Accused cannot be extradited on mere 'Red Corner' notice: SC

New Delhi, Aug 9 (PTI) In a ruling that would bring
relief for Indian citizens facing criminal charges in foreign
countries, the Supreme Court has held that an accused cannot
be extradited on a mere "Red Corner" notice or on a warrant
issued by a foreign court, as the same has to conform to the
domestic laws.

The apex court said a citizen can be extradited only if
there is a specific official request from the concerned nation
and the alleged offence is also an offence under any of the
Indian laws, otherwise it would be violative of the accused's
fundamental rights guaranteed under Article 19 (freedom of
expression) and Article 21 (liberty) of the Constitution.

"The Act (Extradition) as also the treaties entered into
by and between India and foreign countries are admittedly
subject to our municipal law. Enforcement of a treaty is in
the hands of the Executive.

"But such enforcement must conform to the domestic law of
the country. Whenever, it is well known, a conflict arises
between a treaty and the domestic law or a municipal law, the
latter shall prevail," a Bench of Justices S B Sinha and
Mukundakam Sharma said.

The apex court said the Extradition Act prescribes a
prior request from a foreign country.

"In the absence of any such request, no proceeding could
be initiated," the apex court said, while allowing the appeal
filed by Bhavesh Jayanti Lakhani in a matrimonial dispute.

Lakhani challenged the Central Bureau of Investigation
(CBI)'s decision to extradite him to the US on the basis of a
"Red Corner" notice issued by a Magistrate Court, Clayton
County, Georgia on a complaint filed by his estranged wife
Hetal G Thakker who accused him of abducting their daughter
and taking her to India.

Lakhani's case was that there was no official request
from the US and the extradition proceedings were initiated on
the basis of a warrant issued by the foreign court.

The Bombay High Court had refused to stay the extradition
following which he appealed in the Supreme Court.

Upholding his plea, the apex court said, "Indisputably,
therefore, when a proceeding under the Act (Extradition) is
initiated, the civil liberty of a person would be directly
affected. The provisions of the Act, therefore, should be
strictly construed. Any request for extradition therefore must
undergo the strict scrutiny test.

"It furthermore stands admitted that matrimonial dispute
as such does not constitute an extraditable offence and, thus,
no effect could be given thereto. However, whether this case
concerns an extraditable offence or not has to be determined
by the Magistrate under the Act," the Bench said.

The apex court also fixed certain parameters which had to
be observed by the authorities while permitting extradition of
citizens:

(i) That the offence should be counted as one by Indian
Law as well, and

(ii) The person must be liable to be arrested in India --
either under any law relating to extradition, or otherwise.

"Such an arrest can be effected only pursuant to a
warrant issued by the Magistrate in view of Sections 6, 16 and
34B of the Act or an arrest warrant issued by a foreign
country and endorsed by the Central Government under Section
15 of the Act," the court observed. PTI RB
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