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CHAPTER – III

EVOLUTION OF INDIAN LAW OF EXTRADITION

3.1 INTRODUCTION

The law of extradition of India has undergone many changes over a period of

time. The law which began its journey when India was still as colony has evolved till it

took the present shape in 1993. This Chapter examines history of Indian extradition law

covering a time span of about ninety years from 1903 to 1993 bringing forth the reasons

and also the salient features of each phase of development.

3.2 HISTORY AND DEVELOPMENT OF INDIAN LAW OF EXTRADITION

The history of Indian Extradition Law falls into four parts;

(1) 1903 - 1947

(2) 1947 - 1962

(3) 1962 -1993

(4) 1993 onwards

3.2.1 Part 1 (1903 – 1947)

The first Indian statute on extradition is the Indian Extradition Act of 1903. The

Indian Extraction Act, 1903 was passed before the attainment of independence of India

when India was still a British possession. The Indian Legislature in enacting the Indian

Extradition Act, 1903, has, in addition to the modifications of the British Imperial

Statutes in their application to British India in a manner necessary to adapt them to the

circumstances of this country, also provided for cases not covered by the Imperial

Statutes

Prior to the passing of this Act was passed there were two Acts passed by the

Parliament in England; they were the Extradition Acts of 1870 and 1873 and the Fugitive

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Offenders Act of 1881. Prior to the Extradition Act, 1870,1 there was no general statute

giving legal validity to extradition treaties concluded with Foreign States by His Majesty,

the King and so a separate Act had to be passed on the occasion of each new treaty. This

statute of 1870 is subsequently amended in 1873.

A fugitive criminal found in the United Kingdom may be surrendered to a foreign

State only in accordance with the provisions of the Extradition Acts, 1870 to 1935 by

proceedings which are authorised and regulated by those Acts. The Extradition Acts did

not apply in the case of any foreign State unless Her Majesty so directs by Order in

Council.

The Extradition Acts, 1870 and 1873, applied only to cases of those foreign States

with whom England had entered into treaty for the rendition of criminals. The application

of the Extradition Act of 1870 to British possessions outside United Kingdom has been

provided for by Sec. 17 while Sec. 18 provided for the saving of laws of British

possessions,2 which was amended in relation to India by the Government of India

Adaptation of Acts of Parliament Order, 1937 S.R. & O 1937 No. 230 Article 2 and

Schedule Part II.

The question of the surrender of the fugitive offenders between the various

possessions of the British Empire was also subject to Imperial Statute, viz., the Fugitive

Offenders Act3, 1881. The Fugitive Offenders Act, 18814 (enacted by the Parliament of

the United Kingdom), regulated the extradition of fugitive offenders inter se the Common

wealth countries The Fugitive Offenders Act was passed for the British Colonies and

Dominions, including British possessions in India. The procedure to be followed before

surrendering criminals in the case of Foreign States is different from the procedure to be

followed in the case of Colonies and British possessions. The Extradition Acts, 1870 and

1873, applied only to cases of those foreign States with whom England had entered into

1 33 and 34 Viet Ch 52 2 Indian Independence Act; 1947 (10 and 11 Geo. VI, C. 30, Section 18(1)(2), Halsbury Third Edition, Vol. 5, p. 68 3 Fugitive Offenders Act 1881, 44 and 45 Viet. & 69 4 44 and 45 Viet. C. 69

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treaty for the rendition of criminals. The Fugitive Offenders Act was passed only for the

British Colonies and Dominions, including British possessions in India. The procedure to

be followed before surrendering criminals in the case of Foreign States is different from

the procedure to be followed in the case of Colonies and British possessions.

Apart from the Foreign States and the British Colonies and possession there was

another set of States which did not fall under either of the above categories. There were

the Native States in India. Native States were neither Foreign States for England nor were

they Colonies within the British Empire. The Indian Native States had a separate political

existence of their own with reference to the law of extradition between the Paramount

Power and the India State. The Government of British India had entered into extradition

treaties with many Indian States.5 These treaties governed the surrender of criminals.

After a prima facie case was established, either British India, or the Indian State

concerned, surrendered the fugitive to the jurisdiction of the locus delicti. But there were

no such extradition treaties with the majority of Indian States. In these cases resort was

had to the basic principle of “reciprocity”. This principle, however, was subject to the

right claimed by the Government of India, as Paramount Power, to demand the surrender

of any class of criminals and to refuse extradition in many cases.6

If a foreign criminal took shelter in an Indian Native State, the matter was dealt

with in a different way. With the sanction of Parliament, the Crown had entered into a

number of extradition treaties with foreign countries.7 These treaties were published in

the Gazette of India. When a foreign fugitive offender took shelter in an India State, that

State was bound to surrender him to the Government of British India without any express

agreement on its behalf as to do so, because it was supposed that this obligation was a

duty which flowed from the junction of the royal prerogative and Acts of Parliament.8

5 Aitcheson: A Collection of Treaties, etc., Relating to India (1932). Some of these States were: Alwar (Treaty No.XXVI, 1867); Bikaner (Treaty No.III, 1869); Jaipur (Treaty No. V, 1868) Jodhpur (Treaty No.X, 1868), etc. 6 Sardar K.M. Panikkar, Inter-State Law, (1959) pp.81-82. 7 Lee Warner: The Protected Princes of India (2009) p.189: “With the sanction of Parliament, the Crown has agreed to surrender certain fugitive accused persons to Austria, Belgium. Brazil, Denmark, France, Germany, and other nations.” 8 K.R.R. Sastry, Indian States (1941) pp. 82-83.

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The Extradition Acts of 1870 and 1873 and the Fugitive Offenders Act, 1881,

were not applicable to the native states. . It is in this context that the Indian Extradition

Act was passed. By an Order in Council, dated the 7th March, 1904,9 it was declared that

Chapter II of the Indian Extradition Act, 1903 will have effect in British India as if it

were part of the Extradition Act, 1870: Vide Section 18 of that Act. This Chapter was

intended to substitute the Indian Procedure for that contained in Sections 7 to 12 of the

Extradition Act, 187O. As in the case of the Extradition Act, 1870, provision has been

made by Section 32 thereof for the recognition of Acts of the legislatures of British

possessions providing for the application and carrying into effect within those

possessions of the Act in question. In the case of British India, this power has been

exercised by the Order in Council, dated the 7th March, 1904, recognising Chapter IV of

the Indian Extradition Act, 1903, and declaring that it should be given effect to

throughout His Majesty's dominions and on the high seas, as if it were part of the

Fugitive Offenders Act, 1881.

In a nut shell, the overall position subsequent to passing of Indian Extradition Act,1903

which is made up of provisions which fall into several classes, was as follows;

(1) The provisions of Chapter II which are part of the Extradition Act, 1870, and deal

with the surrender of fugitive criminals to Foreign States to which that Statute

applies.

(2) The provisions of Chapter III which deals with the surrender of fugitive criminals

to States other than those to which that Statute applies.

(3) The provisions of Chapter IV which deals with the application of the Fugitive

Offenders Act, 1881, to British India and are strictly not part of the law of

extradition proper at all.

9 The Manual of Procedure Relating to Extradition, corrected up to 1st December, 1940, Third Edition Published by Authority, at p. 86

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(4) The provisions of Chapter VI which provide for the execution of commission

issued by criminal Courts outside British India which is also a subject outside the

strict scope of the law of extradition.

