PUBLIC INTERNATIONAL LAW ASSIGNMENT

TOPIC- THE LAW OF EXTRADITION IN INDIA

I’ve Attended International Conference and Bar Council

Both

SUBMITTED TO SUBMITTED BY
Dr. Kaveri Sharma Divya Upreti
B.B.A LL.B (H)
6th Sem.
1605140010
Table of Contents

Introduction ................................................................................................................................ 2
Meaning of Extradition .............................................................................................................. 2
Need of the Law of Extradition ................................................................................................. 3
Indian Extradition Law .............................................................................................................. 4
Extradition Treaty ...................................................................................................................... 4
What is an Extradition Offence ? ............................................................................................... 5
Process of Extradition ................................................................................................................ 6
Provisions relating to arrest of fugitive criminal ....................................................................... 7
Extradition request from an Indian court to a Foreign court ..................................................... 8
Case Laws .................................................................................................................................. 9
Conclusion ............................................................................................................................... 10
Bibliography ............................................................................................................................ 11
Acknowledgement
I would like to express my deep and sincere gratitude to my research supervisor, Dr. Kaveri
Sharma, K.R Mangalam University, Sohna road for giving me the opportunity to do research
and providing invaluable guidance throughout this research. Her dynamism, vision, sincerity
and motivation have deeply inspired me. She has taught me the methodology to carry out the
research and to present the research works as clearly as possible. It was a great privilege and
honour to work and study under his guidance. I am extremely grateful for what she has
offered me. I would also like to thank her for his friendship, empathy, and great sense of
humour.
Divya upreti
 THE LAW OF EXTRADITION IN INDIA

Introduction
It is possible for a person to escape to another State after committing a crime in his own State
because of the development of technology of air-traffic. Extradition is the official process
where one nation or State surrenders an accused criminal to another nation or state. Between
Nations, States Extradition is regulated by treaties. Extradition comes to end when Asylum
Starts.

Meaning of Extradition
The term 'extradition' is the process where under a treaty one State surrenders to any other
State at its request, a person accused of a criminal offense committed against the law of the
requesting State, such requesting State being competent to try the alleged offender.
In Extradition, there are two States involved, the territorial State for example - State, where
an accused, is found and to whom the request is made. And another state is requesting State,
for example, a State where the crime has been committed. The request is made normally
through the diplomatic channel.

Definition of Extradition
Some well-known jurist defines extradition as follows –
i) Lawrence -
Lawrence defines Extradition as "the surrender by one State to another of an individual who
is found within the territory of the former, and is accused of having committed a crime within
the territory of the latter; or who having committed a crime outside the territory of the latter is
one of its subjects and as such by its law amenable to its jurisdiction."

ii) Oppenheim -
According to Oppenheim, "extradition is the delivery of an accused or a convicted individual
to the State on whose territory he is alleged to have committed or to have been convicted of, a
crime by the state on whose territory the alleged criminal happens for the crime to be."1

1
Oppenheim's International Law, seventh edn, p 631
Need of the Law of Extradition
The growing internationalisation of crime a need for transfer of criminals, with a view to
ensure that no crime goes unpunished and the rule of law is upheld. The device of extradition
evolved under the principle of harmony of nations where one State surrenders a criminal to
the other state for bringing him to justice in country in whose jurisdiction offence was
committed.
Extradition is a means to resolve two conflicting principles - first being that - criminal
jurisdiction extends only to offences committed within geographical boundaries; Secondly,
the rule that a criminal going unpunished on account of jurisdictional reasons.

Purpose of Extradition
A Criminal is extradited to requesting State because of the following reasons –
(i) Extradition is in the interest of the civilized communities that criminals should not to go
unpunished and it is recognized as a part of the comity of nations that one State should afford
to another state assistance towards bringing offenders to justice.
(ii) Extradition has a restraint effect because extradition act is a warning to criminal that they
cannot escape punishment by playing to another State.
(iii) Criminals are surrendered as to safeguard the interest of territorial State.
(iv) Extradition is done because it is a step towards the achievement of international co-
operation in solving international problems of a social character.
(v) The State on whose territory the crime has been committed is in better position to try the
offender because evidence is more freely available in that State only.
Indian Extradition Law
In India, the extradition of a deserter from India to a foreign country or vice versa is covered
by the provisions of the Extradition Act, 1962. The act lays down the first principles of
extradition law. The duty to extradite comes out of treaties/arrangements/conventions entered
into by India with other countries. Under Section 3 of the Extradition Act, a notification can
be issued by the Government of India extending the provisions of the Act to the countries
notified. Therefore, for a comprehensive understanding of the law of Extradition, one has to
read the Extradition Act in concurrence with specific treaties/arrangements/conventions
entered into with various states.

Extradition Treaty
Extradition treaty, as per Section 2(d) of the Extradition Act means 'a treaty, agreement, or
arrangement with a foreign state relating to extradition of fugitive criminals'. An extradition
treaty also called conditions precedent for an extradition. It also includes a list of crimes
which are extraditable.
It is to note that even in absence of a treaty, extradition may be permitted if it has the backing
of the principle of reciprocity. The primary consideration for the request of extradition is the
assurance of reciprocity.

