INDIAN EXTRADITION LAW: EFFECT OF FOREIGN DECREES IN INDIAN COURTS

Author(s): R. K. P. Sarup
Source: Journal of the Indian Law Institute , OCTOBER-DECEMBER 1973, Vol. 15, No. 4
(OCTOBER-DECEMBER 1973), pp. 553-581
Published by: Indian Law Institute

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 INDIAN EXTRADITION LAWj: EFFECT OF FOREIGN
DECREES IN INDIAN COURTS

R. K. P. Sarup *

THE INDIAN Extradition Act of 1962 now exclusively determ

entire extradition law in India. There are, so far, no judicial inter
or precedents on its provisions. India's quest for and punishment
ders, who flee or find themselves abroad, merits progressive att
the interests of justice. Heretofore, rarity of such cases has
persuasive to research or knowledgeability in this important part of
jurisprudence with international consequences on the part of the
fession or the judiciary. This brief paper endeavours an analysi
present extradition law with regard to foreign decrees granted
upon her requisition for the prosecution and trial of the e
person.
The legal position is governed by section 21 of the India
read with section 20 thereof. Section 21 provides :

Whenever any person accused or convicted of an offence , which

if committed in India would be an extradition offence
surrendered or returned by a foreign State or Commonweal
country, that person shall not , until he has been restored or ha
had an opportunity of returning to that State or country,
tried in India for an offence committed prior to the surren
or return, other than the extradition offence proved by the fac
on which the surrender or return is based. (Emphasis added)

This section comes into operation as a result of section 2

reads:

Any person accused or convicted of an extradition offence who

is surrendered or returned by a foreign State or Common-
wealth country may, under the warrant of arrest for his surren-
der or return issued in such State or country, be brought into
India and delivered to the proper authority to be dealt with
according to law. (Emphasis added).

The terms "offence" and "extradition offence" need to be distinguished

in the Indian enactment, especially in view of the corresponding
provision in the English Extradition Act of 1870 which purports to be
the 'model' for the Indian statute of 90 years later. "Offence", above,
means an act punishable in Indian penal law; "extradition offence" refers

* M.A., LL.M., Ph.D., J. S.D., Barrister-at-Law, Conseil juridique et fiscal .

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554 JOURNAL ÒF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

to "an offence provided for in the extradition treaty" with a foreign state
or "an offence which is specified or which may be specified by notifica-
tion under the Second Schedule" in "relation to a foreign State other than
a treaty State or in relation to a Commonwealth country".1 In other words,
''extradition offences" are specifically stated either in treaties with foreign
states, or where there is no treaty, in the second schedule of the Act, which
lists the names of the offences and sections in the Indian Penal Code or
punishable under other penal statutes.
The distinction between an "offence" and "extradition offence" is
due to the requirement of "double criminality" that the offence in the
requesting state shall also be an offence in the requested state, and the
offences listed in the second schedule of the Indian Act or in the first
schedule to the English Act of 1 870, are deemed to comprehend universal
recognition in all national penal systems. Only on the basis of such
"extradition offences" can the extradition machinery be set into motion for
requesting or granting extradition between sovereign states. The term
"extradition offence", therefore, has no purpose other than the definitional
for asking or granting extradition. India cannot grant or ask for extra-
dition in the case of a non-treaty state except for an offence which is listed
in the second schedule to the Indian Act, nor can the extradited person
be prosecuted and tried in India for any offence other than the similar
"extradition offence" in the second schedule. This means that "the extra-
dition offence", in the last part of section 21 of the Act, to be triable in
India must be an offence listed in the second schedule, which may seem
axiomatic because India could make no requisition for extradition except
for only such offences as are listed in the second schedule. This simple
and obvious fact needs to be borne in mind in view of what would follow
later in regard to the corresponding section 19 of the English Act, on
which section 21 of the Indian Act is said to be based.
The extradited person "is surrendered or returned by a foreign State
or Commonwealth country tinder the warrant of arrest for his surrender or
return issued in such State or country." Upon his surrender to the judicial
authorities in India he may be "dealt with according to law" in India. It
is evident that he can be "dealt with" or prosecuted in India only in respect
of the surrender document, "the warrant of arrest" issued in the foreign
state upon which his surrender is based. Such warrant of arrest is con-
tained in the mandatory authority of the extradition decree under the terms
and sanction of which he was extradited. He can, therefore, "be dealt with
according to law" in India only under the Indian law applicable to the
terms and mandate of the extradition decree. Under this provision in
section 20 of the Indian Act, section 21 becomes operative and, so to say,
takes over, with regard to the further legal position in Indian courts. (The

1. See s. 2(c) (/) and (//') of the Extradition Act, 1962. (Hereinafter referred to
as the Indian Act).

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1973] INDIAN EXTRADITION LA W 555

present paper is confined only to accused per

treaty states.)
Under section 21, the extradited person is n
"other than the extradition offence proved by th
der or return is based." In view of what has b
"extradition offence" simply means that the tr
the offences listed in the second schedule of the I
That is, should the person be extradited for an
able in the controlling municipal law of the forei
offence in one of the categories listed in th
earlier, such a situation may remain hypoth
offence" would mean no more than the offence w
extraditable in the law of the foreign state an
asked by India except for exactly such an offe
India would be an extradition offence."2
For the interpretation of the above operativ
Indian Act, a reference seems necessary to th
in section 19 of the English Extradition Act of

Where, in pursuance of any arrangement w

any person accused or convicted of any cri
mitted in England, would be one of the crim
first schedule to this Act is surrendered by
such person shall not , until he has been
opportunity of returning to such foreign stat
for any offence committed prior to the surren
Her Majesty's dominions other than such o
may be proved by the facts on which the surr
(Emphasis added).

The distinction between section 21 of the Indian Act and section 19

of the English Act may be noted. In England, the triability of the extra-
dited person is provided only for "such of the crimes" (that is, those "des-
cribed in the first schedule") "as may be proved" "by the facts on which the
surrender is grounded." The phrase "as may be proved" is susceptible to
two versions :
(/) "As may be proved" in the foreign country, in which case the
phrase can refer only to the quality and nature of proof that the mandatory
judicial control of foreign state may require for extradition purposes. As
foreign courts are not entitled to go into the merits of the offences in the
requisition as to the guilt or innocence of the person requested to be extra-
dited, 'proof ' in the foreign extradition proceedings is restricted to such
evidence in the requisition as may establish a prima facie proof for extradi-
tion purposes in the controlling law of the extraditing foreign state. The

2. S. 21.

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 556 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

point was discussed by Chief Justice Lord Parker in R. v. Aubrey-

Ex parte Ross-Munro ,3 in the following terms :

Admittedly they (ťproveď and 'facts') are not easy words

construe; in the first place "proved" cannot mean "proved" a
ordinarily understood. Proof will only arise if and when lhe
accused is committed, and the matter is dealt with by a jury
"Proved" cannot there (in section 19) mean proved in the ordi
nary sense of the word. In the second place "facts" are clearl
not the same as "evidence".

The words "proved" and "facts" in section 19 of the English Act do

not, therefore, relate to evidence as required in the trial court, but refer
only to the prima facie rule for the satisfaction of the mandatory judicial
control of the extraditing state, as mentioned above. The headnote of the
Aubrey-Fletcher case also refers to section 19 relating not to "evidence" but
to "jurisdiction".4
In section 21 of the Indian Act, therefore, the said prima facie rule in
the foreign extradition judicial proceedings seems even more patent. The
term used there is categorically "proved", and not "as may be proved" in
section 19 of the English Act. "Proved" is in the past tense, that is
"proved by the facts on which the surrender or return is based". The
"surrender or return is based" after ''the extradition offence (which was)
proved by the facts". "Proved" in section 21 cannot mean "proved" in
the sense of evidence, but only proved on a prima facie basis for extradition
purposes. ''Proof will only arise if and when the accused is committed (in
England or in India) and the matter is dealt with by a jury" or the trial
court. Section 21 of the Indian Act, therefore, too relates to "jurisdiction"
and not to "evidence"; under section 21, as under section 10 of the English
Act, the trial court acquires jurisdiction for the purpose of prosecution of
the extradited person under the terms and mandate of the extradition
decree.
Under section 21 of the Indian Act the extradited person is triable in
Indian courts for no offence "other than the extradition offence", that is,
the offence listed in the second schedule to the Act or in the treaty, deter-
mined to be extraditable by the mandatory judicial control of the extraditing
state, as proved prima facie according to its municipal law "by the facts"
"on which the surrender or return is based". Suchan offence as proved
prima facie for extradition purposes by the facts on which the surrender or
return is based is stated in the extradition decree. The person upon his
surrender or return may, therefore, be tried in Indian courts only for that
offence, judicially determined to be extraditable in the controlling law of
the extraditing state, as proved prima facie there "by the facts" "on which

3. (1968)1 All H.R. 99 at 102.