In applying the provisions of Chapter II of the Indian Extradition Act, 1903,

therefore, the fact must always be borne in mind that these provisions were part of the

general extradition law of the (former) Empire. As has been pointed out above, the

provisions of Chapter III only applied to those States to which the Extradition Acts of

1870 and 1873 did not apply, that is, to those States in respect of which His Majesty in

Council has not made an Order in Council under Section 2 of the Extradition Act, 1870.

The provisions, therefore, of that Chapter constituted express statutory provision applying

to British India only for the extradition of criminals in cases not provided for by the

general extradition law of the (former) Empire.

3.2.2 Part 2 (1947-1962)

The Indian Independence Act of 1947 provides that - in consequence of the

setting up of the new Dominion of India as from the appointed day, His Majesty's

Government in the United Kingdom will have no responsibility as respects the

Government of any of the territories which immediately before that day, were included in

British India and that no Act of Parliament of the United Kingdom passed on or after the

appointed day shall extend or be deemed to extend to the new Dominion, unless it is

extended thereto by a law of the Legislature of the Dominion. Also, No Order in Council

made on or after the appointed day under any Act passed before the appointed day, and

no order, rule or other instrument made on or after the appointed day under any such Act

by any United Kingdom Minister or other authority, shall extend or be deemed to extend,

to the new Dominion as part of the law of that Dominion. This position obviously

covered even extradition matters pertaining to India.

After India became an independent dominion of the British Commonwealth in

1947, it proclaimed itself a sovereign democratic republic in 1950. When India

proclaimed herself a sovereign democratic republic on January 26, 1950, the need for

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extradition arrangements with the Indian Native States disappeared. They became an

integral part of the republic and were described as Part B States.

The Indian Independence Act, 1947, and the Government of India Act, 1935,

together with all the enactments amending or supplementing the latter Act, were repealed

under Article 395 of the Constitution of India. But Article 372 of the Constitution

continues, subject to the other provisions of the Constitution, all the laws in force in the

territory of India immediately before the commencement of the Constitution. Such laws

include personal laws like those governing the Hindus, and Mohammadans. It should,

however, be observed that to the extent that the laws thus continued contain provisions

inconsistent with or repugnant to the Fundamental Rights guaranteed in Part III of the

Constitution, those provisions would be treated as repealed and inoperative by reason of

Article 13 of the Constitution of India. By virtue of Clause (2) of Article 372 of the

Constitution of India, the President made the Adaptation of Laws Order, 1950, published

in the Gazette of India, Extraordinary, page 449, dated the 26th January, 1950. The

Indian Extradition Act, 1903 was one of those Acts so adapted.

At this juncture, the new State was faced with a number of problems with regard

to extradition. Do the extradition treaties entered into by the former British India and

Princely States, which had now merged into India, still operative? If not, whether the

previous extradition law was to prevail in these erstwhile native States? Could the

summary procedure for extradition inter se the British possessions, which were grouped

together according to their contiguity, etc., by an Order in Council and treated as one

territory (the procedure as laid down in Part II of the Fugitive Offenders Act, 1881), be

continued under the changed circumstances?

The effect of the new constitutional situation on the extradition arrangements

between Indian and the native state, namely, State of Tonk was considered by the

Supreme Court in Dr. Ram Babu Saksena Vs The State.10 The question was how far the

extradition treaty (of 1869) between the Government of India and Tonk State was

10 AIR 1950 SC 155.

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affected by the merger of the State into India. It was held that the treaty must be deemed

to be ineffective.11

As already mentioned, the Indian Extradition Act, 1903 was adapted, by virtue of

Adaption of Laws order, 195012 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, 1951,13 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. Then came the all-important case before the Supreme

Court of India: The State of Madras v. C.G. Menon,14 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 India.15

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 doubtful.16 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.17

11 Ibid, at p.162. 12 Published in the Gazette of India, Extradition, p.449, dt.26th Jan. 1950 13 Act No. 3 of 1951. 14 AIR 1954 SC 517; (1954) S.C.J. 621. 15 Ibid, at 519 16 “Statement of Objects and Reasons,” the Extradition Bill, 1961. 17 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

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3.2.3 Part 3 (1962-1993)

The Extradition Act, 34 of 1962 duly enacted by Parliament, received the assent

of the President on September 15, 1962 and came into force on January 5, 196318. The

Extradition Act, 1962 consolidated the law relating to the extradition of criminal fugitive

from India to foreign states.

3.3 SCHEME OF THE EXTRADITION ACT, 1962

The Act consists of five chapters and two Schedules. Chapter I deals with

preliminary matters, viz., short title, extent and applicability of the Act, and definitions of

some important terms. Chapter II deals with the extradition of fugitive criminals to

foreign States and to Commonwealth countries in general, and Chapter III deals with the

return of fugitives only to those Commonwealth countries having extradition

arrangements with India. Chapter IV is concerned with the return of accused or convicted

persons from foreign States or Commonwealth countries to India and Chapter V deals

with miscellaneous matters, e.g., jurisdiction as to offences committed at sea or in the air,

the power of the Central Government to discharge a fugitive criminal under certain

circumstances, simultaneous requisitions from more than one State, certain restrictions on

surrender, etc. The First Schedule gives a list of Commonwealth countries, and the

second gives a list of extradition offences.

The provisions of the Extradition Act, 1962, may be grouped into four headings:

(A) General conditions of extradition.

(B) Certain restrictions on surrender.

(C) Procedure regarding extradition of fugitive criminals.

(D) Miscellaneous provisions

3.3.1 General Conditions of Extradition

From the previous discussion of the concept of extradition in international law, it is

understood that three general conditions for extradition have emerged effectively:

(a) The Principle of Double Criminality, 18 Notification NO. G.S.R. 55 dated January 5 1963, of the Ministry of External Affairs, published in the Gazette of India, Extradition, Part II of that date) A short Act, it consists of 37 spread over 5 chapters

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(b) The existence of an “ extraditable ” offence, and

(c) The existence of an Extradition Treaty

(a) Double Criminality:

It is an accepted principle of international law that the fugitive's act must

constitute an offence according to the laws of both countries— commonly known as the

principle of "double criminality. In the Indian Extradition Act, 1903, in addition to the

words " Extradition Offence " defined in section 2 (b),19 the word "offence" was also

defined by section 2 (e) as " including any act where so ever committed which would, if

committed in the States, constitute an offence," thus providing for the rule of double

criminality in that enactment. But this word has been deleted in the Indian Extradition

Act, 1962 and only "extradition offence " has been defined in section 2 (c).20

Under the procedure prescribed in the Act, the Magistrate is not required to

investigate whether the act of the fugitive is an offence under the penal law of the country

requesting extradition. Thus the principle of double criminality has not been given due

recognition in the Act. It may, however, be questioned whether the requesting State can

try an offence if it is not one provided by its own penal law. But that is a separate issue,

and in most treaties it is clearly mentioned that the act must be an offence in both

countries.

(b) Extraditable Offence:

Extradition is granted when a person has committed an offence, it must be

ascertained that the ‘offence’ is an ‘extraditable offence.’ There are generally three

ways in which an “extraditable offence” or what is commonly known as an ‘extradition

offence,’ may be incorporated into the domestic law of extradition.

19 2 (b): "Extradition offence" means any such offence as is described in the First Schedule. 20 2 (c): ' extradition offence" means:

(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;

(ii) in relation to a foreign State other than a treaty State or in relation to a Commonwealth country an offence which is specified in or which may be specified by notification under the Second Schedule.

