No Need For Formal Extradition Request To Seek Immediate Arrest Of Fugitive On Interpol Warrant: Kerala High Court

A Division Bench comprising Dr. A.K. Jayasankaran Nambiar and Justice Preetha A.K held that, upon receipt of an International warrant, the Indian nodal agency must forward it to the Central Government and simultaneously bring it to the notice of the jurisdictional Magistrate, enabling action under Sections 34-B and 9 of the Extradition Act, 1962, respectively.

The judgment was delivered in a writ appeal against the dismissal of a writ petition seeking action against a person (8th respondent) who had been convicted by a Dubai court and against whom an International Arrest Warrant had subsequently been issued. The warrant was transmitted through Interpol to India's nodal agency, the CBI-NCB Interpol.

The question before the Court was whether Indian authorities could initiate steps for the arrest of a fugitive criminal on the basis of an International Arrest Warrant received through Interpol without a prior formal extradition request from the foreign treaty State.

The Single Judge had earlier held that, under Article 5 of the India-UAE Extradition Treaty, extradition could not take place without a formal request from the concerned State and that the mere issuance of an International Arrest Warrant was insufficient to arrest and extradite a person from India.

The Division Bench at the outset noted that for practical reasons the writ appeal has become infructuous due to efflux of time as the appeal was filed in 2021 and there was no stay in the Single Judge judgement or a positive direction to direct the respondent in the appeal. It further noted that no fresh request was received from the authorities in UAE to extradite the eighth respondent.

The Court found it appropriate to clarify the legal position regarding the extradition under the Extradition Act.

Referring to the Supreme Court's decision in Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2011), the Court noted that extradition is an international obligation implemented through the domestic law of the requested State.

It then identified the five substantive elements of extradition: reciprocity, double criminality, extraditable offences, speciality and non-inquiry.

It further observed that the extradition framework is founded on the principle of aut dedere aut judicare the obligation to either extradite or prosecute a fugitive criminal. Article 5 of the India-UAE Treaty embodies this principle by providing for prosecution in the requested State where extradition of its nationals is not permissible.

The Court explained that Article 8 of the India-UAE Extradition Treaty read with Sections 4 to 8 of the Extradition Act governs cases where a foreign State has made a formal request for surrender. Such a request has to be made through the prescribed diplomatic channels.

However, Article 9 of the Treaty, read with Sections 9 and 34-B of the Extradition Act, deals with the urgent arrest of a fugitive before the formal extradition request is received. In such circumstances, the request for immediate arrest may be communicated through Interpol channels.

The Court noted that under Section 9 of the Extradition Act, a Magistrate may issue an arrest warrant where it appears that a person within his jurisdiction is a fugitive criminal and the evidence would justify issuance of a warrant had the offence been committed within that jurisdiction. Such detention cannot continue beyond three months unless the Central Government issues the requisite order under Section 5.

Similarly, Section 34-B permits provisional arrest upon an urgent request from a foreign State, routed through the Central Government to the competent Magistrate. If a formal request for surrender is not received within 60 days of arrest, the fugitive is required to be discharged under the provision.

“Under both the provisions referred above, the information regarding the fugitive criminal, must be one that is obtained from the foreign State through a recognized channel such as the Interpol, and the provisions only mandate that a request for arrest of the fugitive criminal, be routed through a jurisdictional Magistrate for the purposes of issuance of a warrant of arrest that will authorize the arrest in accordance with the laws of India.” Court noted.

The Court noted that in the present case, the international arrest warrant seeking the arrest of the 8th respondent was issued by the Prosecution department of the Government of Dubai and the said warrant was transmitted through Interpol to the Nodal Agency in India, the CBI-NCB Interpol. The nodal agency in India did not thereafter follow the procedure envisaged either under Section 9 or under Section 34-B of the Extradition Act, 1962, which led to the evasion of arrest of the eighth respondent,

The Court thus held that once such a warrant is received, the nodal agency must intimate the Central Government, particularly the Ministry of External Affairs, so that the Government can consider seeking a provisional arrest warrant under Section 34-B of the Extradition Act

Simultaneously, the Nodal Agency must inform the jurisdictional Magistrate of the International Arrest Warrant, enabling the Magistrate to independently consider issuing a warrant under Section 9 of the Act.

The Court held that the two courses of action are not mutually exclusive and they can operate simultaneously because they constitute independent legal routes for securing the arrest of the fugitive.

At the same time, the High Court made it clear that the Interpol warrant does not itself authorise the Indian nodal agency to directly arrest the fugitive.

The intervention of a Judicial Magistrate is required for an arrest under the Indian legal framework. The Court relied on the Supreme Court's decision in Bhavesh Jayanti Lakhani v. State of Maharashtra (2009), in this regard.

The Court thus concluded that when an International Arrest Warrant from a foreign treaty State is received through Interpol, the nodal agency must forward it to the Central Government for possible action under Section 34-B and bring it to the jurisdictional Magistrate's notice under Section 9. The two mechanisms may operate in parallel.

“The Nodal Agency can simultaneously alert the Ministry of External Affairs and also bring the same information to the jurisdictional Magistrate under Section 9 given the risk of the fugitive absconding while the Central Government's channel is being worked through. Nothing in the Extradition Act requires the Nodal Agency to elect the one over the other for they operate as independent legal bases for the arrest of the fugitive. That apart, the three months sunset clause under Section 9 is effectively the bridge between the two courses of action since, even when the procedure under Section 9 is invoked first, the substantive extradition process still has to be regularized through the Central Government within three months via a Section 5 order, for otherwise, the detention lapses.” Court observed.

The Bench emphasised that resort to Section 9 does not undermine the Central Government's ultimate authority over extradition. Rather, it provides an interim, judicially sanctioned power of arrest pending regularisation of the extradition process.

With these observations, the Court disposed of the appeal.

Counsel for Petitioner: Yeshwant Shenoy, Aysha Abraham

Counsel for Respondent: C. Dinesh (CGC), Daya Sindhu, T.C. Krishna (Sr. Panel Counsel) Sreelal N. Warrier (Spl. PP, CBI), P. Vijayakumar, Saiby Jose Kidangoor, M.R. Arun Kumar (Sr. GP), Sunilkumar Kuriakose (GP), Navaneeth D. Pai, Pramitha Augustine, Afsana Khan, SreerajS. Rajaram, Sneha J, Adarsh Padmanabhan, Amal Dileep