DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

Project

International Criminal Law

TOPIC: The Practice of Shared Responsibility in Extradition Law:

Indian Perspective

Submitted to Mr. Arvind Nath Tripathi

Submitted by
Sarvarayudu Ambati
2016088, 10th Sem
ACKNOWLEDGEMENT

I have made my project under the supervision of Mr. Arvindhnath Tripati, Faculty Lecturer, Damodaram
Sanjivayya National Law University. I find no words to express my sense of gratitude for a mam for
providing the necessary guidance at every step during the completion of this project.  

I am also grateful to the office, librarian and library staff of DSNLU, Visakhapatnam for allowing me to
use their library whenever I needed to. Further I am grateful to my learned teachers for their academic
patronage and persistent encouragement extended to me.  I am once again highly indebted to the office
and Library Staff of DSNLU for the support and cooperation extended by them from time to time. I
cannot conclude with recording my thanks to my friends for the assistance received from them in the
preparation of this project.
 TABLE OF CONTENTS

DECLARATION--------------------------------------------------------------------------------------------------
2

CERTIFICATE OF ORIGINALITY---------------------------------------------------------------------------------3

ACKNOWLEDGEMENTS----------------------------------------------------------------------------------------
4

CHAPTER 1 ------------------------------------------------------------------------------------------------7-10

 TITLE---------------------------------------------------------------------------------------------------7

 INTRODUCTION---------------------------------------------------------------------------------------------7

 STATEMENT OF PROBLEM-------------------------------------------------------------------------------------7

 OBJECTIVES OF THE STUDY-----------------------------------------------------------------------------

8

 CONCEPTUAL FRAMEWORK-----------------------------------------------------------------------------------8

 RESEARCH QUESTIONS----------------------------------------------------------------------------------------8

 REVIEW OF LITERATURE -------------------------------------------------------------------------------------9

 SCOPE AND METHODOLOGY---------------------------------------------------------------------------9

 CHAPTERISATION---------------------------------------------------------------------------------------------10

CHAPTER 2------------------------------------------------------------------------------------------------11-13

 INTRODUCTION--------------------------------------------------------------------------------------11

 ACTS GOVERNING EXTRADITION IN INDIA--------------------------------------------------------12

CHAPTER 3-------------------------------------------------------------------------------------------------14-
17
  PRINCIPLES ALBEIT THE LAW OF EXTRADITION--------------------------------------------------
14

 PROCEDURE OF EXTRADITION---------------------------------------------------------------------16

CHAPTER 4-------------------------------------------------------------------------------------------------18-
20

 CASES OF EXTRADITION
----------------------------------------------------------------------------18

CONCLUSION----------------------------------------------------------------------------------------------
21

BIBLIOGRAPHY
-------------------------------------------------------------------------------------------22

CHAPTER 1
1.1 TITLE

The project is titled as “Extradition Law: Indian Perspective”.

1.2 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 State.The purpose of extradition is to bring the individual within the requesting
country’s boundaries in order to make a determination of guilt or innocence, or to impose
punishment. 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.

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.

1.3 STATEMENT OF PROBLEM

The Project report specifically focusses on the meaning and definition of Extradition. One of the chapters
of this project report explains the general procedure and procedure followed in India with regards to the
Extradition.

1.4 OBJECTIVES OF THE STUDY

 To understand the meaning and definition of Extradition.

 To study the procedure of Extradition.
 To study various cases relating to Extradition.
1.5 CONCEPTUAL FRAMEWORK
International extradition is the surrender by one nation to another, for trial and punishment, of a
person accused or convicted of an offence within the jurisdiction of the latter. A request for
extradition is generally initiated against a fugitive criminal, who is formally accused of, or is
charged with, or is convicted of an extradition sentence

1.6 RESEARCH QUESTIONS

 What’s the meaning of the term Extradition?
 What’s the procedure followed in India for Extradition?
 How’s the procedure of extradition followed in India than the General procedure of
Extradition?

1.7 REVIEW OF LITERATURE

 P. Ramanatha Aiyar‟s Concise Law Dictionary, Lexis Nexis, Fifth Edition

P Ramanatha Aiyar's Concise Law Dictionary, which has been into publication for more
than seven decades, is a handy and compact law dictionary, providing the meaning and
interpretation of different legal terms, phrases and Latin Maxims, in a precise, accurate
and unambiguous manner. This book has elaborately explained the meaning and
definition of Extardition.

