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“The Extradition Act is a special branch of the law of criminal procedure. It deals with criminals and those accused or convicts of certain crimes with an intention to bring them to the system of criminal justice”.The Indian Extradition Act, 1962 (The Act of 1962) prescribes India’s legislative basis for extradition. It provides the law relating to the extradition of criminals from India to foreign states and vice versa. The Extradition Act does not prescribe any definition of extradition, but the Hon’ble Supreme Court of India said, “Extradition is surrender by one state to another of a person desired to be dealt with for crime of which he has been accused or convicted and which are justiciable in the courts of the other state.”Before the Act of 1962, The Indian Extradition Act of 1903 was in force which was enacted by the British Parliament. It is only after the Constitution was adopted that The Act of 1962 came into force. ‘The Law of Extradition is a dual law. It is ostensibly a municipal law, yet it is a part of international law also’. Extradition is an essential part of the criminal justice system or could be considered as an external branch of the system. Had the Extradition Act not existed in India, the criminals could effortlessly commit crimes and flee to other countries. ‘Extradition is an accepted legal process, which is generally adopted by the states to bring such criminals back and acquire jurisdiction over fugitives in order to preserve peace, law and order, and security within their state’.Extradition is based on a principle of humanitarianism, with an effort to achieve more effectively the objective of the correction and re-education of the violator of the law.
Extradition Laws in India
The Extradition Act of 1962 consists of 5 chapters and 2 schedules. The first schedule provides a list of all commonwealth countries and the second list states the extradition offences. Chapter 1 of the act deals with various definitions and the jurisdiction of the act. Chapter 2 deals with the extradition of fugitives to foreign states. Chapter 3 deals with the return of fugitives to treaty commonwealth countries. Chapter 4 deals with the return of accused from abroad and the last Chapter provides us with miscellaneous rules about the process.
“For the process of Extradition to begin, the following conditions need to be fulfilled:
- The principle of double criminality.
- The existence of an extraditable offence.
- The Existence of an extradition treaty”
“On the other hand, the conditions which have been incorporated in many treaties, restricting the process of Extradition are:
- Extradition shall not be granted for political offences.
- The request for extradition should be time-barred.
- The rule of speciality.
- Non bis in idem One cannot be punished twice for the same offence.”
Extradition Under The Code of Criminal Procedure, 1973
Extradition and the Code of Criminal Procedure, 1973, (CrPC) are interconnected and interdependent to each other. There are certain sections under the Code of Criminal Procedure that directly deals with the process of extradition.
- Section 41(1) of the CrPC talks about the conditions upon which the police officer can arrest a person without a warrant. Sub-part (g) of this section gives power to the police to arrest an individual if they have credible information or a reasonable complaint of him committing a crime outside India, which is a crime in India, and then can they arrest the person without a warrant.
- Section 166(A) of CrPC says that an investigating officer can file an application with the criminal court if he/she believes that there exists some evidence in another country. The criminal court may, then, issue a letter of request to the respective court of the other country to examine this person and record his statement or compel the person to handover any copies of the documents in his possession which are evidence to the case.
- Section 166(B) of the CrPC lays down the procedure when a request has been sent to India for the investigation of a person. When a letter is received by India from a place outside, the central government shall forward the same to the respective magistrate of the area (Metropolitan/Judicial Magistrate) who shall summon the person before him and record the statement or send the letter to any police officer for investigation, who shall investigate the offence in the same way as followed in India. All the statements and pieces of evidence should be collected and forwarded to the central government for transmission to the requested court of the other country.
- Section 188 of the CrPC says that when an offence is committed by a foreigner in India, he/she may be dealt as if it had been committed at a place within India. Permission should be taken from the central government to begin the trial of the offence committed.
Problems with Extradition
These restrictions stated above defer the process of Extradition to a great extent. The principle of ‘Non bis in idem’ states that no person shall be punished twice for the same crime. David Headley, the mastermind of the 26/11 attacks was not extradited to India because he was imprisoned for killing 6 Americans. Therefore, he could not be extradited to India under this principle. I believe that this condition should be struck down on the grounds of unfairness as the criminal has not been tried for the first offence. It should be struck down as it is hostile to the main objective of the criminal justice system. If David Headley would have been extradited to India, he would have been given a death penalty. Now that he has murdered 6 Americans he was just imprisoned. Isn’t that unfair? A person who was responsible for killing 166 people, who deserves to be hanged under Indian law, is now in an American prison enjoying a lower degree of punishment.
Extradition is a very complex process and relies on the laws, politics and the treaty with the requested state. The process becomes smoother if the two countries have treaties and good democratic relations. Today, India has 43 Extradition treaties and 11 Extradition arrangements. The Ministry of External Affairs is the nodal authority in matters of extradition. Many treaties have adopted a clause of ‘dual criminality’ which states a fugitive will be extradited to the requested state only if he’s a committed a crime which is a crime in both countries. However, the principle of “dual criminality” is not without its challenges. To begin with, it is difficult to establish treaty principles for crimes peculiar to India’s socio-cultural conditions, such as dowry harassment, for instance.
Extradition is a discretionary concept. “Section 5 of the Extradition Act uses the word ‘may’ which clearly shows that it leaves the discretion with the Central Government to act on the request or not.” Even if a country has a treaty with the other sovereign, the country is not bound to extradite the criminal. This rule is fair as well as arbitrary. It is fair because every country has jurisdiction of the people within its boundaries and arbitrary because it’s a discretionary choice of the government to extradite a criminal.
