The appeal itself had become infructuous by efflux of time, but the Division Bench agreed to clarify the law because the Single Judge had laid down a general proposition that a formal extradition request through diplomatic channels was indispensable. It held that where the immediate need is only arrest and not surrender, that proposition does not hold.
Kochi: The Kerala High Court has held that the nodal agency in India cannot simply ignore an international arrest warrant issued by a foreign treaty State and routed through Interpol, and that a formal extradition request despatched through diplomatic channels is not a precondition where what is sought is the immediate arrest of a fugitive criminal rather than his surrender [Rakhul Krishnan v. Union of India and Others].
A Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K. laid down the procedure the nodal agency must follow on receipt of such a warrant, clarifying a proposition stated by a Single Judge in 2020. The judgment was authored by Justice Jayasankaran Nambiar.
The background
The appellant, an NRI businessman, said he had lent about six million UAE dirhams to the eighth respondent, who represented that the money was needed to augment his finances in a hotel business in which he was a partner. The amount was to be repaid by June 2015. Instead, according to the appellant, the borrower absconded to India, and a personal guarantee cheque for the same sum was dishonoured when presented.
The appellant lodged a criminal case at the Naif Police Station in Dubai. A Dubai court convicted the eighth respondent and sentenced him to two years’ imprisonment. An international arrest warrant was issued against him on May 16, 2018 and transmitted through Interpol to the nodal agency in India, the CBI’s National Central Bureau.
Nothing followed. The appellant moved the High Court seeking a direction to the Union and the nodal agency to implement the warrant under the Extradition Act, 1962 read with the India-UAE Extradition Treaty, and to hand the eighth respondent over to the Government of Dubai.
The Union and the State both relied on Article 5 of the Treaty, under which nationals of the Contracting States are not to be extradited, the requested State instead submitting the case to its own authorities for prosecution. The Single Judge accepted that position in December 2020 and held that a mere international arrest warrant was not sufficient to arrest a person in India and extradite him to the UAE.
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Why the Court decided an infructuous appeal
The appeal was filed in 2021 but never stayed the Single Judge’s decision, no direction for arrest was made in the interim, and no fresh request came from the UAE authorities. For practical purposes, the Bench recorded, it had become infructuous by efflux of time.
Counsel for the appellant nonetheless sought a declaration of the law, accepting that it would not help his client but submitting that it would give clarity to enforcement agencies in future cases. The Bench agreed, noting that the Single Judge had stated as a general proposition that a specific written extradition request routed through diplomatic channels was always necessary, and that this required correction.
The doctrinal framing
Before turning to the statute, the Court set out the conceptual foundations, drawing on the Supreme Court’s exposition in Abu Salem Abdul Qayoom Ansari v. State of Maharashtra and identifying five substantive ingredients of extradition: reciprocity, double criminality, extraditable offences as defined in the treaty, speciality, and non-inquiry.
It located Article 5 of the Treaty within the older principle of aut dedere aut judicare, tracing it to Hugo Grotius’s formulation of aut dedere aut punire, and noting that modern terminology substitutes prosecution for punishment to reflect that an alleged offender may be found not guilty. The obligation, in short, is that a State unwilling to extradite must itself prosecute.
Two distinct routes, and only one needs diplomatic channels
The core of the judgment is a distinction the Bench drew between two situations which the Single Judge had collapsed into one.
The first is arrest following a prior request for extradition. That is governed by Article 8 of the Treaty and Sections 4 to 8 of the Extradition Act, and it does require a requisition made to the Central Government through diplomatic channels.
The second is arrest before any formal request for surrender has been received. That is governed by Article 9 of the Treaty read with Sections 9 and 34-B of the Act. Article 9 expressly permits a request for provisional arrest to be communicated either directly or through Interpol channels.
“…there is no necessity for a formal requisition from the foreign State if the urgent need of the foreign State is only for effecting an immediate arrest (without extradition) of the fugitive criminal in the requested State.”
The Court then separated the two powers within that second route. Section 9 confers an independent power on a Magistrate to issue a warrant where it appears that a person within his jurisdiction is a fugitive criminal of a foreign State, with detention capped at three months unless an order under Section 5 is received from the Central Government in that period. Section 34-B, by contrast, empowers a Magistrate to issue a provisional warrant on a request from the Central Government, which must itself rest on an urgent request from the foreign State, with discharge after sixty days if no surrender request follows.