 M. Cherif Bassiouni International Extradition Sixth Edition

This book covers all aspects of extradition, while making critical, theoretical, and
practical evaluations of these aspects, and proposing alternatives. It also focusses on the
rights of individuals, balancing of states interests, and preservation of world order within
the Rule of Law

1.8 SCOPE OF STUDY

The project report entitled “Extradition Law: Indian Perspective” covers the meaning and
procedure of the Extradition. One of the chapter of the Project report explains the extradition
laws with the help of the relevant case laws.

1.9 METHODOLOGY OF STUDY

Research Methodology is systematic approach and methods of study concerning for obtaining
new knowledge and generalization and the formulation of theories.

 NATURE OF STUDY-

Non empirical research work has been used in this project as the material in this project mainly
consists of the work of people which is already done. The project is basically doctrinal in
nature. Citations are also provided wherever they were necessary.

 SOURCES OF DATA-

This Project is made on the basis of secondary sources of information, which include:

1) Books, and

2) Information from the internet.

1.10 CHAPTERSIATION
First chapter gives an introduction to the topic.

Second chapter deals with the definition of Extradition and various acts governing Extradition in
India

Third chapter covers various principles albeit the law of Extradition and the procedure of
Extradition

And, the last chapter deals with the cases relating to Extradition.
 CHAPTER 2

2.1 DEFINITION OF EXTRADITION:

International extradition is the surrender by one nation to another, for trial and punishment, of a
person accused or convicted of an offence within the jurisdiction of the latter. 1 A request for
extradition is generally initiated against a fugitive criminal 2 , who is formally accused of, or is
charged with, or is convicted of an extradition sentence. Extradition is a system consisting of
several processes whereby one sovereign, surrenders to another sovereign, an individual sought
after as an accused, criminal or fugitive offender. This delivery of individuals to the requesting
sovereign is based on treaties and/or bilateral arrangements; however, sometimes this delivery of
individuals occurs by reciprocity and comity as a matter of courtesy and goodwill between the
sovereigns. World public order is the recurring theme based on which extradition is practiced by

1
P. Ramanatha Aiyar‟s Concise Law Dictionary, Lexis Nexis, Fifth Edition, p.476
2
A fugitive criminal‘ means a person who is accused of, or is convicted of, an extradition offence within the
jurisdiction of a foreign State and includes a person who, while in India, conspires or attempts to commit or incites
or participates as an accomplice in the commission of an extradition offence in a foreign State
the States.3 But it is always gainful to remember the observations made in the case of: U.S. v.
Rauscher4 “… Apart from them (treaties)… there was no well defined obligation on one country
to deliver up such fugitives to another… and it has never been recognised as among those
obligations of one government towards another which rest upon established principles of
international law.”

In Oppenheim’s International Law, the expression extradition has been defined as follows:
“Extradition is the delivery of an accused or a convicted individual to the State where he/she is
accused of or has been convicted of a crime, by the State on whose territory he/she happens for
the time to be”.

According to Black’s Law Dictionary5 , extradition means “The surrender by one State or
Country to another of an individual accused or convicted of an offence outside its own territory
and within the territorial jurisdiction of the other, which, being competent to try and punish him,
demands the surrender.” Thus, in nutshell, extradition may be defined as: the act of sending, by
authority of law, a person accused of a crime to a foreign jurisdiction where the crime was
committed, in order that he may be tried there. J.G. Starke in his work of acclaim, Introduction to
International Law (10th Edition) defined the term ‗extradition‘ as follows: “The term
„extradition‟ denotes the process whereby under a concluded treaty one State surrenders to any
other State at its request, a person accused or convicted of a criminal offence committed against
the laws of the requesting State, such requesting State being competent to try the alleged
offender. Though extradition is granted in implementation of the international commitments of
the State, the procedure to be followed by the courts in deciding, whether extradition should be
granted and on what terms, is determined by the municipal law of the land.” Thus, extradition is
founded on the broad principle albeit that, it is in the interest of civilised communities that
criminals should not go unpunished and on that account it is recognised as a part of the comity of
nations that one State should ordinarily afford to another State assistance towards bringing
offenders to justice.6

3
Abu Salem Abdul Qayyum Ansari v. CBI & Another, (2013) 7 SCR 1061
4
119 U.S. 407 (at p.411 - 412)
5
Black‘s Law Dictionary, Centennial Edition (1891-1991), Sixth Edition, p. 585
6
Rosiline George v. Union of India, (1994) 2 SCC 80, Para 16; In this case, the Apex Court held that, the term
‗Extradition‘ denotes the process whereby under a concluded treaty one State surrenders to any other State at its
request, a person accused or convicted of a criminal offence committed against the laws of the requesting State, such
requesting State being competent to try the alleged offender.
2.2 ACTS GOVERNING EXTRADITION IN INDIA

