1. Extradition — International arrest warrant — Fugitive criminal — Extradition Act, 1962 — Treaty with UAE — Directions sought to implement arrest warrant. (Para 2 , 4 )
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2026 Supreme(Online)(Ker) 60150
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K.JAYASANKARAN NAMBIAR, PREETA A.K, JJ
RAKHUL KRISHNAN – Appellant
Versus
UNION OF INDIA – Respondent
WA 350/2021
Important Points
On receiving an International arrest warrant via Interpol, the Nodal Agency must simultaneously notify the Central Government for action under Section 34-B and the jurisdictional Magistrate under Section 9 of the Extradition Act, 1962; a formal diplomatic request is not required for the immediate arrest of a fugitive.
Subject
Criminal Law - Extradition
Act Referred
Extradition Act, 1962: S.3, S.4, S.5, S.8, S.9, S.34-B
Negotiable Instruments Act, 1881: S.138, S.142
Code of Criminal Procedure: S.190(1), S.198, S.199
Negotiable Instruments Act, 1881: S.138, S.142
Code of Criminal Procedure: S.190(1), S.198, S.199
Headnote
(A) Extradition Act, 1962 - Sections 9 and 34-B - Extradition Treaty - Articles 8 and 9 - Procedure for arrest of fugitive criminals upon receipt of International arrest warrants transmitted through Interpol - Distinction between formal requisition for surrender and immediate arrest - Nodal agency's duty to intimate the Central Government for action under Section 34-B and the jurisdictional Magistrate for action under Section 9 - Parallel processing of these actions to prevent absconding - Requirement of judicial intervention for arrest - Prohibition on direct arrest by Nodal Agency. (Paras 13, 14, 15)
(B) Extradition - Substantive ingredients including reciprocity, double criminality, extraditable offences, speciality, and non-inquiry - Principle of aut dedere aut judicare (extradite or prosecute). (Paras 10, 12)
Facts of the case:
The appellant sought the arrest and extradition of a fugitive who had absconded to the requested state after being convicted by a foreign court. Despite an International arrest warrant being transmitted to the nodal agency via Interpol, no action was taken. The appellant challenged a judgment which held that a formal diplomatic request was mandatory for any arrest of the fugitive.
Findings of Court:
The court held that while a formal requisition through diplomatic channels is required for the surrender of a fugitive, it is not a prerequisite for immediate arrest. The nodal agency is obligated to act upon an International arrest warrant received via Interpol by informing the appropriate executive and judicial authorities.
Issues: Whether a formal diplomatic request is necessary for the immediate arrest of a fugitive criminal when an International arrest warrant has been transmitted through Interpol.
Ratio Decidendi: The court ruled that the nodal agency, upon receiving an International arrest warrant via Interpol, must simultaneously forward the information to the Central Government to initiate action under Section 34-B and to the jurisdictional Magistrate to exercise power under Section 9 of the Extradition Act. These processes can run in parallel. The agency cannot arrest the individual directly but must obtain a warrant from a Magistrate.
Result: Writ Appeal is disposed.
(B) Extradition - Substantive ingredients including reciprocity, double criminality, extraditable offences, speciality, and non-inquiry - Principle of aut dedere aut judicare (extradite or prosecute). (Paras 10, 12)
Facts of the case:
The appellant sought the arrest and extradition of a fugitive who had absconded to the requested state after being convicted by a foreign court. Despite an International arrest warrant being transmitted to the nodal agency via Interpol, no action was taken. The appellant challenged a judgment which held that a formal diplomatic request was mandatory for any arrest of the fugitive.
Findings of Court:
The court held that while a formal requisition through diplomatic channels is required for the surrender of a fugitive, it is not a prerequisite for immediate arrest. The nodal agency is obligated to act upon an International arrest warrant received via Interpol by informing the appropriate executive and judicial authorities.
Issues: Whether a formal diplomatic request is necessary for the immediate arrest of a fugitive criminal when an International arrest warrant has been transmitted through Interpol.
Ratio Decidendi: The court ruled that the nodal agency, upon receiving an International arrest warrant via Interpol, must simultaneously forward the information to the Central Government to initiate action under Section 34-B and to the jurisdictional Magistrate to exercise power under Section 9 of the Extradition Act. These processes can run in parallel. The agency cannot arrest the individual directly but must obtain a warrant from a Magistrate.
Result: Writ Appeal is disposed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- constitutional and administrative law
Advocates:
APPELLANT/PETITIONER: BY ADV.SRI.YESHWANT SHENOY
BY ADV SMT.AYSHA ABRAHAM
RESPONDENTS/RESPONDENTS 1 TO 8: BY SRI.C.DINESH, CENTRAL GOVERNMENT COUNSEL
BY SRI.DAYA SINDHU SHREEHARI N.S., SENIOR PANEL COUNSEL
BY SRI.T.C.KRISHNA, SENIOR PANEL COUNSEL
BY SRI.SREELAL N.WARRIER, SPL. PUBLIC PROSECUTOR,
CENTRAL BUREAU OF INVESTIGATION (CBI)
BY ADV.SRI.P.VIJAYAKUMAR
BY ADV.SRI.SAIBY JOSE KIDANGOOR
BY SRI.M.R.ARUN KUMAR, SENIOR GOVERNMENT PLEADER
BY SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER
BY ADV.SRI.NAVANEETH D.PAI
BY ADV.SMT.PRAMITHA AUGUSTINE
BY ADV.SMT.AFSANA KHAN
BY ADV.SRI.SREERAJ S. RAJARAM
BY ADV.SMT.SNEHA J.
