matter.

17. Ms. Nitya Ramakrishnan, learned counsel appearing
on behalf of Respondent No.6 on the other hand urged :-

E (i) Keeping in view the Scheme of the Act especially
as the question whether the appellant should be
extradited or not was not an issue before the High
Court, this Court should not interfere with the
impugned order at this stage, particularly in view of
F the fact that no request for extradition has yet been
made by the authorities of U.S.A.
(ii) Taking away the child out of the country in violation
of an order passed by a competent court of law

G
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
H Matrimonial Court is factually incorrect as the
BHAVESH ~AYANTI LAKHANI v. STATE OF 883
MAHARASHTRA & ORS. [S.B. SINHA, J.]
records of the case demonstratively establish that, A
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.
B
(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 c
Passport was with the respondent No.6 and in that
view the appellant must be held to have committed
an extraditable offence.

(vi) Keeping in view the provisions of Section 13 read D
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 bythe Appellant
herein can be raised before the Magistrate in the
event the Central Government thinks fit to issue a
E
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. F

18. Mr. Radhakrishnan, learned senior counsel appearing
on behalf of Union of India submitted :-
1
(i) Having regard to the prayers made in the writ
petition by the appellant before the High Court, the G
J
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 H
884 SUPREME COURT REPORTS [2009] 12 S.C.R.

A detained.

(iii) Keeping in view the provisions contained in Chapter
Ill of the Act in terms whereof before passing an
order of extradition the Magistrate is required to be
B 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.

C (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.
D
19. 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
E any authority to deal with Red Corner Notices
issued by the Interpol Secretarial General at the
behest of any member country. ~

(ii). No red corner notice can be issued in violation of
F civil liberties of an Indian and particularly in a
matrimonial case, the effect whereof may result in -

(a) detention ;

(b) arrest ; ".""""
G
(c) circulation of name on website; and •
(d) surveillance
which would amount to gross violations of law as the
H
BHAVESH JAYANTI LAKHANI v. STATE OF 885
MAHARASHTRA & ORS. [S.B. SINHA, J.]

appellant's personal liberty, as contained in Articles A
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 B
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
c
particular private rights of the citizens.

(iv). Any executive or departmental instructions framed
for the guidance of the police officers being not a
law no executive power can be exercised to curtail D
~ 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 E
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 suNeillance in terms of F
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 G
cannot act in a sui generis capacity.

(viii). C.8.1. having a limited territorial jurisdiction, its
services cannot be used outside its territorial
framework.
H
886 SUPREME COURT REPORTS [2009] 12 S.C.R.

A (ix). The High Court committed a manifest error in
passing the impugned judgment insofar as it failed
to take into consideration the relevant provisions of
the Code of Criminal Procedure enacted in terms
of Code of Criminal Procedure (Amendment) Act,
B 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.
c
(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.
D
(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.
E (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
F Criminal Procedure Code.

20. Mr. G.E. Vahanvati, learned Attorney General for India,
who was also requested to assist us in the matter upon taking
appropriate instructions from the Ministry of External Affairs, as
G 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
H
BHAVESH JAYANTI LAKHANI v. STATE OF 887
MAHARASHTRA & ORS. [S.B. SINHA, J.]

meaning of the provisions of the Extradition Treaty A
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; B

(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.
c
THE EXTRADITION TREATY

21. 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
0
) 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 accused
of, charged with or convicted of an extraditable offence, whether E
such offence was committed before or after the entering into
force of the Treaty.

22. 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 F
of more than one year or by a more severe penalty.

23. 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 G
an accessory before or after the fact to, any offence described
in paragraph 1.

24. Article 4 defines political offenses. Clause (2) of Article
4 inter alia provides that offences related to illegal drugs, shall
H
888 SUPREME COURT REPORTS [2009] 12 S.C.R.

A not be treated to be political offence.

