Extradition under Treaty between the Government of Republic of India and the Government of the United States of America

Section 2 (c) of the Extradition Act, 1962 defines “extradition offences” as:-

“(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.”

Since an Extradition Treaty exists between the Government of Republic of India and the Government of the United States of America, the definition of the extradition offence as provided in this Treaty would be applicable in view of the provision of Section 2(c)(i) of the Extradition Act, 1962. Article 2 of the Treaty states:

“Article 2 Extraditable Offences
1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty.
2. An offense shall also be an extraditable offense if it consists or an attempt or a conspiracy to commit, aiding or abetting, counseling or procuring the commission of or being an accessory before or after the fact to, any offense described in paragraph 1.
3. For the purposes of this Article, an offense shall be an extraditable offense:
(a) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology;
(b) whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court; or
(c) whether or not it relates to taxation or revenue or is one of a purely fiscal character.
4. Extradition shall be granted for an extraditable offense regardless of where the act or acts constituting the offense were committed.
5. If extradition has been granted for an extraditable offense, it shall also be granted for any other offense specified in the request, even if the latter offense is punishable by less than one year‟s deprivation of liberty, provided that all other requirements for extradition are met.”

Further by virtue of Article 1 extradition can be sought of a person, who, by the authorities in the requesting State is formally accused of, charged with or convicted of an extraditable offence. Article 4 of the Treaty further provides that the extradition shall not be granted if the offence for which the extradition is requested is a political offence. Article 4 of the Treaty reads as under:-

“Article 4 Political Offenses
1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.
2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:
(a) a murder or other willful crime against the person of a Head of State or Head of Government of one of the Contracting States, or of a member of the Head of State‟s or Head of Government‟s family;
(b) aircraft hijacking offenses, as described in The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at the Hague on December 16, 1970;
(c) acts of aviation sabotage, as described in the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal on September 23, 1971;
(d) crimes against internationally protected persons, including diplomats, as described in the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, done at New York on December 14, 1973;
(e) hostage taking, as described in the International Convention against the Taking of Hostages, done at New York on December 17, 1979;
(f) offenses related to illegal drugs, as described in the Single Convention on Narcotic Drugs, 1961, done at New York on March 30, 1961, the Protocol Amending the Single Convention on Narcotic Drugs, 1961, done at Geneva on March 25, 1972, and the United Nations Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances, done at Vienna on December 20, 1988;
(g) any other offense for which both Contracting States have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution; and
(h) a conspiracy or attempt to commit any of the foregoing offenses, or aiding or abetting a person who commits or attempts to commit such offenses.”

Section 31(1) (a) of the Extradition Act provides that a fugitive criminal shall not be surrendered or returned to a foreign State 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 Central Government that the order of requisition or warrant for his surrender is sought has been made with a view to punish him for an offence that is of a political character. Section 31(1) (a) of the Extradition Act reads as under:-

“31. Restrictions on surrender. (1) A fugitive criminal shall not be surrendered or returned to a foreign State or Common Wealth Country-
(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;”
For this purpose, the definition of fugitive criminal is as given under Section 2(f) of this Act, which reads:

“Section 2(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.”
10. For political offences their Lordships in Rajender Kumar Jain and others v. State through Special Police Establishment and others, 1980 (3) SCC 435 observed:

“19. We may now consider Shri Ram Panjwani’s argument that the Criminal law of India does not recognise ‘political offences’ and so there cannot be withdrawal from a prosecution on the ground that the offences involved are ‘political offences’. It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offences of a political nature, as a category of offences. They cannot, in the ordinary course of things. That does not mean that „offences of a political character are unknown to jurisprudence or that judges must exhibit such a naivette as to feign ignorance about them. Offences of a political character are well-known in International Law and the Law of Extradition. The Indian Extradition Act also refers to „offences of a political character‟. For our present purpose it is really unnecessary to enter into a discussion as to what are political offences except in a sketchy way. It is sufficient to say that politics are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy. Mahatma Gandhi, the father of the Nation, was convicted and jailed for offences against the Municipal laws; so was his spiritual son and the first Prime Minister of our country; so was the present Prime Minister and so were the first President and the present President of India. No one would hesitate to say that the offences of which they were convicted were political. Even as we are writing this judgment we read in the morning’s newspapers that King Birendra of Nepal has declared a “general amnesty to all Nepalese accused of political changes”. The expression ‘political offence’ is thus commonly used and understood though perhaps ‘political offence’ may escape easy identification.”

Article 9 of the Treaty provides for the procedure and documentary requirement for extradition.

“Article 9.
Extradition Procedure and Required Documents
1. All requests for extradition shall be submitted through the diplomatic channel.
2. All requests for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) information describing the facts of the offense and the procedural history of the case;
(c) a statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;
(d) a statement of the provisions of the law describing the punishment for the offense; and
(e) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable.
3. A request for extradition of a person who is sought for prosecution shall also be supported by:
(a) a copy of the warrant or order of arrest, issued by a judge or other competent authority;
(b) a copy of the charging document, if any; and
(c) such information as would justify the committal for trial of the person if the offense had been committed in the Requested State.
4. A request for extradition relating to a person who has been convicted of the offense for which extradition is sought shall also be supported by:
(a) a copy of the judgment of conviction or, if such copy is not applicable, a statement by a judicial authority that the person has been convicted;
(b) information establishing that the person sought is the person to whom the conviction refers;
(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) in the case of a person who has been convicted in absentia, the documents required in paragraph 3.”
12. Once a request for extradition is received in India, the Central Government may by virtue of Section 5 of the Extradition Act issue an order to any Magistrate who would have jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction to inquire into the case. Section 5 of the Extradition Act reads as under:

“5. Order for magisterial inquiry. Where such requisition is made, 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.”
13. Section 7 of the Act lays down the procedure that is to be followed before the Magistrate in such an inquiry:-

“7. 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.”

 In Sarabjit Rick Singh v. Union of India (UOI), (2008) 2 SCC 417 their Lordships held:

“34. Sections 208 and 209 of the Code of Civil Procedure, 1898 contemplate taking of such evidence as may be produced in support of the prosecution or on behalf of the accused that may be called for by the Magistrate. Compliance of the principle of natural justice or the extent thereof and the requirement of law is founded in the statutory scheme. The Magistrate is to make an enquiry. He is not to hold a trial. The Code of Criminal Procedure makes a clear distinction between an enquiry, investigation and trial. Authority of the Magistrate to make an enquiry would not lead to a final decision where for a report is to be prepared. Findings which can be rendered in the said enquiry may either lead to discharge of the fugitive criminal or his commitment to prison or make a report to the Central Government forwarding therewith a written statement which the fugitive criminal may desire to submit for consideration of the Central Government. Sub-section (2) of Section 7 envisages taking of such evidence as may be produced in support of the requisition of the foreign State as also on behalf of the fugitive criminal. It is open to the fugitive criminal to show that the offence alleged to have been committed by him is of political character or the offence is not an extraditable offence. He may also show that no case of extradition has been made out even otherwise. The Magistrate, therefore, in both the situations is required to arrive at a prima facie finding either in favour of fugitive criminal or in support of the requesting state. [See Sohan Lal Gupta v. Asha Devi Gupta (Smt) and Ors. (2003) 7 SCC492 ].

In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word “evidence” has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate have greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.”