As regards the contention of the Petitioner that he be granted bail on
merits, it may be noted that the extradition of the Petitioner is sought on two
counts. Firstly, he violated the terms of probation of five years, escaped
during the pendency of the probation and secondly while on probation he
allegedly committed an offence of rape and sexual abuse and endangered the
welfare of a child. Even on facts, I do not find that it is a case where the
Petitioner is entitled to bail.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Extradition Act
BAIL APPLN. 1733/2011
Decided on: 3rd July, 2012
AMIT MOHAN SINGH Vs UOI
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
By this petition, the Petitioner seeks bail pending the enquiry before
the Learned Metropolitan Magistrate under the Extradition Act (in short ‘the
Act’) in regard to LOC No. 2011104148 pursuant to Red Corner Notice No.
A1251/2-2011.
2.
Learned counsel for the Petitioner contends that the Petitioner is a
citizen of United States of America (USA) and his entire family is settled in
USA. The Petitioner has been falsely implicated by a girl with whom he
was familiar and both of them wanted to marry. The arrest of the Petitioner
on 6th July, 2011 is in violation of the Article 21 of the Constitution of India
since the Petitioner has been arrested under a Red Corner Notice and as held
by the Hon’ble Supreme Court in Bhavesh Jayanti Lakhani Vs. State of
Maharashtra & Ors. (2009) 9 SCC 551 a Red Corner Notice is not a warrant
of provisional arrest. Thus, in the absence of any provisional arrest,
Petitioner’s custody was illegal. Further the so-called warrant of provisional
arrest was neither issued by a judicial authority nor endorsed by the Central
Government. It is contended that till date neither the warrant for provisional
arrest has been endorsed by the Central Government nor the extradition
Magistrate has issued warrant of arrest. In his application, the Petitioner
stated that he was provisionally arrested in view of the facts informed by the
Respondents. The Petitioner was kept in dark and no grounds of arrest were
informed to him. The Petitioner was arrested on 6th July, 2011 and in terms
of Section 34-B(2) of the Extradition Act, the Petitioner could have been
kept in custody only for 60 days. He was kept in custody beyond the said
period as the documents for extradition from USA were received only on
15th September, 2011. The reply of the Union Government that the
documents were received on 19th August, 2011 on the face of it is incorrect.
Since there is no provisional warrant of arrest till date, the Petitioner be
released on bail. On merits it is contended that the complainant and the
Petitioner were on friendly terms. There is no likelihood of the Petitioner
absconding and thus bail be granted to him.
3.
Learned Additional Solicitor General for the Union of India on the
other hand contends that the Petitioner himself in his application for bail
admits that he was provisionally arrested on 6th July, 2011 under the
provisions of Section 34(B) of the Act. A Red Corner Notice was received
on 23rd February, 2011 which also contained the warrants for provisional
arrest. Hence the decision in Bhavesh Jayanti Lakhani (supra) is not
applicable to the facts of the present case. When the Petitioner was
produced before the Learned Metropolitan Magistrate pursuant to his arrest
under Section 41(1)(g) Cr.P.C., Kalandra was filed, which contained the
documents relating to the look-out circular which had the Red Corner Notice
along with the warrant of provisional arrest. Hence, the contention of the
learned counsel for the Petitioner that till date warrant of arrest has not been
issued is incorrect. The letter of Sh.D.K. Ghosh, Deputy Passport Officer-
Extradition, Under Secretary dated 18th July, 2011 addressed to the
Assistant Director, CBI- INTERPOL requesting for provisional arrest is only
as a matter of abundant caution and does not mean that there was no warrant
for provisional arrest. The Learned Magistrate in terms of Section 34-B(2)
of the Act immediately informed the Central Government about the arrest of
the Petitioner which was duly communicated to the National Central Bureau
(NCB) Washington. The Ministry of External Affairs responded through its
letter dated 18th July, 2011 forwarding a copy of Note Verbale No. 2011-
689/CONS dated 11th July, 2011 requesting for provisional arrest of the
Petitioner for the purpose of extradition as their exists an extradition treaty
between the two countries.
4.
I have heard learned counsel for the parties.
5.
The Petitioner was arrested at Indira Gandhi International Airport
under Section 41(1) G Cr.P.C. pursuant to a Look Out Circular (LOC)
No.2011104148 on the basis of the INTERPOL’s Red Corner Notice bearing
No.A1251/2-2011. Red Corner Notice was pursuant to a request of USA for
the extradition of the Petitioner, who is a citizen of USA qua offences on
count of rape of first degree and second degree in violation of the New York
State Penal Law Sections 130.35 and 130.30 entailing a maximum sentence
of 25 years and 7 years imprisonment respectively besides sexual abuse and
endangering the welfare of a child. A warrant for arrest of the Petitioner was
issued by the Supreme Court of County of Nassau in the State of New York
on 17th August, 2009. The Petitioner is also wanted for probation violation
as he pled guilty on December 21, 2007 and was convicted of attempted
criminal possession of a controlled substance in the 5th degree. The
Petitioner was sentenced to 5 years probation. The Petitioner violated the
condition of his probation when he failed to report to his Probation Officer
on two occasions pursuant to directives and refused to provide a urine
sample to test for the use of alcohol and controlled substances. The warrant
of arrest was accompanied by a certificate of authentication dated 12th
August, 2011 by the First Secretary, Mineola, Washington DC.
