The Extradition Act, 1962
(34 of 1962)
An Act to consolidate and amend the law relating to the extradition of fugitive criminals [and to provide for matters connected therewith or incidental thereto] .
Be it enacted by Parliament in the Thirteenth Year of the Republic of India as follows:-
|· Delegated Legislation Provisions (Amendment) Act, 1985 (4 of 1986)
· Extradition (Amendment) Act, 1993 (66 of 1993)
- Short title, extent and commencement .(1) This Act may be called The Extradition Act , 1962.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
|Statement of Objects and Reasons.-At present, the law of extradition applicable to India is to be found scattered in the United Kingdom Extradition Act, 1870 to 1932, the Fugitive Offenders Act, 1881, and the Indian Extradition Act, 1903. The United Kingdom Extradition Act, 1870, in its application to India, authorised the extradition of fugitive offenders between India and “foreign States”, a term which meant States to which that Act was made applicable by Her Britannic Majesty’s Order in Council. The Fugitive Offenders Act, 1881, on the other hand, provided a method whereby extradition of fugitive offenders could be effected between the British dominions and possessions by a simplified form of procedure. The Indian Extradition Act, 1903, modified and supplemented the other laws by
(a) prescribing the procedure for the surrender of fugitive criminals in the case of “Foreign States”;
(b) providing a special machinery for the surrender of fugitive criminals in case of States other than “Foreign States”; and
(c) specifying the officers in India who may exercise the powers conferred by the Fugitive Offenders Act, 1881.
2. The Indian Extradition Act, 1903, was not extended to Part B States in 1951 when Part B States (Laws) Act, 1951, was enacted as it was felt even then that this should be done by a separate law after a proper examination of the position. The result is that the legal position relating to the surrender of fugitive criminals to “foreign States” and Commonwealth countries under the existing law from the erstwhile Part B States is somewhat doubtful. Further, the Supreme Court in its judgment in the case of the State of Madras v. C.G. Menon, reported in [A.I.R. 1954 S.C. 517 (Pr 11)]; (1955 S.C.R. 280) has held that after India became a republic, the Fugitive Offenders Act, 1881, has ceased to apply to India. Moreover, the present law relating to extradition contains certain lacunae on questions such as concurrent requests for the surrender of a fugitive criminal from more than one State.
3. The purpose of this Bill is to remove all such anomalies and fill in the lacunae that exist at present in the law relating to extradition and enact a consolidated and amended law for the extradition of fugitive criminals to all foreign States and Commonwealth countries.
4. A Bill on the subject was introduced in the Lok Sabha on the 7th August, 1961. The Bill was referred to a joint Committee and the Committee presented the Report on 30th November, 1961. The Bill, as reported by the Joint Committee, could not be taken up for consideration in Parliament for want of time and it lapsed on the dissolution of the Lok Sabha. The present Bill incorporates all the recommendations made by the Joint Committee and the opportunity has been taken to make certain minor changes.
5. The notes on clauses explain in detail the various provisions of the Bill.
[(a) composite offence means an act or conduct of a person occurred, wholly or in part, in a foreign State or in India but its effects or intended effects, taken as a whole, would constitute an extradition offence in India or in a foreign State, as the case may be;]
- Definitions .In this Act, unless the context otherwise requires,
(b) conviction and convicted do not include or refer to a conviction which under foreign law is a conviction for contumacy, but the term person accused includes a person so convicted for contumacy;
[(c) 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;]
(d) extradition treaty means a treaty [,agreement or arrangement] made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty [, agreement or arrangement]relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;
(e) foreign State means any State outside India [* * *] and includes every constituent part, colony or dependency of such State;
[(f) 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.]
(g) Magistrate means a Magistrate of the First Class or a Presidency [Magistrate];
(h) notified order means an order notified in the Official Gazette;
(i) prescribed means prescribed by rules made under this Act; and
(j) treaty State means a foreign State with which an extradition treaty is in operation.
- Application of Act .[(1) The Central Government may, by notified order, direct that the provisions of this Act, other than Chapter III, shall apply to such foreign State or part thereof as may be specified in the order.]
(2) The Central Government may, by the same notified order as is referred to in sub-section (1) or any subsequent notified order, restrict such application to fugitive criminals found, or suspected to be, in such part of India as may be specified in the order.