4. Id. at 99.

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1973] INDIAN EXTRADITION LA W SSI

the surrender or return is based". The precise n

always material, provided the exact nature of
both the countries.5
This interpretation corresponds to the international prima facie rule
in modern extradition jurisprudence and has been incorporated in section
31(c) of the Indian Act, whereunder India grants no extradition without
the prior establishment of a " prima facie case" to the satisfaction of the
Indian magistrate as if the offence in the foreign requisition "had been
committed within the local limits of his jurisdiction".6
(//) The second version of "proved" (section 21 of the Indian Act) or
"as may be proved" (section 19 of the English Act) should be mentioned
in view of certain possible confusion. According to Halsbury, extradition
is "claimed" on a state of facts and not for specific offences.7 Therefore,
it is assumed that extradition is also granted on a state of facts and the
extradited person may be tried for the offences as disclosed by those facts.
Some of the language used in the Aubrey-Fletcher case,8 to which reference
will be made later, has tended to cause confusion. In so far as "the state
of facts" must indicate an offence both in the requesting and the requested
countries and the requisition must accompany the relevant sections or pro-
visions of the Indian Penal Code or elsewhere, always subject to the man-
datory judicial control of the extraditing state in pursuance of its municipal
law, in order to determine that the offence indicated in the "state of facts"
is also an offence in the requested country and does not fall within the ban
of forbidden categories for which no extradition is available, it becomes
immaterial whether extradition is "claimed" on a "state of facts" indicating
the nature of the offence or the nature of the offence is stated in the requisi-
tion with the supporting facts in order to satisfy, prima facie , the judicial
control of the extraditing state for extradition purposes. Under all circums-
tances the extradited person is triable in the requesting country, not for
what his extradition is "claimed" in the requisition, whether on "the state
of facts" or the offences as supported by the facts, but for whatever moti-
vated his extradition, "the extradition offence proved by the facts on which
the surrender or return is based". The triable issues in the requesting country
are for whatever offences the extradition was granted and not for what it
was claimed . In other words, the person upon his surrender or return to
India9 can be tried only for the offence which was judicially determined to
be extraditable under the mandatory controlling law of the extraditing
state as proved, prima facie , to the satisfaction of the judicial control there,
by the facts, in the foreign judicial proceedings, on which his surrender or

5 S se infra note 50.

6. See ss. 5 and 7 of the Indian Act.
7. 16 Halsbury's Laws of England 566, note (c). (3rd ed. 1956).
8. Supra note 3.
9, See s. 20 of the Indian Act.

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53Ś JOURNAL ÕP TtíE INDIAN LAW INSTITUTE [Vol. 15 : 4

return is based.10 In England under section 19 of the English Act, t

extradited person may be similarly tried for "such of the crimes" as "m
be proved" prima facie in the foreign court by the facts "on which th
surrender is grounded". As the legislative design makes no substitution
without a definite purpose in the new enactment, a distinction is to be p
sumed in the replacement of "the extradition offence" in section 21 of
Indian Act for "such of the crimes" in section 19 of the English Act an
of "based" for "grounded" in the two corresponding sections. In effect
the distinction may be without a difference as "such of the crimes" refer
crimes "described in the first schedule" for extradition purposes, that i
"extradition offences" in the second schedule to the Indian Act, and
"grounded" may equate ''based" in judicial practice. It may appear,
however, that the Indian enactment is more precise and may require a
stricter construction by virtue of that precision. "Based" may seem more
limited than "grounded", as out of twenty grounds a judgment may be
"based" only on one of them.
In the converse situation section 31 provides as follows :

A fugitive criminal shall not be surrendered or returned to a

foreign State or Commonwealth country -

(a) .... (b) ....

(f) unless provision is made by the law of th
Commonwealth country or in the extradition t
foreign State or extradition arrangement wi
wealth country, that the fugitive criminal sha
has been restored or has had an opportunity
India, be detained or tried in that State or c
offence committed prior to his surrender o
than the extradition offence proved by the fac
surrender or return is based. (Emphasis add

This section contemplates international recip

matters in regard to the principle of speciality or o
and prosecution, which is discussed later in this
cornerstone of modern international extradition
mandatory requirement concerns "provision made
State" and the absence of any possibility of extr
for the said provision : that the foreign state "sh
extradited person "for any offence committed
return, other than the extradition offence proved b
surrender or return is based". Such provision m
the foreign State or Commonwealth country or
with the foreign State or extradition arrangemen
country". Section 19 of the English Act ref
10. Id. s. 21.

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1975] INDIAN EXTRA DITION LA W 559

pursuance of any arrangement with a f

provides that a person shall not be extradi
provision is made by the law of that St
nature of the acceptable provision in this re
Laws of England , i.e., a circular issued by t
the law officers of the French government, w
tion in terms of the triability of a surr
above.11 As there was no similar provision
States, it was held to exist in consequenc
Supreme Court in U.S. v. Rauscher. 12 In th
Indian courts did not hold Tarasov to be extraditable to Russia in the
absence of the said mandatory provision in Soviet legislation or any trea
ór arrangement with the Soviet Union. It is evident that in the reverse
situation under section 21 of the Indian Act, an extradited person cann
be detained or tried by Indian courts except for the offence for which h
was extradited as proved prima facie abroad by the facts on which h
surrender or return is based.
Our analysis of Indian extradition law with regard to the extradition
of a person from a foreign country upon Indian requisition maybe deemed
to yield the following juridical consequences :
(a) A person surrendered or returned by a foreign state, on a warrant
of arrest issued in such state in the mandatory authority of the
extradition decree, may be dealt with according to Indian law by
the Indian courts only in the strict context of that warrant con-
tained in the mandate of the extradition decree in pursuance of
section 20 of the Indian Act.
( b ) Section 21 becomes activated by virtue of section 20, i.e., both
sections 20 and 21 come into operation only under the sanction
and mandatory authority of the extradition decree, and the legal
position is given in section 21 of the Act on the basis of mand-
atory reciprocity contemplated in section 31 (c) of the Indian
Act.

(c) Upon his surrender or return, the extradited person cannot be

detained or tried for any offence other than the offence which
was judicially determined to be extraditable under the control-
ling municipal law of the extraditing country, and as proved
prima facie in the judicial proceedings there for extradition
purposes, by the facts, in the requisition and depositions or
other evidence, if any, on which the surrender or return is based.
That is, the extradited person is triable in Indian courts only
for the offence stated in the extradition decree ("the extradition
offence") based on the facts, in direct relation to that offence,

IT. See Re Bouvier , 42 L.J. Q.B. 17 (1872); Re Woodhall , 57 L.J.M.C. 71 (1888).

12. 119 U.S. 407(1886).

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560 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 15 : 4

on which alone the surrender or return is based. These facts too

are contained in the mandate of the extradition decree and must
be read, where necessary, in the context of the requisition in
regard to that offence and those facts on which the surrender or
return is based.
( d ) The following international principles apply : the primacy of the
judicial control of the extraditing state, the paramountcy of
the controlling municipal law of that foreign state upon the
requisition in the grant of extradition, of 'double criminality'
that the requisitioned offence shall be penally punishable in both
the countries, of 'double jeopardy' that a person already
"prosecuted and definitively judged" for the requisitioned
offences or for any part thereof in numbers or scope shall not
be extradited or tried again for that offence, the prima facie rule
that the foreign court deems the offence to be extraditable upon
the facts in the requisition and is not banned in its municipal
law for extradition purposes, and the fundamental principle of
speciality or of identity of extradition and prosecution that the
extradited person shall not be prosecuted in the requisitioning
country except for the offence for which he was extradited in
the terms and mandate of the extradition decree. These interna-
tional principles of extradition jurisprudence are of consistent
application in all national jurisdictions and are incorporated in
sections 2(c), 3, 4, 5, 7, 10, 20, 21, 29, 31 and 32 of the Indian
Act, and where not so incorporated are deemed to be so under
article 51 of the Constitution of India, the decision of the
Supreme Court of India in State of West Bengal v. Jugal Kishore
More ,13 and under the international principle that since they
have "been so widely and generally accepted, that it can hardly
be supposed that any civilized state would repudiate (them)"14.

