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Judgment
G.M. Akbar Ali, J.—Petitioner has been filed seeking a direction to call for the proceedings in X Crime No. 559 of 2010 on the file of the
Respondents and to quash the same.
The case of the Petitioner in brief is as follows:
The Petitioner, a Srilankan Tamilian is temporarily residing at at 3F, III Floor, Seetha Nagar, Nungambakkam, Chenai-34. He is engaged in the
business of Garments Export in Colombo, Sri Lanka, and is known to all businessmen in the Colombo business circle. He visited Chennai on
30.4.2006 for a business deal and also for his treatment. The Petitioner has been staying in India till date without any adverse remakr against him.
The Petitioner would submit that he has been scrupulously following the rules and regulations regarding his stay and a certificate was issued by the
Inspector of Police, Nungambakkam to the effect that he has no adverse remark as per the records available in F3 Nungambakkam Police
Station, Chennai.
While so, on the strength of a red alert notice dated 7.7.2010, issued by the Interpol, New Delhi in pursuant to an arrest warrant issued by a
competent court at Srilanka to arrest the Petitioner, a case has been registered by the City Crime Branch u/s 41(1)(g) of Cr.P.C in Cr. No. 559 of
2010. The Petitioner was arrested on 2.11.2010 and he was informed about the red alert notice.
Aggrieved by registration of the case against the Petitioner u/s 41(1)(g), the Petitioner is now before this Court seeking to quash the entire
proceedings on various grounds.
To demonstrate that the impugned proceedings are liable to be quashed, Mr. Ar. L. Sunderasan the learned Senior Counsel for Mr. S.
Pugalenthi, learned cousnel for the petiitoner would raise the following grounds:
a) the Petitioner has been staying in India with valid visa and has not violated any immigration law and has been permitted to stay till 2011
b) it came to the knowledge of the Petitioner that a red alert notice was issued by Government of Sri Lanka through the Interpol and in that event
the provisions of the Extradition Act 1962 is applicable and the Respondent has failed to follow the provisions of the Act.
c) As per the provisions of the Act, no request has been sent to Govt of India from the Government of Sri Lanka for the extradition of the
Petitioner
d) The Petitioner is not a fugitive seeking asylum in India and he has not committed any act which is an offence under any of the Indian Penal Laws.
The learned senior counsel strongly placed his reliance to the decision reported in Bhavesh Jayanti Lakhani Vs. State of Maharashtra and
Others, .
The 1st Respondent has filed a counter stating that as per the red alert notice dated 7.7.2010 issued by the Sri Lankan Government, Interpol at
New Delhi issued orders to arrest the Petitioner and therefore the provisions under Sec41(1)(g) was invoked and the Petitioner was arrested and
produced before the learned Judicial Magistrate. According to the Respondents, invoking the provision u/s 41(1)(g) of Cr.P.C is legally valid in the
light of the red alter notice and an open warrant issued against the Petitioner by the Sri Lankan Government.
Heard and perused the materials available on record.
The point for consideration arises out is whether the initiation of proceedings u/s 41(1)(g) of Cr.P.C is maintainable at the receipt of Red Corner
Notice.
In order to appreciate the contentions of the learned Counsel for the Petitioner, it is relevant to mention the relevant provisions of the
Extradition Act. An elaborate procedure has been provided in Chapters II and III of the Extradition Act to regulate such a case where there are no
extradition arrangements have been made for the return of a fugitive criminal to foreign States and Chapter III deals with case where there are
extradition arrangements have been made. u/s 4 of the Extradition Act, a requisition for the surrender of a fugitive criminal of a foreign state may be
made to the Central Government by a diplomatic representative of the foreign State or by the Government of that foreign State communicating with
the Central Government through its diplomatic representative in that State or Country and if neither of these modes is convenient, the requisition
shall be made in such other mode as is settled by the arrangements made by the Government of the foreign State with the Government of India.
u/s 5 of the Extradition Act, if the Central Government thinks it fit, it may issue an order to the Magistrate having jurisdiction in the matter to
enquire into the case. u/s 6 of the Extradition Act, the Magistrate on receipt of an order of the Central Government u/s 5 has been empowered to
issue a warrant for the arrest of a fugitive criminal. u/s 7 of the Extradition Act, the procedure for holding an enquiry by a Magistrate has been
provided for an for the purpose of holding an enquiry, he will take such evidence as may be produced in support of the requisition of the foreign
State and on behalf of the fugitive criminal. The Magistrate if after holding enquiry is of the opinion that a prima facie case is not made out in
support of the requisition of the foreign State, shall discharge the fugitive criminal. However, if a prima facie case is made out, he may commit the
fugitive criminal to prison to await orders of the Central Government and shall report he result of his enquiry to the Central Government and shall
forward together with such report any written statement which the fugitive Criminal may desire to submit for the consideration of the Central
Government.
Section 8 of the Extradition Act provides that if the Central Government forms an opinion that a fugitive criminal ought to be surrendered to the
foreign State, it may issue a warrant for the custody and removal of a fugitive criminal and for his delivery at a place and to a person to be named in
the warrant.