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(1) The domestic law may leave the list of extraditable crimes to be provided for in

the extradition treaty with a foreign State. This was the method adopted by France,

Great Britain and the United States in the eighteenth and nineteenth centuries and

this practice developed greatly in the world during the nineteenth century.21 It has

been adopted by the Indian Extradition Act, 1962 under Section 2 (c) (i), and has

been made use of in the extradition treaty with Nepal.22

(2) The domestic laws often enumerate the offences. The Extradition Act, 1870, of

Great Britain,23 and the Belgian law concerning extradition24 may be quoted as

examples. The Indian extradition Act, 1962 adopts this method in relation to a

foreign State other than a treaty State, or in relation to a Commonwealth country,25

and the Second Schedule26 gives a list of such offences.

(3) Some domestic laws define “extraditable offences” according to the term of

imprisonment. The extradition law of France (March 1927) has made such a

provision.27.The Indian delegation at the Third Session of the Asian-African Legal

Consultative Committee (1960), while accepting the eliminative method, which

defines extraditable offences by reference to the maximum or minimum penalty

which may be imposed, was of the opinion that the enumerative method, which

specifies each offence for which extradition may be granted, should be preferred.28

This approach continued till the amendment of the Act in 1993.

21 (1935) 29 AJIL, Supp., 73-74. 22 Under Art. 3 of the Treaty of Extradition between the Government of India and the Government of Nepal, entered into in October 1953, some of the offences for which extradition is to be granted in accordance with it are: murder or attempt or conspiracy to murder; grievous hurt, rape, dacoity, highway robbery, arson, desertion from armed forces, etc. 23 33 & 34 Viet. c. 52. See the First Schedule to this Act. 24 (1935) 29 AJIL, Supp.,362. See 2 (c) (ii). 25 See 2 (c) (ii) 26 Some of the offences mentioned in the Second Schedule are: culpable homicide, attempt to murder, offences relating to coins and stamps, damaging or destroying an aircraft in the air or attempting or conspiring to do so, . . . etc. 27 Art. 4: "The acts which may give rise to extradition whether it is a question of requesting it or granting it, are the following: (1) All acts punished by a criminal penalty under the law of the requesting State. (2) Acts punished by a correctional penalty under the law of the requesting State, when the maximum penalty inclined is, by the terms of that law. two years or more ..." 28 See the report of Third Session of Asian-African Legal Consultative Committee. p. 215.

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(c) Extradition Treaty

Today it is firmly recognised that, unless a State is bound by an extradition treaty,

it can refuse extradition for any crime.29 India’s stand in this regard is expressed by the

Indian delegation at the Third Session of the Asian-African Legal Consultative

Committee wherein it is stated that “there could be no objection to voluntary extradition

of offenders even in the absence of treaty arrangements.” The definition of “extradition

offence” in the 1962 Act, 25 as well as the heading of the Second Schedule" Extradition

offences” in relation to foreign States other than treaty States… - indicate that extradition

may be granted for the offences mentioned therein to a State with which there is no

treaty.30

An important question, however, arises, concerning "the fate of an extradition

treaty ... when a State changes its constitutional framework so fundamentally as to

suggest that a new entity has been created "? Oppenheim seems to be of the opinion that,

in such a case, the new State is not bound by the extradition treaties entered into by the

extinct State.31 The present Act in its clause 2 (d), however, defines "extradition treaty"

as meaning "a treaty or agreement made by India with a foreign State relating to the

extradition of fugitive criminals, and includes any treaty or agreement relating to the

extradition of criminals made before August 15, 1917, which extends to, and is binding

on, India"

Though it is difficult to say that there was state succession in 1947, it is also not

easy to appreciate this provision of the present Act in view of the Supreme Court's

opinion in Menon's case.32 It was held therein that British India before independence is

not identical with the Sovereign Democratic Republic of India after 1950; the latter is no

longer to be bound by the extradition treaties entered into by the Crown, often on purely

29 U.S. v. Rauscher, 119 U.S. 407 af 411-412, . . Apart from them (treaties) . . . there was no well defined obligation on one country to deliver up such fugitives to another . . . and it has never been recognised as among those obligations of one government towards another which rest upon established principles of international law." 30 L. C. Green, in "Recent Practice in the Law of Extradition" (1953) 6 Current Legal Problem* at 287, favours this position: "It is fully compatible with State sovereignty for a State to surrender a fugitive even though no extradition treaty exists." 31 Oppenheim International Law (1955) Vol.1, p. 159. 32 A.I.R. 1954 S.C. 517; (1954) S.C.J. 621.

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political grounds. The policy of being bound by all the pre-independence extradition

treaties may lead to unhappy results, as was pointed out by Mr. H. N. Mukherjee, M.P.33

The provision regarding India being bound by the pre- independence extradition

treaties, however, finds support in some recent opinions. Thus L. C. Green has observed,

“although there are inconsistencies in recent judicial practice in the field of continuity,

there is a tendency for extradition arrangements to continue to operate despite changes in

state personality."34 This observation has been supported by Paul O'Higgins.35

3.3.2 Certain Restrictions on Surrender

The following conditions of extradition are usually incorporated in Extradition Acts and

Treaties these days:

(a) Extradition shall not be granted for political offences.

(b) The request for extradition should not be time-barred.

(c) The rule of speciality.

(d) Non Bis in idem

(a) Political offence:

It is a recognised principle of international law that political offenders should not

be extradited.36 This principle has been incorporated in section 31 (a) of the 1962

Extradition Act which runs as follows:

“A fugitive criminal shall not be surrendered or returned to a foreign State or

Commonwealth country, if the offence in respect of which his surrender is sought

is of a political character or if he proves to the satisfaction of the magistrate or

court before whom he may be produced or of the Central Government that the

requisition or warrant for his surrender has, in fact, been made with a view to try

or punish him for an offence of a political character.”

33 Lok Sabha Debates, Aug. 17. 1961. on “Extradition Bill.” 34 L. C. Green: ‘Recent Practice in the Law of Extradition’ (1953) 6 Current Legal Problems, 274, 295. 35 “Irish Extradition Law and Practice” (1958) 34 British Year Book of International Law 274, 295. 36 Exclusion of political offenders from the scope of extradition laws appears almost universal." in Re C. 0. Menon. A.I.R. 1953 Madras 729, 735. See also Palmerston's remark quoted by Green in (1953) 6 Current Legal Problems 281.

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This provision is similar to section 3 (1) of the United Kingdom Extradition Act, 1870.37

The provision about political offenders in the 1962 Act is divided into two parts.

Under the first part, a fugitive criminal shall not be surrendered if the offence in respect

of which his surrender is sought is of a political character. Under the second part the

surrender is prohibited if the fugitive criminal proves to the satisfaction of the Magistrate

or court before whom he may be produced, or of the Central Government, that the

requisition or warrant for his surrender has, in fact, been made with a view to try to

punish him for an offence of a political character. It appears that the two parts are meant

to deal with different sets of circumstances. Under the first, it may appear from the

evidence given in support of the requisition by the requesting State, that the offence has a

political character. Under the second, although the evidence tendered by the requesting

country indicates that one of the “extradition offences” has been committed, the offender

may show that "in fact" the offence is of a political character. Thus, if the State ‘A’

requests for the Extradition of ‘X’ on a charge of murder, it may appear at the trial in the

asylum state from the evidence adduced by the requesting State, that the crime was

committed in the course of a rebellion. The matter will then fall under the first part. On

the other hand, if the evidence merely shows that X killed another person by shooting

him on a particular day, the fugitive criminal may still give evidence to show that the

shooting took place during a rebellion; and the case will then be governed by the second

part.

