The Kerala High Court recently held that Indian authorities cannot simply ignore an international arrest warrant received through Interpol merely because the foreign country has not yet formally asked India to extradite the person [Rakhul Krishnan v Union of India & ors].
The Court explained that there is a difference between arresting a fugitive in India immediately and extraditing or sending that person to another country.
A bench of Justice AK Jayasankaran Nambiar and Justice Preeta AK explained that under Sections 4 (requisition for surrender) and 8 (surrender of fugitive criminal) of the Extradition Act, 1962 (Act), a formal extradition request through diplomatic channels is required when a foreign country wants India to surrender or extradite the fugitive to that country.
However, such a request is not necessary when the foreign country only seeks the immediate arrest of a fugitive.
"Thus, 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," the Court held.
The Bench also laid down certain steps for Indian authorities to follow when such an arrest warrant is received through Interpol.
It said that India's nodal agency must forward the warrant to the Central government, which can then consider approaching the magistrate concerned for a provisional arrest warrant under Section 34-B (provisional arrest) of the Act.
At the same time, the nodal agency must inform the magistrate about the international arrest warrant and the magistrate can then independently decide whether an arrest warrant should be issued under Section 9 (power of magistrate to issue warrant of arrest in certain cases) of the Act.
The Court said that both these steps can be taken simultaneously, particularly since the person may otherwise abscond while the authorities are processing the matter.
However, it clarified that the Indian nodal agency cannot itself arrest a person merely on the basis of an international arrest warrant and that it must be authorised through a magistrate in accordance with Indian law.
The September 8 ruling came in an appeal filed by Rakhul Krishnan, an NRI businessman who alleged that the respondent, Sreejith Vijayan, had borrowed about 6 million UAE dirhams from him for a hotel business, but left for India without repaying the money.
A Dubai court convicted Vijayan and sentenced him to two years in prison after Krishnan initiated criminal proceedings against him.
Since Vijayan had left Dubai, Krishnan approached the authorities for an Interpol Red Corner Notice and an international arrest warrant.
The same was issued on May 16, 2018 and sent through Interpol to India's nodal agency, CBI-NCB Interpol.
However, the Indian authorities did not act on the warrant, citing the absence of a formal request from UAE for Vijayan's extradition.
A single-judge of the High Court had earlier accepted this position, holding that the international arrest warrant by itself was not sufficient to arrest Vijayan in India and extradite him to the UAE.
However, the division bench disagreed with the broader view that nothing could be done until a formal extradition request was received.
It found that after receiving the international arrest, the CBI-NCB Interpol should have informed both the Central government and the magistrate concerned so that the procedure for Vijayan's immediate arrest could be considered.
"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," the Court said.
Ultimately, noting that the developments during the pendency of the case had made the reliefs sought by Krishnan infructuous, the Court disposed of the appeal while laying down certain steps to guide the nodal agency for arresting an international fugitive in future cases.
Advocates Yeshwant Shenoy and Aysha Abraham appeared for Krishnan.
[Read Judgment]