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REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL CRIMINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 178 OF 2015

Verhoeven, Marie-Emmanuelle     .…Petitioner

versus

Union of India & Ors.      .…Respondents  

WITH

     CRIMINAL APPEAL NO. 417  OF  2016 (Arising out of S.L.P. (Crl.) No. 8931/2015)

J U D G M E N T

Madan B. Lokur, J.

1.   The writ petition is admitted and in the connected matter, special  

leave is granted.  

2.   The principal question for consideration is whether there is a binding  

extradition treaty in terms of Section 2(d) of the Extradition Act, 1962  

between India and Chile. Our answer to this question is in the affirmative.  

3. The subsidiary question, equally important, is assuming there is  

no  binding  extradition  treaty  between  India  and  Chile,  whether  a  

requisition by Chile invoking the principle of reciprocity and the general  

principles of international law for extraditing the petitioner from India is  

maintainable. In our opinion, the general principles of international law  

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do not debar the requisition. However, whether the petitioner ought to be  

extradited  or  not  is  a  decision  that  the  concerned  Magistrate,  before  

whom the extradition proceedings are pending, will need to take on the  

evidence and material before him.  

4. The  case  before  us  has  a  chequered  history  inasmuch  as  the  

Republic  of  Chile  has  sought  the  extradition  of  the  petitioner  who is  

believed to be a French national.  The petitioner is accused of being a  

conspirator in the assassination of a Chilean Senator on 1st April, 1991.  

She  was  sought  to  be  extradited  from  Germany  but  the  proceedings  

terminated in her favour.  She was then sought to be extradited from India  

but the Delhi High Court held that the extradition proceedings initiated  

against  her  were not  in accordance with law. The present  proceedings  

have arisen out of yet another requisition made by the Republic of Chile  

for her extradition to Chile to face trial in the assassination of the Chilean  

Senator.  

5. The extradition of a fugitive criminal is a serious matter since it  

involves  the liberty  of  a  person and therefore learned counsel  for  the  

petitioner  placed a  large  amount  of  material  before  us,  which he  was  

entitled to do since the matter involved the liberty of his client. The case  

before  us  was,  therefore,  argued  for  several  days  and  we  were  taken  

through the history of extradition laws in India, the procedure in Chile  

and some general principles of international law were also placed before  

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us.

6. At one stage, it was submitted on behalf of the Government of  

India  that  a  French  national  could  not  challenge  the  existence  of  an  

extradition treaty between India and Chile but in view of Article 21 of our  

Constitution which benefits all persons in India, including non-citizens,  

we did not accept this argument and proceeded to hear the case on the  

entirety of the material before us.  All that we need say in this context is  

that Article 21 of the Constitution is entitled to the respect and expansive  

interpretation that it deserves, and more. It is in view of this that we have  

considered the matter before us.     

7. To answer the questions before us, it is necessary to go all the way  

back to  the  Extradition Act,  1870 (‘the 1870 Act’)  when India  was  a  

colony and a ‘possession’ of the British Empire.   

The Extradition Act, 1870

8. In terms of Section 2 of the 1870 Act, by an Order in Council, Her  

Majesty could direct  the application of  the 1870 Act  in  the case of  a  

foreign State with which an arrangement had been made with respect to  

the surrender to such State of any fugitive criminal.  The Order in Council  

was required to recite or embody the terms of arrangement; it was also  

required to be laid before both Houses of Parliament within a specified  

period, and it was required to be published in the London Gazette.   

Section 2 of the Extradition Act, 1870 reads as follows:

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“2.  Where  arrangement  for  surrender  of  criminals  made,  Order  in  

Council  to  apply  Act.---Where  an  arrangement  has  been  made  with  any  

foreign  state  with  respect  to  the  surrender  to  such  state  of  any  fugitive  

criminals, Her Majesty may, by Order in Council,  direct that this Act shall  

apply in the case of such foreign state.”

9. Section 17 of the 1870 Act provided for the application of that  

Act, unless otherwise provided by an Order in Council, to extend to every  

British possession in the same manner as if the British possession were  

substituted for the United Kingdom or England.  The operative part of  

Section 17 of the 1870 Act reads as follows:-

“17. Proceedings as to fugitive criminals in British Possessions.---This Act  

when applied by Order in Council, shall, unless it is otherwise provided by  

such  order,  extend  to  every  British  possession  in  the  same  manner  as  if  

throughout  this  Act  the  British  possession  were  substituted  for  the  United  

Kingdom or England, as the case may require.”

10. Section 26 of the 1870 Act dealt with the interpretation of certain  

terms used therein and the term ‘British possession’ meant (inter alia)  

any colony within Her Majesty’s dominions. The term ‘governor’ meant  

any  person  or  persons  administering  the  government  of  a  British  

possession and included a governor of any part of India.

11. Clearly therefore, the 1870 Act applied to that part of India as was  

a  colony  within  Her  Majesty’s  dominion  or  was  a  possession  in  Her  

Majesty’s dominions.  The terms ‘British possession’ and ‘governor’ as  

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mentioned in Section 26 of the 1870 Act read as follows:-

26. Interpretation.---The  term  “British  possession”  means  any  colony,  plantation, island, territory, or settlement within Her Majesty’s dominions. and  not within the United Kingdom, the Channel Islands, and Isle of Man; and all  colonies, plantations, islands, territories, and settlements under one legislature,  as hereinafter defined, are deemed to be one British possession.”

The  term  “governor”  means  any  person  or  persons  administering  the  government of a British possession, and includes the governor of any part of  India.”

12. Section 18 of the 1870 Act provided for  the saving of  laws of  

British possessions.  In other words, the provisions of the Extradition Act,  

1870 could be applied by Her Majesty, by Order in Council, to any law  

enacted  before  or  after  the  1870  Act  by  a  British  possession  to  any  

foreign State, inter alia, by directing that such law shall have effect in  

such British possession, with or without modifications and alterations, as  

if it were a part of the 1870 Act. Section 18 of the Extradition Act, 1870  

reads as follows:-

“18.  Saving of laws of British possessions.--- If  by any law or ordinance made  before or after the passing of this Act by the Legislature of any British possession,   provision is made for carrying into effect within such possession the surrender of   fugitive criminals who are in or suspected of being in such British possession, Her  Majesty may, by the Order in Council applying this Act in the case of any foreign  state, or by any subsequent order, either

Suspend the operation within any such British possession of this Act, or  any part thereof, so far as it relates to such foreign state, and so long as  such law or ordinance continues in force there, and no longer;

or direct that such law or ordinance, or any part thereof, shall have effect  in such British possession, with or without modifications or alterations,  as if it were part of this Act."

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The Extradition Treaty

13. On 26th January, 1897 the United Kingdom of Great Britain and  

Ireland and the Republic of Chile entered into a Treaty for the Mutual  

Surrender of Fugitive Criminals (for short ‘the Extradition Treaty’ or ‘the  

Treaty’).  In terms of Article I of the Treaty, the High Contracting Parties  

engaged  to  deliver  up  to  each  other  under  certain  circumstances  and  

conditions those persons who, being accused or convicted of any of the  

crimes  or  offences  mentioned  in  Article  II  thereof  committed  in  the  

territory of one Party are found within the territory of the other Party.  

Article II of the Treaty provided for the reciprocal extradition for,  inter  

alia, the crime or offence of murder (including assassination, parricide,  

infanticide, poisoning) or attempt or conspiracy to murder.

14. Article  VIII  of  the  Treaty  provided  that  the  requisition  for  

extradition  shall  be  made  through  the  diplomatic  agents  of  the  High  

Contracting  Parties  respectively  and  that  the  requisition  must  be  

accompanied by a warrant of arrest issued by the competent authority of  

the State requiring the extradition and also by necessary evidence which,  

according to the laws of the place where the accused is found, would  

justify his arrest if the crime had been committed there.

15. The Treaty having been signed, an Order in Council was made on  

9th August, 1898 and this was published in the London Gazette on 12th  

August,  1898.   Both  the  Order  in  Council  and  the  London  Gazette  

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embodied the text of the Treaty between the United Kingdom of Great  

Britain and Ireland and the Republic of Chile.

16. The  Extradition  Treaty  was  subject  to  ratification  and  on  14th  

April,  1898  Her  Majesty  and  the  President  of  the  Republic  of  Chile  

ratified the Treaty which was brought in force from and after 22nd August,  

1898.

17. Soon  thereafter,  the  Gazette  of  India  of  12th November,  1898  

reproduced the Order in Council published in the London Gazette of 12 th  

August,  1898 pertaining to  the  Extradition  Treaty  between the United  

Kingdom of Great  Britain and Ireland and the Republic of Chile.  The  

Extradition  Treaty  with  the  Republic  of  Chile  was,  therefore,  

independently  applicable  to  India  as  well.  Incidentally,  none  of  the  

affidavits filed by the Union of India, either in the Delhi High Court or in  

this Court, refer to or mention this gazette notification. The notification  

was  handed  over  to  us  in  Court  by  the  learned  Additional  Solicitor  

General during the course of his submissions. This shows the seriousness  

with which the Government of India conducted the litigation in the Delhi  

High Court and initially in this Court and the level of its preparedness.

The Indian Extradition Act, 1903

18. The Indian Extradition Act, 1903 (the 1903 Act) was brought into  

force on 1st June, 1904 in terms of Section 1(3) thereof. Section 2(c) of  

the 1903 Act provided that a ‘Foreign State’ meant a State to which, for  

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the time being, the Extradition Act, 1870 applied.   

19. Section 3 of the 1903 Act provided for a requisition being made  

by the government of any Foreign State for the surrender of a fugitive  

criminal  of  that  State,  who is  in  or  who is  suspected  of  being in  the  

Provinces of India (later comprising of Part A States and Part C States of  

India).   The  surrender  was  subject  to  an  enquiry  in  this  regard  by  a  

Magistrate having jurisdiction to enquire into the crime as if it had been  

an offence committed within the local limits of his jurisdiction.

20. The relevant provisions of Section 3 of the Indian Extradition Act,  

1903 read as follows:-

“3(1) Where  a  requisition  is  made  to  the  Central  Government  by  the  Government of any Foreign State for the surrender of a fugitive criminal of  that State, who is in or who is suspected of being in the States, the Central  Government may, if it thinks fit, issue an order to any Magistrate who would  have  had  jurisdiction  to  inquire  into  the  crime  if  it  had  been  an  offence  committed within the local limits of his jurisdiction, directing him to inquire  into the case.

(2) The Magistrate so directed shall issue a summons or warrant for the arrest  of the fugitive criminal according as the case appears to be one in which a  summons or warrant would ordinarily issue.

(3)  When  such  criminal  appears  or  is  brought  before  the  Magistrate,  the  Magistrate shall inquire into the case in the same manner and have the same  jurisdiction and powers, as nearly as may be, as if the case were one triable by  the Court of Session or High Court, and shall take such evidence as may be  produced in support of the requisition and on behalf of the fugitive criminal,  including  any  evidence  to  show that  the  crime  of  which  such  criminal  is  accused or alleged to have been convicted is an offence of a political character  or is not an extradition crime.”

21. On 7th March, 1904 an Order in Council was made declaring that  

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Chapter II of the Indian Extradition Act, 1903 shall have effect in British  

India as if it were a part of the Extradition Act, 1870.  Consequently, the  

provisions of Chapter II of the Indian Extradition Act, 1903 which dealt  

with the surrender of a fugitive criminal in the case of a Foreign State was  

made  applicable  to  British  India.  This  position  continued  till  

Independence.  

Indian Independence (International Arrangements) Order, 1947

22. Around  the  time  of  Independence,  the  Indian  Independence  

(International  Arrangements)  Order,  1947  (for  short  ‘the  Order’)  was  

notified by the Secretariat  of  the  Governor-General  (Reforms)  on 14th  

August, 1947 in exercise of powers conferred by Section 9 of the Indian  

Independence Act, 1947.  The Order has the effect of an agreement duly  

made between the Dominion of India and the Dominion of Pakistan and  

came into effect from 15th August, 1947.1  The Order provides, inter alia,  

that the rights and obligations under all international agreements to which  

India is a party immediately before the appointed day will devolve upon  

both the Dominion of India and the Dominion of Pakistan and will, if  

necessary, be apportioned between the two Dominions.  The effect of this  

is  that  the  Extradition  Treaty  entered  into  by the  United  Kingdom of  

Great Britain and Ireland and the Republic of Chile continued in force as  

far as India is concerned.

1 The agreement was reached on 6th August, 1947 but the notification was issued on 14th August, 1947

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The Extradition Act, 1962

23. To avoid any misgivings and apprehensions about the status of the  

extradition treaties entered into between British India and foreign States  

(including Commonwealth countries) the Extradition Act, 1962 (for short  

‘the Act’) was enacted by our Parliament.  It was brought into force on 5 th  

January, 1963.   

