TMI Blog2009 (8) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... use at Sharon Massachusetts, USA. PROCEEDINGS IN USA - She filed a complaint at Police Department on 26.04.2005. On or about 09.05.2005 an application before the Probate and Family Court of Massachusetts for grant of divorce was filed by her. In the said proceeding, she also sought for orders of custody of her daughter. A decree for divorce as also the custody of the child was passed by the Norfolk Country Probate and Family Court, Canton, Massachusetts on 2.5.2006. PROCEEDINGS BEFORE THE FAMILY COURT - 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 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 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Interpol Secretariat General at the behest of any member country within India. Application of the provisions of the Act, thus, in a case of this nature must be held to be imperative in character. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence and other offences including political offences subject of course to the condition that offences relating to illegal tax are not to be treated to be a political offence. Sections 4-18 provides for the mode and manner in which a request for extradition of a person is required to be made by the concerned country. The requirements are specific in nature and are required to be accompanied by a large number of documents. Such an arrest can be effected only pursuant to a warrant issued by the Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NTERPOL vis-`-vis the Resolutions adopted by the C.B.I. from time to time, although a Red Corner Notice per se does not give status of a warrant of arrest by a competent court. It is merely a request of the issuing authority to keep surveillance on him and provisionally or finally arrest the wanted person for extradition. The provisions of the Act and the Treaty are required to be given effect to. Whenever a request is received from INTERPOL the authority must act on behalf of the Central Government. The INTERPOL provides constitution of NCBs by Member States. C.B.I. has different roles to play. When it acts as NCB, being a department of CBI, it acts under a Treaty. It acts in terms of the constitution of the INTERPOL. It acts as a authority of the Central Government. By reason of such an act it does not carry out investigation, although it is entitled therefor. It functions as an NCB which is to give effect to the request received from INTERPOL and/or foreign country. When it does so, indisputably it has to apply its mind. It can take any action only because it is lawful to do so. It does not exercise absolute discretion. It has to act if a case therefor has been made out inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mother, the Bombay High Court has stayed the operation thereof. The Appellant therefore, must be held to be in lawful custody of his daughter unless any other or further order is passed by a court of competent jurisdiction. Lastly, it is imperative to note that the State does not seek for enforcement of the custody and/ or restrain order passed by the Probate and Family Court, Massachusetts in view of the rigours contained in Sections 13 and 44A of the Code of Civil Procedure. Even the Family Court does not appear to have dealt with this aspect of the matter. In any event, as the matter is pending before the High Court, it alone will have a final say therein. 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. - SINHA, S.B. AND SHARMA, MUKUNDAKAM, JJ. JUDGMENT S.B. SINHA, J : Leave granted. INTRODUCTION Interpretation of the roles and responsibilities of the Central Bureau of Investigation (CBI) vis-`-vis the provisions of the Extradition Act, 1962 (hereinafter referred to as the Act ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Admittedly, the appellant came to India with the child on 15.04.2006 in violation of the court custody orders. The contention of the appellant is that despite the initial marital discord, the parties started living together. It was decided that he should return to India with the child wherefor even a written consent was given by the respondent No. 6 by affirming an affidavit before a Notary on or about 14.04.2006, stating: I, Hetal G. Thakker ...authorize my child Eesha B. Lakhani to travel with my husband and her father, Bhavesh Lakhani to India. They will be leaving the United States of America on or about April 14, 2006 and returning on or about (Undecided)... Respondent No. 6, however, contends that the appellant travelled out of the United States of America with the child by creating false and fabricated documents including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither has the power to take evidence nor can he discharge a fugitive criminal. In the event, if two conditions, namely, (1) whether the warrant is duly authenticated; and (2) whether the fugitive criminal is concerned with an extradition offence are satisfied, the Magistrate is required to commit the fugitive criminal to prison. iv) Only the Central Government in exercise of its power under Section 29 of the Act can discharge a fugitive criminal. v) The Magistrate cannot make a roving inquiry into the facts. vi) Extradition treaty implies mutual obligations. vii) The Act recognizes the sanctity of an extradition treaty. viii) The provisions of Section 105A of the Code of Criminal Procedure would not apply in a case of this nature. ix) The High Court cannot tinker with the Red Corner Notice. x) The High Court should not set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notices are critical tool. CONTENTIONS ADVANCED BY THE PARTIES: Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the