Authored By- Syeda Khizra rizvi
keywords: trial, refuge, absentia, guilty, extradition.
In international law, extradition is the procedure by which one state, upon the request of another, come into effects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the preview of refuge. Extraditable persons consist of those charged with a crime but not yet tried, those tried and convicted and have escaped custody, and those guilty in absentia. The request discriminates extradition from other measures taken as banishment, expulsion, and deportation, which also leads to the forcible removal of undesirable persons.
In 1833 the first formal act providing for extradition was adopted by Belgium, which also enacted the first law on the right to asylum. The acts of Extradition not only specify extraditable crimes but also as detail processes and safeguards whilst defining the connection among the Act and the treaty. Some states allow extradition requests in cases where they have exchanged declaration of reciprocity with regard to the requesting States but there has been a practice of denying extradition requests in the non-presence of a binding international obligation amongst the states, often fugitives are surrendered on the basis of municipal law or as an act of good faith done by the State parties.
The procedure of extradition is subject to two factors:
· Existence of a binding extradition agreement and
· The municipal laws of the country from which the extradition is being requested accordingly.
(Indian) Extradition Act, 1962 (Act)- Procedure
Currently the Government of India has bilateral Extradition Treaties about forty-two countries and Extradition Arrangements with other nine countries to ease and quicken the process of extradition. The extradition of a fugitive from India to a foreign country or vice-versa is governed by the prior mentioned in the Indian Extradition Act, 1962. Under Section 3 of the said Act, a notification could be issued by the Government of India expanding the provisions of the Act to the country or countries notified.
The legal basis for Extradition with States with whom India does not have an Extradition Treaty (non-Treaty States) is given under Section 3(4) of the Indian Extradition Act, 1962, which states that the Central Government may, by notified order, treat any convention to which India and a foreign state are parties to each other, as an Extradition Treaty made by India with that foreign state providing for extradition with regard to the offences specified in that Convention respectively.
Henceforth, after when the filling of the charge sheet by Investigative Agency, if the Magistrate takes cognizance of the same, issuing orders or directions justifying the committal of the accused to trial Or else seeking the presence of the accused to face trial, the request for extradition would be made to the Ministry of External Affairs.
The request will be in the form of a self-contained affidavit by the Magistrate, making out a prima facie case against the guilty. Thus, to make out a prima facie case, the affidavit is required to provide brief facts and a history of the case with reference to the statements of witnesses and relevant documentary evidence, provisions of law invoked and the depiction of the accused, establishing his identity. It is very necessary to specify the offences for which the accused is charged and the provisions of law indicating the maximum sentence thereof.
The request for extradition must contain an order of the Magistrate justifying the accused person's committal to trial on the basis of the evidence made available in the charge-sheet, with directions given to secure the presence of the accused in Court to stand trial in the said court from the country of present stay, along with a copy of the First Information Report (FIR) duly counter-signed by the competent judicial authority respectively. Such request must be accompanied by an original and open-dated warrant of arrest stating clearly the offences for which the accused has been penalized and that the Court has taken cognizance of the said sections.
India & UK-Extradition treaties
According to Article 1 of the Extradition Treaty between India and the UK, it is the duty of India and the UK to extradite any person being accused of an offence of extradition committed within the territory of one State either before or after the entry into force of this Treaty. Each contracting state shall afford each other mutual assistance in criminal matters whatsoever.
An extradition offence is also defined as one that is punishable under the laws of both the contracting States by a term of imprisonment for a period of at least one year, excluding offences of political character but consisting offences wholly related to fiscal character or serious offences like murder, causing explosion, terrorism etc.
The request for extradition could be refused if the person is being tried for the extradition offence in the courts of the requested State or if the accused satisfies that the prosecution in the requested State is unjust, oppressive, prejudiced, discriminatory or unfair.
Thus, despite binding treaty mechanisms, the procedure of extraditing fugitives is lengthy, complex and heavily depends on domestic law and politics of the state who requested. This is not surprising as extradition is a sovereign decision. There are factors involved in extradition over which India can have control. India could adopt an approaching mission to resolve these issues, and thereby improve its success rate.
With the advantages of globalization and integration carry the pressing challenge of offenders fleeing from India and providing the obstacles country faces in securing the return of these fugitives, the country must swiftly introduce reforms and leverage diplomacy to create a simpler, frictionless extradition mechanism.