INFORMATION ABOUT EXTRADITION OF FUGITIVE CRIMINALS FROM INDIA *
Legislative Basis for Extradition in India
The Extradition Act 1962, as amended from time to time provides the legislative basis for extradition of a fugitive criminal (FC) from India. A copy of the Extradition Act, 1962 is available at http://www.mea.gov.in.
For the extradition of a FC from India, there should be in place a bilateral extradition treaty, agreement or arrangement. In the absence of a bilateral extradition treaty, agreement or arrangement, a relevant multilateral convention providing for extradition may also be used as a legal basis for the extradition of fugitive offenders from India in respect of the offences covered by that convention provided that both India and the requesting State are parties to it.
The Government of India has entered into bilateral Extradition Treaties with many countries to bring speed and efficiency to the process of extradition. Besides, India has entered into extradition arrangements with some countries. A database of such treaties/arrangements is available at http://www.mea.gov.in/treaty.htm.
Central Authority for Extradition Matters
In the Government of India, the Ministry of External Affairs acts as the Central Authority for extradition matters. Within the Ministry of External Affairs, CPV Division is the nodal point for dealing with extradition matters.
Who is a Fugitive Criminal
‘Fugitive Criminal’ means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes 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. (Section 2(f) of Extradition Act, 1962)
(*This information folder is intended to provide general information regarding extradition procedures in India and should not be quoted or taken as an authoritative legal advice in extradition matters)
Extradition OffenceExtradition offence means:
(i)in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty or arrangement with that State;
(ii) in relation to a foreign State other than a treaty State, an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India and of a foreign State, and includes a composite offence. (Section 2(c) of Extradition Act, 1962)
‘Foreign State’ means any State outside India and includes every constituent part, colony or dependency of such State. (Section 2(e) of Extradition Act, 1962)
Applicability of Chapter-II or Chapter-III of the Extradition Act, 1962
The Extradition Act, 1962 prescribes separate procedures for handling extradition requests from different countries depending on the procedural and evidentiary requirements envisaged in the relevant extradition treaty. Accordingly an Extradition Treaty is notified either under Chapter-II or Chapter III of the Act. The extradition procedure of a fugitive offender under Chapter II of the Act is rigorous and require the establishment of a prima facie case on the basis of the evidence submitted along with the extradition request. This requirement is generally reflected in the procedure article of the treaty requiring ‘evidence sufficient to commit the case for trial had the office been committed in India’.
On the other hand, the procedure for the extradition of a fugitive criminal under Chapter III of the Act is more swift. Along with the facts of the case and confirmation of identity of the fugitive, the existence of a warrant of arrest would be sufficient. Under Chapter III, the need for establishing prima facie case against the accused is dispensed with. Generally, the Extradition Magistrate should be satisfied that the warrant of arrest issued by competent authority in the requesting State is endorsed by the Central Government and that the offences alleged to have been committed by the accused would be an extradition offence, if committed in India.
Extradition of own Nationals
Extradition Act, 1962 does not lay any prohibition on the extradition of Indian nationals. However, it all depends on the provisions of the extradition treaty concerned.
The following table lists the bilateral extradition treaties that bar the extradition of own nationals:
|S.No||Country ||Year of Treaty ||Article|
|1||Bahrain||2005 ||Article 6 (shall not be extradited) |
|2||Belarus||2008 ||Article 6 (may not be extradited) |
|3||Bulgaria||2006 ||Article 1(1) |
|4||Egypt||2012 ||Article 3 (shall not be extradited) |
|5||France||2005 ||Article 5 (shall not be extradited) |
|6||Germany||2004 ||Article 6 (shall not be bound to extradite) |
|7||Hong Kong||1997 ||Article 4 (reserve the right to surrender) |
|8||Korea||2004 ||Article 6 (shall not be bound to extradite) |
|9||Kuwait||2007 ||Article 5 (shall not be extradited) |
|10||Mongolia||2004 ||Article 5 (may not be extradited) |
|11||Poland||2005 ||Article 4 (shall not be extradited) |
|12||Russia||2000 ||Article 5 (may not be extradited) |
|13||Saudi Arabia||2012 ||Article 4 (may refuse extradition) |
|14||Spain||2003 ||Article 6 (may be extradited) |
|15||Turkey||2003 ||Article 8 (shall not be extradited) |
|16||UAE||2000 ||Article 5 (shall not be extradited) |
|17||Ukraine||2006 ||Article 4 (shall not be extradited) |
|18||Vietnam||2013 ||Article 3 (shall not be extradited) |
Provisional Arrest Requests
The Extradition Act 1962 as well as bilateral extradition treaties/agreements also provide for the provisional arrest of the accused pending the submission of a formal extradition request.
