Case: Bhavesh Jayanti Lakhani Vs. State Of Maharashtra

SCC 57] , this Court protected the Right to Privacy of a prostitute. It was held that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he likes. In this case, except giving information in regard to whereabouts of the Appellant and his daughter, no other action was taken. It is in the aforementioned context, we may notice a decision of this Court in Malak Singh v. State of P&H, [(1981) 1 SCC 420] . This case dealt with an application filed by applicants seeking to remove their names from the surveillance register maintained by the Police Station of their jurisdiction under the Punjab Police Rules. This Court while upholding the jurisdiction of the Punjab Police made observations on the mode of surveillance. The case directly or indirectly laid great emphasis on certain grey areas with regard to carrying out of the activities of surveillance on the part of the CBI and the police authorities. In Malak Singh (supra) this Court clearly contemplated surveillance by the police in pursuance to the rules under which they are being done. No such guideline, however, has been laid down in respect of surveillance conducted pursuant to a Red Corner or Yellow Corner Notice. The Central Government and in particular the Ministry of External Affairs, in our opinion, should frame appropriate guidelines in this behalf. Indisputably, further action in terms of the Red Corner Notice has not been and could not be taken against the Appellant, in the instant case. It is conceded at the Bar that the proceedings for extradition of a citizen could be initiated provided the conditions precedent laid down in terms of the provisions of the Act. The Act prescribes a request made by a foreign country whether with it a treaty has been entered into or not. In the absence of any such request, no proceeding could be initiated. In the aforementioned context, it is not necessary for us to enter into the question as to whether the Appellant could be arrested or not. We have noticed hereinbefore, the affidavit affirmed on behalf of CBI while dealing with the question of the limitation of its power. In addition thereto CBI has also stated that: (i) In the instant case, the averments of the appellant that prima facie the case arises out of a matrimonial dispute are all questions that are required to be gone into either by the Extradition Court appointed by the Central Government as per section 5 of the Act or subsequent to the Extradition of the Petitioner to the country in question. (ii) In any event, there has been no arrest of the Petitioner as the CBI is awaiting the necessary papers from the American Government. (iii) Also, the fact that India is not a party or signatory to the Hague Convention on the Civil Aspects of International Child Abduction does not make any difference in the instant case. (iv) Furthermore, it is incorrect to say that the Petitioner is being treated like a commodity. A warrant of arrest by a competent court in United States has been issued against the Petitioner. Under International obligations, the CBI is required, when so requested to act on the red corner notice issued pursuant to the warrant of arrest. If fugitives are not apprehended pursuant to the warrant of arrest/red corner notice, it would be very easy for such persons to escape punishment. The petitioner has rights under the Act as well as the judicial process in United States (if he is ultimately extradited). (v) Lastly, that till date the CBI has not received any request from the US authorities for the arrest and Extradition of the Petitioner. The Ministry of External Affairs, too, through its Joint Secretary (Counsular), Mr. P.M. Meena, by means of an affidavit dated 15th April 2009 admitted that: (i) It is the Ministry of External Affairs, Government of India, New Delhi which is the nodal agency for Extradition as per the Act and the Extradition Treaty between the Government of India and the United States of America. (ii) On receipt of a Red Corner Notice, it is not the invariable practice to arrest the person but efforts are made to trace him though the local police. The consideration of the question of arrest and Extradition would be within the framework of domestic law including Indian Extradition Act and the Extradition Treaty with the Requesting Country. Extradition of a person would only arise after request for extradition is formally received from the country. In the present case, no formal request has been received from the United States authorities. (iii) Moreover, as per the prevalent practice, in cases pertaining to matrimonial affairs, the view taken is that such matters may not generally be held to satisfy the test of dual criminality. (iv) In any case, since the instant case, is a case of domestic law, the view of the Ministry of Law would be called for and taken into consideration. It is, therefore, clear that intervention by the Ministry of External Affairs is crucial when a request is received by it from a foreign country. The learned Attorney General states before us that the Ministry of External Affairs invariably refers such matter to the Ministry of Law and Justice for his opinion as to whether in a given situation an extraditable offence has been made out or not. We have been informed that kidnapping in case of matrimonial dispute per se is not considered to be an extraditable offence. It was furthermore contended that even violation of an order passed by a court of competent jurisdiction in U.S.A. being punishable for imprisonment for six months only, the Appellant cannot be extradited for commission of the said offence also. We may, however, place on record that United States has enacted the International Parental Kidnapping Crime Act of 1993. However, the law in India shall be governed by the provisions of the Indian Penal Code, 1860.