The Delhi High Court has set aside a 2014 proclaimed offender declaration against a petitioner currently in Philippine custody facing extradition, holding that the proclamation proceedings were vitiated by the investigating agency's failure to pursue service of process at the accused's known Australian address through legally recognised channels. The Court clarified that setting aside the proclamation does not invalidate subsisting arrest warrants or impede the ongoing extradition process, which operates under a distinct treaty framework.
Background & Facts
The Dispute
The petitioner, Rishi Levi, presently detained in the Philippines pursuant to an Indian extradition request, challenged the November 2014 order of the Additional Chief Metropolitan Magistrate (ACMM), East District, Karkardooma Courts, declaring him a Proclaimed Offender under Section 82 of the Code of Criminal Procedure, 1973 (CrPC). He also sought a stay of the Chief Judicial Magistrate (CJM), Rouse Avenue District Courts' order dated 1st July 2026 countersigning the extradition affidavit. The underlying prosecution arises from FIR No. RC-BD1/2006/E/0009 registered by the Central Bureau of Investigation (CBI) on 20th November 2006, alleging irregularities in merchanting trade transactions by the National Agricultural Cooperative Marketing Federation of India Ltd. (NAFED) involving letters of credit issued by Renfrew Security Bank & Trust (Offshore) Ltd., Cyprus, resulting in a wrongful loss of approximately ₹233.40 crore.
Key Facts
- The CBI filed a charge-sheet on 23rd December 2009 against thirteen accused, including the petitioner as Accused No. 7, for offences under Sections 120B, 409, 420, 467, 468 and 471 of the Indian Penal Code, 1860 (IPC). The petitioner is alleged to have acted as the Indian agent of Renfrew Security Bank and facilitated accommodation letters of credit.
- The charge-sheet recorded two addresses for the petitioner: DLF Phase-I, Gurgaon, and James Street, Ingleburn, New South Wales, Australia, both marked as unverified.
- The petitioner joined the investigation on one occasion in 2008 and departed India on 24th November 2008, before the charge-sheet was filed.
- 26th February 2010: The ACMM took cognizance and issued summons to all accused, including the petitioner.
- 30th March 2010: The ACMM recorded that the petitioner (along with two others) had not been served and directed fresh service through the Investigating Officer. No subsequent service is shown on record.
- 25th July 2011: The ACMM recorded the petitioner's absence without recording that summons had been duly served.
- 29th May 2013: Non-bailable warrants (NBWs) were issued against the petitioner and two other absent accused. The order did not disclose circumstances treating service as complete or reasons for issuing NBWs despite earlier non-service.
- 12th August 2014: The ACMM, observing the accused appeared to be absconding, directed issuance of process under Section 82 CrPC and opening of Look-Out Circulars.
- 27th September 2014: The ACMM specifically recorded that the Section 82 process against the petitioner had been received back "not properly served."
- November 2014: The impugned order declared the petitioner and co-accused Harsh Shori as Proclaimed Offenders and directed process under Section 83 CrPC. The exact date is disputed (petition states 28th November 2014; CBI refers to 10th November 2014).
- November 2024: Open-ended NBWs were issued against the petitioner.
- 17th March 2026: An INTERPOL Red Notice was issued.
- May 2026: A request for provisional arrest was transmitted to the Philippines.
- 10th June 2026: The CJM directed issuance of fresh open-ended NBWs after the CBI pointed out that Section 409 IPC had been inadvertently omitted from earlier warrants.
- 1st July 2026: The CJM countersigned the extradition affidavit and supporting documents for transmission through diplomatic channels.
- 9th September 2026: The petitioner was arrested by Philippine authorities and remains in their custody.
