Extradition Act of 1962: Facilitating Criminal Trials Between Countries

Ten members were declared “fugitive economic offenders” in the last five years, and their cases involved fraud of more than Rs. 40,000 Crs. These individuals have fled India to other countries. In such cases, extradition is key in bringing them to justice.

In India, the Extradition Act of 1962 governs the extradition of fugitives. Extradition is the transfer of an offender or an alleged offender from one country to another without their consent. A competent authority hands over the offender or alleged offender to another country for prosecution. The extradition process is a judicial delivery of a criminal or a suspected criminal to another nation’s government, unlike deportation.

The Extradition Act, 1962

The Act came into force on 15 September 1962 to combine and modify the law on extraditing fugitives and lay down legal provisions for dealing with relevant matters.

• The Act is enforced in Indian territory. It deals with “composite offences”, which are those acts committed wholly or partly in another country or India. However, the impact of such an act is considered an extradition offence in India or another country.
• Extradition offences under the Act are those mentioned in a bilateral treaty with a foreign state.
• They also include offences that are punishable with a minimum of one year of imprisonment under Indian or foreign laws and have a composite offence. This is only applicable if no treaty exists between India and another country.
• The Extradition Act of 1962 (except Chapter III) can be applied in the territory of foreign states as per the order of the Indian government when it notifies the same in the official gazette.
• The Indian government has the power to restrict the application of the Extradition Act to fugitives found or suspected to be found in India. The government notifies such applications in the official gazette through the same order regarding the application in foreign territories or a separate order.
• Where the order of application made involves a treaty state,
  1. The complete text of the extradition treaty must be included in the order;
  2. The order should not be in force for a longer time than the treaty;
  3. The Indian government can appropriately modify, exempt or set criteria for applying the act for treaty enforcement.
• Suppose India is not in a bilateral treaty with the other country. In that case, the Indian government can notify an order treating an international convention to which India and the other country are parties. In such cases, the international convention is considered an extradition treaty concerning the offences under the convention.

Return of fugitive offenders to other countries with extradition arrangements

The third chapter of the act deals with returning the offenders to other countries with extradition agreements. It exclusively applies to the foreign states with which India has an extradition arrangement.

• The central government notifies the application and may also direct the application of chapters I, III, IV, and V in the foreign state with necessary changes, conditions and exceptions as the central government thinks fit.
• Any offender of a country in an extradition arrangement with India is captured and returned as per the provisions of Chapter III as applicable to the country.
• A fugitive offender in India can be arrested under a provisional warrant or endorsed warrant.
• Provisional warrant:

Endorsed warrant

If the offender is in India or there is a suspicion that the offender is in India, and the competent authority of the foreign state issued an arrest warrant, the Indian government can endorse it in a prescribed manner.

Such a warrant endorsed by the government is enough to arrest the individual and produce them before a magistrate in India.

Provisional warrant

Magistrate issues this warrant for arresting a fugitive individual suspected to be in India, is in India or on their way to India from a foreign state.

A provisional warrant is issued depending on such information received by the magistrate or such circumstances that the magistrate thinks the issuance of a warrant is justified if the act has been committed or the fugitive offender is accused or has been convicted in the magistrate’s jurisdiction.

• Upon issuing a warrant, the magistrate should send a report on warrant issuance and a certified copy or information to the government.
• The central government can discharge an individual arrested under such a warrant.
• A fugitive arrested on a provisional warrant can be released on remand for a maximum of seven days at once, depending on the circumstances that seem requisite for producing an endorsed warrant.
• Once a fugitive is apprehended, they are produced before the magistrate.
• The magistrate conducts an inquiry, and if it is satisfied that the endorsed warrant is certified and that the act for which the individual is accused or convicted qualifies as an extradition offence, it commits the convict to prison.
• The magistrate sends a certificate of committal to the central government.
• However, suppose the magistrate thinks that the endorsed warrant is not duly certified or that the act of the apprehended individual is not an extradition offence. In that case, the magistrate can keep the person in custody or release them on bail, pending the receipt of central government orders.
• The magistrate must inform the central government about the inquiry results.
• The magistrate should submit a report on the inquiry and any “written statement” of the fugitive offender to the central government for consideration.
• The central government can issue a warrant for taking the fugitive into custody and returning them to their concerned country at any time after the individual is imprisoned.
• The warrant consists of the place and the person in the foreign state to whom the fugitive criminal is handed over.