(3) Where the notified order relates to a treaty State,
(a) it shall set out in full the extradition treaty with that State;
(b) it shall not remain in force for any period longer than that treaty; and
(c) the Central Government may, by the same or any subsequent notified order, render the application of this Act subject to such modifications, exceptions, conditions and qualifications as may be deemed expedient for implementing the treaty with that State.
[(4) Where there is no extradition treaty made by India with any foreign State, the Central Government may, by notified 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.]
Extradition of fugitive criminals to foreign states [- – -]
to which chapter III does not apply
- Requisition for surrender .A requisition for the surrender of a fugitive criminal of a foreign State [- – -]may be made to the Central Government
(a) by a diplomatic representative of the foreign State [* * *] at Delhi; or
(b) by the Government of that foreign State [- – -] communicating with the Central Government through its diplomatic representative in that State [* * *];
and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of the foreign State [- – -] with the Government of India.
- Order for Magisterial inquiry .Where such requisition ismade, the Central Government may, if it thinks fit, issue an order to any Magistrate who would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction, directing him to inquire into the case.
- Issue of warrant for arrest .On receipt of an order of the Central Government under section 5, the Magistrate shall issue a warrant for the arrest of the fugitive criminal.
- Procedure before Magistrate .(1) When the fugitive criminal appears or is brought before the Magistrate, the Magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a Court of Session or High Court.
(2) Without prejudice to the generality of the foregoing provisions, the Magistrate shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State [- – -] and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence.
(3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State [* * *], he shall discharge the fugitive criminal.
(4) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State [* * *], he may commit the fugitive criminal to prison to await the orders of the Central Government, and shall report the result of his inquiry to the Central Government, and shall forward together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Central Government.
- Surrender of fugitive criminal .If, upon receipt of the report and statement under sub-section (4) of section 7, the Central Government is of opinion that the fugitive criminal ought to be surrendered to the foreign State [- – -], it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant.
- Power of Magistrate to issue warrant of arrest in certain cases .(1) Where it appears to any Magistrate that a person within the local limits of his jurisdiction is a fugitive criminal of a foreign State [- – -], he may, if he thinks fit, issue a warrant for the arrest of that person on such information and such evidence as would, in his opinion, justify the issue of a warrant if the offence of which the person is accused or has been convicted had been committed within the local limits of his jurisdiction.
(2) The Magistrate shall forthwith report the issue of a warrant under sub-section (1) to the Central Government and shall forward the information, and the evidence or certified copies thereof to that Government.
(3) A person arrested on a warrant issued under sub-section (1) shall not be detained for more than three months unless within that period the Magistrate receives from the Central Government an order made with reference to such person under section 5.
- Receipt in evidence of exhibits, depositions and other documents and authentication thereof .(1) If any proceedings against a fugitive criminal of a foreign State [- – -]under this Chapter, exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof and official certificates of facts and judicial documents stating facts may, if duly authenticated, be received as evidence.
(2) Warrants, depositions or statements on oath, which purport to have been issued or taken by any Court of justice outside India or copies thereof, certificates of, or judicial documents stating the facts of, conviction before any such Court shall be deemed to be duly authenticated if
(a) the warrant purports to be signed by a Judge, Magistrate or Officer of the State [- – -] where the same was issued or acting in or for such State [- – -]
(b) the depositions or statements or copies thereof purport to be certified, under the hand of a Judge, Magistrate or Officer of the State [* * *]where the same were taken, or acting in or for such State [- – -], to be the original depositions or statements or to be true copies thereof, as the case may require;
(c) the certificate of, or judicial document stating the fact of, a conviction purports to be certified by a Judge, Magistrate or Officer of the State [* * *] where the conviction took place or acting in or for such State;
(d) the warrants, depositions, statements, copies, certificates and judicial documents, as the case may be, are authenticated by the oath of some witness or by the official seal of a Minister of the State [- – -] where the same were [- – -] issued, taken or given.
- Chapter not to apply to [foreign States]to which Chapter III applies .Nothing contained in this Chapter shall apply to fugitive criminals [- – -] to which Chapter III applies.
Return of fugitive criminals to [foreign states] with extradition arrangements
- Application of Chapter .(1) This Chapter shall apply only to any such [foreign State] to which, by reason of an extradition arrangement entered into with that [State], it may seem expedient to the Central Government to apply the same.
