JUDGMENT By the Court.—Heard learned counsel for the petitioner Sri Rishad Murtaza, Sri Prityush Tripathi, learned counsel appearing for the Union of India as well as Sri Bireshwar Nath, learned counsel appearing for Central Bureau of Investigation. Gone through the record. 2. Petitioner Riaz Ahmed Sikander Kittur has approached this Court by filing this petition under Article 226 of the Constitution of India feeling aggrieved by order dated 5.2.2001(Annexure-3 to the petition) passed by the Chief Judicial Magistrate, Lucknow. By means of said order, the learned Magistrate has granted remand of the petitioner till 19.2.2001 and has further directed that in the meantime the concerned authority may complete formalities for extradition of the petitioner to Sultanate of Oman. 3. The case as set up by the petitioner in the petition is that his nick name is “Naseer”; he was employed in firm Al-Maha Enterprises Construction Company, Sultanate of Oman; his Visa was sponsored by the owner of said Firm. The employer of petitioner stood trial in the Sultanate of Oman by a Shariat Court in which the petitioner was a witness. His testimony was recorded by the “Qazi” and he was informed that he would no longer be required for adducing evidence and permission was also accorded for his return to India. It is further pleaded that the Visa and Passport of the petitioner was in the custody of his employer . His Passport was handed over to him at the Passport Control Counter (Emigration Counter) at the International Airport along with return ticket and he was made to board return flight from Oman to India. The employer of the petitioner, as per information received by the petitioner, was convicted in the embezzlement case. 4. On 4.2.2001 at about 1.30 pm the police raided his Computer Institute at 1/262, Viram Khand, Gomti Nagar and arrested him. The police also raided his house and seized his Passport as also Passports of his children along with other documents. The arrest of the petitioner was shown at a different place treating him to be a convict. Subsequently, the petitioner was produced before the Chief Judicial Magistrate, Lucknow who, as mentioned above, remanded the petitioner to judicial custody till 19.2.2001 and further directed the authorities to arrange extradition of the petitioner to Muscut, Sultanate of Oman. 5. The arrest of the petitioner was shown at a different place treating him to be a convict. Subsequently, the petitioner was produced before the Chief Judicial Magistrate, Lucknow who, as mentioned above, remanded the petitioner to judicial custody till 19.2.2001 and further directed the authorities to arrange extradition of the petitioner to Muscut, Sultanate of Oman. 5. Sri Rishad Murtaza, learned counsel for the petitioner has assailed the impugned order on the grounds that; (i) there was no Extradition Treaty between the Governments of India and Sultanate of Oman on the date the learned Chief Judicial Magistrate, Lucknow had directed extradition of the petitioner; (ii) the sentence awarded to the petitioner by the Shariat Court is five months whereas Article-2 of the Extradition Treaty provides that a person sentenced by the Courts of the Requesting State with imprisonment for six months or more in respect of an extraditable offence alone can be extradited; and (iii) the power to order extradition of an Indian Citizen to any of the Contracting States lies within the domain of the Central Government. 6. Sri Prityush Tripathi, learned counsel for the Union of India, refuting the submissions of Sri Rishad Murtaza submitted that subsequent to the filing of the petition, an Extradition Treaty was entered into between the Union Government and the Government of Sultanate of Oman. He submitted that the treaty entered into the two nations was given retrospective effect and thus, the learned Chief Judicial Magistrate has rightly passed order for extradition of the petitioner. He submitted that petitioner was convicted by the Shariyat Court in Sultanate of Oman for uttering unfunded cheques, an offence covered by Article 159 of the Omani Penal Code and had deserted Oman, as such in a Red Corner Notice issued by the Interpol General Secretariat In Lyon, France, the requesting country Oman had sent details of the Fugitive Wanted to Serve the Sentence and in compliance of said Red Corner Notice, the petitioner was arrested and produced before the learned Chief Judicial Magistrate, Lucknow. 7. 7. We feel pertinent to reproduce at this place the treaty signed between the Indian Government as well as the Sultanate of Oman published in the Gazette of India, Extraordinary [Part-II-Sec 3(i)] “MINISTRY OF EXTERNAL AFFAIRS ORDER New Delhi, the 1st June, 2006 Extradition Treaty between the Republic of India and the Sultanate of Oman G.S.R. 341 (E).