Procedural History
- 20th November 2006: FIR registered by CBI (RC-BD1/2006/E/0009)
- 23rd December 2009: Charge-sheet filed against 13 accused including petitioner
- 26th February 2010: Cognizance taken, summons issued
- 30th March 2010: ACMM records non-service of petitioner, directs fresh service through IO
- 25th July 2011: ACMM records petitioner's absence
- 29th May 2013: Non-bailable warrants issued against petitioner
- 12th August 2014: ACMM directs Section 82 CrPC process and Look-Out Circulars
- 27th September 2014: ACMM records Section 82 process returned not properly served
- November 2014: Impugned order declaring petitioner Proclaimed Offender
- November 2024: Open-ended NBWs issued
- 17th March 2026: INTERPOL Red Notice issued
- May 2026: Provisional arrest request transmitted to Philippines
- 10th June 2026: CJM directs fresh open-ended NBWs (Section 409 IPC added)
- 1st July 2026: CJM countersigns extradition affidavit
- 9th September 2026: Petitioner arrested in Philippines
- 16th October 2026: Judgment reserved by Delhi High Court
- 27th October 2026: Judgment pronounced
The Parties' Positions
The petitioner contended that the proclamation was fundamentally defective because: (i) he left India before the charge-sheet was filed when no judicial order restrained his travel; (ii) summons were never served despite the ACMM's 30th March 2010 direction; (iii) the investigating agency knew his Australian address but made no attempt to effect service through the Ministry of Home Affairs, Ministry of External Affairs, or mutual legal assistance channels; (iv) the ACMM's own order of 27th September 2014 recorded non-service of the Section 82 process; and (v) the offences alleged do not fall within Section 82(4) CrPC, which enumerates offences for which a Proclaimed Offender declaration is permissible.
The CBI opposed on maintainability and merits. It challenged the petition's institution through a general power-of-attorney holder in the Philippines, arguing the instrument was not apostilled, witness columns were blank, and authenticity was unverified. On merits, the CBI submitted the petitioner was aware of the investigation when he left in 2008, never appeared before the trial court, and instituted proceedings only after apprehension in the Philippines. It relied on Abhishek v. State of Maharashtra and Yash Dev Singh Sejwal v. State to argue that an accused deliberately avoiding process is not entitled to discretionary indulgence. Regarding extradition, the CBI noted Article 15 of the India-Philippines Extradition Treaty provides for voluntary surrender.
Relief Sought
The petitioner sought: (i) quashing of the November 2014 proclamation order and consequent Section 83 proceedings; (ii) stay of the CJM's 1st July 2026 order and the extradition proceedings; (iii) facilitation of his voluntary return to India to submit to the trial court's jurisdiction with appropriate undertakings.
The Legal Issue
The central questions were: (1) Whether the proclamation proceedings under Section 82 CrPC were lawful where the investigating agency possessed the accused's overseas address but made no attempt to effect service through legally recognised international channels, and the court's satisfaction of "abscondence" rested solely on the return of warrants unexecuted at an Indian address where the accused no longer resided; (2) Whether setting aside the proclamation declaration invalidates the subsisting arrest warrants, the INTERPOL Red Notice, or the extradition proceedings initiated under the India-Philippines Extradition Treaty.
Arguments Presented
For the Petitioner
Mr. K.K. Manan, Senior Counsel, submitted that the Section 82 CrPC declaration was jurisdictionally defective. The charge-sheet itself contained an Australian address, yet the CBI made no attempt to verify it or effect service under Section 105 CrPC (reciprocal arrangements for service abroad) or the Ministry of Home Affairs guidelines dated 11th February 2009 governing service of judicial process on persons residing abroad. By 2014, mutual legal assistance arrangements between India and Australia provided a recognised channel. The ACMM's order dated 12th August 2014 proceeded on the mere return of NBWs unexecuted, without identifying material indicating deliberate evasion. The subsequent order of 27th September 2014 expressly recorded non-service of the Section 82 process. Reliance was placed on Manish Popli v. CBI (2026:DHC:2499), where this Court set aside proclamation proceedings against an accused in Australia where the agency knew of the overseas residence but did not pursue service through legal channels; Hitesh Kumar v. State (NCT of Delhi) (2025:DHC:9529); Sucha Singh v. State of Punjab (2024 SCC OnLine P&H 1798); and H.P. Nikhil Petrol Pump v. Ravi Kumar (2024:PHHC:087055), establishing that residence abroad before warrant issuance cannot be equated with abscondence without further material. Additionally, the offences attributed to the petitioner (Sections 120B, 409, 420, 467, 468, 471 IPC) are not enumerated in Section 82(4) CrPC, making the Proclaimed Offender declaration independently unsustainable per Sanjay Bhandari v. State (NCT of Delhi) (2018 SCC OnLine Del 10203) and Yash Dev Singh Sejwal.
On extradition, the petitioner expressed willingness to return voluntarily, submit to the trial court's jurisdiction, and furnish undertakings. He requested the extradition proceedings be kept in abeyance to facilitate his return through coordination between Indian and Philippine authorities.