25. Article 9 provides for extradition procedures and
required documents, the relevant portion whereof reads as
under:
.B "Article 9 - Extradition Procedures and Required
Documents:-

1. All requests for extradition shall be submitted
through the diplomatic channel.
c 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 ;
D
(b) information describing the facts of the
offense and the procedural history of the
case;

(c) a statement of the provisions of the law
E 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 ;
F and

(e) the documents, statements, or other types of
information specified in paragraph 3 or
paragraph 4 of this Article, as applicable.
G 3. A request for extradition of a person who is sought
for prosecution shall alsc be supported by :

(a) a copy of the warrant or order of arrest, issued by
a judge or other competent authority ;
H
BHAVESH JAYANTI LAKHANI v. STATE OF 889
MAHARASHTRA & ORS. [S.B. SINHA, J.)

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

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

26. Article 10 provides that the documents accompanying B
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 c
authenticated in any other manner accepted by the laws in the
Requested State.

- 27. Article 12 of the Treaty reads as under:
D
" 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 E
diplomatic channel. The facilities of the International
1
Criminal Police Organisation (Interpol) may be used to
transmit such a request.

2. The application for provisional arrest shall contain:
F
(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
G
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 H
890 SUPREME COURT REPORTS [2009] 12 S.C.R.

A against the person sought; and

(f) a statement that a request for extradition for the person
sought will follow.

3. The Requesting State shall be notified without delay of
B 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)
c 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

D
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."

E 28. 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.

29. Lastly, it is also imperative to note the provisions of
F 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
G or through the facilities of Interpol in connection with the
processing of individual cases and in furtherance of
maintaining and improving procedures for the
implementation of the Treaty."
30. Furthermore it ought to be noted that India has entered
H
BHAVESH JAYANTI LAKHANI v. STATE OF 891
MAHARASHTRA & ORS. [S.B. SINHA, J.]

into two treaties with the United States of America. The first A
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.
B
THE ACT

31. 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.
c
It is a special statute.

Section 2(c) of the Act defines an "Extradition Offence" in
c•
the following words:

"(c) "extradition offence" means- D
~

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

(ii) in relation to a foreign State other than a treaty E
State an offence punishable with imprisonment for
-1
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;"
F
32. 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 arrangement relating to the
extradition of fugitive criminals made before the 15th day of G
August, 1947, which extends to, and is binding on, India;

33. 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
H
892 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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.

34. A "treaty State" is defined under Section 2 (j) of the
Act to mean a foreign State with which an extradition treaty is
8
in operation.

35. Chapter II of the Act deals with extradition of fugitive
criminals to foreign States to which Chapter Ill does not apply.
Chapter Ill of the Act deals with return of fugitive criminals to
C foreign States which have Extradition Agreements.

CODE OF CRIMINAL PROCEDURE:

36. In 1994, Parliament added Chapter VllA titled:
"Reciprocal arrangements for assistance in certain matters and
0 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,
E evidence, documents and witnesses.

37. 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
F persons" (Section 1058). We are concerned with the latter
provisions relating to arrest and transfer.

G
38. The following threshold requirements are that these
reciprocal procedures are:

(i) Applicable only in respect of contracting States. Section
-
105A contains the interpretation Clause. Some of the
relevant provisions are as under:

"In this Chapter, unless the context otherwise requires,-
H
· 8HAVESH JAYANTI LAKHANI v. STATE OF 893
MAHARASHTRA & ORS. [S.8. SINHA, J.]

(a) "contracting State" means any country or place outside A
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 B
for processing these arrangements have been statutorily
prescribed. Section 1058 which is relevant for our purpose
reads as under:
\,
"1058 - Assistance in securing transfer of persons.-
c
(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 D
'i 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 India, the Court E
in India or the Central Government may impose such
conditions as that Court or Government deems fit."

In any reciprocal arrangement:
F
(a) the Court, Judge or Magistrate to whom such a request
can be made shall be specified by the Central Government
(Section 1058 (1) and (2).

(b) the form in which such a request can be made shall
be specified by the Central Government (Section G
1058(1 )).

a
(c) After due application of mind, a transfer of person
out of India would be on the basis that "the Court in India
or Central Government may impose such conditions as H
894 SUPREME COURT REPORTS [2009] 12 S.C.R.

A that Court or Government thinks fit" (Section 1058(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
B police officer may without an order from a Magistrate and
without a warrant. arrest any person-

(a) .............. .

c

(g) who has been concerned in, or against whom a
reasonable complaint has been made, or credible
D 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
E 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
F 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?
-
G
(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?
H
BHAVESH JAYANTI LAKHANI v. STATE OF 895
MAHARASHTRA & ORS. [S.B. SINHA, J.]

