Nodal Agency Can't Ignore International Arrest Warrant Without Forwarding Same To Central Govt & Jurisdictional Magistrate: Kerala High Court
The Kerala High Court was considering an appeal filed by an NRI businessman challenging the judgment of the Single Judge dismissing his writ petition.
Justice A.K. Jayasankaran Nambiar, Justice Preeta A.K., Kerala High Court
While explaining the correct procedure to be followed by the Nodal Agency on receipt of an International arrest warrant issued by the Prosecution department of a foreign treaty State, through Interpol, the Kerala High Court has held that the Nodal Agency cannot simply ignore the International arrest warrant issued in relation to the accused without forwarding the said arrest warrant to the Central Government and to the jurisdictional Magistrate concerned.
The High Court was considering an appeal filed by an NRI businessman challenging the judgment of the Single Judge dismissing his writ petition.
The Bench of Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K. held, “In any event, we are of the view that it was not open to the Nodal Agency to simply ignore the International arrest warrant issued in relation to the 8th respondent without forwarding the said arrest warrant to the Central Government and to the jurisdictional Magistrate concerned.”
Advocate Yeshwant Shenoy represented the appellant while Central Government Counsel C. Dinesh represented the Respondent.
Factual Background
The appellant alleged that the eighth respondent had borrowed about 6 million UAE dirhams from him by stating that the amount was required for augmenting his finances in a hotel business that he was a partner of. Although the respondent promised to return the money, he absconded to India without doing so. The personal guarantee cheque of 6 million AED issued by the respondent was also dishonored by the bank when presented for encashment by the appellant. The appellant filed a criminal case against the respondent in Dubai. The Dubai Court convicted the respondent and sentenced him to imprisonment for a term of two years.
An International arrest warrant was issued against the respondent. According to the appellant, although the said International arrest warrant was transmitted to the Nodal Agency [fourth respondent] of the Union of India [first respondent] through the Interpol for execution, the respondent, which had executed an Extradition Treaty with the UAE, did not act upon the International arrest warrant, thereby allowing the respondent to evade arrest and extradition to UAE for undergoing the sentence imposed on him by the Dubai Court. The prayer of the appellant in the writ petition was for a direction to respondents to implement the arrest warrant as per the provisions of the Extradition Act, 1962, read with the provisions of the Extradition Treaty, entered into between India and UAE, and to arrest and hand over the respondent to the Government.
Reasoning
The Bench observed that the provisions of the Extradition Treaty and the Extradition Act are founded upon the principle of reciprocity under International law that obliges a State to extradite or prosecute a fugitive criminal who has entered into its jurisdictional limits from another State where he/she is accused of or has committed an extraditable offence.
The Bench held that while for initiating action in terms of Article 8 of the Extradition Treaty and Sections 4 to 8 of the Extradition Act, a prior requisition for surrender of a fugitive criminal has to be made to the Central Government in the manner provided under Section 4 of the Extradition Act, namely, through diplomatic channels, there is no necessity for a formal requisition from the foreign State if the urgent need of the foreign State is only for effecting an immediate arrest (without extradition) of the fugitive criminal in the requested State.
On a perusal of the provisions of Section 9 and Section 34-B of the Extradition Act, the Bench clarified that while Section 9 confers an independent power to a Magistrate to issue a warrant of arrest in any case where it appears to the Magistrate that a person within the local limits of his jurisdiction is a fugitive criminal of a foreign State and obliges the Magistrate to detain such person for a period not exceeding three months, Section 34-B is a power given to a Magistrate to issue a provisional warrant for the arrest of a fugitive criminal based on a request made by the Central Government, which in turn must be based on the receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal.
The Bench noted that an International arrest warrant seeking the arrest of the 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 Bench stated that the latter Nodal Agency in India did not follow the procedure envisaged either under Section 9 or under Section 34-B of the Extradition Act, 1962, thereby leading to the evasion of arrest by the respondent.
The Bench was of the view that the correct procedure to be followed by the Nodal Agency on receipt of an International arrest warrant issued by the Prosecution department of a foreign treaty State, through Interpol, would be the following two courses of action namely, forward the same to the Central Government for initiating action under Section 34-B; and bring it to the notice of the jurisdictional Magistrate under Section 9, for, the latter to exercise its power if found necessary.
“It has to be borne in mind that the two courses of action referred above are not mutually exclusive and they can run 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”, it further clarified.
The Bench concluded the matter by clarifying that the developments that took place during the pendency of the proceedings had effectually rendered infructuous the prayers sought for by the appellant in the writ petition.
Cause Title: Rakhul Krishnan v. Union Of India (Neutral Citation: 2026:KER:68857)
Appearance
Appellant: Advocates Yeshwant Shenoy, Aysha Abraham
Respondent: Central Government Counsel C. Dinesh, Senior Panel Counsel Daya Sindhu Shreehari N.S., Senior Panel Counsel T.C. Krishna, Spl. Public Prosecutor Sreelal N. Warrier, Advocates P. Vijayakumar, Saiby Jose Kidangoor, Senior Government Pleader M.R. Arun Kumar, Government Pleader Sunilkumar Kuriakose, Advocates Navaneeth D. Pai, Pramitha Augustine, Afsana Khan, Sreeraj S. Rajaram, Sneha J., Adarsh Padmanabhan, Amal Dileep