Bhavesh Jayanti Lakhani

Vs
State Of Maharashtra
(2010) 1 SCC (Cri.) 47

Appellant — Bhavesh Jayanti Lakhani

Respondent— State Of Maharashtra and Ors.

Introduction
Interpretation of the roles and responsibilities of the Central Bureau of Investigation (CBI) vis-`-vis the
provisions of the Extradition Act, 1962 is involved in this appeal.

It arises out of a judgment and order passed by a Division Bench of the High Court of Bombay in Criminal
Writ Petition whereby the appellant’s application questioning the validity and/ or legality of an order
issuing a warrant against the appellant by the Magistrate Court in USA in respect of a complaint filed by
the respondent No. 6 herein, was dismissed.

Facts of the case

• Appellant and the respondent No. 6 are citizens of India. He went to Michigan to pursue his
studies.

• Appellant married the respondent No. 6 at Mumbai. They moved to California . Out of the said
wedlock, a daughter Eesha was born on 26.04.2003. Marital life of the Appellant and the
Respondent No. 6 was however not happy.

• According to the respondent No. 6, she was continuously being harassed. The respondent No. 6
allegedly moved to her sister’s house in USA.

• The Respondent filed a complaint with the Sharon Police Department. An application before the
Probate and Family Court of Massachusetts for grant of divorce was filed by her. In the said
proceeding, she also sought for orders of custody of her daughter.

• The Probate and Family Court, Massachusetts passed an order of temporary custody of the child
in favour of the respondent No.6 and against the appellant.
 • He neither appeared before the Court contesting the said interim custody order nor sought for
any modification. Respondent No.6 took up a job and continued to live with her child in
Massachusetts. Also, her Indian Passport was stolen by the appellant from the premises which
was being occupied by her.

• The appellant came to India with the child on 15.04.2006 in violation of the court custody
orders.

• According to the appellant despite the initial marital discord, the parties started living together.
It was decided that he should return to India with the child where for even a written consent
was given by the respondent No. 6 by affirming an affidavit before a Notary.

• Respondent No. 6 contends that the appellant travelled out of the United States of America with
the child by creating false and fabricated documents including the said affidavit as would also
appear from the fact that the child already had a passport. On the premise that the child was
abducted by the appellant, warrants of arrest were issued against him on the basis of a
complaint made by the respondent No. 6 before the police authorities.

• A decree for divorce as also the custody of the child was passed by the Norfolk Country Probate
and Family Court.

• Respondent No. 6 filed an application for custody of the child before the Family Court at
Mumbai on . By an order dated 15.05.2007, the Family Court directed the appellant to remain
present in the Court with Eesha.

• Pursuant to the notice of the Family Court, appellant’s father appeared before the court and
stated that the appellant had gone out of Mumbai along with Eesha. The matter, therefore, was
adjourned. Later on the appellate could not be contacted.

• The Family Court, thus issued a warrant of arrest against the appellant and directed grant of
custody of the child to the Respondent No. 6.

• Appellant preferred an appeal before the High Court . An order of stay was granted by the High
Court of Bombay in the matter.

• The Atlanta City Police and the American Court in the meanwhile issued a warrant of arrest
against the Appellant which was transmitted through INTERPOL to the Government of India.

• Appellant filed a writ petition questioning the legality and/ or validity of the said warrant.

Legal issues
• Whether having regard to the concept of sovereignty the Executive Government of India can
enforce a warrant passed by the Probate and Family Court, Massachusetts?
 • Whether the CBI has the authority to deal with INTERPOL notices?