As regards the return of a fugitive criminal to a foreign State where there are extradition arrangements made u/s 14 of the Extradition Act, the
futitive criminalmay be apprehended in India under an endorsed warrant or a provisional warrant. u/s 15 of the Extradition Act where a warrant for
the apprehension of a fugitive criminal has been issued in any foreign State to which this Chapter applies and such fugitive criminal is or is suspected
to be, in India, the Central Government may if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse
such warrant in the manner prescribed and the warrant so endorsed shall be sufficient authority to apprehend the person name in the warrant and
to bring him before any Magistrate in India,
Section 16 of the Extradition Act provides that any Magistrate may issue a provisional warrant for the apprehension of a fugitive criminal form
any foreign State, who is or is suspected to be in or in his way of India, on such information and under such circumstances, as would in his opinion
justify the issue of a warrant if the offences of which the fugitive criminal is accused or has been convicted had been committed within his
jurisdiction and such warrant may be executed accordingly. Sub-section (2) of Section 16 provides that a Magistrate using a provisional warrant
shall send a report of the issue of warrant together with the information or a certified copy thereof to the Central Government and the Central
Government may if it thinks fit, discharge the person apprehended under such warrant. Sub-section (3) of Section 16 provides that a fugitive
criminal apprehended on a provisional warrant may, from time to time, be remanded for such reasonable time, not exceeding seven days at one
time, as under the circumstances seems requisite for the production of an endorsed warrant.
The procedure prescribed for a Magistrate for the issue of a warrant and holding an enquiry into the matter on receipt of a requisition of the
Central Government is a very exhaustive procedure and it may be possible that this may entail an amount of delay which would enable a fugitive
criminal to escape. For this, however, there is a double safeguard provided in the Act itself. On receipt of the information from a foreign State for
the surrender of a fugitive criminal, the Magistrate can directly be approached u/s 9 of the Extradition Act. Section 9 clearly provides that in such a
case, the Magistrate may issue a warrant of arrest of a person on such information and on such evidence, as would in his opinion justify the issue of
warrant.
u/s 25 of the Extradition Act, a provision has also been made for the release of a person arrested on bail and the provisions of the Code of
Criminal Procedure relating to bail have been applied in such cases as well and a fugitive criminal if brought before a Magistrate, he shall have the
same powers as a Court of Sessions under the Code.
In this case, the Respondent seems to have arrested the Petitioner u/s 41(1)(g) of the Code of Criminal Procedure whereby Police Officer has
been empowered to arrest the person without an order from the Magistrate and without a warrant. The Section 41(1)(g) is reproduced below:
When police may arrest without warrant:
Any police Officer may without an order form a Magistrate and without a warrant, arrest any person:=
(a) (g)
(g) who has concerned in, or against whom a reasonable complaint has been made, or credible information has been received or a reasonable
suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been
punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in
India:
In Bhavesh Jayanti Lakhani Vs. State of Maharashtra and Others, , the Apex Court has held as follows:
Arrest of a fugitive criminal can be made at the instance of the Central Government only when a request to that effect is received from the
foreign country and not otherwise. It further held that arrest of a fugitive criminal must be effected in terms of the provisions of the Extradition Act
and a person wanted for an offence in a foreign jurisdiction may be arrested on fulfilment of the following conditions:
That the offence should be counted as one by Indian Law as well and
That the person must be liable to be arrested in India either under any law relating to extradition or otherwise .
The Apex Court has further held that
We may, however, place on record that strictly construed in a case involving extradition. Section 41(1)(g) of the Code may not have any
application.
It is sought to be clarified that Section 41(1)(g) of the Code of Criminal Procedure clearly contemplates the power of the police to arrest under
any law relating to extradition"" thereby contemplating the exercise of powes subject to the provisions of the Extradition Act. Thus, the provisions
of the Code of Criminal Procedure are subject to those in the Act.
The Indian Interpol wing works as an interface between the Interpol General Secretariat, France,Interpol Member Country and various law
enforcement agenices of india. One of its function is to circulate red corner notices and also yellow corner notices issued by the interpole General
Secretariat at the instance of any member country within India. The red corner notice is issued to the Border control authorities and others so as to
enable them to effect an arrest along with details and papers including a warrant from the originating country.
A red corner notice has the following consequences:
(i) The requesting country may make a deportation request
(ii) The law enforcement agency in India is required to ""take follow up action with regard to the arrest of a fugitive criminal
(iii) The information emanating from the red corner notice is required to be distributed all over the Interpol web site
(iv) The requesting Embassy would instruct CBI to carry out its instructions for surveillance, arrest and detention
(v)The requesting Embassy can even contact the Indian police directly.
(vi)Thereafter extradition proceedings may follow.
(As per Bhavesh Jayanti Lakhani Vs. State of Maharashtra and Others,
Section 41(1)(g) is applicable only on the condition that the offence committed at any place out of India should be counted as an offence by
Indian Law. This provision cannot be pressed into service when there is a Red Corner Notice. As stated earlier, the consequence of the red corner
notice is that the requesting country may make deportation request or to take follow up action with regard to the arrest of fugitive criminals.
However, the main criteria is that the extradition proceedings has to follow. In that event, the Respondent is to follow the procedure prescribed for
a Magistrate for issuance of warrant in holding the enquiry into the matter on receipt of requisition of the Central Government. u/s 9 of the Act, the
Magistrate may issue a warrant of arrest. Therefore, a formal request is yet to be made by the Srilankan Government for the extradition of the
Petitioner and registration of First Information Report u/s 41(1)(g) of Cr.P.C is not proper.
For the reasons stated above, the criminal original petition is allowed and the proceedings in X Crime No. .559 of 2010 on the file of the
Respondent are quashed.