Law relating to extradition in India is governed by: the Extradition Act, 1962 and the Extradition
Treaties obtaining between India and other countries. By virtue of Section 34 of the 1962 Act,
the Extradition Act of 1962 has extra-territorial jurisdiction, that is, an extradition offence
committed by any person in a Foreign State shall be deemed to have been committed in India
and such person shall be liable to be prosecuted in India for such offence. As per Section 216 of
the Indian Penal Code, 1860 read with the Constitution of India, 1950 (Schedule VII, List I, Item
18), extradition may be defined as, the action of giving up a fugitive criminal to the authorities of
the State in which the crime was committed.

Extradition treaty means, a treaty, agreement or arrangement with a Foreign State relating to the
extradition of fugitive criminals. Treaty State means, a Foreign State with which an extradition
treaty is in operation.7 Section 3(4) of the 1962 Act categorically states that, where there is no
extradition treaty made by India with any Foreign State, the Central Government may, by
notified order8, treat any Convention to which India and a Foreign State are parties, as an
extradition treaty made by India with that Foreign State providing for extradition in respect of
the offences specified in that Convention. As per Section 2(f) of the Extradition Act, 1962, only
fugitive criminals‘, may be extradited. Fugitive criminal, as per the extradition law prevailing in
India means: a person who is accused (or is 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 or participates as an accomplice in the commission of an extradition offence in a
Foreign State.

As per Section 2(c) of the Extradition Act, 1962, an extradition offence means, an offence
provided in the extradition treaty with Foreign States; an offence punishable with imprisonment
for a term which shall not be less than one-year under the laws prevailing in India or of a Foreign
State. Section 2(a) of the 1962 Act defines a composite offence as, an act or conduct of a person
occurring wholly or in part in a Foreign State or in India, effect of which (or intended effect
7
As per Section 2(c) (i) of the 1962 Act, an extradition treaty is a treaty between two or more nations which
provides for the extradition from each of the countries to any of the others, of persons charged with specified
offences. As per Section 2(d) of the 1962 Act, an extradition treaty means a treaty or agreement made by India with
a Foreign State relating to the extradition of fugitive criminals; and includes any treaty agreement or arrangement
relating to the extradition of fugitive criminals made before the 15th day of August, 1947 which extends to, and is
binding on, India
8
As per Section 2(h) of the 1962 Act, “notified order”‖ means an order notified in the Official Gazette.
which) taken as a whole would constitute an extradition offence in India or in a Foreign State, as
the case may be.

In the case of Daya Singh Lahoria v. Union of India9, Supreme Court of India, expatiating over
the importance of extradition law, stated the following, in authoritative terms: ―Extradition is a
great step towards international cooperation in the suppression of crime. It is for this reason that
the Congress of Comparative Law at Hague in 1932, resolved that States should treat extradition
as an obligation resulting from the international solidarity in the fight against crime.

CHAPTER 3

3.1 Law of Extradition

In International Law, rules regarding extradition are not well established mainly because extradition is a
topic which does not come exclusively under the domain of International Law. Law of extradition is a dual
law. It has operation national as well as international. Extradition or non-extradition of a person is
determined by the municipal courts of a State, but at the same time it is also a part of international law
because it governs the relations between two states over the question of whether or not a given person
should be handed over by one state to another state.

Till now no universal convention has been framed in regard to extradition. Attempts have also been
made by the States to conclude regional conventions on the subject. For e.g. European Convention on
Extradition was signed on December 13, 1957 by the member states of Council of Europe, and the Arab

9
2001 (4) SCC 516
League Extradition Agreement was approved by the Council of the League of Arab States on September
14, 1952.

S.A.A.R.C. Accord on Extradition

On 16th June, 1987, the Foreign Secretaries of SAARC entered into an agreement on extradition. The
agreement provided for the extradition of persons accused of terrorist acts but not including acts of political
nature. However, Article 11 of the Convention provides, that if the State concerned thinks that it is not
proper and expedient to extradite the accused if the matter is very ordinary and the request for extradition
hasn’t been made in good faith and is not in the interest of justice. But under the Convention it is the
obligation of the member states to ensure the presence of the accused for prosecution under national laws.