Illustrative materials may be given below in support of the above

propositions.

Primacy of the foreign judicial control and paramountcy of foreign munici-

pal law

The legal position in England is summed up by Halsbury as follows:

If the magistrate is not satisfied on the evidence that the

prisoner has committed or was convicted of an extradition
offence, or that the act would be an offence if committed in
England, he must discharge him; if he is so satisfied, he must

13. See State of West Bengal v. Jugal Kishore More% A.I.R. 1969 S.C. 1171.
14. See the observation of Lord Alverstone in West Rand Central Gold Mining
Co. v. Rex, (1905) 2 K.B. 391 at 407.

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 1973] INDIAN EXTRA DITION LA W 561

commit him to prison.... (if certain co

with).
Extradition cannot take place unless the offence for which it is
demanded is a crime by the laws both of this country and of
the country seeking surrender, and is one of the crimes specified
in the treaty between the two countries. No extradition will
be made in respect of offences of a political nature....15

Cases abound where the requisitioned offence was not an offence in

the laws of England16 or was an offence of a political nature.17 The English
courts are held to be without jurisdiction in regard to offences whose
political nature emerges upon the facts before them.18 In France, the
mandatory judicial control is provided in article 14 of the French Extradi-
tion Law of 10 March, 192 719 and the forbidden categories for which no
extradition is: available are given in its article 5 as follows:
(1) when the individual, the object of requisition, is a French citizen
or protégé at the time of the commission of the offence for which
extradition is requested;
(2) when the crime or délit is of a political character or when it
results from circumstances with a political objective;
(3) when the crimes or délits have been committed in France or
French colonial possessions;
(4) when the crimes or délits, though committed outside France or
French colonial possessions, have been prosecuted and defini-
tively judged;
(5) when, according to the laws of the requesting State or those of
the requested State, the prescription of the Act is determined to
have been acquired prior to the requisition for extradition, or
the prescription of the punishment or sentence is prior to the
arrest of the individual concerned, and in a general manner
under all circumstances the public act of the requesting State
should have been extinguished.

The Indian Supreme Court has observed:

But whether an offender should be handed over pursuant to a

requisition is determined by the domestic law of the State on

15. 13 Halsbury's Statutes of England 246 (3rd ed. 1969).

16. R. v. Governor of Brixton Prison , Ex parte Sjoland , 29 T.L.R. 10 (1912); Rü
v. Governor of Brixton Prison , Ex parte Gardner . H968ì 1 All E.R. 636.
17. In re Castioni (1891) 1 Q.B. 149; Re Meunier , (1894) 2 Q.B. 415; R. v.
Governor of Brixton Prison , Ex parte Kilcynzski and others, (1955) 1 Q.B. 540, (1955)
1 All E.R. 31; Schtraks v. Govt, of Israel , (1964) A.C. 556, (1964) 3 All E.R. 529, In re
Zacharias and others , (1962) 2 All. E.R. 438.
18. Re Kilcynzski , supra note 17.
19. See Code of Procedure Penale, Dalloz, Paris, 302 et seq. (1970-71).

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562 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 15 : 4

which the requisition is made. Though extradition is granted

in implementation of the international commitments of the
State the procedure to be followed by the court in deciding,
whether extradition should be granted and on what terms , is
determined by the municipal law (of the extraditing state ).20

The prima facie rule inherent in the principle of the primacy o

judicial control of the foreign state is given by the Supreme C
follows :

[T]he courts of that country consider, according to their own

laws, whether the offender should be surrendered - the enquiry is
in the absence of express provisions to the contrary relating to
the prima facie evidence of the commission of the offence which
is extraditable, the offence not being a political offence nor that
the requisition being a subterfuge to secure custody for trial for
a political offence.21
It is to be noted that the above restriction on surrender refers to
the provision in section 31(a) with regard to offences of a political nature
which corresponds to the English provision mentioned above. But the
restriction upon surrender applies equally as regards offences in the
requisition which, in the controlling law of the foreign state, are banned
for extradition purposes in that law, for example under article 5 of the
French Extradition Law. In addition to offences of a political nature or
with a political objective, no extradition is possible in French law in
respect to French citizens or protégés , for offences committed in France,
for offences though committed outside France but "prosecuted and defini-
tively judged" in France or elsewhere, and with regard to offences which
are time-barred in French law or that of the requesting state. That is, in
the said judgment of the Indian Supreme Court, extradition is available
only for offences which are judicially determined to be "extraditable"
under the mandatory judicial control of the extraditing state, that is, they
are also offences in its penal system and are not barred for extradition
purposes, whether they are offences of a political nature, as in the English
and Indian laws, or fall in any of the five categories given above in
article 5 of the French law. The requisition cannot be used as a subter-
fuge to secure custody for trial for a political offence or for any of the
offences that are banned for extradition, purposes in the controlling
municipal law of the foreign state. This may appear to be the ratio
decidendi of the Jugal Kishore Move case in this regard. In so far as
section 31(c) envisages international reciprocity in extradition matters
the foreign state determines in accordance with its municipal law "whether
extradition should be granted and on what terms."22 Under section 31(c),

20. Supra note 13 at 1175 (emphasis added).

21. Id. at 1176.
22. Id. at 1175.

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1 973] INDIAN EXTRA DITION LA W 563

India decides such extradition and^the terms the

in the requesting state on the basis of an extra
India. Similarly, the controlling law concern
decree accorded to India is the French extradition law.23 Hence with
regard to persons extradited, for example, from France, the provisions of
articles 7 and 21 apply in respect of prosecution in Indian courts on the
basis of reciprocity in section 31(c) mentioned above. These articles
provide as follows :

Article 7. Save for the exceptions prescribed hereinafter, extra-

dition is accorded only on the condition that the extradited
person shall not be prosecuted, nor punished, except for an
offence which motivated his extradition.

Article 21. The extradited person shall not be prosecuted or

punished for an offence committed prior to his delivery (or
surrender), other than for an offence which motivated his
extradition.
It is otherwise in case special consent is given by the requested
government under conditions specified hereinafter.24

This issue will be dealt with in regard to the principle of speciality of

extradition.
To sum up, it seems clear that in extradition matters the municipal
law of the extraditing state is paramount as to whether extradition should
be granted and on what terms or conditions and the courts in the request-
ing country are bound, in good faith, by the terms and mandate of the
foreign extradition decree.

23. See R.C. Hingorani, The Indian Extradition Law (1969). In Chapter VI,
"Extradition From Foreign Countries", at p. 92 et seq., he says that the problem of
extradition from foreign countries to India should not form part of his book. As :
Extradition from a foreign country is mostly governed by the law of
extradition in that country. Indian law is hardly applicable in such
situations.

At p. 93 he further observes :
When the Central Government requests the foreign Government for the
surrender of a given fugitive criminal, it has to comply with the laws of
that country which are normally based on customary rules of inter-
national law on the subject.
Upon surrender of the extradited person, Indian law applies in the terms of
the extradition decree and its mandate under which alone the person may be detained
and tried in India.
24. The enviable legal draftsmanship of the French law may be noted in
comparison with the corresponding provisions in English and Indian Acts. See ss.
19 and 21 respectively. It is this Superiority' of the French law which made the
English judges to admire the French criminal law. See Re Bcllencontre, (1891) 2 Q.B.
122.

