MINISTRY OF EXTERNAL AFFAIRS
New Delhi, the 9th July, 2021
G.S.R. 486(E).—WHEREAS, the Extradition Treaty Between the Government of the Republic of India and the Government of the Republic of Malawi was signed at Lilongwe on the 5th November, 2018 and the Instruments of Ratification of the said Treaty were exchanged at New Delhi on the 26th February 2021;
AND WHEREAS, the said Treaty entered into force with effect from the 26th day of February,2021; in accordance with the provisions of paragraph (2) of Article 26 of the Treaty;
AND WHEREAS, the said Treaty is specified in the Schedule to this Order;
NOW, therefore, in exercise of the powers conferred by sub-section (1) read with clause (a) of sub-section (3) of section 3 of the Extradition Act, 1962 (34 of 1962), the Central Government hereby directs that the provisions of the said Act, other than the provisions of Chapter III, shall apply to the Republic of Malawi with effect from the date of entry into force of the said Extradition Treaty.
EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE REPUBLIC OF INDIA
AND THE GOVERNMENT OF THE REPUBLIC OF MALAWI
The Government of the Republic of India and the Government of the Republic of Malawi (hereinafter jointly referred to as “the Contracting States”);
Desiring to make more effective the cooperation of the two countries in the suppression of crime by making further provision for the reciprocal extradition of offenders;
Recognizing that concrete steps are necessary to combat terrorism;
Have agreed as follows
Duty to Extradite
(1) Each Contracting State undertakes to extradite to the other, subject to the conditions specified in this Treaty, any person who, being accused or convicted of an extraditable offence as described in Article 2, committed within the territory of one State, is found within the territory of the other State, whether such offence was committed before or after the entry into force of this Treaty.
(2) Extradition shall also be available in respect of an extraditable offence as described in Article 2 committed outside the territory of the Requesting State but in respect of which it has jurisdiction, if the Requested State would, in corresponding circumstances, have jurisdiction over such an offence. In such circumstances the Requested State shall have regard to all the circumstances of the case including the seriousness of the offence.
(3) In addition, extradition shall be available for an extradition offence as described in Article 2 –
(a) if it is committed in a third State by a national of the Requesting State and the Requesting State bases its jurisdiction on the nationality of the offender, and
(b) if it occurred in the Requested State, it would be an offence under the law of that State punishable with imprisonment for a term of at least one year.
(1) An extraditable offence, for the purposes of this Treaty, is constituted by conduct which, under the laws of both the Contracting States is punishable by a term of imprisonment for a period of at least one year.
(2) Extradition shall be granted in respect of a person convicted of. but not yet sentenced, or, convicted of and sentenced, for an extraditable offence, for the purpose of serving sentence or the remaining portion thereof, as the case may be.
Provided that, where extradition relates to the remaining portion of a sentence, extradition shall only be granted if a period of at least four months remains to be served.
(3) An offence may be an extraditable offence notwithstanding that it relates to taxation or revenue or is one of a purely fiscal character.
Extradition shall be available in accordance with this Treaty, for an extraditable offence, notwithstanding that the conduct of the person sought occurred wholly or in part in the Requested State, if under the law of that State, the conduct and its effects, or its intended effects, taken as a whole, would be regarded as constituting the commission of an extradition offence in the territory of the Requesting State.
Extradition of Nationals
Nothing in this Treaty shall preclude the extradition by the Requested State of its nationals either in respect of a territorial offence or in respect of an extraterritorial offence.
The Political Offence Exception
(1) Extradition may be refused if the offence for which it is requested is an offence of a political character.
(2) For the purpose of this Treaty, the following offences shall not be regarded as offences of a political character –
(b) manslaughter or culpable homicide;
(c) assault occasioning actual bodily harm, or causing injury, maliciously wounding or inflicting grievous bodily harm whether by means of a weapon, a dangerous substance or otherwise;
(d) the causing of an explosion likely to endanger life or cause serious damage to property;
(e) the making or possession of an explosive substance by a person who intends either by himself or through another person, to endanger life or cause serious damage to property;
(f) the possession of a firearm or ammunition by a person who intends either by himself or through other persons, to endanger life;
(g) the use of a firearm by a person with intent to resist or prevent the arrest or detention of himself or another person;
(h) damaging property whether used for public utilities or otherwise, with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered;
(i) kidnapping, abduction, false imprisonment or unlawful detention of a person, including taking of a hostage;
(j) incitement to murder;
(k) any other offence related to terrorism which at the time of the request, is, under the law of the Requested State, not regarded as an offence of a political character; and
(l) an attempt or conspiracy to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts commit such an offence;
(m) an offence within the scope of any convention to which both Contracting States are parties and which obliges the parties to prosecute or grant extradition.