(2) Every such application shall be by notified order, and the Central Government may, by the same or any subsequent notified order, direct that this Chapter and Chapters I, IV and V shall, in relation to any such [foreign State], apply subject to such modifications, exceptions, conditions and qualifications as it may think fit to specify in the order for the purpose of implementing the arrangement.
- Liability of fugitive criminals from [foreign States]to be apprehended and returned .Where a fugitive criminal of any [foreign State] to which this Chapter applies is found in India, he shall be liable to be apprehended and returned in the manner provided by this Chapter to that [foreign State].
- Endorsed and provisional warrants .A fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant.
- Endorsed warrant for apprehension of fugitive criminal .Where a warrant for the apprehension of a fugitive criminal has been issued in any [foreign State] to which this Chapter applies and such fugitive criminal is, or is suspected to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the warrant so endorsed shall be sufficient authority to apprehend the person named in the warrant and to bring him before any Magistrate in India.
- Provisional warrant for apprehension of fugitive criminal .(1) Any Magistrate may issue a provisional warrant for the apprehension of a fugitive criminal from any [foreign State]to which this Chapter applies who is, or is suspected to be, in or on his way to India, on such information and under such circumstances as would, in his opinion, justify the issue of a warrant, if the offence of which the fugitive criminal is accused or has been convicted had been committed within his jurisdiction and such warrant may be executed accordingly.
(2) A Magistrate issuing a provisional warrant shall forthwith send a report of the issue of the warrant together with the information or a certified copy thereof to the Central Government, and the Central Government may, if it thinks fit, discharge the person apprehended under such warrant.
(3) A fugitive criminal apprehended on a provisional warrant may, from time to time, be remanded for such reasonable time, not exceeding seven days at any one time, as under the circumstances seems requisite for the production of an endorsed warrant.
- Dealing with fugitive criminal when apprehended .(1) If the Magistrate, before whom a person apprehended under this Chapter is brought, is satisfied on inquiry that the endorsed warrant for the apprehension of the fugitive criminal is duly authenticated and that the offence of which the person is accused or has been convicted is an extradition offence, the Magistrate shall commit the fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal.
(2) If on such inquiry the Magistrate is of opinion that the endorsed warrant is not duly authenticated or that the offence of which such person is accused or has been convicted is not an extradition offence, the Magistrate may, pending the receipt of the orders of the Central Government, detain such person in custody or release him on bail.
(3) The Magistrate shall report the result of his inquiry to the Central Government and shall forward together with such report any written statement which the fugitive criminal may desire to submit for the consideration of that Government.
- Return of fugitive criminal by warrant .The Central Government may, at any time after a fugitive criminal has been committed to prison under this Chapter, issue a warrant for the custody and removal to the [foreign State] concerned of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant.
Surrender Or Return Of Accused Or Convicted Persons
From Foreign States [- – -]
- Mode of requisition or form of warrant for the surrender or return to India of accused or convicted person who is in a foreign State [- – -].(1) A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be in any foreign State [- – -]to which Chapter III does not apply, may be made by the Central Government
The words “or country” omitted by Act 66 of 1993, Section 3 (w.e.f. 18.12.1993).
(a) to a diplomatic representative of that State [- – -] at Delhi; or
(b) to the Government of that State [- – -] through the diplomatic representative of India in that State [- – -] ;
and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State [* * *] .
(2) A warrant issued by a Magistrate in India for the apprehension of any person who is, or is suspected to be, in any [foreign State] to which Chapter III applies shall be in such form as may be prescribed.
- Conveyance of accused or convicted person surrendered or returned .Any person accused or convicted of an extradition offence who is surrendered or returned by a foreign State [- – -]may under the warrant of arrest for his surrender or return issued in such State [- – -], be brought into India and delivered to the proper authority to be dealth with according to law.
[21. Accused or convicted person surrendered or returned by foreign State not to be tried for certain offences .Whenever any person accused or convicted of an offence, which, if committed in India would be an extradition offence, is surrendered or returned by a foreign State, such person shall not, until he has been restored or has had an opportunity of returning to that State, be tried in India for an offence other than
(a) the extradition offence in relation to which he was surrendered or returned; or
(b) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or
(c) the offence in respect of which the foreign State has given its consent.]
