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2011 Supreme(Mad) 1154
2011 (1) LW(Crl) 635, 2011 (2) MWN(Cr) 239, 2011 (3) MLJ(Crl) 327
High Court of Judicature at Madras
G.M. AKBAR ALI
Mohammed Zubair Fauzal Awam
Versus
State rep by the Inspector of Police (Crime), Chennai & Another
CRL.O.P.No.1204 of 2011 & M.P.No.1 of 2010
Decided on : 03-03-2011
For the Petitioner:AR.L. Sundaresan, Senior Counsel for S. Pugalenthi, Advocate. For the Respondents:R1 - G. Prasanna, Govt. Advocate (Crl.Side), R2 - N. Chandrasekaran, Spl.P.P for CBI Cases.
Sec.41(1)(g) of Cr.P.C cannot be invoked in the presence of a red corner notice without a formal extradition request.
Headnote:
Extradition - Red Corner Notice - Extradition Act 1962 - Sec.41(1)(g) of Cr.P.C - [Extradition] - [Extradition Act 1962, Sec. 4, 5, 6, 7, 8, 14, 15, 16, 25], [Cr.P.C, Sec. 41(1)(g)] - The court discussed the relevant provisions of the Extradition Act 1962 and Sec.41(1)(g) of Cr.P.C in the context of a red corner notice issued by the Interpol. It highlighted the procedure for extradition, the conditions for arrest of a fugitive criminal, and the limitations of Sec.41(1)(g) in the presence of a red corner notice. The court emphasized the need for a formal extradition request and quashed the proceedings based on the absence of such a request.
Fact of the Case:
The petitioner, a Srilankan Tamilian, was arrested in India based on a red alert notice issued by Interpol at the request of the Sri Lankan Government. The petitioner sought to quash the proceedings under Sec.41(1)(g) of Cr.P.C.
Finding of the Court:
The court found that the initiation of proceedings under Sec.41(1)(g) of Cr.P.C was not maintainable in the absence of a formal extradition request from the Sri Lankan Government.
Issues: The main issue was whether the arrest and proceedings under Sec.41(1)(g) of Cr.P.C were valid based on the red alert notice and the provisions of the Extradition Act 1962.
Ratio Decidendi: The court held that Sec.41(1)(g) of Cr.P.C cannot be invoked in the presence of a red corner notice without a formal extradition request. It emphasized the need for following the procedure prescribed for a Magistrate for the issuance of a warrant in extradition cases.
Final Decision: The criminal original petition was allowed, and the proceedings in X Crime No..559 of 2010 on the file of the respondent were quashed.
1. Petitioner has been filed seeking a direction to call for the proceedings in X Crime No..559 of 2010 on the file of the respondents and to quash the same.
2. The case of the petitioner in brief is as follows:
The petitioner, a Srilankan Tamilian is temporarily residing at 3F, III Floor, Seetha Nagar, Nungambakkam, Chenai-34. He is engaged in the business of Garments Export in Colombo, Sri Lanka, and is known to all businessmen in the Colombo business circle. He visited Chennai on 30.4.2006 for a business deal and also for his treatment. The petitioner has been staying in India till date without any adverse remakr against him. The petitioner would submit that he has been scrupulously following the rules and regulations regarding his stay and a certificate was issued by the Inspector of Police, Nungambakkam to the effect that he has no adverse remark as per the records available in F3 Nungambakkam Police Station, Chennai.
3. While so, on the strength of a red alert notice dated 7.7.2010, issued by the Interpol, New Delhi in pursuant to an arrest warrant issued by a competent court at Srilanka to arrest the petitioner, a case has been registered by the City Crime Branch under Sec.41 (1)(g) of Cr.P.C in Cr.No.559 of 2010. The petitioner was arrested on 2.11.2010 and he was informed about the red alert notice.
4. Aggrieved by registration of the case against the petitioner under Sec.41(1)(G), the petitioner is now before this court seeking to quash the entire proceedings on various grounds.
5. To demonstrate that the impugned proceedings are liable to be quashed, Mr.Ar. L. Sunderasan the learned Senior Counsel for Mr.S. Pugalenthi, learned counsel for the petitioner would raise the following grounds:
a) the petitioner has been staying in India with valid visa and has not violated any immigration law and has been permitted to stay till 2011
b) it came to the knowledge of the petitioner that a red alert notice was issued by Government of Sri Lanka through the Interpol and in that event the provisions of the Extradition Act 1962 is applicable and the respondent has failed to follow the provisions of the Act.
c) As per the provisions of the Act, no request has been sent to Govt of India from the Government of Sri Lanka for the extradition of the petitioner
d) The petitioner is not a fugitive seeking asylum in India and he has not committed any act which is an offence under any of the Indian Penal Laws.
6. The learned senior counsel strongly placed his reliance to the decision reported in 2009 (9) SCC 551 (Bhavesh Jayanti Lakhani vs State of Maharashtra and Others).
7. The 1st respondent has filed a counter stating that as per the red alert notice dated 7.7.2010 issued by the Sri Lankan Government, Interpol at New Delhi issued orders to arrest the petitioner and therefore the provisions under Sec41(1)(g) was invoked and the petitioner was arrested and produced before the learned Judicial Magistrate. According to the respondents, invoking the provision under Sec.41(1)(g) of Cr.P.C is legally valid in the light of the red alter notice and an open warrant issued against the petitioner by the Sri Lankan Government.
8. Heard and perused the materials available on record.
9. The point for consideration arises out is whether the initiation of proceedings under Sec.41(1)(g) of Cr.P.C is maintainable at the receipt of Red Corner Notice.
10. In order to appreciate the contentions of the learned counsel for the petitioner, it is relevant to mention the relevant provisions of the Extradition Act. An elaborate procedure has been provided in Chapters II and III of the Extradition Act to regulate such a case where there are no extradition arrangements have been made for the return of a fugitive criminal to foreign States and Chapter III deals with case where there are extradition arrangements have been made. Under Sectiion 4 of the Extradition Act, a requisition for the surrender of a fugitive criminal of a foreign state may be made to th