Extension of Extraterritorial Jurisdiction
(1) The Government of the Republic of Malawi undertakes to make it an offence under the laws of the Republic of Malawi, to commit in India, any of the following offences –
(a) an offence under any of the Conventions to which both the Contracting States are Parties.
(b) murder, manslaughter or culpable homicide, kidnapping, abduction, false imprisonment or unlawful detention including the taking of a hostage;
(c) an offence relating to the causing of an explosion, the making or possession of explosives, the possession or use of a firearm or the possession of ammunition as specified in Article 5 of this Treaty; and
(d) an attempt to commit or participate as an accomplice in any of the foregoing offences.
(2) The Government of India undertakes to establish corresponding jurisdiction over the offences listed in paragraph (1), committed in the Republic of Malawi.
Offences of Conspiracy, Incitement and Attempt
(1) It shall be an offence under the laws of either Contracting State, for any person in that Contracting State –
(a) to attempt to commit in the other Contracting State, or incite, or participate as an accomplice in, the commission in that Contracting State, of any of the following offences: —
(i) an offence under any of the Conventions to which both the contracting States are Parties.
(ii) murder, manslaughter or culpable homicide, kidnapping, abduction, false imprisonment or unlawful detention including the taking of a hostage; and
(iii) an offence relating to the causing, of an explosion, the making or possession of explosive, the possession or use of a firearm or the possession of ammunition as specified in Article 5; and
(b) to conspire to commit in the other Contracting State, any offence mentioned in subparagraphs (i) to (iii).
(2) For the purposes of paragraphs (1) (b), it shall be an offence to conspire as aforesaid only where it would be an offence under the law of the country in which the conspiracy is alleged to take place for a person to conspire in that country in the commission in that country of such an offence.
Extradition and Prosecution
(1) The request for extradition may be refused by the Requested State if the person whose extradition is sought may be tried for the extradition offence in the courts of that State.
(2) Where the Requested State refuses a request for extradition for the reason set out in paragraph (1), it shall submit the case to its competent authorities so that prosecution may be considered. Those authorities shall take their decision in the same manner as in the case of any offence of a serious nature under the law of that State.
(3) Where the competent authorities decide not to prosecute in such a case, the request for extradition shall be reconsidered in accordance with this Treaty.
Grounds for Refusal of Extradition
(1) A person may not be extradited if –
(a) he satisfies the Requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite him by reason of –
(i) the trivial nature of the offence of which he is accused or was convicted;
(ii) the passage of time since he is alleged to have committed the offence or to have become unlawfully at large, as the case may be; or
(iii) the accusations against him not having been made in good faith in the interest of justice;
(b) the offence of which he is accused or convicted is a military offence which is not also an offence under the general criminal law of the Requested State;
(c) the request, (though purporting to be made on account of an extraditable offence) has in fact been made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or
(d) he might be prejudiced at his trial or be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions.
(2) A person who has been convicted of an extraditable offence may not be extradited therefor unless he was sentenced to imprisonment or other form of detention for a period of four months or more.
(3) A person may not be extradited if he would, if proceeded against in the territory of the Requested State for the offence for which his extradition is requested, be entitled to be discharged under any rule of law of the Requested State relating to previous acquittal or conviction.
Postponement of surrender
(1) If criminal proceedings against a person sought to be extradited are instituted in the territory of the Requested State, or where he is lawfully detained in consequence of criminal proceedings, the decision whether or not to extradite him may be postponed until the criminal proceedings have been completed or he is no longer detained.
(2) A person sought may not be extradited until –
(i) it has been decided in accordance with the law of the Requested State that he is liable to be extradited; and
(ii) the expiration of any further period which may be required by the law of that State.
(1) A request for extradition under this Treaty shall be in writing and submitted through the diplomatic channels of the Contracting States.
