Section Text
1 [THESCHEDULE
[SeeSection 31 (2)]
Offenceswhich are not to be Regarded as Offences of a Political Character
Thefollowing list of offences is to be construed according to the law in force inIndia on the date of the alleged offence. Wherever the names of the relevantActs are not given, the sections referred to are the sections of the IndianPenal Code (45 of 1860):--
1.Offences under the Anti-Hijacking Act, 1982 (65 of 1982).
2.Offences under the Suppression of Unlawful Acts against Safety of Civil AviationAct, 1982 (66 of 1982).
3.An offence within the scope of the Convention on the punishment of crimesagainst Internationally protected persons including diplomatic agents, openedfor signature at New York on 14th December, 1973.
4.An offence within the scope of the International Convention against the takingof hostages opened for signature at New York on 18th December, 1979.
5.Culpable homicide, murder (Sections 299 to 304).
6.Voluntarily causing hurt or grevious hurt by a dangerous weapon or means(Sections 321 to 333).
7.Offences under the Explosive Substances Act, 1908 (6 of 1908).
8.Possession of a fire-arm or ammunition with intention to endanger life [Section27 of the Arms Act, 1959 (54 of 1959)1.
9.The use of a fire-arm with intention to resist or prevent the arrest ordetention [Section 28 of the Arms Act, 1959 (54 of 1959)].
10.Causing of loss or damage to property used for public utilities or otherwisewith intention to endanger life (Section 425 read with section 440).
11.Wrongful restraint and wrongful confinemnt (Sees. 339 to 348).
12.Kidnapping and abduction including taking of hostages (Sees. 359 to 369).
13.Offences related to terrorism and terrorist acts [Terrorist and DisruptiveActivities (Prevention) Act, 1987 (28 of 1987).
14.Abetting, conspiring or attempting to commit, inciting, participating as anaccomplice in the commission of any of the offences listed above.]
EXTRADITIONTREATY BETWEEN INDIA AND SWITZERLAND
G.S.R.462 (E), dated 9th October, 19962 .--Whereas the Extradition Treatybetween the United Kingdom of Great Britain and Ireland, and the Swiss FederalCouncil was concluded and signed at Berne on the 26th November, 1880, as amendedby the Convention dated the 29th June, 1904, are considered to be in forcebetween India and Switzerland:
Andwhereas the Central Government in exercise of the powers conferred bysub-section (1) of Section 3 of the Extradition Act, 1962 (34 of 1962), haddirected by an order number G.S.R. 56, dated the 5th January, 1963 that theprovisions of the said Act, other than Chapter III shall apply to Switzerland;
Now,therefore, in exercise of the powers conferred by sub-section (3) of Section 3of the said Act, the Central Government hereby sets out the aforesaid Treaty asunder:--
"ARTICLEI
HerMajesty, the Queen of the United Kingdom of Great Britain and Ireland engages todeliver up, under the circumstances and on the conditions stipulated in thepresent Treaty, all persons, and the Swiss Federal Council engages to deliverup, under the like circumstances and conditions, all persons, excepting Swisscitizens, who, having been charged with, or convicted by the Tribunals of one ofthe two High Contracting Parties of the crimes or offences enumerated in Art.II, committed in the territory of the one party, shall be found within theterritory of the other.
Inthe event of the Federal Council being unable, by reason of his Swissnationality, to grant the extradition of an individual, who, after havingcommitted in the United Kingdom one of the crimes or offences en-umberated inArt. II, should have taken refuge in Switzerland, the Federal Council engages togive legal effect to and prosecute the charge against him according to the lawsof the Canton of his origin; and the Government of the United Kingdom engages tocommunicate to the Federal Council all documents, depositions, and proofsrelating to the case, and to cause the commissions of examination directed bythe Swiss Judge, and transmitted through the proper Diplomatic channel, to beexecuted gratuitously.
ARTICLEII
Thecrimes for which the extradition is to be granted are the following:--
1.Murder (including infanticide) and attempt to murder.