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564 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol. 15:4
Prima facie rule

This rule is obviously an adjunct of the principle of paramountcy

of the judicial control of the foreign state. Municipal laws vary with
regard to the adequacy of evidence in order to determine a prima facie case
for extradition purposes. The French law envisages only strict adherence
to the conditions prescribed in articles 9 and 10 of the French Law of
1927 and the absence of any "patent error"25 which corresponds roughly to
the provisions in section 4 of the Indian Act. Greece required almost
"conclusive proof" in the Insull case,26 a cause célèbre . Anglo-Saxon
systems, including India, demand sufficient evidence for committal in
accordance with their laws.27 Sections 5 and 7 of the Indian Act specifi-
cally provide for the finding of a "prima facie case" to the satisfaction of
the magistrate prior to extradition under section 31(c) of the Indian Act.
As long ago as 1794 the Jay Treaty between the United States and Great
Britain contained the provision that surrender shall not take place except
"upon evidence of criminality as, according to the laws of the place where
the fugitive shall be found, would justify his apprehension and committal
for trial if the crime had been committed there". In the Menon case,28 it
was said, "to surrender a fugitive offender without a 'prima facie' case being
made out is opposed to the principle of natural justice" and that the prima
facie rule was a "normal feature, almost a universal feature, of extradition
law.29

Principle of double jeopardy

"Double jeopardy" or the rule non bis in dem comprehends that a

person acquitted by a court of competent jurisdiction fcr an offence "shall
not be liable to be tried again for the same offence for which a different
charge from the cne made against him might have been made",30 or in
the language of article 5(4) of the French Law of 1927 he has been "pro-
secuted and definitively judged". The concept of "double jeopardy" in
modern jurisprudence has merited extensive research and consideration

25. In re Kilburz and Buscher , I.L.R. (France) 365 (1952), In re Patelas , I. L R.

(France) 519 (1955).
26. I.L.R. (Athens) 344 (1933-34).
27. See supra note 7 at 573 et seq., also 8 U.S. Supreme Court Digest , Annota-
ted, 62 et seq., ss. 5, 7, 10, 31(c) of the Indian Act; 31 American Jurisprudence 921
et seq., item 56 (2nd ed. 1967); atitem 35, it says "All reasonable presumptions are
indulged in to sustain the sufficiency of the instrument by which a crime is chargcd", at
p. 964 of the American Jurisprudence it has been stated, "Good fail h to the demanding
government is said to require the surrender of the accused, if there are presented
reasonable grounds for supposition of guilt as to make it proper that the alleged fugitive
be tried" (Re Herskovitz , 130 F. 173); Bingham v. Bradley , 241 U.S. 511 (1915);
Gluckman v. Henkel , 221 U.S. 508 (1910); Collins v. Loisel, 259 U.S. 309 (1921).
28. In re C.G. Menon , A.l.R. 1953 Mad. 729.
29. Id . at 739.
30. See s. 403 of the Criminal Procedure Code.

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 1973] INDIAN EXTRADITION LA W 565

and is deemed to be one of the enlightened criteria of legislative

and judicial policy.31 For the limited purpose of this paper, the per-
son extradited from a foreign country, for example France, cannot be
tried in Indian courts for any offence for which he had been "prosecuted
and definitively judged" there as so banned for extradition purposes by
article 5(4) of the French law as the offence so judged no longer
constituted an offence for extradition purposes in the controlling law of
France. As such no extradition is deemed to have been granted for the said
offence. This fact need not be stated specifically in the judgment of the
foreign court and may emerge simply from the language of the extradition
decree, the terms and mandate of which alone provide the sanction and
legal authority for prosecution in India.

Principle of double criminality

The U.S. Supreme Court declared this principle through Chief

Justice Fuller as follows :32

The general principle of international law is that in all cases of

extradition the act done on account of which extradition is
demanded must be considered a crime by both parties, and,
as to the offense charged in this case, the treaty of 1889 embo-
dies that principle in terms. The offense must be "made
criminal by the laws of both countries".
The basic significance of the "double criminality" rule is that the
offence in the requisition must also be an offence in the requested country
for extradition purposes. If either it is not such an offence in the penal
law of the foreign state or is not extraditable by virtue of the ban in the
forbidden categories of offences (section 31 of the Indian Act, with corres-
ponding provision in the English Act of 1870 ; article 5 of the French
Law of 1927) for which no extradition is possible or is no longer an
offence for extradition purposes under "double jeopardy" as having been
"definitively judged", no extradition is available or can be deemed to have
been granted. Precedents for this principle of "double criminality" are
consistent in all national jurisdictions.33 In India, under section 31(c) of

31. See R.K.P. Sarup, International Law and Municipal Law : Fresh
Approach for Mutual Development, Nordisk Tidsskrift for International Ret., 35
Acta Scandanavica Juris Gentium 42 et seq., Fase. 1-2 (1965); 6 JģI.L.I. '04etseq. (1965);
G ok aidas v. Emperor , A. I.R. 1933 Sind 333 at 335 ; McLeod v. A.G. for New South
Wales' (1891) A.C. 455; Archbold, On Indictments 125-142; R v. Miles, (1890) 24 Q.B.
D 423; R. v. Plummer, (1912) 2 K.B. 339; Halstead v. Clark, (1944) K.B. 251 ; Maqbool
Humain v. State of Bombay, A.I. R. 1953 S.C. 325; Venkataraman v. Union of India,
A. I.R. 1954 S.C. 375.
32. Wright v. Henkel, 1^0 U.S. 4U at (lyuz).
33. Sse Factor v. Laubenneimer , ¿v'j u.ò. z/o c.o. v. lwk ana ureen,
I.L.R. 434 (1954), Collins v. Loisel , supra note 27; In re Lücke, I.L.R
In re S intis I.L.R. 414 (1956); Re Gardner, supra note 1 6; Re Sjoland
Re Rush , (1969) 1 All E.R. 316; Re Dix, 18 T.L.R. 231 (1902); Finch,
43 A.J.I.L. , (1949); the Montevideo Convention, Dec. 26, 1933, IV. U
4800; Harvard Research on Extradition, 29 A.J.I.L. Supp. 81 (1935).

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566 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 15:4

the Indian Act, no person may be extradited upon a foreign requ

except on a " prima facie " case being made out under sections 5
the Act. On the international principle of reciprocity embodied in
31(c), a similar provision must obtain in the law of the foreign
in a treaty or an arrangement. However, section 2(c) defines the "e
offence", that is, the offence for which extradition may be req
granted by India as described in the treaty or in the second sch
the Act.

Principle of speciality of extradition

This principle of speciality or of the identity of extradition and

prosecution is stated by Gerhard Von Glahn,34 albeit imprecisely, as
follows :

When the fugitive is surrendered and tried after his return, he

must be tried only for the specific offense mentioned in the
request for his extradition. This is an absolute restriction ; he
may not even be tried for a lesser offense. Illustrations of the
operation of this rule abound in the history of the law, and the
case of United States v. Rauscher 35 is considered to be a classic
in this sphere.

The proposition so stated assumes the total validity of the requisition

and the grant in toto of the offences alleged in the requisition for which
extradition was requested. This assumption is not always valid as the
requisition may be granted for some of the offences either in number or
scope for the purpose of prosecution in the requesting country.36 The basic
rule of speciality of extradition is the identity of extradition and prosecution
that the extradited person shall not be prosecuted or punished for any
offence other than that which motivated his extradition. The principle
ensures a guarantee against fraudulent or devious securing of custody for
trial for offences which are banned in the controlling municipal law of the
extraditing state, ?7 either for offences of a political character as in the
English and Indian provisions or in the more comprehensive categories
mentioned in article 5 of the French Law of 1927. Sections 21 and 31(c)
of the Indian Act have incorporated the principle in terms that without a
provision in the law of the foreign state in this regard no extradition is
possible nor a trial feasible unless provision exists in the states concerned
on a reciprocal basis. Indian courts are thus barred from trying the extra-
dited person for an offence other than on the basis of said reciprocity in

34. Law Among Nations 236 (1965).

35. Supra note 12.
36. In re Bellencontre , supra note 24: Re Rush , supra note 33 ; Re Dix , supra
note 33; In re Arton (No. 2), (1896) 1 Q.B. 509 (regarding ccope of lhe offence of faux
(forgery) at pp. 512, 518); U.S. v. Rauscher , supra note 12.
37. Supra note 13 at 1176,

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1973] INDIAN EXTRADITION LA W 567

section 31(c) and hence in accordance with

the foreign state, as under articles 7 and 2
ciple has been lucidly enacted in the recent
England. Section 14 of the Act states :

(2) A person to whom this Act applies s

in the United Kingdom for or in resp
committed before he was returned to
other than :
(a) the offence in respect of which he w
(b) any lesser offence proved by the f
poses of securing his return....