appellant would contend: (i) The purported decree for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own standing and reputation in the society cannot be treated like a commodity for the sake of any treaty between India and the United States. (vii) It ought to have considered that before touching the petitioner on the basis of a warrant issued by the American Courts proper investigation into the allegations against the petitioner was a must. (viii) It ought to have considered that the provisions of the Constitution of India conferring fundamental rights to its citizens are superior and, thus, prevail over the provisions of the said Act or the Extradition Treaty executed between the Government of India and the United States. (ix) That the entire approach of the High Court was legalistic as the High Court failed to examine the core constitutional issues involved in the matter. Ms. Nitya Ramakrishnan, learned counsel appearing on behalf of Respondent No.6 on the other hand urged :- i) Keeping in view the Scheme of the Act especially as the question whether the appellant should be extradited or not was not an issue before the High Court, this Court should not interfere with the impugned order at this stage, particularly in view of the fact that no request for extradit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) The C.B.I. despite having informed the U.S. authorities as regards the whereabouts of the appellant, no request for extradition having been received by the Central Government, the writ petition must held to be pre-mature. Dr. Rajiv Dhavan, learned senior counsel, who was requested to assist us in the matter raised the following contentions: (i). The Central Bureau of Investigation does not have any authority to deal with Red Corner Notices issued by the Interpol Secretarial General at the behest of any member country. (ii). No red corner notice can be issued in violation of civil liberties of an Indian and particularly in a matrimonial case, the effect whereof may result in - a) detention ; b) arrest ; c) circulation of name on website ; and d) surveillance which would amount to gross violations of law as the appellant's personal liberty, as contained in Articles 19 and 21 of the Constitution of India, would have been interfered with, without any authority of law. As no law operates in the field, the actions of the State and in particular the Central Bureau of Investigation are unconstitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Criminal Procedure Code. Mr. G.E. Vahanvati, learned Attorney General for India, who was also requested to assist us in the matter upon taking appropriate instructions from the Ministry of External Affairs, as would appear from our order dated 24th March, 2009, would also contend that the High Court judgment is unsustainable as it failed to take into consideration: a) There is nothing on record to show that the appellant had committed an extraditable offence within the meaning of the provisions of the Extradition Treaty entered into by and between India and the United States of America ; b) A matrimonial dispute would not ordinarily come within the purview of the Act; c) The provisions of the Act as also enforcement of the Extradition Treaty would arise only when a person is a fugitive criminal and he has committed an extraditable offence and not otherwise. THE EXTRADITION TREATY The Extradition Treaty between the Government of Republic of India and the Government of the United States of America entered into on 21st July, 1999. It was published in the Official Gazette dated 14th September, 1999. By reason of Article 1 thereof the Contracting States agreed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings if in the case of a request from the United States, they are certified by the principal diplomatic or principal consular officer of the Republic of India resident in the United States or they are certified or authenticated in any other manner accepted by the laws in the Requested State. Article 12 of the Treaty reads as under: Provisional Arrest 1. In case 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 Criminal Police Organisation (Interpol) may be used to transmit such a request. 2. The application for provisional arrest shall contain: (a) a description of the person sought; (b) the location of the person sought, if known; (c) a brief statement of the facts of the case, including, if possible, the time and location of the offense; (d) a description of the laws violated; (e) a statement of the existence of a warrant of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and (f) a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a composite offence; 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 arrange- ment 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. 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. 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. CODE OF CRIMINAL PROCEDURE: In 1994, Parliament added Chapter VIIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05B(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) Section 41(g) of the Code of Criminal Procedure also assumes relevance here. It reads as under:- 41. When police may arrest without warrant.--(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-- (a) ............... ............... ................ (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; ISSUES: In view of the rival contentions of the parties, the following questions which arise for our consideration are: (i) Whether having regard to the concept of sovereignty the Executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugitive criminal . (iii) The information emanating from the red corner notice is required to be distributed all over the Interpol website. (iv) The requesting Embassy would instruct the CBI to carry out its instructions for surveillance, arrest and detention. (v) The requesting Embassy can even contact the Indian police directly. (vi) Thereafter extradition proceedings may follow. Indisputably, therefore, when a proceeding under the Act is initiated, the civil liberty of a person would be directly affected. The provisions of the Act, therefore, should be strictly construed. Any request for extradition therefore must undergo the strict scrutiny test. Extradition offence keeping in view its definition in Section 2(c) of the Act in relation to a treaty State must be one provided for the extradition treaty therewith. Application of the provisions of the Act, thus, in a case of this nature must be held to be imperative in character. We have noticed hereinbefore that for the purpose of applying the provisions of the Act, existence of a treaty between the requesting State and the requested State plays an important role. It makes a distinction between an extraditable offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act. It is also not in doubt or dispute that in a case where there is no treaty, it is only the Magistrate who issues the warrant for arrest subject of course to the condition that the Central Government had ordered a Magisterial Inquiry in terms of Section 5 of the Act. Such an order of arrest, emanating from a Treaty -State, is also permissible under a `Provisional Warrant' issued by a Magistrate in exercise of its power under Section 16 of the Act, upon information that the fugitive should be apprehended subject to the condition that the detention thereunder may continue only for the time requisite for obtaining an endorsed warrant from the Central Government. All arrested persons are required to be immediately produced before a Magistrate whereupon it would have power to grant bail. Section 34B provides that the person so arrested would have to be released on bail after a period of 60 days. If actual request for extradition is required within the said period having regard to Section 41(g) of the Code of Criminal Procedure, the Central Government cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail. It furthermore stands admitted that matrimonial dispute as such does not constitute an extraditable offence and, thus, no effect could be given thereto. However, whether this case concerns an extraditable offence or not has to be determined by the Magistrate under the Act. We have noticed hereinbefore that the Treaty itself provides that the same is subject to any Municipal Laws of the country. It is thus for the State concerned to take a decision in regard to such notices, keeping in view the Municipal Laws. The steps to deal with the request contained in the notices, thus, must abide by the domestic laws of the concerned country. Recognition of the request as the basis for an arrest operate an internationalization or tans-nationalization of a foreign administrative decision. The formal admission procedure by Interpol cannot be the single cause of internalization. It is just a precondition for the recognition by the other states. We may however add that, indisputably the appellant received a notice from Interpol dated 13th June, 2007 being a Yellow or Watch notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court or the Central Government may impose such conditions as they may seem fit and proper. It is submitted by the learned counsel that with regard to dispute of the provisions of international comity (a) any transfer of a human being to another country goes to the root of fundamentally protected civil liberties. (b) Chapter VIIA of the Code of Criminal Procedure is hedged in with limitations requiring the intervention of the Court and Central Government with due application of mind. (c) No mechanical transfer can be made simply at the instance of government or the CBI which in any case has no role to play. (d) The application of the Act is not ousted and cannot be by passed. (e) The Court may examining equitable and other factors. This is implied from the condition imposing power. (f) To that extent, the provisions of Chapter VIIA shall be read up to bring it in conformity with Articles 14 and 21 of the Constitution. In our opinion, however, the submissions are a clear misreading of Chapter VIIA of the Code of Criminal Procedure which does not apply in situations of Extradition. INTERPOL ((The International Criminal Police Organisation). The INTE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Public International Law, keeping in view its status, INTERPOL is considered to be an International Organisation with its own legal personality. The contribution to the financing of the organization is by the Member States. Member States can have several delegates in the General Assembly. INTERPOL NOTICES The organizational system of issuing International notices forms the backbone of its functioning. The Member countries in terms of notices share critical crime related information. They concern individuals wanted for serious crimes, missing persons, unidentified bodies etc. Such notices contain comprehensive identity particulars of the individuals concerned including the physical description, fingerprinting, occupation and all other relevant information including the offence with which the person has been charged, reference to the law under which the charge was made or the conviction was obtained etc. The notices issued by the INTERPOL are of six types - Red Notice ; Yellow Notice ; Blue Notice; Green Notice ; Black Notice and Orange Notice. It also contemplates Interpol-United