Generally, 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 very
crucial 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 itis 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
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.
Purpose of Extradition
The purpose of extradition is to prevent crimes and to punish the criminals who
have escaped from their punishment and started to reside in another country. As
we know it would be easier for the country to punish the offender where he had
committed the offence and it would be easy to gather evidence against him for
that particular offence even if the country is unable to punish him due to
technicalities of law or lack of jurisdiction then he can be taken back to home
country through the process of extradition. Thus the object of the process of
extradition is to prevent and reduce the crimes in the international field. Thus
the role of extradition is to prevent crimes and punish criminals as it is the
interest of all countries to punish the criminals and prevent the crimes because
the country in which a person of criminal character resides, it is in the
interest of such country to ensure extradition of such a person but it also
depends on bilateral treaty and upon the principle of reciprocity but where
there is no treaty or agreement then the country can request the other country
where the offender is residing to extradite the fugitive or offender and it is
in the interest of security and law and order of such country to extradite the
In view of the increasing crimes in the international field in recent years, the
importance and prevalence of the extradition have increased. In recent years,
the provisions relating to extradition find mention in international treaties.
The universal recognition of human rights has enhanced the prevalence and
importance of extradition. International cooperation is most essential in cases
of extradition because there is hardly a country which has an extradition treaty
with all the other countries of the world.
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
(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- A fugitive
criminal shall not be surrendered if a prosecution for the offence in respect of
which his surrender is sought is according to the law of that State or country
barred by time.
(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 detained 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- Lastly if a fugitive criminal is not being surrendered or returned until
after the expiry of 15 days from the date of his being unswerving to prison by
Where prosecution on trial of the person extradited is made for a lesser offence
under section 365 I.P.C., although the said offence was not mentioned in
extradition decree, it was held that it was not illegalas 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
Essential conditions of granting extradition or restrictions on surrender:-
1.Non-Extradition of Political Criminal-it is one of the important
principles of the international law that extradition for political crimes is not
allowed. Most of the 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
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 prescribed
formalities must be fulfilled between both the countries.
Some Indian Cases on Extradition:-
(1)Savarkar's case 7- 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- 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.
(3)In November 1990, two Burmese students were persuaded to
land at Calcutta airport. They had hijacked Thai International Airbus with 205
passengers and 16membersto highlight the cause of restoration of democracy in
their country. Their six-point charter of demands, written in blood, included
restoration of democracy in Burma, ending military rule, the release of all
political prisoners and a direct dialogue with the Burmese Government. The
Indian Government refused to hand them over to Burmese or Thai authorities.
However, the Indian Government has charged them under Anti-Hijacking Act, 1982
and for criminal conspiracy.
International Treaties for extradition between India and other countries are as
1.Treaty between India and Germany-India and Germany signed an extradition
treaty at Berlin on 27th June 2001.The treaty enables 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
2.Treaty between India and Russia-India and Russia signed an extradition
treaty and this was approved 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
24thJanuary, 2003, prior to 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 apprehension by giving an understanding that terrorists
extradited to India would not be given death penalty.
5. Treaty between India and Canada-Desiring to make more effective the
cooperation 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 6thFebruary 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
7. Treaty between India and U.S.A.-India and America have been
cooperating with each other for a long time for curbing extremism and terrorism.
In several 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
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.
In the nutshell, we can conclude that the law of extradition is important for
maintaining peace and order in the society and it is also beneficial for
punishing the offenders who were trying to escape 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 promotes harmony and cooperation at international level.
Moreover, 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 co-operation with
other countries at the international level.
 D.r. S.k. Kapoor, international law and human rights 351 (20thed. 2016).
 Supranote 1, 352.
 Supranote1, at 358.
 Id. At 359.
 (2007) 5 SCC 634.
 Supranote 1, at 356.
 (1911) 13 BOMLR 296.
 1950 SCR 573.
 Supranote1, at 356.
 Supranote 1, at 364.
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