India can accept a provisional arrest request from any foreign State. On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to
issue a provisional warrant for the arrest of such fugitive criminal. Section 34B of the Extradition Act provides for Provisional arrest. Before issuing a warrant for the arrest of a person, a magistrate must be satisfied that:
- an arrest warrant for the person exists in the foreign country or the person has been convicted of an offence against the law of the foreign country
- the offence to which the warrant or conviction relate is an ‘extradition offence’, and
- The dual criminality principle is complied with.
The extradition arrest warrant issued by the magistrate is executed by the concerned Indian Police agency.
After the person is arrested, he is brought before a magistrate and remanded in custody or released on bail if there are special circumstances that justify the grant of bail. The foreign country which made the provisional arrest request has a limited time
to make a formal extradition request to India, which is, usually 45 or 60 days from the day on which the person was arrested.
The exact time frame finds mention in the relevant extradition treaty. For non-treaty States, it is 60 days as per Section 34B(2) of the Indian Extradition Act. If an extradition request is not received within that time, the person can apply to a magistrate
to be released from custody. However, the fact that the person has been released from custody shall not prejudice the subsequent re-arrest and extradition of that person, if the extradition request and supporting documents are received at a later date.
It is evident that Section 34 Sub-section (1) is an urgency provision for the purpose of putting a fugitive criminal under provisional arrest, pending receipt of a request for his surrender or return, so that he does not flee in the meanwhile. The mandatory
stipulation of discharge of the person detained upon the expiry of 60 days from the date of his arrest is a safeguard against keeping the liberty of a person in suspended animation for an indefinite period without any accusation or complaint etc.
It is clear that the Section does not postulate that a request for surrender or return of a fugitive criminal has to be only after fugitive's provisional arrest. In other words, provisional arrest of a fugitive under Sub-section (1) is not a condition precedent
for a request for his surrender to the requesting country.
It is equally not mandatory that a request for immediate arrest under Sub-section (1) must precede a requisition for surrender of a fugitive criminal either under Chapter II, which lays down the procedure for extradition of fugitive criminals to foreign
State, with which there is no extradition arrangements or Chapter III of the Act, which sets out the procedure for return of fugitives to foreign States with extradition arrangements.