Extradition and Criminal Law Machinery

“Keep dreaming about billions of pounds.” said Vijay Mallya, as he was

moving out from a court in UK which would be hearing India’s appeal to
extradite him (source: ​here​).

Criminals can make a mockery of justice by committing a crime in one country and
simply fleeing to another country. They just have to do this before the crime comes to
the notice of the criminal justice machinery of the country in which they committed the
crime. The country to which they move cannot take action since they have not
committed any crime within the jurisdiction of that country. Some kind of mutual
agreement or mechanism is therefore required between countries to deal with escaping
criminals.

This is where extradition comes into play. The dictionary meaning of the term extradition
is “deportation”. It is the handover of an alleged criminal or convict by one country to
another on formal request through diplomatic channels. Extradition is a process to tackle
and control crime internationally. It’s a cumulative effort by countries to punish the
criminals, who escape the laws of the land by absconding to another country.

Recent examples of extradition in India would be of Abu Salem and Vijay Mallya. The
former was extradited to India from Portugal, on the other hand India is still in the quest
to extradite the latter. Abu Salem, the accused in 1993 Mumbai bomb blast case, was, in
2005, extradited to India and was handed over to Indian authorities. Later his
extradition was held to be cancelled. Today the word “extradition” resonates with Vijay
Mallya, owner of the now defunct Kingfisher Airlines, a defaulter of Rs.9,000 crores and
odd, to the banks in India, who escaped a year back to the United Kingdom. As of
October 2017, he is facing extradition hearing before the Court of Law in U.K.

How can criminals be extradited?

This is done by means of extradition treaties or arrangements. According to the

provisions of the Extradition Act, 1962, an extradition treaty means a treaty, agreement
or arrangement made by India with a foreign state relating to the extradition of fugitive
criminals. It’s interesting to note that such international treaties have a continuing effect
unless otherwise terminated.

Who is a ‘fugitive criminal’?

According to Section 2(f) of the Extradition Act, 1962, a fugitive criminal means a person
who is accused or convicted of an extradition offence within the jurisdiction of a foreign
state and includes a person, who, while in India conspires, attempts to commit or incites
or participates as an accomplice in the commission of an extradition offence in a foreign
state.

What is pertinent to note here is that this definition talks about conviction of an offence
within the jurisdiction of foreign state and not within India. Indian convicts are simply
criminals in terms of Indian laws and not ‘fugitives’, irrespective of wherever they may

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be in the world.

What is an ‘extradition offence’?

According to Section 3(c) of the Extradition Act, 1962, “ Extradition offence" means-

(i) in relation to a foreign State, being a treaty State, an offence provided for in the
extradition treaty with that State;

(ii) in relation to a foreign State other than a treaty State an offence punishable with
imprisonment for a term which shall not be less than one year under the laws of India or
of a foreign State and includes a composite offence

Five essential elements of extradition treaties (see FAQs from Ministry of

Finance ​here​):

Offences: ​Extradition applies only with respect to offences clearly stipulated as such in
the treaty.

Dual criminality: The offence for which the extradition is sought should be an offence
under the national laws of the extradition requesting country as well as of the country
from which the extradition is requested;

Prima facie case: ​The country from which the extradition is requested must be satisfied
that there is a prima facie case made out against the offender/accused;

Proceedings only against specific offence: Section 21 of the Extradition Act 1962 lays
down that the extradited person must be proceeded only against the specific offence for
which his extradition was requested; and

Fair Trial: The accused must be accorded a fair trial, which is based on the principles of
natural justice.

The list of countries with whom India has entered into extradition treaties and a copy of
the treaties (42 as of October 2017) as well as the list of countries with whom India has
extradition arrangements (9 as of October 2017) and a copy of the arrangements can be
found ​here​.

What is the process for India to extradite criminals from other countries?

The Consular, Passport and Visa (CPV) Division, Ministry of External Affairs, Government
of India is the nodal point for dealing with extradition matters.

When there is a treaty in place

An extradition treaty can be notified under Chapter II or Chapter III and accordingly,
different procedures and evidentiary requirements will be applied for dealing with
extradition requirements from different countries. If the treaty is notified under Chapter
II, there is requirement of establishment of a prima facie case and evidence enough to
commit the case for trial had the offence been committed in India. The brief process is

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as follows:

1. A request for surrender of the fugitive criminal will be made to the central
government by either the diplomatic representative of the relevant foreign state
or the government of that foreign state;

2. The central government may, if it thinks fit, direct any magistrate to inquire into
the case, as if it were an offence committed within the local limits of his
jurisdiction;

3. If the central government so orders, the magistrate will issue a warrant for the
arrest of the fugitive criminal;

4. If on the basis of the appearance of the fugitive criminal and evidence produced,
the magistrate is of the opinion that no prima facie case is made against the
criminal, he may discharge the criminal. However, if the magistrate is of the
opinion that a prima facie case is made out, he can commit the fugitive criminal
to prison and make a report to the central government requesting an order.

5. If on the basis of the report, the central government is of the opinion that the
fugitive criminal should be surrendered, it can issue a warrant for custody,
removal and delivery of the fugitive criminal to a person and place named in the
warrant.

