Law of Extradition in India, with US Perspective.

1. LAW OF EXTRADITION
BETWEEN
INDIA- USA
By
Vijay Pal Dalmia
Partner

2. 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.

3. THE EXTRADITION ACT, 1962
EXTRADITION TREATY
BETWEEN
INDIA AND OTHER COUNTRIES
LAW RELATING TO EXTRADITION IN INDIA

4.  Extradition Treaty means:-
A treaty,
agreement or
arrangement
with a foreign state relating to the extradition of Fugitive
criminals

5. U/s 2 (c) of the Extradition Act, 1962
An 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 Act
An act or conduct of a person occurred
Wholly or in part in a foreign state or in India
Whose effects or intended effects, taken as a whole
WHAT IS EXTRADITION OFFENCE IN INDIA?

6. ◦ 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
Incites
Participates
as an accomplice in the commission of an
extradition offence in a foreign state
WHO MAY BE EXTRADITED?

7.  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…..

8. 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 requisition
 Take evidence on behalf of the fugitive criminal including
Evidence that no extradition offence is committed

9. 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 Government
shall 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

10. In any proceeding against the Fugitive criminal
Exhibits
Depositions (whether made before fugitive criminal or not)
Official certificates of facts
Judicial documents
if duly authenticated may be received in evidence
before the Magistrate.

11. 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

12.  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.

13. 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.

14. 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.

15.  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

16. 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.

17.  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; or
punishable 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.

18. 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.

19.  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;

20. 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…

21. 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

22.  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 sought
Statement that a request for extradition for the person sought will
follow.

23.  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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