2.Manslaughter.
3.Counterfeiting or altering money, uttering or bringing into circulationcounterfeit or altered money.
4.Forgery, or counterfeiting, or altering, or uttering what is forged, orcounterfeited, or altered; comprehending the crimes designated in the PenalCodes of both States as counterfeiting or falsification of paper money,banknotes, or other securities, forgery, or falsification of other public orprivate documents, likewise the uttering or bringing into circulation, orwilfully using such counterfeited, forged or falsified papers.
5.Embezzlement or larceny,
6.Obtaining money or goods by false pretences.
7.Crimes against bankruptcy law.
8.Fraud committed by a bailee, banker, agent, factor, trustee, or director, ormember of public officer of any Company made criminalby any law for the time being in force.
9.Rape.
10.Abduction of minors
11.Child stealing or kidnapping.
12.Burglary, or house breaking, with criminal intent.
13.Arson.
14.Robbery with violence.
15.Threats by letter or otherwise with intent to extort.
16.Perjury or subornation or perjury.
17. Malicious injury to property, if the offence be indictable. The extradition isalso to take place for participation in any of the aforesaid crimes, as anaccessory before or after the fact, provided such participation be punishable bythe laws of both Contracting Parties.
ARTICLEIII
Afugitive criminal may be apprehended in either country under a warrant issued byany Police Magistrate, Justice of the Peace, or other competent authority, onsuch information or complaint, and such evidence, or after such proceedings aswould, in the opinion of the authority Issuing the warrant, justify the issue ofa warrant if the crime had been committed or the person convicted in that partof the dominions of the two Contracting parties in which the Magistrate, Justiceof the Peace, or other competent authority exercises jurisdiction: provided,however, that, in the United Kingdom, the accused shall, In such case, be sentas speedily as possible before a Police Magistrate in London.
Requisitionsfor provisional arrest may be addressed by post or by telegraph, provided theypurport to be sent by some judicial or other competent authority. Suchrequisitions must contain a description in general terms of the crime oroffence, and a statement that a warrant has been granted for the arrest of thecriminal, and that his extradition will be demanded.
Heshall in accordance with this Article be discharged, as well in the UnitedKingdom as in Switzerland, if within the term of thirty days a requisition forextradition shall not have been made by the Diplomatic Agent of the countryclaiming his surrender in accordance with the stipulations of this Treaty.
ARTICLEIV
Therequisition for extradition must always be made by the way of diplomacy, and towit, in Switzerland by the British Minister to the President of Confederation,and in the United Kingdom to the Secretary of State for Foreign Affairs by theSwiss Counsel-General in London, who, for the purposes of this Treaty, is herebyrecognised by Her Majesty as a Diplomatic Representative of Switzerland.
ARTICLEV
InSwitzerland the manner of proceeding shall be as follows:--
Therequisition for the extradition of an accused person must be accompanied by anauthentic copy of the warrant of arrest, issued by a competent official orMagistrate, clearly setting forth the crime or offence of which he is accused,together with a properly legalized information setting forth the facts andevidence upon which the warrant was granted.
Ifthe requisition relates to a person already convicted must be accompanied by anauthentic copy of the sentence/conviction, setting forth the crime or offence ofwhich he has been convicted.
Therequisition must be accompanied by a description of the person claimed, and, ifit be possible, by other information and particulars which may serve to identifyhim.
Afterhaving examined these documents, the Swiss Federal Council shall communicatethem to the Cantonal Government in whose territory the person charged is found,in order that he may be examined by a judicial or police officer on the subjectof their contents.
TheCantonal Government will transmit the proces-uerbal, of the examination,together with all the documents, accompanied, if there be one. by a moredetailed report to the Federal Council, who, after having examined them, andthere be no opposition on either side, will grant the extradition, and willcommunicate its decision both to the British Legation and to the CantonalGovernment in question, to the latter in order that it may send the person to besurrendered to such place on the frontier, and deliver him to such foreignpolice authority as the British Legation may name in each special case.