Presently in absence of any multilateral treaty or convention, extradition is done by the states on the basis of
bilateral treaties wherein provisions are made in accordance with the municipal law by which they have
agreed between themselves to surrender the accused or convict to the requesting State in case such a person
comes under the purview of bilateral treaty.

there a general duty or Legal duty of States in respect of extradition?

International Law doesn’t recognize any general duty of States in respect of extradition. Extradition depends
on the provisions of the existing extradition treaties. In Factor v Laubenheimer10, the court held: “The
principles of International Law recognize no right to extradition apart from treaty while a govt. may, if
agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice
to the country from which he fled… the legal right to demand his extradition and the correlative duty to
surrender him to the demanding State exist only when created by treaty.”

A legal duty to surrender a criminal therefore arises only when treaties are concluded by the States
and after the formalities have taken place which are stipulated in the extradition treaties. But there is no
universally recognized practice that there can be no extradition except under a treaty, for, some countries
grant extradition without a treaty. Reference may be made here to the Extradition Act, 1962, which governs

10
(1993) 280 U.S. 276
the law relating to extradition in India. Chapter III of the Act deals with the return of fugitive criminals from
Commonwealth Countries with extradition arrangements. Chapter II deals with extradition of fugitive
criminals to foreign States and to Commonwealth countries to which Chapter III does not apply. Under
Section 4 of the Act, a requisition for the surrender of a fugitive criminal of a foreign State can be made to
the Central Government. The Central govt. may if it thinks fit, order for magisterial inquiry. 11 Under Section
7(4), if the magistrate is of the opinion that a prima facie case exists then he may commit the fugitive
criminal to prison to await the orders of the Central Govt. and shall report the result of his inquiry to the
Central Govt. If on the receipt of the said report and statement, the Central Government is of the opinion that
the fugitive criminal ought to be surrendered to the foreign state or Commonwealth Country, it may issue a
warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to
be named within the warrant.12 Thus extradition treaty is not the only basis for extradition of a fugitive
criminal.

It may therefore, be concluded that although there is no universal rule of customary international
law imposing a general duty of States in respect of extradition and generally extradition is granted on the
basis of a treaty if entered between the states parties to the extradition of fugitive criminal.

3.2 General Rules of International law regarding extradition

1. Extradition Treaty-The first and foremost important condition of extradition is the existence of an
extradition treaty between the territorial state and requesting state. Some states such as the US,
Belgium and Netherlands require treaty as an absolute pre-condition. The strict requirement of an
extradition may be regarded as the most obvious obstacle to international co-operation in the
suppression of crimes. Since extradition treaties are politically sensitive and require careful and
lengthy negotiations, states have few extraditions treaties and the criminal can usually find a safe
haven-that is a state which requires a treaty for extradition and has no such treaty within whose
jurisdiction the crime was committed. It is therefore, desirable that States conclude extradition
treaties with as many states as possible to suppress the crime.
In order to provide assistance to states interested in negotiating and concluding bilateral
extradition agreements, the General Assembly on December 14, 1990 adopted a Model Treaty on
11
Section 5, of the Extradition Act, 1962
12
Section 8, ibid.
 Extradition by adopting a resolution.13 The resolution invited member states to take into account the
Model Treaty on Extradition at the time of concluding extradition treaties or when they wish to
revise the existing extradition treaty relations. It is also to be noted that in the absence of any treaty
arrangements, a person may be extradited in exceptional cases on the basis of reciprocity.
e.g.- India doesn’t have any extradition treaty with Portugal. However, when Abu Salem, an
accused in 1993 Mumbai Blast and an underworld don fled to Portugal along with his wife Monica
Bedi, Portugal in absence of a treaty, extradited Abu Salem to India after latter gave assurance that
he would not be given death sentence.

2. Extradition of Political Offenders- It is a customary international law that political offenders are
not extradited. In other words they are granted asylum by the territorial state. The French
Constitution of 1793 for the 1st time under Article 120 made a provision for granting asylum to
those foreigners who exiled from their home country for the cause of liberty. Later on, other states
followed the principle of non-extradition of the political offenders gradually. Indian Extradition Act
of 1962 also lays down a similar provision under Section 31(a). At present, non- extradition of the
political offenders has become a general rule of International Law and therefore it is one of the
exceptions of extradition.
Basis for the non- extradition of the Political offenders-
 The rule is based on the elementary consideration of humanity. No state would like to
extradite a person if he is not a criminal. If it does, it will not be in compliance with the law
of natural justice.
 If the political offenders are extradited, it is feared that they would not be treated fairly.
 The object of the political offenders to take shelter in another country is not the same as
those of the ordinary criminals.
 Political offenders are not dangerous for the territorial state as may be in the case of
ordinary criminals.