(iii) Whether the CBI established under the DPSE Act A
has the authority to deal with INTERPOL notices?

MATRIMONIAL DISPUTE AND THE COURT'S POWER OF
REVIEW:

39. The dispute between the appellant and the respondent B
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.
c
40. 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 0
-1 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 E
3.5.2008 and the said information was passed on to the U.S.
Embassy on 9.5.2008.

41. 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 F
member countries and various law 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 G
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. H
896 SUPREME COURT REPORTS [2009) 12 S.C.R.

A 42. A Red Corner Notice has large number of
consequences, some of which are: •
(i) The requesting country may make a deportation
request.
B (ii) The law enforcement agency in India is required to
"take follow up action with regard to the arrest of a
fugitive criminal".
4
(iii) The information emanating from the red corner
c 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.
D
(v) The requesting Embassy can even contact the
Indian police directly.

(vi) Thereafter extradition proceedings may follow.
E 43. 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
F definition in Section 2(c) of the Act in relation to a treaty State
must be one provided for the extradition treaty therewith.
44. Application of the provisions of the Act, thus, in a case .
of this nature must be held to be imperative in character. We
G 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
otheir offences including political offences subject of course to
H
BHAVESH JAYANTI LAKHANI v. STATE OF 897
MAHARASHTRA & ORS. [S.B. SINHA. J.)

the condition that offences relating to illegal tax are not to be A
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. B
45. 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.
c
46. It is but imperative to note the provisions of the Treaty
here vis-a vis the implementation of a Red/ Yellow Comer
Notice.

47. Article 1 of the Treaty provides that the Contracting D
1
States agree to extradite to each other, persons who are
accused of, charged with or convicted of an extraditable
offence.

48. Article 2. provides for the extraditable office. Article 4
provides for political offences which are outside the purview of E
the Treaty. Article 9 provides for the extradition procedures and
i required documents.

49. It is beyond any doubt or dispute that no request for
extradition has been received by the Government of India. It F
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
comer cases concerning Indian citizens. Hence the Extradition G
Treaty is subject to the provisions of the Act. It also stands
admitted that the Appellant being an Indian citizen is entitled
to enforcement of his fundamental rights.

50. The legal position that a person cannot be arrested
H
898 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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:
8
(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
c otherwise.

51. Such an arrest can be effected only pursuant to a
warrant issued by the Magistrate in view of Sections 6, 16 and
348 of the Act or an arrest warrant issued by a foreign country
D 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 'r
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
E
a Treaty -State, is also permissible under a 'Provisional
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
F 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
348 provides that the person so arrested would have to be
released on bail after a period of 60 days. If actual request for
G 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
H
BHAVESH JAYANTI LAKHANI v. STATE OF 899
MAHARASHTRA & ORS. [S.S. SINHA, J.]

provisional arrest according to which in a case of urgency, the A
.. 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. B
52. However, when a request for provisional arrest in terms
of Article 12 is communicated, it must satisfy the requirement
of Section 348 of the Act. Such request from a foreign country
~
must be accompanied by the requisite documents and not a
communication from INTERPOL alone. It will bear repetition to
c ,_
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 sh~had pursued only civil remed:es and the order of the
custody Court was passed under civil remedies. Section 29 of D
"- 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.
E
53. 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 F
made by the latter in this behalf.

54. 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 G
. also declarations, covenants and resolutions passed in different
International Conferences. {See Mis Entertainment Network
(India) Ltd. vs. Mis Super Cassettee Industries Ltd. (2008 (9)
SCALE 69]
H
900 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 55. 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 i~ well known, a conflict
B arises between a treaty and the domestic law or a municipal
law, the latter shall prevail.

56. 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
c concerns an extraditable offence or not has to be determined
by the Magistrate under the Act.

57. We have noticed hereinbefore that the Treaty itself
provides that the same is subject to any Municipal Laws of the
D 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
E an internationalization or tans-nationalization of a foreign
administrative decision. The formal admission procedure by
Interpol cannot be the single cause of internalization. It is just a
precondition for the recognition by the other states.