- Liability of fugitive criminals to be arrested and surrendered or returned .Every fugitive criminal of a foreign State [- – -] shall, subject to the provisions of this Act, be liable to be arrested and surrendered or returned, whether the offence in respect of which the surrender or return is sought was committed before or after the commencement of this Act, and whether or not a Court in India has jurisdiction to try that offence.
- Jurisdiction as to offences committed at sea or in air .Where the offence in respect of which the surrender or return of a fugitive criminal is sought was committed on board any vessel on the high seas or any aircraft while in the air outside India or the Indian territorial waters which comes into any port or aerodrome of India, the Central Government and any Magistrate having jurisdiction in such port or aerodrome may exercise the powers conferred by this Act.
- Discharge of person apprehended if not surrendered or returned within two months .If a fugitive criminal who, in pursuance of this Act, has been committed to prison to await his surrender or return to any foreign State [- – -]is not conveyed out of India within two months after such committal, the High Court, upon application made to it by or on behalf of the fugitive criminal and upon proof that reasonable notice of the intention to make such application has been given to the Central Government, may order such prisoner to be discharged unless sufficient cause is shown to the contrary.
- Release of persons arrested on bail .In the case of a person who is a fugitive criminal arrested or detained under this Act, the provisions of [the Code of Criminal Procedure, 1973 (2 of 1974)], relating to bail shall apply in the same manner as they would apply if such person were accused of committing in India the offence of which he is accused or has been convicted, and in relation to such bail, the Magistrate before whom the fugitive criminal is brought shall have, as far as may be, the same powers and jurisdiction as a Court of Session under that Code.
- Abetment of extradition offences .A fugitive criminal who is accused or convicted of abetting [, conspiring, attempting to commit, inciting or participating as an accomplice in the commission of]any extradition offence shall be deemed for the purposes of this Act to be accused or convicted of having committed such offence and shall be liable to be arrested and surrendered accordingly.
- Lawfulness of, and retaking on escape from, custody under warrants .It shall be lawful for any person to whom a warrant is directed for the apprehension of a fugitive criminal to hold in custody and convey the person mentioned in the warrant to the place named in the warrant, and if such person escapes out of any custody to which he may be delivered in pursuance of such warrant, he may be retaken as a person accused of an offence against the law of India may be retaken upon an escape.
- Property found on fugitive criminal .Everything found in the possession of a fugitive criminal at the time of his arrest which may be material as evidence in proving the extradition offence may be delivered up with the fugitive criminal on his surrender or return, subject to the rights, if any, of third parties with respect thereto.
- Power of Central Government to discharge any fugitive criminal .If it appears to the Central Government that by reason of the trivial nature of the case or by reason of the application for the surrender or return of a fugitive criminal not being made in good faith or in the interests of justice or for political reasons or otherwise, it is unjust or inexpedient to surrender or return the fugitive criminal, it may, by order, at any time stay any proceedings under this Act and direct any warrant issued or endorsed under this Act to be cancelled and the person for whose arrest the warrant has been issued or endorsed to be discharged.
- Simultaneous requisitions .If requisitions for the surrender of a fugitive criminal are received from more than one foreign State [- – -], the Central Government may, having regard to the circumstances of the case, surrender the fugitive criminal to such State [- – -]as that Government thinks fit.
- Restrictions on surrender .[(1)] A fugitive criminal shall not be surrendered or returned to a foreign State [- – -]
(a) if the offence in respect of which his surrender is sought is of a political character or if he proves to the satisfaction of the Magistrate or Court before whom he may be produced or of the Central Government that the requisition or warrant for his surrender has, in fact, been made with a view to try or punish him for an offence of a political character;
(b) if prosecution for the offence in respect of which his surrender is sought is according to the law of that State [- – -], barred by time;
[(c) unless provision is made by that law of the foreign State or in the extradition treaty with the foreign State that the fugitive criminal shall not be determined or tried in that State for an offence other than
(i) the extradition offence in relation to which he is to be surrendered or returned;
(ii) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or
(iii) the offence in respect of which the Central Government has given its consent;]
(d) if he has been accused of some offence in India, not being the offence for which his surrender or return is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise;
(e) until after the expiration of fifteen days from the date of his being committed to prison by the Magistrate.
