Law Web: Kerala HC: International Arrest Warrant By Itself Not Sufficient To Extradite A Person To UAE Unless There Is A Written Request

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

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.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

WP(C).No.13875 OF 2020(H)

RAKHUL KRISHNAN VS UNION OF INDIA

Coram: MR.JUSTICE N.NAGARESH

Dated this the 21st day of December, 2020

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.

2. 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.

3. 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 8 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.

4. 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.

5. 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.”

6. 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.

7. 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.

8. 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.

9. 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.

10. I have heard the learned counsel for the petitioner,

the learned Assistant Solicitor General of India appearing for

respondents 1 to 3 and the Additional 9th respondent, learned

Government Pleader appearing for respondents 5 to 7 and the

learned counsel appearing for the 8th respondent.

11. 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.

12. In the case on hand, the Assistant Solicitor General

of India representing respondents 1 to 3 and additional 9th

respondent as also Government Pleader representing

respondents 5 to 7 have categorically stated that no such

request has been received from the Government of UAE

seeking extradition of the 8th respondent. Therefore, going by

the Extradition Treaty, the 8th respondent cannot be extradited

to the United Arab Emirates.

13. The contention of the petitioner is that the