Judgment : 1. This Petitioner herein, who was arrested on 02.11.2010 for the alleged offence under Section 41 (1) (g) of Code of Criminal Procedure and remanded to judicial custody on the same day based on the notice issued by the Assistant Director, Inter-Pol, CBI in continuation to the notice issued by the FRRO dated 28.09.2010 based on the Red Notice issued by the Government of Srilanka, has filed this Criminal Original Petition seeking bail. 2. The petitioner submitted that he is a Srilankan Tamilan and he is temporarily residing at 3F, III Floor, Seetha Nagar, Nungambakkam, Chennai-34. He is engaged in the business of Garments Export in Colombo, Sri Lankaand is known to all businessmen in the Colombo business circle. He visited Chennai on 30.04.2006 for a business deal and also for his treatment. The petitioner has been staying in India till date without any adverse remarks against him. The petitioner would submit that he was Scrupulously following the rules and regulations regarding his stay and a certificate was issued by the Inspector of Police, Nungambakkam that he has no advetrse remarks as per the records available in F3 Nungambakkam Police Station, Chennai. 3. While facts are such, the Petitioner was arrested all of a sudden on 02.11.2010 by saying that he was wanted for some investigation. It was brought to the notice of the Petitioner that he has been arrested for the alleged offence under Section 41 (1) (g) of the Code of Criminal Procedure based on the red alert notice issued by the Government of Sri Lanka alleging that the Petitioner has committed the offence of cheating, misappropriation and fraud punishable under Sections 400, 386 and 454 of Ceylon Penal Code in Case No. 4027/2007. The petitioner submits that he is innocent and in no way connected with the alleged offence. 4. Mr. AR.L. Sunderesan, the learned senior counsel for the Petitioner vehemently contended that in the facts and Circumstances of the case, the petitioner should have been arrested only under the warrant issued by a Magistrate under the provisions of the Extradition Act, particularly, under Sections 6 and 9 thereof. The learned senior counsel contended that the procedure contemplated under the Extradition Act has not been followed at all and no proceedings have been initiated against the Petitioner under the Extradition Act. Therefore, the arrest of the Petitioner is wholly without authority of law. The learned senior counsel contended that the procedure contemplated under the Extradition Act has not been followed at all and no proceedings have been initiated against the Petitioner under the Extradition Act. Therefore, the arrest of the Petitioner is wholly without authority of law. The learned senior counsel would contend that even if the power of a Police Officer to arrest a person without an order of a Magistrate and without a warrant under Section 41 (1) (g) was invoked by the police, that would be on the suspicion that the person arrested was liable to apprehension under the provisions of the Extradition Act. He would submit that either way the arrest of the Petitioner is wholly unsustainable in the eye of law and the Petitioner deserves to be released on bail forthwith. 5. Strong reliance has been placed by the learned senior counsel for the Petitioners on the decision of the Honourable Supreme Court reported in 2009-9-SCC-551 (Bhavesh Jayanti Lakhani Vs. State of Maharastra and others) 6. In order to appreciate the contentions of the learned senior counsel for the petitioner, it is relevant to mention the relevant provisions of the Extradition Act. An elaborate procedure has been provided in Chapter II and III of the Extradition Act to regulate such a case where there are no extradition arrangements have been made for the return of a fugitive criminal to foreign States and Chapter III deals with case where there are extradition arrangements have been made. In this case, there is no material produced by the Prosecution to show that there were extradition arrangements made for return of the fugitive criminal to Sri Lanka. Under Section 4 of the Extradition Act, a requisition for the surrender of a fugitive criminal of a foreign State may be made to the Government by a diplomatic representative of the foreign State or by the Government of that foreign state communicating with the Central Government through its diplomatic representative in that State or Country and if neither of these modes is convenient, the requisition shall be made in such other mode as is stated by has arrangements made by the Government of the foreign State with the government of India. 7. Under Section 5 of the Extradition Act, if the Central Government thinks it fit, it may an order to the Magistrate having jurisdiction in the matter to enquire into the case. 7. Under Section 5 of the Extradition Act, if the Central Government thinks it fit, it may an order to the Magistrate having jurisdiction in the matter to enquire into the case. Under Section 6 of the Extradition Act, the Magistrate on receipt of an order of the Central Government under Section 5 has been empowered to issue a warrant for the arrest of a fugitive criminal. Under Section 7 of the Extradition Act, the procedure for holding an enquiry by a magistrate has been provided for and for the purpose of holding an enquiry, he will take such evidence as may be produced in support of the requisition of the foreign State and on behalf of the fugitive criminal. The Magistrate if after holding enquiry is of the opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal. However, if a prima facie case is made out, he may commit the fugitive criminal to prison to await orders of the Central Government and shall report he result of his enquiry to the Central Government and shall forward together with such report any written statement which the fugitive Criminal may desire to submit for the consideration of the Central Government. 