24. Section 2(d) of the Act defines an extradition treaty as including a  

treaty for the extradition of fugitive criminals made before 15th August,  

1947  which  extends  to  and  is  binding  on  India.  The  definition  is  

important and is in the following terms:-

“2(d) “extradition treaty” means a treaty, agreement or arrangement made by  India with a foreign State relating to the extradition of fugitive criminals, and  includes any treaty, agreement or arrangement relating to the extradition of  fugitive criminals made before the 15th day of August, 1947, which extends to,  and is binding on, India.”

25. Section 3 of the Act is also of some importance and it provides for  

the issuance of a notified order by the Central Government applying the  

provisions of the Act, other than Chapter III, to such foreign State or part  

thereof as may be specified in the notified order.  The said Section also  

provides that where the notified order relates to a treaty State, it shall set  

out in full the extradition treaty with that State.  

Section 3 of the Act reads as follows:-

“3. Application of Act. (1) The Central Government may, by notified order,  direct that the provisions of this Act, other than Chapter III, shall apply to such  foreign State or part thereof as may be specified in the order.

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(2) The Central Government may, by the same notified order as is referred to  in sub-Section (1) or any subsequent notified order, restrict such application to  fugitive criminals found, or suspected to be, in such part of India as may be  specified in the order.

(3) Where the notified order relates to a treaty State:-

(a) it shall set out in full the extradition treaty with that State,- (b) it shall not remain in force for any period longer than that treaty; and (c) the Central Government may, by the same or any subsequent notified  order, render the application of this Act subject to such modifications,  exceptions, conditions and qualifications as may be deemed expedient  for implementing the treaty with that State.

(4) Where  there  is  no  extradition  treaty  made by India  with  any foreign  State, the Central Government may, by notified order, treat any Convention to  which India and a Foreign State are parties, as an extradition treaty made by  India  with  that  foreign  State  providing  for  extradition  in  respect  of  the  offences specified in that Convention.”

26. Another important provision in the Act is Section 34-B relating to  

a provisional arrest.  This Section provides that on receipt of an urgent  

request  from  a  foreign  State  for  the  immediate  arrest  of  a  fugitive  

criminal  the  Central  Government  may  request  the  jurisdictional  

Magistrate to issue a provisional  warrant  for  the arrest  of  the fugitive  

criminal.  Section 34-B of the Act reads as follows:-

“34-B. Provisional arrest. (1) On receipt of an urgent request from a foreign  State for the immediate arrest of a fugitive criminal, the Central Government  may  request  the  Magistrate  having  competent  jurisdiction  to  issue  a  provisional warrant for the arrest of such fugitive criminal.

(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon  the expiration of sixty days from the date of his arrest if no request for his  surrender or return is received within the said period.”

27. On or about 16th March, 1956 (well before the Extradition Act,  

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1962)  came  into  force,  an  unstarred  question  No.  439  was  raised  in  

Parliament by Shrimati Ila Palchoudhury requiring the Prime Minister to  

state the countries with which India has an extradition treaty. In response  

to  the unstarred question,  Prime Minister  Shri  Jawaharlal  Nehru (who  

was also the Minister for External Affairs) laid on the table of the House a  

list of extradition treaties with foreign countries concluded by the British  

Government on behalf of India before Independence and which were still  

in force. One of the foreign countries with which an extradition treaty had  

been entered into on behalf of India and still in force was the treaty with  

Chile executed on 26th January, 1897.

28. When the Extradition Bill was introduced in 1961 and considered  

in  Parliament,  Shri  D.C.  Sharma (an  Hon’ble  Member  of  Parliament)  

referred to Clause 2(d) of the Extradition Bill and stated on 7th August,  

1962 that he had a list of countries with which India has an extradition  

treaty entered into prior to 15th August, 1947.  One of the countries so  

mentioned by Shri D.C. Sharma was Chile.

29. These details have been mentioned for the purposes of recording  

the  submission  of  the  learned  Additional  Solicitor  General  that  the  

Extradition Treaty between India and Chile was in force not only before  

Independence but also thereafter and that is how the Prime Minister of  

India understood the position.   

30. However, even though there might have been an extradition treaty  

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in force between India and Chile, the fact of the matter is that post 5 th  

January, 1963 the provisions of the Act would not be applicable to the  

Extradition  Treaty  without  an  appropriate  notified  order  issued  in  

accordance  with  Section  3(1)  [read  with  Section  3(3)]  of  the  Act.  

Apparently  realizing  this,  the  Government  of  India  notified  an  Order  

dated 28th April, 2015 (gazetted on 29th April, 2015) under Section 3(1)  

read  with  Section  3(3)  of  the  Act  making  the  Act  applicable  to  the  

Republic of Chile.   

31. The  notified  order  contains  three  errors  and  it  is  reproduced  

below:-

“G.S.R.  328(E)  –  Whereas  the  Extradition  Treaty  between  the  United  Kingdom  of  Great  Britain  and  Ireland,  and  the  Republic  of  Chile  was  concluded and signed at Santiago on the January 26, 1897 and the Ratification  exchanged at Santiago on the April 14, 1898, are considered to be in force  between the Republic of India and the Republic of Chile;

And whereas the Central Government in exercise of the powers conferred by  sub-Section (1) of Section 3 of the Extradition Act, 1962 (34 of 1962) had  directed  by  an  order  number  G.S.R.  56  dated  5th January,  1963  that  the  provisions of the said Act, other than Chapter III shall apply to the Republic of  Chile;

Now, therefore, in exercise of the power conferred by sub-section (3) of the  Extradition Act, 1962 (34 of 1962), the Central Government hereby sets out  the aforesaid Treaty as under:-

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland,  and his Excellency the President of the Republic of Chile, having determined,  by common consent, to conclude a Treaty for the extradition of criminals, have  accordingly named as their Plenipotentiaries:-

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland  John G. Kennedy, Esq., Minister Resident of Great Britain in Chile; and

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His  Excellency  the  President  of  the  Republic  of  Chile,  Senor  Don  Carlos  Morla Vicuna, Minister of Foreign Affairs;

Who, after having exhibited to each other their respective full powers, and  found them in good and due form, have agreed upon the following Articles:-

(The Articles of the extradition treaty are reproduced in the notified order, but  not reproduced here)

Now therefore, in the exercise of the power conferred by sub-section (1) of  Section  4  of  the  Indian  Extradition  Act,  1962  (34  of  1962),  the  Central  Government  hereby  direct  that  the  provision  of  the  said  Act,  other  than  Chapter III, shall apply to the Republic of Chile with effect from the date of  publication  of  this  notification,  in  respect  of  the  offences  specified  in  the  above Treaty.”

32. The first  error in the notified order is the reference to GSR 56  

dated 5th January, 1963 to the effect that the provisions of the Act other  

than Chapter III shall apply to the Republic of Chile. GSR 56 is totally  

(and admittedly) irrelevant to the context and has absolutely no concern  

with the Republic of Chile. The second error is that the notified order is  

purported to have been issued in exercise of powers conferred by Section  

4(1) of the Indian Extradition Act, 1962. Section 4(1) has no relevance to  

the context. What is relevant is Section 3(1) of the Act. The third error is  

that there is no statute called the Indian Extradition Act, 1962. What has  

been enacted by Parliament is the Extradition Act, 1962.

33. The  validity  of  the  notified  order  dated  28th April,  2015  was  

challenged by the petitioner by filing W.P. (Crl.) No. 1215 of 2015 in the  

Delhi High Court and a prayer was also made for quashing a requisition  

made by the Republic of Chile for the extradition of the petitioner from  

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India to Chile.

34. During the pendency of the writ petition, the Government of India  

having realized the errors committed in the notified order dated 28th April,  

2015 issued a corrigendum on 11th August, 2015 (published in the Gazette  

of  India)  in  which  reference  to  GSR 56  dated  5 th January,  1963  was  

deleted and sub-section (1) of Section 4 of the Indian Extradition Act,  

1962 was substituted to read sub-section (1) of Section 3 of the Indian  

Extradition Act,  1962. No correction was made with regard to the so-

called  Indian  Extradition  Act,  1962.  The  casualness  with  which  the  

corrigendum  has  been  issued  by  the  Government  of  India  is  quite  

apparent.   

The corrigendum dated 11th August, 2015 reads as follows:-

“GSR 628(E)- In the order of the Ministry of External Affairs, dated the 28 th  

April, 2015 published in the Gazette of India, Extraordinary, Part II, Section 3,  Sub-Section (i) vide G.S.R. 328(E), dated the 29th April, 2015, ---

In the said order, --- (i) In the second paragraph,  for “had directed by an Order number G.S.R.  56, dated January 5, 1963” read “directs”;

(ii) In  the  last  paragraph,  for “sub-section  (1)  of  section  4”,  read “sub- section (1) of section 3”.  

35. In view of the corrigendum dated 11th August,  2015 it must be  

held that the notified order dated 28th April, 2015 was partially defective  

and therefore the application of the Extradition Act, 1962 to Chile would  

be  effective  only  from  11th August,  2015  when  the  corrections  were  

carried out and not 28th April, 2015. However, this makes no difference to  

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the ultimate result of this case.

The factual background

36. On  1st April,  1991  (the  first  Red  Notice  issued  by  Interpol  

erroneously shows the year as 1992) a terrorist  attack was perpetrated  

leading to the assassination of Senator Jaime Guzman Errazuriz of Chile.  

Initial investigations apparently did not point to the involvement of the  

petitioner  Marie  Emmanuelle  Verhoeven  (believed  to  be  a  French  

national). However, when further facts came to light in 2010, it appeared  

that the petitioner was a member of a subversive organization responsible  

for  the  assassination.   Accordingly,  a  warrant  for  the  arrest  of  the  

petitioner was issued on 21st September, 2010 by the Court of Appeal of  

Santiago in Chile. On the basis of this arrest warrant and a request made  

by National Central Bureau (or NCB) at Santiago, Chile (and presumably  

on the basis of other available information) a “Red Notice” was issued by  

Interpol on 27th January, 2014 for the location and arrest of the petitioner  

for an incident that occurred on 1st April,  1992 (actually 1991) with a  

view to extradite her to Chile and also for her provisional arrest. The Red  

Notice  mentioned  that  NCB Santiago,  Chile  and  the  Interpol  General  

Secretariat be immediately informed on the fugitive being found.  

37. A few days later on 29th January, 2014 the petitioner was indicted  

for the offence above-mentioned.

38. It appears that pursuant to the Red Notice issued by Interpol, the  

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petitioner was arrested in Germany but the concerned court in Germany  

held by an order dated 6th June, 2014 that the extradition of the petitioner  

was illegal. We are not concerned with the proceedings in Germany and  

this is being mentioned only for completing the factual background.

39. Much later, on 17th February, 2015 the petitioner was detained and  

arrested  while  crossing  the  Nepal  border  at  the  immigration  point  in  

Sunauli,  Uttar  Pradesh.  She  was  produced  before  the  concerned  

Magistrate in Maharaj Ganj in Uttar Pradesh and brought to Delhi on a  

transit  remand.  She  was  then produced before  the  Chief  Metropolitan  

Magistrate, Patiala House Courts, New Delhi on 21st February, 2015 and  

remanded to judicial custody till 24th February, 2015

40. Thereafter,  on  24th February,  2015 the  petitioner  was  produced  

before  the  Additional  Chief  Metropolitan  Magistrate,  Patiala  House  

Courts, New Delhi who ordered her provisional arrest under Section 34-B  

of the Act. The petitioner has been in judicial custody ever since that day.  

The petitioner challenged her provisional arrest by filing W.P. (Crl.) No.  

666  of  2015  in  the  Delhi  High  Court  and  also  a  subsequent  order  

continuing her judicial custody as a result of the Red Notice issued by  

Interpol. In the writ petition, the petitioner sought her immediate release  

from Tihar Jail, Delhi.

41. In  the  meanwhile  and  apparently  on  information  received  

regarding the arrest of the petitioner, the Embassy of Chile gave a  Note  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 17 of 69

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Verbale on  24th February,  2015  to  the  Ministry  of  External  Affairs,  

Government of India.  The  Note Verbale is of some importance and it  

reads as follows:-

“The Embassy of the Republic of Chile presents its compliments to the Ministry of  External Affairs of the Republic of India – CPV (Consular Passport, Visa) Division -  and has the  honor to  request  the extension of the  detention period of the French  citizen  MARIE  EMMANUELLE  VERHOEVEN  on  the  basis  of  the  request  for  preventive detention enclosed with this Note, issued by the Supreme Court of Chile.

The request for preventive detention to secure the extradition to be sought was  issued in matter No. 3.118-2015 tried by the Supreme Court of Justice, at the  request of the Special Investigating Judge of the Santiago Court of Appeals  Hon. Mario Carroza Espinosa.   

As regards Ms. Verhoeven, described in the documents enclosed, a warrant of  arrest  was  issued  against  her  on  January  27,  2014.   She  was  indicted  on  January 29, 2014 as perpetrator of a terrorist attack leading to the assassination  of Senator Mr. Jaime Guzman Errazuriz on April 1, 1991.

The extension of Ms. Verhoeven’s detention period is grounded on the need of  taking into consideration Chilean internal procedures to subsequently request  the Government of the Republic of India to extradite the accused.  Indeed, the  Chilean  Supreme Court  of  Justice,  upon making a  decision  as  regards  the  request for extradition filed by the Court having charged Ms. Verhoeven with  such crime, shall cause that a case file is opened, which will include the pieces  of evidence supporting the request for extradition.

