Telangana High Court
Dr. K.V.P.Rarnachandra Rao S/Ok.V.P. ... vs State Of Andhra Pradesh, on 4 September, 2025
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION No. 13635 OF 2014
AND
WPMP.No. 17021 of 2014
ORDER:
The petitioner is an elected member of the Council of States- Rajya Sabha, from the State of Andhra Pradesh. He now seeks a Writ of Mandamus for directing the respondents namely State of Andhra Pradesh and the Additional Director General of Police, Crime Branch, not to act upon or take any coercive steps against him in pursuance of and in furtherance of any notice or proceedings that they may have received from any authority or Court in the United States of America until and unless the petitioner is heard in the matter and the validity of such notice is adjudicated upon by this Court.
It appears, the Central Bureau of Investigation, New Delhi, has sent up a communication to the second respondent bringing out that International Criminal Police Organization - INTERPOL has issued a Red Corner Notice on 11.04.2011 and also made a request for provisional arrest to be effected of the writ petitioner. However, mercifully, the second respondent- Additional Director General of Police, Crime Branch has sought for certain information from the Central Bureau of Investigation and to make available copies of the documents which are essentially required for affecting the provisional arrest of the writ petitioner. The matter is being presently studied by the Central Bureau of Investigation. At that stage, the present writ petition is instituted.
It is appropriate to notice that the Parliament, with a view to consolidate and amend the law relating to the extradition of fugitive criminals and to provide for matters connected therewith or incidental thereto, framed The Extradition Act, 1962 (for brevity referred to as 'Act' henceforth). Section 2 thereof defined various expressions mentioned in the enactment. Importantly, the expression 'fugative criminal' is defined in Section 2(f) in the following words:
"fugitive criminal means 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."
Section 14 of the Act clearly spelt out that a fugitive criminal ay be apprehended in India under an endorsed warrant or a provisional warrant. Section 15 has set out that where a warrant for the apprehension of a fugitive criminal has been issued in any foreign state, such fugitive criminal is, or is suspected to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the warrant so endorsed shall be sufficient authority to apprehend the person named in the warrant and to bring him before any magistrate in India. Subsection (1) of Section 16 of the Act authorizes and empowered any magistrate to issue a provisional warrant for the apprehension of a fugitive criminal from any commonwealth country to which this Chapter applies. Undoubtedly, these provisions appear in Chapter III which dealt with all aspects relating to return of fugitive criminals to foreign states with extradition agreements. In the present case, the applicability of the principle behind the provisions contained in Section 15 and 16 is doubted. But however, Section 29 of the Act has clearly spelt out that, if it appears to the Central Government that by reason of the trivial nature of the case or by reason of the application for the surrender or return of a fugitive criminal not being made in good faith or in the interests of justice or for political reasons or otherwise, it is unjust or inexpedient to surrender or return the fugitive criminal, it may, by order, at any time stay any proceedings under this Act and direct any warrant issued or endorsed under this Act to be cancelled and the person for whose arrest the warrant has been issued or endorsed to be discharged.
When we look at these provisions of the Act, it becomes clear that, the Central Government is the competent authority to apply its mind with regard to the nature of allegations made by a contracting state, with whom the extradition agreement or treaty has been entered into. Only upon being satisfied, that the nature of allegations do warrant the necessary action, such an action can be allowed to be initiated or carried out to a logical end but not otherwise. In this context, it is appropriate to remember that right to seek judicial review is firmly engrained into the basic structure of our Constitution. Similarly, Article 21 of our Constitution, which forms the bed rock, guarantees protection of life and liberty of any person in this Country. It will also be appropriate to notice in this context that, Article 21 encompasses and is the repository of the very right of life and personal liberty of an individual. It also takes care of the procedure to be established by law by which alone the liberty of an individual can be deprived in this Country. In this context, it is also appropriate to notice that, no fundamental right, much less, Article 21 can be allowed to be waived in this Country. It will be appropriate to notice the principle enunciated by the Supreme Court in Basheshar Nath v. The Commissioner of [1] Income Tax , in paragraph 14 as under:
'Such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person ? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because 'a person tells the State that it may do so ? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that " true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it." I do not think the State will be in any better position than the positions in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of Art. 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. What. Ever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State."
Further, the entire principle concerning the right of an individual to protect his own life and liberty in this country vis-à-vis the provisions of the Extradition Act, 1962 and also the obligations arising out of the treaty which the Government of India entered into with the Government of United States has fallen for consideration in Bhavesh Jayanti [2] Lakhani v. State of Maharashtra . In paragraph 42, the Supreme Court has in clear and categoric terms held as under:
"............... However, when a request for provisional arrest in terms of Article 12 is communicated, it must satisfy the requirement of Section 34-B of the Act. Such request from a foreign country must be accompanied by the requisite documents and not a communication from Interpol alone."
In paragraph 46, the Supreme Court has also held as under:
"The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail. "
In this context, if, the municipal law can prevail, over the treaty obligations, I cannot conceive, in principle, that Article 21 should be viewed with any lesser status than that of municipal law. The Supreme Court in the same judgment in paragraph 64 has set out the principle as under:
"...........................The bottom line is that "warrants to arrest suspects must have legal authority in the jurisdiction where the suspect is found" and Interpol red notices do not have such authority.................."
In paragraph 65, it was further held as under:
"....... However, such a request does not require the action of national police authorities and does not provide a legal basis thereto......"
In view of these principles enunciated by the Supreme Court, I have no difficulty whatsoever, as of now, after perusing the papers which the learned Government Pleader for Home has placed before me, which are the ones received by the second respondent-Central Bureau of Investigation, to pronounce an opinion that the request made by the Interpol for the provisional arrest of the writ petitioner, as at present advised is not sustainable. Hence, the respondents are refrained from acting any further in the matter.
I am of the opinion that the Union Government as well as the Central Bureau of Investigation are proper and necessary parties to the present writ petition. Any decision rendered in the above matter will have far reaching consequences. Hence, the presence of Union of India and the Central Bureau of Investigation is essentially required. Therefore, the Union of India represented by its Secretary to the Government, Ministry of Home Affairs, South Block, New Delhi as well as the Union of India, represented by its Secretary to the Government, Ministry of External Affairs, South Block, New Delhi and Central Bureau of Investigation, Plot No 5-B, CGO Complex, Lodhi Road, New Delhi-110 003, represented by its Director, are impleaded as respondents 3,4 and 5 respectively to the writ petition as well as the WPMP. The counsel on record is directed to make available adequate number of paper books, to enable the Registry to dispatch the notices to the now impleaded respondents also.
Admit.
Rule Nisi. Call for records.
Notice returnable in eight weeks.
________________________________ NOOTY RAMAMOHANA RAO, J 28th April, 2014 sp [1] AIR 1959 SC 149 [2] (2009) 9 SCC 551