Exceptions to this rule- On some occasions fugitives take undue advantage of the principle of non-
extradition of political offenders by posing themselves as political offenders. In 1856, Belgium
introduced the attentat clause in its extradition law. Article VI of the Act provides that an attempt
on life of the head of a foreign government or members of his family shall not be considered to be a
13
General Assembly Resolution 45/116 dated December 4, 1990
 political offence. The attentat clause has not been accepted as a general rule of International Law
because sometimes the Head of the State may be a titular head. He may not be the most important
and powerful man in a state.

 Political offence is not recognized as an exception to extradition in the case of customary

international law crimes such as war crimes and crimes against humanity.
 It has been held to protect former government officials guilty of human rights abuses.

Indian Extradition Act of 1962 as amended by the Extradition(Amendment) Act, 1993 had also laid
down a comprehensive list of offences which shall not to be regarded as political offence.

Case- Re Castioni Case14

In this case, Castioni who had returned to Switzerland from abroad, joined the revolutionary
movement in the Canton of Ticinio(Switzerland), and in the course of it, he committed the murder
of Rossi, a member of the government. It was pleaded on behalf of Castioni in writ of Habeas
Corpus that his offence was a political offence for which extradition was not available. The court
refused request for extradition saying that the offence came under the ambit of the term ‘political
offence’.

Case of Re Meunier15

In the case of Re Meunier, which came before the Court 3 years after Castioni, the principle laid
down in Re Castioni was repeated.

However both these decisions were criticized on the ground that an offence may be termed
as political offence even though the aim is not to overthrow the govt.

3. Doctrine of Double Criminality- The doctrine of double criminality denotes that a crime must be
an offence recognized in the territorial as well as in the requesting state. No person is extradited
unless this condition is fulfilled. The doctrine appears to be based on the consideration that it would
offend the conscience of the territorial state if it has to extradite a person when its own law does not
regard him as criminal. The requesting state would also not ask for the surrender of a person for
those crimes which are not recognized in its state.

14
(1891) IQB 149
15
(1894)2 QB 415
 4. Rule of Speciality- According to this principle, a fugitive may be tried by the requesting state only
for the offence for which he has been extradited. In other words the requesting state is under a duty
not to try or punish the fugitive criminal for any other offence than that for which he has been
extradited.
In the case of Daya Singh Lahoria v Union of India16 it was held that courts in the requesting
country have no jurisdiction in respect of offences which don’t form part of extradition judgment by
which he has been brought to the country and he can be tried only for offences mentioned in the
extradition decree.
5. Prima Facie Evidence- There should be a prima facie evidence of the guilt of the accused. Before
a person is extradited, the territorial state must satisfy itself that there is a prima facie evidence
against the accused for which extradition is demanded. In C.G. Menon’s case 17 the Madras High
Court held that the need for offering evidence to show prima facie the offender is guilty of crime
with which he has been charged by the country asking for his extradition has been well recognized.
6. Time barred crimes-Section 31(b) of the Indian Extradition Act provides that extradition may be
refused if the prosecution is time barred by lapse of time under the law of requesting state. An
important point in this connection is that which date should be considered relevant for determining
the issue, i.e., the date of request of extradition, or the date of receipt of such request by the territorial
state, or the date on which the Magistrate submits his report to the govt. recommending the
fugitive’s extradition, or lastly when the govt. makes an order for extradition. 18 It is to be noted that
the date on which the govt. passed the order for the extradition of fugitive is an important one. If the
fugitive can be prosecuted on this date, he may be e extradited.
7. Extradition of own nationals- In many cases a person after committing a crime in a foreign
country flees back to his own country. Practice of states in regards to extradition of its own nationals
differs. Some states such as US, India and Great Britain allow extradition of its own nationals while
others such as Italy, Germany etc. don’t allow the same. The reason behind not allowing is that it is
not dignified for a state to extradite its nationals for conducting a trial in the foreign country. But
countries such as US, India allow extradition of their nationals because they believe in the fact that
the country where the crime has taken place is in a better situation to try the offenders. Extradition
and Non- Extradition of its own nationals depends upon the wordings of the extradition treaties. But