Nations Special Notice. We are concerned herein only with Red and Yellow Notices. A Red Corner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the United States of America deals with provisional arrest of the person sought pending presentation of the request for extradition providing that the facilities of the INTERPOL may be used to transmit such a request. Furthermore, Article 21 of the Treaty providing for Consultation also contemplates the use of the INTERPOL'S services. BINDING NATURE OF THE INTERPOL NOTICES: The notices issued by INTERPOL are not considered as administrative decisions on individual cases with transnational effect. They are not construed as an international administrative act. They lack a character of regulation. They do not constitute an international arrest warrant and they are not in any other form binding the individuals concerned legally. They, however, gain de facto with special relevance to the Human Rights through multiplication of its recipients. Infact Interpol's red notices often function as de facto international arrest warrants and countries issue warrants immediately upon receipt of such a notice. However, they do so with the understanding that a request for extradition with supporting evidence will follow the red notice, without delay. The suspect must then go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred to the Home Department and its functions were enlarged to cover all departments of the Government of India. It jurisdiction was also extended to all the Union territories. The DSPE Act provided for its extension to States with the consent of the concerned State Government. The C.B.I. was established, as it was felt that SPE would not be able to cope with the problems arising out of the country's over-expanding economy, by reason of a Resolution adopted by the Government of India vide Resolution No.4/31/61-T dated 1st April, 1963. Later on the SPE was merged with the C.B.I and became one of its Division. In terms of the provisions contained in Section 3 of the DSPE Act, the Central Government issues Notifications empowering the C.B.I. to investigate in regard to the offences specified by it; The Notification dated 23rd September 1989, S.O. 2301 empowered the CBI to investigate, among other things, offences relating to Sections 363 ; 363A ; 365 and 368 of the Indian Penal Code being some of them. It is at this juncture, a discussion of the DSPE Act becomes imperative. The Title and Preamble of DSPE Act reads:- An Act to make provision for the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions be deemed to be a member of the police force of the area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. Undoubtedly in terms of Section 5 of the DSPE Act, although the powers of the authority established therein can be extended by the Central Government upon the consent of the concerned State, we may notice that by reason of the Government of India's Resolution dated 1st April, 1963 the C.B.I. was empowered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act in terms thereof are contained not only in the Act but also in the provisions of the concerned Treaty, Code of Criminal Procedure as also the various Notifications issued by the Central Government in that behalf. POWERS UNDER THE ACT We will deal with this subject in two parts one is stage before arrest and second stage after arrest. BEFORE ARREST Power to apprehend or investigate a fugitive criminal, we have noticed hereinbefore, is conferred by Section 14 read with Section 15 of the Act. Section 14 prescribes the form of apprehension of a fugitive criminal under an endorsed warrant or a provisional warrant. Section 14 of the Act reads as hereunder: 14. Endorsed and provisional warrants. A fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant. Warrant can be issued by a foreign country to arrest a fugitive criminal who is yet to be tried and a person who has already been convicted. A fugitive criminal may be apprehended either under category (i) an Endorsed Warrant ; and (ii) a Provisional Warrant. An Endorsed Warrant is one which is a warrant that has, at first been issued by the foreign country with which India has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal. Appellant is sought to be apprehended for commission of an offence under Section 363 of the Indian Penal Code. We have noticed hereinbefore that it is an extraditable offence, provided it is not a pure matrimonial dispute. C.B.I. for intent and purport exercises the power of NCB in terms of the Treaty and thus derive its authority from INTERPOL itself. 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. The Ministry of Home Affairs by a circular letter dated 18th March, 1949 issued to all State Governments and Union Territories established the Intelligence Bureau as the ICPO-INTERPOL, the National Central Bureau for India. The C.B.I. was established as the representative of India for the purpose of correspondence with ICPO-INTERPOL by reason of a circular letter dated 17th October, 1966. We have noticed hereinbefore that by a Resolution dated 1st April, 1963 the Government of India gave to the C.B.I. the powers of Investigation of crime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w relating to Extradition thereby contemplating the exercise of powers subject to the provisions of the Extradition Act. Thus the provisions of the Code of Criminal Procedure are subject to those in the Act. LIMITATION OF POWER OF C.B.I. AND STATE POLICE Jurisdiction of CBI in Red Corner Notice In its affidavit filed on 23rd January, 2009 by C.B.I. stated as under :- 3(a) The answering Respondent being the functionary of Interpol, New Delhi (Central Bureau of