Shouldthe documents furnished with a view of proving the facts, or a establishing theidentity of the accused, or the particulars collected by the Swiss authoritiesappear insufficient, notice shall be immediately given to the DiplomaticRepresentative of Great Britain, in order that he may furnish further evidenceif such further evidence be not furnished within fifteen days the personarrested shall be set at liberty.
Inthe event of the application of this Treaty being contested, the Swiss FederalCouncil will transmit the documents ("dossier") to the Swiss FederalTribunal, whose duty it is to decide definitely the question whether extraditionshould be granted or refused.
TheFederal Council will communicate the judgment of the Federal Tribunal to theBritish Legation. If this judgment grants the extradition the Federal Councilwill order its execution, as in the case when the Federal Council itself grantsthe extradition. If, on the other hand, the Federal Tribunal refuses theextradition, the Federal Council will immediately order the person accused to beset at liberty.
ARTICLEVI
Inthe dominions of Her Britannic Majesty, other than the Colonies or foreignpossessions of Her Majesty, the manner of proceeding shall be as follows :--
(a)In the case of a person accused.--
Therequisition for the surrender shall be made to Her Britannic Majesty's PrincipalSecretary of State for Foreign Affairs by the Diplomatic Representative of theSwiss confederation. The said demand shall be accompanied by a warrant ofarrest, or other equivalent judicial document, issued by a Judge or Magistrateduly authorised to take cognizance of the acts charged against the accused inSwitzerland, and duly authenticated depositions or statements taken on oath, orsolemnly declared to be true, before such Judge or Magistrate, clearly settingforth the said acts, and containing a description of the person claimed, and anyparticulars which may serve to identify him.
Thesaid Principal Secretary of State shall transmit such documents to HerBritannic Majesty's Principal Secretary of State for the Home Department, whoshall then, by order under his hand and seal, signify to some Police Magistratein London that such requisition has been made, and require him, if there be duecause, to issue his warrant for the apprehension of the fugitive.
Onthe receipt of such order from the Secretary of State, and on the production ofsuch evidence as would, in the opinion of the Magistrate, justify the issue ofthe warrant if the crime had been committed in the United Kingdom, he shallissue his warrant accordingly.
Whenthe person claimed shall have been apprehended, he shall be brought before theMagistrate who issue the warrant, or some other Police Magistrate in London. Ifthe evidence to be then produced shall be such as to justify, according to thelaw of England, the committal for trial of the prisoner, if the crime of whichhe is accused had been committed in the United Kingdom, the Police Magistrateshall commit him to prison to await the warrant of the Secretary of State forhis surrender, sending immediately to the Secretary of State a certificate ofthe committal and a report upon the case.
Afterthe expiration of a period from the committal of the prisoner, which shall neverbe less then fifteen days, the Secretary of State shall, by order under his handand seal, order the fugitive criminal to be sent to such seaport-town as shall,in each, special case, be selected for his delivery to the Swiss Government.
(b)In the case of a person convicted,--
Thecourse of proceeding shall be the same as in the case of a person accused,except that the warrant to be transmitted by the Diplomatic Representative ofSwitzerland in support of his requisition shall clearly set forth the crime oroffence of which the person claimed has been convicted, and state the place anddate of his conviction.
Theevidence to be produced shall consist of the penal sentence passed against theconvicted person by the competent Court of the State claiming his extradition.
(c)Person convicted by judgment in default or arrdt dc contumace shall be, in thematter of extradition, considered as persons accused, and may, as such, besurrendered.
(d)After the Police Magistrate shall have committed the accused or convicted personto prison to await the order of a Secretary of State for his surrender, suchperson, shall have the right to apply for a writ of habeas corpus; if he shouldso apply, his surrender must be deferred until after the decision of the Courtupon the return to the writ, and even then can only take place if the decisionis adverse to the applicant. In the latter case, the Court may at once order hisdelivery to the person authorized to receive him, without waiting for the orderof a Secretary of State for his surrender, or commit him to prison to await suchorder.