BY ADV.SRI.ADARSH PADMANABHAN
BY ADV.SRI.AMAL DILEEP
APPELLANT/PETITIONER: BY ADV.SRI.YESHWANT SHENOY
BY ADV SMT.AYSHA ABRAHAM
RESPONDENTS/RESPONDENTS 1 TO 8: BY SRI.C.DINESH, CENTRAL GOVERNMENT COUNSEL
BY SRI.DAYA SINDHU SHREEHARI N.S., SENIOR PANEL COUNSEL
BY SRI.T.C.KRISHNA, SENIOR PANEL COUNSEL
BY SRI.SREELAL N.WARRIER, SPL. PUBLIC PROSECUTOR,
CENTRAL BUREAU OF INVESTIGATION (CBI)
BY ADV.SRI.P.VIJAYAKUMAR
BY ADV.SRI.SAIBY JOSE KIDANGOOR
BY SRI.M.R.ARUN KUMAR, SENIOR GOVERNMENT PLEADER
BY SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER
BY ADV.SRI.NAVANEETH D.PAI
BY ADV.SMT.PRAMITHA AUGUSTINE
BY ADV.SMT.AFSANA KHAN
BY ADV.SRI.SREERAJ S. RAJARAM
BY ADV.SMT.SNEHA J.
BY ADV.SRI.ADARSH PADMANABHAN
BY ADV.SRI.AMAL DILEEP
Table of Contents
2. Appellant: International arrest warrant sufficient for arrest. Respondents: Formal extradition request via diplomatic channels required under Article 5. (Para 5 , 6 )
3. Nodal Agency must forward International arrest warrant to Central Government under Section 34-B and jurisdictional Magistrate under Section 9 of the Extradition Act. (Para 14 , 15 )
4. Under Articles 8 and 9 of Extradition Treaty and Sections 9 and 34-B of Extradition Act, a formal extradition request is not needed for immediate arrest before extradition. (Para 13 , 14 , 15 )
5. What procedure must the Nodal Agency follow upon receiving an International arrest warrant from a treaty state through Interpol?
The Nodal Agency must forward the warrant to the Central Government for action under Section 34-B and to the jurisdictional Magistrate under Section 9 of the Extradition Act. (Para 14 , 15 )
6. Is a formal extradition request through diplomatic channels required before a fugitive criminal can be arrested in India?
No, for immediate arrest before extradition, a formal request is not required; a provisional arrest may be made under Article 9 of the Treaty and Sections 9 and 34-B of the Act. (Para 13 , 14 )
7. What is the principle of 'aut dedere aut judicare' and how is it reflected in the Extradition Treaty with UAE?
The principle obliges a State to either extradite or prosecute a fugitive criminal. Article 5 of the Treaty reflects this by requiring prosecution if extradition of a national is refused. (Para 12 )
8. Can a Magistrate independently issue a warrant of arrest for a fugitive criminal without a prior Central Government order?
Yes, under Section 9 of the Extradition Act, a Magistrate may issue a warrant if satisfied that a person is a fugitive criminal, subject to reporting to the Central Government within three months. (Para 13 , 15 )
JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
The petitioner in W.P.(C).No.13875 of 2020 is the appellant before us impugning the judgment dated 21.12.2020 of a learned Single Judge that dismissed his writ petition.
2. The brief facts necessary for disposal of this writ appeal are as follows:
The appellant's case is that he is an NRI businessman and that the 8th 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.
3. Although the 8th respondent promised to return the money before 10.06.2015, he absconded to India without doing so. The personal guarantee cheque of 6 million AED issued by the 8th respondent on 01.04.2016 was also dishonored by the bank when presented for encashment by the appellant. The appellant therefore filed a criminal case against the 8th respondent in Naif Police Station, Dubai. In the proceedings that followed, the Dubai Court convicted the 8th respondent and sentenced him to imprisonment for a term of two years.
4. Finding that the 8th respondent had absconded from Dubai, the appellant initiated proceedings before the authorities in Dubai for the issuance of the Interpol Red Corner Notice and International arrest warrant against the 8th respondent. An International arrest warrant was accordingly issued against the 8th respondent on 16.05.2018 [Ext.P2]. According to the appellant, although the said International arrest warrant was transmitted to the Nodal Agency [4th respondent] of the Union of India [1st respondent] through the Interpol for execution, the 1st respondent, which had executed an Extradition Treaty with the UAE, did not act upon the International arrest warrant, thereby allowing the 8th 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 1 to 4 to implement Ext.P2 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 8th respondent to the Government of Dubai in accordance with the said provisions.
5. In the counter affidavit filed on behalf of the State Government as well as the Union Government, the stand taken was that, as per Article 5 of the Extradition Treaty, nationals of Contracting States could not be extradited unless the Government of UAE sent a formal request to the Government of India through diplomatic channels and even then, the case of the 8th respondent would only be submitted to the competent authorities in India for a prosecution in India. The counter affidavit filed on behalf of the 8th respondent was also on similar lines.
6. The learned Single Judge, who considered the matter, found that in terms of Article 5 of the Extradition Treaty, the nationals of Contracting States could not be extradited unless there was a formal request made by the States concerned. In the instant case, it was found that there was no formal request for extradition made by the Government of Dubai, and the mere issuance of an International arrest warrant was not sufficient to arrest an accused in India and extradite him to UAE.
7. Although this Writ Appeal impugning the aforesaid judgment of the learned Single Judge was filed as early as in 2021, there was no stay of the impugned judgment by the Division Bench, and further, no positive directions were issued to direct the arrest of the 8th respondent. It is also significant that no fresh request was received from the authorities in UAE to extradite the 8th respondent. For all practical purposes, therefore, this writ appeal has become infructuous by efflux of time. The learned counsel for the appellant Sri.Yeshwanth Shenoy would, however, seek our indulgence in laying down the law with regard to the procedure to be followed by the authorities functioning under the Extr