16
AIR(2001) SC 1716
17
AIR(1953) Madras 763
18
R.C Hingorani, ‘ Modern International Law’, Second Edition, p. 183
 if the restriction imposed therein regarding the extradition of its own nationals, it becomes a duty of
the territorial state to punish them so that crimes may not go unpunished.
8. Military Offenders- Extradition treaties generally exclude military offences. However a military
personnel committing war crimes or genocide shall be extradited and shall not be deemed as
military offender.
9. Extradition for an offence of Fiscal Character- Extradition for a fiscal offence has not been
generally practiced by the states, despite the fact that there is nothing in international customary law
which prohibits it. Examples of offences of fiscal nature are undisclosed revenues, evasion of taxes
such as excise and customs etc. Dr. Dharam Teja in 1978 escaped from India in order to avoid the
recovery of Income Tax amounting to 4 Crores. No extradition proceedings could be initiated
against him as there was no criminal charge against him.
10. Extradition and Human Rights Violations- the classical international law did not provide
human rights safeguards at the time of extradition of a person but in recent past human rights
safeguards are being taken into consideration at the time of conclusion of extradition treaties. Many
European countries such as Switzerland, Austria and Germany in their extradition laws have
adopted the principle that extradition shall be refused if the procedure in the requesting state is
contrary to the principles European Convention on Human Rights. Grounds for refusal to extradite
a criminal may be-
 Where there are substantial grounds for believing that if a person is extradited he will be
given torture or will be given cruel, inhuman or degrading treatment.
 If the requested state has substantial grounds for believing that a request for extradition for
an ordinary criminal offence has been made for the purpose of prosecuting or punishing a
person on account of his race, religion, nationality or political opinion.
 Where a person if extradited would not get fair trial in the receiving state.

3.3 PROCEDURE OF EXTRADITION

General
 Extradition is governed by international treaties, bilateral or multilateral, enshrining the
prnciples, nulla extradition sine lege (no extradition without a law), this principle is in fact a
version of nullum crimine nulla pena sine lege (no crime and no penalty without a law).

 The State seeking the surrender of a person must present a formal extradition request, which
must identify the wanted person and the offence imputed on him/her. The requesting State is
required to submit certain documents in support of the request. The kind and format of the
evidence required, so also the standard of proof applied by the requested State may differ
significantly from one country to another. The formal extradition request may be preceded by a
provisional arrest warrant.

 Principle of comity of nations captivates that, each Member State must comply with a request
from a court or prosecutor of another Member State for the execution of an arrest warrant issued
by it against an individual accused of an offence carrying a minimum sentence of 12 months of
imprisonment.

 The arrest warrant needs to contain only a description of the circumstances albeit which the
offence was committed.

 The judicial authorities and not the executive, is to decide upon the request of extradition.

 Certain acts, that is, military, political or fiscal offences, have been deemed traditionally
outside the realm of extraditable offences. Recent developments have added to this list the
political offence exemption‘.

India-

 A requisition for the surrender of a fugitive criminal is to be made to the Central Government
by: (a) A diplomatic representation by the Foreign State, at Delhi; or, (b) The Government of the
concerned Foreign State may communicate with the Central Government through its diplomatic
representation in that State; or, (c) By other modes settled by arrangements ensuing between
India and other countries.

 Upon requisition, the Central Government may, if it thinks fit, can order for an inquiry by a
Magistrate. Magistrate‘ for the purpose of Section 5 of the 1962 Act, shall mean: (a) A
Magistrate of First Class or Presidency Magistrate (Section 2(g) of the 1962 Act); and (b) The
Magistrate, who would have jurisdiction to enquire into the offence if it had been an offence
committed within the local limits of his jurisdiction.19

 On receipt of an order under Section 5 of the 1962 Act, the Magistrate shall issue a warrant for
arrest of the fugitive criminal.20

 On appearance of the fugitive criminal before the Magistrate- the Magistrate shall: (a) Enquire
into the case; (b) Take evidence in support of the requisition; (c) Take evidence on behalf of the
fugitive criminal including- evidence that no extradition offence is committed.

 Evidence before the Magistrate: In any proceeding against a Fugitive Criminal, exhibits,
disposition (whether received or taken in the presence of the person against whom they are used
or not), official certificates of facts and judicial documents (if duly authenticated), may be
received in evidence before the Magistrate. 21

 What may be termed as duly authenticated documents‘: Warrants; the depositions or

statements on oath and copies thereof; certificates of, or judicial documents 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.

 If a prima-facie case is made out in support of the requisition- the Magistrate may commit the
fugitive criminal to prison; shall report the result of inquiry 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, then, Magistrate shall
discharge the fugitive criminal.