Extradition of fugitive criminals to a foreign state to which extradition arrangements do not apply

Chapter II of the Extradition Act, 1962 lays down provisions for extradition of fugitive individuals to the nations with which India has no extradition treaty or arrangement. It involves the following steps:

• A representative of the country at Delhi (embassy) or the foreign state’s government, through its representative, can request the central government to surrender the fugitive offender.
• Suppose the above methods are not possible or convenient. In that case, the process agreed upon by the Indian government and the foreign country’s government is followed.
• Upon receiving a request for surrender, the central government can discretionarily order a competent magistrate to inquire into the offence.
• A competent magistrate is the one that would have jurisdiction to try the case as if the Act has been committed within their territorial limits.
• Upon receiving the inquiry order from the central government, the magistrate issues an arrest warrant for the fugitive individual.
• The magistrate has the same or similar powers as the session court or the High Court while inquiring, determining jurisdiction, etc., when the fugitive is produced before it.
• The magistrate takes evidence:
  • for the request of surrender by the foreign state, and
  • in favour of the apprehended individual to determine if the offence qualifies as an extradition offence.
• If the magistrate thinks there is no prima facie case in favour of the foreign state’s request, the fugitive offender must be discharged.
  • However, if the magistrate thinks there is a prima facie case in favour of the foreign state’s request, the magistrate can imprison the individual and wait for the central government order.
• The magistrate should submit a report on the inquiry and a written statement of the apprehended individual to the central government.
• After receiving the report, the central government decided whether to surrender the criminal to the foreign state. It can issue a warrant for taking the criminal into custody and removing them to the other country, and handing them over to the person at the place mentioned in the warrant.
• The magistrate may issue an arrest warrant if it thinks an individual in their jurisdiction is a fugitive offender of another country.
• However, it must be based on some information or evidence that validates the issue of a warrant as if the accused committed the offence within their jurisdiction.
• The Magistrate sends a report on the warrant issued to the government and the relevant evidence or its copies to the government.
• An arrested individual is detained for a maximum duration of three months. This duration changes depending on the central government’s order regarding that individual.
• The magistrate may accept any duly certified exhibits or their copies, official certificates of facts, and legal documents citing the facts.
• The documents relevant to the extradition, like the warrants, statements under oath that are issued or taken by a judicial court in another country, or their copies, certificates, or legal documents showing conviction before a court, are considered duly certified only if;

1. A warrant is signed by a judge, a magistrate and a state officer.
2. The depositions of statements or their copies are certified by a judge, magistrate or state officer that they are true depositions or statements or true copies.
3. The certificate or a judicial document citing the fact of conviction is certified by a judge, magistrate or state officer.
4. The warrants, statements, and depositions are duly certified by the oath of a witness or seal of a state minister.

Return or surrender of accused or convicts from foreign states

• The central government makes a request to:
  1. the diplomatic representative of that country in Delhi or
  2. the government of the other country through an Indian representative in that country to surrender an accused or a convict in extradition offences committed in India, and the person is in or is suspected to be in a foreign state with which India has no extradition arrangements.
• If the above ways are inconvenient, the government can request in other ways as settled by an arrangement between the Indian government and the other country.
• An arrest warrant issued by an Indian magistrate for the arrest of an accused or convicted of extradition offence in a foreign country with an extradition arrangement should be in the prescribed manner.
• An accused or convict in extradition cases, returned or surrendered by another country as per arrest warrant, can be brought to India and handed over to the appropriate authority.
• When an individual is accused or convicted of an act (in a foreign state) which qualifies as an extradition offence in India, and the foreign state surrenders or returns the person is not tried in India until they get an opportunity to return to such state, for an offence except;
  1. Extradition offence for which the person was returned or surrendered;
  2. A lesser offence as laid out by the facts proved for securing their return or surrender other than an act for which a return or surrender order could not be legally made;
  3. The offence for which there is foreign state consent.

Conclusion

According to Indian Express, only 60 fugitives have been extradited by other countries to India since 2002. Although this was the case, the government has entered into extradition treaties with countries like Morocco and Afghanistan since then, and Operation Trishul is being carried out by the CBI today. Despite these developments, the Extradition Act plays a major role in bringing fugitive criminals to justice and the practical application of the act is yet to be seen. The act must be applied in its true sense to reap its benefits.

Thus, The country must enter into extradition treaties with more countries, thereby maintaining international relations and ensuring the effective functioning of the Extradition Act of 1962.