(b) Lapse of time

The (Indian) Extradition Act, 1962, in its section 31 (6) provides: " A fugitive criminal

shall not be surrendered or returned to a foreign State or Commonwealth country, if

prosecution for the offence in respect of which his surrender is sought is according to the

law of that State or country barred by time." The provision barring extradition due to

lapse of time is one which is generally incorporated in extradition treaties and statutes.

But there is no agreement as to whether the law of limitation of the requested State

should apply or that of the requesting State.”38 The present trend, however, seems to

37 33 & 34 Vict. c. 52. 38 (1935) 29 AJIL, Supp.. 99.

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favour the view that extradition may be refused when the offence has become time-

barred under the law of either the requesting or the requested State.39

(c) Rule of specialty

The principle of specialty, according to which extradition is granted only on the

condition that the person extradited will not be tried or sentenced for any offence other

than that for which extradition is granted, is incorporated in many national extradition

statutes40 and treaties.41 This rule finds a place in section 31 (c) of the present Act, and

runs as follows:

" A fugitive criminal shall not be surrendered or returned to a foreign State or

Commonwealth country, unless provision is made by the law of the foreign State or

Commonwealth country or in the extradition treaty with the foreign State or

extradition arrangement with the Commonwealth country, that the fugitive criminal

shall not, until he has been restored or has had an opportunity of returning to India, be

detained or tried in that State or country for any offence committed prior to his

surrender or return, other than the extradition offence proved by the facts on which his

surrender or return is based."

(d) Non bis in idem

" The rule non bis in idem is a rule of general application, which opposes itself to all

practices, both municipal and international, which would subject a person to repeated

harassment for the same act or acts."42 So under this rule, which provides against double

jeopardy for the same act, extradition may be refused if the offender has already been

tried and discharged or punished, or is still under trial in the requested State, for the

offence for which extradition is demanded. The present Extradition Act does not make a

39 Kranco-German Treaty of Nov. 9, 1951; Draft Art. 7 of the Convention on “Extradition” by the Consultative Assembly of the Council of Europe. 1954; the Inter-American Draft Convention of 1956; the draft Art. 10 on "Extradition" by the Asian-African Legal Consultative Committee, Third Session. 1960. 40 (1935) 29 AJIL, Supp., 214, note 1. 41 Art. 8 of the Treaty of Extradition between Government of India and the Government of Nepal (Oct. 1953) states: "A person surrendered shall in no case be detained or tried in the territory of the Government to which the surrender has been made for any other crime or on account of any matter other than those for which extradition has taken place until he has been restored, or had an opportunity of returning, to the territory of the Government from which he was surrendered." 42 (1935) 29 AJIL, Supp., 145.

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specific mention of it, but the rule is incorporated in the Criminal Procedure Code,

Section 403. It is also worth mentioning that such a provision appears in the Extradition

Treaty between India and Nepal entered into during October 1953.43

These are the four most important restrictions on extradition that are generally

found in statutes and treaties, and three of them have been incorporated in the present Act

as discussed above. But the Act goes a step further and empowers the Central

Government to discharge a fugitive criminal if it appears (to the Central Government)

that, by reason of the trivial nature of the case, or by reason of the application for the

surrender or return of a fugitive criminal not being made in good faith, or in the interests

of justice, or for political reasons or otherwise, it is unjust or inexpedient to surrender or

return the fugitive criminal.44 This provision is somewhat similar to Section 10 (as well

as section 19) of the Fugitive Offenders Act, 1881, with an important change, namely

that, while that Act empowers a superior court to discharge the fugitive, the present Act

vests the power in the Central Government. But even under the Fugitive Offenders Act,

the ultimate authority to extradite rests in the Secretary of State.”45 The power reserved

by the Central Government under section 29 of the present Act is far greater than the one

given to the Secretary of State under the Fugitive Offenders Act, so much so that the

Central Government may even order the stay of any proceedings under this Act or direct

any warrant issued or endorsed under this Act to be cancelled.

(e) Extradition of Indian nationals

There is a significant omission in the Act. This is with regard to Indian nationals.

The precise question is whether India should extradite its nationals on a charge of having

committed an extraditable offence in a foreign State, or whether they should be tried in

India itself. The Act does not throw any light on the matter.

43 Art 6. "Extradition shall not take place if the person whose extradition is claimed by one of the Governments has already been tried and discharged or punished or is still under trial in the territory of the other government for the crime for which extradition is demanded." 44 Sec. 29. 45 Sec. 6, ". . . if the fugitive is so committed in the United Kingdom, a Secretary of State . . . may if he thinks it just . . . order that fugitive he returned to . . . Her Majesty's dominions.

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The majority of the States decline to extradite their own nationals, and many of

them46 have expressly provided in their municipal legislation for the principle of non-

extradition of their nationals. Refusal to surrender a national of the extraditing country

appears to rest on no other intelligible basis than the unwillingness of that country to

expose its nationals to a trial in a foreign court.47 Such States punish the offenders

according to the laws in force for crimes committed abroad. But “The municipal statutes

of Great Britain, of other members of the British Commonwealth of Nations and of States

under British mandate or guidance . . . contain no provisions as to non-extraditability of

nationals and so permit their extradition.”48 It is, therefore, implied in the present

Extradition Act, in line with the existing practice, that India adheres to the principle of

extraditing its own nationals. The memorandum on “Extradition” submitted by the

Government of India to the Asian-African Legal Consultative Committee at its Third

Session (Colombo, 1960), leaves no doubt on this matter.49

Professor Brierly's Report to the Committee of Experts for the Progressive Codification

of International Law, quoted in the Harvard Research,50 throws some useful light on this

point. An analysis of the extradition treaties of India indicates that in many cases it is not

46 Austria and Hungary, Costa Rica, Czechoslovakia, France, Estonia, Latvia, Lithuania, Haiti, Liechtenstein, Norway, Panama, Peru, Switzerland, Turkey and Uruguay." See (1935) 29 American Journal of International Law, Supp., 125, note 2. 47 On this point F. H. in “Some Problems of the Law of Extradition” (1959) 109 L.J. 198, observes,” The refusal of States to extradite their own nationals is d u e . . . at least historically ... to a rooted suspicion that foreign countries cannot be trusted to administer justice fairly." 48 (1935) 29 American Journal of International Law, Supp., 125. 49 “It is, however, not easy to justify on principle the policy of refusing to extradite nationals. The theory that a State should try its own nationals for crimes wherever committed" fails as a suggestion for two reasons: (a) because in many cases it is impracticable to try a crime committed in another country on account of the impossibility of securing the relevant evidence and (b) because the argument cannot have any application to a national who has escaped to his own country after conviction in a foreign country since on general principles of justice such a person may not be tried again for the same offence. It has been suggested that if a national is alleged to have committed an offence abroad and returns home then it is only fair that he would be tried in his own home country according to the laws and procedure with which he is familiar. It has been said that if a foreign national commits an offence in another State and then leaves that State for his own home State, that State may well be rid of him and the necessity of punishing that offender may not appear to be so great as that of a national of a State. It has also been said that in many countries notions of administration of criminal justice differ widely and he may not receive a fair trial. These considerations, however, do not seem to be sufficient justification for refusal to extradite a State's own national since a person who commits an offence in another State must be expected to take consequences like all other persons in that State according to the laws in force there." See pp. 165-166 of the report. 50 (1936) 29 American Journal of International Law, Supp., 135.

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bound to surrender its own nationals.51 In a few treaties, with Luxembourg, Spain and

Switzerland, India is bound to surrender its nationals while the other party is not.52 The

Treaty of Extradition between India and Nepal (1953) provides that only nationals of the

requesting State may be extradited.

