EXTRADITION ACT, 1962

JURISPRUDENCE II

EXTRADITION ACT, 1962

AN ANALYSIS

M.TEJASWI, 201132

TABLE OF CONTENTSCONTENTSPAGE NO.

INTRODUCTION3

POSITION IN INDIA4

EVOLUTION OF THE ACT5

SCHEME OF THE ACT6

CONCEPTS OF JURISPRUDENCE AND EXTRADITION ACT7

1993 AMENDMENT11

CRITICISM12

CONCLUSION14

TABLE OF CASES15

TABLE OF STATUTES15

ABBREVIATIONS15

BIBLIOGRAPHY15

INTRODUCTIONExtradition may be briefly described as the surrender of an alleged or convicted criminal by one State to another. More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State[footnoteRef:2]. [2: Interpol Guide-Extradition http://cbi.nic.in assessed on 1ST March 2014]

The purpose of extradition is to bring the individual within the requesting countrys boundaries in order to make a determination of guilt or innocence, or to impose punishment.[footnoteRef:3] Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished. [3: The United States defined extradition to be"the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory and within the territorial jurisdiction of the other which, being competent to try and punish him, demands the surrender." 18 U.S.C.A. 3181 (1988).]

Traditionally, extradition law is based on treaties. Two states typically agree in a bilateral treaty to surrender to each other fugitives charged with any offences considered extraditable under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses its requests to the government of the state where the fugitive is present (the requested state), and the government invariably acts upon these requests. Domestic extradition statutes occasionally supplement substantive treaty law, but in general they merely specify extradition procedures.[footnoteRef:4] [4: This pattern holds true especially in common law countries. In the United States, for example, the only extradition statute, the Extradition Act of 1848, 18 U.S.C. 3181-3195 (1988), does no more than specify the procedures by which a foreign state must request a fugitive, and by which officials must arrest and surrender the fugitive. An alternative formulation occurs when a state promulgates extradition law in domestic legislation, and then moulds extradition treaties to fit its national law.]

The extradition law that developed from these beginnings assigns a major role to government officers, leaving a very restricted one for courts. The law prevents judges from inquiring into judicial and penal conditions in the requesting country and creates a pattern of judicial deference to government decisions at all levels of the process. It was after early nineteenth centuries that sovereigns began to concentrate on extradition treaties for common crimes because of the development of new, better, and quicker forms of transportation, which allowed criminals greater ability to commit crimes over a larger region.[footnoteRef:5] [5: Perry, G.C. The Four Major Western Approaches To The Political Offense Exception To Extradition: From Inception To Modern Terrorism, 40 Mercer L. Rev. 709]

POSITION IN INDIAIn India the provisions of Indian Extradition Act, 1962, govern the extradition of a fugitive from India to a foreign country or vice-versa. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities.[footnoteRef:6] [6: Supra Note 1]

The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant: Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction. Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.As far as India is concern this issue is always in light because of number of cases, such as Nadeems extradition[footnoteRef:7] for involvement in Gulsan Kumar Murder case & demand of Dawood for involvement in Bombay Bomb Blast of 1992. The most tragic case was that of Rajan Pillai, who was sentenced to jail in Singapore for economic offences. He, however, took refuge in India. The Singaporean government requested his extradition. He would possibly have been sent back to Singapore, but he died under mysterious circumstances while in judicial custody in the Delhi jail. Underworld don and prime accused in the Mumbai blasts Abu Salem, who has been extradited from Portugal along with wife Monica Bedi is also a land mark in this regard. [7: Nadeem Akhtar is a music director who has been linked with Gulshan Kumars murder case by the Mumbai police, http://www.business-standard.com/article/specials/nadeem-preparing-to-fight-extradition-to-india-197090601167_1.html accessed on 1 March 2014.]

EVOLUTION OF EXTRADITION ACTThe 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. The history of Indian Extradition Law falls into four parts; (1) 1903 - 1947 (2) 1947 - 1962 (3) 1962 -1993 (4) 1993 onwards 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, 1963.[footnoteRef:8] The Extradition Act, 1962 consolidated the law relating to the extradition of criminal fugitive from India to foreign states. [8: 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]

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.Three general conditions for extradition have emerged effectively: The Principle of Double Criminality; The existence of an extraditable offence; and the existence of an Extradition Treaty.(B) Certain restrictions on surrender.The following conditions of extradition are usually incorporated in Extradition Acts and Treaties these days: Extradition shall not be granted for political offences; the request for extradition should not be time-barred; the rule of speciality; Non Bis in idem.(C) Procedure regarding extradition of fugitive criminals.(D) Miscellaneous provisionsChapter 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.[footnoteRef:9] [9: Section 23 of the Extradition Act, 1962.]

