What do you mean by Extradition?
The Hon’ble Supreme Court of India has stated “Extradition is the delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and justifiable in the courts of the other state”. It is a subject of International law where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction over the new law enforcement as a result of any mutual agreement or treaty signed between them.
It is a cooperative law enforcement process between the two jurisdictions and is largely dependent on the arrangements and understanding made between them.
An extradition request for an accused can be initiated in case of under-investigation under trial and convicted criminals. Besides the legal aspects of the process, extradition also involves physical transfer of the custody of the person being extradited of the legal authority of requesting jurisdiction.
Through the process of the extradition, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (requesting state). If the fugitive is found within the territory of the requesting state arrest the fugitive and subject him /her to its extradition process. The process of extradition procedures to which the fugitive will be subjected to and dependent on the law and practice of the requested state.
The consensus in international law is that normally a state does not have any obligation to surrender an alleged criminal to a foreign state because one foreign state because the principle of sovereignty is that every state has legal authority over the people within its borders. Such an absence of international obligation and the desire for the right to demand such criminals from other countries have caused most of the countries to enter such agreements with the other countries.
2. What are Extradition Treaties or Agreements?
Section 2(d) of the Indian Extradition Act 1962 defines an” Extradition Treaty as a Treaty, Arrangement/ Agreement made by India with a foreign state relating to the extradition of fugitive criminals. Traditionally speaking, most of the extradition treaties are bilateral in nature. However, most of them include the following five principles which have been endorsed by many judicial pronouncements.
1. Extradition applies only with respect to offenses clearly stipulated as such in the treaty.
2. The principle of dual criminality requires that the offenses for which the extradition has been sought to be an offense under the national laws of both the jurisdictions under the extradition.
3. The requested country must be satisfied that there is a prima facie case made out against the accused /offender.
4. The extradited person must be preceded against only the offense for which his extradition has been requested.
5. He must be accorded a fair trial taking care of the principles of natural justice
Section 31 of the Act provides the safeguards against extradition of a fugitive criminal. The said section reads as follows:
“31. Restrictions on surrender.― (1) A fugitive criminal shall not be surrendered or returned to a foreign State
(a) if the offence in respect of which his surrender is sought is of a political character or if he proves to the satisfaction of the magistrate or court before whom he may be produced or of the Central Government that the requisition or warrant for his surrender has, in fact, been made with a view to try or punish him for an offence of a political character;
(b) if prosecution for the offence in respect of which his surrender is sought is according to the law of that State barred by time;
(c) unless provision is made by that law of the foreign State or in the extradition treaty with the foreign State that the fugitive criminal shall not be determined or tried in that State for an offence other than–
(i) the extradition offence in relation to which he is to be surrendered or returned;
(ii) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or
(iii) the offence in respect of which the Central Government has given its consent;
(d) if he has been accused of some offence in India, not being the offence for which his surrender or return 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;
(e) until after the expiration of fifteen days from the date of his being committed to prison by the magistrate. (2) For the purposes of sub-section (1), the offence specified in the Schedule shall not be regarded as offences of a political character.
(3) The Central Government having regard to the extradition treaty made by India with any foreign State may, by notified order, add or omit any offence from the list given in the Schedule.”
49. Section 34B which falls in Chapter-V provides for provisional arrest. The same reads as follows:
“34B. Provisional arrest. (1) On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.
(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period.”
50. Section 35 provides that every notified order made or notification issued under the Act shall as soon as may be after it is made or issued, be laid before each House of Parliament.
51. Section 36 contains the rule making power of the Central Government to carry out the purpose of the Act. Section 36(2) without prejudice to the generality of the rule making power contained in sub-Section(1), particularises the matters in respect whereof rules may be made. Section 37 is the repeal and saving provision.
52. The Schedule to the Act referred to in Section 31(2) enlists the offences which are not to be regarded as offences of Political Character.
