Madras High Court
Tmt. Jayashree vs The Inspector Of Police on 25 April, 2011
Author: G.M. Akbar Ali
Bench: G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25-4-2011
CORAM
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
CRL.O.P.No.24887 of 2010
and M.P.NO.1 of 2011
Tmt. Jayashree ... Petitioner
vs
1. The Inspector of Police
All Women Police Station
Poonamallee, Chennai-600 056
2. Commissioner of Police
Suburban Commissioner Office
St.Thomas Mount, Chennai
3. Union of India
rep by its Joint Secretary
CPV-01, Division (USA and Canada)
Ministry of External Affairs
Patiala House Annexe,
Tilak Marg
New Delhi-110 001
4. Under Secretary -CONS,
CPV-01, Division, (USA and Canada)
Ministry of External Affairs,
Patiala House Annexe,
Tilak Marg
New Delhi-110 001
5. Deputy Director
Central Bureau of Investigation
Interpol (Co-Ordination)
Block No.4, CGO Complex
New Delhi-110 003
6. The Superintendent of Police
Central Bureau of Investigation
Shastri Bhavan, Haddows Road
Chennai .. Respondents
Criminal Original Petition filed under Section 482 Cr.P.C. for the relief as stated therein.
For petitioner : Mrs.S. Jayashree
(party-in-person)
For respondents : Mr.S. Rajakumar
1&2 Govt. Advocate (Crl.Side)
For R.3 & 4 : Mr.J. Ravindran
ASG
ORDER
The petition is filed seeking a direction to the respondents 1 to 6 to initiate appropriate proceedings for extradition of the accused Gokul Doss (A1) from United States of America to India to be produced in C.C.No.477/04 pending on the file of the learned Judicial Magistrate No.I, Poonamallee and for issuing provisional arrest warrant pending such extradition proceedings within a time frame.
2. The petitioner is the complainant and she gave a complaint against her husband one Gokul Doss and another for an alleged offence under Secs.406, 498-A, 494,506(ii) r/w Sec.6(ii) of Dowry Prohibition Act. The complaint was registered in Cr.No.12 of 2004 and an absconding charge sheet has been filed by the 1st respondent before the learned J.M.I, Poonamallee and it is pending in CC No.477 of 2004.
3. The learned Magistrate has also issued N.B.W against A.1. The petitioner filed a writ petition in WP No.22439 of 2005 to impound the passports of A.1 and A.2 and obtained suitable orders. However, the accused have not surrendered their passports. The petitioner has filed a petition in Crl.O.P.5336 of 2008 seeking directions to the Ministry of external affairs to initiate extradition proceedings.
4. However, this court, while disposing of the petition, granted liberty to the petitioner, to move the trial court for taking suitable steps. The petitioner filed an application before the learned Judicial Magistrate seeking issuance of provisional warrant for apprehending A.1, who is now in United States of America, under Sec.16 of the Extradition Act. However, the learned Magistrate has not passed any order as per the law. Therefore, the petitioner has approached this court for the above said relief.
5. Heard the party-in-person, who would submit that her husband is absconding and she is not getting any justice and it has become necessary to invoke extradition proceedings as he is a fugitive criminal.
6. She also pointed out that the Government of India and United States of America are signatory to the extradition treaty and her husband is a fugitive criminal, who is an accused in an extraditable offence, against whom, a non-bailable warrant is also pending.
7. She also pointed out that Interpol is a police co-operation Organisation across international borders and India and USA are members of Interpol. She also submitted that under Sec.16 of the Act the Magistrate can direct issuance of provisional warrant for apprehending the criminal and pass an order directing the Ministry for External Affairs to initiate extradition proceedings.
8. Heard the learned Government Advocate (Crl.Side) and perused the materials available on record.
9. The petitioner is the defacto-complainant. She has initiated the proceedings against her husband and another for the alleged offence under Sec.406, 498-A, 494,506(ii) r/w Sec.6(ii) of Dowry Prohibition Act. The main allegations in the complaint is that the husband had subjected her to various types of cruelty. Extradition treaty was signed by Government of India and Government of United States of America and Ministry of External Affairs who had published the said order dated 14.9.1999 in the Gazette of India.
Art.2(1) defines what is extraditable offence, which reads as follows:
Art.2:Extraditable offence:
1. An offence shall be an extraditable offence if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty.
Extradition Procedures and Required documents:
1. A request for extradition of a person who is sought for prosecution shall also be supported by:
(a) a copy of the warrant or order of arrest, issued by a judge or other competent authority
(b) a copy of the charging document, if any, and
1. (c) such information as would justify the committal for trial of the person if the offence had been committed in the requested state.
Art 12(1) Provisional Arrest
1. In cases of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic challan. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request.
10. The Extradition Act 1962 ( hereinafter referred to as Act) deals with Extradition. Chapter IV of the Act deals with surrender or return of accused or convicted person.