On an overall analysis it is clear that the main principles incorporated in the (Indian)

Extradition Act, 1962, are not dissimilar to those usually adopted in extradition

legislation. It can be said without exaggeration that the 1962 Act has not only repealed

but also cured many of the defects of the previous legislation and decrees in this field.

There is a remarkable change in this Act from the old practice that existed in most

Commonwealth countries, including India. Under the Fugitive Offenders Act, 1881,

which regulated the return of a fugitive from justice inter se the Commonwealth

countries, the safeguards that are generally provided in an Extradition Act (such as are

mentioned in Section 31 of the present Act, e.g., the principle of non-extradition of

political offenders, the rules of specialty and lapse of time, etc.) were not included. But

Section 32 of the 1962 Act specifically mentions that those safeguards will be equally

available to an offender, whether he is from a foreign State or Commonwealth country,

in these words:

“Notwithstanding anything to the contrary contained in Section 3 or Section 12,

the provisions of Sections 29 and 31 shall apply without any modification to every

foreign State or Commonwealth country.”

This is only in line with the judicial observations as well as academic opinion.53

51 A. Palaniswami, “The Law of Extradition in India” (1954) III Indian Year Book of International Affairs 336, gives a list of such countries: " (i) A provision that neither of the contracting parties may surrender its own subjects is contained in treaties with Denmark, France, Germany, Guatemala, Haiti, Italy, Nicaragua, Norway, Portugal, Salvador, Sweden and Uruguay, (ii) Provision that both contracting parties are at liberty to surrender their own subjects at their discretion, is found in treaties with Argentina, Austria, Belgium, Bolivia, Chile, Colombia, Cuba, Liberia, Mexico, Morocco, the Netherlands. Panama, Peru, Roumania and San Marino.” 52 Ibid. 53 Thus in Re Government of India and Mubarak Ali Ahmed [1952] 1 All E.R. 1060, Lord G-oddard C.J. observed at 1063: "I am quite sure that in a proper case the court would apply the same rules with regard to applications under the Fugitive Offenders Act, 1881, as it does under s. 8 (1) of the Extradition Act, 1870. If it appeared that the offence with which the prisoner was charged was in effect a political offence, no doubt this court would refuse to return him." The observation made in the Fugitive Offenders Act" [1962]

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3.3.3 Procedure regarding Extradition of Fugitive Criminals

The procedure regarding extradition of a fugitive criminal to the requesting State

has been dealt with in Chapters II and III of the Act. Chapter II deals with “Extradition of

fugitive criminals to foreign States and to Commonwealth countries to which Chapter III

does not apply,” and Chapter III deals with “return of fugitive criminals to

Commonwealth countries with extradition arrangements.”

Procedure under Chapter II

When a requisition is made to the Central Government under Chapter II by a

foreign State or a Commonwealth country, for the surrender of a fugitive criminal, the

Central Government may, if it thinks fit, issue an order to any magistrate (who would

have had jurisdiction to inquire into the offence if it had been an offence committed

within the local limits of his jurisdiction) directing him to inquire into the case. The

magistrate then shall issue a warrant for the arrest of the fugitive criminal and when the

latter appears before him, the magistrate shall, as required under section 7 of the Act,

inquire into the case in the same manner and shall have the same jurisdiction and powers,

as nearly as may be, as if the case were one triable by a court of session or High Court.

He shall take such evidence as may be produced in support of the requisition by the

foreign State or Commonwealth country and also on behalf of the offender, including

any evidence to show that the offence of which the fugitive criminal is accused or has

been convicted is an offence of political character, or is not an extradition offence.

Crim.L.R. 350 is to the same effect: The Act seems to call for review. The powers of the courts under the Act are those suitable to a time before Her Majesty's dominions " included independent States and even republics having the special double-sided relationship with this country characteristic of the modern Commonwealth. Accordingly, the fact that the offence alleged against a fugitive is a political one is not in itself (as it is under the Extradition Act, 1870) ground for refusing to return; nor does that fact in itself render his return unjust or oppressive. The courts cannot, therefore, operate the Act in a manner fully consistent with modern political realities. The responsibility passes to the Home Secretary with unhappy results. This position has also been supported by: (1) Paul O'Higgins in "Extradition within the Commonwealth" (1960) 9 I.C.L.Q. 491, and (2) Robert E. Clute in Law and Practice in Commonwealth Extradition " 8 A.J.Comp. Law 27-28. It is, however, to be noted that the House of Lords, in Zacharia v. Republic of Cyprus and another [1962] 2 All E.R. 438, dissented from the dictum of Lord Goddard in Mubarak Ali's case, and felt that political offences could not be covered under the Fugitive Offenders Act, 1881 (as per Viscount Simonds at 444, Lord Radcliffe at 446-447, Lord Hodson at 456, and Lord Devlin at 460-461).

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On taking the evidence, if the magistrate is of the opinion that a prima facie case

is not made out in support of the requisition, he shall discharge the fugitive criminal. On

the other hand, if a prima facie case is made out in support of the requisition, he shall

report the result of his inquiry to the Central Government and shall forward, together

with such report, any written statement which the offender may desire to submit for the

consideration of the Central Government. In the meantime, the magistrate may commit

the fugitive criminal to prison to await the orders of the Central Government. If, upon

receipt of the report and the statement of the fugitive, the Central Government is of the

opinion that the fugitive criminal ought to be surrendered to the foreign State or

Commonwealth country, it will arrange the same.

Procedure under Chapter III

When a warrant issued for the apprehension of a fugitive criminal in a

Commonwealth country to which this Chapter applies is received by the Government of

India, it may indorse such a warrant, if satisfied that the warrant was issued by a person

having lawful authority to issue the same. This indorsed warrant shall be sufficient

authority to apprehend the person named in the warrant and to bring him before any

magistrate in India.

If, when the fugitive offender is placed before him, the magistrate is satisfied on

inquiry that the indorsed warrant for the apprehension of the fugitive criminal is duly

authenticated and that the offence of which the person is accused or has been convicted

is an extradition offence, he shall commit the offender to prison to await his return and

shall send a certificate of the committal to the Central Government.

On the other hand, if he is not satisfied as to either of these questions, he may

detain the person in custody or release him on bail, pending the receipt of the orders of

the Central Government. In both cases the magistrate shall report the result of his inquiry

to the Central Government and forward together with such report any written statement

which the fugitive criminal may desire to submit for the consideration of the

Government. The matter will then rest with the Central Government.

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Differences in procedures under Chapters II and III

Thus it is apparent that the return of a fugitive offender under Chapter II is more

analogous to normal extradition procedure under the Law of Nations and is similar to

that laid down in the Extradition Act, 1870 (sections 9 and 10), and the Indian

Extradition Act, 1908 (section 3). The procedure adopted by Chapter III is, in spirit, the

same as provided by the Fugitive Offenders Act, 1881 (Sections 13 and 14).

Prima facie case: One of the main differences lies in the matter of proof of guilt. Under

Chapter II, the Magistrate may expend considerable effort on proof of guilt before a

fugitive offender is returned: he has to be satisfied by evidence that there is a prima facie

case54 against the offender; but the return of a fugitive criminal under Chapter III is

extremely informal with little concern as to proof of guilt, the need for such evidence

having been dispensed with: all that is required is the satisfaction of the magistrate about

the authenticity of the indorsed warrant and as to the offence charged being an

extradition offence. So there is a substantial and material difference in the procedures of

surrendering a fugitive criminal prescribed by the two chapters of the Act. The important

question is whether this difference in procedure in extraditing a fugitive offender to two

different countries, one falling under Chapter II and the other under Chapter III, is

justified or reasonable in view of Article 14 of the Indian Constitution,55 which

guarantees equal protection of laws within the territory of India.