58. We may however add that, indisputably the appellant
F 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
G (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
H
BHAVESH JAYANTI LAKHANI v. STATE OF 901·
MAHARASHTRA & ORS. [S.B. SINHA, J.)

.. Interpol Website. Mumbai police is said to have found the A
location of the Appellant and his daughter on 3rd May, 2008
which information was passed on to U.S. Embassy on 9th May,
2008.

59. It is also not in dispute that the CBI has an Interpol Wing
B
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.

60. Before, however, we advert to the functioning of CBI
vis-a-vis its role in terms of notices issued by Interpol, it would c
be appropriate to place on record the constitution of Interpol.

APPLICABILITY OF CHAPTER VllA OF THE CODE OF
CRIMINAL PROCEDURE
D
+ 61. 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
VllA 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 E
implementation of the provisions of the reciprocal arrangements
i
for assistance in certain matters and procedure for attachment.

62. The provisions contained in Section 105A onwards of
the Code of Criminal Procedure are subject to additions, F
exceptions or qualifications as may be specified in the
Notification issued by the Central Government.

63. Indisputably where there exists any reciprocal
arrangement, the following are required to be complied with:
,, G
(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 H'
902 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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
B
the Court or the Central Government may impose
such conditions as they may seem fit and proper.

64. It is submitted by the learned counsel that with regard
to dispute of the provisions of international comity
c
(a) any transfer of a human being to another country
goes to the root of fundamentally protected civil liberties.

(b) Chapter VllA of the Code of Criminal Procedure
is hedged in with limitations requiring the intervention of
D 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
E has no role to play.

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

(e) The Court may examining equitable and other
F factors. This is implied from the condition imposing power.

(f) To that extent, the provisions of Chapter VllA shall
be read up to bring it in conformity with Articles 14 and
21 of the Constitution.
G
65. In our opinion, however, the submissions are a clear
misreading of Chapter VllA of the Code of Criminal Procedure
which does not apply in situations of Extradition.

H
BHAVESH JAYANTI LAKHANI v. STATE OF 903
MAHARASHTRA & ORS. [S.B. SINHA, J.]

INTERPOL ((The International Criminal Police A
Organisation).

66. 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 B
'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 C
relation, the INTERPOL aims to facilitate international police
cooperation. Action is taken by it, having regard to the
provisions contained in the Universal Declaration of Human
Rights and keeping in view the limitation of existing municipal
laws of the country concerned. D

It has six departments, namely -

(i) The General Assembly ;

(ii) Executive Committee ; E

(iii) General Secretariat ;

(iv) National Control Bureaus

(v) Advisers ; and F

(vi) Commission for the Control of Interpol Files.

67. We are concerned here only with the National Central
Bureaus. Each INTERPOL member country maintains a G
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
H
904 SUPREME COURT REPORTS [2009) 12 S.C.R.

A operational center and liking platforms between the national and
the international level.

68. It is not in dispute that in terms of Article 32 of the
INTERPOL Constitution each member country is to have a NCB
respoRsible for exchanging information and data for
8
coordination the functioning within its own country, with other
member countries as also with the General Secretariat of the
INTERPOL.

69. The INTERPOL Constitution prohibits any intervention
C 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.
D
70. 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
E 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.

F INTERPOL NOTICES

71. The organizational system of issuing International
notices forms the backbone of its functioning. The Member
countries in terms of notices share critical crime related
G 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
H offence with which the person has been charged, reference to
BHAVESH JAYANTI LAKHANI v. STATE OF 905
MAHARASHTRA & ORS. [S.B. SINHA, J.]
the law under which the charge was made or the conviction was A
.;
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.
B
72. 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 bf 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
c
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
D
. specially to locate minors .
PROCEDURE FOR ISSUING NOTICE

73. Notice in terms of Article 10.5 of the RPI (Rules
governing the processing and communication of police
E
information) of the INTERPOL can be issued by the General
Secretariat either at the request of an authorized entity or on
"i
its own initiative as is the case 1in 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, F
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 G
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 H
-<
906 SUPREME COURT REPORTS [2009] 12 S.C.R.

