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2008 Supreme(Bom) 1135
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ.
Shri Bhavesh Jayanti Lakhani — Petitioner
Versus
The State of Maharashtra — Respondents
CRIMINAL WRIT PETITION NO.676 OF 2008
Decided on : 11th AUGUST, 2008.
Mr. A.P. Mundargi, senior counsel i/b Mr. Prakash Naik for the petitioner.
Mr. S.R. Borulkar, Public Prosecutor with Ms. U.V. Kejariwal,
A.P.P. for the State.
Mr. Yug Choudhary, advocate appointed for respondent 6.
Headnote:Constitution of India, 1950 - Article 226-Extradition Act, 1962, Section 17-Treaty obligations-Disputed facts.-According to her, while fraudulently taking Eesha to India, the petitioner took away her passport. Therefore, she could not follow him to India. She got a new passport and visited India. She could not locate the petitioner hence she went back. She again came to India after learning that the petitioner was staying in Borivali and then filed a petition in the Family Court. She has expressed a fear that the petitioner may abscond and take Eesha out of the jurisdiction of the Court. Therefore, here Court is concerned with disputed facts of such nature which cannot be investigated in writ jurisdiction. Besides, the Extradition Act provides for a procedure which cannot be bypassed.
Criminal Procedure Code, 1973 - Section 239-Extradition Act, 1962, Sections 17 and 7-Discharge of accused-Fugitive criminal-Powers of Magistrate.-While dealing with fugitive criminal wanted in a State with which India has no treaty, the Magistrate can inquire into the case in the same manner as if the case was triable by Court of Sessions or High Court, however, while dealing with a fugitive criminal wanted in a treaty State, such inquiry and such a trial is not open. There is no provision enabling the Magistrate to take evidence. He cannot discharge the fugitive criminal.
Extradition Act, 1962 - Section 17-Constitution of India, Article 226-Red Corner Notice-What is?-Red Corner Notice is International Criminal Police Commission Notice (Interpol Notice). It plays a vital role in tracking, tracing and extraditing internationally wanted fugitives. It is issued to seek the provisional arrest and extradition of the fugitive on the basis of valid arrest warrant. It is not possible for Court to stay warrants issued against the petitioner by the American Courts. Red Corner Notice cannot be tinkered with. The procedure prescribed under the law must be followed. Apart from the fact that Court is of the considered opinion that warrants issued by American Courts and the Red Corner Notice cannot be stayed, Court would not like to set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notice is a critical tool.
Extradition Act, 1962 - Sections 17 and 7-Extradition of fugitive criminal from treaty States- Power of Magistrate.-In case of extradition of fugitive criminal from treaty States, the Magistrate cannot make a roving injury into facts. He has to only see whether the warrant is endorsed properly and whether the fugitive criminal is involved in an extradition offence. He cannot assume the role of a trial Judge. The moment he is satisfied that the above two conditions are satisfied, he shall commit the fugitive criminal to custody.
Smt. Ranjana Desai, J.
1. In this petition filed under Article 226 of the Constitution of India, the warrant issued by the Magistrate Court, Clayton County, Georgia in Case No.2006/CW/06369 and Case No.2006/CW/06370 or any other Court in the U.S.A. in respect of the complaint filed by respondent 6 is sought to be stayed. The petitioner is also seeking a direction restraining the respondents or any other Central Government machinery from arresting the petitioner or taking any action pursuant to the warrants.
2. We have heard, at length, Mr. Mundargi, learned senior counsel, who is appearing for the petitioner, Mr. Choudhary, who is appointed by us to appear for respondent 6 and Mr. Borulkar, learned Public Prosecutor for the State.
3. In this petition, on 7/4/2008, Division Bench of this court (Bilal Nazki & V.M. Kanade, JJ) issued notice to the other side. Interim relief in terms of prayer clause (c) was granted. Resultantly, the warrants issued against the petitioner got stayed. The petition appeared on our board on 22/7/2008. Since respondent 6, the wife who is in U.S.A. was not served, she was not represented. Because it is the case of the petitioner as submitted in the court and reiterated in the written submissions that a Red Corner Notice is issued against him and because by interim order, the warrants and the Red Corner Notice are stayed, we appointed Mr. Choudhary to assist us on behalf of respondent 6. We directed that the petition be placed on our board on 29/7/2008. Interim protection was ordered to be continued till 29/7/2008. We directed Mr. Choudhary to get address of respondent 6 from the petitioner's counsel and take steps to contact her. On 29/7/2008, Mr. Choudhary stated that he had contacted the petitioner on phone. He stated that the correct address of respondent 6 was not given by the petitioner. We, therefore, granted to the petitioner leave to amend the title. Statement of the petitioner's counsel was recorded that compilation will be sent to respondent 6 by courier. Compilation seems to have not been dispatched till 1/8/2008. It was brought to our notice that minor daughter Eesha's custody was granted by the American Court as well as the Family Court at Mumbai to respondent 6 mother and the Family Court had also issued arrest warrant against the petitioner. It was also brought to our notice that the Family Court's order is challenged by the petitioner in this court; that the petitioner's appeal is admitted and that the warrant issued by the Family Court is stayed. It was pointed out to us that this court had while admitting the matter noted in the order that the petitioner had brought Eesha to the court but the respondentwife was not available. We are informed that this court did not interview the child. In the interest of justice, therefore, we directed that the child be brought to us on 30/7/2006 at 3.00 p.m. The petition was adjourned to 30/7/2006. Interim protection was extended till 30/7/2006. On 30/7/2006, we interviewed Eesha in our chamber. We asked learned counsel whether the civil appeal and the present petition should be heard together. Mr. Naik, learned counsel for the petitioner took time to obtain instructions. We, therefore, adjourned the petition to 31/7/2008 and extended the protection granted to the petitioner till 31/7/2008. On 31/7/2008, Mr. Naik submitted that he cannot make a statement that both the matters should be heard together. Since a question of law is involved in this petition, we posted this petition for hearing as to admission today by extending interim protection till today. Before, we turn to the question of law, it is necessary to give the gist of the facts as stated by the petitioner because the petitioner's counsel has alleged fraud and contended that fraud has vitiated all actions initiated against the petitioner.
4. The case of the petitioner as stated in the written submission is that he got married to respondent 6 on 6/4/2002 in Mumbai. After marriage, th