The validity of an extradition procedure that dispenses with the necessity of

proving a prima facie case against the offender cannot be assailed on that basis alone, for

the demand of prima facie evidence of guilt is based primarily on reciprocity, and

eventually on the municipal law of the extraditing country; in a number of bilateral

treaties States have expressly done away with the requirement of establishing a prima

facie case of guilt prior to extradition. Article 14 of the Indian Constitution, therefore,

seems to be infringed only on the ground that, while the extradition procedure applicable

54 A prima facie case "means at first blush or at first sight, a complete case against the accused ... in order to prove a prima facie case, there must be evidence direct or circumstantial on each element." 55 The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

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to a fugitive from countries falling under Chapter II demands such evidence, it is not

necessary for a fugitive from a country falling under Chapter III.

It is well known that under Article 14 reasonable classification is permissible

provided that it is based upon some real and substantial distinction bearing a reasonable

and just relation to the object sought to be attained; the classification cannot be made

arbitrarily and without any substantial basis.56 In the present Act, the basis for the

classification (providing different procedures in Chapters II and III) appears to be "

reciprocity " and " geographical nearness.”57

That geographical nearness cannot be a basis for reasonable classification was

very ably stressed by Rajagopalan J. in C. G. Menon's case.58 The question whether

reciprocity can satisfy the test of " reasonableness " of the classification was left open by

the Madras High Court in the above case,59 which dealt with the Fugitive Offenders Act,

1881. But even if it can be argued that reciprocity can be a basis for reasonable

classification under Article 14, the position will certainly not be free from doubt and the

author would agree with Rajagopalan J. that it would be difficult.

“To hold that the discharge of the duty India owes to herself and the other States in the

committee of nations to provide for the extradition or the surrender of the fugitive

offender can be any the less effective if prima facie proof of the guilt of the offender is

56 Fazl Ali J. in The State of Bombay v. F. N. Balsara, A.I.R. 1951 S.C. 318. 57 Introducing the Extradition Bill in Lok Sabha on August 17, 1961, the Hon. Law Minister observed, " It was felt absolutely necessary that we must amend the law relating to extradition at least to enable our Government to get the criminals who have gone over to Commonwealth countries, especially Pakistan and neighbouring countries." 58 A.I.R. 1953 Mad. 729 at p. 736. " The need for offering evidence to show that prima facie the offender is guilty of the crimes with which he has been charged by the country asking for his extradition has been well recognised. Though it may not be an integral part of the law of extradition of every State in relation to every other State, it is certainly a normal feature, and one can say, almost a universal feature of extradition laws. To dispense with such a need, there must, in my opinion, be some basis better than geographical contiguity alone, if the test of equal protection of the laws within the territory of India specifically provided by Art. 14 of the Constitution is to apply." 59 Ibid, at 735 " Whether reciprocity can satisfy the test of reasonableness of the classification that underlay Parts I and II of the Fugitive Offenders Act, does not arise for consideration. As I see it. reciprocity was the result of the classification not the basis for it."

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asked for in all cases of demands for the surrender of a fugitive offender whichever be

the country that prefers that demand.”60

If an Indian national, after committing an extraditable offence, escapes to India

from a Commonwealth country with which India has extradition arrangements (falling

under Chapter III), one procedure has to be followed, whereas if he flees from a foreign

State or Commonwealth country with which there is no such arrangement (i.e., under

Chapter II) a different procedure has to be followed. Since India has become a sovereign

democratic republic whose citizens similarly situated are entitled to similar treatment

there does not seem to be any justifiable basis for distinction. Any Indian citizen whose

extradition is sought under Chapter III may legitimately ask the question as to why a less

advantageous procedure should be adopted against him, while another individual

similarly situated should have a more favourable procedure.

Another difference in the procedures laid down in Chapters II and III concerns the

political character of an offence. As already discussed, the principle of non-extradition of

political offenders (Section 31 (a)) has been incorporated in the Act. Section 32 of the

Act makes it quite clear that relief on this ground will be available to all offenders alike,

whether from a foreign State or a Commonwealth country. But under Chapter II (section

7 (2) ), the Magistrate shall take . . . any evidence to show that the offence of which the

fugitive criminal is accused or has been convicted is an offence of political character . . .,

while under Chapter III (Section 17) the duty of the Magistrate is only to hold an inquiry

to decide whether the indorsed warrant is duly authenticated and the offence of which the

person is accused or has been convicted is an extradition offence. Of course, both the

procedures permit an offender to submit a written statement for the consideration of the

Government. Thus it may be said that, while an offender falling under Chapter II has an

opportunity to satisfy the judiciary or the executive regarding the political nature of his

crime, one falling under Chapter III will have to look for such relief mainly to the

executive.

60 Ibid, at 736.

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3.3.4 Miscellaneous Provisions:

Chapter V of the Act deals with miscellaneous provisions. The more important

provisions only will be discussed here.

Jurisdiction

In view of the importance air travel is now attaining in everyday life, the

jurisdiction of this Act has been extended to offences committed not only on board any

vessel on the high seas, but also on any aircraft while in the air outside India which

comes into any aerodrome in India.61

3.3.5 Part 4 (1993 onwards)

The Indian Extradition Act, 1962 was substantially modified in 1993. But for the

matters pending before, the original unamended Indian Extradition Act, 1962 will apply.

The original Act of 1962 was amended by Act 66 of 1993.

The following are the basic changes that stimulated in bringing up the Amendment to

Indian Extradition Act, 1962.

Earlier Extradition Act, 1962 dealt separately with extradition to commonwealth

countries. However, such distinction did not hold good in view of the change of time and

rapid developments in Extradition law at international level. Commonwealth countries

are concluding Extradition treaties among themselves. India also has concluded separate

extradition treaties with Canada and UK. Moreover, civil law countries have specific

requirements for purpose of extradition with them. In addition, terrorism and drug

trafficking, the two most heinous crimes affecting innocent lives, have thrown challenges

necessitating changes in the extradition law to effectively deal with these new crimes.

Many international crimes dealing with these new crimes have laid specific obligation on

state parties to extradite or prosecute a fugitive offender. India is a party to many of these

international conventions. .

61 Sec. 23 : " Where the offence in respect of which the surrender or return of a fugitive criminal is sought was committed on board any vessel on the high seas or any aircraft while in the air outside India or the Indian territorial waters which comes into any port or aerodrome of India, the Central Government and any magistrate having jurisdiction in 6uch port or aerodrome may exercise the powers conferred by this Act."

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The purpose of the 1992 Amendment Bill is to amend the Extradition Act, 1962, to

suitably incorporate in it the above noted changes and to achieve, inter alia, the following

objectives:

a. to enable India to conclude Extradition treaties with foreign States

including the Commonwealth countries without treating them structurally

different;

b. to provide for extra-territorial jurisdiction over foreigners for crimes

committed by them outside India;

c. to incorporate composite offences in the definition of Extradition offence;

d. to exclude political offence as a defence in cases of offences of a serious

nature;

e. to cover Extradition requests on the basis of International Conventions

within the scope of the Act;

f. to enable Central Government to make and receive requests for

provisional arrest of fugitives in urgent cases pending the receipt of the

formal Extradition request;

g. to enable the Central Government to give assurance pursuant to a treaty

obligation to the requested State for the non-execution of death penalty.