What the nodal agency must do
Applying that framework, the Bench found that the nodal agency had followed neither route and that the warrant had simply gone unactioned, leading to the evasion of arrest. It laid down the procedure:
“…the correct procedure to be followed by the Nodal Agency on receipt of an International arrest warrant issued by the Prosecution department of a foreign treaty State, through Interpol, would be the following two courses of action namely, (i) forward the same to the Central Government for initiating action under Section 34-B; and (ii) bring it to the notice of the jurisdictional Magistrate under Section 9, for, the latter to exercise its power if found necessary.”
Importantly, the two are not alternatives. The Bench held they may run in parallel, given the risk of the fugitive absconding while the Central Government channel is being worked through, and that nothing in the Act requires the agency to elect one over the other since they are independent legal bases for arrest.
The Court was equally clear about the limit on the agency’s powers. The one thing it may not do is act directly on the international arrest warrant and arrest the person without the intervention of a Judicial Magistrate, a position settled by the Supreme Court in Bhavesh Jayanti Lakhani v. State of Maharashtra. What it may not do either, the Bench held, is ignore the warrant altogether.
“In any event, we are of the view that it was not open to the Nodal Agency to simply ignore the International arrest warrant issued in relation to the 8th respondent without forwarding the said arrest warrant to the Central Government and to the jurisdictional Magistrate concerned.”
Anticipating the objection that a magistrate-driven arrest might trespass on the Executive’s domain, the Court explained that the three-month ceiling under Section 9 operates as a bridge. Even where Section 9 is invoked first, the extradition process must still be regularised through the Central Government within three months by an order under Section 5, failing which the detention lapses. The Section 9 route therefore supplies only an interim, judicially sanctioned power of arrest and does not displace the Central Government’s primacy over the ultimate decision to surrender.
The appeal was disposed of, with the clarification expressly made for the guidance of the nodal agency in future cases rather than as relief to the appellant.
Why it matters
The practical value of the judgment lies in what it removes. The Single Judge’s proposition, that without a written request through diplomatic channels nothing can be done, gave the nodal agency a complete answer to any Interpol communication. On the Division Bench’s reading, that answer is available only where surrender is sought. Where the immediate object is to prevent a fugitive from disappearing, the Act supplies two mechanisms that do not wait on diplomacy, and the agency’s duty is to set both in motion rather than to decide for itself that neither applies.
The direction to run the two routes in parallel is the most useful part for enforcement practice. Sequencing them, with the Ministry of External Affairs channel first and the Magistrate only afterwards, builds in exactly the delay during which a person who knows a warrant exists is most likely to move.
Two limits should be kept in view. The clarification concerns arrest, not surrender, and Article 5 of the Treaty continues to bar the extradition of nationals, obliging India instead to place the case before its own prosecuting authorities. And the judgment does not create any power to detain on an Interpol communication alone. The judicial filter remains, and the timelines under Sections 9 and 34-B mean an arrest made on this basis cannot be open-ended.
There is also a quieter point in how the Bench proceeded. Rather than dismissing a five-year-old appeal as infructuous and leaving an erroneous general proposition on the books, it treated the correction of the legal position as worth the exercise in itself. That is a notable use of appellate jurisdiction where the lis has died but the precedent has not.
Case Title: Rakhul Krishnan v. Union of India and Others [W.A. No. 350 of 2021, against the judgment dated 21.12.2020 in W.P.(C) No. 13875 of 2020]
Bench: Dr. Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K., High Court of Kerala at Ernakulam
Date of Judgment: September 8, 2026 | Neutral Citation: 2026:KER:68857
Appearances: Advocates Yeshwant Shenoy and Aysha Abraham for the appellant. Central Government Counsel C. Dinesh, Senior Panel Counsel Daya Sindhu Shreehari N.S. and T.C. Krishna, and Special Public Prosecutor for the CBI Sreelal N. Warrier for the Union and the central agencies. Senior Government Pleader M.R. Arun Kumar and Government Pleader Sunilkumar Kuriakose for the State. Advocates P. Vijayakumar and Saiby Jose Kidangoor, among others, for the private respondent.