Said request shall be remitted to the Chilean Ministry of Foreign Affairs for  translation into the English language before it  is  formally submitted to  the  Indian Ministry of Foreign Affairs.

Additionally,  to  prevent  the  person whose  extradition  will  be  sought  from  fleeing  from justice,  the  Court  of  jurisdiction  over  the  case  has  asked the  Supreme Court  to  issue  a  preventive  detention  warrant.   According to  the  Chilean criminal procedure system, a request for preventive detention – just  like a request for extradition- is made and decided by a court, the Executive  Power  having  no  bearing  whatsoever  therein.  The  Executive  is  to  act  at  subsequent  stages,  i.e.  administrative  and  diplomatic  stages  of  an  active  extradition proceeding.

All  in  all,  this  request  for  preventive  detention  is  aimed  at  extending  the  

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detention  period  of  Ms.  Verhoeven  so  that  each  and  every  judicial,  administrative and diplomatic steps that need to be taken prior to the formal  extradition request being filed are carried out in due time, and also at securing  that the person sought is at the disposal of the competent authorities of the  Republic of India at the time of formally filing the request for extradition.

In the light of the absence of a treaty on extradition between both countries,  the  Chilean Government  guarantees  to  the  Government  of  the Republic  of  India that the State organs will ensure reciprocity in case a similar request is  filed by the competent authorities of your country.

The Chilean Embassy expresses the formal intention of the competent Chilean  Authorities  to  timely  request  the  extradition  of  Ms.  Marie  Emmanuelle  Verhoeven.

The Embassy of the Republic of Chile avails itself of this opportunity to renew  to the Ministry of External Affairs of the Republic of India- CPV (Consular  Passport, Visa) Division – the assurances of its highest and most distinguished  consideration.”

42. The Note Verbale mentions the date of offence as 1st April, 1991  

(which seems to be the correct date) while the Red Notice mentions the  

date of incident as 1st April, 1992. The discrepancy between the two dates  

can become important (in a given case) since the question of the liberty of  

an  individual  is  involved.  However,  for  the  present  purposes,  that  is  

overlooked and ignored since it does not have any material impact on the  

final decision in these cases.

43. The second important fact that is explicit from a reading of the  

Note Verbale is that the Embassy of Chile acknowledged that there is no  

extradition  treaty  between  India  and  Chile  and  that  the  request  for  

extradition is made only by way of a reciprocal understanding in case a  

similar request is made by the competent authorities of India.

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44. The process of extradition of the petitioner from India to Chile  

was also the subject  matter  of  consideration in the Republic  of  Chile.  

Section 637 of the Criminal Procedure Code in Chile provides for the  

extradition of a fugitive criminal.  In terms of this Section, upon receipt  

by the Supreme Court of Chile of a request concerning the extradition,  

the same shall be remanded to the Court Attorney who will then report  

whether the extradition is lawfully proper in accordance with the Treaty  

signed by the nation in which the convict is found or otherwise in the  

absence of a treaty, with the international law principles.

45. In terms of Section 638 of the Criminal Procedure Code in Chile,  

upon the report of the Supreme Court’s Prosecutor, the Supreme Court  

shall render a decision whether the extradition is lawful or not.

46. In terms of  639 of  the Criminal  Procedure  Code in  Chile,  the  

Supreme Court shall send to the Ministry of Foreign Affairs a copy of its  

decision and ask that relevant diplomatic steps be taken (if necessary) to  

obtain the extradition of the offender.

47. Sections  637,  638 and 639 of  the  Criminal  Procedure Code in  

Chile read as follows:-

“Section 637 (685) - Upon receipt by the Supreme Court of the docket, it shall  remand  the  same  to  the  court  attorney,  who  shall  decide  whether  the  extradition is  lawfully proper in accordance with the treaties signed by the  nation in which a convict has sought refuge or otherwise, in the absence of a  treaty, with the international law principles.

Section 638 - Upon the Supreme Court’s Prosecutor having issued its report,  

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the Court shall afford priority to the case and render a founded decision on  whether the extradition is lawful or not.

Section 639 (687) - If lawful, the Supreme Court shall send to the Ministry of  Foreign Affairs a copy of the decision referred to in the foregoing paragraph  and ask that the relevant diplomatic steps be taken to obtain the offender’s  extradition.

It  shall  also enclose a certified copy of the background information on the  merits of which a warrant of arrest was issued against the offender or a final  judgment has been rendered, if dealing with a convict.

Upon completion of these formalities, the Supreme Court shall return the file  to the originating court.”  

48. Following the aforesaid procedure, the Supreme Court of Justice  

of  Chile  rendered  a  decision  on  9th March,  2015  in  respect  of  the  

extradition of the petitioner in the matter of the assassination of Senator  

Jaime Guzman Errazuriz perpetrated on 1st April, 1991.  It was held by  

the  Hon’ble  Judges  of  the Supreme Court  that  there  is  no extradition  

treaty between Chile and India and therefore for making a request for the  

extradition of the petitioner, the general international law principles must  

be applied as prescribed in Section 637 of the Criminal Procedure Code.  

Thereafter,  the  general  international  law  principles  were  broadly  

mentioned by the Supreme Court as having been clearly enshrined in the  

Havana  Convention  on  20th February,  1928  and  the  Montevideo  

Convention on Extradition ratified by Chile on 2nd July, 1935 as well as  

bilateral  treaties  on the matter  with several  countries  and opinions  by  

domestic  and foreign doctrine.  India  is  not  a  signatory to  the Havana  

Convention or the Montevideo Convention.  

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49. The  majority  opinion  written  by  four  Hon’ble  Judges  of  the  

Supreme Court of Justice of Chile specifically held:

“Between Chile and India there is no treaty on extradition; therefore, to make  a decision on the request, the general international law principles must apply,  as prescribed in section 637 of the Criminal Procedure Code.”

50. The  dissenting  Judge  did  not  specifically  disagree  with  this  

conclusion of  the  majority  that  there  is  no  extradition  treaty  between  

Chile and India. It must, therefore, be held that the unanimous conclusion  

of the Supreme Court of Justice of Chile is that there is no extradition  

treaty between the Republic of Chile and the Republic of India.  

51. Be that as it may, on the basis on the above conclusions, it was  

held that it was lawfully proper to request the Government of India to  

extradite the petitioner for her alleged liability as a principal offender in  

the  terrorist  attack  perpetrated  in  Santiago  on  1st April,  1991.   The  

operative portion of the decision of the Supreme Court of Chile reads as  

follows:-

“In view also of the provisions in Sections 635, 636, 637, 638 and 639 of the  Criminal  Procedure  Code,  it  is  hereby  stated  that  it  is  lawfully  proper  to  request the Government of India to extradite Marie Emmanuelle Verhoeven for  her  alleged  liability  as  Principal  Offender  in  the  terrorist  attack  against  a  political  authority,  leading  to  the  assassination  of  Senator  Jaime  Guzman  Errazuriz, perpetrated in Santiago on April 1, 1991, as stated in clause 1 of this  decision.

For fulfillment of this  decision, be an official letter  sent to the Minister of  Foreign Affairs  so that  such diplomatic  formalities  as  necessary be carried  out.”

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52. Pursuant to the decision of the Supreme Court of Chile, another  

Note  Verbale was  given  by  the  Embassy  of  Chile  to  the  Ministry  of  

External Affairs on 24th March, 2015. This  Note Verbale acknowledged  

that the request for the extradition of the petitioner was being made on the  

basis  of  international  law principles from multilateral  conventions and  

bilateral treaties on extradition, among which is included the extradition  

treaty between the Republic of Chile and the United Kingdom of Great  

Britain and Ireland signed at Santiago on 26th January, 1897 in force for  

both countries. On the basis of the provisions contained in the Treaty, the  

Note Verbale also drew attention to the resolution of the Supreme Court  

of Justice of Chile dated 9th March, 2015, and the arrest warrant issued  

against the petitioner on 27th January, 2014 and her indictment on 29th  

January, 2014 as a principal offender in the terrorist attack carried out on  

1st April, 1991 that resulted in the assassination of Senator Jaime Guzman  

Errazuriz. The Note Verbale dated 24th March, 2015 reads as follows:-

“The  Embassy  of  the  Republic  of  Chile  presents  its  compliments  to  the  Honourable Ministry of External Affairs of the Republic of India, and has the  honour  to  request,  upon  requisition  of  the  Honourable  Supreme  Court  of  Chile,  the  extradition  of  the  French  national  MARIE  EMMANUELLE  VERHOEVEN, Chilean Identity Card for Aliens No.12.046.818-9,  born on  October 8, 1959, on the basis of the principles of international law derived  from the multilateral conventions and bilateral treaties on extradition, among  which is included the Extradition Treaty between the Republic of Chile and  the  United  Kingdom  of  Great  Britain  and  Ireland,  signed  at  Santiago  on  January 26,  1897,  in  force for  both countries,  and complementarily  on the  basis  of  the  provisions  contained  in  the  said  Treaty  on  such  matters  as  applicable between Chile and India.

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This request is made pursuant to the resolution of the Honourable Supreme  Court of Justice of Chile, Case No.3118-2015, in its decision of March 9 of the  current year, by order of the Special Investigating Judge of the Santiago Court  of  Appeals,  Hon.  Mario  Carroza  Espinosa,  in  Case No.39.800-1991 of  the  former 6th Criminal Court of Santiago, due to infringement of Act No.18.314  on terrorist acts and assassination of Chilean Senator Jaime Guzman Errazuriz.

This Note - accompanying the formal request for extradition - is submitted in  accordance  with  the  applicable  regulations  contained  in  the  Chilean  laws.  Pursuant thereto, the Ministry of Foreign Affairs is primarily responsible for  carrying  out  the  diplomatic  formalities  involved  in  an  extradition  request  granted  by  Chilean  courts  of  justice,  while  the  latter  are  the  only  organs  responsible for the judicial aspects of such requests.

Ms. Verhoeven is subject to an arrest warrant dated January 27, 2014 and a bill  of  indictment  dated the 29th day of  the same month and year,  as principal  offender in the terrorist attack carried out on April 1, 1991 that resulted in the  assassination of Senator Jaime Guzman Errazuriz, and is based on the attached  documents, particularly on those mentioned in the annexed index.

All of the documents included in the aforementioned index, certified by the  Judicial Authorities of Chile, are duly authenticated by the Ministry of Justice  of Chile,  the Ministry of Foreign Affairs  of Chile  and the Embassy of the  Republic of India in Chile.

The  Government  of  Chile  wishes  to  reiterate  to  the  Government  of  the  Republic of India its full willingness to provide the supplementary information  that the competent Indian authorities may deem necessary for the successful  development of this extradition case.

The  Embassy  of  the  Republic  of  Chile  avails  itself  of  this  opportunity  to  convey  to  the  Ministry  of  External  Affairs  of  the  Republic  of  India  the  assurances of its highest consideration and esteem.”

53. Based  on  the  Note  Verbale  of  24th March,  2015  and  the  

accompanying documents as well as the notified order dated 28 th April,  

2015 the Government of India passed an order on 18th May, 2015 noting  

that the offences alleged to have been committed by the petitioner are  

stated  to  be  extradition  offences  in  terms  of  the  Extradition  Treaty  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 24 of 69

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between Chile and India. Accordingly, a request was made under Section  

5  of  the  Act  to  the  Additional  Chief  Metropolitan  Magistrate,  Patiala  

House Courts, New Delhi to inquire whether a  prima facie  case for the  

extradition  of  the  petitioner  is  made  out.  Accordingly,  the  Additional  

Chief Metropolitan Magistrate, Patiala House Courts, New Delhi took up  

the  case  for  consideration  and this  led  the  petitioner  to  challenge  the  

notified order of 28th April, 2015 and the order of 18th May, 2015 by filing  

W.P. (Crl.) No. 1215 of 2015 in the Delhi High Court.  

54. For the purposes of completing the record, it may be stated that a  

formal request for the extradition of the petitioner was placed before the  

Additional  Chief  Metropolitan  Magistrate,  Patiala  House  Courts,  New  

Delhi by the Special Public Prosecutor on behalf of the Government of  

India on 27th May, 2015.  

Proceedings in the High Court

55. The  Delhi  High  Court  took  up  both  the  writ  petitions  for  

consideration.  In  its  judgment  and  order  dated  21st September,  2015  

(impugned before us to a limited extent by the petitioner) the High Court  

was  prima facie  satisfied that the Extradition Treaty was applicable to  

British India. However, “since the issue involves complicated questions  

of political importance, it appears to us that the same cannot be decided  

conclusively on the basis of the limited material available before us.” It  

was further held that “the Extradition Treaty executed on behalf of India  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 25 of 69

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prior to 15.08.1947 cannot be held to have automatically ceased to exist  

after  India  achieved  sovereignty.”  The  High Court  concluded  that  the  

interception of the petitioner on the basis of the Red Notice issued by  

Interpol was not illegal but the provisional arrest of the petitioner under  

Section 34-B of the Act could not be ordered in the absence of a notified  

order under Section 3(1) of the Act. Consequently, the provisional arrest  

of  the  petitioner  on  24th February,  2015  was  held  to  be  without  

jurisdiction.  