 Surrender of fugitive criminal to the Foreign State: Upon satisfaction qua the primafacie report
of the Magistrate, the fugitive criminal may be surrendered to the Foreign State. Relief of Bail:
As per Section 25 of the 1962 Act (Release of Persons arrested on bail)- (a) In case of arrest or
detention of a fugitive criminal under the 1962 Act, the provisions of the Criminal Procedure
Code, 1973 relating to bail shall be applicable; (b) Magistrate shall have the same powers and

19
Section 5 of the 1962 Act-
20
Section 6 of the 1962 Act
21
Section 10 (1) of the 1962 Act
jurisdiction as a Court of Session under the Code of Criminal Procedure, 1973; (c) Option of
anticipatory bail, as well as, regular bail is available to the accused fugitive criminal.

 Restrictions on surrender of fugitive criminal: A fugitive criminal shall not be surrendered or

returned if, the offence is political in nature; the prosecution of offence is barred by time in the
Foreign State; if the person is accused of any offence in India, other than the offence for which
extradition is sought, or is undergoing sentence under any conviction in India until after he has
been discharged, whether by acquittal or on expiration of his sentence or otherwise; and until the
expiration of 15 days from the date of his being committed to prison by the Magistrate.

 Prosecution on refusal to extradition: Where the Central Government is of the opinion that a
fugitive criminal cannot be surrendered or returned, pursuant to request for extradition by the
Foreign State, the Central Government, if it deems fit and proper, it can take steps to prosecute
such fugitive criminal in India.

 Provisional Arrest under Section 34B of the 1962 Act: Upon urgent request from the Foreign
State, the Central Government may request the Magistrate (having competent jurisdiction) to
issue an immediate provisional warrant for the arrest of the fugitive criminal. It is necessary to
mention that, the fugitive criminal is to be released upon the expiration of 60 days if no request
qua his surrender or return is received, within the period of 60 days.

 Punishment of life imprisonment albeit an offence, punishment for which, ordinarily in India,
is death penalty: Section 34C of the 1962 Act provides that, where a fugitive criminal has
committed an extradition offence punishable with death penalty in India, is surrendered or is
returned by the Foreign State on request of the Central Government (India); and the laws of the
Foreign State do not provide for death penalty qua the offence for which the fugitive criminal is
convicted, then the fugitive criminal shall be liable for the punishment of life imprisonment qua
the offence

 Appellate Remedies: (a) There is no provision of statutory appeal vis-à-vis extradition

proceedings in the 1962 Act; (b) For redress of any grievance against any order vis-à-vis
extradition proceedings, the writ jurisdiction of the High-Court concerned has to be invoked.

CHAPTER 4
 EXTRADITION CASES

4.1 Abu Salem's Extradition:

When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI),
which tailed him. Abu managed to get out of the US and entered Portugal through Lisbon after
rigging up his papers. They went on to tip the Lisbon authorities that immediately seized the
Indian gangster. And, the tables turned. Abu Salem found himself on the receiving end and, the
Mumbai police, on their part had, scores to settle with the gangster whose extradition from
Portugal is shrouded with as much controversy as his role in the city's blackest blasts.

The extradition of underworld don Abu Salem was a tribute to the co-ordination among the
Central Bureau of Investigation, the ministry of home affairs, the ministry of external affairs and
the Indian embassy in Lisbon, Portugal, and was made possible by the excellent co-operation
received from the Portuguese authorities. The extradition was a landmark event for many
reasons.There is no extradition treaty between India and Portugal. The absence of such a treaty
initially created legal difficulties. Therefore this becomes an area where political considerations
play a prominent role, unless there is an applicable bilateral extradition treaty.22

Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction
should be extradited to another country that requests extradition. It can, if it wants to, take that
decision without any treaty obligations whatsoever, even by exercise of executive discretion.
Where there is a bilateral extradition treaty, the states party to it normally goes by its terms. The
process of extradition usually involves interposition of the Judiciary in both countries, and this
has permitted the emergence of some discernible principles of international law governing
extradition.23

International law recognizes four points as a basis of exercise of criminal jurisdiction by a

sovereign state, namely, territoriality (the state where the offence has been committed),
nationality (the national state of the offender or the accused), the protective principle (the state
whose essential economic or other interests have been directly and adversely affected by the
offence), and

22
Gajanan Khergamker, ‘Don to Doom’ Accessed on 26-03-2019, 12:57 P.M
23
‘India calls for global laws on extradition’ The Hindu (New Delhi, September 27, 2001)
universality (the offence being an international crime).