Basic principles governing Extradition

1) Principle of Seriousness of the offence - Extradition is usually permissible only for more
serious offences, and not for petty offences.
For example, the extradition treaty between US and India permits extradition only for
those offences which are punishable with more than one year of imprisonment.

2) Principle of Reciprocity in exchange of fugitive between requesting and requested State.

3) Principle of Dual Criminality: This is the most important principle governing Extradition
Law. This requires that the offence that the fugitive is alleged to have committed, should
be an offence both in the requesting as well as the requested state.

4) Existence of prima facie case against the fugitive: This is a safety to ensure the
probabilities, the existence of a triable case against the fugitive. If the case is lacking then
it will disallowed extradition.

5) Principle of proportionality between offence and sentence: Requesting state should

respect the principle of proportionality between offence and sentence and punishment for
that particular crime should not be more harsh in which case extradition request may be
declined.
6) Whether the fugitive is seeking asylum from political abuse and trial for an offence of a
political character: This requires an enquiry into whether the accused is likely to suffer
political abuse or death sentence in the requesting country. In such cases extradition is
disallowed. For instance, in the Indian Context, the provision of death penalty in India
and alleged human rights violations in prisons/police torture have proved to be major
hurdles in accepting extradition requests from India to other countries, especially the UK
with the European Commission on Human Rights (ECHR) taking a strict note of the
same.2

These are some of the overall principles across all treaty/convention/agreement obligations
with various countries.

What is an Extradition Offence?

Section 2(c) defines Extradition Offence as:-
o Offence provided in the extradition treaty with the foreign states; (with respect to treaty
states)
o An offence punishable with imprisonment not less than one year under India Law or law
of a foreign state. (non treaty states)
o Composite offence - offence committed wholly, or in part, in India and Foreign State,
which would constitute an extradition offence in India.

Who may be extradited?

A fugitive criminal may be extradited. A fugitive criminal as Per S.2 (f) is a person who:
o Who is accused or convicted of an extradition offence committed within the jurisdiction
of a foreign state;
o a person who, while in India :
o conspires,
o attempts to commit
o incites
o Participates - as an accomplice in the commission of extradition offence in a foreign state.
A person in India, attempting/conspiring/abetting the commission of the offence from within
the shores of India, is also covered in the definition of a 'fugitive criminal' and liable to be
extradited.

2
Her Majesty's Knights in Sullied Armour, Bhavna Vij-Aurora, Outlook, November-14,
2016.
Process of Extradition
1) Receipt of Information
The process of extradition is set up by the receipt of Information regarding fugitive criminals
wanted in foreign countries. This information may be received:-
o Directly from diplomatic channels of the concerned country (along with the necessary
information relating to the offence and the fugitive)
o General Secretariat of ICPO-Interpol in the form of red notices;
o Other settled modes of communication.

2) Magisterial Inquiry

o Where an information is received, the Central government may order an enquiry by a

magistrate directing him to enquire into the case. The initial inquiry by the Central
Government before ordering a magisterial inquiry need not be a detailed one. No pre-
decisional hearing is required to be given to the fugitive before ordering magisterial
enquiry. The function of the Magistrate under this Section is quasi-judicial in nature. The
magistrate directed to proceed with the enquiry need not have territorial jurisdiction3.
o On receipt of order, the Magistrate shall issue a warrant of arrest of the fugitive criminal.
o Once the fugitive criminal appears, or is brought before Magistrate following to the
warrants, the magistrate inquiries into the case.
Inquiry
By inquiry it is meant that the Magistrate shall:
o Take such evidence as may be produced in support of the summons of the foreign state.
o Take such evidence on behalf of the fugitive criminal, including any evidence to show
that offence for which the fugitive criminal is accused or convicted is not an extraditable
offence.
The word 'evidence' used here is not be define as evidence in its strict legal sense and must be
read in context of Section 10 of the Extradition Act. The Magistrate can receive depositions,
exhibits, documents in evidence during the inquiry. Judicial documents stating facts, if duly
authenticated, are also receivable in evidence. This includes depositions/orders of foreign
courts. It is also well established that the requesting state has the locus standi in extradition
proceedings considering it has a stake in success of extradition proceedings. Therefore, the
requesting state may become party to and participate in the inquiry proceedings.

3
Section 5 of Extradition Act overrides principle of jurisdiction laid down in Cr.P.C
Provisions relating to arrest of fugitive criminal
Section 34B of the Extradition Act, provides that on receipt of an urgent request from a
foreign state, the Central Government may request the Magistrate to issue an immediate
provisional warrant for the arrest of fugitive criminal. As per Section 34-B(2) - A fugitive
criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days
from the date of his arrest if no request for his surrender or return is received within the said
period.