8. Section 8 of the Extradition Act provides that if the Central Government forms an opinion that a fugitive criminal ought to be surrendered to the foreign State, it may issue a warrant for the custody and removal of a fugitive criminal and for his delivery at a place and to a person to be named in the warrant. 9. As regards the return of a fugitive criminal to a foreign State where there are extradition arrangements made under section 14 of the Extradition Act, the fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant. 9. As regards the return of a fugitive criminal to a foreign State where there are extradition arrangements made under section 14 of the Extradition Act, the fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant. Under section 15 of the Extradition Act where a warrant for the apprehension of a fugitive criminal has been issued in any foreign State to which this chapter applies and such fugitive criminal is or suspected to be, in India, the Central Government may if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed and the warrant so endorsed shall be sufficient authority to apprehend the person name in the warrant and to bring him before any Magistrate in India. 10. Section 16 of the Extradition Act provides that any Magistrate may issue a provisional warrant for the apprehension of a fugitive criminal from any foreign State, who is or is suspected to be in or in his way of India, on such information and under such circumstances, as would in his opinion justify the issue of a warrant if the offences of which the fugitive criminal is accused or has been convicted had been committed within his jurisdiction and such warrant may be executed accordingly. Sub-section [2] of Section 16 provides that a Magistrate using a provisional warrant shall send a report of the issue of warrant together with the information or a certified copy thereof to the Central Government and the Central Government may if it thinks fit, discharge the person apprehended under such warrant. Subsection [3] of section 16 provides that a fugitive criminal apprehended on a provisional warrant may, from time to time, be remanded for such reasonable time, not exceeding seven days at one time, as under the circumstances seems requisite for the production of an endorsed warrant. 11. The procedure prescribed for a Magistrate for the issue of a warrant and holding an enquiry into matter on receipt of a requisition of the Central Government is a very exhaustive procedure and it may be possible that this may entail an amount of delay which would enable a fugitive criminal to escape. For this, however, there is a double safeguard provided in the Act itself. For this, however, there is a double safeguard provided in the Act itself. On receipt of the information from a foreign State for the surrender of a fugitive criminal, the Magistrate can directly be approached under section 9 of the Extradition Act. Section 9 clearly provides that in such a case, the Magistrate may issue a warrant of arrest of a person on such information and on such evidence, as would in his opinion justify the issue of warrant. 12. Under Section 25 of the Extradition Act, a provides has also been made for the release of a person arrested on bail and the provisions of the Code of Criminal Procedure relating to bail have been applied in such cases as well and a fugitive criminal if brought before a Magistrate, he shall have the same powers as a Court of Sessions under the Code. 13. In this case, the Respondent seems to have arrested the petitioner under Section 41[1] [g] of the Code of Criminal Procedure whereby a Police Officer has been empowered to arrest the person without an order from the Magistrate and without a warrant. The section 41[1] [g] is reproduced below;- “41. When police may arrest without warrant;- [1] Any police officer may without an order from a Magistrate and without a warrant, arrest any person;- [a] [f] [g] who has concerned in, or against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists, office having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India.” 14. In the present case, there is only a notice issued by the Central Bureau of Investigation, National Central Bureau, India signed by the Assistant Director, requesting the Director General of Police, Crime Branch, CID, Chennai-32 to arrest the Petitioner under Section 41(1) (g) of Code of Criminal Procedure pending extradition to Sri Lanka. It is mentioned that the Petitioner would be produced before the Court with a request for judicial custody under section 34 B of Extradition Act till a formal request from the Requesting State i.e. Sri Lanka is received. It is mentioned that the Petitioner would be produced before the Court with a request for judicial custody under section 34 B of Extradition Act till a formal request from the Requesting State i.e. Sri Lanka is received. Admittedly, this is only a red corner notice issued requesting the arrest of the Petitioner in Red Notice Control No. A-4478/7-2010, wanted by Sri Lanka, based on which, the Inspector General of Police has issued instructions to the Commissioner of Police to arrest the Petitioner. 