Verhoeven, Marie-Emmanuelle vs Union Of India And Ors

4. The case before us has a chequered history inasmuch as the Republic of Chile has sought the extradition of the petitioner who is believed to be a French national. The petitioner is accused of being a conspirator in the assassination of a Chilean Senator on 1st April, 1991. She was sought to be extradited from Germany but the proceedings terminated in her favour. She was then sought to be extradited from India but the Delhi High Court held that the extradition proceedings initiated against her were not in accordance with law. The present proceedings have arisen out of yet another requisition made by the Republic of Chile for her extradition to Chile to face trial in the assassination of the Chilean Senator.

15. The Treaty having been signed, an Order in Council was made on 9th August, 1898 and this was published in the London Gazette on 12th August, 1898. Both the Order in Council and the London Gazette embodied the text of the Treaty between the United Kingdom of Great Britain and Ireland and the Republic of Chile.

16. The Extradition Treaty was subject to ratification and on 14th April, 1898 Her Majesty and the President of the Republic of Chile ratified the Treaty which was brought in force from and after 22nd August, 1898.

28. When the Extradition Bill was introduced in 1961 and considered in Parliament, Shri D.C. Sharma (an Hon’ble Member of Parliament) referred to Clause 2(d) of the Extradition Bill and stated on 7th August, 1962 that he had a list of countries with which India has an extradition treaty entered into prior to 15th August, 1947. One of the countries so mentioned by Shri D.C. Sharma was Chile.

The factual background

36. On 1st April, 1991 (the first Red Notice issued by Interpol erroneously shows the year as 1992) a terrorist attack was perpetrated leading to the assassination of Senator Jaime Guzman Errazuriz of Chile. Initial investigations apparently did not point to the involvement of the petitioner Marie Emmanuelle Verhoeven (believed to be a French national). However, when further facts came to light in 2010, it appeared that the petitioner was a member of a subversive organization responsible for the assassination. Accordingly, a warrant for the arrest of the petitioner was issued on 21st September, 2010 by the Court of Appeal of Santiago in Chile. On the basis of this arrest warrant and a request made by National Central Bureau (or NCB) at Santiago, Chile (and presumably on the basis of other available information) a “Red Notice” was issued by Interpol on 27th January, 2014 for the location and arrest of the petitioner for an incident that occurred on 1st April, 1992 (actually 1991) with a view to extradite her to Chile and also for her provisional arrest. The Red Notice mentioned that NCB Santiago, Chile and the Interpol General Secretariat be immediately informed on the fugitive being found.

38. It appears that pursuant to the Red Notice issued by Interpol, the petitioner was arrested in Germany but the concerned court in Germany held by an order dated 6th June, 2014 that the extradition of the petitioner was illegal. We are not concerned with the proceedings in Germany and this is being mentioned only for completing the factual background.

39. Much later, on 17th February, 2015 the petitioner was detained and arrested while crossing the Nepal border at the immigration point in Sunauli, Uttar Pradesh. She was produced before the concerned Magistrate in Maharaj Ganj in Uttar Pradesh and brought to Delhi on a transit remand. She was then produced before the Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 21st February, 2015 and remanded to judicial custody till 24th February, 2015

52. Pursuant to the decision of the Supreme Court of Chile, another Note Verbale was given by the Embassy of Chile to the Ministry of External Affairs on 24th March, 2015. This Note Verbale acknowledged that the request for the extradition of the petitioner was being made on the basis of international law principles from multilateral conventions and bilateral treaties on extradition, among which is included the extradition treaty between the Republic of Chile and the United Kingdom of Great Britain and Ireland signed at Santiago on 26th January, 1897 in force for both countries. On the basis of the provisions contained in the Treaty, the Note Verbale also drew attention to the resolution of the Supreme Court of Justice of Chile dated 9th March, 2015, and the arrest warrant issued against the petitioner on 27th January, 2014 and her indictment on 29th January, 2014 as a principal offender in the terrorist attack carried out on 1st April, 1991 that resulted in the assassination of Senator Jaime Guzman Errazuriz. The Note Verbale dated 24th March, 2015 reads as follows:-

55. The Delhi High Court took up both the writ petitions for consideration. In its judgment and order dated 21st September, 2015 (impugned before us to a limited extent by the petitioner) the High Court was prima facie satisfied that the Extradition Treaty was applicable to British India. However, “since the issue involves complicated questions of political importance, it appears to us that the same cannot be decided conclusively on the basis of the limited material available before us.” It was further held that “the Extradition Treaty executed on behalf of India prior to 15.08.1947 cannot be held to have automatically ceased to exist after India achieved sovereignty.” The High Court concluded that the interception of the petitioner on the basis of the Red Notice issued by Interpol was not illegal but the provisional arrest of the petitioner under Section 34-B of the Act could not be ordered in the absence of a notified order under Section 3(1) of the Act. Consequently, the provisional arrest of the petitioner on 24th February, 2015 was held to be without jurisdiction.

