In a significant and positive development, the Kerala High Court on 21 December 2020 in a landmark, learned and laudable judgment titled Rakhul Krishnan vs the Union of India represented by Secretary, Ministry of External Affairs and eight others in WP (C) No. 13875 of 2020 (H) has rightly held that an international arrest warrant by itself will not suffice to arrest an accused and extradite him to UAE.

This judgment came in the matter of Sreejity Vijayan, who is an accused in a criminal case in Dubai which culminated in the issuance of international arrest warrant against him. Justice N Nagaresh of Kerala High Court who authored this judgment pronounced in no uncertain terms that nationals of contracting states shall not be extradited unless there is a request made by the State concerned.

To start with, the ball was set rolling by stating that, “The petitioner has approached this Court seeking to direct respondents 1 to 4 to initiate action to implement Ext.P2 International Arrest Warrant as per the provisions of the Extradition Act, 1962 and to handover the 8th respondent to the Government of Dubai as per the provisions of the Extradition Act, 1962 and other enabling legal provisions.”

While elaborating on the facts of the case, it is pointed out that, “The petitioner states that he was an NRI businessman doing business in Dubai, UAE. The 8th respondent befriended the petitioner claiming that he is a business partner of a well known hotel in Dubai. The 8th respondent borrowed an amount of Six Million UAE Dirhams from the petitioner as a financial help to his businesses. The 8th respondent promised to repay the amount before 10.06.2015. But, before the said stipulated date, the 8th respondent absconded to India without repaying the amount.”

Elaborating further, it stated, “The petitioner would submit that the 8th respondent had borrowed money from several banks and other individuals in UAE and had absconded from UAE to India without discharging his debts. There are eight criminal cases registered against the 8th respondent by Dubai Police. The petitioner presented the personal guarantee cheque of 6 Million AED issued by the 8th respondent on 01.04.2016. The cheque was returned unpaid for insufficiency of funds. The petitioner filed a criminal case against the 8th respondent in Naif Police Station in Dubai. By Ext.P1, the Dubai Court convicted the 8th respondent for imprisonment for a term of two years. The petitioner initiated the procedure in Dubai criminal court to issue Interpol Red Warrant against the 8th respondent. An International Arrest Warrant was issued against the 8th respondent on 16.05.2018 as evidenced by Ext.P2.”

To put things in perspective, it is stated that, “The petitioner would contend that the Government of Dubai has transmitted the International Arrest Warrant to the 1st respondent for execution. Government of India has executed Extradition Treaty with the Government of United Arab Emirates. As per Article 2 of the said Treaty, a person sentenced by the court of the requesting State with the imprisonment for six months in respect of an offence, is liable to be extradited. The petitioner contended that the 8th respondent is a fugitive criminal and respondents 1 to 7 are liable to arrest and surrender the 8th respondent to the United Arab Emirates. However, the 8th respondent being an influential person, respondents 1 to 7 are not acting on the International Arrest Warrant. It is under such circumstances that the petitioner seeks interference by this Court.”

What ensued then? “The Inspector General of Police, Crime Branch, Thiruvananthapuram Range, filed a Statement pursuant to the directions of this Court. In the Statement, it has been stated that in the case of extradition of an Indian national from India to UAE, the provisions contained in Article 5 of the Extradition Treaty is applicable. Article 5 of the Extradition Treaty reads as follows:-

‘The nationals of the Contracting States shall not be extradited to the other Contracting State provided that the requested State shall submit the case to its competent authorities for prosecution if the act committed is considered as an offence under the laws of both Contracting States.’ ”

As a corollary, it is stated, “Therefore, the Inspector General would contend that for getting the fugitive extradited, the Government of UAE has to send a formal request to the Government of India through diplomatic channels, strictly as per the provisions of the Treaty and the Central Government will decide whether to extradite the subject or to submit the case to the competent authorities for local prosecution under Section 188 Cr.P.C. No such request or Ext.P2 International Arrest Warrant is received by respondents 5 to 7, contended the Inspector General of Police.”

The judgment records: “On behalf of respondents 1 to 3, the Assistant Solicitor General of India filed a Statement. The ASGI stated that there is an Extradition Treaty between India and UAE currently in force. In terms of Article 5 of the Extradition Treaty, the nationals of the Contracting State shall not be extradited to the other Contracting State provided that the requested state shall submit the case to its competent authority for prosecution if the act committed is considered as an offence under the laws of both Contracting States.”

Furthermore, it is noted that, “The ASGI further stated that as per Article 5 of India- UAE Extradition Treaty, the 8th respondent cannot be extradited to UAE. However, if an extradition request is made by UAE in respect of the 8th respondent, his case will be submitted to the competent authority for considering local prosecution in India.”

It is stated that, “The 8th respondent also filed a counter affidavit in the writ petition. The 8th respondent contended that the Hon’ble Apex Court in Bhavesh Jayanti Lakhani v. State of Maharashtra [(2009) 9 SCC 551] has held that arrest of a fugitive criminal can be made at the instance of Central Government only when request to this effect is received from foreign country and not otherwise. In the case of the 8th respondent, there is absolutely no material to hold that the 8th respondent is a fugitive criminal under the Extradition Act or to hold that the Central Government has received any request from the UAE Government. The writ petition is therefore without any merit and is to be dismissed.”

The judgment records: “Ext.P3 is the Extradition Treaty between the Government of the Republic of India and the United Arab Emirates signed at New Delhi on 25.10.1999. Article 5 of Ext.P3 Extradition Treaty reads as follows:-

‘The nationals of the Contracting States shall not be extradited to the other Contracting State provided that the requested State shall submit the case to its competent authorities for prosecution if the act committed is considered as an offence under the laws of both Contracting States.’ Therefore, it is evident that nationals of Contracting States shall not be extradited unless there is a request made by the State concerned.”

In emphatic terms, the court found as follows: “The contention of the petitioner is that the Government of Dubai has issued an International Arrest Warrant in Case No.43177/Penal/2017 by Dubai Court ordering the arrest of the 8th respondent for pursuing him locally and internationally. Article 8 of Ext.P3 Extradition Treaty would show that the request for extradition shall be made in writing and dispatched through the diplomatic channels with supporting documents and particulars. The warrant of arrest is only one of the documents made mention of in Article 8 of the Extradition Treaty. In view of the specific provisions contained in the Extradition Treaty between the Government of Republic of India and the United Arab Emirates, an International Arrest Warrant by itself will not suffice to arrest an accused and extradite him to UAE. For extradition, definitely there should be a request for extradition in writing which should be dispatched through diplomatic channels. In the absence of such a request in terms of Article 5 of the Extradition Treaty, Ext.P2 International Arrest Warrant issued by the Government of Dubai would not be sufficient to apprehend the 8th respondent and extradite him to UAE. In the circumstances of the case, no orders can be passed or directions be given to respondents 1 to 7 to extradite the 8th respondent to UAE for prosecution. No relief can be granted to the petitioner in the circumstances of the case. The writ petition is therefore dismissed.”

The judgment offers adequate reasons for not extraditing the accused to UAE. The process to extradite has been spelt out in detail and it as was not followed, and because the arrest warrant alone is insufficient, the petition was rejected. The judgment will have far-reaching consequences.

The writer is a Meerut-based Advocate.