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Delhi HC rules in favor of French national; terms her detention to be ‘illegal.’

Smrithi Suresh

In a judgment that is expected to have an impact on how extradition requests are processed in the country, the Delhi High Court today ruled that the detention of a French national was ‘illegal’.

She was wanted for her alleged involvement in the political assassination of a prominent Chilean leader in 1991.

Background

The judgment came in the background of petition filed by Marie Verhoeven against her “continous detention” since February 2015. Verhoeven was intercepted in February in Uttar Pradesh  on the basis of a Red Corner Notice issued by Interpol at a request for extradition made by Chile. She was wanted for her alleged involvement in the political assassination of a prominent Chilean leader in 1991.

Later, she was provisionally arrested by the order of the Additional Chief Metropolitan Magistrate, Patiala House Courts under Section 34-B of the Extradition Act, 1962.

The Union Government, acting through the MEA, had then accepted the extradition request and directed an inquiry against Verhoeven under Section 5 of the Extradition Act, 1962 as to the extraditability of the offence committed by her. She had moved two writ petitions before the Delhi High Court; to quash the Magistrate’s Order and also challenging the inquiry orders passed by the MEA against her.

The primary challenge in the issue is regarding an 118-year old treaty between Chile and British India. The order of the MEA had effectively given life to a treaty that was signed in 1897 between the UK & Chile and was applicable to all the British colonies, which also included India at that point in time.

Ruling on both pleas, the Division Bench of Chief Justice G Rohini & Jayant Nath held that,

“It is necessary to mention that the provisional arrest under Section 34-B of the Act can be valid only for a period of 60 days from the date of arrest if no request of his surrender is received within the said period. The petitioner was provisionally arrested on 24.02.2015 and thus the period of 60 days expired on 24.04.2015.

Though the extradition request was made by the Republic of Chile on 24.03.2015, by that date, the provisions of the Act were not made applicable to the Republic of Chile. Hence, in our considered opinion, the extradition request dated 24.03.2015 cannot be treated as a valid request for surrender in terms of Section 4 of the Act. In the absence of a valid request for surrender of the petitioner before the expiration of 60 days from 24.02.2015, the petitioner is entitled for discharge on 24.04.2015 i.e. on expiry of 60 days. On that ground also, therefore, the petitioner’s detention after 24.04.2015 is clearly illegal.

Consequently, we hold that the provisional arrest of the petitioner on 24.02.2015 in purported exercise of the powers conferred under Section 34- B of the Act was without jurisdiction. “

The Bench, however did not invalidate the treaty of 1897 and stated in its order that India’s international commitments as per the 1897 treaty did not cease even after “India became a Republic” and the provisions of the Extradition Act could be made applicable to Chile as per the treaty, under a notified order as per Section 3 (1) of the Act.

The judgment, written by the Chief Justice, also did not term the interception of Verhoeven on the basis of an Interpol notice, as illegal. It did, however, deem the order of inquiry passed by the MEA against Verhoeven as illegal, citing the reason that the said order was passed under Section 5 of the Extradition Act without there being ‘any valid request for extradition from Chile, on the particular date that the order was passed.

The Bench made it expressly clear in its judgment that the said order of setting aside Verhoeven’s detention was not to come in the way of the Union in “initiating fresh steps for extradition of the petition following due process of law.”

You can read the judgment below.

Verhoeven-Marie-v-Union-of-India.pdf
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