[(2) For the purposes of sub-section (1), the offences specified in the Schedule shall not be regarded as offences of a political character.
(3) The Central Government having regard to the extradition treaty made by India with any foreign State may, by notified order, add or omit any offence from the list given in the Schedule.]
- Sections 29 and 31 to apply without any modification thereof .Notwithstanding anything to the contrary contained in section 3 or section 12, the provisions of sections 29 and 31 shall apply without any modification to every foreign State [* * *] law.
- Act not to affect the Foreigners Act, 1946 .Nothing in this Act shall affect the provisions of the Foreigners Act, 1946 (31 of 1946), or any order made thereunder.
[34. Extra-territorial jurisdiction .An extradition offence committed by any person in a foreign State shall be deemed to have been committed in India and such person shall be liable to be prosecuted in India for such offence.
34-A. Prosecution on refusal to extradition .Where the Central Government is of the opinion that a fugitive criminal cannot be surrendered or returned pursuant to a request for extradition from a foreign State, it may, as it thinks fit, take steps to prosecute such fugitive criminal in India.
34-B. Provisional arrest .(1) On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal.
(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period.
34-C. Provision of life imprisonment for death penalty .Notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central Government and the laws of that foreign State do not provide for a death penalty for such an offence, such fugitive criminal shall be liable for punishment of imprisonment for life only for that offence.]
- Notified orders and notifications to be laid before Parliament .Every notified order made or notification issued under this Act shall, as soon as may be after it is made or issued, be laid before each House of Parliament.
- Power to make rules .(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the form in which a requisition for the surrender of a fugitive criminal may be made;
(b) the form in which a warrant for the apprehension of any person in a [foreign State] to which Chapter III applies may be made;
(c) the manner in which any warrant may be endorsed or authenticated under this Act;
(d) the removal of fugitive criminals accused or in custody under this Act and their control and maintenance until such time as they are handed over to the persons named in the warrant as entitled to receive them;
(e) the seizure and disposition of any property which is the subject of, or required for proof of, any alleged offence to which this Act applies;
(f) the form and manner in which or the channel through which a Magistrate may be required to make his report to the Central Government under this Act;
(g) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or [in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
- Repeals and savings .(1) The Indian Extradition Act, 1903 (15 of 1903), and any law corresponding thereto in force at the commencement of this Act in the territories which, immediately before the 1st day of November, 1956, were comprised in Part B States and the North-East Frontier Agency and Tuensang District (Extradition) Regulation, 1961, are hereby repealed.
(2) The Extradition Acts, 1870 to 1932 and the Fugitive Offenders Act, 1881 (33 of 1881), in so far as they apply to and operate as part of the law of India, are hereby repealed.
[See section 31(2)
Offences which are not to be regarded as offences of a political character
The following list of offences is to be construed according to the law in force in India on the date of the alleged offence. Wherever the names of the relevant Acts are not given, the sections referred to are the selection of the Indian Penal Code (45 of 1860):
- Offences under the Anti-Hijacking Act, 1982 (65 of 1982).
- Offences under the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982).
- An offence within the scope of the Convention on the punishment of crimes against internationally protected persons including diplomatic agents, opened for signature at New York on 14th December, 1973.
- An offence within the scope of the International Convention against the taking of hostages opened for signature at New York on 18th December, 1979.
- Culpable homicide, murder (sections 299 to 304).
- Voluntarily causing hurt or grievous hurt by a dangerous weapon or means (sections 321 to 333).
- Offences under the Explosive Substances Act, 1908 (6 of 1908).
- Possession of a fire-arm or ammunition with intention to endanger life [section 27 of the Arms Act, 1959 (54 of 1959).
- The use of a fire-arm with intention to resist or prevent the arrest or detention [section 28 of the Arms Act, 1959 (54 of 1959).
- Causing of loss or damage to property used for public utilities or otherwise with intention to endanger life (section 425 read with section 440).
- Wrongful restraint and wrongful confinement (sections 339 to 348).
- Kidnapping and abduction including taking of hostages (sections 359 to 369).
- Offences relating to terrorism and terrorist acts [Terrorists and Disruptive Activities (Prevention) Act, 1987 (28 of 1987).
- Abetting, conspiring or attempting to commit, inciting, participating as an accomplice in the commission of any of the offences listed above.]