15. The Honourable Supreme Court in the decision in 2009-9-SCC-551 cited supra, has categorically held that arrest of a fugitive criminal can be made at the instance of the Central Government only when a request to that effect is received from the foreign Country and not otherwise. It further held that arrest of a fugitive criminal must be effected in terms of the provisions of the Extradition Act and a person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions:- 1. that the offence should be counted as one by Indian Law as well and 2. That the person must be liable to be arrested in India either under any law relating to extradition or otherwise. The Honourable Supreme Court has further held that such a arrest can be effected only pursuant to a warrant issued by a Magistrate in view of the Sections 6, 16 and 34B of the Extradition Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Extradition Act. The Honourable Supreme Court has further held that all the arrested persons are required to be immediately produced before a Magistrate whereupon it would have power to grant bail, as Section 34B of the Extradition Act provides that a person so arrested would have to be released on bail after a period of 60 days. It clearly held that if actual request for extradition is required within the said period having regard to Section 4(1) (g) of code of Criminal Procedure, the Central Government cannot direct or effect an urgent arrest in anticipation of an Extradition Act request without obtaining a warrant issued by a Magistrate. The Honourable Supreme Court categorically held that a red corner notice by itself cannot be the basis of arrest or transfer of a Indian Citizen to a foreign jurisdiction. The Honourable Supreme Court categorically held that a red corner notice by itself cannot be the basis of arrest or transfer of a Indian Citizen to a foreign jurisdiction. The Honourable Supreme Court clarified that a red corner notice is issued to seek a provisional arrest of a wanted person and however, by itself does not have the effect of warrant of arrest. 16. Mr. A. Saravanan, the learned Government Advocate (Criminal Side) submitted that in so far as the Respondent is concerned, they have carried out the request made by the Central Bureau of Investigation, national Central Bureau, India made to the Inspector General of Police, Crime Branch, Chennai. He could submit that as per the direction of the Inspector General Police, the Respondent executed the red corner notice by arresting and presenting the Petitioner under Section 41(1) (g) of Code of Criminal Procedure and therefore, there is a absolutely no fault on the part of the respondent for effecting arrest and remand of the Petitioner to judicial custody. 17. I have carefully gone through the provisions of the Extradition Act and also the decision of the Honourable Supreme Court cited by the learned senior counsel for the Petitioner in 2009-9-SCC-551 supra. 18. As could be seen from the notice issued by the Central Bureau of Investigation, National Central Bureau, India, a formal request is yet to be made to Sri Lanka for extradition of the Petitioner to Sri Lanka. I am satisfied that the provisions of the Extradition Act have not been compiled with at all. This court is constrained to state that as held by the Honourable Supreme Court in the decision in 2009-9-SCC-551 cited supra, the respondent failed to approach the jurisdictional court with appropriate materials for obtaining a warrant and thereafter arrest of the Petitioner. They have flouted the rules and regulations and arrested the Petitioner without following the procedure contemplated under the Extradition Act an mechanically remained the Petitioner for judicial custody. 19. In the background of the facts and circumstances of the case, in my view, the arrest of the Petitioner is not warranted by law and this is a fit case where the Petitioner can be released on bail. Accordingly, the petitioner shall be enlarged on bail on his executing a bond for a sum of Rs. 19. In the background of the facts and circumstances of the case, in my view, the arrest of the Petitioner is not warranted by law and this is a fit case where the Petitioner can be released on bail. Accordingly, the petitioner shall be enlarged on bail on his executing a bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) together with two sureties each for a like sum to the satisfaction of the learned Chief Metropolitan magistrate, Egmore, Chennai and further on the following conditions;- 1. The Petitioner shall deposit his Passport before the Chief Metropolitan magistrate, Egmore, Chennai-8 2. The Petitioner shall report before the respondent Police daily at 10.30 a.m. until further orders. 3. The Petitioner shall make himself available during the extradition proceedings and hall be present himself as end when required by the authorities in that regard. 4. The petitioner shall not commit any act which would result in any harm whatsoever to the investigation. 5. The Petitioner shall not hamper in any manner with the administration of justice.