ARTICLEVII
Inthe examinations which they have to make in accordance with the foregoingstipulations, the authorities of the State applied to shall admit as entirelyvalid evidence the depositions or statements of witnesses, either sworn orsolemnly declared to be true, taken in the other State, or copies thereof, andlikewise the warrants and sentences issued therein, or copies thereof, providedsuch documents purport to be signed or copies thereof, provided such documentspurport to signed or certified by a Judge, Magistrate, or officer of such State,and are authenticated by the official seal of a British Secretary of State, orof the Chancellor of the Swiss Confederation being affixed thereto.
Thepersonal attendance of witnesses can be required only to establish the identityof the person who is being proceeded against with that of the person arrested.
ARTICLEVIII
Ifproof sufficient to warrant the extradition be not furnished within two monthsfrom the day of the apprehension, the person arrested shall be discharged fromcustody.
ARTICLEIX
Incases where it may be necessary, the Swiss Government shall be represented atthe English Courts by the Law Officer of the Crown, and the English Governmentin the Swiss Courts by the competent Swiss authorities.
Therespective Government will give the necessary assistance within theirterritories to the Representatives of the other State who claim their,intervention for the custody and security of the persons subject to extradition.
Noclaim for the repayment of expenses for the assistance mentioned in this ARTICLEshall be made by either of the Contracting parties.
ARTICLEX
Thepresent Treaty shall apply to crimes and offences committed prior to thesignature of the Treaty; but a person surrendered shall not be tried for anycrime or offence committed in the other country before the extradition otherthan the crime for which his surrender has been granted.
ARTICLEXI
Afugitive criminal shall not be surrendered if the offence in respect of whichhis surrender is demanded is one of a political character, or if he proved thatthe requisition for his surrender has, in fact, been made with a view to try andpunish him for an offence of political character.
ARTICLEXII
Theextradition shall not take place If, subsequently to the commission of thecrime, or the institution of the penal prosecution, or the conviction thereon,exemption from prosecution or punishment has been acquired according to the lawsof the State applied to.
ARTICLEXIII
Theextradition shall not take place if the person claimed on the part of theGovernment of the United Kingdom, or the person claimed on the part of the SwissGovernment, has already been tried and discharged or punished, or is still undertrial, in one of the Swiss Cantons or in the United Kingdom respectively, forthe crime for which his extradition is demanded.
ARTICLEXIV
Ifthe person claimed on the part of the Government of the United Kingdom, or ifthe person claimed on the part of the Swiss Government, should be underexamination, or have been condemned for any other crime, in one of the SwissCantons or in the United Kingdom respectively, his extradition may be deferreduntil he shall have been set at liberty in due course of law.
Incase such individual should be proceeded against in the country in which he hastaken refuge, on account of obligations contracted towards private individuals,his extradition shall, nevertheless, take place, the injured party retaining hisright to prosecute his claims before the competent authority.
ARTICLEXV
Ifthe individual claimed by one of the two High Contracting Parties in pursuanceof the present Treaty should be also claimed by one or several other Powers, onaccount of other crimes or offences committed upon their respective territories,his extradition shall be granted to that State whose demand is earliest in date.
ARTICLEXVI
Allarticles, seized, which were in the possession of the person to be surrenderedat the time of his apprehension, shall, if the competent authority of the Stateapplied for the extradition has ordered the delivery thereof, be given up whenthe extradition takes places, and the said delivery shall extend not merely tothe stolen articles, but to every thing that may serve as a proof of the crime.
Thisdelivery shall take place even when the extradition, after having been granted,cannot be carried out by reason of the escape or death of the individualclaimed, unless the claims of third parties with regard to the above-mentionedarticles render such delivery inexpedient.
ARTICLEXVII
TheContracting Parties renounce any claim for the reimbursement of the expensesincurred by them in the arrest and maintenance of the person to be surrendered,and his conveyance to the frontiers of the State to which the requisition ismade; they reciprocally agree to bear such expenses themselves.
