Multiple cases have been filed against filmmaker Leena Manimekalai across India, including in Madhya Pradesh, Delhi and Uttar Pradesh, for the poster of her film featuring Goddess Kali. Leena has been charged with promoting enmity between different communities on grounds of religion, outraging religious feelings intentionally and intentional insult with the intent to provoke a breach of peace.
The FIRs were filed after the filmmaker tweeted the poster of her documentary, titled “Kaali”, in which the goddess has been shown smoking a cigarette and holding an LGBTQ flag.
However, getting an accused to face the law is a challenging task when the person is abroad. Legal experts are of the view that in such cases bringing the probe to a logical conclusion becomes difficult.
“As a matter of law, the police in India are empowered to investigate a person outside the territory of India for a crime that is committed on Indian soil. However, the method involved is long drawn and I see no hope for the police in India to be able to investigate Leena in a country like Canada,” Supreme Court lawyer KV Dhananjay told India Today TV.
“To begin with, the state government and the Union government should first reach a consensus that it is necessary to investigate Leena on foreign soil. If such a consensus is reached, they would have to request the authorities in Canada to permit our police to confront Leena on their soil. Canadian courts take the liberty of an individual seriously and they might simply scoff at the accusations levelled against the filmmaker. In fact, the Indian government could turn into a laughing stock for the world should it pursue Leena on Canadian soil. The FIR against Leena is only fit for domestic consumption,” he added.
“Police try to investigate a case and file a chargesheet if an offence is made out. If the accused is an Indian citizen, custody may be sought and obtained through several processes, including the cancellation of a passport. If the accused is not a citizen, extradition may be sought, but rarely does a country extradite its own citizen for trial in a foreign country,” senior advocate Sanjay Hegde told India Today TV.
LOOK-OUT CIRCULAR: THE FIRST STEP
Madhya Pradesh is mulling asking the Centre to issue a look-out circular against the filmmaker.
A look-out circular (LOC) is issued against an accused, suspect or a person of interest in an investigation by government authorities directing the border security agencies to inform the probe agencies concerned if the person is spotted fleeing or entering a country. A notification about the LOC is sent to immigration authorities at airports, sea and water ports and at road borders.
The Madurai-born and Toronto-based filmmaker is believed to be out of the country and if a law enforcement agency wants to pursue the case and force her to return to India to face the law of the land, it will be possible only with the help of the International Police (INTERPOL).
According to the procedure, the state police will have to write to the nodal agency in India – the Central Bureau of Investigation (CBI), stating that the person is wanted in an investigation. The CBI can request the INTERPOL to issue a diffusion notice through which a person’s locations can be accessed. However, the local authorities or immigration authorities of the country where the person is seen won’t have the power to detain the person.
EXTRADITION TO INDIA NOT EASY
To bring a person to India, a Red Corner Notice will have to be issued by the INTERPOL. A request for the Red Corner Notice can be made by the CBI if a non-bailable warrant is issued by a court in India or a chargesheet is filed against the person.
Once the INTERPOL is satisfied with the details of the investigation, a Red Corner Notice is issued to nodal agencies of over 180 countries with details of the person to locate him/her. Once the location of the person is established, local authorities can detain or arrest the person and inform the Indian counterpart through INTERPOL.
The recent example is diamond trader Nirav Modi, who was arrested by the UK authorities based on a Red Corner Notice at the request of Indian authorities. Nirav Modi is an accused in the Rs 13,000 crore Punjab National Bank fraud case.
After the person has been located, he or she can later be deported or extradited to India. Deportation is an easy process, but it depends on the relationship between the governments of two countries.
Rajiv Saxena, a wanted accused in the AgustaWestland scam, was deported from Dubai at the request of Indian authorities.
In the case of extradition, if a treaty exists between two countries, a person can be extradited following due legal process. In 2020, alleged bookie Sanjeev Chawala was extradited to India after multiple hearings in the UK courts.
However, the process is quite elaborate.
First, the person concerned can challenge the Red Corner Notice through his or her lawyer. In the Nirav Modi case, when a Red Corner Notice was issued against one of the suspects in the case, it was challenged and later withdrawn by the INTERPOL.
Second, once the person is arrested and produced before the local court, India will have to convince the court why extradition is important. However, if the person concerned is able to prove that the case against him/her is political in nature, extradition can become difficult.
These processes take years and even if extradition has been ordered by the highest court of a particular country, it does not guarantee that the person will be sent back within a limited time frame.
In Vijay Mallya’s case, extradition was ordered almost a year ago. However, the UK authorities have not sent him to India yet.
“Pursuant to the registration of an FIR, an investigation commences under an Investigation Officer (IO). The IO, for the purposes of concluding the investigation, collects evidence and records testimony of persons either as accused or as witnesses. In this process, he issues summons/notices/questionnaire to such persons in India or abroad to join the investigation or to provide information about the offence through all means, including electronics,” advocate Fuzail Ahmad Ayyubi explained to India Today TV.
“Assuming the same fails to illicit any response/appearance and the IO feels that such person is not cooperating in such an event, he will indicate to the court that such a person is absconding or untraceable being out of India. An altogether separate proceeding will be initiated to secure the presence of such a person by way of extradition from foreign land. Needless to say, the same depends on whether there exists an extradition treaty where such a person is located and the crime alleged wherein the foreign country’s judicial conscience will also need to be satisfied for the same,” he said.
— ENDS —