However, where a treaty has been notified under chapter III of the Extradition Act,
1962, the procedure is faster. In this case the fugitive criminal will be apprehended and
returned to the foreign state on the basis of an endorsed warrant or a provisional
warrant. An endorsed warrant is a warrant lawfully issued by the foreign state which will
be endorsed by the central government. A provisional warrant is a warrant issued by the
magistrate for apprehension of fugitive criminal from commonwealth country to which
this chapter applies).

Sect​ion 34C of The Extradition Act, 1962 states that where a fugitive has been
surrendered to a requesting state and the offence is such that the accused can be
prosecuted with death penalty in India, but the laws of the foreign state do not provide
for a death penalty, then the criminal shall be punishable with life imprisonment only.

Further, it may be noted that some treaties may prohibit extradition of own nationals to
a foreign country even if they have committed a crime in that country. Where a treaty
country bans extradition of own nationals, India has reciprocal provisions i.e. India also
bans extradition of Indian nationals in this case. The following table lists the countries to
which extradition of Indian Nationals is barred by the bilateral Extradition Treaty.

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 Countries to which extradition of Indian nationals is barred by treaty

France (shall not be extradited) Germany (shall not be extradited)

Spain (shall not be extradited) UAE (shall not be extradited)

Saudi Arabia (may not be extradited) Bahrain (may not be extradited)

Belarus (may not be extradited) Bulgaria (shall not be extradited)

Hong Kong (may not be extradited) Republic of Korea (may not be extradited)

Kuwait (shall not be extradited) Mongolia (may not be extradited)

Nepal (may not be extradited) Poland (shall not be extradited)

Russia (shall not be extradited) Tunisia (may not be extradited)

Turkey (shall not be extradited) Ukraine (shall not be extradited)

Uzbekistan (shall not be extradited) Vietnam (shall not be extradited)

When there is no treaty in place

In the absence of a treaty, agreement or arrangement, a relevant multilateral convention

can be considered as a legal basis for extradition from India in respect of offences
covered by that convention provided both India and the requesting country are parties to
it. However in the absence of any such treaty, agreement, arrangement or convention,
extradition may not be possible.

What is the process for India to request extradition of criminals from India
who have moved to other countries?

For requesting extradition of criminals from other countries also, the nodal point is the
CPV Division, Ministry of External Affairs, Government of India.

Where there is a treaty in place:

The State government in whose territory the alleged offence took place or the court of
law by whom the fugitive criminal is wanted or in the event of the cases put together by
investigating agencies, the Ministry of Home Affairs can put an extradition request to the
Ministry of External Affairs (MEA). The MEA in turn, will put such request before the
foreign country.

In urgent cases, the MEA can request provisional arrest through diplomatic channels, or
using the facilities of INTERPOL or CBI.

The relevant extradition treaty will specify the documents which are required for
requesting a provisional arrest, and these can include the following (a detailed list is
available ​here​):

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 1. A statement justifying why the request is urgent;

2. Details of the person including his physical description, nationality, photograph,

fingerprints and list of offences for which he is sought;

3. The location of the person sought, if known;

4. A brief statement of the facts of the case, including the location and time, if
known;

5. A brief description of the offences committed by the fugitive and availability of

prima facie evidence against him;

In order to support the extradition request, the MEA will also be required to make a
prima facie case, which requires providing copy of the legal provisions setting out
offences and penalty of offences, statement of existence and copy of warrant of arrest or
finding of guilt or judgement or conviction and a statement that if the person is
provisionally arrested, India will seek extradition within the period specified by that
country’s law.

There are very specific formatting requirements for the request as well which are listed
here​.

Once the foreign country receives the complete and proper request, it can approve or
reject the request based on the parameters in the extradition treaty. If the extradition
request is approved, the following points would have to be considered to ensure that the
process is smoothly carried out:

1. A strong escort team will be required to handle any eventuality during the
transportation of the fugitive;

2. Necessary clearances / sanctions from the relevant Ministries and State

Governments of the requesting law enforcement agency for travel of the escort
team as well as the fugitive;

3. Passport and visas of the officials forming part of the escort team are required.
Also emergency travel documents of the fugitive criminal may need to be
secured.

4. The Bureau of Civil Aviation Services circular No. 42/2005 relating to carrying
under trial prisoners (UTP) on board an aircraft should be kept in mind;

5. Where there is a change of flight involved, the airlines need to be informed and
kept ready accordingly.

Where there is no treaty

In the absence of a treaty, it is a matter for the foreign country to consider, in

accordance with its domestic laws and procedures, whether it can agree to India’s
extradition request, on the basis of an assurance of reciprocity.

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Section 3(4) of the Extradition Act 1962 states that where there is no extradition treaty
made by India with any foreign state, the central government may, by an order, 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. For example, India has signed conventions like United
Nations Convention against Corruption (see ​here​), United Nations Convention against
Transnational Organised Crime (see ​here​), International Convention for the Suppression
of Terrorist Bombings (see ​here​), SAARC Regional Convention on Suppression of
Terrorism (see ​here​). These conventions provide for extradition of criminals from the
member countries. Therefore, if India does not have an extradition treaty with the
member country of one of the aforementioned conventions, the central government
may, by an order, treat any convention to which India and such member country are
subject, as a bilateral treaty.

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