A pages of the internet appearance of the organization contain
explicitly highlighted warnings of this kind. •
74. 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 from the NCB or international
B
organization or entities with whom the INTERPOL has special
agreements.

75. It may be of some interest also to notice that in the year
2008 alone the INTERPOL issued 3126 Red Corner Notices
c and around 385 Yellow Corner Notices.

76. 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
D 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.
E
BINDING NATURE OF THE INTERPOL NOTICES:

77. The notices issued by INTERPOL are not considered
as administrative decisions on individual cases witn
F 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.
They, however, gain de facto with special relevance to the
G Human Rights through multiplication of its recipients.
78. Intact 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
H supporting evidence will follow the red notice, without delay. The
BHAVESH JAYANTI LAKHANI v. STATE OF 907
MAHARASHTRA & ORS. [S.B. SINHA, J.]

suspect must then go through the standard extradition process. A
""
The bottom line is that "warrants to arrest suspects rnust 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 8
entirely upon voluntary cooperation.

79. 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
c
does not provide a legal basis thereto.

80. The trans-nationalization takes place through the
membership in the organization, through the supervision proviso
of the General Secretariat and the recognition of the D
~
transnational effect of the information.
~

81. 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
E
then gets in touch with the issuing authority and initiates the
necessary steps.

82. Therefore, the member s_tate 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 F
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} G
1
CENTRAL BUREAU OF INVESTIGATION (C.8.1.)

83. A Special Police Force was constituted in the year
1943 by promulgation of an Ordinance by the Government of
H
908 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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
B the cases 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.

84. After the promulgation of the DSPE Act,
c 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
D 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
E April, 1963.
85. Later on the SPE was merged with the C.B.1 and
became one of its Division. In terms of the provisions contained
in Section 3 of the DSPE Act, the Central Government issues
F 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.
G
86. It is at this juncture, a discussion of the DSPE Act
becomes imperative.
The Title and Preamble of DSPE Act reads:-
H
BHAVESH JAYANTI LAKHANI v. STATE OF 909
MAHARASHTRA & ORS. [S.B. SINHA, J.]

"An Act to make provision for the constitution of a special A
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 B
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 C
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."

87. The relevant provisions of the DSPE Act are Sections D
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 E
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.

(2) Subject to any orders which the Central Government
may make in this behalf, members of the said police F
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 G
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, H
910 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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
B discharging the functions of such an officer within the limits
of his station.

3. Offences to be investigated by special pot;ce
establishment. The Central Government may, by
notification in the official Gazette, specify the offences or
c 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
D 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
-
E Section 3.

(2) When by an order under sub-section (1) the powers and
jurisdiction of members of the said police establishment
are extended to any such area, a member thereof may,
subject to any orders which the Central Government may
F 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
G belonging to that police force.
88. 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
H concerned State, we may notice that by reason of the
BHAVESH JAYANTI LAKHANI v. STATE OF 911
MAHARASHTRA & ORS. [S.B. SINHA, J.]

Government of India's Resolution dated 1st April, 1963 the A
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. B

89. 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 C
the Mumbai police. Although, we intend to deal with the said
question separately we may at this juncture notice the relevant
entries in the List I of the Seventh Schedule of the Constitution.
They read:-

a. Entry 8: Central Bureau of Investigation. D

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. E

d. Entry 12: United Nations Organisation.

e. Entry 13: Participation in International Conferences,
associations and other bodies and implementing of F
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
g. Entry 18: Extradition

The legislative power of the Parliament is, therefore, broad
and cover wide ranging legislative field.
H
...
912 SUPREME COURT REPORTS [2009] 12 S.C.R.

A CO-ORDINATION WING OF THE CBI:

90. 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.
B 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 being looked after by the Coordination Wing of CBI,
C 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.
D
JURISDICTION OF C.B.I.

91. The provisions relating to issuance of the notice by
INTERPOL; warrant of arrest by foreign courts vis-a-vis the
E 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.

