Extradition

Extradition

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 State.

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.

ICPO-Interpol has been a forerunner in international efforts to improve and accelerate existing procedure of extradition. Apart from attempts by academic bodies such as the Harvard Research Draft Convention on Extradition, the ICPO-Interpol was the first international organization to recommend to member countries a Draft General Agreement for the Extradition of Offenders, which unfortunately has remained a dead letter since it was adopted by the General Assembly of the Organization (then known as the International Criminal Police Commission) in 1948.

Interpol's interest in finding ways of improving the extradition process did not end with the failure of the Draft General Agreement. Since the early fifties, the General Secretariat of the ICPO-Interpol has undertaken on behalf of the member countries two new activities intended to facilitate international police co-operation in matters relating to extradition.

The first of these initiatives concerns the publication of a series of circulars on a country basis, setting out the provisional measures that the police in each country may take when complying with a request from the police of another member country for quick action with a view to identification and arrest of a person wanted on a warrant of arrest. The second initiative taken by the ICPO-Interpol consists in the dissemination of national extradition laws. This activity is based on a resolution of the General Assembly passed in 1967 in Tokyo (Japan) inviting member countries to forward the texts of their extradition laws to the General Secretariat so that the latter may send them to other member countries for their information. The pre-extradition circulars and the texts of extradition laws of the member countries received from the General Secretariat are being maintained in the Interpol Wing.

Position In India
In India the extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of Indian Extradition Act, 1962. 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.

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.

Extradition Treaties
India has signed Extradition Treaties, which are in force.
Sl. No. Name of the Country Year of Treaty
1.
2011
2.
2005
3.
2013
4.
2008
5.
1958
6.
1997
7.
2006
8.
1987
9.
Egypt
2012
10.
2005
11.
2004
12.
1997
13.
2004
14.
2007
15.
Malaysia
2011
16.
2008
17.
2009
18.
2004
19.
1963
20.
1989
21.
2005
22.
2005
23.
Portugal
2008
24.
2000
25.
2012
26.
2005
27.
2003
28.
1996
29.
Tajikistan
2009
30.
2004
31.
2003
32.
2000
33.
1993
34.
2006
35.
1999
36.
2000
37.
2013
Extradition Arrangements
Top
India has Extradition arrangements with following countries.

Sl. No.
Name of the Country
Year of Arrangement
1.
Fiji
1979
2.
Italy
2003
3.
Papua New Guinea
1978
4.
Singapore
1972
5.
Sri Lanka
1978
6.
Sweden
1963
7.
Tanzania
1966
8.
Thailand
1982
MEA Guidelines
Extradition request for an accused/ fugitive can be initiated after chargesheet has been filed before an appropriate Court and said court having taken cognizance of the case has issued orders/directions justifying accused/fugitive's committal for trial on the basis of evidence made available in the charge sheet and has sought presence of the accused/fugitive to face trial in the case. All extradition requests should be supported by documents and information enumerated below.

Note: If an extradition treaty exists between India and the requested country, the extradition request and documents connected therewith should be prepared on the basis of provisions of Extradition Treaty.
  1. It should be in spiral bound and contain an index with page numbers.

  2. The request should be supported by a self-contained affidavit executed by the Court by whom the fugitive is wanted or by a Senior Officer in charge of the case (not below the rank of Superintendent of Police of the concerned investigating agency) sworn before a judicial Magistrate (of the court by which the fugitive is wanted for prosecution). The affidavit should contain brief facts and history of the case, referring at the appropriate places the statements of witnesses and other documentary evidences. Criminal's description establishing his identity; provision of the law invoked etc. so that a prima facie case is made out against the fugitive criminal.

  3. Paragraph 1 of the affidavit should indicate the basis/capacity in which the affidavit is executed.

  4. The affidavit should indicate that the offences for which the accused is charged in India.

  5. The affidavit should also indicate that the law in question was in force at the time of Commission of offences and it is still in force, including the penalty provisions.

  6. The evidence made available should be admissible under Indian laws. Accordingly, the affidavit should indicate whether the statements of witness are admissible as evidence in India in a criminal trial/prosecution. Statements of witnesses should be sworn before the Court.

  7. The affidavit should also indicate that if the accused were extradited to India, he would be tried in India only for those offences for which his/her extradition is sought.

  8. Copy of First Information Report (FIR), duly countersigned by the competent judicial authority, should be enclosed with the request.

  9. Comeptent authority should countersign copy of charge sheet, which is enclosed with the documents.

  10. A letter/order from the concerned court justifying accused person's committal for trial on the basis of evidence made available in the Charge sheet, with a direction seeking accused person's presence in court to stand trial in said court from the country of present stay.

  11. Warrant of arrest should be in original and open dated indicating clearly only those offences for which the accused is charged and Court has taken cognizance with relevant sections thereof.

  12. Nationality, identity and address of the accused including his photograph should be made available with the request.

  13. Copy of the relevant provisions under which the accused is charged along with the provisions of the relevant laws indicating that the maximum sentence prescribed for the offence for which the accused is charged or convicted.

  14. The extradition request is to be made in quadruplet (four copies). All original and copies should be attested /authenticated by the concerned court.

  15. All the documents should be very clear, legible and in presentable form as they are to be presented to the soverign Governments of Foreign Countries.

  16. Original documents in national languages should be sent along with certified English translation of each such document from authorized translators.

  17. Extradition requests/documents to the country where English is not first language should be submitted along with duly translated copy in host country's local language. The Court issuing warrant should certify such translated copy.
After completion of necessary formalities, the request for extradition should contain a letter/note from a Senior Official (not below the rank of Joint Secretary) or the concerned State Government indicating the correctness of the case/material with a request to the Central Executive to forward it to the Government of the concerned foreign country.
N.B.: If the concerned court is requesting for extradition of a person, the request in the form of an affidavit should be in first person, i.e. by the Hon'ble Magistrate/ Judge himself/herself. (Such requests are usually received from Court Masters or other court officials writing in third person on behalf of the Court. Requested States object to it)

NOTE: The request for extradition and the documents thereof should be prepared as per the requirements of the extradition treaty between India and the country concerned from which the fugitive is to be extradited to India.