LAW OF EXTRADITION BETWEEN

INDIA- USA

By Vijay Pal Dalmia

Partner

Extradition may be described as the process by which one State upon the request of another surrenders to the latter

any person accused or convicted

for an extradition offence committed either within its jurisdiction or outside its jurisdiction.

THE EXTRADITION ACT, 1962

EXTRADITION TREATY BETWEEN

INDIA AND OTHER COUNTRIES

LAW RELATING TO EXTRADITION IN INDIA

Extradition Treaty means:-A treaty, agreement orarrangement

with a foreign state relating to the extradition of Fugitive criminals

U/s 2 (c) of the Extradition Act, 1962An extradition offence means:-

Offence provided in the extradition treaty with the foreign states.An offence punishable with imprisonment for a term which shall

not be less than one year under Indian Law or of a foreign state.

Composite offence-defined under section 2(a) of the ActAn act or conduct of a person occurredWholly or in part in a foreign state or in IndiaWhose effects or intended effects, taken as a whole

WHAT IS EXTRADITION OFFENCE IN INDIA?

◦ Only fugitive criminals may be extradited.-section 2 (f) of the Extradition Act, 1962

Fugitive criminal means-A person who

is accused or convicted of an extradition offence committed within the jurisdiction of a foreign state and;

A person who, while in India Conspires, attempts to commit IncitesParticipates

as an accomplice in the commission of an extradition offence in a foreign state

WHO MAY BE EXTRADITED?

A requisition for the surrender of a fugitive criminal may be made to the Central Government by-

By a diplomatic representation of the foreign state at Delhi; or

By the Government of that foreign state communicating with the Central Government thorough its diplomatic representative in that state; or

By other modes settled by arrangements between India and other countries

Contd…..

Upon requisition the Central Government may, if it thinks fit, order for an enquiry by a Magistrate.Magistrate for the purpose of Section-5 would mean

a magistrate of the first Class or presidency magistrate-u/s 2 (g) of the Extradition Act, 1962

and who would have the jurisdiction to enquire into the offence if it had been an

offence committed within local limits of his jurisdiction

On receipt of an order u/s 5 of the Extradition Act, 1962 ◦ the Magistrate shall issue

a warrant for arrest of the fugitive criminal

On appearance the Magistrate shall Enquire into the case Take evidence in support of the requisitionTake evidence on behalf of the fugitive criminal including

Evidence that no extradition offence is committed

If a prima facie case is made out in support of the requisition Magistrate may commit the fugitive criminal to prison.shall report the result of enquiry to Central Governmentshall forward the written submission, if any, filed by the fugitive

criminal to the Central Government for consideration.

If a prima facie case is not made out in support of the requisition Magistrate

shall discharge the fugitive criminal

Surrender of fugitive criminal- Upon satisfaction with the prima facie report of the Magistrate

fugitive criminal may be surrendered to the foreign state

In any proceeding against the Fugitive criminalExhibitsDepositions (whether made before fugitive criminal or not)Official certificates of factsJudicial documents

if duly authenticated may be received in evidence before the Magistrate.

What may be deemed to be as duly authenticated documents?Warrant. the depositions or statements or copies thereof the certificate of, or judicial document stating the fact of, a

conviction

Signed or certified under the hand of a judge, magistrate or officer of the State

Or

by the official seal of a minister of the State

In case of arrest or detention of a fugitive criminal under this Act, the provisions of the Code of Criminal Procedure, 1973 relating to bail shall be applicable.

Magistrate shall have the same powers and jurisdiction as a Court of Session under Cr.P.C., 1973.

Option of Anticipatory bail as well as regular bail is available to the accused fugitive criminal.

A fugitive criminal shall not be surrendered or returned if the offence is of political nature (see schedule);

the prosecution of offence is barred by time in the foreign state;

he/she is accused of any offence in India other than the offence for which extradition is sought;

He/she is undergoing sentence under any conviction in India

Until the expiration of 15 days from the date of his being committed to prison by Magistrate.

Upon an urgent request from foreign state The Central Government may request the Magistrate

to issue an immediate provisional warrant for the arrest of fugitive criminal.

Extradition Treaty between the Government of Republic of India and the Government of the United States of America was signed on 25th June, 1997 and the same has been ratified on 21st July, 1999.

The said extradition treaty has also been published in the Indian gazette vide G.S.R 633 (E).

Guidelines for Extradition by Ministry of External Affairs

Extradition Treaties

The following are extradition offence under the Treaty-Offence punishable under laws of U.S and India for a period of more

than 1 year. Conspiracy, attempts, aiding, abetting, counseling or procuring the

commission of or being an accessory of any offence punishable under laws of U.S and India for a period of more than 1 year.

The following shall be considered to as an extradition offence irrespective of the fact that offence: falls in the same category in the Contracting States; or is described by same terminology in Contracting State; or relates to taxation or revenue or one of a purely fiscal in nature in

Contracting State.

Extradition shall not be granted : if the fugitive criminal is sought for political offence; or if the fugitive criminal is acquitted or convicted for an offence for

which extradition is sought; or if the prosecution of offence is barred by lapse of time according to

law of requesting state.

Extradition may not be granted if extradition is sought for an offence :

under Military law and not under ordinary criminal law; orpunishable by death in requesting state and is not punishable by

death in requested state unless requesting state assures that death penalty if imposed will not be carried out.

As per section 31 (d) of the Extradition Act, 1962- A fugitive criminal shall not be surrendered or extradited if

he/she is accused of any offence in India other than the offence for which extradition is sought;

However a special rule has been created in the Extradition Treaty between India and U.S.A under Article-14

Temporary Surrender of Fugitive Criminal

A fugitive criminal who is being prosecuted or serving sentence in Requested State may be temporarily surrendered to the foreign State in case of request for extradition.

Such fugitive criminal shall be returned to the Requested State after conclusion of the proceedings against the fugitive criminal.

Requested State may postpone the extradition proceedings pending prosecution or remaining of sentence imposed upon him/her.

All requests for extradition shall be submitted through diplomatic channel.

All request for extradition shall be supported by:-Document, statement or other type of information describing the

identity and location of the person sought;

Facts and procedural history of the case;

Statement of provisions of law describing essential element of offence;

Statement of provisions of law describing punishment of offence;

Copy of warrant or order of arrest issued by Judge or competent body;

A copy of charging document, if any;

Other information which would justify the committal for trial of person if the offence had been committed in the Requested State;

A copy of judgment of conviction, in case the person is convicted;

Information establishing the identity of convicted sought for extradition;

Copy of the sentence imposed upon the person sought;

contd…

The documents accompanying a request for extradition shall be admitted as evidence in extradition proceedings if: In case request is made by U.S, documents certified by

Principal diplomatic; or Principal consular officer

Of the Republic of India resident in United States of America.

In case request is made by India, documents certified by Principal diplomatic; or Principal consular officer

Of United States of America resident in the Republic of India.

Documents certified or authenticated in any other manner accepted by laws in the Requested State

In case of urgency Contracting State may request for immediate arrest of a fugitive criminal pending presentation of the request for extradition.

Application for provisional arrest shall contain: Description of person sought;Location of person sought, if any;Brief statement of facts of case including time and location of offence,

if any;Description of law violated;Statement of existence of a

warrant of arrest; or Finding of guilt; or Judgment of conviction

Against the person soughtStatement that a request for extradition for the person sought will

follow.

No provision of statutory appeal is prescribed in the Extradition Act, 1962 against the proceedings of extradition.

For redress of any grievance against the order in the extradition proceedings the Writ jurisdiction of the concerned High Court has to be invoked.

APPELLATE REMEDIES

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