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RaviS (none)     20 September 2014

Possibility of extradition in 498a or domestic cases

How practical is extradition under 498a or other domestic cases?

I am aware of the extradition treaty between India and the US and the possiblity of opponent to request extradition.

However, such cases require:
a) The request be made through high level diplomatic channels
b) Prima Facie evidence needs to be attached and will be reviewed by US court/officials

c) The extradition can be fought in the US courts and 498a is not recognized in any other country.

While there is a theoretical possibility, how practical is it to extradite a foreign citizen. Has there been any cases in the past few years, where this has actually happened.

NOTE: I am not talking about the case where the guy is on a visa and the visa gets cancelled or the Indian passport gets cancelled and the guy has to return home. For this discussion we will limit it to cases of extradition of Foreign Citizen or Permanent resident.

Is there any precedent or real life examples where this has happened.


 8 Replies

Rajender Kalra (Men's Rights Activist )     20 September 2014

It can happen in serious cases where a grave offence has been committed but in simple 498a and DV case its practically not possible..

Ashok, Advocate (Lawyer at Delhi)     20 September 2014

Usually, for extradition to take place, it should be an offence in both countries and moreover, usually the punishment for that offence should be more than a specified minimum sentence as agreed between the two contracting states. Of course, extradition provisions vary from one country to another.


In so far as the extradition treaty between India and USA is concerned, I may point out that there exists an Extradition Treaty of 1999 between India and US, and according to article 2(1) of this treaty “an offence shall be an extraditable offence if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty.”


Therefore, extradition for an offence can take place between India and USA only if the offence is punishable with a minimum of one year imprisonment in both countries. In India, of course, the offence under Section 498-A IPC is punishable for more than one year imprisonment. However, I do not know as to whether the US laws (including the laws of the concerned US State) provide for an offence similar to that of 498A IPC and also as to what, if any, is the punishment for such an offence in the US. Therefore, it is not clear as to whether extradition would be possible in the case of an offence under Section 498A of IPC.


In fact, my understanding is that even the Interpol is not accepting any requests for red-corner notices in the 498-A cases.


Yes, I may add that extradition of a foreign citizen is also possible, i.e., for example, a US citizen can be extradited from US to India, if all other conditions are satisfied.



Ashok, Advocate (Lawyer at Delhi)     21 September 2014

@ Raj123: I have specifically quoted the provisions of Article 2(1) of the 1999 Extradition Treaty between USA and India, and I have quoted it verbatim in italics. This clearly shows that I have taken the trouble of studying the relevant provisions and then given my reply.


Moreover, this provision clearly shows that if an offence is punishable with a minimum imprisonment for one year in both countries, then it is an extraditable offence. There is NO mention in this Article that the minimum punishment should be 7 years, as you have mentioned.


Thirdly, where did I mention that merely because an offence is extraditable, the extradition will also take place automatically? Please read my opinion carefully. I have nowhere stated that. What I have stated is about the minimum condition, or the so-called “eligibility” of an offence. The question of “suitability” has not been touched upon by me. Please appreciate that.


It goes without saying that the first requirement is that the offence should be extraditable. Only then comes the question whether the extradition will actually take place in that given case.  And, this second question is a very complicated question of law and facts. In fact, I have had the personal experience of handling some extradition cases and I can say that generally it is very difficult to get extradition in a case even if it be of a serious nature.



RaviS (none)     21 September 2014

Thank you for pointing out the finer points of the law.


Especially regarding "dual criminality"

a) 498a is a crime in India, however it is not recognized in the US or any of the other 178 nations, so it fails the test of 'dual criminality'

b) DV is a criminal offence in the US (and most other countries), however it is a civil offence in India , which precludes the possibility of extradition on it.

c) Also there is the issue of Indian court claiming jurisdiction over a US Citizen, over a crime that 'allegedly' occurred in that foreign nation (or at least most of it).  If such a crime had occurred, a police report should have been filed in that nation along with evidence years ago when the crime actually occurred. 

d) Then there is burden of proof / evidence


I agree with you that there is a provision in the law for seeking such an extradition.

However, I am yet to find out a case where such a extradition has been accomplished on a US Citizen (or any other foreign national for that matter). If any one is aware of case where it has occurred in practice, either from their practice or based on the posts in this or other forum please point me to such an instance. In the absense of which I assume the lack of feasibility. 

RaviS (none)     21 September 2014

Can NRI ask for trail in USA ? 
Before any extradition or deportation, there will be a trail in the US. This will be a limited trail (not a complete trail). Complete evidence of guilt need not be established. However, Prima Facie evidence needs to be provided by the Indian government. This prima facie evidence will be reviewed by US court. 
(e.g., if it is domestic violence case, there needs to be medical record evidence from the US)
Who would pay for the trail in lower court ? 
According to the text of India US government treaty. The expense will be borne by US(contrary to popular belief). The Indian government will only pay for the Flight ticket and translation cost of documents. 
Again let me repeat, it is very difficult to get to this stage. As it is a major diplomatic step for the Indian government to request extradition from a foreign nation and domestic cases do not reach this high bar.
As you have mentioned before, it needs to be a very serious offense(non domestic) , evidence needs to be provided and opponent needs to be well connected in central goverment, before it even gets to this stage. 

Ashok, Advocate (Lawyer at Delhi)     21 September 2014

@Raj123: That’s why I had myself mentioned in my first reply itself that “…even the Interpol is not accepting any requests for red-corner notices in the 498-A cases”.



What I had mentioned in my reply was the legal position as to what can happen under the provisions of the extradition treaty. In practice, what happens is a different thing since it is very difficult to get an extradition done even for a hard-core criminal. This is what has been my professional experience in some of the extradition matters that I had the privilege to deal with, and that is why on the basis of my professional experience I had mentioned that the Interpol is not expecting red-corner notices in 498-A cases. 

rebellion (fighting against bias law)     21 September 2014

happy to see entire world now started understanding truth of Indian top popular misused law 498a

but don't know when Indian govt will understand it, atleast SC started with baby steps 

Nitin (Law)     08 November 2014

Please note that extradition treaty works only when It's an Indian citizen.If the person is a Foreign national holding foreign passport then India cannot extradite that person. I have seen lawyers talking about extradition as easy ordering Pizza but they are not aware about the laws of the foreign land. Many European countries have the laws that none of their citizens will be extradited to other countries and if It's a big crime then trial needs to be held in local courts.Even US and UK have good relationship still when it comes to extradition of their citizens then things are not same. So whoever claims here that India can extradite a Foreign National they should know that It's a big Zero.

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