56. As  regards,  the  validity  of  the  order  dated  18th May,  2015  

requesting for an inquiry whether the petitioner ought to be extradited or  

not, the High Court held as follows:

“71. On a combined reading of Sections 4 and 5 of the Act, it is clear that  the  order  of  the  Central  Government  for  Magisterial  Inquiry  into  the  extraditability  of  the  offence  committed  by  the  fugitive  criminal  would  follow  upon  a  request  for  extradition  received  from  the  foreign  State  concerned. Thus,  the proceedings for extradition would be set  in motion  with a request made by the foreign State concerned under Section 4 of the  Act.

72. In the present case, such extradition request under Section 4 of the Act  was made by the Republic of Chile through its  Embassy on 24.03.2015.  However, the fact remains that by that date the provisions of the Extradition  Act were not made applicable to the Republic of Chile since the notification  under  Sub-section (1)  read with Sub-section (3) of Section 3 came to be  published only on 29.04.2015. We have already held that by virtue of the  said notification dated 28.04.2015 published in the Gazette of India dated  29.04.2015, the provisions of the Act are made applicable to the Republic of  Chile w.e.f.  29.04.2015 only.  That being so, we are of the view that the  extradition request dated 24.03.2015 cannot be treated as a requisition for  surrender in terms of Section 4 of the Act. In other words, a request made on  or after 29.04.2015 can only be acted upon for directing Magisterial Inquiry  into the extraditability of the alleged offence committed by the petitioner in  

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request  on  29th May,  2015.2 This  was  immediately  followed  by  a  

communication  from  Interpol  on  30th May,  2015  cancelling  the  Red  

Notice  as  well  as  the  diffusion  request.  The  apparent  reason  for  the  

cancellation  was  that  the  Red  Notice  was  being  replaced  by  another  

request.

60. Apparently,  in  light  of  the  above developments,  NCB Santiago  

sent a request on 30th June, 2015 to Interpol for the issuance of a Red  

Notice. This was followed by NCB Santiago sending a diffusion request  

on 1st July,  2015 to secure the attendance of  the petitioner pending an  

analysis of its request for the issuance of a Red Notice by Interpol. What  

is more important is that on 8th July, 2015 the office of the Legal Affairs,  

Interpol  General  Secretariat  gave  intimation to  the  effect  that  the  Red  

Notice against the petitioner is being reviewed by Interpol and that the  

diffusion sent by NCB Santiago was not in conformity with the Interpol  

constitution and rules and therefore the diffusion would be deleted from  

the Interpol database. A request was also made by Interpol to remove the  

information  recorded  against  the  petitioner  from the  national  database  

based on the diffusion.  The intimation sent  by the office  of  the Legal  

Affairs of Interpol General Secretariat reads as follows:-

“The General Secretariat hereby is referring to the diffusion circulated  2 A ‘diffusion’ is a “request for cooperation or alert mechanism.” “This is less formal than a notice but  is also used to request the arrest or location of an individual or additional information in relation to a   police investigation. A diffusion is circulated directly by an NCB to the member countries of their   choice,  or  to  the  entire  INTERPOL membership  and  is  simultaneously  recorded  in  INTERPOL’s  Information  System.”  [Information  obtained  from  http://www.interpol.int/INTERPOL- expertise/Notices]

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by NCB Santiago, Chili, on 1 de July de 2015 against VERHOEVEN  f/n Marie Emmanuelle (DOB 8 October 1959).

Please be advised that a red notice against the same individual for the  same  facts  and  charges  it  is  being  reviewed  by  INTERPOL’s  Commission for Control Files (CCF).  The CCF concluded in its latest  session to block the information as a precautionary measure pending its  final  conclusion  on  whether  the  red  notice  is  compliant  with  INTERPOL’s Constitution and rules.  Therefore, the diffusion will  be  deleted from INTERPOL databases.

You are kindly requested to note that international police cooperation  through  INTERPOL’s  channels  in  these  cases  would  not  be  in  conformity with its Constitution and Rules.

Finally, you are requested to remove from your national databases the  information  recorded  against  the  a/m  individual  based  on  the  aforementioned diffusion.

The Office of Legal Affairs remains at your disposal for any further  information.”

61. In an affidavit filed in the High Court on or about 28 th July, 2015  

by the Central Bureau of Investigation (NCB – India Interpol, New Delhi)  

in W.P. (Crl.) No.1215 of 2015 it was categorically stated that:  

“The result of this communication is that at present Red Corner Notice issued  by  INTERPOL  HQ  and  the  Diffusion  issued  by  NCB-Chile  are  not  in  existence.”

62. Be that as it may, it appears that pursuant to the analysis carried  

out by Interpol on the request of Chile, a fresh Red Notice was issued for  

the arrest  and extradition of the petitioner by Interpol on 30th October,  

2015.

63. Also, as a result of the liberty granted by the High Court, the issue  

of  the  petitioner’s  extradition  was  again  taken  up  by  the  Republic  of  

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Chile. On 21st September, 2015 the Embassy of Chile gave a fresh Note  

Verbale  requesting  for  the  provisional  arrest  of  the  petitioner  for  the  

purpose of her extradition “on the basis of the Principles of International  

Law derived from the multilateral  conventions and bilateral  treaties on  

Extradition, among which is included the Extradition Treaty between the  

Republic  of  Chile  and  the  Republic  of  India  in  force  between  both  

countries, and complementarily on the basis of the provisions contained in  

the said Treaty.”

The Note Verbale of 21st September, 2015 reads as follows:

“The Embassy of the Republic of Chile in India presents its compliments to  the Honourable Ministry of External Affairs of the Republic of India, CPV  Division, and has the honour to request the Provisional Arrest for the purpose  of Extradition of the French National Ms. Marie Emmanuelle VERHOEVEN,  born on October 8, 1959, on the basis of the Principles of International Law  derived  from multilateral  conventions  and  bilateral  treaties  on  Extradition,  among which is included the Extradition Treaty between the Republic of Chile  and  the  Republic  of  India,  in  force  between  both  countries,  and  complementarily on the basis of the provisions contained in the said Treaty.

It is to be elevated to the highest attention of that Honourable Division the  Judgment passed Monday 21st September, 2015 by the Honourable High Court  of Delhi which in its paragraph number 76, page 46, in the concerned matter  of fugitive,  stated that “the respondents have not been precluded to initiate  appropriate steps afresh for extradition of petitioner (FC) by following due  process of law.”

Therefore, since the liberty has already been allowed to Union of India for  initiating  afresh  steps  for  extradition  of  petitioner  (FC),  it  is  kindly  and  urgently requested to the Union of India to provisional arrest for the purpose  of Extradition of the FC.    

The Embassy of the Republic of Chile in India avails itself of this opportunity  to renew to the Honourable Ministry of External Affairs, CPV Division, the  assurances of its highest esteem and consideration.”

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64. A reading of the Note Verbale makes it quite clear that the request  

for the provisional arrest of the petitioner was now made on the basis of  

the Extradition Treaty between Chile and India, with India having made  

the Extradition Act,  1962 applicable to Chile. This is a significant  and  

material  departure  from the  earlier  Notes  Verbales which  indicated  an  

uncertainty of the existence and binding nature of the Extradition Treaty.  

65. Thereafter, acting on the Note Verbale  an application was moved  

by the Government of  India for  the provisional  arrest  of the petitioner  

under Section 34-B of the Act and the prayer made was granted by the  

Additional  Chief  Metropolitan  Magistrate,  Patiala  House  Courts,  New  

Delhi on 22nd September, 2015.

66. As far as the Republic of Chile is concerned, on 19th October, 2015  

its Deputy Special Investigating Judge in the Court of Appeals in and for  

Santiago addressed a request to the Supreme Court of Chile “to please  

cause  that  such  steps  as  necessary  are  taken  to  initiate  an  extradition  

proceeding” against the petitioner. Acting on the request, the office of the  

Prosecutor  in  the  Supreme Court  submitted  a  report  of  6 th November,  

2015. In the report, an examination of all the relevant material was carried  

out by the Prosecutor’s office and it was concluded that it was lawfully  

proper to request, through diplomatic channels and in accordance with the  

extradition  treaty  between  Chile  and  India,  for  the  extradition  of  the  

petitioner from India.

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 31 of 69

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67. In  accordance  with  the  laws  in  Chile,  the  matter  was  then  

considered  by  the  Supreme  Court  of  Justice  of  Chile.  In  its  decision  

rendered on 11th November, 2015 the Supreme Court gave a finding that  

the Extradition Treaty of 26th January, 1897 between the Republic of Chile  

and  the  United  Kingdom  of  Great  Britain  and  Ireland  is  an  existing  

Extradition Treaty between Chile and India. This Treaty was ratified by  

the parties and enacted in Chile on 14th April, 1898.  It was also published  

in the Official Gazette in Chile on 22nd April, 1898. As such, it was held  

that the Treaty is in full force and effect between the Republic of Chile  

and  the  Republic  of  India.   The  Supreme  Court  also  noted  that  the  

provisions of the Extradition Act, 1962 had been made applicable to the  

Republic of Chile and therefore from the point of view of the Government  

of India also the Extradition Treaty was in force.

68. The Supreme Court noted that two of the Hon’ble Judges in the  

Supreme Court of Chile voted for rendering a judgment that supplements  

the earlier decision of the Supreme Court given on 9th March, 2015. This  

was because that decision had already established the appropriateness of  

the request for extradition of the petitioner.

69. Consequently,  the  Supreme  Court  of  Chile  decreed  that  it  was  

lawfully appropriate to request the Government of Chile to extradite the  

petitioner  for  the offence alleged against  her,  namely  a  terrorist  attack  

carried out on 1st April, 1991 that resulted in the assassination of Senator  

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Jaime Guzman Errazuriz. On this basis, the Republic of Chile gave a Note  

Verbale on 16th November, 2015 with a formal request to the Government  

of  India for extraditing the petitioner.

70. The extradition  request  and the  accompanying  documents  were  

examined by the Ministry of External Affairs and on 14th December, 2015  

an order was issued under Section 5 of the Act requesting the Additional  

Chief  Metropolitan  Magistrate,  Patiala  House  Courts,  New  Delhi  to  

enquire into the extradition request made by the Government of Chile in  

respect of the petitioner.

71. On the substantive facts mentioned above,  the petitioner filed a  

writ petition in this Court under Article 32 of the Constitution being W.P.  

(Crl.)  No.178 of  2015 on or  about  29th September,  2015.  The  prayers  

made in the writ petition are for a writ of habeas corpus and a direction  

for the petitioner’s release from Tihar Jail, New Delhi; a writ of certiorari  

quashing  the  orders  passed  by  the  Additional  Chief  Metropolitan  

Magistrate,  Patiala  House  Courts,  New Delhi  directing  the  provisional  

arrest of the petitioner under Section 34-B of the Act and for quashing the  

extradition proceedings and for other consequential reliefs. The petitioner  

also preferred Special Leave Petition (Crl.) No. 8931 of 2015 on or about  

13th October, 2015 challenging the correctness of the judgment and order  

passed by the Delhi High Court to the extent that it holds that the decision  

rendered by the High Court does not preclude the Government of India  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 33 of 69

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from initiating appropriate steps for the extradition of the petitioner after  

following the due process of law. The petitioner is also aggrieved that the  

High Court did not strike down the notified order of 28 th April, 2015 or  

conclude that there was no extradition treaty between Chile and India.

Discussion on the existence of the Extradition Treaty

72. The  primary  issue  to  be  decided  is  whether  there  exists  an  

extradition treaty between India and Chile. In other words, the question is  

whether the Extradition Treaty entered into on 26th January, 1897 between  

the United Kingdom of Great Britain and Ireland with the Republic of  

Chile is still in force and binding on India and Chile.

73. This question may first be looked at from the point of view of the  

Republic of Chile. It appears, with great respect, that initially there was  

some uncertainty in Chile about the existence of the Treaty. This inference  

may be drawn from the Note Verbale of 24th February, 2015. In that Note  

Verbal  it  was  specifically  acknowledged  that  there  is  no  treaty  on  

extradition  between  Chile  and  India.  Therefore,  the  basis  on  which  a  

request for extradition of the petitioner was made by the Government of  

Chile to the Government of India was on the basis of reciprocity.  

74. The Supreme Court of Chile, in its decision rendered on 9th March,  

2015 specifically  concluded that  there is  no extradition treaty between  

Chile and India. Consequently, the Supreme Court of Chile held that a  

request  for  extraditing  the  petitioner  should  be  based  on  general  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 34 of 69

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international  law  principles  such  as  those  enshrined  in  the  Havana  

Convention and the Montevideo Convention on Extradition as  well  as  

bilateral treaties between several countries and opinio juris.