3.4 DETAILED DISCUSSION OF THE 1993 AMENDMENT;

1. Primarily the amendment has done away with the distinction earlier maintained

between Commonwealth countries and other countries. Under the previous Act,

extradition with Commonwealth countries were separately governed by the Second

Schedule of the Act and the Central Government was given power under Chapter III

to conclude special extradition arrangements with respect to Commonwealth

countries only. However, such distinction does not hold good in view of the change of

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time and rapid developments in Extradition law at international level. Commonwealth

countries are concluding Extradition treaties among themselves. India has concluded

separate extradition treaties with Canada and UK. Moreover, civil law countries have

specific requirements for purpose of extradition with them. In addition, terrorism and

drug trafficking, the two most heinous crimes affecting innocent lives, have thrown

challenges necessitating changes in the extradition law to effectively deal with these

new crimes. Many international crimes dealing with these new crimes have laid

specific obligation on state parties to extradite or prosecute a fugitive offender. India

is a party to many of these international conventions. The amended Act of 1993

enables India to conclude extradition treaty with foreign States, including the

Commonwealth countries, without treating them structurally different. As the law

stands today the only difference that is maintained is the difference between treaty

states and other foreign states.

2. In Section 2 of the Extradition Act, 1962 (referred to as the Principal Act) which

deals with definitions the following changes are made. The changes brought to

important definitions like extradition offence, fugitive criminal etc in this section

primarily reflect the abolition of distinction between extradition to commonwealth

countries and other foreign states and maintenance of distinction between treaty states

and other than treaty states.

a. In the Principal Act, 1962 clause (a) of Section 2 defined ‘Commonwealth

country’. This clause has been removed and substituted by the new clause

(a) which added a new term “Composite offence” to the list of definitions.

‘Composite offence’ is defined as to mean act or conduct of a person

occurred, wholly or a part in a foreign country or in India but its effects or

indented effects taken as a whole constitute extraditable offence in India

or in the requesting state. The advantage of this inclusion is that in cases

where the concerned office is partly committed in the requesting state or in

India and partly conducted in any other state, it is not necessary that the

part which is committed in the requesting state should individually

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constitute an extradition offence if the entire transaction or intention of

the taken as a whole constitutes the extraditable offence.

b. The Amendment Act defines ‘extradition offence’ to imply

(i) in relation to a foreign state being a treaty state; an offence

provided for in extradition treaty with that state

(ii) in relation to a foreign state other than a treaty state an offence

punishable with at least a minimum one year term of imprisonment

including the offence of composite offence.

The new definition of ‘extradition offence’ omitted the earlier maintained

distinction between foreign state and commonwealth state. While the

position remains the same in both the Principal Act and the Amendment

Act with regard to treaty states in that the ‘extradition offence’ is whatever

that has been agreed upon in the Treaty, the position has changed so far as

Commonwealth countries and non treaty state are concerned. The

Principal Act contained Second Schedule which listed out some offences

as extraditable offences. This Schedule comes into operation with

reference to Common wealth countries and other foreign states with which

India has no treaty or agreement. Now, by virtue of the new definition, the

Second Schedule lost its place in the Extradition Act as amended because

no longer there is special treatment to Commonwealth countries. Another

change is that the new definition is that, it has left out the enumerative

method (extraditable offences are specifically listed out) in defining

‘extradition offence’ adopted in the Principal Act. According to the new

approach, the term of sentencing (not less than one year) has become the

criterion for considering an offence as extraditable offence.

c. Before the amendment, the ‘Extradition treaty’ meant only a treaty or

agreement made by India with a foreign state. It did not cover extradition

arrangements. But now the Amendment Act defined ‘extradition treaty’ as

treaty (agreement or arrangement) made by India with a foreign state

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relating to extradition of fugitive criminals. Thus the amendment included

even the extradition arrangements within the purview of ‘extradition

treaty’. It further includes within the ambit of ‘extradition treaty’ even

those treaties/agreements or arrangements made before 14th August, 1947.

d. Fugitive criminal is defined to mean a person who is accused or convicted

of an extradition offence within the jurisdiction of a foreign state relating

to the extradition of fugitive criminals, and includes a person who, while

in India, conspires, attempts to commit or incites or participates as an

accomplice in the commission of extradition offence in a foreign state.

The previous definition of ‘fugitive criminal’ as an individual who is

accused or convicted of an extradition offence committed within the

jurisdiction of a Commonwealth country….” is expanded to include a

person who, while in India, conspires, attempts to commit or incites or

participates as an accomplice in the commission of an extradition offence

in a foreign state. Corresponding changes have been made to S 26 of the

Principal Act which earlier brought even abetment of extradition offence

within the purview of Extradition Act. With the corresponding change S

26 is expanded to cover conspiracy, incitement etc

3. With regard to the applicability of the Extradition Act, an important addition that

has been made is sub clause (4) according to which where there is an extradition

treaty made by foreign state, the Central Government may, by notified order, treat

any convention to which India and a foreign state are parties, as an extradition

treaty made by India with that foreign state providing for extradition in respect of

the offences specified in that Convention. Thus the amendment Act pays special

attention to the situation where extradition requests are made by other countries

on the basis of international convention to which the requesting state and India are

parties. In such situation the amendment facilitates granting of extradition in

respect offences prohibited under that particular convention even if there be no

extradition treaty between India and those other state parties. Eg SAARC

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Convention on Preventing and Combating Trafficking of Women and Children

for Prostitution, 2002. Under Chapter VII of that Convention the offence of

human trafficking of women and children prohibited by the Convention has to

be regarded as extraditable offences in an extradition treaty which has been or

may hereinafter be concluded, between any of the Parties to the Convention. It

further provides that If a State Party which makes extradition conditional on the

existence of a treaty, receives a request for extradition from another State Party

with which it has no extradition treaty, the Requested State shall, if so permitted

by its laws, consider this Convention as the basis for extradition in respect of the

offences set forth in the Convention. India is a party to the Convention and has

passed a legislation to fulfill its commitment. Another example is SAARC

regional Convention on Suppression of Terrorism, 1987 which contains similar

provisions. So, Section 3(4) caters to the expectations of such treaties.

So, before 1993 amendment, the Act governed three kinds of foreign states. First,

the foreign state with which India has extradition treaty. Second, the Commonwealth

state and Third, the state with which India has no treaty. Now after the amendment, the

Act governs, First, those states with which India has an extradition treaty. Second, those

states with which India has extradition arrangements. Third, those states with whom India

has no extradition treaty but nevertheless deemed to be having extradition treaty with

them because the concerned request is made for extradition with reference to an offence

specified in the Convention to which India as well as the requesting states are signatories

4. Section 21 places restrictions on the trial of the person extradited from foreign

state to India. It operates as a bar to the trial by India of the returned or

surrendered criminal for any offence other than the extradition offence ( Rule of

Specialty), or any lesser offence disclosed by the facts for the purposed of

securing his surrender or return other than an offence in relation to which an order

for his surrender or return could not be lawfully made or the offence in respect of

which the foreign state has given its consent unless and until such surrendered or

returned person has been restored or has had an opportunity of returning to that

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state which has conceded the extradition request of India. S 21 of the principal

Act underwent a major change through the amendment. According to the S 21 of

the Principal Act- ‘’ whenever any person accused or convicted of an offence,

which, if committed in India would be an extradition offence, is surrendered or

returned by a foreign state or Commonwealth country, that person shall not until

he has been restored or has an opportunity of returning to that state or country be

tried in India for an offence committed prior to the surrender or return, other than

the extradition offence proved by the facts on which the surrender or return is

based.”