Contentions
1. Appellant side
• The decree for divorce and custody of the child granted by the Probate and Family Court,
Massachusetts is not admissible in any Court in India.
• The purported order of custody in respect of the child passed by the American Courts being in
conflict with the order of custody passed by the High Court of Bombay, the appellant could not
have been directed to be extradited.
• The order passed by the American Court having been obtained upon committing a fraud on the
court, the said judgments cannot be executed in India.
• So far as the judgment of the Bombay High Court is concerned, it was urged that it ought to
have considered that the so-called offence for which the petitioner is charged by the American
Court is not an extraditable offence either within the meaning of the said Act or under the
provisions of the Extradition Treaty entered into by and between the United States of America
and India.
• It ought to have been considered that the rights of an Indian citizen guaranteed under Article 19
and Article 21 cannot be compromised for enforcing any of the provisions.
• The refusal of the High Court to stay the INTERPOL notices under Article 226 of the Constitution
of India is erroneous.
• It ought to have considered that before touching the petitioner on the basis of a warrant issued
by the American Courts proper investigation into the allegations against the petitioner was a
must.
• It ought to have considered that the provisions of the Constitution of India conferring
fundamental rights to its citizens are superior and, thus, prevail over the provisions of the said
Act or the Extradition Treaty.
2. Respondent side
• Taking away the child out of the country in violation of an order passed by a competent
court of law would amount to abduction and in that view of the matter the appellant must
be held to have committed an extraditable offence.
• Contention of the learned counsel for the Appellant that he had not been served with the
notice of the Matrimonial Court is factually incorrect as the records of the case establish
that, not only a notice but also the order of the Court granting custody in favour of
respondent No.6. was served on the appellant.
• Having regard to the prayers made in the writ petition by the appellant before the High
Court, the High Court had no jurisdiction to interfere with the red corner notice or the
yellow notice.
• Despite the fact that the CBI was informed that fugitive criminal was in Mumbai, he had not
been detained.
Decision of the court
➢ The Honourable court was of the view that it is beyond any doubt or dispute that no request for
extradition has been received by the Government of India. It could act only when a request is
received. It is accepted that Red Corner Notice by itself cannot be a basis of arrest or transfer of
an Indian citizen to a foreign jurisdiction.
➢ The High Court committed a serious error as it failed to take into consideration the provisions of
the Act, in the absence of any request having been made.
➢ It stands admitted that matrimonial dispute as such does not constitute an extraditable offence.
➢ It is thus for the State concerned to take a decision in regard to red corner notices, keeping in
view the Municipal Laws. The steps to deal with the request contained in the notices must abide
by the domestic laws of the concerned country.
➢ The C.B.I. could not have directed any surveillance on the Appellant or got the warrant of arrest
executed through the Mumbai police. C.B.I is entitled to organize and coordinate in regard to
the request made by INTERPOL.
➢ A fundamental Right of a citizen whenever infringes, the High Courts having regard to its
extraordinary power under Article 226 of the Constitution of India keeping in view that access to
justice is a human right would not turn them away only because a Red Corner Notice was issued.
➢ As regards the question of custody, it was noticed that although the family court at Bombay for
all intent and purposes relying on the basis of the order passed by the Massachusetts Court
directed custody of the girl in favour of her mother, the Bombay High Court has stayed the
operation. The Appellant therefore, must be held to be in lawful custody of his daughter unless
any other order is passed by a court of competent jurisdiction.
➢ The impugned judgment is set aside accordingly. The appeal is allowed.

Note*
INTERPOL (The International Criminal Police Organisation)
The INTERPOL is the world’s largest international police organization with 187 countries as its members.
The object of establishing the INTERPOL was `to ensure and promote the widest possible mutual
assistance between all criminal police authorities’.

INTERPOL NOTICES The organizational system of issuing International notices forms the backbone of its
functioning. The Member countries in terms of notices share critical crime related information. They
concern individuals wanted for serious crimes, missing persons, unidentified bodies etc.

A Red Corner notice is issued to seek the provisional arrest of a wanted person. However, it by itself
does not have the effect of warrant of arrest. It is issued for persons, against whom a national or
international court has issued a warrant of arrest.

A Yellow notice is issued for finding a missing person or to identify people who are not capable of
identifying themselves. It is an “International Missing Person Notice”. It is issued specially to locate
minors.