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EXTRADITION LAW

This article is written by ADARSH SHARMA , Siddhartha law college Dehradun , BA LLB during his internship at LeDroit India

CONTENT

  1. Introduction
  2. What is Extradition
  3. Principles even with the Extradition Law
  4. Procedure of Extradition
  5. Relevant Cases of Extradition

Introduction:-

The term Extradition is a mechanism made up of many procedures whereby a sovereign turns over to another sovereign a person who is wanted for criminal or fleeing offenses. Treaties and/or bilateral agreements serve as the basis for this transfer of humans to the asking sovereign; nevertheless, on occasion, this delivery of individuals takes place out of comity and reciprocity as a sign of civility and goodwill between the sovereigns

Every state exercises total sovereignty over every individual living inside its borders. Yet, when a criminal flees to another state after committing a crime in their own state. It is difficult to preserve peace and order in this circumstance because the fugitives put the global criminal justice system in jeopardy, and the nation feels helpless to pursue the guilty individual .

to uphold the dignity of law and order and overcome the state’s inability to enforce its jurisdiction over the fugitive inside another state’s territory. Therefore, a company between the state and the state should be established in order to settle the issue via mutual recognition of the societal necessity to form inter-jurisdictional corporations, which would allow for the practice of repatriating criminally condemned individuals back to their home countries.

Therefore, extradition is typically seen as a kind gesture by the government of one state to imprison the offender and communicate to the state that the criminals who are evading justice are granted. However, a lot of states did not accept the legal authority of another state to convict a criminal. Therefore, extradition laws are not governed by any specific international law; instead, each nation has its own extradition treaties and agreements with other nations (for example, India has extradition treaties with 39 nations and the EXTRADTION ACT, 1962).

What is Extradition

The term Extradition is a mechanism made up of many procedures whereby a sovereign turns over to another sovereign a person who is wanted for criminal or fleeing offenses. Treaties and/or bilateral agreements serve as the basis for this transfer of humans to the asking sovereign; nevertheless, on occasion, this delivery of individuals takes place out of comity and reciprocity as a sign of civility and goodwill between the sovereigns

In State of W.B  v. Jugal Kishore7[AS1] , the Supreme Court of India specified extradition as the surrender of a person wanted to face justice for offenses for which he has been charged or found guilty and which are subject to trial in the other State’s courts by another State.

J.G stark define the term “extradition” in his book Introduction to International law (10th edition) describe The procedure by which one State, under a negotiated treaty, surrenders to any other State, at its request, a person charged or found guilty of a crime against the laws of the requesting State—the requesting State being competent to trial the alleged offender—is known as extradition. Although extradition is granted in order to fulfill the State’s international obligations, the process by which the courts decide whether to grant extradition and under what circumstances is set by the local government of the nation. Accordingly, extradition is based on the general idea that it is in the best interests of civilized societies for criminals to face consequences. and on that account it is recognised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice

Principles even with the Extradition Law

  • Double Criminality concept: Also referred to as “Dual Criminality,” this concept stipulates that extradition is only permitted in cases when the alleged offense is illegal in both the seeking and requested states.  This principle’s justification is that the requested State should have the freedom to decline extraditing the fleeing offender if they do not consider their actions to be illegal.
  • Principle of Speciality: The purpose of the concept of specialization is to prohibit requests for extradition that are made in excess of necessary. An extradited person may only be prosecuted for offenses included in the extradition request. The State making the request guarantees that the individual will only be tried for the crime for which extradition was sought—and for no other offense. Thirteen In actuality, a fugitive criminal may specifically waive the rule of specialization upon surrender and may be tried for offenses other than or related to the offenses for which they were turned over.  Furthermore, in some circumstances, the requested State may consent to the fugitive offender’s trial for offenses other than those for which the fugitive offender was turned over to the requesting State.
  • Political Exception: Requests for extradition, even if they are legitimate, must be denied if the goal is to punish the subject for his political beliefs rather than the crime he committed. A person cannot be extradited for a political offense under the exemption for political offenses. International law does not provide a precise definition for the phrase “political offences.” It largely relies on the internal laws of the requesting State as to what constitutes a political offense. It is widely acknowledged that, even when they are carried out for political reasons, terrorist activities do not qualify as political offenses.