The amended version of Section 21 goes like this --“Whenever any person

accused or convicted of an offence, which, if committed in India would be an

extradition offence, is surrendered or returned by a foreign State, such person

shall not, until he has been restored or has had an opportunity of returning to that

State, be tried in India for an offence other than-- (a) the extradition offence in

relation to which he was surrendered or returned; or (b) any lesser offence

disclosed by the facts proved for the purposes of securing his surrender or return

other than an offence in relation to which an order for his surrender or return

could not be lawfully made; or (c) the offence in respect of which the foreign

State has given its consent”, So, after the amendment, a fugitive could be tried for

any lesser offence without restoring him to the state or for any other offence, if

the surrendering state consents to it.

5. Section 31 of Extradition Act, 1962 provides restrictions on surrender of fugitive

criminal. They are offences of political character; offences of which trial or

prosecution is barred by limitation under the law of either state; the situation

where the fugitive criminal is already undergoing prosecution in India or is

undergoing any trial; then only after the trial or sentence period or discharged

otherwise is over and; only after expiry of fifteen days from the time the fugitive

is committed to the prison by the Magistrate.

As mentioned already, the Amendment Act, 1993 excludes political offence as a

defence in cases of offences of a serious nature. To facilitate the determination of

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an offence as an offence of political character a schedule has been added to the

Act which contains a list of (serious/ offences which are not to be regarded as

offences of political character.

By virtue of 1993 amendment clause (c) of Section 31 of Principal Act

has been modified to restrict the requesting state not to surrender or return the

fugitive in the absence of a provision in the law of the foreign state or in the

extradition treaty that the fugitive criminal will not be tried for an offence other

than for which he is surrendered or any lesser offence disclosed by the facts

proved for the purpose of securing his surrender or return other than an offence in

relation to which an order for his surrender or return could not be lawfully made

or the offence in respect of which the Central Government has given its consent.

6. The Amendment act provides for extra-territorial jurisdiction over foreigners for

crimes committed by them outside India. Thus, Section 34 maintains that an

extradition offence committed by any person in a foreign state shall be deemed to

have been committed in India. When a fugitive criminal cannot be surrendered or

returned to the requesting foreign state, India can take steps to prosecute the

fugitive criminal in India. 62 The amendment Act also enables the Central

Government to make and receive requests for provisional arrest of fugitives in

urgent cases pending the receipt of the formal extradition request.63 The purpose

of the provisional arrest is to wait for request for extradition.

7. A new provision which had no place in the Principal Act but which got

accommodated in the new amendment is Section 34C which provides that where a

fugitive criminal who has committed an extradition offence which is punishable

with death penalty in India, is surrendered or returned to India by a foreign state

whose laws do not provide for a death penalty for such an offence, such fugitive

criminal by virtue of this provision should be liable to undergo only life

62 Section 34 A of Indian Extradition Act, 1962. 63 Sec.34B. However, the fugitive criminal must be discharged after expiry of 60 days from the date of his arrest if no request for his surrender or return has been made,

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imprisonment but not death penalty. This provision obviously takes into account

the objections of some countries against the retention of death penalty in India.

This provision will not bar the imposition of death penalty where the laws of

requested country do not bar death penalty for such offence.

8. The Procedural Requisites as altered by the new amendments can be summarized

as follows:

(a) In case of extradition of Fugitive Criminals to foreign states with

extradition arrangements: Procedural requirements are provided in

Chapter III.64 Obviously Chapter III governs only those foreign states

which have extradition arrangements with India. With regard to those

other foreign states which lack such arrangements, Chapter II65 comes into

operation. With regard to the foreign countries without extradition

arrangements to whom chapter III does not apply, the following procedure

applies.

To begin with the concerned foreign state seeking extradition makes requisition for

surrender of the fugitive criminal to the Central Government.66 The requisition may be

made to the Central Government--

a) by a diplomatic representative of the foreign state at Delhi

b) by the Government of that foreign state communicating with the Central

Government through its diplomatic representative in that state and if neither of

these modes is convenient, the question shall be in such other mode as is settled

by arrangement made by the Government of foreign state a the Government of

India.

Where such requisition is made the Central Government may at its discretion issue an

order to the concerned Magistrate67 who shall issue warrant for his arrest.68

64 Sections 12-18 of Indian Extradition Act, 1962 (Amendment Act 1993) 65 Secs 4-10. 66 Sec.4 67 Sec.5 68 Sec.6

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The concerned Magistrate would enquire into the case according to the prescribed

procedure.69 At the end of the inquiry if no prima-facie case for extradition is made out in

the opinion of Magistrate the fugitive criminal would be discharged.70 If prima-facie case

is made out in support of requisition for extradition, the fugitive criminal can be

committed to prison till the passing of orders of Central Government about the

extradition based upon the request set by the Magistrate. When Central Government

decides to surrender the fugitive criminal, it may issue a warrant for the custody.71

b) In case of return of Fugitive criminal to foreign states with extradition arrangements:-

Chapter II will come into operation. In case of a fugitive criminal of any foreign state

which is having extradition arrangements with India when found in India, such fugitive

criminal shall be liable to be apprehended and returned to the concerned foreign state in

the manner prescribed under chapter III.72 The Fugitive criminals may be apprehended in

India either under endorsed warrant73 or a provisional warrant74 Provisional warrant can

be issued by any Magistrate in the case when the alleged crime has been committed or

conviction is made within his jurisdiction and the fugitive criminal is in India or is

suspected to be in or on his way to India.75

On such a warrant the fugitive can be remanded not exceeding seven days. The

issue of provisional warrant has to be informed to Central Government and if it deems fit

the fugitive criminal can be discharged by the Central Government. So far as endorsed

warrant is concerned it is the warrant issued by the foreign state and has been duly

endorsed by the Central Government. Such endorsed warrant is a sufficient authority to

apprehend the fugitive criminal and place him before any Magistrate in India.76 Once the

fugitive criminal has been apprehended the Magistrate after due enquiry can commit him

to prison to await his return. In case the Magistrate is not satisfied about the authority of

endorsed warrant or the extraditability of the offence, the Magistrate may release the 69 Sec.7 70 Sec.7(3) 71 Section.8. 72 Sec.13 73 Sec.14 74 Sec.15 75 Sec.16 76 Sec.15

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fugitive criminal on bail or detain him in custody pending the receipt of orders from the

Central Government. The result of the inquiry must be reported by the Magistrate to the

Government and along with such report written statements if any of the fugitive criminal

also must be sent.77 After the fugitive criminal is committed to prison, Central

Government may issue warrant for his custody and removal to foreign state and for his

delivering, at a place and to a person specified is the warrant.

c) In situations where India seeks extradition of the accused or convicted persons from

foreign state: Chapter IV comes into operation. In this case, the process would be

initiated by the Central Government by making requisition either to a diplomatic

representative of the concerned foreign state at Delhi or to the Government of that state

through the Indian diplomatic representative.78 Section 21 provides the restrictions

applicable to the trial of the fugitive criminals when surrendered or returned by foreign

states to India to be tried. According to this Section unless the concerned criminal is

restored or given a reasonable opportunity to return to his country he cannot be tried for

an offence other than the one for which he was surrendered or returned or; even any

lesser offence other than the one in relation to which his surrender or return could not

have been lawfully made or; an offence in respect of which the foreign state has given its

consent.

3.5 SUMMARY:

The evolution of Indian Law of extradition spanning over four distinct stages

from 1903-1993 reflect not only the accommodation of changes in the political status of

the country but also the international needs and the changing perceptions about institution

of extradition.

77 Sec.17 78 Sec.19