(2) The request shall be accompanied by –
(a) as accurate a description as possible of the person sought, together with any other information which would help to establish his identity, nationality and residence;
(b) a statement of the facts of the offence for which extradition is requested, and
(c) the text, if any, of the law –
(i) defining the offence; and
(ii) prescribing the maximum punishment for that offence.
(3) Where the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the Requesting State and by such evidence as, according to the law of the Requested State, would justify his committal for trial if the offence had been committed in the territory of the Requested State, including evidence that the person requested is the person to whom the warrant of arrest refers.
(4) Where the request relates to a person already convicted and sentenced, it shall also be accompanied-
(a) by a certificate of the conviction and sentence;
(b) by a statement that the person is not entitled to question the conviction or sentence and showing how much of the sentence has not been served.
(5) In relation to a convicted person who was not present at his trial, the person shall be treated for the purpose of paragraph (4), as if he had been accused of the offence of which he was convicted.
(6) If the Requested State considers that the evidence produced or information supplied for the purposes of this Treaty is not sufficient in order to enable a decision to be made on the request, additional evidence or information shall be submitted within such time as the Requested State shall require.
(1) In urgent cases, a person sought to be extradited may, in accordance with the law of the Requested State, be provisionally arrested on the application of the competent authorities of the Requested State. INTERPOL Channel may also be used in forwarding the provisional arrest request. The application shall contain an indication of intention to request the extradition of that person and statement of the existence of a warrant of arrest or conviction against him, and, if available, his description and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the Requested State.
(2) A person arrested upon such an application shall be set at liberty upon the expiration of sixty (60) days from the date of his arrest if request for his extradition shall not have been received. This provision shall not prevent the institution of further proceedings for the extradition of the person sought if a request is subsequently received.
Rule of Speciality
(1) Any person who is returned to the territory of the Requesting State under this Treaty should not, during the period described in paragraph (2) be dealt with in the territory of the Requesting State for, or in respect of any offence committed before he was returned to that territory other than-
(a) the offence in respect of which he was returned;
(b) any lesser offence disclosed by the facts proved for the purpose of securing his return other than an offence in relation to which an order for his return could not lawfully be made; or
(c) any other offence in respect of which the Requested Party may consent to his being dealt with other than an offence in relation to which an order for his return could not lawfully be made or would not in fact be made.
(2) The period referred to in paragraph (1) of this Article is the period beginning from the day of his arrival in the territory of Requesting State or his return under this Treaty and ending forty-five days after the first subsequent day on which he has the opportunity to leave the territory of the Requested State.
(3) The provisions of paragraph (1) of this Article shall not apply to offences committed after the return of a person under this Treaty or matters arising in relation to such offences.
(4) A person shall not be re-extradited to a third State, except when, having had an opportunity to leave the territory of the State to which he has been surrendered, he has not done so within sixty days of his final discharge, or has returned to that territory after having left it.
(1) The authorities of the Requested State shall admit as evidence, in any proceedings for extradition, any evidence taken on oath or by way of affirmation, any warrant and any certificate of, or judicial document stating the fact of, a conviction, if it is authenticated –
(a) (i) in the case of a warrant, being signed, or in the case of any original document by being certified, by a judge, magistrate or other competent authority of the Requesting State; and
(ii) either by oath of some witness or by being sealed with the official seal of the appropriate Minister of the Requesting State; or
(b) in such other manner as may be permitted by the law of the Requested State.
(2) The evidence described in paragraph (1) shall be admissible in extradition proceedings in the Requested State whether sworn or affirmed in the Requesting State or in some third State.
(1) If extradition of the same person whether for the same offence or for different offences, is requested by a Contracting State and a third State with which the Requested State has an extradition arrangement, the Requested State shall determine to which State the person shall be extradited, and shall not be obliged to give preference to the Contracting State but shall notify the Contracting State of its decision.
(2) In determining to which State the person is to be extradited, the Requested State shall consider all relevant factors including, but not limited to –
(a) Whether the requests were made pursuant to an extradition treaty;
(b) the relative seriousness of the offences, where the requests relate to different offences;
(c) the time and place of commission of each offence;
(d) the respective dates on which the requests were received from the respective State;
(e) the interests of the respective States;
(f) the nationality of the victim; and
(g) the possibility of any subsequent extradition between the respective States.
