This article is written by Amit Garg of National University of Study and Research in Law, Ranchi. This article explains the relation between Extradition and Code of Criminal Procedure.
What is Extradition?
Extradition is the act by one jurisdiction of delivering a person who has been accused of committing a crime in another jurisdiction or has been convicted of a crime in that other jurisdiction into the custody of a law enforcement agency of that other jurisdiction.
To simplify the definition, let us take into consideration an example: If A has committed a crime in the jurisdiction of Country X and fled to Country Y, then depending upon the relations of the two countries, the accused or convicted person can be extradited to the law enforcement agency of Country X by Country Y.
The extradition process is solely based upon the relation the two jurisdictions have with one another. If the two nations have a healthy relationship between them and they do have a treaty to that effect, then the process of extradition can be processed much easily. Extradition is a two-way process where the accused may be sent from one country to another or the other way around.
Procedure for Extradition
The initial procedure for extradition involves:
- The extradition process is put in motion by the receipt of information/requisition regarding fugitive criminals wanted in foreign countries. The source of information may be directly from the diplomatic channel of the concerned country, General Secretariat of ICPO/Interpol in the form of red notices or other settled modes of communication.
- After the requisition/information is received, a magistrate is asked to carry forward the inquiry in that particular case.
- After a detailed inquiry, the magistrate shall issue a warrant of arrest against the fugitive.
- A formal request by one sovereign nation to another sovereign nation is made on the basis of the warrant.
- If the accused person is found guilty in the country where the request for the same has been made, the accused may be arrested.
- The country that arrests the accused may subject him/her to the extradition process where he/she may be deported to the country who has made the request.
- It is to be taken into consideration that the accused is subjected to the laws of the nation in which he/she is found.
Extradition Laws in India
In India, the extradition of a fugitive (accused or convicted) is governed by the Extradition Act,1962. The extradition of a fugitive depends upon the treaties/conventions/arrangements entered into by India with other countries. Thus, the extradition act has to be read along with the treaty/convention/arrangement that India has with other countries.
It must be noted that it is not essential to have the treaty to extradite a person from India. If there is no extradition treaty made by India with any foreign state, the Central Government may treat any convention as an extradition treaty only to the extent of offences mentioned in the convention to which India and the foreign country is a party.
Extradition treaty means a treaty agreement or arrangement made by India with a foreign State relating to the extradition of fugitive criminals. Extradition treaty contains the conditions that need to be fulfilled to continue with the process of extradition and also a list of crimes on the basis of which a fugitive may be detained in the foreign country.
India currently has signed 42 extradition treaties with countries around the globe to ease the process of extradition. Some of the countries are Australia, Brazil, UK, USA, etc. India also has nine extradition arrangements with countries like Sweden, Singapore, Italy, etc. A list of all the treaties entered by India can be accessed from (here)
With the ever-growing connectivity across the globe, there has been a humongous growth in the crimes committed internationally. Thus, extradition is a very effective way in which cooperation among foreign nations shall help in curbing these crimes at international level and at the individual level as well.
There are more than 60 criminals that have been extradited from various countries to India in respect to various crimes committed by them from the year 2002 to date. List of Fugitives Extradited by Foreign Governments to India can be accessed from (here)
Provisions in CrPC which state the procedure to be followed for Extradition
There are several sections of CrPC which lays down the procedure that needs to be followed in the process of extradition of a fugitive from a foreign country or for sending a criminal involved in a crime in a foreign country to that country. These sections provide a guide to deal with the process of extradition.
Sections dealing with the process of extradition are:
- Section 41- When police may arrest without warrant
- Section 166A- Letter of request to a competent authority for investigation in a country or place outside India.
- Section 166B- Letter of request from a country or place outside India to a Court or an authority for investigation in India
- Section 188- Offences committed outside India.
We will discuss in detail each above-mentioned sections that are guidelines for the working out extradition.
- Section 41- When police may arrest without warrant
Section 41(1) of the Code of Criminal Procedure, 1973 lays down the condition upon which a police officer has the right to arrest an individual without a warrant. Sub-Section (g) of Section 41 provides that if the police have a reasonable complaint or a credible information against an act of an individual which is committed at a place outside India and if such an act would have been committed in India would be punishable as an offence, the police has the right to arrest or detain such individual without a warrant in India. In other words, this sub-section gives the police the power to arrest a person without a warrant if such individual is involved in an act outside India which would be punishable as an offence in India.
- Section 166A of CrPC- Letter of request to a competent authority for investigation in a country or place outside India.
This section says that if during the course of investigation for an offence, an application is made by an investigating officer who states that evidence may be available in a country or place outside India, then any criminal court may issue a letter of request to a Court or any authority in that particular country who is competent to deal with the request. The request may involve examining the person who may be acquainted with the facts and circumstances of the case or retrieving any document which may be in possession of the person being questioned pertaining to the case. Each document or statement shall be treated as an evidence as received in the course of the investigation. The court issuing the letter of request must follow the rules as specified by the Central Government in this behalf. The country so requesting to conduct an investigation in another country shall have to be bound by the extradition treaty that the two countries have. If a country does not have any treaty to that effect, the request will be rejected.
- Section 166B of CrPC- Letter of a request from a country or place outside India to a Court or an authority for investigation in India
This section of the CrPC provides for that if a letter of request is received from a foreign country by India for the purpose of investigation in India which involves examination of a person or production of any document, the Central Government may forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall exercise his discretion and either shall summon the person before him and record his statement or cause the document to be brought forward or send the letter to any police officer for investigation, who shall then investigate into the offence in the same manner, as if the offence had been committed within India. After the investigation is completed all the pieces of evidence collected during such investigation shall be forwarded by the Magistrate or police officer to the Central Government for channelling such information to the Court or the authority issuing the letter of request, in such manner as the Central Government may deem fit.
The Central Government can accept or reject the request based upon the extradition treaty that India has with that particular country requesting for an investigation.
- Section 188 – Offences committed outside India
Section 188 of the CrPC recites that when an offence is committed by a person (whether citizen or not) outside India, whether on the high seas or elsewhere, or on any ship or aircraft registered in India, he may be dealt with regard to such offence as if it had been committed at a place within India at which he may be found. For the purpose of enquiry or trial for an offence, a sanction is required from the Central Government. A person who commits a crime outside India but is subsequently found in India, he may not fall within the purview of Section 188 of the Code.
The Central Government may refuse to extradite an offender if he has already been tried in Indian court for an offense wanted for the same in a foreign country. The government may also refuse to prosecute an offender already tried in a foreign country for a particular offence.
“Extradition is thus delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the courts of the other state.” Extradition in India is governed by the Extradition Act, 1962 which lays down the procedure for extradition. Countries for the purpose of extradition need to enter into an agreement which is called treaty that will govern the extradition process. Some procedures regarding the extradition are mentioned in the Code of Criminal Procedure under the sections 41, 166A, 166B and 188. Thus, extradition is governed by several statutes and treaties.