F POWERS UNDER THE ACT

92. We will deal with this subject in two parts one is stage
before arrest and second stage after arrest.

BEFORE ARREST
G
93. Power to apprehend or investigate a fugitive criminal,
we have noticed hereinbefore, is conferred by Section 14 read
with Section 15 of the Act. Section 14 prescribes the form of
apprehension of a fugitive criminal under an endorsed warrant
H or a provisional warrant. Section 14 of the Act reads as
BHAVESH JAYANTI LAKHANI v. STATE OF 913
MAHARASHTRA & ORS. [S.B. SINHA, J.]

.; hereunder: A

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

94. Warrant can be issued by a foreign country to arrest a 8
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 c
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 D
'I
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''. E
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 F
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 G
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."
H
914 SUPREME COURT REPORTS [2009] 12 S.C.R.

A PROCEDURES REQUIRED TO BE FOLLOWED AFTER A ~

PERSON IS ARRESTED.
•
95. The requirement to arrest a person for the purpose of
his extradition is in two categories - (1) the cases in which India
B 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 Ill 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
c 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 warrant which is
duly authenticated and that the offence is an extraditable one,
the Magistrate shall commit the fugitive criminal to prison. A
D certificate of committal is thereafter sent to the Central
Government.

96. Section 17 states that the endorsed warrant in the case
of the person who is brought before whom is duly authenticated
E 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.
F
97. 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.8.1. for intent
and purport exercises the power of NCB in terms of the Treaty
G and thus derive its authority from INTERPOL itself.

98. 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.
H
BHAVESH JAYANTI LAKHANI v. STATE OF 915
MAHARASHTRA & ORS. [S.B. SINHA, J.]

99. The Ministry of Horne Affairs by a circular letter dated A
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 !CPO-INTERPOL by reason of a B
circular letter dated 17th October, 1966.

100: 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 C
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.

101. We have proceeded on the basis that the power of D
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. E
However, the question in regard to the necessity of warrant
being endorsed or the effect of the Red Corner Notice vis-a-
•
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. F

POWERS UNDER THE CODE OF CRIMINAL
PROCEDURE

102. We may also notice some of the provisions of the
Code of Criminal Procedure laying down the procedures after G
arrest.

103. 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 H
916 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 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
B 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.

104. However, the CBI website states that in case an
action is taken under S. 41 (1 )(g), the matter must be
C immediately referred to the Interpol Wing for onward
transmission to the Government of India to take a decision or
otherwise.

105. In terms of the aforementioned provisions, sanction
D 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.

E 106. 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 conte.mplating the exercise of powers subject to the
provisions of the Extradition Act. Thus the provisions of the
F Code of Criminal Procedure are subject to those in the Act.

LIMITATION OF POWER OF C.8.1. AND STATE POLICE

Jurisdiction of CBI in Red Corner Notice

G 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
H Secretariat General, France, Interpol member countries
BHAVESH JAYANTI LAKHANI v. STATE OF 917
MAHARASHTRA & ORS. [S.B. SINHA, J.]

and various law enforcement agencies of India. A

(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. B
(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 c
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 D
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 E
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. (
F
(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.
G
(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 H
918 SUPREME COURT REPORTS (2009] 12 S.C.R.

A 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.
B
(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."
c
107. 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.

108. Before, however, we devolve thereupon, we may
D notice the Executive Powers of the Union. Any action taken by y

the Union of India through the Ministry of External Affairs or the
C.8.1., on the request of INTERPOL, s Executive Power as
contained in Article 73 of the Constitution. We have noticed
heretobefore the relevant entries in the Legislative List being
E 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 matter relating to criminal law the Concurrent List provides
therefor in Entry Nos. 1 and 2 which read :-

F "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
G 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."
H 109. Indisputably the Central Government has no
BHAVESH JAYANTI LAKHANI v. STATE OF 919
MAHARASHTRA & ORS. [S.B. SINHA, J.)

jurisdiction over the police which is contained in Entry 2 of List A
-1, 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
B
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."
)_

Does this violates the doctrine of federalism is the c
question?

The power of the Central Government vis-a-vis State is in
two categories.

110. The police power of the State in respect of any D
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 E
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 F
the Constitution, there cannot be any doubt whatsoever that in
the matter of investigation of tQe matter committed in a State,
the jurisdiction of the Central <iovernment is excluded.

111. Extradition of a fugitive criminal from India to any other G
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 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
H
920 SUPREME COURT REPORTS [2009] 12 S.C.R.