For the Respondent
Ms. Rajni Gupta, SPP for the CBI, challenged maintainability, arguing the petition was instituted through a general power-of-attorney holder in the Philippines whose instrument was not apostilled, had blank witness columns, and whose authenticity was unverified. She relied on T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram ((1999) 3 SCC 614), Amrinder Singh v. State (NCT of Delhi) (2022 SCC OnLine Del 24), Haji Iqbal v. State of U.P. (2023 SCC OnLine All 829), Dr. Syed Shamsuddin Babar v. Ikram Ali Kaleem (2002 SCC OnLine AP 1445), and Rakesh Mehra v. State of Uttarakhand (decided 17th June 2026) to submit that an attorney holder cannot substitute for an accused's personal appearance or submission to the criminal process.
On merits, the CBI emphasised the petitioner's awareness of the investigation, his departure in 2008, failure to return or approach the trial court for years, and institution of proceedings only after apprehension in 2026. It invoked Abhishek v. State of Maharashtra ((2022) 8 SCC 282) and Yash Dev Singh Sejwal v. State (2024:DHC:28) for the principle that an accused deliberately remaining beyond the court's reach is not entitled to discretionary indulgence. Regarding voluntary surrender, the CBI noted Article 15 of the Extradition Treaty expressly provides for it, but opposed any arrangement involving the petitioner's release from Philippine custody merely on an undertaking, as there would be no effective assurance of his presence in India.
The Court's Analysis
Maintainability of the Petition
The Court examined the line of authorities on petitions instituted through power-of-attorney holders. T.C. Mathai held that a power-of-attorney holder cannot substitute for an accused's personal appearance where required by the CrPC, but did not lay down that every challenge through an attorney must be rejected without examining the nature of proceedings and circumstances preventing personal institution. Amrinder Singh, Haji Iqbal, Dr. Syed Shamsuddin Babar, and Rakesh Mehra emphasised that an attorney holder cannot substitute for an accused's submission to the criminal process, particularly where the accused failed to appear despite opportunities. However, in Sachin Dev Duggal v. Directorate of Enforcement (2025 SCC OnLine Del 9366), a Coordinate Bench declined to reject a petition challenging NBWs merely because it was instituted through a power-of-attorney holder, considering the petitioner's residence abroad and circumstances preventing personal approach. The Division Bench of the Punjab and Haryana High Court in Mangal Dass Gautam v. State of Haryana (2018 SCC OnLine P&H 8136) recognised that maintainability must be determined with reference to facts, authority conferred, and reasons for institution through an attorney.
The Court found that while the power of attorney had deficiencies (unsigned witness columns, no apostille), the challenge was directed principally against judicial orders whose contents are ascertainable from the record, not disputed factual assertions resting exclusively within the attorney holder's knowledge. The petitioner is presently detained in the Philippines pursuant to process initiated by Indian authorities. The Court declined to reject the petition at the threshold, confining this conclusion to maintainability of the present challenge without recognising the attorney holder as a substitute for personal appearance before the trial court.
Validity of the Proclamation Proceedings
The Court analysed Section 82(1) CrPC, which empowers a court to issue a proclamation where it has reason to believe a person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed. The satisfaction under Section 82 must be founded on material indicating deliberate evasion; it cannot be inferred merely because process issued at an address where the accused no longer resides has remained unexecuted (Hitesh Kumar).
The chronological sequence was critical: the charge-sheet (23rd December 2009) contained the Australian address. Cognizance was taken on 26th February 2010. On 30th March 2010, the ACMM recorded non-service and directed fresh service through the IO. Nothing shows subsequent service. The CBI's reply stated summons could not be served at known Indian addresses but disclosed no attempt to verify the Australian address or effect service there. Section 105 CrPC contemplated reciprocal arrangements for service abroad, and the MHA had issued comprehensive guidelines on 11th February 2009. By 2014, mutual legal assistance arrangements between India and Australia provided a recognised channel.
The order dated 12th August 2014 proceeded on the return of NBWs as unexecuted, without identifying material indicating the petitioner had absconded or was concealing himself to evade execution. When the investigating agency was aware of his overseas address but demonstrated no effort to pursue it, the mere failure to execute warrants could not justify an inference of deliberate evasion. The later proceedings did not cure the defect: on 27th September 2014, the ACMM recorded the Section 82 process returned not duly served. The impugned order relied on statements of two process servers to declare the petitioner a Proclaimed Offender. Even if publication occurred per Section 82(2), due publication could not supply the jurisdictional requirement under Section 82(1). Before issuing the proclamation, the court was required to record satisfaction, based on material before it, that the petitioner had absconded or was concealing himself. The impugned order identified no such material beyond his absence and the return of process unexecuted, despite the overseas address being available.