It was adopted in article XIII of the treaty

United States and Spain which reads :

A person extradited under the present

tained, tried or punished in the territory
for an offense other than that for which extradition has been
granted nor be extradited by that Party to a third state....38

Lord McNair says :

In the case of Emile Arion the Law Officers reported that 'as a
matter of principle an individual cannot waive the stipulations
of a Treaty' by consenting to be tried for an alleged offence
other than the offence for which he was extradited.39

It was held as long ago as 1872 in Re Bouvier™ that where a fugitive

was requisitioned for two offences, one of which was not an offence in the
law of England, the magistrate must make it clear that the offence for which
he was committed was the only offence for which he could be extradited.
Cases have been consistent in the application of this inexorable principle in
international extradition jurisprudence in all civilized jurisdictions.41 In Re
Arton 42 mentioned by Lord McNair,43 Emile Arton could be extradited

33. 65 A.J.I.L. 914 at 920 (1971).

39. Lord McNair, II International Law Opinions 61 (1956).
40. Supra note 1 1 .
41. See cases referred to in supra note 36; see also Johnson v. Browne , 205 U.S.
309 (1906); Bryant v. U.S., 167 U.S. 104 (1896); Collins v. Loisel , supra note 27; Ker v.
Illinois, 119 U.S. 436 (1886); Collins O'Neil, 214 U.S. 1 13 (1908); Ford v. U.S. 273
U.S. 593 (1926); Buck v. King, 55 S.C.R. (Canada), 133 (1919); Hatfield v. Guay , I.L.R.
(Canada) 365 (1935-37); Fiscal v. Samper , I.L.R. (Spain) 402 (1938-40); In re Nickoloff,
I.L.R., 351 (1938-40); In re Cortes , I.L.R. 356 (1938-40); In re Marinus , I.L.R. 399 (1938-
40); In re Millet, I.L.R. 4C0 (1938-40); Austrian Extradition case, I.L.R. 410 (1956);
In re Dilasser , I.L.R. 377 (1952). See also Mettgenberg, 2 Handbuch des Volkerrechts
under Diplomatie , iv, s.c. Specialitat, 565 et seq.
42. Supra note 36.
43. Supra note 39.

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568 JOURNAL OF THÈ ÍNDlAN LAW INSTITUTE [Vol. 15 : 4

from England to France inter alia for forgery and other offences, only
the extent that forgery was an offence in English law and not for the m
comprehensive offence in article 147 of the French Penal Code.44 In oth
words, the extradited person may be tried in the requesting country on
for the offence and within the scope of the offence for which he was in fact
extradited as judicially determined to be extraditable under the munici
law of the extraditing state. This is a categorical imperative in internatio
extradition jurisprudence and uniformly applicable in all national le
systems. It would be recalled that this principle was deduced by Englan
from the decision in U.S. v. Rauscher 45 to satisfy the English provisio
"made by the law of the foreign State", in the absence of any United Sta
statutory enactment in this regard or in a treaty or arrangement, pursua
to the mandatory requirement in section 2(3) of the English Act, whic
corresponds in this regard to the provision in section 31(c) of the India
Act. The principle of speciality has been invariably adopted in treaties,
conventions, arrangements, general or ad hoc and national laws,46 for exa
ple sections 21 and 31(c) of the Indian Act and articles 7 and 21 of t
French Law of 1927.
In view of the possibility in this regard of an aberrant interpretation
of the two English cases, The King v. Corrigan 47 and R. v. Aubrey-Fletcher ,
Ex parte Ross-Munro ,48 a brief comment may be made. Corrigan in the
first case was neither extradited nor surrendered after any extradition pro-
ceedings in France or under an extradition decree. This was ''not a case
in extradition law"49 and Corrigan had no'benefit of the extradition law or
of an extradition decree defining the offence or the facts supporting that
offence for which he was extradited after examination of the requisition in
his case. On the assumption that Corrigan was extradited to England he
could, therefore, be tried there on the entire facts in the requisition either
for "false pretences" or for "fraudulent conversion" or any other offence
which might be disclosed by the facts in the requisition which had been
returned intact without the mandatory French judicial control in the extra-
dition proceedings in accordance with French municipal law. Under
section 19 of the English Act, a person is triable upon his surrender for

44. See supra note 36 at 512, 518.

45. Supra note 12.
46. See U.S. Spain Treaty of 16 June, 1971, a typical modern example, supra
note 38; the English Fugitive Offenders Act, 1967, s. 14; see also, Proceedings and
Resolutions of the 10th International Congress on Penal Law, Rome, 1969, Rev. Sc.
Crim . (1970); Green, Recent Developments in the Law of Extradition', Mercier, L'Extradi-
tion', S. D. Bedi, Extradition in International Law and Practice, (Rotterdam 196 6); de
Freitas, A European Convention, 41 Grotius (1955); U.S.-Great Britain Treaty, Treaty
Ser. No. 18, Cmd. 4928 (1935); Bustamente Code, arts. 344-81 INTS 86 (1928); the
Montevideo Convention, supra note 33 ; Lord McNair, Extradition and Extraterritorial
Asylum, 28 B.Y.I.L. 191 (1951).
47. (1931) I K.B. 527.
48. Supra note 3.
49. Supra note 47 at 536.

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 1973] INDIAN EXTRADITION LAW 569

"such of the crimes as may be proved by t

is grounded". Corrigan's surrender was gr
tioned in the requisition without any extradi
extradition judicial proceedings. He was, t
the culpable facts in his requisition for w
which disclosed either the offence of "fals
version" for which he was actually tried
offence is not material in such circumstan
the surrender is grounded disclose the na
countries, either "false pretences" or "
Corrigan case was, therefore, no departure
of extradition or of the identity of extraditi
In the Aubrey-Fletcher case,51 Ross-Munro
same offences" which constituted his req
prima facie in the French court for extra
which his surrender was grounded, were t
and the extradition decree which allowed his extradition in toto for all the
offences on the facts in the requisition and he was, therefore, triable in
England for all the offences as disclosed in the requisition. There was
complete identity of the offences in the requisition and in the extradition
decree. The situation would have been different if the offences for which
extradition was granted had been fewer in number or limited in scope, for
example, in the case of a partial grant of the requisition, in which case he
could be tried in England only for the offences and on the supporting facts
in regard to those offences for which he would have been extradited or on
which his surrender would have been grounded. Ross-Munro's surrender
was, in fact, grounded on the precise details in the requisition for which his
extradition was requested. In Aubrey-Fletcher too there was, therefore,
no departure from the principle of speciality or of the identity of extradi-
tion and prosecution under section 19 of the English Act. It would indeed
be both absurd and startling to presume that England which statutorily
initiated and meticulously applied the principle of speciality in section 19
of the English Extradition Act of 1872, followed decisively in other national
jurisdictions, as for example in the classic United States Supreme Court

50. The exact name of the offence is not of the essence, provided the nature of
the offence on the stated facts comes within "double criminality" and the person upon
his surrender is tried for the offence which motivated his extradition. See Wright v.
Henkel, supra note 32; Collins v. Loisel, supra note 27 ; Grin v. Shine, 187 U.S. 181
(1902); In re Bellencontre, supra note 24; R. v. Jacobi and Hiller , 4 6 L.T. 565 (1881);
Ex parte Piot t 48 L.T. 120 (1883); In re Arton (No. 2), supra note 36. A person, for
example, requisitioned for "false pretences" may be tried for "fraudulent conversion"
on the same facts ( R . v. Corrigan , supra note 47) or surrendered for faux (forgery)
may be prosecuted for "falsification of the document" on the same facts, if such
offences did not exist in the extraditing country, but not for the offences of cheating,
or impersonation.
51. Supra note 3.