6.
The Red Corner Notice of the requesting country, i.e., the USA was
published on 23rd February, 2011 along with the details of the Petitioner’s
characteristics marks, judicial information, conviction he was facing, arrest
warrant and the action to be taken. The Red Corner Notice provided that the
same be treated as a formal request for provisional arrest with a further
request to apply for provisional arrest in conformity with the National Laws
and/or the applicable bilateral and multilateral treaties. The Petitioner was
formally arrested while entering the Airport for going to Bangkok by Flight
No.7397 on 6th July, 2011 under Section 41(1) G Cr.P.C. and produced
before the learned Metropolitan Magistrate. Information in this regard was
given to the Additional Director, Interpole and pursuant thereto a request
was made to NCB-Washington DC to send the relevant documents
immediately for process of extradition of the Petitioner through proper
diplomatic channel. Vide letter dated 18.7.2011 Sh. D.K.Ghosh requested
the CBI for provisional arrest of the Petitioner for the purpose of extradition
under Article 12 of the Extradition Treaty currently operative between India
and USA and 34(b) of the Indian Extradition Act, 1962 (in short, ‘the Act’)
enclosing a copy of Note Verbale No.2011-689/CONs dated 11th July, 2011.
This letter of 18th July, 2011 is the bone of contention in the present
petition.
7.
According to the learned Additional Solicitor General, the Red Corner
Notice consists of the provisional arrest warrant duly authenticated and
received from the requesting State and thus, this second request for
provisional arrest warrant was an idle formality after the Petitioner was
arrested on 6th July, 2011 though initially under Section 14(1)(G) Cr.P.C.
However, on being produced before the learned Metropolitan Magistrate his
remand was given under Section 34(B)(2) of the Act on the basis of the
provisional arrest warrant already received with the Red Corner Notice.
Counsel for the Petitioner puts it the other way round and states that till 18th
July, 2011, the CBI did not even have the provisional warrant of arrest and
the Petitioner has not been arrested till date pursuant to a provisional
warrant. As the custody of the Petitioner from 6th July, 2011 to 18th July,
2011 and even thereafter is illegal, thus the Petitioner is entitled to be
released on bail.
8.
Section 41(1)(G) Cr.P.C. gives power to Police to arrest, without an
order or warrant from a Magistrate, any person against whom there is a
credible information or reasonable complaint or reasonable suspicion that he
has committed an act at any place out of India which if committed in India
would have been punishable as an offence and for which he is liable to be
apprehended/detained under custody in India under any law for extradition.
Since there was Look Out Circular on the basis of Red Corner Notice which
contained all the details, prima facie, there was a credible information of the
Petitioner having committed an extraditable offence and thus the police
officer at Indira Gandhi International Airport was justified in arresting the
Petitioner. On being arrested, the Petitioner was produced before the learned
Metropolitan Magistrate who remanded him to judicial custody.
9.
A perusal of the documents accompanying the Red Corner Notice
which have been received through diplomatic channel contained a request
for provisional arrest. Thus, prima facie, the requirement of Section 34B(2)
of the Act stood satisfied when the Petitioner was remanded to the judicial
custody of the learned Metropolitan Magistrate. A further request for
provisional arrest made by the Government of USA would not nullify an
earlier request for provisional arrest.
10. The Division Bench of this Court in Ram K. Mahbubani v. Union of
India, 2008(4) JCC2466 held as under:
“27. We do not need to delve further into this question since there is no
repugnancy between the Extradition Act or any municipal enactment in the
USA on the one hand and the provisions of the Indo-US Treaty on the other.
In fact, so far as India is concerned, the position is to the contrary.