Decision on surrender of fugitive criminal by the central government

Under the Act, both the magistrate and the Indian Government, which makes the executive
decision in respect of extradition, must bear in mind the substantive restraints on the
extradition power (sections 29 and 31).
If, the Central Government, on receipt of report of the Magistrate, and statement of the
accused, is of the opinion that the fugitive surrendered to the foreign state, it may issue a
warrant for the custody and removal of the fugitive criminal and for his delivery at place and
to a person to be named in the warrant.
In other words, if a State is unwilling to extradite a fugitive criminal, it should undertake the
responsibility of prosecuting him or her, the theory being that a criminal should not go
unpunished.4

4
www.mondaq.com/india/x/577116/Crime
Conditions when fugitive criminal not returned
As per Section 31, a fugitive criminal shall not be surrendered or returned if:
a. The offence complained by the foreign state, is of a political character, directly, or his
requisition/warrant, is made for a non-political offence to punish him for an offence of
Political Character.
b. Prosecution of the offence is time barred in the foreign state.
c. He/she is accused of any offence in India other than the offence for which the extradition
is sought.
d. He/she is undergoing sentence under any conviction in India.
e. Until expiration of 15 days from the date of his being committed to prison by magistrate
(post inquiry u/s 5 of the Act).

Extradition request from an Indian court to a foreign court

Section 105 of the Cr.P.C impose that the Court desiring to issue summons/warrant to any
person residing in any country/place outside India, has to send the summons to the authority
in the foreign country notified by the Central Government. This notification is usually carried
out through what is known as a Mutual Legal Assistance Treaty ("MLAT"). India has
MLATs with various countries. The authority notified under the MLAT is entrusted with the
task of facilitating service of Summons/Warrants in the foreign country.
The request is to be supported by information describing the facts of the offence and
procedural history of the case. A statement of the provisions of law describing the essential
elements of the offence/punishment is also required. The request for extradition also has to be
accompanied with a copy of the warrant/order of arrest issued by the judge, charging
document (if any). Once the extradition request is made in conformity with the provisions of
the MLAT, the foreign government takes a decision on the same, broadly on the same
principles as highlighted above such as dual criminality, rule of specialty et al and a judicial
inquiry may also precede grant or denial of such a request.
Case Laws

1. Dr. Ram Babu Saksena Vs. The State AIR 1950 SCC 155
The question was how far the extradition treaty (of 1869) between the Government of India
and Tonk State was affected by the merger of the State into India. It was held that the treaty
must be deemed to be ineffective.5
As already mentioned, the Indian Extradition Act, 1903 was adapted, by virtue of Adaption
of Laws order, 19506 but not the Fugitive Offenders Act. The Indian Extradition Act, 1903,
was made applicable to the whole of India with the exception of Part B States. It was not
extended to Part B States even when the Part B States (Laws) Act, 19517, was enacted Article
372 could not save this Fugitive Offenders Act , because the grouping of India with British
possessions would be repugnant to the concept of a sovereign democratic republic.

2. The State of Madras v. C.G. Menon AIR 1954 SC 517

In which the Fugitive Offenders Act, 1881, a part of the extradition law of India, regulating
the extradition of fugitive criminals inter se the commonwealth countries, was held
inapplicable in India8.
Thus, it is apparent that necessity is felt by the independent India for passing a new
legislation to deal with Extradition, first, because Menon’s case created a vacuum in the law
of extradition from India to Commonwealth countries, and, secondly, because the legal
position relating to the surrender of fugitive criminals to foreign countries and
Commonwealth countries from the former Part B States was somewhat doubtful9. In this
state of uncertainty it has become imperative for the Indian Government to quit the pre-
colonial British law of extradition and design its own legislation on extradition. The purpose
of the new legislation is, first, to overcome all anomalies and lacunae in the existing law, and,
secondly, to enact a consolidated and amended law for the extradition of fugitive criminals to
all foreign States and Commonwealth countries.10

5
Ibid, at p.162.
6
Published in the Gazette of India, Extradition, p.449, dt.26th Jan. 1950
7
Act No. 3 of 1951.
8
Ibid, at 519
9
“Statement of Objects and Reasons,” the Extradition Bill, 1961.
10
The Discussion on the Position of Indian Extradition Act, 1962 is largely drawn from J.N.
Saxena, ‘India
-The Extradition Act, 1962’,(1964) 1,3 I&CLQ, pp. 116-133
Conclusion
Extradition is a great step towards international cooperation in the abolishment of crime.
States should treat extradition as an obligation resulting from the international agreement in
the fight against crime. With the growing internationalisation of crime and judicial
developments, extradition law is in a state of great change. The courts are struggle with
various issues including: interpretation of treaties and arrangements vis-a-vis municipal
extradition law, balancing of due process versus principle to comity of courts, the effect of a
red corner notice, the role of international agencies, the interface of powers of deportation
with extradition, etc. Jurisprudence in the area of extradition law is evolving at a rapid pace
and it is hoped that the Indian Judiciary will match up to global standards and resolve the
legal challenges posed to it.
Bibliography
Books Referred:-
1. Oppenheim's International Law, seventh edn, p 631
2. Extradition Act 1962

Websites Referred:-
www.mondaq.com/india/x/577116/Crime
www.google.com