Beyond Borders: Navigating Extradition in Indian Law

August 23, 2024
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INTRODUCTION

The term Extradition is originated from two Latin words ‘ex’ meaning ‘out’ and ‘tradium’ meaning ‘give up’. It is based on the Latin maxim out dedere out judicare which indicates that either extradite or prosecute. Two states are involved in extradition, 1) the territorial state and, 2) the requesting state. The requesting State formally demands the extradition of the accused or convict through diplomatic channels and in accordance with any treaty. In Oppenheim’s words, “Extradition is sending of a condemned individual or an accused to the State on whose territory he is alleged to have committed, or to alleged criminal happens to be for the time being”[1]. To simplify the definition, let us take into consideration an example: If A has committed a crime in the jurisdiction of Country B and fled to Country C, then depending upon the relations of the two countries, the accused or convicted person can be extradited to the law enforcement agency of Country B by Country C. Extradition refers to the act of delivering a person from one State to another, as outlined in a treaty, convention, or national legislation. Customary international law does not oblige States to surrender criminals. In the absence of a formal agreement, States have a right to offer asylum to foreign individuals based on their territorial sovereignty.[2]

The process of extradition depends solely on the relationship between the two jurisdictions. If the two nations have a healthy relationship and have an extradition treaty, then the process of extradition can be much easier. Extradition refers to the process of sending an accused person to the country where he is alleged to have committed an offence.

ESSENTIAL CONDITIONS FOR GRANTING EXTRADITION

Non-extradition of political criminal-

In Re: Castioni[3], in this case, extradition of political crime is demanded by the Swiss Government. Castioni was suspected of murdering a member of the State Council. The Queen’s Bench of England held that Castioni had committed a political offence and, could not be extradited.

Extradition of military criminals is not allowed.
Persons accused of religious offences are not extradited.
Rule of speciality-

This rule discoveries place in the extradition treaties and national laws. According to the rule, the requesting State can punish the extradited person only for the offence for which he was extradited and for no other offence. If an individual is extradited for murder, he shall not be tried for causation of grievous hurt.

In U.S. v Rouscher[4], The Supreme Court of America held that whenever a person is brought within the jurisdiction of the court under an extradition treaty, he could be tried for the offence for which his extradition had been sought. The same law prevails in India.

Double Criminality-

States deny to permit extradition under this rule which is normally incorporated in the extradition treaties. Under this principle, extradition is permitted only when the act committed constitutes an offence under the laws of both the requesting and the requested States.

Prima Facie Case-

There should be adequate evidence for the crimes that are extradited. It should prima facie seem that the accused has committed the crime.

EXTRADITION LAWS IN INDIA

In India, the extradition of a convicted is governed by the Extradition Act, of 1962. The extradition of fugitives depends on the treaties, conventions, or arrangements entered into by India with other countries. It must be well known that; it is not essential to have the treaty to extradite a fugitive from India. In the absence of an extradition treaty with any Foreign State, the Central Government may treat any convention only to the extent of offences mentioned in the convention.

Provisions in the Criminal Procedure Code, 1973 which states the procedure to be followed for extradition:

There are several sections of CrPC that lay down the procedure that needs to be followed in the process of extradition.

It allows the police to arrest an individual without a warrant under certain conditions. Sub-Section (g) of Section 41 permits the police to arrest an individual in India without a warrant if the person has committed an offence outside India that would be punishable in India.[5]
If evidence related to a criminal investigation is available in a country outside India, a letter of request can be issued by any Indian criminal court to a competent authority in that country. The request may involve examining individuals or retrieving relevant documents, which will be treated as evidence. The requesting court must follow rules specified by the Central Government. An extradition treaty is mandatory for such requests.[6]
If India receives a letter of request from a foreign country for investigation, the Central Government can forward it to the appointed Metropolitan or Judicial Magistrate, who can summon the person for a statement or investigate the matter. The evidence collected during the investigation will be forwarded to the Central Government for further action. The decision to accept or reject the request is based on India’s extradition treaty with the country making the request.[7]
Section 188 of the CrPC allows India to deal with an offence committed by a person outside India as if it was committed within India. A sanction from the Central Government is required for trial. If an offender is found in India after committing a crime outside India, the section may not apply. The government may refuse to extradite or prosecute an offender if they have already been tried in an Indian or foreign court.[8]