69. Consequently, the Supreme Court of Chile decreed that it was lawfully appropriate to request the Government of Chile to extradite the petitioner for the offence alleged against her, namely a terrorist attack carried out on 1st April, 1991 that resulted in the assassination of Senator Jaime Guzman Errazuriz. On this basis, the Republic of Chile gave a Note Verbale on 16th November, 2015 with a formal request to the Government of India for extraditing the petitioner.

35. In view of the corrigendum dated 11th August, 2015 it must be held that the notified order dated 28th April, 2015 was partially defective and therefore the application of the Extradition Act, 1962 to Chile would be effective only from 11th August, 2015 when the corrections were carried out and not 28th April, 2015. However, this makes no difference to the ultimate result of this case.

57. In view of its findings, the High Court declared the provisional arrest of the petitioner as without jurisdiction and illegal and it was accordingly set aside; the order for an inquiry under Section 5 of the Act was also declared illegal and that too was set aside. However, the High Court made it clear that its decision did not preclude the Government of India from initiating appropriate steps afresh for the extradition of the petitioner following the due process of law. It is under these circumstances that the issues are now before us.

81. Thereafter, in paragraph 45 of the Report, the Committee expressed its inability to pronounce an authoritative opinion on the legal aspects of the matter in view of the short time available. The Committee recommended that both Governments (India and Pakistan) should take steps to obtain expert legal opinion on all aspects of the matter.

(1) Rights and obligations under international agreements having an exclusive territorial application to an area comprised in the Dominion of India will devolve upon that Dominion.

(2) Rights and obligations under international agreements having an exclusive territorial application to an area comprised in the Dominion of Pakistan will devolve upon that Dominion.

89. It is quite clear from the above, that all international agreements to which India (or British India) was a party would devolve upon the Dominion of India and the Dominion of Pakistan and if necessary the obligations and privileges should be apportioned between them. There is no limitation in the above Order that it is only with regard to the 627 treaties mentioned by the Expert Committee No. IX on Foreign Relations – the reference is to “all international agreements”. Quite clearly, the extradition treaty between the United Kingdom of Great Britain and Ireland and Chile was a part of all the treaties entered into (by India or British India) and in terms of the above Order the rights and obligations in that treaty devolved upon the Dominion of India and the Dominion of Pakistan.

120. It was submitted by learned counsel for the petitioner that the detention and provisional arrest of his client on 22nd September, 2015 under Section 34-B of the Act soon after the judgment of the High Court was illegal. It was submitted that there was no request from Interpol to detain and arrest the petitioner and therefore there was no occasion for her arrest particularly since the proceedings against her had been quashed by the High Court the previous day in its judgment dated 21st September, 2015. We are not inclined to accept this submission.

129. We are, therefore, in agreement with the submission of the learned Additional Solicitor General that on the basis of a request made by Chile as contained in the Note Verbale of 22nd September, 2015 the petitioner could have been validly detained and placed under provisional arrest under Section 34-B of the Act, on a reciprocal basis, Extradition Treaty or no Extradition Treaty between India and Chile. The further requirement (in terms of Section 34-B of the Act) would however be for Chile to make a formal request for extraditing the petitioner from India on the basis of credible evidence against her of having committed an extradition offence punishable both in Chile as well as in India.

Subsidiary issues

Dissemination of information

134. We may also note the relaxed attitude of the Ministry of External Affairs as evidenced by the manner in which the notified order dated 28th April, 2015 was drafted by it. The text of the notified order leaves much to be desired. We have already pointed out three errors in the notified order, none of which should have occurred at all. The errors only show the laid-back manner in which the Ministry of External Affairs conducts its internal affairs. To make matters worse, the corrigendum gazetted on 11th August, 2015 fails to correct the error in the earlier notified order where the Extradition Act, 1962 is referred to as the Indian Extradition Act, 1962. It is time that the Ministry of External Affairs gets over the colonial hangover. Though the error is minor and not substantive, it should not have been there at all. We need say nothing more on this subject except to be optimistic and hope that the Ministry of External Affairs of the Government of India takes matters of law far more seriously than is evident from the material on record before us.

Conclusion

136. On the basis of the material before us, we hold that there is a binding extradition treaty between India and Chile and that the provisions of the Extradition Act, 1962 (other than Chapter III thereof) are applicable to the Republic of Chile in respect of the offences specified in the Extradition Treaty.

138. The writ petition and the criminal appeal are dismissed. No costs.

.………………….J (Madan B. Lokur) New Delhi;