The factual background 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.
In accordance with the laws in Chile, the matter was then companysidered by the Supreme Court of Justice of Chile.
In the report, an examination of all the relevant material was carried out by the Prosecutors office and it was companycluded 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.
The subsequent Note Verbale of 24th March, 2015 did number and companyld number depart from this decision of the Supreme Court of Chile rendered on 9th March, 2015 that there was numberextradition treaty between Chile and India.
The Red Notice mentioned that NCB Santiago, Chile and the Interpol General Secretariat be immediately informed on the fugitive being found.
Acting on the request, the office of the Prosecutor in the Supreme Court submitted a report of 6th November, 2015.
The Note Verbale is of some importance and it reads as follows The Embassy of the Republic of Chile presents its companypliments 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.
8931 of 2015 on or about 13th October, 2015 challenging the companyrectness 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 number preclude the Government of India from initiating appropriate steps for the extradition of the petitioner after following the due process of law.
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.
The second error is that the numberified order is purported to have been issued in exercise of powers companyferred by Section 4 1 of the Indian Extradition Act, 1962.
The validity of the numberified order dated 28th April, 2015 was challenged by the petitioner by filing W.P. Crl.
She was produced before the companycerned Magistrate in Maharaj Ganj in Uttar Pradesh and brought to Delhi on a transit remand.
The Supreme Court of Chile, in its decision rendered on 9th March, 2015 specifically companycluded that there is numberextradition treaty between Chile and India.
As regards Ms. Verhoeven, described in the documents enclosed, a warrant of arrest was issued against her on January 27, 2014.
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.
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.
666 of 2015 in the Delhi High Court and also a subsequent order companytinuing her judicial custody as a result of the Red Notice issued by Interpol.
It was also published in the Official Gazette in Chile on 22nd April, 1898.
One of the foreign companyntries 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.
The request for preventive detention to secure the extradition to be sought was issued in matter No.
No companyrection was made with regard to the so called Indian Extradition Act, 1962.
The third error is that there is numberstatute called the Indian Extradition Act, 1962.
The petitioner also preferred Special Leave Petition Crl.
This Treaty was ratified by the parties and enacted in Chile on 14th April, 1898.
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.
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.
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 companycerned matter of fugitive, stated that the respondents have number been precluded to initiate appropriate steps afresh for extradition of petitioner FC by following due process of law.
No.178 of 2015 on or about 29th September, 2015.
When the Extradition Bill was introduced in 1961 and companysidered in Parliament, Shri D.C. Sharma an Honble Member of Parliament referred to Clause 2 d of the Extradition Bill and stated on 7th August, 1962 that he had a list of companyntries with which India has an extradition treaty entered into prior to 15th August, 1947.
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.
439 was raised in Parliament by Shrimati Ila Palchoudhury requiring the Prime Minister to state the companyntries with which India has an extradition treaty.
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.
The first error in the numberified 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.
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.
GSR 56 is totally and admittedly irrelevant to the companytext and has absolutely numberconcern with the Republic of Chile.
The petitioner is also aggrieved that the High Court did number strike down the numberified order of 28th April, 2015 or companyclude that there was numberextradition treaty 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.
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 companyntries companycluded by the British Government on behalf of India before Independence and which were still in force.
The extension of Ms. Verhoevens detention period is grounded on the need of taking into companysideration Chilean internal procedures to subsequently request the Government of the Republic of India to extradite the accused.
As far as the Republic of Chile is companycerned, 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.
Accordingly, a warrant for the arrest of the petitioner was issued on 21st September, 2010 by the Court of Appeal of Santiago in Chile.
During the pendency of the writ petition, the Government of India having realized the errors companymitted in the numberified order dated 28th April, 2015 issued a companyrigendum on 11th August, 2015 published in the Gazette of India in which reference to GSR 56 dated 5th 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.
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.
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 companyventions 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 companyntries.
In the meanwhile and apparently on information received regarding the arrest of the petitioner, the Embassy of Chile gave a Note Verbale on 24th February, 2015 to the Ministry of External Affairs, Government of India.
The companyrigendum dated 11th August, 2015 reads as follows GSR 628 E In the order of the Ministry of External Affairs, dated the 28th 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, In the second paragraph, for had directed by an Order number G.S.R. 56, dated January 5, 1963 read directs In the last paragraph, for sub section 1 of section 4, read sub section 1 of section 3.
The petitioner challenged her provisional arrest by filing W.P. Crl.
The Supreme Court also numbered 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.
In the writ petition, the petitioner sought her immediate release from Tihar Jail, Delhi.
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 India to Chile.
On the basis of the provisions companytained 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.
This inference may be drawn from the Note Verbale of 24th February, 2015.
Consequently, the Supreme Court of Chile held that a request for extraditing the petitioner should be based on general international law principles such as those enshrined in the Havana Convention and the Montevideo Convention on Extradition as well as bilateral treaties between several companyntries and opinio juris.
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.
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.
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 Jaime Guzman Errazuriz.
The Note Verbale dated 24th March, 2015 reads as follows The Embassy of the Republic of Chile presents its companypliments 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 companyventions 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 companyntries, and companyplementarily on the basis of the provisions companytained in the said Treaty on such matters as applicable between Chile and India.
As such, it was held that the Treaty is in full force and effect between the Republic of Chile and the Republic of India.
What has been enacted by Parliament is the Extradition Act, 1962.
The prayers made in the writ petition are for a writ of habeas companypus and a direction for the petitioners 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 companysequential reliefs.
A few days later on 29th January, 2014 the petitioner was indicted for the offence above mentioned.
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 companysideration.
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.
Mario Carroza Espinosa.
The casualness with which the companyrigendum has been issued by the Government of India is quite apparent.
The Note Verbale of 21st September, 2015 reads as follows The Embassy of the Republic of Chile in India presents its companypliments 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 companyventions 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 companyntries, and companyplementarily on the basis of the provisions companytained in the said Treaty.
Madan B. Lokur, J. The writ petition is admitted and in the companynected matter, special leave is granted.
On or about 16th March, 1956 well before the Extradition Act, 1962 came into force, an unstarred question No.