—Whether the Extradition Treaty between the Republic of India and the Sultanate of Oman was signed between the Republic of India and the Sultanate of Oman was signed at Muscat, on 26th December 2004, and the instruments of ratification were exchanged at New Delhi on 14th September 2005 in accordance with Article 28 of the Treaty and which treaty provides as follows: The Government of the Republic of India and the Government of the Sultanate of Oman, hereinafter referred to as the Contracting States; ..... ..... ..... Have agreed as follows: ARTICLE 1 The Contracting States shall extradite any person found in their respective territories who is accused or convicted of an extraditable offence in the territory of the other Contracting State. The Contracting States shall commit themselves to extradition for offences committed before or after the entry into force of this Treaty. ARTICLE 2 The following persons shall be extradited : 1. Persons accused of an offence punishable under the laws of both Contracting States by imprisonment for not less than one year or for more severe punishment. 2. Persons sentenced by the Courts of the Requesting State with imprisonment for six months or more in respect of an extraditable offence” From the above narrations, the admitted position between the parties may be summarized as under: 1. The petitioner was tried under Article 159 of the Omani Penal Code and was sentenced to five months imprisonment. This fact has been admitted in the counter affidavit dated 20.3.2008 filed on behalf of the Central Bureau of Investigation by Sri Ram Nath Azad, Assistant Director, International Police Cooperation Cell, New Delhi who has further averred that Article 2.2 of the said Treaty stipulates that a person can be extradited provided the sentence awarded is six months or more. This fact has been admitted in the counter affidavit dated 20.3.2008 filed on behalf of the Central Bureau of Investigation by Sri Ram Nath Azad, Assistant Director, International Police Cooperation Cell, New Delhi who has further averred that Article 2.2 of the said Treaty stipulates that a person can be extradited provided the sentence awarded is six months or more. It is further averred in the affidavit that request has been made to extradite the petitioner to undergo a sentence for five months imprisonment and, as such, the petitioner is not liable to be extradited and it is for the Sultanate of Oman to make a request for local prosecution of the subject under Section 188 Cr.P.C. But as per information available with International Police Cooperation Cell, New Delhi, no such request has been received till date. The Red Corner Notice (Annexure-4) to the counter affidavit filed by Sri Anuj Arya, Inspector of Police, Central Bureau of Investigation, Interpol Wing, C.G.O. Complex, New Delhi also mentions that the petitioner was sentenced to five months imprisonment and the sentence was suspended on the condition that the petitioner reimburses the money he owned. 2. On the date of conviction and sentence of the appellant, there was no treaty between the two nations 3. Subsequently, an Extradition Treaty was signed between the two nations on 26th December 2004 and ratification were exchanged on 14th September 2005 4. The said Contracting States agreed to commit themselves to extradition for offences committed before or after the entry into force of the Treaty. 5.Article 2.2 of said Treaty in an unequivocal term provided that persons sentenced by the Courts of the Requesting States with imprisonment for six months or more in respect of an extraditable offences alone shall be extradited. 6. Till date, no request has been received by the Government of India from the Government of Sultanate of Oman to try the petitioner under the provisions of Section 188 Cr.P.C. 8. 6. Till date, no request has been received by the Government of India from the Government of Sultanate of Oman to try the petitioner under the provisions of Section 188 Cr.P.C. 8. The irresistible conclusion of our above observations is that even admitting that the Extradition Treaty between the Republic of India and Sultanate of Oman was given retrospective effect, meaning thereby that a person convicted and sentenced by the Courts of either of the two Contracting Nations even prior to the signing and ratification of the Treaty can very well be extradited on a request made by the two Nations, but such a person should be sentenced with imprisonment for six months or more in respect to an extraditable offence. In the present case, it is mentioned in the Red Corner Notice as well as in the counter affidavit filed by the Central Bureau of Investigation that the petitioner was sentenced to five months sentence. Admittedly, the petitioner has been sentenced to a lesser term as mentioned in Article 2.2 of the Extradition Treaty, as such, he cannot be extradited. Accordingly the writ petition is allowed to the above extent and order dated 5.2.2001 passed by the Chief Judicial Magistrate, Lucknow is hereby set aside. No order as to costs. ————