Case: Bhavesh Jayanti Lakhani Vs. State Of Maharashtra

Appellant and the respondent No. 6 are citizens of India. He went to Michigan to pursue his studies in M.S. (Computer Engineering) between August, 1998 and May, 2000. He also worked as a Software Engineer at California in a company named Broadbase Software upto 2001. He was later on employed as a Technical Lead in a Government Contract Firm at California known as Ancore Corporation between 2001 and 2003.Appellant married the respondent No. 6 on 6.04.2002 at Mumbai. They moved to California on 19.04.2002 and stayed there till 2005. Out of the said wedlock, a daughter Eesha was born on 26.04.2003. Marital life of the Appellant and the Respondent No. 6 was however not happy. According to the respondent No. 6, she was continuously being harassed. She applied for grant of permanent asylum on 1.07.2003 allegedly under coercion from the appellant. Later on the respondent No. 6 allegedly moved to her sisters house at Sharon Massachusetts, USA.PROCEEDINGS IN USAShe filed a complaint with the Sharon Police Department on 26.04.2005. On or about 09.05.2005 an application before the Probate and Family Court of Massachusetts for grant of divorce was filed by her. In the said proceeding, she also sought for orders of custody of her daughter.The Probate and Family Court, Massachusetts passed an order of temporary custody of the child, restraint and abuse prevention ex parte in favour of the respondent No.6 and against the appellant on 10.05.2005. Service of the said order is said to have been effected on the appellant on 20.05.2005. Allegedly, he neither appeared before the Court contesting the said interim custody order nor sought for any modification thereof. Respondent No.6 took up a job and continued to live with her child in Massachusetts. She contends that her Indian Passport was stolen by the appellant from the premises which was being occupied by her.Admittedly, the appellant came to India with the child on 15.04.2006 in violation of the court custody orders.The contention of the appellant is that despite the initial marital discord, the parties started living together. It was decided that he should return to India with the child wherefor even a written consent was given by the respondent No. 6 by affirming an affidavit before a Notary on or about 14.04.2006, stating:"I, Hetal G. Thakker ...authorize my child Eesha B. Lakhani to travel with my husband and her father, Bhavesh Lakhani to India.They will be leaving the United States of America on or about April 14, 2006 and returning on or about (Undecided)..."Respondent No. 6, however, contends that the appellant travelled out of the United States of America with the child by creating false and fabricated documents including the said affidavit as would also appear from the fact that the child already had a passport. On the premise that the child was abducted by the appellant, warrants of arrest were issued against him on the basis of a complaint made by the respondent No. 6 before the police authorities. A decree for divorce as also the custody of the child was passed by the Norfolk Country Probate and Family Court, Canton, Massachusetts on 2.5.2006.PROCEEDINGS BEFORE THE FAMILY COURTRespondent No. 6 thereafter married one Ashwin Matta. Indisputably, she filed an application for custody of the child before the Family Court at Mumbai on 11.05.2007. By an order dated 15.05.2007, the Family Court directed the appellant to remain present in the Court with Eesha. Pursuant to the said notice of the Family Court, his father appeared before the court on 15.05.2007 and stated that the appellant had gone out of Mumbai along with Eesha. The matter, therefore, was adjourned to 18.05.2007. On that day the appellants father again appeared and informed the Court that the appellant could not be contacted. The Family Court, thus issued a warrant of arrest against the appellant and directed grant of custody of the child to the Respondent No. 6.Appellant indisputably preferred an appeal before the High Court which was marked as Family Court Appeal (Stamp) No. 11724 of 2007. An order of stay was granted by the High Court of Bombay in the matter, which is still operative.PROCEEDINGS BEFORE THE HIGH COURTThe Atlanta City Police and the American Court in the meanwhile issued a warrant of arrest against the Appellant which was transmitted through INTERPOL to the Government of India. Appellant filed a writ petition questioning the legality and/ or validity of the said warrant, which by reason of the impugned judgment dated 11.08.2008 has been dismissed.The High Court posed unto itself a question as to whether the Red Corner Notice could be stayed by it.Referring to the provisions of the Act it was opined:-i) While dealing with a fugitive criminal wanted in a State with which India has no treaty, the Magistrate can enquire into the case in the same manner as if the case was triable by Court of Sessions or High Court.ii) However, while dealing with a fugitive criminal wanted in a treaty State, such inquiry and such a trial is not open.iii) The Magistrate neither has the power to take evidence nor can he discharge a fugitive criminal. In the event, if two conditions, namely, (1) whether the warrant is duly authenticated; and (2) whether the fugitive criminal is concerned with an extradition offence are satisfied, the Magistrate is required to commit the fugitive criminal to prison.iv) Only the Central Government in exercise of its power under Section 29 of the Act can discharge a fugitive criminal.v) The Magistrate cannot make a roving inquiry into the facts.vi) Extradition treaty implies mutual obligations.vii) The Act recognizes the sanctity of an extradition treaty.viii) The provisions of Section 105A of the Code of Criminal Procedure would not apply in a case of this nature.ix) The High Court cannot tinker with the Red Corner Notice.x) The High Court should not set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notices are critical

Reasoning: 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