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570 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

case of U.S. v. Rauscher 52 and uniformly adopted in all treaties, co

tions and arrangements ever since then, should turn the unimaginable
cial somersault to abrogate or corrode the principle of speciality of ex
tion. Indeed, the Corrigan and Aubrey-Fletcher cases confirm that pri
To the uninitiated in extradition jurisprudence the pitfall may li
the language used by Chief Justice Lord Parker in the Aubrey-Fletc
case, forgetful of the fact that the court was dealing with a case w
the requisition warrant and extradition decree were in identical
and the person had been extradited from France to England for the to
of offences and the supporting facts for which his extradition had
requested. Lord Parker stated :

In my judgment the words, however, {i.e. the words ''proved"

and "facts" in the last part of section 19 : "such of the crimes
as may be proved by the facts on which the surrender is ground-
ed") are capable of being read and should be read as meaning
such of the crimes as may be disclosed by the facts alleged in
the extradition proceedings.53

This should be read in the full context which is given both by

Justice Lord Parker and Lord Justice Salmon in meticulous detail. Lord
Parker pointed out :

The charges on which the magistrate was asked to commit were

the very same charges that were the subject of the extradition
proceedings, and I assume that the warrant in the extradition
proceedings was before the magistrate.54

He observed that the crime for which he was charged was the same
for which he was surrendered. He further added :

[I]t seems to me that the words must be read, if capable of being

read, as merely meaning that provided the crime for which he is
charged is based on the same allegations as the crime set out in
the warrant, once he is in this country he can be dealt with on
committal and on trial according to the ordinary procedure and
laws of this country.55

The gravamen of the legal position lies in the identity of the requisi-
tion warrant and the extradition decree under the sanction and mandatory
authority of which he is surrendered, in which case it is immaterial which
of the two warrants, the requisition or the extradition decree, is before the
trial court, "because he (the magistrate) must be certain that he is not being

52. Supra note 1 2.

53. Supra note 3 at 102.
54. Id. at 100.
55. Id. at 102.

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1973] INDIAN EXTRADITION LAW 571

asked to commit for a crime other than tha

founded".66 Such language is used in full
the requisition for all the offences alleged t
of the requisition warrant and the extrad
more than that the extradited person co
the offences as disclosed by the supportin
grounded, in accordance with section 19 o
the total or partial grant of the requisiti
of the offences he could be tried only for
facts on which his surrender was actually
The noble Lord Chief Justice was dealin
pretation of section 19 of the English Ac
of adducing further evidence in the trial
depositions in the foreign extradition
committal and trial according to English
person who had been surrendered for all
The answer was obviously in the affi
inhibition, provided always that the pers
same charges" and the facts and depositio
which he was surrendered. Lord Justi
explicitly :

It may well be that in cases such as R. v. Corrigan, where a

man is charged after extradition with an offence which is
different from the offence in the warrant (i.e., the requisition
warrant), it will be necessary to look at the surrender docu-
ments to see whether the facts on which the surrender was
grounded were such that they might constitute the offence with
which it is proposed to charge him. Where, however, as here,
the charge which is preferred in this country is the very charge
in respect of which he has been extradited, the very charge
which the foreign court has surrendered him to this country to
meet, it becomes entirely unnecessary in my view even to con-
sider the surrender documents.57

And this for the very good reason that the requisition had been granted
in toto and there was absolute identity between the offences in the requisi-
tion and the extradition decree and the supporting facts in both of them
on which the surrender was grounded. The headnote reads :

[S.] 19 of the Extradition Act, 1870, was not directed to proce-

dure or evidence but to jurisdiction ; accordingly, provided that
the crimes with which the applicant was charged were the

56. Ibid.
57. Id. at 103.

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572 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

offences for which he was surrendered, he could be committed

for trial in accordance with the ordinary procedure and laws of
England....58

The crux of the legal position as regards triability in the requesting country
lies in the categorical imperative that the person can be tried only for the
offences for which he is surrendered. If Ross-Munro59 had been surrendered
for fewer of the offences in the requisition or in limited scope thereof, he
could have been tried only for those offences and the scope thereof for
which he was surrendered in the terms and mandate of the extradition
decree under which France extradited him.60 The consistent application
of the principle of the identity of extradition and prosecution is incorpo-
rated in sections 21 and 31 (c) of the Indian Act. Even if it were not so
enacted the international and national rules of construction of statute with
international application and consequences would so imply as demonstrated
hereinbelow.

Rule of construction of national extradition statutes

The judicial presumption obtains that statutes should not violate

principles of international law as :

Every statute is to be so interpreted and applied, as far as its

language permits, as not to be inconsistent with the comity
of nations or with the established rules of international law....61

Where laws have wide international application the English courts endea-
vour to reach decisions which are uniform with other jurisdiction.

58. Id. at 99.

59. Ibid.
60. This legal position is manifested in the following cases -
Re Bouvier , supra note 1 1 ; The King v. Dix , supra note 33, where on
two informations in the requisition only one showed to be an extradition
offence; in In re Bellencontre , supra note 24, where extradition was granted
for only four out of fourteen offences in the requisition; R. v. Brixton
Prison Governor , Ex parìe Rush, supra note 33, where charge number one,
viz., the conspiracy to defraud the public of 100 million pounds was not
considered extraditable by Chief Justice Lord Parker; U.S. v. Rauscher ,
supra note 12, where the extradited person surrendered for the murder,
was held to be not triable for a lesser offence on the same facts; followed
by numerous cases in all national jurisprudence with consistent applica-
tion of the principle of speciality of extradition. Ker v. Illinois, supra
note 41, Collins v. O' Neil, supra note 41; Ford v. U.S., supra note 41;
Johnson v. Browne, supra note 41, specially see pp. 318, 321; Buck v.
King , supra note 41 ; Hatfield v. Guay, supra note 41 ; Fiscal v. Samper,
supra note 41, where the principle of speciality was affirmed in a strong
classic judgment ; see also the cases cited in supra notes 36 and 41.
61. Bloxom v. Favre, 31 W.R. 610 (1883), 8 P.D. 101 at 104, per Sir James
Hannen.

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1973] INDIAN EXTRADITION LAW 573

Lord Keith said in regard to the Shipping

The weight of authority, not only in th

countries of the Commonwealth and in the United States of
America, whose sea trade and commerce form no negligible part
of their economy, as also the history of the origins of the
Hague Rules and the desirability of uniformity in their cons-
truction as between different nations all go... to support the
contention of the appellants.62

Similar considerations apply to the principles and practices in regard

to "the desirability of unifomity of construction with other jurisdictions"
in the realm of international extradition, especially where "laws have wide
international application". According to Odgers, "Terms in British Acts
may sometimes receive a limited construction in order to avoid conflict
with international law."63 In Breen v. Breen 64 it was held that in the
absence of clear and unequivocal words in the Irish Constitution showing
an intention to depart from the long-established principle favouring an
essential part of the comity of nations, a decree pronounced by the courts
of domicile was to be recognized as valid. However, "the judges may not
pronounce an Act ultra vires as contravening international law but may
recoil, in case of ambiguity from a construction which would involve a
breach of ascertained and accepted rules."65 Such "ascertained and
accepted rules" in international extradition jurisprudence are consistently
applicable in all national jurisdictions ; the paramountcy of the municipal
law of the extraditing state whether to grant extradition and on what terms
and conditions, the prima facie rule, "double criminality" and "double
jeopardy", and more particularly the absolute principle of the speciality
of extradition in terms of the identity of extradition and prosecution. Due
to consistent and uniform adoption and application of these rules in all
civilized jurisdictions over a long period they may well be considered as an
integral part of international jurisprudence in the domain of extradition,
not only because they constitute provisions in treaties, conventions, arrange-
ments and in municipal legal systems, but they are actually affirmed and
applied in national courts under all circumstances in consonance with
universal practice and national judicial ethos in the comity of nations
and as such have become part of international conventional and customary
law.

Lord Denning, M.R., said, "we ought always to interpret our

62. Riverstone Meat Co. v. Lancashire Shipping Co., (1961) A.C. 807 at 869;
see also Compania Colombiana de Seguros v. Pacific Steam Navigation Co., (1965) 1
Q.B. 101.
63. Odgers, Construction of Deeds and Statutes 413 C1965Ì.
64. L.R. (1964) P.D. 144.
65. Craies, A Treatise on Statute Law 69, 462 (1971).