CONCEPTS OF JURISPRUDENCE AND EXTRADITION ACTIMMUNITYIt is a recognised principle of international law that political offenders should not be extradited.[footnoteRef:10] This principle has been incorporated in section 31 (a) of the 1962 Extradition Act which runs as follows: [10: 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.]

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.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.DISABILITY - IMMUNITYThe (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. The view is that extradition may be refused when the offence has become time- barred under the law of either the requesting or the requested State.[footnoteRef:11] Therefore this shall be a disability to the requesting country in case of such time-barred provision exists in the law of the requested country. [11: 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.]

LIABILITY IMMUNITYSection 31 (c) of the present Act, 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.The principle associated with this is the 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 statutes and treaties.[footnoteRef:12] In other words, the person is liable for only the offence he has committed and shall be extradited only for that offence. In any other case he enjoys immunity and shall not be extradited except for the offence he has proven to commit. [12: 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."]

POWERSection 29 of the Act reads as follows:If it appears to the Central Government that by reason of the trivial nature of the case of by reason of the application for the surrender or return of a fugitive criminal not being made in good faith or in the interest of justice or for political reason or otherwise, it is unjust or inexpedient to surrender or return the fugitive criminal it may, by order, at any time stay any proceedings under this Act and direct any warrant issued or endorsed under this Act to be cancelled and the person for whose arrest the warrant has been issued or endorsed to be discharged.The Act 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.LAW OF PROCEDUREThe 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 IIWhen 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 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. 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 IIIWhen 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.1993 AMENDMENTThe 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.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.CRITICISMThe 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.[footnoteRef:13] 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 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.[footnoteRef:14] [13: (1935) 29 AJIL, Supp., 145.] [14: 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."]

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. The majority of the States decline to extradite their own nationals, and many of them[footnoteRef:15] have expressly provided in their municipal legislation for the principle of non- extradition of their nationals. It is implied in the present Extradition Act, in line with the existing practice, that India adheres to the principle of extraditing its own nationals. An analysis of the extradition treaties of India indicates that in many cases it is not bound to surrender its own nationals.[footnoteRef:16] In a few treaties, with Luxembourg, Spain and Switzerland, India is bound to surrender its nationals while the other party is not. The Treaty of Extradition between India and Nepal (1953) provides that only nationals of the requesting State may be extradited. [15: Austria and Hungary, Costa Rica, Czechoslovakia, France, Estonia, Latvia, Lithuania, Haiti, Liechtenstein, Norway, Panama, Peru, Switzerland, Turkey and Uruguay.] [16: A. Palaniswami, The Law of Extradition in India (1954) III Indian Year Book of International Affairs336.]

CONCLUSIONLaw consists of rules created by the Legislature and applied and developed by the courts. Both the Legislature and the Courts are the organs of the State. State is territorial in nature. Hence laws are said to be territorial in nature.A State finds it difficult to punish a person who has committed a crime elsewhere mainly because of lack of jurisdiction. Such persons are therefore sometimes surrendered to the State where the crime has been committed. Such surrender is known as extradition. According to Oppenheim extradition is the delivery of an accused or a convicted individual to the State where he is accused of a crime or convicted of a crime, by the State on whose territory he happens to be for the time being.[footnoteRef:17] [17: International Law, Vol. I, 9th Edn. (1992), p. 949.]

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.

TABLE OF CASESIn Re C. 0. Menon. A.I.R. 1953 Madras 729, 735.TABLE OF STATUTESIndian Extradition Act, 1962Extradition Act, 1848Criminal Procedure Code, 1973Kranco-German Treaty 1951Convention On Extradition By The Consultative Assembly Of The Council Of Europe, 1954 The Inter-American Draft Convention Of 1956"Extradition" By The Asian-African Legal Consultative Committee, Third Session, 1960.Treaty Of Extradition Between Government Of India And The Government Of Nepal, 1953ABBREVIATIONSICPO International Criminal Police OrganisationCr.P.C Criminal Procedure CodeAJIL American Journal of International LawSupp - SupplementVol. - VolumeEdn. - EditionBIBLIOGRAPHYBOOKS REFERREDPerry, G.C. The Four Major Western Approaches To The Political Offense Exception To Extradition: From Inception To Modern TerrorismA.Palaniswami, The Law of Extradition in India (1954) III Indian Year Book of International AffairsInternational Law, Vol. I, 9th Edn. (1992).WEBSITEShttp://cbi.nic.inhttp://www.business-standard.com/article/specials/nadeem-preparing-to-fight-extradition-to-india-197090601167_1.htmlPage | 2

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