53. Extradition of a fugitive criminal to a Foreign State is an executive decision of the State, taken in exercise of the Sovereign Power of the State. Extradition is the surrender of a criminal fugitive by one State to another in which the criminal fugitive is liable to be punished, or has been convicted. When a requisition for surrender of a fugitive criminal is received from a Foreign State – whether or not it is a Treaty State, the rights of the fugitive criminal to be subjected to a Magisterial inquiry are preserved, wherein the Magistrate shall examine, inter-alia, whether the fugitive criminal is accused or convicted of an offence of a political character, and whether the offence is, or is not, an extradition offence. He shall conduct the inquiry in terms of Section 7 and 31 of the Act. The law of extradition is based on the broad principle that it is in the interests of all nations that crimes recognized as such by the civilized world should not go unpunished (See, Definition contained in Delhi High Court Rules, Volume III Chapter 16 : Extradition and Foreign Jurisdiction (Criminal Courts)). Extradition of A fugitive criminal may be undertaken in pursuance of a signed and ratified treaty, or even when such a treaty does not exist. The signing of an extradition treaty, or any other treaty between two or more sovereign nation States is an executive act, whereas, the act of ratification i.e., implementation of such a treaty, is a legislative function. It is the municipal law of the State which lays down the procedure to be followed, inter alia, for the purpose of conduct of the inquiry. The Act is that municipal law in India. The purpose of such an inquiry – which is not a trial, is not to decide the innocence or guilt of the fugitive criminal. The main purpose of the enquiry is to determine whether there is a prima facie case, or reasonable ground which warrants the fugitive criminal being sent to the demanding State. Merely because the Act provides for issuance of warrant for arrest of the fugitive criminal in respect of whom an Order for conduct of a Magisterial inquiry is issued under Section 6 of the Act, and the criminal fugitive is taken into custody, is no reason to consider the Act – or any provision thereof as a penal statute. The arrest of the fugitive criminal is not punitive. The whole purpose is to apprehend or prevent the further escape of the person – who is accused of certain offences and/ or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. (See Nina Pillai, SMT v. Union of India, 1997 Cr L.J. 2358]
The Extradition Magistrate is not required to go into the merits of the case but only to ascertain the questions as to :
(i) Whether the offence with which the Fugitive Criminal (FC) has been charged is an extradition offence?;
(ii) Whether the documents in support of the extradition have been sent in accordance with the extradition Treaty?; and
(iii) Whether the documents in support of the request indicate the existence of a prima facie case against the FC warranting his extradition to the Requesting State?.
In the case of Sarabjit Rick Singh vs. Union of India (Supra), the Supreme Court has considered the scope and power of Extradition Magistrate. In para 35 of the report, it was held as under :
’35. 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.’
In the case of Kamlesh Babulal Aggarwal vs. Union of India & Anr. (Supra), it was held that while holding an inquiry under Section 7 of The Extradition Act, 1962, the Magistrate is entitled to take evidence on all aspects other than as to whether the offence is of political character or not and/or is an extradition offence or not and that the other evidence would be as to the existence of a prima facie case.
20. While dealing with ‘what prima facie means’ and the scope of inquiry under Section 7 of The Extradition Act, 1962, which lays down procedure before the Magistrate, it was further observed as under :-
’12. “Prima facie” has a definite connotation in law. It is defined as “at first sight” or “accepted as so until proved otherwise” or “on face of it”, or “so far as it can be judged from the first disclosure.” The prima facie case will prevail until contradicted and overcome by other evidence. While determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence laid it was possible to arrive at the conclusion in question.
The petitioner, as aforesaid, while referring to the Schtrak case relied upon a passage in the judgment of Lord Reid only. In the judgment of Lord Hodson it is held that committal under the Extradition Act is on the same footing as committal for trial by a Magistrate in an ordinary case.
14. The Division Bench of this Court in Charles Sobhraj case (29) (1986) DLT 410 also held that the entire jurisdiction under the Act vested in the Magistrate is restricted to find out whether there is a prima facie case and that there is no further power vested in the Magistrate. It is perhaps for this reason that the Division Bench of this Court in Nina Pillai case held that the position was fairly well settled.
15. In our opinion, the power of the Magistrate in conducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure, 1973. At the stage of the framing of charge even a strong suspicion founded upon material and presumptive opinion would enable the court in framing a charge against the accused. At that stage, the court possess wider discretion in the exercise of which it can determine the question whether the material on record is such on the basis of which a conviction can be said reasonably to be possible. The requirement of Section 228 also is of a prima facie case. Sufficiency of evidence resulting into conviction is not to be seen at that stage and which will be seen by the trial court. At that stage meticulous consideration of materials is uncalled for. The persons who are not examined by the original investigating agency may be examined by another investigating agency to make the investigation more effective. The materials so obtained could also be used at trial. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not. At the stage of framing of charge, evidence is not to be weighed. The court is not to hold an elaborate inquiry at that stage.
16. Section 7 (3) and (4) of the Act in fact require a prima facie case only “in support of requisition”. Reading the said provision Along with Section 29, we feel that the ambit of inquiry under Section 7 is in fact narrower than Section 228 CrPC and is limited to find that the fugitive is not being targeted for extraneous reasons.
17. This, according to us, is the test to be applied in conducting an inquiry under Section 7 of the Act and this is the ambit and scope of the inquiry and no more.
18. The counsel for the respondent has, besides relying upon Nina Pillai case and Darshan Kumar case also relied upon Sarabjit ‘Rick’ case 2007 (93) DRJ 712 and Maninder Pal Singh Kohli case