While these are situations largely governed by the political relations between the two countries
involved, yet even a political/administrative decision to extradite or deport is likely to go before
the law dispensing authorities including the judiciary in the extradition-requested state.24

Indian government sought his extradition under the United Nations Convention on Suppression
of Terrorism of 2000 under which all member nations have to help each other in the war against
terrorism. Portugal and India are both signatories to the Convention. In the meantime, the
Portuguese court sentenced Salem and his girlfriend Monica Bedi to four years imprisonment for
illegally entering and staying in Portugal on forged passports. The court also ordered that their
extradition could be made only after they have completed their prison term. When the CBI got to
know of Salem's plea the Portuguese lawyer representing the Indian government rushed to the
court to remind the judge about his previous order about extraditing the duo on completing their
4-year sentence.

4.2 Rajender Kumar Jain & Ors v. State through Special Police
Establishment & Ors, 1980 (3) SCC 435:

In this case the Apex Court observed that, politics are about Government and therefore, a
political offence is one committed with the object of changing the Government of a State or
inducing it to change its policy. To say that an offence is of a political character is not to absolve,
the offenders of the offence. But it will be a valid ground for the Government to advice the
Public Prosecutor to withdraw from the prosecution. The public prosecutor may withdraw from
the prosecution of a case not merely on the ground of paucity of evidence but also in order to
further the broad ends of public justice and such broad ends of public justice may well include
appropriate social, economic and political purposes. It was further held that, the Indian Penal
Code and the Code of Criminal Procedure do not recognise offences of political nature, as a
category of offences; they cannot, in the ordinary course of things. That does not mean the
offences of a political character are unknown to jurisprudence or that judges must exhibit such

24
V. S. Mani, ‘Extradition & international law’ The Hindu (New Delhi, December 17, 2002)
naiveté as to feign ignorance about them. International law recognises offences of political
character and the Indian Extradition Act specifically refers to them.

4.3 Sarabjit Rick Singh v. Union of India, 2008 (2) SCC 417:

In this case, taking note of the particular facts and circumstances of the case, the Apex Court
observed as follows: “In a proceeding for extradition no witness is examined for establishing an
allegation made in the requisition of the foreign State. The meaning of the word “evidence” has
to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report
is required to be made. The Act for the aforementioned purposes only confers jurisdiction and
powers on the Magistrate which he could have exercised for the purpose of making an order of
commitment. Although not very relevant, we may observe that in the Code of Criminal
Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now
required to look into the entire case through a very narrow hole. Even the power of discharge in
the Magistrate at that stage has been taken away.”

CONCLUSION

As per the Portuguese Constitution, no one can be extradited in respect of offences punishable by
death penalty under the law of the state requesting extradition Hence, Section 34 C of the Indian
Extradition Act, 1962, will be applicable which states that "notwithstanding anything contained
in any other law for the time being in force, where a fugitive criminal, who has committed an
extradition offence punishable with death in India, is surrendered or returned by a foreign State
on the request of the Central government."And therefore the laws of that foreign state do not
provide for the death penalty for such an offence, such fugitive criminal shall be liable for
punishment for life only for that offence.

Extradition has been defined by Oppenheimas "the delivery of an accused or a convicted

individual to the State on whose territory he is alleged to have committed, or to have been
convicted of, a crime by the State on whose territory the alleged criminal happens for the time to
be."
The right to demand extradition and the duty to surrender an alleged criminal to the demanding
State is created by a treaty. As the question of surrendering an alleged criminal to the demanding
State always involves the question of human rights, therefore the essence of maintaining the
sanctity of the agreement (that Salem shall not be awarded death penalty) shall be attributed to
the concept of human rights involved in extradition laws, which lays emphasis on the law of the
country in which the offender seems to be at the time of extradition.

BIBLIOGRAPHY

BOOKS:

 P. Ramanatha Aiyar‟s Concise Law Dictionary, Lexis Nexis, Fifth Edition

 Black‘s Law Dictionary, Centennial Edition (1891-1991), Sixth Edition
 J.G. Starke, Introduction to International Law, Tenth Edition

STATUTES:

 The Fugitive Offenders Act, 1881

 The Foreigners Act, 1946
 The Indian Penal Code, 1860
 The Explosive Substances Act, 1908
 The Extradition Act, 1903
 The Extradition Act, 1962
 The Code of Criminal Procedure, 1973

ARTICLES:

 Gajanan Khergamker, ‘Don to Doom’

 V. S. Mani, ‘Extradition & international law’ The Hindu (New Delhi, December 17,
2002)