11. Chapter III deals with return of fugitive criminal to foreign State with extradition arrangements. Though this chapter deals with a fugitive criminal in India who is wanted in a foreign State which has an extradition arrangement with India, as far as the warrant to be issued by the Magistrate is concerned, Chapter III and Chapter IV are the same. Sub clause (2) of Sec.19 of Chapter IV reads as follows:
"`1. Apart from the extradition the Interpol is also ensuring mutual assistance between all the criminal police authorities of the countries which are members of Interpol. "
Apart from these the Interpol has also issued certain guidelines and defines about 'The Look Out Circulars (LOC)' LOOK OUT CIRCULAR (LOC) 25.9. The Look Out Circulars are opened to trace the absconding criminals and also to prevent and monitor effectively the entry or exit of persons who may be required by law enforcement authorities.
25.9.1.: The basic substantive guidelines regarding the publication of the LOCs in relation to Indian Citizens issued by the MHA enunciate the following four cardinal principles.
25.9.2 : The request for opening of LOC is required to be made to all immigration Check Posts in the country in the Official Format prescribed by the MHA 25.9.3 : The request for opening of LOC must invariably be issued with the approval of an Officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government Superintendent of Police concerned at the district level.
25.9.4 : The originating agency must ensure that complete identifying personal particulars of the person, in respect of whom the LOC is to be opened, are clearly mentioned in the prescribed proforma. The LOC will not be opened for less than three identity parameters other than name of the subject 25.9.5 : An LOC is valid for a period of one year. However, in case the originating agency wants to extend the validity beyond one year it can ask for the extension before the expiry of the one year period. If no request is made for the extension of the LOC within the stipulated period of one year, the Immigration Officer concerned is authorized to suspend the LOC.
These are the legal and procedural provisions available for the extradition of a fugitive criminal who is wanted for a criminal proceedings.
12. Therefore, to invoke the provision of Extradition Act, the following are the conditions precedent:
1. An offence shall be an extraditable offence, if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty.
2. There must be an extradition treaty or arrangements between the Government of India and the foreign State in which the fugitive criminal is said to be residing.
3. There must be an extradition request from the Government of India through diplomatic channel to the foreign State. A request for extradition shall also be supported by
(a) a copy of the warrant or order of arrest, issued by a judge or other competent authority
(b) a copy of the charging document, if any, and
(c) such information as would justify the committal for trial of the person if the offence had been committed in the requested state.(all the documents in English)
5. A request for provisional arrest may be made and such warrant of arrest may be transmitted through Interpol or through the diplomatic channel to their counterpart for the apprehension of the fugitive criminal pending extradition proceedings.
13. Under Sec.16 of the Act, the Magistrate may issue a provisional warrant for the apprehension of the fugitive criminal from any foreign State with which Government of India is having extradition treaty or extradition arrangement, who is suspected to be in the foreign State against whom a criminal case is pending prosecution. Such warrant shall be transmitted either through Interpol or through diplomatic channel.
14. On application the Magistrate or a judge may request the Ministry of External Affairs, Government of India to send a request for extradition of the person who sought for the prosecution and it shall be supported by
(a) a copy of the warrant or order of arrest, issued by a judge or other competent authority
(b) a copy of the charging document, if any, and
(c) such information as would justify the committal for trial of the person if the offence had been committed in the requested state.
15. The contracting country or the State on receipt of such provisional warrant shall apprehend the fugitive criminal and deal with him in accordance with the law of that State and procedure for such apprehension pending extradition proceedings.
16. The Government or the competent authority of the contracting country or State shall follow the terms and conditions of the extradition treaty and also the relevant acts or rules to pass suitable orders in extradition.
17. On surrender of such fugitive criminal, he shall be produced before the Magistrate or judge who issued the warrant and the trial shall be conducted for its logical conclusion.
18. In 2009 9 SCC 551, (Bhavesh Jayanti Lakhani vs State of Maharashtra and Others), (cited supra) the Apex Court had an occasion to deal with an extradition proceedings and the procedure for arrest and apprehension of the fugitive criminal. This case relates to a 'red corner notice' issued by a foreign State for the apprehension of an Indian National. Though the case related to matrimonial dispute, a warrant of arrest was issued by a District Court at United States and a red corner notice was issued by Interpol and the Apex Court has dealt with detail of the applicability of the Act. In the said case, the Apex Court has held as follows:
23. The Act was enacted to consolidate and amend the law relating to extradition of fugitive criminals and to provide for the matters connected therewith or incidental thereto. It is a special statute. Section 2(c) of the Act defines an "Extradition Offence" in the following words:
"(c) "extradition offence" means--
(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;
(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence;"
24. Section 2(d) defines "Extradition Treaty" to mean a treaty, agreement or arrangement made by India with a foreign State Relating to the extradition of fugitive criminals, and includes a treaty, agreement or arrangement relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;
A "fugitive criminal" is defined under Section 2 (f) of the Act to mean a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State.
25. A "treaty State" is defined under Section 2 (j) of the Act to mean a foreign State with which an extradition treaty is in operation.
26. Chapter II of the Act deals with extradition of fugitive criminals to foreign States to which Chapter III does not apply. Chapter III of the Act deals with return of fugitive criminals to foreign States which have Extradition Agreements.