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574 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

statutes so as to be in conformity with international law."06 In the sam

case Diplock, L.J., held :
[T]here is a prima facie presumption that Parliament does not
intend to act in breach of international law, including therein
specific treaty obligations ; and if one of the meanings which
can reasonably be ascribed to the legislation is consonant with
the treaty obligations and another or others are not, the mean-
ing which is consonant is to be preferred.67

In West Rand Central Gold Mining Co. v. King ,68 Lord Alverstone
C.J., after declaring that international law will be acknowledged and appl
by municipal tribunals and courts of England, stated :
But any doctrine so invoked must be one really accepted as
binding between nations, and the international law sought to be
applied must, like anything else, be proved by satisfactory
evidence which must shew either that the particular proposition
put forward has been recognized and acted upon by our own
country, or that it is of such a nature, and has been so widely
and generally accepted, that it can hardly be supposed that
any civilized State would repudiate it.
Too much stress cannot be placed upon the last part of the above
judgment in regard to the construction of new statutes such as the India
Extradition Act of 1962, which so far does not appear to have received an
authentic judicial interpretation. The principle of speciality of extradition
in particular, "has been so widely and generally accepted, that it ca
hardly be supposed that any civilized State would repudiate it." The
must be an identity of extradition and prosecution and the extradit
person cannot be detained or tried except for the offence which motivat
his extradition. Under section 21 of the Indian Act a person is triab
in Indian courts only for the offence determined to be extraditable (ťtth
extradition offence") by the judicial control of the extraditing state, prov
prima facie in the judicial proceedings there, by the facts on which his
surrender or return is based in the context of the requisition in respect
total or partial grant thereof. In the converse situation under section
31(c) of the Indian Act a person can be extradited from India only on t
basis of a judicially determined prima facie case (sections 5 and 7 of th
Act) and cannot be detained or tried in the requesting country except fo
that extradition offence, the offence determined to be extraditable in Indian
law in relation to supporting facts on which his surrender or return is
based to the foreign state. The principle of reciprocity in section 31(c)
demands the same interpretation of section 21 of the Act ; a person upon

66. Salomon v. Commissioners of Customs and Excise , (1966) 3 W.L.R. 1223 a

1232.
67. Id. at 1233.
68. (1905) 2 K.B. 391 at 407.

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1973] INDIAN EXTRADITION LA W 575

his surrender to India can be detained and t

which he was extradited in direct relation to
facie the said offence to the satisfaction of the
state, on which his surrender or return to I
Lord Atkin said in Chung Chi Cheung v. R .
The courts acknowledge the existence of
nations accept among themselves. On an
seek to ascertain the relevant rule, and, h
will treat it as incorporated into the dom
is not inconsistent with rules enacted by
declared by their tribunals.

Chief Justice Marshall stated in Murray v.

that :

It has been observed that an Act of Congress ought not to be

construed to violate the law of nations, if any other construc-
tion remains, and, consequently can never be construed to
violate neutral rights or to affect neutral commerce as under-
stood in this country. These principles are believed to be
correct and they ought to be kept in view in construing the Act
under consideration....

The same principles may be said to apply to the construction of the

Indian Extradition Act of 1962 in the absence of any judicial precedents
in the domestic courts both in regard to conformity of interpretation with
rules of international extradition law and as incorporated or practiced in
national jurisdictions in the comity of nations.

States do not want only indulge in subterfuges or fraudulent requisi-

tions to secure custody for trial for offences that to their knowledge belong
to the forbidden categories of offences for which no extradition is possible
from the requested state. Whereas a requisition for murder, arson,
destruction of public property or grievous injury to public figures is
common, for which extradition is sought, the judicial control of the
requested state may determine such alleged crimes to be of a political
character or with a political motive. There may be other offences in the
requisition which may be banned for extradition purposes in the control-
ling law of the requested state, such as under article 5 of the French Law
as given above. Since the extradited person can be tried only for the
offence for which he was surrendered, no other offence may be deemed to be
triable in the requesting country without violence to the good faith between
nations. Upon a requisition prepared by competent legal advisers of
the foreign office with expert knowledge of foreign extradition laws, pro-
cedures and judicial precedents and of foreign languages involved there is

69. (1938) 4 All E.R. 786 at 790.

70. (1804) 2 Law. Ed. 208 at 226, 2 Cranch 116 (1804).

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576 JO U RN AL OF THE INDIA N LAW INSTITUTE [Vol. 15:4

no reason why the requisition should not be granted in toto in terms. Tn

such cases there would be complete identity between the requisition and the
extradition decree and the Indian trial court has no other problem than a
comparison of the requisition and the extradition decree in order to detain
and try the surrendered person for the offence stated in the mandate of the
decree or the requisition, as in the Aubrey-Fletdier case.71 The trial court
in India has only to be certain of the complete identity of the requisition
and the extradition decree in order not to detain or try the person for an
offence for which he was not surrendered. In so far as the Aubrey-Fletcher
case may be said to apply in India, the extradited person, in such cases of
total grant of the requisition, is triable in Indian courts according to the
ordinary law and procedure in India.
Complexities, however, arise where defective or deficient requisi-
tions are made to the foreign state by junior civil servants or official
lawyers having no knowledge of foreign law or language or judicial
precedents concerned. Competence is not unknown to yield to ideolo-
gical exuberance and unconsidered reckless or misconceived requisitions
result. A perusal of the foreign extradition law, for example, would
show whether the offences alleged in the requisition are time-barred
in that law, or whether they fall under the ban of the forbidden
categories of offences in the foreign law for which no extradition
is available, and a competent requisition could be drawn accordingly in
predictable anticipation of offences for which extradition would be granted.
In case of defective requisitions extradition is likely to be refused or, at best,
result only in partial grant thereof to the chagrin of the requesting state
with its international prestige at stake, and consequent manipulations to
save face in the attempt to try the person somehow either under fraudulent
translations of the extradition decree or other legal manipulations against
the principles of natural justice and good faith among nations and to
seek to detain the person for an unconscionably long time under perverted
national procedures and to punish him as if the requisition had been
granted in toto under the maximum penalties provided in national penal
laws. A competent requisition would have avoided all these prevarica-
tions repugnant to extradition jurisprudence and good faith in national
judicial institutions.
A hypothetical illustration should suffice. Upon a requisition for
offences listed in its para A, B and C, an extradition decree is granted
by the foreign state only for one-third of offences in C, offences in
A and B being time-barred in the foreign law of the extraditing state, and
two-thirds of the offences in C having been either committed in that state
or, though committed outside that state, had been 'prosecuted and definitively
judged' there. It is evident that in France, for instance, such offences would
fall under the ban of article 5 of the French Extradition Law of 1927 and no

71. Supra note 3.

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1973] INDIAN EXTRADITION LA W 577

extradition could be available for them, and th

only be in terms of one-third of C. The safe
partial grant of the requisition is the meticulo
in the extradition decree in the context of th
A typical example would be, where the requ
third of the offences alleged therein, such as
whole :

[Extradition is requested of Raj Shankcr

obtaining of licence from the Ministry of F
Delhi under number XYZ in the false or f
Das delivered on date MNO and the use of
licence....

And the extradition decree is granted by the requested state as under :

The extradition of Raj Shanker is accorded to the Government

of India for the sole facts of forgery committed on the occasion
of the delivery of licence number XYZ of date MNO....

It is obvious that such a mandate can be read only in the light of the
requisition in this regard, as the partial grant of a request can be interpreted
only in the context of the request itself. Raj Shanker could, therefore, be
tried in Indian courts only "for the sole facts of forgery committed by him
on the occasion of the delivery of licence number XYZ to him by the
Ministry of Foreign Trade in New Delhi on date MNO". For the success-
ful prosecution, evidence has only to be adduced of the forgery committed
by him in the official records of the ministry on the given date and the
production of the licence of the given number. As a result of the incompe-
tent and defective requisition in this regard it may turn out that no such
licence of the given number was ever issued by the ministry on the given
date, but on another date in the name of Ram Dass, and even this licence
was not available for judicial examination by the courts. A request to the
foreign government was made for the correction of the date but was refused
as it did not follow the foreign extradition procedure required for the
alteration of any part of the extradition decree. It is evident that Raj
Shanker could be detained and tried in Indian courts only in the strict
terms of the mandate and sanction of the decree, as read with the requisi-
tion in this regard, and unless the licence number XYZ was available for
the examination of the trial court and legal evidence existed of his forgery
in the official records of the Ministry of Foreign Trade in New Delhi on
the specified date, the date or occasion of the said delivery to him of the
licence by the ministry, proceedings against him could not continue and
must be terminated.

