Issue 65 Vol III, June 15, 2008

L A W  &  J U S T I C E

Extradition of proclaimed offenders
Joginder Singh Toor from Toronto

Proclaimed offenders are the biggest worry of a state, a constant danger to peace and security. Absconding law, a running criminal is a constant threat, is not liable to be brought to justice till arrested and physically produced before a court. Equally traumatic is the proclamation against an alleged offender, sometimes obtained clandestinely particularly against persons living abroad, without knowing that criminal proceedings are awaiting them back home. The agony and harassment involved, the disaster not only waiting for them but also the whole family. Large number of such proclaimed offenders living abroad has the common complaint.

The trauma begins with the initiation of criminal proceedings by registering a FIR (First Information Report) in a police station or by filing a criminal complaint directly in the court. If the person accused is not found, an application made to the court for issuance of warrants for arrest, returned with the report that accused cannot be found, impels the court to declare the person as a proclaimed offender and ordering his production by arrest whenever found.

The declaration requires the person to be present in court within thirty days of the notice of the proclamation and in case the person accused fails to appear, and the offence of which he is accused is a heinous crime such as murder, kidnapping, robbery and dacoity, the person can be declared a proclaimed offender. The provisions of section 82 of CrPC for declaration of proclaimed offender do not apply to every kind of offence. Non compliance of the proclamation as proclaimed offender, after due notice, can lead to his punishment under section 174-A of the Indian Penal Code for a period of three years, besides the sentence he will have to undergo if convicted for the offence. In addition his property can be attached and procedure for his extradition can commence, unless the person charged is able to show to the court concerned or the high court of the state that his prosecution is an abuse of the process of the court and the high court quashes the proceedings and the FIR.

India has signed extradition treaties with many countries including Canada in the year 1987, duly registered in 1994. The fugitive Offenders Act (1882) provides schemes for return of fugitives to and from common wealth countries. The Extradition Act 1887 governs extraditions and as consequence thereof, as well as being party to multilateral conventions, Canada has signed bilateral extradition treaties with various countries including CTC 1987 No. 14 with Govt. of India.

Generally the extradition treaties apply if the act complained of is an offence in both the countries, covered by the doctrine of “Double Criminality” and if the person concerned is a fugitive.

There is a procedure explained in each treaty regarding extradition of accused persons, exceptions thereof and the cases where the extradition is to be denied.

There are also instances where some states, on the dint of sheer power, have resorted to abducting accused persons by military force instead of seeking extradition and following the procedure agreed upon.

Mr. Noriega, who claimed himself to be the head of panama was abducted by U.S. army on the charge of drug trafficking. George H. W. Bush administration justified the action saying that the invasion was necessary to protect the national interests in Panama Canal and to protect an armed attack by Panama. The objection of Noriega to the jurisdiction of the court to try him, he having been head of the state and having been abducted, instead of being extradited was dismissed saying that he was not recognized head of the state and that the court was not concerned with the means of his being present in court.

Similarly Alverez a citizen of Mexico and a physician abducted by the U.S. for a trial before U.S. court when challenged by Govt. of Mexico that their citizen was abducted and not extradited and could not be tried by the U.S. court as such, was accepted by the district court and the appellant court but the U.S. supreme court by a majority judgment held the trial to be valid besides the dissenting note by three judges in very strong words disapproving abduction and consequent proceedings.

The extradition treaty between the governments of India and  Canada, perceives the return of a person accused or convicted of an offence if found in the territory of the other state. It covers the offences committed outside the territory but within the jurisdiction asserted by the requesting state as in case of offences committed on ships or planes beyond the territory of the respective country. Before an extradition can be sought the requesting state is to show to the requested state that the offence complained of is punishable as a criminal offence in both the countries and involves punishment of more than one year. Extradition can be sought for offences relating to revenue and economic offences also.

The treaty excludes extradition of persons accused of offences punishable for less than six months and if already convicted by the other state his remaining sentence is less than six months. The requested state can refuse extradition if it decides that the accused can be tried in one of its own courts or if requested state considers that the affects of extradition for consequences thereof shall have immediate grave effects.

The treaty excludes from extradition, political offences or an offence of political character or if the request for extradition is not in good faith or it has been made for political reasons or if overall circumstances do not justify extradition including the nature of the offence.

Extradition has to be refused if it relates to a military offence or if the person accused of the offence has been tried and acquitted or punished in the requested state.

Certain offences have been mentioned which are not considered as political offences, as agreed in the Hague convention of December 16, 1970, Montreal agreement of September 23, 1971 and New York declaration of December 14, 1973, declaring plane hijacking, offences against safety of civil aviation, crimes against internationally protected persons and diplomatic agents. Also offences relating to terrorism, homicide, manslaughter, hostage taking, disruption of public facilities and offences relating to fire arms, weapons, explosives and abetment of these offences are no exception.

A person extradited has to be tried within six months of his date of extradition and cannot be awarded death sentence if the offence complained of is not an offence punishable with death in the requested state.

[Mr. Toor is senior advocate from the Punjab and Haryana High Court is currently in Toronto. He can be reached jogindersingh_toor@yahoo.com]

BACK