Procedure of Extradition

General :

  1. The concept of nulla extradition sine lege, which states that no extradition is permitted without    a law, governs extradition. This principle is essentially a variation of nullum crimine nulla pena sans lege, which states that there is no crime or penalty without a law.
  2. When requesting someone’s surrender, the State must file a formal extradition request that includes the individual’s identity and the offense that is being accused of being committed by that person.  To support the request, the requesting State must provide a number of papers. Countries may range greatly in the type and structure of evidence that is needed, as well as in the standard of proof that the requesting State applies.  A provisional arrest warrant may be  issued prior to the official extradition request.
  3. All that is required for the arrest warrant is a description of the conditions under which the offense was committed.
  4. The decision regarding an extradition request is made by the judicial branch, not the executive branch.
  5. Some activities have historically been considered outside the purview of extraditable offenses, such as military, political, or financial offenses.  The political offense exception has just been added to this list.
  • INDIA
  • An order for an outlaw criminal to comply with the Central Government may be made in one of the following ways: (a) by a foreign state strategically portraying itself in Delhi; (b) by the concerned foreign state’s government communicating with the Central Government through its conciliatory portrayal in that State; or (c) by other means decided by courses of action that follow among various nations and India.
  • In the unlikely event that it sees fit, the Central Government may, upon demand, set up a request by a magistrate. According to Section 5 of the 1962 Act, a magistrate will be defined as: (a) A Magistrate of the First Class or the Presidency who may be able to look into the crime if it was done in the area that is the farthest away from his residence
  • When the Magistrate receives a request made in accordance with Section 5 of the 1962 Act, the warrant for the outlaw criminal’s arrest will be issued.
  • The magistrate will act upon the appearance of the outlaw offender. (a) Investigate the matter; (b) Obtain evidence supporting the order: (c) Gather evidence in support of the lawbreaker, such as documentation proving the offense of rio removal was committed.
  • Proof between the magistrate. Whether obtained or taken in the presence of the person being used against them, official statements of facts, and legal documents (if property verified) are all relevant in any process against a fleeing criminal. may be presented to the magistrate as proof [12]
  • What kind of documents might be considered duly authenticated? warrants the testimony or proclamations on promise and copies of them, as well as declarations or legal omnives indicating the veracity of a conviction stamped or affirmed by the official seal of a state minister or designated authority, court, or official of the state.
  • If an immediate case is established in support of the order, the magistrate has the authority to commit the lawbreaker to jail; they will also notify the central government of the outcome of their request and forward any composed accommodation that the criminal may have made to them for consideration.
  • In the event that the demand appears to have a strong case, the magistrate will free the lawbreaker who is acting incoherently.
  • Outlaw criminal surrender to the Foreign State: If the Magistrate’s prima facie report is fulfilled, the outlaw criminal may be turned over to the Foreign State.
  • Limitations on an illegal crook’s willingness to comply: If the crime is political in character, the offender will not be released or returned[13]: the foreign state prohibits the time of the offense’s arraignment: if the person is found guilty of any crime in India other than the one for which removal is sought, or if they are serving a sentence based on a conviction in India, they cannot be released until after their release, whether it is due to an act of God, the end of their sentence, or something else entirely, and until 15 days have passed since the date when the Magistrat put him under arrest
  • Prosecution in case of refusal to remove: In the unlikely event that the Central Government determines that an outlaw criminal cannot be surrendered or returned in accordance with a foreign state’s request for removal, it may be able to bring charges against the individual in India.
  • Provisional Arrest under Section 348 of the 1962 Act: The Central Government may require the Magistrate to issue a prompt temporary warrant for the criminal’s capture upon critical solicitation from the Foreign State. It is noteworthy to mention that the outlaw criminal will be delivered after 60 days if no solicitation regarding compliance or reciprocation  is receivedwithin a sixty-day period
  • Even if the crime is punishable by death in India, life imprisonment is a kind of discipline: According to Section 34C of the 1962 Act, if a foreign state returns or gives up a criminal who has committed a removal offense for which the Central Government of India is responsible and the foreign state’s laws do not allow for death penalty in respect to the offense for which the outlaw criminal is sentenced, the outlaw criminal shall be accountable for the lite detention discipline . Appellate Remedies: (a) No judicial appeal system exists in opposition to removal processes
  • According to the 1962 Act: (a) For the purpose of reviewing any grievance against any removal request
  • protocols, the relevant High Court’s writ location must be called.