The Court applied Manish Popli, where proclamation proceedings were set aside against an accused in Australia where the agency, despite knowledge of overseas residence, had not pursued service through legally recognised channels. While the facts were not identical (the accused in Manish Popli maintained communication with the agency and faced travel restrictions), the principle concerning the need for a proper statutory foundation before invoking Section 82 was directly relevant. Sucha Singh and H.P. Nikhil Petrol Pump similarly recognise that residence abroad, particularly before issuance of warrants, cannot without further material be equated with abscondence.
There was also an independent statutory infirmity: Section 82(4) CrPC authorises a Proclaimed Offender declaration only for offences enumerated therein. The offences attributed to the petitioner (Sections 120B, 409, 420, 467, 468, 471 IPC) are not included. Sanjay Bhandari and Yash Dev Singh Sejwal distinguish between a valid proclamation under Section 82(1) and a Proclaimed Offender declaration under Section 82(4). Since the petitioner's offences are not listed in Section 82(4), he could not have been declared a Proclaimed Offender.
The Petitioner's Conduct and Delay
The Court acknowledged the CBI's objections regarding the petitioner's conduct: he joined investigation in 2008 and left India (the FIR was registered in November 2006, contrary to his assertion of departure before registration). His failure to return or approach the trial court for years required explanation. The power of attorney executed in 2024 indicated awareness of the need to pursue remedies by 2024, yet the challenge was instituted only after his apprehension in September 2026. The explanation attributing delay to attorney negligence did not satisfactorily account for prolonged inaction. Abhishek and Yash Dev Singh Sejwal establish that a person deliberately avoiding process would ordinarily not deserve discretionary indulgence. However, these principles bear upon the relief granted, not the validity of the proclamation. Subsequent conduct cannot retrospectively establish compliance which was not shown when the proclamation was made. Setting aside the proclamation does not absolve the petitioner of his obligation to face the pending prosecution.
Effect upon the Red Notice and Extradition Proceedings
The Court held that extradition is governed by a legal framework distinct from Section 82 CrPC. Article 8 of the India-Philippines Extradition Treaty requires a request through diplomatic channels with an arrest warrant issued by a competent authority and supporting evidence. Article 9 provides for provisional arrest and expressly permits transmission through INTERPOL. Neither provision requires the person sought to have first been declared a Proclaimed Offender under Indian criminal procedure.
The nature of an INTERPOL Red Notice was explained in Bhavesh Jayanti Lakhani v. State of Maharashtra ((2009) 9 SCC 551): it is a mechanism of international police cooperation, not an arrest warrant. Under INTERPOL's Rules on the Processing of Data, a Red Notice for prosecution must be supported by a valid arrest warrant or equivalent judicial decision. In this case, NBWs were issued before the proclamation proceedings (May 2013), followed by open-ended NBWs in November 2024, the Red Notice on 17th March 2026, and fresh open-ended NBWs on 10th June 2026 (adding Section 409 IPC). The CJM countersigned the extradition affidavit on 1st July 2026. The warrants of arrest and the proclamation are distinct judicial processes. Setting aside the proclamation does not invalidate the warrants, which remain unaffected. Consequently, the invalidity of the 2014 proclamation furnishes no ground to interfere with the 1st July 2026 order, or to direct suspension of the Red Notice or extradition proceedings.
The Court directed the CBI to communicate the judgment to India's National Central Bureau for INTERPOL and the authorities handling the extradition request, including Philippine authorities where the 2014 proclamation formed part of the material furnished, clarifying that subsequent warrants and pending prosecution remain unaffected, enabling the National Central Bureau to make necessary updates and assess the Red Notice per Article 80(2) of INTERPOL's Rules on the Processing of Data.
Voluntary Surrender and Return to India
The Court noted Article 15 of the India-Philippines Extradition Treaty permits voluntary surrender upon the written consent of the person sought. The Supreme Court of the Philippines has framed the Rules on Extradition Proceedings, A.M. No. 22-03-29-SC, dated 8th April 2025 (effective 10th November 2025). Rule 5 provides for voluntary surrender even where the person is under provisional arrest or extradition proceedings are pending, through a notarised affidavit of waiver executed with counsel's assistance, followed by the competent Philippine court's consideration of whether consent was given knowingly and voluntarily. This mechanism addresses the CBI's practical concern. The petitioner is at liberty to invoke Article 15 read with Rule 5. If voluntary surrender is permitted, Indian authorities may coordinate his transfer. Upon being brought to India, he shall be produced before the competent criminal court without avoidable delay. Any application concerning bail, custody, or other relief shall be considered independently, uninfluenced by the present observations. Questions concerning the petitioner's nationality (charge-sheet describes him as Indian; subsequent material refers to Australian citizenship; he claims Philippine residence/citizenship rights) are left open for competent authorities, noting Article 3 of the Treaty does not preclude extradition of a Requested State's own nationals for extraditable offences.