Section 3(3)(c)of the Extradition Act stipulates that ''Where the notified
order relates to a treaty State the Central Government may, by the same or
any subsequent notified order, render the application of this Act subject to
such modifications, exceptions, conditions and qualifications as may be
deemed expedient for implementing the treaty with that State'. In other
words, Parliament has delegated the power of modification of the provisions
of extradition to the Central Government. This discussion is necessary for
the reason that the provisions of Section 34-B (or for that matter
Section 16 falling in Chapter- III) does not contain terms empowering the re-
arrest of a fugitive criminal after his discharge or release from provisional
arrest. In our opinion, the re- arrest of a fugitive criminal is impliedly
sanctioned under the Extradition Act. It seems to us that Article 12(5) of the
Indo-US Treaty sufficiently empowers the re-arrest of a fugitive criminal
after his release from provisional arrest. By operation of Section 3(3)(c) of
the Extradition Act the said Article of the Indo-US Treaty assumes the
qualities of enforceable law. So far as the position obtaining in the USA is
concerned, the provisions of the Indo-US Treaty would override
municipal/domestic legislation that may have been previously prevailing in
the event of any repugnancy.
29. The starting point of the period prescribed by Section 24 is the date on
which the fugitive criminal (Petitioner) has been committed to prison. The
Section does not speak of an arrest. Advanced Law Lexicon clarifies the
position thus:
'Arrest' and 'commit'. By arrest is to be understood to take the party into
custody. To commit is the separate and distinct act of carrying the party to
prison, after having taken him into custody by force of the execution'.
'Commit' has been explained in Black's Law Dictionary to connote the
sending of a person to prison, and/or directing an officer to take a person to a
penal institution. The same Dictionary defines 'arrest' as : a seizure or
forcible restraint; the taking or keeping of a person in custody by legal
authority especially in response to a criminal charge; the apprehension of
someone for the purpose of securing the administration of the law, especially
for bringing that person before a Court. The words are not synonymous to
each other. In the case in hand, there was no committal of the Petitioner
prior to 18.8.2008, as stands clarified by the Order dated 25.8.2008. If any
doubt remains, it would be dispelled by reading further into the Section. The
fugitive criminal should have been committed to prison either to await his
surrender or for his return to the concerned State. We must revert back to
Section 7(4) which empowers the Magistrate to commit the fugitive to
prison if the Magistrate is of the opinion that a prima facie case has been
made out in support of the requisition of the State concerned. Thereafter,
Section 8 speaks of the surrender of the fugitive criminal to the concerned
State. Both these Sections are in Chapter-II of the Extradition Act. In those
cases where Chapter-III and not Chapter-II is applicable, if upon making the
secretarial, punctilious or formal inquiry, as postulated by Section 17, the
Magistrate is satisfied that the endorsed Warrant for the apprehension of the
fugitive criminal is duly authenticated and that the offence of which the
person is accused or has been convicted is an extradition offence, the
Magistrate shall commit the fugitive criminal to prison to await his return,
presumably to the State concerned. Section 18 clarifies the manner in which
the 'return' is to be effected by the Central Government. From this analysis,
it is obvious that the words 'surrender' and 'return' are terms of art, having
special connotation in the context of the Extradition Act. Our conclusion in
the present case is that the prescription contained in Section 24 of the
Extradition Act would commence on 18.8.2008 and two months would
ordinarily have to be computed from that date.”
11. With regard to binding nature of the INTERPOLE notice, their
Lordships in Bhavesh Jayanti Lakhani (Supra) held that:
“83. The Ministry of Home Affairs by a Circular Letter dated 18-3-1949
issued to all the State Governments and Union Territories established the
Intelligence Bureau as ICPO-Interpol, the National Central Bureau for India.
CBI was established as the representative of India for the purpose of
correspondence with ICPO-Interpol by reason of a Circular Letter dated 17-
10-1966.
84. We have noticed hereinbefore that by a Resolution dated 1-4-1963 the
Government of India gave to CBI the powers of investigation of crimes,
handled by the Intelligence Bureau of SPE and for participation as NCB in
the work connected with Interpol. It is of significance to notice that CBI in
its website maintains that it handles all procedures related to extradition and
issuance of Interpol notices.
85. We have 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 corner
notice is an absolute one. Similarly, the power to find out a missing person
in terms of the yellow notice is also absolute. However, the question in
regard to the necessity of warrant being endorsed or the effect of the red
corner notice vis-à-vis the fundamental right of an individual in terms of
Article 21 of the Constitution of India as also his right of privacy and the
loss of reputation would be dealt with at an appropriate stage.”
96. Extradition of a fugitive criminal from India to any other foreign
country, irrespective of the fact as to whether any treaty has been entered
into or with that country, is within the exclusive domain of the Central
Government. The extradition of a person from India to any other foreign
country is covered by the Parliament Act, namely, the Act. Keeping in view
the Constitution of Interpol vis-à-vis the resolutions adopted by CBI from
time to time, although a red corner notice per se does not give status of a
warrant of arrest by a competent court, it is merely a request of the issuing
authority to keep surveillance on him and provisionally or finally arrest the
wanted person for extradition.
97. The provisions of the Act and the treaty are required to be given effect
to. Whenever a request is received from Interpol the authority must act on
behalf of the Central Government. Interpol provides constitution of NCBs by
Member States. All members are required to constitute NCBs which should
be an authority within the meaning of the provisions of Interpol for
coordination of the functioning within the Member States and/or 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 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.