A Constitution of INTERPOL vis-a-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
B 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 niust act on behalf of the
Central Government. The INTERPOL provides constitution of
NCBs by Member States. All Members are required to
c 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
0
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
E to find out the missing person or fugitive criminal.
112. 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
F 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
G 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
H and not in the Indian territory or within the territorial jurisdiction
BHAVESH JAYANTI LAKHANI v. STATE OF 921
MAHARASHTRA & ORS. [S.B. SINHA, J.]

of the Central Government the consent of the State concerned A
is required to be obtained.

113. 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. B
As the law stands, we place on record such directions by the
superior courts are permissible.

114. 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 i:'t

of the constitution of the INTERPOL. It acts as a authority of the c
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 D
" 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 E
acts, it will be a repetition to state, has an authority of the Central
Government.

. 115. 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
F
to have any application in the facts and circumstances of this
case .
...
116. C.B.I., therefore, is entitled to organize and coordinate
in regard to the request made by INTERPOL. It may have to G
obtain endorsed warrant. It may have to give provisional warrant
in terms of Section 34B of the Act.

117. Surveillance per se under the provisions of the Act
may not violate individual or private rights including the right to H
922 SUPREME COURT REPORTS [2009] 12 S.C.R.

A privacy.

118. 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 UP. and others,
8
[(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-a-vis the
C 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)
D 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.
E
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
characterize as a fundamental right, we do not think that
F the right is absolute."
The law, however, was developed by this Court in R.
Rajagopal v. State of Tamil Nadu [(1994) 6 SCC 632].

G 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
H
BHAVESH JAYANTI LAKHANI v. STATE OF 923
MAHARASHTRA & ORS. [S.8. SINHA, J.]
facts in a given case constitute a right to privacy, Article A
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
8
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.

119. In this case, except giving information in regard to
whereabouts of the Appellant and his daughter, no other action c
was taken.

120. It is in the aforementioned context, we may notice a
decision of this Court in Malak Singh v. State of P&H, [(1981)
1 sec 420]. This case dealt with an application filed by D.
{ 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.
E
121. 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 F
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.

122. The Central Government and in particular the Ministry G
of External Affairs, in our opinion, should frame appropriate
guidelines in this behalf.
123. Indisputably, further action in terms of the Red Corner
Notice has not been and could not be taken against the
H
924 SUPREME COURT REPORTS (2009] 12 S.C.R.

A Appellant, in the instant case.

124. 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
B Act prescribes a request made by a foreign country whether
with it a treaty has been entered into or not. In the absence of
any such request, no proceeding could be 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.
c
125. We have noticed hereinbefore, the affidavit affirmed

D
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
E 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
F 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
G 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 in United States has
H
BHAVESH JAYANTI LAKHANI v. STATE OF 925
MAHARASHTRA & ORS. [S.S. SINHA, J.]

been issued against the Petitioner. Under A
...
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 arresU red
corner notice, it would be very easy for such B
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
c
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: D
i
(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 Government of India and .the United E
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 F
Extradition would be within the framework of
domestic law 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 G
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 H
926 SUPREME COURT REPORTS (2009] 12 S.C.R.

A 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
B 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.

c 126. 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
o matrimonial dispute per se is not considered to be an
extraditable offence. It was furthermore contended that even
violation of an order passed 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
E 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
F
127. 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
G 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
H the dispute between the Appellant and the Respondent No. 6,
BHAVESH JAYANTI LAKHANI v. STATE OF 927
MAHARASHTRA & ORS. [S.B. SINHA, J.]

.... being essentially a Matrimonial dispute, is a private dispute and A
no criminal extraditable offence can be made out of the same,
in the absence of a specific request for extradition.

'·
128. The High Court, thus, in our opinion, committed a
serious error insofar as it failed to take into consideration the B
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 .

129. A fundamental Right of a citizen whenever infringes, c
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 D
-1
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. E
130. 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
F
44A of the Code of Civil Procedure.

131. 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 G
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.
H
928 SUPREME COURT REPORTS [2009) 12 S.C.R.

A 132. 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
B 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.

133. For the aforementioned reasons, the impugned
C 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.

N.J. Appeal allowed.