75. The subsequent  Note Verbale of  24th March,  2015 did not  (and  

could  not)  depart  from  this  decision  of  the  Supreme  Court  of  Chile  

rendered on 9th March, 2015 that there was no extradition treaty between  

Chile  and  India.  The  request  for  extradition  of  the  petitioner  was,  

therefore, made on the basis of the principles of international law derived  

from multilateral conventions and bilateral treaties on extradition “among  

which is included is the Extradition Treaty between the Republic of Chile  

and the United Kingdom of Great Britain and Ireland signed at Santiago  

on 26th January, 1897, in force for both countries.” In any event,  Chile  

acknowledged  the  existence  of  the  Extradition  Treaty  of  26 th January,  

1897 but it was not clear as far as the Government of Chile is concerned  

whether that treaty was binding and in force in India and whether in the  

context of bilateral treaties, the reference to ‘both countries’ was to Chile  

and the United Kingdom of Great Britain and Ireland.  

76. Subsequently  however,  there  was  clarity  on  the  issue  of  the  

existence  of  an  Extradition  Treaty  between  Chile  and  India  when  the  

Supreme Court of Chile rendered its decision on 11th November, 2015.  

The decision made it clear that there was in fact an Extradition Treaty  

between Chile and India executed on 26th January, 1897 and that it was in  

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force and binding on India. In coming to this conclusion, the Supreme  

Court of Chile relied on the notified order issued by the Government of  

India on 28th April, 2015 (gazetted on 29th April, 2015) under Section 3(1)  

[read with Section 3(3)] of the Act thereby making the Extradition Treaty  

of 26th January, 1897 applicable to the Republic of Chile. The Supreme  

Court of Chile found this to be conclusive (and, with great respect, quite  

rightly) that the intention of the Government of India was to enforce the  

Extradition Treaty and make the Act applicable to the Republic of Chile.

77. In addition to this, and perhaps to confirm whether the Republic of  

Chile was bound by the Extradition Treaty, the Supreme Court of Chile  

noted that it was ratified by the Government of Chile on 14 th April, 1898.  

Thereafter, it was published in the Official Gazette on 22nd April, 1898.  

Therefore, if there was any doubt at all, it was made clear that even the  

Government  of  Chile  was  bound  by  the  provisions  of  the  Extradition  

Treaty.   

78. The Supreme Court of Chile found, both from the point of view of  

the Government of Chile and the Government of India that  there is in  

existence  and  in  force  a  binding  Extradition  Treaty  between  the  two  

countries.

79. Now, the issue may be looked at from the point of view of the  

Government of India. Learned counsel relied on the Report of the Expert  

Committee No. IX on Foreign Relations particularly paragraphs 42 to 45  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 36 of 69

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thereof which relate to existing treaties and engagements between India  

and other  countries  and tribes.  He strongly relied upon its  contents  to  

submit that the Extradition Treaty was no longer in existence. The Report  

of the Expert  Committee No. IX on Foreign Relations is a part of the  

Partition  Proceedings  (Vol.  III).  In  the  Preface  to  this  volume  by  the  

Partition Secretariat of the Government of India on 5th December, 1947 it  

is  stated  that  the  volume has  brought  together  the  reports,  papers  and  

decisions on all matters connected with Expert Committees III to IX.   

80. In paragraph 42 of the Report, a reference is made to Annexure V  

which contains a list of 627 treaties, conventions, agreements etc. entered  

into by the Government of India or by H.M.G. in which India or Pakistan  

or  both  are  interested.  Paragraph  43  of  the  Report  refers  to  the  legal  

position, which is that:

“India minus Pakistan will remain the same international entity as she  was before partition. She will continue, in respect of the rest of India, to  be  subject  to  the  obligations  and  entitled  to  the  benefits  of  all  international  engagements  to  which  pre-partition  India  was  a  party  either directly or through H.M.G., except those in respect of which she  is  rendered  by  partition  incapable  of  exercising  its  rights  and  performing its  obligations.  This  position will  not be affected by any  change in her constitutional set-up or by the acquisition by her of the  status of a Dominion. The position which Pakistan will occupy in this  respect is, however, not altogether clear.  If she is regarded as a new  State, one view is that she will not be bound by any treaty to which the  pre-partition India was a party nor will she be entitled to any benefits  thereunder.   This  conclusion  is  also  supported  by  the  opinion  of  international jurists, and according to Sir Thomas Holland –  

“In the case of loss of part of territory, the old State continuing to  exist, if the lost part, however separated, becomes an independent  State, it starts free of all general obligations; nor, on the other hand,  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 37 of 69

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can it claim any of the general advantages which it enjoyed when  part of the State from which it has been separated.”

81. Thereafter,  in  paragraph  45  of  the  Report,  the  Committee  

expressed its inability to pronounce an authoritative opinion on the legal  

aspects of the matter in view of the short time available. The Committee  

recommended that  both  Governments  (India  and Pakistan)  should  take  

steps to obtain expert legal opinion on all aspects of the matter.

82. It  was  pointed  out  by  learned  counsel  for  the  petitioner  that  

Annexure  V  to  the  Report  does  not  mention  the  Extradition  Treaty  

between  India  and  Chile  although  three  other  extradition  treaties  are  

mentioned. It was submitted, in view of this, that the Expert Committee  

on Foreign Relations did not recognize the existence of the Extradition  

Treaty between United Kingdom of Great Britain and Ireland and Chile or  

indeed between India and Chile.

83. Learned Additional  Solicitor  General submitted in response that  

the list was not exhaustive and the report of the Expert Committee was  

subsequently considered by the Steering Committee which gave a note  

that  it  was  in  substantial  agreement  with  the  views  expressed  by  the  

Expert Committee and that the conclusions reached by that Committee  

should be approved.  However,  the Steering Committee noted that  the  

Expert Committee had not been able to reach an agreed decision on the  

juridical position on the international personalities of India and Pakistan  

and  its  effect  on  treaty  obligations  and  membership  of  International  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 38 of 69

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Organizations. Accordingly, the Steering Committee proposed to put up a  

separate note for consideration by the Partition Council.  The view of the  

Steering Committee reads as follows:-

“The  report  of  Expert  Committee  No.  IX appointed  to  examine  the  effect  of  partition  on  foreign  relation  is  attached.  The  Steering  Committee  are  in  substantial  agreement  with  the  views  expressed  therein and recommend that the conclusions reached by the Committee  be approved.

2.  The Expert Committee has been unable to reach an agreed decision  on  the  juridical  position  regarding  the  international  personalities  of  India  and Pakistan (paragraphs 14 and 15) and its  effect,  if  any,  on  Treaty  Obligations  (paragraphs  43  and  44)  and  membership  of  International Organisations (paragraph 47).   The Steering Committee  propose to put up separately a note on this subject for consideration by  the Partition Council at a later date.”

84. The  Steering  Committee  was  silent  about  paragraph  42  which  

referred to Annexure V containing the list of 627 treaties, conventions and  

agreements.  Be  that  as  it  may,  the  recommendations  of  the  Steering  

Committee were approved by the Partition Council, which also noted that  

the Steering Committee would put up a separate note for its consideration  

as mentioned.

85. The Steering Committee then put up a note on the juristic position  

regarding international personality and treaty obligations. This was with  

respect  to  who inherits  the international  obligations  and corresponding  

privileges  contracted  by  the  Government  of  India.  The  Steering  

Committee examined the matter threadbare and gave its conclusions as  

follows:-

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“To sum up,  the position in international sphere consequent upon the  setting up of the two new Dominions will be as follows:-

(1) All international obligations assumed by pre-existing India will  devolve  on  the  Dominion  of  India  and  that  Dominion  will  be  entitled  to  the  rights  associated  with  such  obligations.  (In  this  category will fall India’s membership of the United Nations.)

(2) All  international  obligations  assumed by  the  pre-existing  India  which have exclusive territorial application to any area comprised  in Pakistan will devolve on the Dominion of Pakistan with all the  rights associated with such obligations.

(3) All  international  obligations  assumed  not  by  the  international  entity known as India as such but by His Majesty’s Government  in the United Kingdom acting on behalf of the British overseas  possessions and which have territorial  application to India as a  whole  will  devolve  on  both  the  Dominions  with  all  the  rights  associated with such obligations.”

86. It  is  significant  that  in  the  body  of  the  note,  the  Steering  

Committee  observed  that  “there  may  be  treaties  to  which  the  whole  

British Empire is a party and which may have territorial application to  

India  as  a  whole.  The  rights  and  obligations  under  such  treaties  will  

likewise be inherited by both the Dominions.”

87. The  note  given  by  the  Steering  Committee  was  submitted  for  

consideration of the Partition Council. It was recorded that Mr. Mohd. Ali  

did not subscribe to the view set out in the note and that he considered that  

the  Government  of  India  would  disappear  altogether  as  an  entity  and  

would be succeeded by two independent Dominions of equal international  

status. The Partition Council then considered the entire issue and in its  

decision it was held as follows:-

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“The Council agreed that the Constitutional Adviser [Mr. Cooke] should  be requested to evolve, if possible, a formula which would meet the case  of both sides. Such a formula, if evolved, would be placed before the  Pakistan and India Cabinets for their approval.”

88. Following  upon  the  decision  of  the  Partition  Council,  the  

Governor-General  issued  the  Indian  Independence  (International  

Arrangements)  Order,  1947  on  14th August,  1947  which  recorded  an  

agreement between the Dominion of India and the Dominion of Pakistan.  

The Schedule to the Order is important and this reads as follows:-

“SCHEDULE

Agreement as to the devolution of international rights and obligations  upon the dominions of India and Pakistan

1. The international rights and obligations to which India is entitled and  subject  immediately  before  the  15th day  of  August,  1947,  will  devolve in accordance with the provisions of this agreement.

2. (1) Membership of all international organizations together with the  rights  and obligations attaching to such membership,  will  devolve  solely upon the Dominion of India.

For  the  purposes  of  this  paragraph  any  rights  or  obligations  arising  under  the  Final  Act  of  the  United  Nations  Monetary  and  Financial  Conference  will  be  deemed  to  be  rights  or  obligations  attached  to  membership of the International Monetary Fund and to membership of  the International Bank for Reconstruction and Development.

(2)  The  Dominion  of  Pakistan  will  take  such  steps  as  may  be  necessary  to  apply  for  membership  of  such  international  organizations as it chooses to join.

3. (1) Rights and obligations under international agreements having an  exclusive  territorial  application  to  an  area  comprised  in  the  Dominion of India will devolve upon that Dominion.

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(2) Rights and obligations under international agreements having an  exclusive  territorial  application  to  an  area  comprised  in  the  Dominion of Pakistan will devolve upon that Dominion.

4. Subject to Articles 2 and 3 of this agreement, rights and obligations  under  all  international  agreements  to  which  India  is  a  party  immediately before the appointed day will devolve both upon the  Dominion of India and upon the Dominion of Pakistan, and will, if  necessary, be apportioned between the two Dominions.”

89. It is quite clear from the above, that all international agreements to  

which  India  (or  British  India)  was  a  party  would  devolve  upon  the  

Dominion of  India and the Dominion of  Pakistan and if  necessary the  

obligations and privileges should be apportioned between them. There is  

no limitation in the above Order that it  is  only with regard to the 627  

treaties mentioned by the Expert Committee No. IX on Foreign Relations  

– the reference is  to  “all  international  agreements”.   Quite clearly,  the  

extradition  treaty  between  the  United  Kingdom  of  Great  Britain  and  

Ireland and Chile was a part of all the treaties entered into (by India or  

British India) and in terms of the above Order the rights and obligations in  

that treaty devolved upon the Dominion of India and the Dominion of  

Pakistan.

90. That apart and additionally, as already mentioned above, when an  

issue  was  raised  in  Parliament  on  16th March,  1956  by  Smt.  Ila  

Palchoudhury, Prime Minister Shri Jawaharlal Nehru (who was also the  

Minister of External Affairs) laid on the table of the House a list of treaties  

concluded before Independence on behalf of India and which were still in  

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 42 of 69

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force. The Extradition Treaty of 26th January, 1897 was included in that  

list  and  therefore  as  far  back  as  in  1956  (much  before  the  present  

controversy arose) the Government of India was of the view that there  

was an extradition Treaty with Chile.

91. It  will  also  be  useful  to  recall  the  debate  in  Parliament  on  7 th  

August, 1962 on the Extradition Bill when Shri D.C. Sharma, an Hon’ble  

Member  of  Parliament,  referred  to  the  existence  of  a  large  number  of  

extradition  treaties  entered  into  before  15th August,  1947.  One  of  the  

extradition treaties mentioned by the Hon’ble Member was in existence an  

Extradition Treaty with Chile.

92. Reference  may  also  be  made  to  Document  A/CN.4/229  titled  

“Succession of States in respect of bilateral treaties – study prepared by  

the  Secretariat”  of  the  International  Law Commission  on  the  topic  of  

“Succession of States with respect to treaties”. This document is extracted  

from the Yearbook of the International Law Commission 1970, Vol. II.3  

The Document notes:

“A considerable number of extradition treaties concluded in the nineteenth and  twentieth  centuries  are  applicable,  either  automatically  or  by  subsequent  extension,  to  dependent  territories  of  the  parties  which  later  became  independent  States.  In  addition,  States  parties  to  extradition  treaties  have  sometimes undergone changes in international status (constitution of unions or  federations,  secession,  annexation,  restoration  of  independence,  etc.)  which  have affected their participation in these treaties.”