Investigation) submits that it works as an interface between Interpol Secretariat Genral, France, Interpol member countries and various law enforcement agencies of India. (b) with regard to location and apprehension of a wanted fugitive, the role of the answering Respondent is to circulate the red corner notice issued by Interpol Secretariat General at the behest of any member country within India. (c) In order to trace a fugitive criminal, who might have left his/her country, an Interpol Red Corner Notice is got issued through IPSG (Interpol Secretariat General) at Lyon, France based on an arrest warrant issued by the competent judicial authority. Red Corner Notice is sent to the immigration/border control authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2 which read :- 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution. Indisputably the Central Government has no jurisdiction over the police which is contained in Entry 2 of List II of the Seventh Schedule. It includes railway and village police, subject to the provisions of Entry 2A of List I, which reads as under :- 2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. Does this violates the doctrine of federalism is the question? The power of the Central Government vis-`-vis State is in two categories. The police power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not possible for one State to find out the missing person or fugitive criminal. C.B.I., although constituted under the DSPE Act its functions are multiple. While acting in terms of the provisions, in particular Sections 3 and 5 of the DSPE Act, it acts as an investigating officer. The Act contemplates commission of the offences of the nature specified in the Act or those specified in several Notifications issued from time to time. In terms of Section 3 of DSPE Act first information reports are required to be lodged. For the said purpose, the C.B.I. which has several branches all over India is an officer incharge of a police station within the meaning of Section 154 of the Code of Criminal procedure. The authority specified in the DSPE Act, namely the Superintendent of Police of C.B.I. is an officer entitled to carry out any investigation. Only when an investigation is carried out in relation to an offence which has been committed in a State and not in the Indian territory or within the territorial jurisdiction of the Central Government the consent of the State concerned is required to be obtained. We are not concerned, as it is not necessary for us to determine, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Articles 19(a), (d) and 21 was upheld, but the same was held to be not absolute wherefor reasonable restrictions could be placed in terms of clause (5) of Article 19. Mathew, J. stated: The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute. The law, however, was developed by this Court in R. Rajagopal v. State of Tamil Nadu [(1994) 6 SCC 632]. The law was crystallized in the People's Union for Civil Liberties (PUCL) v. Union of India [(1997) 1 SCC 301], holding: We have, therefore, no hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed except according to procedure established by law . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all questions that are required to be gone into either by the Extradition Court appointed by the Central Government as per section 5 of the Act or subsequent to the Extradition of the Petitioner to the country in question. (ii) In any event, there has been no arrest of the Petitioner as the CBI is awaiting the necessary papers from the American Government. (iii) Also, the fact that India is not a party or signatory to the Hague Convention on the Civil Aspects of International Child Abduction does not make any difference in the instant case. (iv) Furthermore, it is incorrect to say that the Petitioner is being treated like a commodity. A warrant of arrest by a competent court in United States has been issued against the Petitioner. Under International obligations, the CBI is required, when so requested to act on the red corner notice issued pursuant to the warrant of arrest. If fugitives are not apprehended pursuant to the warrant of arrest/ red corner notice, it would be very easy for such persons to escape punishment. The petitioner has rights under the Act as well as the judicial process in United States (if he is ultimately extradited). (v) Lastly, that till date the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N We have already held above that the Municipal Laws of a country reign supreme in matters of Extradition. It is thus for the State concerned to take a decision in regard to such Notices, keeping in view the Municipal Laws of the country. The High Court was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with. When a person complains of a violation of his Fundamental Right and/or otherwise of his fundamental right he is entitled to the right of judicial review. It ought not to be forgotten here that the dispute between the Appellant and the Respondent No. 6, being essentially a Matrimonial dispute, is a private dispute and no criminal extraditable offence can be made out of the same, in the absence of a specific request for extradition. The High Court, thus, in our opinion, committed a serious error insofar as it failed to take into consideration the provisions of the Act, in the absence of any request having being made by the Govt. of USA to the Executive Government of the Union of India or any authourization made by the latter on its behalf. A fundamental Right of a citizen whenever infringes, the High Courts having r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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