Bhavesh Jayanti Lakhani vs State Of Maharashtra & Ors

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. 4

PROCEEDINGS BEFORE THE FAMILY COURT 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 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 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 COURT The 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.

(viii). C.B.I. having a limited territorial jurisdiction, its services cannot be used outside its territorial framework.

We may however add that, indisputably the appellant 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 (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 Interpol Website. Mumbai police is said to have found the location of the Appellant and his daughter on 3rd May, 2008 which information was passed on to U.S. Embassy on 9th May, 2008.

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

5. Extension of powers and jurisdiction of special police establishment to other areas. : (1) Central Government 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 Section

The requirement to arrest a person for the purpose of his extradition is in two categories - (1) the cases in which India 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 III 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 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 55 warrant which is duly authenticated and that the offence is an extraditable one, the Magistrate shall commit the fugitive criminal to prison. A certificate of committal is thereafter sent to the Central Government.

Section 17 states that the endorsed warrant in the case of the person who is brought before whom is duly authenticated 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.

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.

We have proceeded on the basis that the power of 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. 57 However, the question in regard to the necessity of warrant being endorsed or the effect of the Red Corner Notice vis-`-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.

In terms of the aforementioned provisions, sanction 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.

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. As the law stands, we place on record such directions by the superior courts are permissible. 65

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.

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.

For the aforementioned reasons, the impugned 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.