93. With reference to India, the Document notes in paragraph 22 that  

most of the extradition treaties concluded by the United Kingdom also  

3 http://www.un.org/law/ilc/index.htm

W.P. (Crl.) No. 178 of 2015 etc.                                          Page 43 of 69

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applied to India. It is noted that in 1956 the Prime Minister of India tabled  

a list of treaties with 45 countries. It is further noted that a similar issue  

was also raised during the passage of the Extradition Bill and the Minister  

of Law took the same position, namely, that extradition treaties concluded  

by the United Kingdom remain in effect, despite some argument to the  

contrary.  

94. Our  attention  has  also  been  drawn  to  the  Consular  Manual  

(Revised Edition 1983) issued by the Ministry of External Affairs. This  

appears  to  be  an  internal  document  for  the  benefit  of  officers  of  the  

Ministry  of  External  Affairs.  This  makes  a  reference  in  Chapter  8  to  

Annexure III on extradition treaties with foreign countries executed by the  

Government of the United Kingdom on behalf of India prior to January  

1938 and still in force. In that list is mentioned the Extradition Treaty with  

Chile executed on 26th January, 1897. It may be recalled that the Gazette  

of  India  of  12th November,  1898  reproduced  the  Order  in  Council  

published in the London Gazette of 12th August, 1898 pertaining to the  

Extradition  Treaty  between  the  United  Kingdom of  Great  Britain  and  

Ireland and the Republic of Chile. Therefore, not only was the Extradition  

Treaty recognized as binding on the Government of the United Kingdom  

of Great Britain and Ireland but also that it was in force in India.

95. In our opinion, there is more than sufficient material to conclude  

that from 1897-1898 onwards, the Government of British India and the  

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Government of India considered itself bound by the Extradition Treaty  

entered into with the Republic  of  Chile  on 26th January,  1897 and the  

Government of  India has always been of the view that  the Extradition  

Treaty is in force in India.

96. Therefore,  both from the point  of  view of Chile  and India,  the  

Extradition Treaty is in existence and binding upon each State.

Proceedings in the International Court of Justice  

97. However,  learned  counsel  for  the  petitioner  contended,  

notwithstanding this, that the Extradition Treaty was not binding on India,  

although the existence of the Treaty might not have been denied. In this  

context  he  relied  on  the  contention  advanced  on  behalf  of  the  

Government of India in the preliminary objection to the assumption of  

jurisdiction by the International Court of Justice on Pakistan's application  

in the case concerning the Aerial Incident of 10th August, 1999 (Pakistan  

v. India) decided on 21st June, 2000.4

98. The view canvassed by the Government of India was that it had  

never regarded itself bound by the General Act for the Pacific Settlement  

of International Disputes signed at Geneva on 26th September, 1928. This  

was  specifically  stated  by  the  Minister  for  External  Affairs  in  a  

communication addressed to the Secretary General of the United Nations  

on 18th September, 1974. Alternatively, it was submitted that the General  

Act had been repudiated by the Government of India.  

4 ICJ Reports 2000, page 12

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99. Accepting both the principal submission as well as the alternative  

submission, the International Court of Justice held in the majority opinion  

in paragraph 28 of the judgment as follows:-

“28. Thus India considered that it had never been party to the General  Act  of  1928  as  an  independent  State;  hence  it  could  not  have  been  expected formally to denounce the Act.  Even if, arguendo, the General  Act was binding on India, the communication of 18 September 1974 is  to  be  considered  in  the  circumstances  of  the  present  case  as  having  served the same legal ends as the notification of denunciation provided  for in Article 45 of the Act. On 18 October 1974 the Legal Counsel of  the United Nations, acting on instructions from the Secretary-General,  informed  the  member  States  of  the  United  Nations,  together  with  Liechtenstein, San Marino and Switzerland, of India’s “notification”.  It  follows from the foregoing that India, in any event, would have ceased  to be bound by the General Act of 1928 at the latest on 16 August 1979,  the date on which a denunciation of the General Act under Article 45  thereof would have taken effect.  India cannot be regarded as party to  the said Act at the date when the Application in the present case was  filed  by  Pakistan.   It  follows  that  the  Court  has  no  jurisdiction  to  entertain the Application on the basis of the provisions of Article 17 of  the General Act of 1928 and of Article 37 of the Statute.”

On this basis, it was held that the International Court of Justice had no  

jurisdiction to entertain the application of Pakistan. The decision of the  

International Court of Justice has really no relevance to the facts of the  

case before us.

100. Be  that  as  it  may,  a  completely  misconceived  reliance  was  

placed by learned counsel for the petitioner on the counter-memorial filed  

by the Government of India to the memorial filed by Pakistan in the above  

proceedings.  In  the  counter-memorial,  a  reference  was  made  to  a  

notification  of  succession to  the  General  Act  of  1928 received by the  

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Secretary-General from the Government of Pakistan on 30th May, 1974. In  

response  to  that  notification,  the  Minister  of  External  Affairs  sent  a  

notification  to  the  Secretary-General  on  18th September  1974.  Learned  

counsel  for  the  petitioner  relied  upon  certain  passages  from  the  

notification. The relevant portions of the notification relied on by learned  

counsel  are  underlined  by  us.  The  notification  says,  inter  alia  the  

following:  

“. . . 2. In the aforementioned communication, the Prime Minister of Pakistan  has stated, inter alia, that as a result of the constitutional arrangements made at  the time when India and Pakistan became independent, Pakistan has been a  separate  party  to  the  General  Act  of  1928  for  the  Pacific  Settlement  of  International  Disputes from the date  of her  independence,  i.e.  14th August  1947,  since  in  accordance  with  Section  4  of  the  Indian  Independence  (International Arrangements) Order 1947, Pakistan succeeded to the rights and  obligations  of British India under  all  multilateral  treaties  binding upon her  before her partition into the two successor States.  

The  Prime  Minister  of  Pakistan  has  further  stated  that  accordingly,  the  Government of Pakistan did not need to take any steps to communicate its  consent de novo to acceding to multilateral conventions by which British India  had been bound. However, in order to dispel all doubts in this connection, the  Government of Pakistan have stated that they continue to be bound by the  accession of British India to  the General  Act  of 1928. The communication  further adds that 'the Government of Pakistan does not, however, affirm the  reservations made by British India'.  

3. In this connection, the Government of India has the following observations  to make:  (1)  The  General  Act  of  1928  for  the  Pacific  Settlement  of  International  Disputes was a political agreement and was an integral part of the League of  Nations system. Its efficacy was impaired by the fact that the organs of the  League of Nations to which it  refers have now disappeared.  It  is for these  reasons that the General Assembly of the United Nations on 28 April 1949  adopted the Revised General Act for the Pacific Settlement of International  Disputes. (2) Whereas British India did accede to the General Act of 1928, by  a communication of 21 May 1931, revised on 15 February 1939, neither India  

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nor Pakistan, into which British India was divided in 1947, succeeded to the  General Act of 1928, either under general international law or in accordance  with the provisions of the Indian Independence (International Arrangements)  Order,  1947. (3)  India  and  Pakistan  have  not  yet  acceded  to  the  Revised  General Act of 1949. (4) Neither India nor Pakistan have regarded themselves  as being party to or bound by the provisions of the General Act of 1928. This  is clear from the following: (a) In 1947, a list of treaties to which the Indian  Independence  (International  Arrangements)  Order,  1947  was  to  apply  was  prepared by ‘Expert Committee No. 9 on Foreign Relations’. Their report is  contained  in  Partition  Proceedings,  Volume  III,  pages  217-276.  The  list  comprises 627 treaties in force in 1947. The 1928 General Act is not included  in that list. The report was signed by the representatives of India and Pakistan.  India should not therefore have been listed in any record as a party to the  General  Act  of  1928  since  15  August  1947. (b)  In  several  differences  or  disputes since 1947, such as those relating to the uses of river waters or the  settlement of the boundary in the Rann of Kutch area, the 1928 General Act  was not  relied upon or  cited either  by India or  by Pakistan.  (c)  In  a  case  decided in 1961, the Supreme Court of Pakistan while referring to the Indian  Independence (International Arrangements) Order, 1947 held that this Order  ‘did not and, indeed, could not provide for the devolution of treaty rights and  obligations  which  were  not  capable  of  being  succeeded  to  by  a  part  of  a  country,  which  is  severed  from  the  parent  State  and  established  as  an  independent  sovereign  power,  according  to  the  practice  of  States’.  Such  treaties would include treaties of alliance, arbitration or commerce. The Court  held  that  ‘an examination of  the  provision of  the  said Order  of  1947 also  reveals  no  intention  to  depart  from  this  principle’.  (d)  Statements  on  the  existing international law of succession clearly establish that political treaties  like the 1928 General Act are not transmissible by succession or by devolution  agreements.  Professor  O'Connell  states  as  follows:  ‘Clearly  not  all  these  treaties are transmissible; no State has yet acknowledged its succession to the  General Act for the Pacific Settlement of International Disputes’ (1928). (State  Succession in Municipal Law and International Law, vol. II, 1967, page 213.)  See also Sir Humphrey Waldock's Second Report (article 3) and Third Report  (articles  6  and  7)  on  State  Succession  submitted  to  the  International  Law  Commission  in  1969  and  1970,  respectively;  Succession  of  States  and  Governments,  Doc.  A/CN.4/149-Add.1  and  A/CN.4/150  –  Memorandums  prepared by UN Secretariat  on 3 December 1962 and 10 December  1962,  respectively;  and Oscar  Schachter,  ‘The Development of International  Law  through Legal Opinions of the United Nations Secretariat’, British Yearbook  of  International  Law  (1948)  pages  91,  106-107.  (e)  The  Government  of  Pakistan had attempted to establish the jurisdiction of the International Court  of  Justice  in  the  Trial  of  Prisoners  of  War  case  in  May 1973 and in  that  connection, as an alternative pleading, for the first time cited the provisions of  the General Act of 1928 in support of the Court's jurisdiction to deal with the  

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matter. Although the Government of India did not appear in these proceedings  on the ground that their consent, required under the relevant treaty, had not  been obtained before instituting these proceedings, their views regarding the  nonapplication of the General Act of 1928 to India-Pakistan were made clear  to  the  Court  by  a  communication  dated  4  June  1973  from  the  Indian  Ambassador at The Hague.  

4. To sum up the 1928 General Act, being an integral part of the League of  Nations system, ceased to be a treaty in force upon the disappearance of the  organs of the League of Nations. Being a political agreement it could not be  transmissible under  the law of succession.  Neither India nor Pakistan have  regarded themselves as bound by the General Act of 1928 since 1947.  The  General Act of 1928 was not listed in the list of 627 agreements to which the  Indian  Independence  (International  Arrangements)  Order,  1947  related  and  India and Pakistan could therefore not have been listed in any record as parties  to  the  1928  General  Act. Nor  have  Pakistan  or  India  yet  acceded  to  the  Revised General Act of 1949.

5. The Government of Pakistan, by their communication dated 30 May 1974,  have now expressed their intention to be bound by the General Act of 1928,  without the reservations made by British India. This new act of Pakistan may  or may not amount to accession to the General Act of 1928 depending upon  their wishes as a sovereign State and the position in international law of the  treaty in question. In view of what has been stated above, the Government of  India consider that Pakistan cannot, however, become a party to the General  Act  of  1928  by  way  of  succession  under  the  Indian  Independence  (International Arrangements) Order, 1947, as stated by Pakistan.  

101. The  notification  of  30th May,  1974  of  the  Government  of  

Pakistan was only with reference to succession by Pakistan to the rights  

and obligations of  British India to all  treaties  binding upon her before  

partition including, of course, the General Act of 1928. That is all. The  

response notification of  18th September,  1974 given by the Minister of  

External Affairs to the Secretary-General of the United Nations therefore  

confined itself to the General Act of 1928 and the effect of the Indian  

Independence  (International  Arrangements)  Order,  1947  and  must  be  

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appreciated in that context. The Government of India was explicit that it  

was not a party and was never bound by the General Act of 1928. That  

should have been the end of the matter.  However and additionally, the  

Government of India brought out that the Supreme Court of Pakistan, in  

Messrs. Yangtze (London) Ltd. v. Barlas Brothers5 had taken the view  

that “The Indian Independence (International Arrangements) Order, 1947  

did not and, indeed, could not provide for the devolution of treaty rights  

and obligations which were not capable of being succeeded to by a part of  

a country, which is severed from the parent State and established as an  

independent  sovereign Power,  according to  the  practice  of  States.”6 In  

other words, even the Supreme Court of Pakistan held the view that the  

Indian  Independence  (International  Arrangements)  Order,  1947 did  not  

provide  for  the  devolution  of  treaty  rights  and  obligations  to  the  

Government of Pakistan. She could not, therefore, rely on the General Act  

of 1928. It was only this view that was put forward by the Government of  

India.  The  counter-memorial  did  not  contradict  or  abrogate  the  Indian  

Independence (International Arrangements) Order, 1947 as suggested by  

learned counsel for the petitioner.  