The Verdict
The petition was partly allowed. The Court: (i) set aside the November 2014 order of the ACMM, East District, Karkardooma Courts, insofar as it declares Rishi Levi a Proclaimed Offender, and consequently set aside the proclamation proceedings initiated pursuant to the 12th August 2014 order; (ii) held that the direction for issuance of process under Section 83 CrPC, founded on the proclamation set aside, ceases to operate against the petitioner; (iii) clarified that the judgment does not operate as cancellation of the warrants of arrest issued in May 2013, November 2024, or June 2026, none of which was independently adjudicated; the pending criminal proceedings shall continue; (iv) declined the prayer for staying the 1st July 2026 order and the extradition proceedings; the judgment does not require suspension or withdrawal of the INTERPOL Red Notice or the extradition request, which shall continue subject to the Treaty and applicable law; (v) directed the CBI to comply with the communication directions in paragraph 43; (vi) held the petitioner at liberty to avail the voluntary surrender mechanism under Article 15 of the India-Philippines Extradition Treaty and Rule 5 of the Philippine Rules on Extradition Proceedings, subject to the decision of competent Philippine authorities and prescribed procedure.
What This Means For Similar Cases
Proclamation Requires Positive Material of Deliberate Evasion
The judgment reinforces that Section 82(1) CrPC demands a judicial satisfaction founded on material indicating the accused has absconded or is concealing himself to avoid execution of the warrant. The mere return of a warrant unexecuted at an address where the accused no longer resides is insufficient. Where the investigating agency knows the accused's overseas address, it must demonstrate efforts to effect service through legally recognised channels - Section 105 CrPC, MHA guidelines (11th February 2009), or mutual legal assistance treaties - before a court can infer deliberate evasion. Practitioners should:
- Scrutinise whether the investigating agency pursued all available international service channels before seeking proclamation.
- Obtain and place on record the agency's correspondence with MHA/MEA and mutual legal assistance requests.
- Highlight any judicial orders recording non-service of summons or warrants at the last known Indian address.
Proclaimed Offender Declaration Limited to Enumerated Offences
Section 82(4) CrPC creates a distinct category of "Proclaimed Offender" applicable only to offences specifically enumerated therein. A proclamation under Section 82(1) may be issued for any offence where the conditions are met, but the additional declaration as a "Proclaimed Offender" with its consequential rigours (including attachment under Section 83) is statutorily restricted. The offences in this case - Sections 120B, 409, 420, 467, 468, 471 IPC - are not listed in Section 82(4). Practitioners must:
- Verify whether the offences charged fall within the Section 82(4) schedule before a Proclaimed Offender declaration can stand.
- Challenge such declarations as independently unsustainable even if the underlying proclamation under Section 82(1) were valid.
- Cite Sanjay Bhandari and Yash Dev Singh Sejwal for the distinction between proclamation and Proclaimed Offender status.
Extradition and Red Notice Operate Independently of Domestic Proclamation
The invalidity of a domestic proclamation under Section 82 CrPC does not automatically invalidate an INTERPOL Red Notice or extradition proceedings. The Extradition Treaty and INTERPOL Rules constitute a separate legal framework. A Red Notice requires a valid arrest warrant or equivalent judicial decision, not a Proclaimed Offender declaration. Subsisting NBWs issued independently of the proclamation remain valid and can support the Red Notice and extradition request. Practitioners should:
- Understand that setting aside a proclamation is a limited victory; it does not halt extradition if valid arrest warrants exist.
- Focus challenges on the validity of the underlying arrest warrants and the evidentiary basis for the Red Notice under INTERPOL Rules.
- Advise clients on the voluntary surrender mechanism under Article 15 of the relevant Extradition Treaty and applicable Requested State rules (e.g., Philippine Rules on Extradition Proceedings, Rule 5) as a strategic option to regularise their return.
- Ensure the investigating agency updates INTERPOL and extradition authorities when a proclamation is set aside, as directed by the Court here.