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The CBI has also filed its counter affidavit before this Court stating that the Indian Interpol Wing works as an interface between the Interpol Secretariat General, France, Interpol member countries and various law enforcement agencies of India. One of its functions is to circulate the Red Corner Notice as also Yellow Corner Notices issued by the Interpol Secretariat General at the behest of any member country within India. The Red Corner Notice is issued to the border control authorities and others so as to enable them to effect an arrest along with details and papers including a warrant from the originating country. An arrest may also be made under the said Act. The Ministry of External Affairs works for the administrative watching of the Act.A Red Corner Notice has large number of consequences, some of which are:(i) The requesting country may make a deportation request.(ii) The law enforcement agency in India is required to "take follow up action with regard to the arrest of a fugitive criminal".(iii) The information emanating from the red corner notice is required to be distributed all over the Interpol website.(iv) The requesting Embassy would instruct the CBI to carry out its instructions for surveillance, arrest and detention.(v) The requesting Embassy can even contact the Indian police directly.(vi) Thereafter extradition proceedings may follow.Indisputably, therefore, when a proceeding under the Act is initiated, the civil liberty of a person would be directly affected. The provisions of the Act, therefore, should be strictly construed. Any request for extradition therefore must undergo the strict scrutiny test. Extradition offence keeping in view its definition in Section 2(c) of the Act in relation to a treaty State must be one provided for the extradition treaty therewith.Application of the provisions of the Act, thus, in a case of this nature must be held to be imperative in character. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence and other offences including political offences subject of course to the condition that offences relating to illegal tax are not to be treated to be a political offence. Sectionsprovides for the mode and manner in which a request for extradition of a person is required to be made by the concerned country. The requirements are specific in nature and are required to be accompanied by a large number of documents.It is accepted at the Bar that no request has yet been made to the Executive Government of the Government of India for extradition of the Appellant upon compliance of the provisions of Sectionor otherwise.It is but imperative to note the provisions of the Treaty herevis the implementation of a Red/ Yellow Corner Notice.Article 1 of the Treaty provides that the Contracting States agree to extradite to each other, persons who are accused of, charged with or convicted of an extraditable offence.Article 2 provides for the extraditable office. Article 4 provides for political offences which are outside the purview of the Treaty. Article 9 provides for the extradition procedures and required documents.It is beyond any doubt or dispute that no request for extradition has been received by the Government of India. It could act only when a request is received. It is accepted at the Bar that Red Corner Notice by itself cannot be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction. There is furthermore no dispute that the Act cannot be bypassed in red corner cases concerning Indian citizens. Hence the Extradition Treaty is subject to the provisions of the Act. It also stands admitted that the Appellant being an Indian citizen is entitled to enforcement of his fundamental rights.The legal position that a person cannot be arrested without any authority of law again is not denied or disputed. Thus, the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions:(i) That the offence should be counted as one by Indian Law as well, and(ii) The person must be liable to be arrested in Indiaeither under any law relating to extradition, or otherwise.Such an arrest can be effected only pursuant to a warrant issued by the Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it is only the Magistrate who issues the warrant for arrest subject of course to the condition that the Central Government had ordered a Magisterial Inquiry in terms of Section 5 of the Act. Such an order of arrest, emanating from a Treaty