102. The counter-memorial had nothing to do with any treaty with  

any country, much less the Extradition Treaty, nor did it  concern itself  

with any issue other than the issue of the jurisdiction of the International  

5 PLD 1961 SC 573 6 Verbatim record of the public sitting held on 4th April, 2000 in the International Court of Justice

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Court of Justice to adjudicate the dispute between Pakistan and India in  

the  context  of  the  General  Act  of  1928.  The  contents  of  the  counter-

memorial did not validate the Report of the Expert Committee, as indeed  

it could not. This is the error made by learned counsel for the petitioner in  

appreciating the proceedings before the International Court of Justice.  

103. Learned  counsel  for  the  petitioner  also  forgets  that  the  Indian  

Independence (International Arrangements) Order, 1947 had the effect of  

an  agreement  between  the  Dominion  of  India  and  the  Dominion  of  

Pakistan.  These  two  Dominions  did  not  agree  to  exclude  any  treaty,  

convention or agreement from the purview of the Indian Independence  

(International  Arrangements)  Order,  1947  as  a  result  of  the  Partition  

Proceedings. Indeed, neither Dominion could wish away the existence of  

any  pre-Independence  treaty.  On  the  contrary,  the  two  Dominions  

specifically agreed that the “rights and obligations under all international  

agreements to which India is a party immediately before the appointed  

day will devolve both upon the Dominion of India and upon the Dominion  

of  Pakistan.”  Therefore,  it  is  not  possible  to  read  the  exclusion  or  

elimination of any treaty from the purview of the Indian Independence  

(International Arrangements) Order, 1947, much less through the Report  

of  the Expert  Committee.  The Extradition Treaty  with  Chile  was  very  

much included in the arrangement between the Dominion of India and the  

Dominion of Pakistan with only the question of apportionment kept open,  

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if necessary.

104. We also cannot overlook the submission of the learned Additional  

Solicitor General that the Report of the Expert Committee was not the  

final word on the subject under discussion. The Report was considered by  

the  Steering  Committee  whose  views  were  then  considered  by  the  

Partition  Council.  It  is  only  thereafter  that  some  finality  was  reached  

through an Order that had the effect  of an agreement between the two  

Dominions. The list of 627 treaties prepared by the Expert Committee was  

not exhaustive nor was it intended to be exhaustive, nor were the views of  

the Expert Committee conclusive. They were subject to the decision of the  

Partition Council and eventually the Governor-General (reforms). It is for  

this  reason  that  the  Indian  Independence  (International  Arrangements)  

Order, 1947 issued by the Governor-General (Reforms) did not specify  

any treaty or treaties but all inclusively referred to the devolution of the  

rights  and  obligations  under  all  international  agreements,  without  

limitation.    

105. Finally, as far as extradition treaties generally are concerned, the  

provisions of Section 2(d) of the Act have been made applicable to all  

such treaties entered into prior to Independence. Nothing could be clearer  

or more explicit on the subject.  

106. Assuming  the  report  of  the  Expert  Committee  limited  the  

agreement  between  the  two  Dominions  only  to  627  pre-Independence  

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treaties, that could not wipe out the existence of other treaties entered into,  

prior to Independence, on behalf of India, including the Treaty mentioned  

in the Gazette of India of 12th November, 1898. It is nobody’s case that the  

Report of the Expert Committee resulted in the termination or repudiation  

of  pre-Independence treaties  that  were acknowledged to be binding on  

India. Such a contention completely overlooks the contents of the Indian  

Independence (International Arrangements) Order, 1947.  

107. That  the  Extradition  Treaty  was  in  existence  and  it  was  not  

unilaterally terminated or repudiated is also clear from two major overt  

acts: firstly, the statement of the Prime Minister in Parliament recognizing  

an Extradition Treaty with Chile and secondly, the statutory enactment,  

namely,  the  Extradition  Act,  1962  which  specifically  gave  recognition  

through Section 2(d) thereof to all extradition treaties entered into prior to  

15th August, 1947. If there was any controversy whether the Government  

of India recognized itself as bound by the Extradition Treaty, then that was  

put to rest by the notified order of 28th April, 2015 under Section 3(1) of  

the Act (gazetted on 29th April, 2015 with a corrigendum issued on 11th  

August, 2015) whereby the Government of India made the Act applicable  

to the Republic of Chile.  This left  absolutely no manner of doubt that  

India was bound by the obligations under the Extradition Treaty. These  

public and overt acts after Independence confirm and acknowledge,  on  

behalf of India, the existence and binding nature of the Extradition Treaty  

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between India and Chile.  

108. That apart, this Court has taken the view in  Rosiline George v.   

Union of India & Ors.7 (relying upon Babu Ram Saksena v. State8) that  

our Independence and subsequent status as a sovereign republic did not  

put an end to the treaties entered into prior to 15 th August, 1947 by the  

British Government on behalf of India. This is what was said in paragraph  

26 of the Report:

“It is thus obvious that in  Babu Ram Saksena case this Court approved the  proposition of international law that a change in the form of Government of a  contracting State does not put an end to its treaties. India, even under British  rule, had retained its personality as a State under international law. It was a  member  of  the  United  Nations  in  its  own  right.  Therefore,  grant  of  independence in the year 1947 and thereafter the status of Sovereign Republic  could  not  have  put  an  end  to  the  treaties  entered  into  by  the  British  Government prior to August 15, 1947 on behalf of India.”

109. Nothing can be a clearer exposition of the law, particularly with  

respect  to  extradition  treaties.  What  is  also  of  importance  is  how the  

Government  of  India  viewed  the  factual  position  in  relation  to  an  

extradition treaty. In the factual position before us, did the Government of  

India terminate  the Treaty or  did it  recognize its  obligations under the  

Extradition  Treaty? In this  context,  reference  must  be made to  Article  

XVIII of the Extradition Treaty. This reads as follows:-

“The present  Treaty shall  come into force  ten  days  after  its  publication in  conformity with the forms prescribed by the laws of the High Contracting  

7 (1994) 2 SCC 80 8 1950 SCR 573 [5 Judges]

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Parties. It may be terminated by either of the High Contracting Parties by a  notice not exceeding one year, and not less than six months.

It shall be ratified, after receiving the approval of the Congress of the Republic  of Chile, and the ratifications shall be exchanged at Santiago as soon as  possible.”

There is nothing to indicate that the Government of India resorted to this  

Article to terminate or repudiate the Extradition Treaty. On the contrary,  

as  mentioned  above,  the  Government  of  India  overtly  accepted  and  

acknowledged the Treaty and even made the Extradition Act applicable to  

Chile.  

110. Our attention was also drawn to  Halsbury’s Laws of England9  

wherein it is stated in paragraph 642 with regard to treaties entered into  

by the ‘mother state’ on behalf of its colonies as follows:

“642.  Territorial  application  clauses.  The  position  of  former  colonial  territories with regard to treaties entered into by their mother state, after their  independence, is influenced by the existence in some such treaties of territorial  or  colonial  application  clauses.   These  in  effect  permit  non-metropolitan  territorial  sub-divisions  of  states  to  contract  in  or  contract  out  of  treaties  independently  of  the  mother  country.  Incidentally,  therefore,  when  self- governing dominions of the Crown eventually achieved statehood the question  whether they succeeded to United Kingdom treaties did not arise, since they  were already parties to them.  Similarly, when other British overseas territories  were granted independence, the prime question in relation to treaties was often  not  whether  those  territories  succeeded  to  the  treaties,  but  whether  those  treaties already applied to them in their new international capacities by some  territorial clause contained in them.”

A reference was made to India in a footnote to the aforesaid passage, to  

the effect that though she was not a self-governing State at the relevant  

time, she was an original member of the United Nations and a party to the  

9 Volume 18(2) 4th Edition

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Charter of the United Nations in her own right. In this context, we might  

also recall that as far as the Treaty is concerned, India had gazetted it in  

the Gazette of India of 12th November, 1898 when it reproduced the Order  

in  Council,  even though India  was,  at  that  time,  not  a  self-governing  

State.  

A political question – alternative view

111. It was submitted by the learned Additional Solicitor General, in  

the alternative, that the existence of a treaty is a political question and that  

this  Court  cannot  go  into  the  issue  whether  there  is  a  subsisting  and  

binding treaty of  extradition between India  and Chile.  Effectively,  the  

contention is that the word of the Government of India on the existence of  

a treaty should be accepted. It is difficult to fully accept the proposition in  

the broad manner in which it has been stated.

112. In Sayne v. Shipley10 in a discussion pertaining to the 1903 treaty  

between  the  United  States  and  the  Republic  of  Panama,  it  was  held,  

referring to  Terlinden v.  Ames11 and  Ivancevic  v.  Artukovic12 that  the  

conduct  of  foreign affairs  is  a  political  function but  the advice  that  a  

treaty  is  still  in  effect  is  not  conclusive  though it  is  entitled  to  great  

weight and importance. It was said as follows:

“The Assistant Legal Advisor for Treaty Affairs of the State Department has  advised the District Court that Article XVI of the 1903 Treaty is still in effect.  Because we recognize that the conduct of foreign affairs is a political, not a  judicial function, such advice, while not conclusive on this Court, is entitled to  

10 418 F.2d 679 [United States Court of Appeals, Fifth Circuit] 11 184 U.S. 270 (1902)  12 211 F.2d 565 [United States Court of Appeals, Ninth Circuit]

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great weight and importance. It is the general rule that the courts will accord  great, but not binding, weight to a determination by the Executive Department  that a treaty is terminated, at least when private rights are involved.”

113. In  Terlinden it  was held that: “… on the question whether this  

treaty [the treaty between the United States of America and the Kingdom  

of Prussia concluded on 16th June, 1852 and ratified on 30th May, 1853]  

has ever been terminated, governmental action in respect to it must be  

regarded as of controlling importance.”

114. In  Jhirad v.  Ferrandina13 the Government  of  India  sought  the  

extradition of an Indian citizen from the United States,  relying on the  

1931 extradition treaty between the two countries. It was held as follows:

“Whether  an extradition treaty exists  is  an issue with major  foreign policy  implications  and  one  which  does  not  easily  fall  within  the  sphere  of  the  Judicial Branch of Government. Thus, it is that courts have given great weight  to  the  position  taken  by  the  Executive  Branch  concerning  the  validity  of  extradition treaties. In Sayne v. Shipley, the Fifth Circuit said:

“Because we recognize that the conduct of foreign affairs is a political,  not a judicial function, such advice from the Executive Branch], while  not conclusive on this Court, is entitled to great weight and importance.”  

In the case at bar, the United States, through the Acting Secretary of State,  certified on August 14, 1972, that “the treaty of extradition between the United  States  and  India  is  therefore  considered  a  good  subsisting  and  binding  convention  between  the  United  States  and  India.”  Further,  the  Executive  Branch strongly indicated its continuing affirmation of the Treaty when (in  July  of  1967),  in  conjunction  with  a  prior  extradition  between  the  United  States and India, notes were exchanged between the two Governments.  

The position of the Executive Branch, though persuasive, is not conclusive.  The Court must evaluate the facts concerning the Treaty on its own.”

115. There are a few other decisions on the subject, but there is none  

13 355 F. Supp. 1155 [S.D.N.Y. 1973]

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C. Clark v. Alvina Allen15 wherein it was held that whether a State is in a  

position to perform its treaty obligations is essentially a political question.  

This view has been accepted by Justice Sathasivam in Abu Salem Abdul  

Qayoom Ansari v. State of Maharashtra.16

118. It was also observed in  Rosiline George  that whether a treaty has  

been  terminated  by  a  State  is  essentially  a  political  question.  It  was  

observed:

“Whether a treaty has been terminated by the State is essentially a political  question.  The governmental  action  in  respect  to  it  must  be regarded as  of  controlling importance. So far as India and the United States of America are  concerned,  it  is  amply evidenced by their  actions that  the two States  fully  recognise their obligations under the 1931 treaty.”

119. Although this may not necessarily be a fully accurate statement of  

the law, we leave it at that since the issue does not arise in these cases. In  

any event, we leave these issues of termination of a treaty or performance  

of  treaty  obligations  being  political  questions  to  be  decided  in  an  

appropriate case. However, we can say that it does appear though, that the  

reason for terminating an extradition treaty would be a political question,  

so also whether India should enter into an extradition treaty with a foreign  

State and whether India should issue a notified order under Section 3(1)  

of the Act making the Act applicable to a foreign State would also be a  

political  decision.   But  whether  a  treaty  exists  between  India  and  a  

foreign State may not necessarily be a political question or a political  

15 331 U.S. 503, 518 16 (2011) 11 SCC 214

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decision – a lot depends on ‘governmental action’ which would certainly  

be of ‘controlling importance’ though not conclusive. Nevertheless, we  

are clear that if the Executive were to inform the Court that there exists a  

treaty between India and a foreign State, the Court would defer to the  

decision  of  the  Executive  and  would  not  ordinarily  question  the  

information.   