Extradition Treaty

An extradition treaty is a treaty agreement or composition made by India with a foreign State in relation to the extradition of fugitive criminals. The extradition agreement encompasses the circumstances that need to be satisfied to endure the procedure of extradition and also a tilt of crimes ashore on which a fugitive may be detained in a foreign country. India presently, has signed 42 extradition treaties with countries from place to place the globe to ease the process of extradition.

India – UK. pact on Extradition
Extradition treaty between India and Canada
India, Hongkong pact on Extradition
Indo-us treaty on Extradition
Extradition treaty between India and Germany
Extradition treaty between India and Russia.
Extradition treaty between India and Spain
Extradition treaty between India and France
Extradition treaty between India and Bulgaria.

SAVARKAR’S CASE[9]

Savarkar was an Indian Revolutionary, who was prosecuted on the ground of crime. He escaped from the Marsecles port from ship, but later was apprehended by French police. The captain of French ship hand over Savarkar to captain of British ship on the ground of wrong impression that it was his duty to do so. But later, Government of British requested Government of French to return Savarkar on the ground that the rules related to the extradition were not strictly observed. Later the case was entrusted to permanent Arbitration, Hague for its decision.

The court decided that International Law does not impose any obligation upon any state whereby the on the above ground the criminal may be returned. That is to say that, once a person is extradited, even though it was done in irregular way, the country receiving the fugitive or criminal is not bound under international law to returned the accused. This decision was severely criticized by the Jurists. In their view, it was not based on the sound principle of justice.

MOBARAK ALI AHMAD CASE[10]

Mobarak Ali Ahmad was under going trail for forgery and fraud in the sessions, Judge at Bombay. He fled to Pakistan and from there he went to England. The government of India got him extradite under the Fugitive Offender’s Act. He was brought to Bombay to face the resumed sessions trail. When he was at jail in Bombay, a person filed complaint against him accusing him of cheating. The warrant was issued by Presidency Magistrate against the accused and he was brought before the court for trail.

It was argued on behalf of the accused that, he was national of Pakistan and was out of India during the period when the offence was alleged to have ben committed. But the argument was rejected by the Supreme Court of India.

The Supreme Court of India held that the Indian held that the Indian courts would have jurisdiction over a case where a person committed an offence although not being present in India at the time of the committing of the crime.

CONCLUSION

Extradition is wider concept and when it comes to some group of individuals, the extradition is suspended such as political group, military group, and so on. India has been signatory to extradition treaty with an aim to expand its jurisdiction in case, accused has fled after committing offence. By enabling the extradition process, these treaties aid as a prevailing tool in daunting criminals from seeking to preserve in foreign jurisdictions. Moreover, they strengthen trust and alliance between nations, fostering a united front against global crime. As India continues to strengthen its extradition framework and expand its network of treaties, it indorses its commitment to promoting global security and justice.

Author: Harshvardhan Patil, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

[1] Philip. C. Jessup, A Modern Law of Nations: An Introduction, (1968)

[2] Ian Brownlie, Principles of Public International Law, (5th Ed. 1998), p. 287

[3] [1891] 1 Q.B. 149

[4] 119 U.S. 407 (1886)

[5] The Criminal Procedure Code, 1973 Section 41

[6] The Criminal Procedure Code, 1973 Section 166A

[7] The Criminal Procedure Code, 1973 Section166B

[8] The Criminal Procedure Code, 1973 Section 188

[9] Emperor vs Vinayak Damodar Savarkar (1911)13BOMLR296

[10] Mobarak Ali Ahmad v. State of Bombay, AIR 1957 SC 857