The Exchange of Prisoners Act, 1948

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The Exchange of Prisoners Act, 1948 (Act No. 58 of 1948) dated 10th September, 1948 was enacted with an intention to transfer of prisoners from India to Pakistan who are being Pakistani citizens serving sentence in India and from Pakistan to India who are being Indian citizens serving sentence in Pakistan. The Act was enacted in furtherance of agreement made between Government of two countries, India and Pakistan. The Act has its extension over whole of India.

Section 2 of the Act deals with definition of certain terms used under the provisions of this Act which includes  prison, prisoner, etc. The definition of term prison is very simple as it is commonly said that the prison means jail or judicial lock-up where any person ordered to be detained under any law in force. Similarly, the term Prisoner means person who is taken under such custody in prison before 1st August, 1948.

Section 3 of the Act relates with power of State Government to issue warrant as to delivery of prisoner detained in prison along with all records relevant thereto and personal effects of such prisoner taken at the time of his detention. And Section 4 of the Act provides for delivery of such prisoners under the warrant issued for their removal. Such delivery should be made by officer in-charge of the prison to person authorized by Pakistan.

Section 5 of the Act specifies that, soon after the delivery of custody of such prisoners is made to officers of Pakistan as per provisions of this Act, the jurisdiction of all Courts and authorities in India should be ceased except only under Section 8 of the Act. Section 6 of the Act being important provision relating to holding of custody of such prisoners and taking him out of India by Officers of Pakistan upon delivery of his custody. Such act of Officer of Pakistan upon delivery of custody should be lawful and also if such prisoner escapes from such custody within the territory of India then he should be retaken to custody under the Indian laws similar to those whose escape commonly under the Indian laws.

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Section 7 of the Act dealt with situation where prisoners of Pakistan transferred to Pakistan under the provisions of this Act, the concerned State Government can require any record relating any proceedings connected with those prisoners and such State Government can also require sending of such records to Government of Pakistan. Prisoners who have been transferred under the provisions of this Act should not return to India as per Section 8 of the Act, however, such prisoners can return to India only with written permission of Central Government. The breach of this rule by any prisoner is to be penalized as per provisions of sub section (2) of the Section which includes imprisonment up to 3 years.

The another important provision under the Act is Section 9 of the Act where provision for receiving Indian nationals who were detained as prisoners in Pakistani prisons are made. The Central Government should make an order specifying place and persons (officers) for taking custody of such prisoners. Before passing this Act there was an Ordinance of 1948 known as The Exchange of Prisoners Ordinance, 1948, which later converted into an Act. Section 10 of the Act dealt with such Ordinance and provides for its repeal. The provision further says that the repeal of this Ordinance should not affect previous operation, actions made or taken thereof.

The very similar kind of agreements as to exchange of prisoners has been made by Indian Government with other Countries. The examples of such agreements are the agreement with Russia and the agreement entered into with US Government. The agreement entered into with Russia by Indian Government was taken place on 21st October, 2013 and signed at Moscow by President of Russia, Vladimir Putin and Indian Prime minister, Manmohan Singh. The said agreement or treaty was finalized with the aim and object to bring international legal framework for Russian-Indian Cooperation for transferring individuals serving prisons to their countries. Similarly, the agreement between Indian Government and US Government is also best example of such kind of transaction which was entered into on 2010.

Such kind of treaties or agreements between countries are important so far as it can be said to designed to relieve special hardships falling upon prisoners far from home country. However, the recent news about  the latest Government of Prime Minister Narendra Modi, is that the Government of India has decided to repeal around 36 obsolete laws immediately which includes Exchange of Prisoners Act, 1948 also.

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by Faim Khalilkhan Pathan