Relevant Cases of Extradition

  • Sarabjit Rick Singh v. Union of India, 2008 (2) SCC 417: The upper Court noted the following in this instance, considering the specific facts and circumstances: “No witness is examined for the purpose of establishing an allegation made in the requisition of the foreign State in a proceeding for extradition.” It is necessary to evaluate the definition of “evidence” in light of the overall intent of the Act. There won’t be a formal trial. All that has to be done is submit a report. The Magistrate is only granted authority and powers by the Act for the aforementioned 17 purposes, which he may have used to issue an order of commitment. Though it’s not very important, we might note that the 1973 CRPC gives the committing magistrate the authority. He now has to peer down a very small hole to see the full case. At that point, the magistrate’s authority of discharge has also been removed.
  • Mohammed Zubair Fauzal Awam v. State (2011 Cri LJ 2975 (as represented by the Police Inspector and Another). The petitioner, a Tamilian who is residing in India and is actually from Sri Lanka, stated that she was allowed to remain there by the experts. A complaint was brought against the petitioner under Section 41(1)(g) [18] of the Code of Criminal Procedure, 1973, based on the interpol  (New Delhi) high alert notice and the validity of a capture warrant issued by an appropriate court in Sri Lanka. The Court observed that in this case, a red-corner notice results in the mentioning State having the option to demand the candidate’s removal or take further action regarding their capture. However, since the Sri Lankan Government has not yet formally requested the removal of the solicitor, the candidate’s capture  of the applicant and enrolment of FIR under crpc1973
  • P. Pushpavathy v. MEA 2013 Cri LJ 4420 In this instance, it was decided , if an offender of a removal offense is apprehended in compliance with a legally granted arrest warrant issued by a magistrate appointed by the Indian Legislature to handle critical cases, the subsequent detention in that instance cannot be classified as unlawful or unjustified. No cause may be brought out for the issuing of a petition of habeas corpus where the detention is neither illegal nor unlawful.
  • Mr. Vijay Mallaya, Arguably the most famous extradition case in India is that of business mogul and owner of United Breweries Holdings Ltd. and Kingfisher Airlines, Dr. Vijay Mallya v. State Bank of INDIA (2018). He owed 17 Indian institutions, including the State Bank of India and the Indian Overseas Bank, an astounding?6,000 crores in debt. In 2016, Mallaya escaped India for the United Kingdom out of fear of being arrested. India requested his extradition in 2017. The London Westminster Magistrate’s Court heard Mallya’s extradition case. In 2018, the Court allowed his extradition to India. Despite the fact that his appeal at the London High Court was denied, he has not yet been returned to India because of pending legal proceedings Not to mention, in 2019 the Fugitive Economic Offender Act, 2018 designated him as a “Fugitive Economic Offender.”
  • Mr Nirav Modi was a high-end diamond jewelry vendor. The Central Bureau of Investigation (CBI) received a grievance. from the PNB in 2018, saying that Nirav and his wife, Mrs. Ami Modi, had obtained fictitious Letters of Understanding (LoU) worth?11,400 crores using fraudulent means. After that, the funds were transferred to his fifteen fictitious firms abroad. Nirav’s assets in India were seized by the Enforcement Directorate (ED) after a CBI investigation. He left India and applied for asylum in the UK. In 2018, he received a Red Corner Notice from Interpol. Nirav’s arrest warrant was issued by a Westminster Court in response to an extradition request from India. In 2021, the Court ruled to extradite him to India.

CONCLUSION

Extradition is a crucial instrument for both testing diplomatic relations and administering justice. Nevertheless, the lack of extradition agreements with other nations serves as a gap that evading criminals take advantage of. It is necessary to create a comprehensive international law governing extradition. This gap might have far-reaching effects, such as posing security hazards in the country where the fugitive takes refuge and creating legal or economic issues in the fugitive’s home country. Certain  acts,  that  is,  military,  political  or  fiscal  offences,  have  been  deemed.


 [AS1]

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