28. The following threshold requirements are that these reciprocal procedures are:
(i) Applicable only in respect of contracting States. Section 105A contains the interpretation Clause. Some of the relevant provisions are as under:
105A Definitions: "In this Chapter, unless the context otherwise requires,--
(a) "contracting State" means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;"
(ii) The statutory procedures and the institutions put in place for processing these arrangements have been statutorily prescribed. Section 105B which is relevant for our purpose reads as under:
"105B - Assistance in securing transfer of persons.
(3) Where a Court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that Court or before any other investigating agency, issued by a Court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another Court in India for execution within its local limits.
(4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the Court in India or the Central Government may impose such conditions as that Court or Government deems fit."
29. In any reciprocal arrangement:
(a) the Court, Judge or Magistrate to whom such a request can be made shall be specified by the Central Government (Section 105B (1) and (2).
(b) the form in which such a request can be made shall be specified by the Central Government (Section 105B(1)).
(c) After due application of mind, a transfer of a person out of India would be on the basis that "the Court in India or Central Government may impose such conditions as that Court or Government thinks fit" (Section 105B(4)"
51. APPLICABILITY OF CHAPTER VIIA OF THE CODE OF CRIMINAL PROCEDURE For the purposes of effectively implementing the treaty providing for mutual assistance between the Government of United Kingdom of Great Britain and Northern Ireland, Chapter VIIA of the Code of Criminal Procedure was enacted as is also provided in the Statement and Objects thereof. The said provisions were laid down by the Parliament so as to consider implementation of the provisions of the reciprocal arrangements for assistance in certain matters and procedure for attachment.
The provisions contained in Section 105A onwards of the Code of Criminal Procedure are subject to additions, exceptions or qualifications as may be specified in the Notification issued by the Central Government.
52. Indisputably where there exists any reciprocal arrangement, the following are required to be complied with:
(i) The Court, Judge or Magistrate is required to be specified by the Central Government to whom a request can be made.
(ii) The form in which such a request is to be made is again required to be specified by the Central Government.
(iii) A transfer of a person out of India must precede upon due application of mind on the part of the Magistrate subject again to the condition that either the Court or the Central Government may impose such conditions as they may seem fit and proper.
1. Therefore, if the offence is an extraditable offence and the prosecution is pending trial and the warrant of arrest is also pending, the victim, the defacto-complainant is entitled to invoke the provisions under the Extradition Act for extradition of the fugitive criminal. The magistrate or the judge has ample power to issue suitable orders for extradition.
Therefore, the criminal original petition is allowed with the following directions:
1. The petitioner is directed to file an application as per section 16 of the Extradition Act and Art.12 of the Extradition Treaty between Government of India and U.S. Dated 14.9.1999 furnishing all particulars for issuance of provisional arrest warrant before the learned Magistrate and to issue a direction to the Ministry of External Affairs, Government of India to make a request for the Extradition of the fugitive criminal viz., Gokuldas, the accused No. 1 in G.C.C.No.477/04.The petitioner shall furnish all the particulars about the accused.
2. On receipt of such application, the learned Magistrate is directed to issue provisional arrest warrant of the said accused pending extradition proceedings and forward the same to Interpol, Delhi and also to the external Affairs Ministry to transmit the same to their counterparts for execution.
3. The learned Magistrate is also directed to address the External Affairs Ministry to make a request for extradition of the said accused No.1 who is sought for prosecution and forward
(a) a copy of the warrant or order of arrest, issued by him,
(b) a copy of the charging document,
(c) such information as would justify the committal for trial of the person if the offence had been committed in the requested State.
4. Since in cases of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition, a request for provisional arrest may be transmitted through the diplomatic channel. The facilities of the International Police Organisation (Interpol) may be used to transmit such a request.
5. All documents shall be in English.
6. On receipt of such request, for extradition, the Ministry of External Affairs is directed to initiate the extradition proceedings under the Act and as well as the extradition treaty dated 14.9.1999.
7.The Interpol at New Delhi and also the External Affairs Ministry are directed to transmit the provisional arrest duly authenticated by them to their counterpart to be dealt with in accordance with the law and procedure of the foreign state.
20. The Crl.O.P. Is allowed with the above directions and Consequently, connected MP is closed.
25-04-2011 sr Index:yes website:yes To
1. The Inspector of Police All Women Police Station Poonamallee, Chennai-600 056
2. Commissioner of Police Suburban Commissioner Office St.Thomas Mount, Chennai
3. Union of India rep by its Joint Secretary CPV-01, Division (USA and Canada) Ministry of External Affairs Patiala House Annexe, Tilak Marg New Delhi-110 001
4. Under Secretary -CONS, CPV-01, Division, (USA and Canada) Ministry of External Affairs, Patiala House Annexe, Tilak Marg New Delhi-110 001
5. Deputy Director Central Bureau of Investigation Interpol (Co-Ordination) Block No.4, CGO Complex New Delhi-110 003
6. The Superintendent of Police Central Bureau of Investigation Shastri Bhavan, Haddows Road Chennai G.M. AKBAR ALI,J., sr Pre-Delivery Order in Crl.O.P.No.24887 of 2010 25-04-2011