ARTICLEXVIII
Thestipulations of the present Treaty shall be applicable to the Colonies andforeign possession of her Britannic Majesty.
Therequisition for the surrender of a fugitive criminal who has taken refuge in anyof such Colonies or foreign possessions shall be made to the Governor or to thesupreme authority of such colony or possession through the Swiss Consul residingthere, or in case there should be no Swiss consul, through the recognizedConsular Agent of another State charged with the Swiss Interests in the Colonyor possession in question.
TheGovernor or supreme authority above-mentioned shall decide with regard to suchrequisitions as nearly as possible in accordance with the provisions of thepresent Treaty. He will, howaver, be at liberty either to consent to theextradition or report the case to his Government.
HerBritannic Majesty shall, however, be at liberty to make special arrangements inthe British Colonies and foreign possessions for the surrender of suchIndividuals as shall have committed in Switzerland any of the crimeshereinbefore mentioned, who may take refuge within such Colonies and foreignpossessions, on the basis, as nearly as may be, of the provisions of the presentTreaty.
Therequisition for the surrender of a fugitive criminal from any Colony or foreignpossession of Her Britannic Majesty shall be governed by the rules laid down inthe preceding Articles of the present Treaty.
ARTICLEXIX
Thepresent Treaty shall come into force ten days after its publication inconformity with the forms prescribed by the laws of the High ContractingParties.
Afterthe Treaty shall have come into force, the Treaty concluded between the HighContracting Parties on the 31st of March, 1874, shall be considered ascancelled, except as to any proceedings that may have been already taken orcommenced in virtue thereof.
Itmay be terminated by either of the High Contracting Parties, on giving to theother party six months' notice of its intention to terminate the same, but nosuch notice shall exceed the period of one year.
TheTreaty shall be ratified, and the ratifications shall be exchanged at Berne assoon as possible.
Inwitness whereof the respective Plenipotentiaries have signed the same, and haveaffixed thereto the seal of their arms.
Doneat Berne, the twenty-sixth day of November, in the year of our Lord one thousandeight hundred and eighty".
TheConvention dated 29th June, 1904 provides as follows :
TheFederal Council of the Swiss Confederation and the Government of His Majesty theKing of the United Kingdom of Great Britain and Ireland, having deemed, itnecessary to extend, so far as regards the relations of Switzerland with theBritish Colonies and foreign possessions, the periods of thirty days and twomonths respectively fixed by Art. III, paragraph 8, and Art. VIII, of the Treatyconcluded on the 26th November, 1880, between the Swiss Federal Council and Herlate Majesty the Queen of the United Kingdom of Great Britain and Ireland,Empress of India, & c., respecting the extradition of persons accused orcondemned, the Undersigned, duly authorized to that effect by their respectiveGovernments, have agreed as follows :--
Thefollowing stipulation is added to the first paragraph of Art. XVIII of theTreaty of Extradition:
"Nevertheless,so far as regards the relations of Switzerland with these Colonies and foreignpossessions, the period of time fixed by Art. III paragraph 8, within which therequisition for extradition is to be made through the diplomatic channel, shallbe six weeks; and that provided by Art. VIII for the production of proofsufficient to warrant the extradition shall be three calendar months."
Thepresent Convention shall come into force from the date when the ratificationsshall be exchanged, it shall have the same force and duration, as the Treaty ofExtradition of the 26th November, 1880, to which it relates.
Itshall be ratified, and the ratifications shall be exchanged at London as soon aspossible.
Inwitness whereof the Undersigned have signed the present Convention, and haveaffixed their seals thereto.
Doneat London, in duplicate, the 29th day of June, 1904.
________________________
1.Substituted by Act No. 66 of 1993, Section 18 (w.e.f. 18th December, 1993.
2.PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART. II, SECTION 3 (I), DATED9TH OCTOBER, 1996.