Restrictions on Surrender under Indian Law

Introduction

In general, each state is having jurisdiction all over the persons residing in their territory but sometimes there may be cases when a person after committing a crime may move or run to any other country for saving himself. In such condition, the country from where the person has escaped finds itself helpless to exercise jurisdiction to punish the guilty person. This situation is essential for determining peace and order. In such cases, peace and order can be maintained in the country when there will be an international co-operation between the countries. As it is a social principle to punish the offenders, therefore, the principle of extradition has been recognized as if there will be no such kind of cooperation among countries then it will be difficult for exercising jurisdiction in other countries and punishing the offenders for their offences.

Definition of Extradition

According to Starke-The term extradition denotes the process whereby under the treaty or upon a basis of reciprocity one state surrenders to another state at its request a person accused or convicted of a criminal offence committed against the laws of the requesting state, such requesting state is competent to try the alleged offender.

 According to Grotius-It is the duty of each state to punish the criminals or to return them to the states where they have committed the crime.

From the above definitions we can conclude that by process of extradition the offenders can be punished easily either they ran to any other country just to save themselves, as it is the duty of each state to punish the criminals, therefore, various laws and treaties are made or are being formed for dealing with such cases and situations easily.

Restrictions on Surrender under Indian Law

Section 31 of the Extradition Act, 1962, provides certain restrictions on surrender of fugitive criminals. These restrictions are as follows:-

(1) Offence of political character

A fugitive criminal shall not be surrendered or returned to a foreign State Commonwealth counter if the offence in respect of which his surrender is required is of a political character or if he proves to the agreement of the magistrate of the court before whom he may be produced or of the Central Government that the request or warrant for his surrender has, in fact, been made with a vision to try or penalize him for an offence of a political character.

(2) Prosecution for the offence being barred by time

 If fugitive criminal surrender is sought is according to the law of that State or country barred by time then he shall not be surrendered if a prosecution for the offence in respect of it.

(3) Extradition treaty or provision by law of Foreign State that Fugitive Criminal shall not be tried or detained in that for any offence committed prior to his surrender or return

 A fugitive criminal shall not be surrendered or returned to a foreign State or Commonwealth country unless provision is made by the law of the foreign State or Commonwealth country or in the extradition arrangement with the Commonwealth country that the fugitive criminal shall not, until he has been restored or has had an opportunity of returning to India, be confined or tried in that State or country for any offence committed prior to his surrender or return other than the extradition offence proved by the facts of which his surrender or return is based.

(4) After the expiration of 15 days after being committed to prison

 In the end if a fugitive criminal is not being surrendered or returned until after the expiry of 15 days from the date of his being unfaltering to prison by the magistrate.

Where prosecution on trial of the person extradited is made for a lesser offence under section 365 I.P.C., though the said offence was not mentioned in extradition decree, it was held that it was not illegal as extradition of accused was allowed for a higher offence under section 364-A I.P.C. This was held by the Supreme Court in Suman Sood alias Kamal Jeet Kaur v. State of Rajasthan.

Essentials Conditions of granting Extradition or Restrictions on Surrender

1. Non-Extradition of Political Criminal-

It is one of the crucial principles of the international law that extradition for political crimes is not allowed. Largely countries refuse to extradite the person charged for political crime i.e. to say crime committed for political purposes or crimes that are politically motivated. The practice of non-extradition for political crimes began in the French period of 1789 in the present period also most of the states find it difficult to deal with this problem as there is not a proper definition of this offence.

2. Rule of Specialty-

An accused is extradited for a particular offence and the country which requests the extradition is entitled to prosecute that person only for the crime for which he was extradited i.e. he cannot be punished for any other offence but can only be punished for the offence for which he is being extradited.

3. Double criminality

The crime for which request is made by the country for extradition that must also be a crime in the country from where the accused is being extradited.

4. Formalities

For the purpose of extradition of a person the required formalities must be fulfilled between both the countries.

Indian cases on Extradition

(1) Savarkar’s case[1]

 The facts and the decision of the Savarkar’s case has been referred earlier while explaining the essential conditions of extradition.

(2) Ram Babu Saxena V. State[2]

This case deals with section 7 of Indian Extradition Act, 1903.His lordship concluded that the Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect to in the present day in view of the merger of the Tonk State in the United State of Rajasthan. As no treaty rights exist, Section 18 of Extradition Act has no application and as Section 7 of the Act has been complied with there is no ground upon which we can interfere. Thus the Supreme Court dismissed the appeal.

International Treaties for Extradition between India and other countries

1. Treaty between India and Germany

India and Germany signed an extradition treaty at Berlin on 27th June 2001.The treaty authorize both the countries to extradite a person wanted in extraditable offences that means a person can be extradited for only those offences which are recognized as a crime in both the countries and for this purpose some crimes have also been specified in the treaty.

2. Treaty between India and Russia

India and Russia signed an extradition treaty and this was sanctioned and ratified by Russia on 15thApril 2000.

3. Treaty between India and Spain

The extradition treaty between these 2 countries was filed in June 2002.

 4. Treaty between India and France

These two countries signed the treaty on 24th January, 2003, before this treaty there were many criminals or terrorists which were to be extradited to India who might be given death penalty but for this India removed such concern by giving an understanding that terrorists extradited to India would not be given death penalty.

5. Treaty between India and Canada

Necessary to make more effective the relation of the two countries in the suppression of crime by making provision for the extradition of offenders. Therefore the Government of India signed an extradition treaty on 6th February 1987.

6. Treaty between India and Hongkong-

This treaty between India and Hong Kong was signed when Hong Kong was not the part of the china i.e. in the middle of 1997.Since China has announced that China will abide by international treaties signed during the British Rule, it is hoped that China will abide by this treaty.

7. Treaty between India and U.S.A.-

India and America has been cooperating with each other for a long time for restrain extremism and terrorism. In some cases in past, America has cooperated with India in respect of extradition of the criminal who after committing the crime had fled away to that country.

Recently America extradited Daya Singh Lahoria at the request of the Government of India. A couple of more extraditions are expected soon. On 25th June 1997, India and America entered into a treaty on extradition; t is a modern treaty containing exhaustive provisions relating to new trends on extradition. In accordance with Article 23 of the Treaty, instruments of ratification were exchanged at New Delhi on 21st July 1999, thus the treaty came into force immediately because of Article 23 provides that this treaty shall enter into force upon the exchanges of the instruments of ratification.

Conclusion

In brief, we can conclude that the law of extradition is significant for maintaining peace and order in the society and it is also beneficial for punishing the offenders who were trying to flee from their punishment. By this process, they can be called back but for this, the offence committed by them must also be an offence in the country from where they are being extradited. This type of treaties encourages harmony and cooperation at international level. Furthermore, there are several of the treaties and conventions did on the international level for dealing such issues in an easy manner as many of the offenders are unpunished due to the lack of common law or cooperation with other countries at the international level.

References

[1] (1911) 13 BOMLR 296

[2] 1950 SCR 573

[3] Extradition Act, 1962

[4] Agarwal H.O. International Law & Human Rights, 23rd Edition, Central Law Publications.

[5] D.r. S.k. Kapoor, international law and human rights.

[6] https://www.legalserviceindia.com/legal/article-1241-extradition.html

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