A request for provisional arrest is generally transmitted through diplomatic channels, to the CPV Division of the Ministry of External Affairs. The facilities of the International Criminal Police Organization (INTERPOL) may also be used to transmit such a request.
After the provisional arrest, the foreign country concerned gets a limited time to submit a formal extradition request. This period generally ranges from 45 to 60 days in accordance with the provisions of the relevant extradition treaty. Under Section 34B of the Extradition Act, within 60 days from the date of provisional arrest, a formal extradition request need to be submitted. However, even if the FC has been released by the Court on this account, it shall not prejudice the subsequent re-arrest and extradition of that person, if the extradition request and supporting documents are received at a later date.
Submission of Extradition Request:
A request for the surrender of a fugitive criminal from India may be made through diplomatic channels, either by a diplomatic representative of a foreign State at Delhi or by the Government of that foreign State or through the Indian diplomatic Mission in that State or such other mode as agreed in the extradition treaty/agreement concerned.
An extradition request should be submitted to the CPV Division in the Ministry of External Affairs being the Central Authority in extradition matters. The request is examined in the Ministry and taking into account the relevant extradition treaty/arrangement if it considers it fit, an Inquiry Magistrate may be appointed to inquire into the case. If on the basis of the extradition request, the proof of identity of the fugitive, the supporting evidence, the provisions of the relevant treaty and the Extradition Act, the Inquiry Magistrate considers that it is a fit case for the surrender of the fugitive criminal pursuant to the request, the Magistrate may in its report recommend extradition of the FC and may commit him to prison to await the orders of the Central Government. While submitting his Inquiry report to the Central Government, the Magistrate shall forward together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Government.
On the other hand, if, on conclusion of the extradition inquiry, the Extradition Magistrate is of the opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal.
If, upon receipt of the inquiry report and statement of the FC, the Central Government is of opinion that the fugitive criminal ought to be surrendered to the foreign State, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery to the requesting State at a place and to a person to be named in the warrant.
Grounds for Refusal of Extradition:
The grounds for refusal are invariably contained in the relevant extradition treaty. Generally these grounds are:
(i) where a person’s extradition is sought for an offence of a political character. However, the Extradition Act in general and the extradition treaties, in particular, also list out many offences which shall not be considered as an offence of a political character.
(ii) the offence of which a person is accused or convicted is a military offence;
(iii) if the person whose extradition is sought has, according to the law of the requesting State becomes immune from prosecution or punishment by reason of lapse of time;
(iv) the person has been tried and acquitted/pardoned/ undergone punishment with respect to the offence for which his extradition is sought;
(v) if the requested State has substantial grounds to believe that the person’s extradition is sought for the purpose of prosecuting or punishing the person on account of his/her race, sex, religion, nationality, or political opinions, or that the person’s position may be prejudiced for any of those reasons. Waiver of Extradition:
Though the Extradition Act, 1962 is silent on this issue, generally extradition treaties contain provisions relating to waiver of extradition. If during an extradition inquiry, the FC voluntarily deposes before the Inquiry Magistrate his willingness to face the charges or undergo sentence in the foreign State pursuant to the extradition request, the Inquiry Magistrate may on the basis of the voluntary surrender request made by FC, and after being satisfied that dual criminality exists, recommended to the Central Government the extradition of FC with respect to the offences for which his extradition is sought. In such cases all other procedures, including the establishment of a prima facie case will be dispensed with.Appeals
The Recommendation of the Inquiry Magistrate is appealable before the Hon’ble High Court or the Supreme Court, as the case may be.Physical Surrender of the Fugitive to the Foreign State:
Having received the recommendation of the Inquiry Magistrate, if the Central Government decides to surrender the person to the foreign country, the Ministry of External Affairs liaises with the concerned foreign mission to work out the modalities of surrender of FC. The escort officers from the requesting State take custody of FC and escort FC from India to the requesting State.
If the person is not removed from India within two months after his committal to prison by the Inquiry Magistrate, the High Court, upon an application made to it by or on behalf of the FC and upon proof that reasonable notice of the intention to make such application has been given to the Central Government, may order such person to be discharged unless sufficient cause is shown to the contrary. (Section 24 of the Extradition Act)