(1) If under the law of the Requesting State, the person sought to be extradited is liable to the death penalty for the offence for which his extradition is requested, but the law of the Requested State does not provide for the death penalty in a similar case, extradition may be refused unless the Requesting State gives such assurance as the Requested State considers sufficient that the death penalty will not be carried out.
(1) If extradition is granted, the person sought shall be sent by the authorities of the Requested State to such convenient point of departure from the territory of that State as the Requesting State shall indicate.
(2) The Requesting State shall remove the person sought from the territory of the Requested State within one month or such longer period as may be permitted under the law of the Requested State. If he is not removed within that period, the Requested State may refuse to extradite the person for the same offence.
Surrender of Property
(1) When a request for extradition is granted, the Requested State shall, upon request and so far as its law allows, hand over to the Requesting State, articles (including sums of money), which may serve as proof or evidence of the commission of the offence which is the subject of the request.
(2) If the articles in question are liable to seizure or confiscation in the territory of the Requested State, the latter may, in connection with pending proceedings, temporarily retain them or hand them over on condition that they are returned.
(3) This Article shall not prejudice the rights of the Requested State or any person other than the person sought. When these rights exist, the articles shall on request, be returned to the Requested State without charge, as soon as possible, after the end of the proceedings.
(1) Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State.
(2) A request for transit shall be transmitted through the diplomatic channel to the Competent Authority Of the Requested Party provided that the offence concerned is an extraditable offence under this Treaty. In cases of urgency the facilities of the International Criminal Police Organization (INTERPOL) may also be used to transmit such a request.
(3) The request for transit shall contain-
(a) a description of the person together with any information that may help to establish his or her identity and nationality; and
(b) a brief statement of the facts of the case, and a list of the offences for which the person was surrendered by the third State.
(4) Permission for the transit of a person shall, subject to the law of the Requested State include permission for the person to be held in custody during transit. If transportation is not provided within a reasonable time, the executive authority of the State in whose territory the person is being held may direct that the person be released.
(5) Authorization shall be not required where air transportation is used by one Contracting State and no landing is scheduled on the territory of the other Contracting State. If an unscheduled landing occurs, the State in whose territory such landing occurs may require a request for transit.
Mutual Legal Assistance in Extradition
Each Contracting State shall, to the extent permitted by its law, afford the other the widest measure of mutual assistance in criminal matters in connection with the offence for which extradition has been requested.
Documents and Expenses
(1) If, in any particular case, the Requested State so requires, the Requesting State shall supply a translation of any document submitted in accordance with the provisions of this Treaty.
(2) Expenses incurred in the territory of the Requested State by reason of a request for extradition shall be borne by that State.
(3) The Requested State shall make all arrangements which shall be requisite with respect to the representation of the Requesting State in any proceedings arising out of the request.
Obligations under International Conventions
The present Treaty shall not affect the rights and obligations of the Contracting States arising from International Conventions or Treaties to which they are parties.
Confidentiality of Information
The Contracting States shall maintain the confidentiality of information and documents provided under this Treaty.
Designation of Competent Authorities
The Contracting States shall designate and communicate to the other the Competent Authorities by, or through which, requests for the purposes of this Treaty may be made or received.
The Contracting States shall endeavor to settle any dispute arising from the interpretation or application of this Treaty through negotiations.
(1) This Treaty shall apply to requests made after its entry into force, even if the relevant acts or omissions occurred prior to that date.
(2) This Treaty shall be subject to ratification and the instruments of ratification shall be exchanged as soon as possible. It shall enter into force on the date of the exchange of instruments of ratification.
(3) Either of the Contracting States may terminate this Treaty at any time by giving notice to the other through the diplomatic channel; and if such notice is given, the Treaty shall cease to have effect six months after the receipt of the notice.
(4) Either of the two Contracting States may submit a request for amendment to this Treaty. The request for amendment shall be submitted via diplomatic channels. The amendments shall only be valid after the agreement of the other State.
In witness whereof, the undersigned being duly authorized by their respective Governments, have signed this Treaty.
Done in two originals at Lilongwe on 5th day of November, 2018 in Hindi and English languages, both texts being equally authentic. In case of any dispute with regard to interpretation, the English text shall prevail.
On behalf of the Government of
the Republic of India
On behalf of the Government of
the Republic of Malawi
[F. No. T-413/62/2014]
DEVESH UTTAM, Jt. Secy. (CPV)