100. CBI has different roles to play. When it acts as NCB, being a
department of CBI, it acts under a treaty. It acts in terms of the Constitution
of Interpol. It acts as a authority of the Central Government. By reason of
such an act it does not carry out investigation, although it is entitled therefor.
It functions as an NCB which is to give effect to the request received from
Interpol and/or foreign country. When it does so, indisputably it has to apply
its mind. It can take any action only because it is lawful to do so. It does not
exercise absolute discretion. It has to act if a case therefor has been made out
including the question as whether any extraditable offence has been made
out. For the aforementioned purpose it does not Act as an agency within the
four corners of the DSPE Act. It acts, it will be a repetition to state, as an
authority of the Central Government.
101. CBI, therefore, is entitled to organise and coordinate in regard to the
request made by Interpol. It may have to obtain endorsed warrant. It may
have to give provisional warrant in terms of Section 34-B of the Act.”
12. In Bhavesh Jayanti Lakhani (supra), their Lordships were considering
the issue of a Red Corner Notice in a matrimonial dispute. Thus, it was held
that when the fundamental rights of a person are affected, the Court is bound
to interfere in the same and examine whether the offence committed is an
extraditable one or not. It may be noted that in Bhavesh Lakhani (supra) the
accepted position was that no request for extradition of the Appellant therein
was made to the Executive Government of India. It was further conceded at
the bar that a Red Corner Notice by itself cannot be the basis of arrest or
transfer of an Indian citizen to a foreign jurisdiction. It was held that such
an arrest can be effected only pursuant to a warrant issued by the Magistrate
in view of Section 6, 16 and 34B of the Act or an arrest warrant issued by a
foreign country and endorsed by the Central Government under Section 15
of the Act. Further when a request for provisional arrest in terms of Article
12 is communicated it must satisfy the requirement of Section 34B of the
Act. Such request from a foreign country must be accompanied by the
requisite documents and not a communication alone.
13. Article 12 of the Extradition treaty between USA and India reads as
under:
“12.Provisional arrest.-
(1)In case of urgency a contracting State may request the provisional arrest
of the person sought pending presentation of the request for extradition. A
request for provisional arrest may be transmitted through the diplomatic
channel. The facilities of the International Criminal Police Organization
(Interpol) may be used to transmit such a request.
(2)The application for provisional arrest shall contain:
(a)a description of person sought;
(b)the location of the person sought, if known;
(c)a brief statement of the facts of the case including, if possible, the time
and location of the offence;
(d)A description of the laws violated;
(e)a statement of the existence of a warrant of arrest or a finding of guilt or
judgment of conviction against the person sought; and
(f)a statement that a request for extradition for the person sought will follow.
(3)The requesting State shall be notified without delay of the disposition of
its application and the reasons for any denial.
(4)A person who is provisionally arrested may be discharged from custody
upon the expiration of sixty (60) days from the date of provisional arrest
pursuant to this Treaty if the executive authority of the requested State has
not received the formal request for extradition and the supporting documents
required in Article 9.
(5)The fact that the person sought has been discharged from custody
pursuant to Para (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.”
14. In the present case the Red Corner Notice contained all necessary
details as contemplated in Article 12(2) of the Extradition treaty like the
photographs, details of identification, likely place of visit, a brief statement
of the facts of the cases, the conviction and sentences awarded, a statement
of existence of warrant of arrest, action to be taken if traced and request for
provisional arrest. Thus the facts of the present case are not akin to that of
Bhavesh Jayanti Lakhani. I find force in the contention of the learned ASG
that the Red Corner Notice contained a request for provisional arrest and the
remand of the Petitioner under Section 34B(2) of the Act after he was
produced before the learned Magistrate cannot be faulted.
15. Learned ASG has strongly contended that Article 12 of the
Extradition Treaty, having been notified under Section 3 of the Act, entitles
the respondents to arrest the Petitioner and said arrest is a provisional arrest
under the Extradition Act. Since the treaty between India and USA is
notified, its terms get incorporated under the Act in exercise of the powers
under Section 3 modifying the Act to that extent and enables provision for
arrest to be incorporated in the Act.
16. As regards the contention of the Petitioner that he be granted bail on
merits, it may be noted that the extradition of the Petitioner is sought on two
counts. Firstly, he violated the terms of probation of five years, escaped
during the pendency of the probation and secondly while on probation he
allegedly committed an offence of rape and sexual abuse and endangered the
welfare of a child. Even on facts, I do not find that it is a case where the
Petitioner is entitled to bail.
17.
I find no merit in the petition. The petition is dismissed.
Sd/-
(MUKTA GUPTA)
JUDGE
JULY 3, 2012
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