Applicability of Section 34-B of the Act

120. It  was  submitted by learned counsel  for  the  petitioner  that  the  

detention and provisional  arrest  of  his  client  on 22nd September,  2015  

under Section 34-B of the Act soon after the judgment of the High Court  

was illegal. It was submitted that there was no request from Interpol to  

detain and arrest the petitioner and therefore there was no occasion for  

her arrest particularly since the proceedings against her had been quashed  

by the High Court the previous day in its judgment dated 21st September,  

2015. We are not inclined to accept this submission.   

121. It is not at all necessary that the arrest of a foreign national for a  

crime committed outside India can only be on the basis of a Red Notice.  

It is true that in  Bhavesh Jayanti Lakhani v. State of Maharashtra &   

Ors.17 it was explained that a Red Notice is issued to seek the provisional  

arrest of a wanted person. It is not a warrant of arrest. It is a request made  

by the NCB to Interpol Headquarters for the provisional arrest of a person  

wanted for extradition and against whom a national or international court  

17 (2009) 9 SCC 551

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has issued a warrant of arrest.   It  is another matter that a Red Notice  

issued  by  Interpol  acts  as  a  de  facto international  arrest  warrant.  

However, this is subject to the condition that a request for extradition,  

along  with  necessary  evidence,  would  be  produced  by  the  requesting  

State without delay.  

122. But  the  absence  of  a  Red  Notice  does  not  preclude  the  

Government of  India from arresting a fugitive criminal  and producing  

him or her before a Magistrate in accordance with law. Thereafter, the  

provisions of Section 34-B of the Act can be brought into play, provided  

there is an urgent request from a foreign State for the provisional arrest of  

a fugitive criminal. This is precisely what transpired in the present case  

when the Embassy of  Chile made an urgent request  through the  Note  

Verbale of 22nd September, 2015 for the arrest of the petitioner. That Note  

Verbale  was acted upon by the Government of India and an application  

moved  before  the  Additional  Chief  Metropolitan  Magistrate,  Patiala  

House  Courts,  New Delhi  who granted  the  prayer  for  the  provisional  

arrest of the petitioner. No illegality or irregularity can be found in the  

procedure adopted for the provisional arrest of the petitioner.   

123. Learned counsel for the petitioner submitted that the petitioner’s  

arrest under Section 34-B of the Act could be made only on a request  

from  a  foreign  State  (as  mentioned  in  the  Section)  and  not  by  a  

representative of a foreign State or even the Embassy of a foreign State.  

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This argument is stated to be rejected.  Section 2(e) of the Act defines a  

foreign  State  to  mean  any  State  outside  India  and  it  includes  every  

constituent part, colony or dependency of such State.  A request made by  

the  Embassy  of  a  foreign State  is  as  good  as  a  request  made  by  the  

foreign  State  itself.  If  this  is  not  accepted,  it  will  lead  to  an  absurd  

situation where the Head of State or the Head of the Government of a  

foreign State would be required to make a request for extradition. This is  

simply not an acceptable proposition.  

Extradition and reciprocity

124. The  principle  of  reciprocity  has  quite  an  ‘ancient’ history.  As  

noted in the Final Report of the International Law Commission (2014) on  

“The obligation to extradite or prosecute” (aut dedere aut judicare):

“The  role  the  obligation  to  extradite  or  prosecute  plays  in  supporting  international cooperation to fight impunity has been recognized at least since  the  time of  Hugo Grotius,  who postulated  the  principle  of  aut  dedere  aut   punire (either extradite or punish): “When appealed to, a State should either  punish  the  guilty  person  as  he  deserves,  or  it  should  entrust  him  to  the  discretion of the party making the appeal.” The modern terminology replaces  “punishment” with “prosecution” [aut dedere aut judicare] as the alternative  to extradition in order to reflect better the possibility that an alleged offender  may be found not guilty.”18

In other words, if a State is unwilling to extradite a fugitive criminal, it  

should undertake the responsibility of prosecuting him or her, the theory  

being  that  a  criminal  should  not  go  unpunished.  The  prosecute-or-

extradite  regime received the imprimatur  of  the International  Court  of  

18 Hugo Grotius lived from 1583 to 1645

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Justice in the case concerning  Questions relating to the Obligation to   

Prosecute  or  Extradite  (Belgium  v.  Senegal)19 in  the  context  of  the  

Convention  against  Torture,  but  “the  Court’s  ruling  may  also  help  to  

elucidate  the  meaning  of  the  prosecute-or-extradite  regime  under  ….  

other conventions” which have followed the same formula as the 1970  

Hague Convention for the Suppression of Unlawful Seizure of Aircraft.20

125. In  Rosiline  George there  is  a  discussion  on  extradition.   It  is  

mentioned in the paragraph 16 of the Report that extradition denotes the  

process whereby under a concluded treaty, one State surrenders to any  

other State at  its  request,  a  person accused or convicted of a criminal  

offence committed in contravention of the laws of the requesting State,  

such  requesting  State  being  competent  to  try  the  alleged  offender.  

“Extradition is founded on the broad principle that it is in the interest of  

civilized communities that criminals should not go unpunished and on  

that account it is recognized as a part of the comity of nations that one  

State should ordinarily afford to another State assistance towards bringing  

offenders to justice.”  

In Terlinden, it was said:

“Extradition may be sufficiently defined to be the surrender by one nation to  another of an individual accused or convicted of an offence outside of its own  territory,  and  within  the  territorial  jurisdiction  of  the  other,  which,  being  competent to try and punish him, demands the surrender.”

126. The discussion on extradition by Justice Ganguly in Abu Salem is  

19 Judgment of 20th July, 2012; I.C.J. Reports 2012, p. 422 20 Paragraph 65(15) of the above Report of the International Law Commission

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not only very erudite but also very instructive.  The learned Judge noted  

that  doctrinally  speaking  extradition  has  five  substantive  ingredients:  

reciprocity; double criminality; extraditable offence; speciality and non-

inquiry. For the present purposes, it is not necessary to deal with each  

ingredient.

127. Suffice  it  to  say  that  it  is  on  the  basis  of  reciprocity  that  the  

Republic  of  Chile  first  sought  the  extradition  of  the  petitioner  as  

mentioned in the Note Verbale of 24th February, 2015. The same principle  

of reciprocity was resorted to by the Government of India when it sought  

the extradition of Abu Salem from Portugal, although the request made by  

the Government of India to Portugal sought his extradition also by relying  

on  the  International  Convention  for  the  Suppression  of  Terrorist  

Bombings. Justice Ganguly, however, points out in paragraph 63 of the  

Report that “The primary consideration for the request of extradition was  

the assurance of reciprocity.”  

128. For invoking the principle of reciprocity, there need not even be  

an extradition treaty between India and the foreign State as is apparent  

from a reading of the decision of this Court in Abu Salem. In fact, India  

did not have any extradition treaty with Portugal and yet it made a request  

for the extradition of Abu Salem on the basis of reciprocity.  It is only  

around the time that the request was made that the Government of India  

issued a notified order under Section 3(1) of the Act directing that the  

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provisions of the Extradition Act, 1962 other than Chapter III shall apply  

to the Republic of Portugal.

129. We are, therefore, in agreement with the submission of the learned  

Additional Solicitor General that on the basis of a request made by Chile  

as contained in the  Note Verbale of 22nd September, 2015 the petitioner  

could  have  been  validly  detained  and  placed  under  provisional  arrest  

under Section 34-B of the Act, on a reciprocal basis, Extradition Treaty or  

no Extradition Treaty between India and Chile. The further requirement  

(in terms of Section 34-B of the Act) would however be for Chile to make  

a formal request for extraditing the petitioner from India on the basis of  

credible evidence against her of having committed an extradition offence  

punishable both in Chile as well as in India.

Subsidiary issues

130. It was also submitted by learned counsel that the Government of  

India had not applied its mind at all when the Act was made applicable to  

the  Republic  of  Chile.   This  argument  is  also  without  any  basis  and  

learned counsel has not pointed out or suggested any general or specific  

procedure that the Government of India should follow for making the Act  

applicable to a foreign State, except the issuance of a notified order under  

Section 3(1) of the Act.  Admittedly, such a notified order has been issued  

in respect of the Republic of Chile and the natural presumption is that this  

official act has been done after due application of mind.  In any event,  

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whether the Extradition Act is to be made applicable to a foreign State or  

not is entirely a political decision to be taken by the Government of India  

and there must be judicial abstinence in this regard.  We have no doubt  

that this is an area that cannot be the subject matter of judicial review.

131. It was also submitted that the High Court ought not to have given  

liberty to the Government of India to once again initiate the process of  

extradition. The submission is misplaced. It is really for the Republic of  

Chile to decide whether it would like to have the petitioner extradited or  

not. The Government of India has no say in the matter. The Republic of  

Chile decided to renew its request for the extradition of the petitioner in  

November,  2015.  The  Government  of  India  chose  not  to  ignore  that  

request but to act upon it. That is a political or diplomatic decision that  

the Government of India took. The petitioner has no say in the matter and  

judicial abstinence on such an issue prevents us from commenting on the  

decision.

Dissemination of information

132. Finally,  learned  counsel  for  the  petitioner  commented  on  the  

dissemination of information by the Ministry of External Affairs through  

its official website. It was pointed out that the official website informs  

everybody that India had entered an extradition treaty with Chile in 2015.  

Learned  counsel  relied  on  this  information  to  contend  that  the  

Government of India does not recognize the Extradition Treaty of 1897  

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and  there  is  no  extradition  treaty  entered  into  with  Chile  in  2015.  

Consequently, the entire proceedings against the petitioner are vitiated.    

133. It is extremely unfortunate that the official website of the Ministry  

of External Affairs gives misleading information not only to Indians but  

also to the world at large. The learned Additional Solicitor General was  

quite upset at the misleading information given on the official website  

and informed us that he had given a piece of his mind to the concerned  

officials  in  the  Ministry.   Whether  amends  have  been  made  by  the  

Ministry of External Affairs and whether the advice given by the learned  

Additional Solicitor General has been taken by the Ministry of External  

Affairs in the right spirit or not does not concern us.  All that we need say  

is  that  in  this  day  and  age  when  communication  and  communication  

technology are so important, the Ministry of External Affairs has to be far  

more careful in the information that it disseminates to the world at large.

134. We may also note the relaxed attitude of the Ministry of External  

Affairs as evidenced by the manner in which the notified order dated 28 th  

April, 2015 was drafted by it. The text of the notified order leaves much  

to be desired.  We have already pointed out three errors in the notified  

order, none of which should have occurred at all.  The errors only show  

the laid-back manner in which the Ministry of External Affairs conducts  

its internal affairs. To make matters worse, the corrigendum gazetted on  

11th August,  2015 fails to correct the error in the earlier notified order  

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where the Extradition Act, 1962 is referred to as the Indian Extradition  

Act, 1962. It is time that the Ministry of External Affairs gets over the  

colonial  hangover.  Though  the  error  is  minor  and  not  substantive,  it  

should  not  have been there at  all.  We need say nothing more on this  

subject except to be optimistic and hope that the Ministry of External  

Affairs  of  the  Government  of  India  takes  matters  of  law  far  more  

seriously than is evident from the material on record before us.        

135. It is time to realize that India is now a significant and important  

player in the world stage. Very little attention appears to have been paid  

to affairs of international law as is evident from the manner in which the  

affidavits have been drafted and filed by the Government of India not  

only in the Delhi High Court but also in this Court. Most of the relevant  

material handed over to us in Court by the learned Additional Solicitor  

General did not form a part of any affidavit filed by the Government of  

India.  True,  there  is  no  dispute  about  the  authenticity  of  the  material  

handed over to us in Court but that is not the issue. What is in issue is the  

nonchalant response of the Government of India on a matter concerning  

the liberty of an individual, even if that individual happens to be a foreign  

national who is in India.  

Conclusion

136. On the basis of the material  before us,  we hold that  there is a  

binding extradition treaty between India and Chile and that the provisions  

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of  the  Extradition  Act,  1962  (other  than  Chapter  III  thereof)  are  

applicable to the Republic of Chile in respect of the offences specified in  

the Extradition Treaty.

137. The  extradition  proceedings  pertaining  to  the  petitioner  are  

pending  before  the  Additional  Chief  Metropolitan  Magistrate,  Patiala  

House Courts, New Delhi. We make it clear that we have not pronounced  

on the merits of the controversy pending before him and have confined  

our consideration only to the existence or otherwise of the Extradition  

Treaty between India and Chile. The learned Magistrate should decide on  

the extradition of the petitioner on the merits of the case and the evidence  

before him. Any observations incidentally made by us on the merits of the  

extradition  requisition  will  not  bind  the  learned  Magistrate  for  the  

purposes of the final outcome of the proceedings.

138. The writ petition and the criminal appeal are dismissed.  No costs.  

.………………….J  (Madan B. Lokur)

       New Delhi;             ………………….J   April 28, 2016            (N.V. Ramana)

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