You are on page 1of 18

JURISPRUDENCE II

EXTRADITION ACT, 1962

AN ANALYSIS

M.TEJASWI, 201132

Page | 1
TABLE OF CONTENTS

CONTENTS PAGE NO.


INTRODUCTION 3
POSITION IN INDIA 4
EVOLUTION OF THE ACT 5
SCHEME OF THE ACT 6
CONCEPTS OF JURISPRUDENCE AND EXTRADITION ACT 7
1993 AMENDMENT 11
CRITICISM 12
CONCLUSION 14
TABLE OF CASES 15
TABLE OF STATUTES 15
ABBREVIATIONS 15
BIBLIOGRAPHY 15

Page | 2
INTRODUCTION

Extradition 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 State1.

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. 2 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.

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.3
1Interpol Guide-Extradition http://cbi.nic.in assessed on 1ST March 2014

2 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).

3 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

Page | 3
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.4

POSITION IN INDIA

In 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.5

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:

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.

4 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

5Supra Note 1

Page | 4
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 extradition6 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.

EVOLUTION OF EXTRADITION ACT

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. The history of Indian Extradition Law falls into four parts;

(1) 1903 - 1947

(2) 1947 - 1962

6 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.

Page | 5
(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. 7 The Extradition
Act, 1962 consolidated the law relating to the extradition of criminal fugitive from India to
foreign states.

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.

7 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

Page | 6
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 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. 8

CONCEPTS OF JURISPRUDENCE AND EXTRADITION ACT

IMMUNITY

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


extradited.9 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.

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
8 Section 23 of the Extradition Act, 1962.

9 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.

Page | 7
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 - IMMUNITY

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. 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.10 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.

LIABILITY IMMUNITY
10 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.

Page | 8
Section 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.11 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.

POWER

Section 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.

11 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."

Page | 9
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 PROCEDURE

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 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

Page | 10
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.

1993 AMENDMENT

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.

Page | 11
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.

Page | 12
CRITICISM

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.12 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 1953.13

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 them14 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
12 (1935) 29 AJIL, Supp., 145.

13 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."

14 Austria and Hungary, Costa Rica, Czechoslovakia, France, Estonia, Latvia, Lithuania,
Haiti, Liechtenstein, Norway, Panama, Peru, Switzerland, Turkey and Uruguay.

Page | 13
India indicates that in many cases it is not bound to surrender its own nationals. 15 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 A. Palaniswami, The Law of Extradition in India (1954) III Indian Year Book of International Affairs336.

Page | 14
CONCLUSION

Law 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.16

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.

16 International Law, Vol. I, 9th Edn. (1992), p. 949.

Page | 15
TABLE OF CASES

In Re C. 0. Menon. A.I.R. 1953 Madras 729, 735.

TABLE OF STATUTES

Indian Extradition Act, 1962

Extradition Act, 1848

Criminal Procedure Code, 1973

Kranco-German Treaty 1951

Convention 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, 1953

ABBREVIATIONS

ICPO International Criminal Police Organisation

Cr.P.C Criminal Procedure Code

AJIL American Journal of International Law

Supp - Supplement

Vol. - Volume

Edn. - Edition

BIBLIOGRAPHY

BOOKS REFERRED

Perry, G.C. The Four Major Western Approaches To The Political Offense Exception To
Extradition: From Inception To Modern Terrorism
Page | 16
A.Palaniswami, The Law of Extradition in India (1954) III Indian Year Book of International
Affairs

International Law, Vol. I, 9th Edn. (1992).

WEBSITES

http://cbi.nic.in

http://www.business-standard.com/article/specials/nadeem-preparing-to-fight-extradition-to-
india-197090601167_1.html

Page | 17
Page | 18