Assuming that a case had been registered against Raj Shanker during
his residence abroad four years prior to the grant of the extradition decree,

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578 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 15:4

his detention upon surrender under that case would obviously be unlaw
and without jurisdiction, as he could be detained and tried only on th
initial a priori judicial determination of the mandate of the extraditi
decree in the context of the requisition. Without such judicial determi
tion the Indian courts had no jurisdiction as culpability for purposes
detention and trial could be established only by such determination by
trial court.

Assuming further that the extradition decree was in French and

prosecution claimed that they possessed no official translation in Eng
and proceeded to obtain dubious translations in English from pri
parties which the defence contested and produced an official translat
from the French Embassy in New Delhi. Assuming further that the ma
of the true version in English of the extradition decree in French
eventually settled by the examination of translators summoned by the cour
and the prosecuting authorities felt barred from their endeavours to enlarg
the scope of the mandate of the extradition by means of amenable a
inspired translations, they renounced their heretofore position in law
in fact that Raj Shanker was triable in Indian courts under section 21
the Indian Act as restricted by the legal sanction and validity of
mandate of the extradition decree, and took the novel plea after a y
that he was to be tried under the exclusive provision of section 21 of
Indian Act, regardless of the mandate of the extradition decree. Obvio
this legal position would have no judicial merit, as section 21 itself c
become operative only under the sanction and mandatory authority of
extradition decree.

Quaere : If it could take a year or more to settle the issue of

English version of the French extradition decree, how long might the pers
concerned have to be in detention if the decree had been in one of t
African languages such as Swahili, Sotho or Hausa or even Efik or Nya
Indubitably the issue of the English version of the decree was f
improper and unlawful. Such English translation of the decree in
foreign language was, or could or should have been, available to the In
court prior to the order of detention either through the Embassy of
in Paris or directly from the Ministry of Justice or of Foreign Affai
France on the date of the grant of the decree and certainly before t
detention was ordered. Or else there could be no judicial determinati
of the mandate of the decree under which the surrender occurred and und
which alone the extradited person could be detained and tried.
Shanker could not be given the "grounds for his arrest" under article
the Constitution of India, and the proceedings against him woul
without jurisdiction and in violation of the due process of law in artic
of the Indian Constitution. In the absence of the judicial determinat
of the terms and mandate of the decree in the language of the trial c
to establish his culpability, the nature of the offence, if any, for commit
and trial in India, he would be deprived of his personal liberty unlaw

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1973] INDIÁN EXTRADITION LAW 579

in breach of the constitutional guarantee

or tried except "according to procedure est
Let us postulate that the above case,
schizophrenic opera without the wit and sp
occurred in the interests of the reputabilit
and the integrity of the judicial institution
of India in international extradition juris
arise only on account of the defective and
inevitable partial grant thereof in deficie
possibly be no lawful detention or trial in
to underestimate the manipulative officia
authorities in the imaginable situation give
such situations is by the most scrupulous
precise terms and mandate of the extraditi
among sovereign nations in the internation
effect of the foreign extradition decree is
shall be implemented in complete good fa
manipulation or subterfuge either by mean
translations or the canard of section 21 b
initial legal and factual position of the to
authority of the extradition decree as res
operation of section 21 of the Indian Act.
upon his surrender or return shall not be d
other than for which he was extradited, "the
prima facie in the foreign court, by the
return is based. This is the legal position
is in conformity with international extra
civilized national jurisdictions in the comi
from the said basic legal position under se
Act is violative of the clear position in the
31(c) of the Act. Any attempt to obtain s
grant of the requisition in frustration of the
tion is unmeritorious vengeance and unwo
system, juridical ethics and good faith to t
accord the extradition in good faith in the
treaty provisions and full faith in the integr
India.73

72. "Procedure" means manner and form of

the Constitution of India simply means that one c
liberty, unless he follows and acts according to th
tion of such liberty. "Before a person can be depr
procedure established by law must be strictly fol
to the disadvantage of the person affected ( Ram
S.C.R. 377 at 385).
73. "It is urged that the construction contende

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 580 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

At the 10th International Congress on Penal Law, in 1969 in

extradition was defined as :

An act of inter-State assistance in penal matters with a view to

transfer an accused or convicted person from the judicial sover-
eignty of one State to that of another....71

A similar definition emerges from R. 'š Aubrey-Fletcher , Ex parte Rose -

Munro , where Lord Justice Salmon said, "the very charge which the foreign
court has surrendered him to this country to meet".75 The raison ďetre of
extradition was stated by Chief Justice Lord Russell of Killowen in 1896 as
under :

The law of extradition is, without doubt, founded upon the

broad principle that it is to the interest of civilized communities
that crimes, acknowledged to be such, should not go unpuni-
shed, and it is part of the comity of nations that one state
should afford to another every assistance towards bringing per-
sons guilty of such crimes to justice....76
A similar view in almost identical terms is pronounced by the Indian
Supreme Court in State of West Bengal v. Jugal Kishore More.11 The

technical and tends to the escape of criminals on refined subtleties of statutory construc-
tion, and should not, therefore, be adopted. While the escape of criminals is, of course,
to be very greatly deprecated, it is still more important that a treaty of this nature
(extradition) between sovereignties should be construed in accordance with the highest
good faith, and that it should not be sought, by doubtful construction of some of its
provisions, to obtain the extradition of a person for one offense and then punish him
for another and different offense" ( Johnson v. Browne , supra note 41 at 321). "A
Treaty is primarily a compact between independent Nations and depends for the
enforcement of its provisions on the honor and the interest of the governments which
are parties to it", [Head-Money Cases, 112 U.S. 580 (1884)]. See also Foster v. Nielson ,
2 Pet. 253, 314, 27 US bk. 7 Law. Ed. 415, 435; Chew Heong v. U.S., 112 U.S. 536, 540,
565 (1884); U.S. v. Rauscher , supra note 12 at 425,428-29. The same rules of "the
highest good faith and honor" among sovereignties apply to the implementation of
extradition decrees, whether granted under treaties, arrangements or national statutes
even more strictly as they affect the liberties of the individual and involve penal sanc-
tions. The rule of good faith and of pacta sunt servanda is of particular importance
in regard to the extradition decrees granted in the absence of treaty obligations. It
may be noted that extradition decrees constitute international accords based on the
request for extradition, its grant and acceptance in the terms of the grant, total or
partial, and are thus subject to the jurisdiction of the International Court of Justice
under art. 36 of the statute of the court.

74. Rev. Sc. Crim. 216, question iv, (1970). See also Terlington v. Ames, 184
U.S. 270 at 289 (1902).
75. Supra note 3 at 103.
76. In re Arton (No. 1), (1896) 1 Q.B. 108 at 111.
77. Supra note 13 at 1175. The Supreme Court stated that the extradition "is
founded on the broad principle that it is in the interest of civilized communities that
crimes should not go unpunished, and on that account it is recognised as a part of the
comity of nations that one State should ordinarily afford to another State assistance
towards bringing offenders to justice".

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 1973] INDIAN EXTRADITION LA W 581

favourable tilt in the grant of extradition

of justice" in the requested state or its "mo
the absence of treaty obligations, is due to
bonne foi , that is deemed to exist ipso facto
community. The consequence is, therefore
country would perform its international o
mandate of extradition decrees with metic
good faith.

78. See 31 American Jurisprudence, supra note 27 at 921, 928, 954; U.S. v.
Rauscher , supra note 12; People ex re. Post v. Cross, 135 N.Y. 536, 32 N.E. 246; Re
Metzger , 5 How. (U.S.) 176, 12 Law. Ed. 104; Knox v. State , 164 Ind. 226, 73 N.E. 255;
Re Maney , 20 Wash. 509, 55 P. 930; Grin v. Shine , supra note 50; Johnson v. Browne ,
supra note 41; Extradition 8 U.S. Supreme Court Digest Annotated, 62 et seq.;
Gluckman v. Hankel, supra note 27; Fernandez v. Phillips , 268 U.S. 311 (1924); Collins
v. Loisel , supra note 27.

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