Till date, there have been 74 criminals extradited to India since 2002. Fugitives like Mehul Choksi, Vijay Mallya, Nirav Modi, Lalit Modi and a few others who have committed fraud against the government and have managed to flee from the criminal justice system. India still has not been able to extradite them back to prosecute them before the courts.
Extradition procedures are complicated and take numerous days to be completed. The investigation, misbehaviour by police officials and incorrect format of documents are some of the irregularities that arise during extradition. While denying a request for extradition for fraud against a British Indian couple, Jatinder and Asha Rani Angurala, the UK court heavily criticised the Central Bureau of Investigation (CBI) for delays, which caused the case to remain pending for 25 years. Delays in the investigation also retard the process of submitting extradition requests or invoking Interpol mechanisms like the Red Corner Notice (RCN) that help in locating and provisionally arresting offenders. For instance, as of 2017, no request for extradition has been received from investigation agencies for the return of Lalit Modi, the former chairman of the Indian Premier League accused of financial irregularities in the tournament’s 2009 season. These examples question the efficiency of the procedure of Extradition in India. The real problem in the above examples lies in the investigation procedure. The CBI, on one hand, is staffed with approximately 6,000 officers and may be unable to expend the required manpower to complete investigations on time. On the other hand, the US’ FBI, which employs roughly 6335,000 individuals, has wide jurisdiction to investigate organised crime, white-collar crime and terrorism, among others. The police officers investigating the offence, in India, are not given wide jurisdiction. It is very clear through the language of the CrPC that in the end, the jurisdiction lies with the Central Government and not with the investigating authorities.
Suggestions And Conclusion
The Indian government must make good on its policy “to conclude extradition treaties with as many countries” as possible, and make efforts to enter into more bilateral extradition relations. The recently passed Fugitive Economic Offenders Bill, 2018 – though not without its own challenges – signifies the government’s efforts to shift its focus to preventive, ex-ante legal mechanisms.By drafting this bill, India has prevented the number of fugitives to flee abroad. For addressing investigational delays, it is imperative to improve the capacity and organisational efficiencies of law enforcement agencies so that they may conduct a speedy investigation in these cases. At present, multiple extradition cases such as those related to money laundering, terrorism and economic offences, are either taken up by the CBI or sent to the CBI, by the state police, for investigation. The CBI was created to deal with corruption cases and is understaffed to take up larger cases involving extradition. The Justice Malimath Committee report (2003) recommends setting up a Central Agency, on similar lines with the Federal Bureau of Investigation (USA), to exercise jurisdiction over crimes and offences affecting national security.If a separate Central Agency is established, it will surely help solve the problem of procedural and investigation irregularities. If not a Central Agency, a separate investigation body can be established with the Ministry of External Affairs to fasten the procedure. This body will only deal with cases of extradition and help prosecute the criminals faster.
The sections stated in the CrPC are quite clear pertaining to the process of Extradition. Only if the section could be amended to give priority to extradition cases the procedure could become more efficient and competent. With the increase in fugitives fleeing the country, running with thousands of crores, has created a real threat to the sovereign which is why The Economic Offenders Act was enacted. If the laws are made stricter and in some cases are prioritised, the process will become optimum and fastened. I believe if a clause is added to The Extradition Act of 1962, prescribing a period under which the investigation for an extradition process should be made, the process shall become smoother and faster. It is very important to do the same, as sometimes it takes the investigation agency up to 25 years to provide evidence to extradite a person (in the case of the Indian couple mentioned above)
the case of Daya Singh Lahoria, 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.”
VK Bansal, Law of Extradition in India, Introduction.
 State of West Bengal v.Jugal Kishore Here & Anr, AIR 1969 SC 1171.
VK Bansal, Law of Extradition in India, pg. 22.
VK Bansal, Law of Extradition in India, pg. 22.
Kubic Dariusz v. Union of India, (1990) 1 SCC 568.
The Extradition Act, 1962.
J T Saxena, The Extradition Act, 1962, 13 The International and Comparative Law Quarterly, at 116–138.
The Code of Criminal Procedure, 1973.
Soutik Biswas, Mumbai 26/11 attacks: Six corpses, a mobile phone call and one survivor BBC News (2018), https://www.bbc.com/news/world-asia-india-46314555.
Aarshi Tirkey, India’s Challenges in Extraditing Fugitives from Foreign Countries, QRF Issue Brief.
VK Bansal, Law of Extradition, pg. 46.
“No formal extradition request submitted against Lalit Modi to MEA”, Hindustan Times, May 14, 2017, https://www.hindustantimes.com/india-news/no-formal-extradition-request-submitted-against-lalitmodi-to-mea/story-Vlvy8uNvoMHFNrdvPmNnGI.html.
 “Overall vacancy position of CBI as on 01.03.2017”, Right to Information, Central Bureau of Investigation, http://web.archive.org/web/20170518195707/%20http://cbi.nic.in:80/rt_infoact/cbi_vac20170301.pdf5.
 Reply to Lok Sabha Unstarred Question No. 2797, May 11, 2016, https://www.mea.gov.in/lok-sabha.htm?dtl/26811/QUESTION_NO2797_EXTRADITION_TREATY.
 “The Fugitive Economic Offenders Bill, 2018”, PRS Legislative Research, http://prsindia.org/billtrack/the-fugitive-economic-offenders-bill-2018-5166/.
“Committee on Reforms of Criminal Justice System”, Vol. 1, Ministry of Home Affairs (Government of India), March 2003, 209-212, https://mha.gov.in/sites/default/files/criminal_justice_system.pdf.
 Daya Singh Lahoria v. Union of India, (2001) 4 SCC 516.