Extradition Act Contains No Prohibition On Grant Of Pre-Arrest Bail; Doesn’t Oust Constitutional Safeguards Embedded In CrPC: Delhi High Court
The Petitioner approached the Delhi High Court assailing the order whereby his application seeking anticipatory bail under Section 482 of the BNSS read with Section 25 of the Extradition Act was dismissed.
Justice Sanjeev Narula, Delhi High Court
While setting aside an order denying anticipatory bail plea of a man accused of theft of property belonging to a company based in Bangkok, the Delhi High Court has ruled that the Extradition Act contains no prohibition on the grant of pre-arrest bail.
The Petitioner had approached the High Court invoking Section 482 read with Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 assailing the order whereby the Petitioner’s application seeking anticipatory bail under Section 482 of the BNSS read with Section 25 of the Extradition Act, 1962 was dismissed and the Petitioner was directed to immediately surrender before the Court or before CBI.
The Single Bench of Justice Sanjeev Narula observed, “The Extradition Act contains no prohibition on grant of pre-arrest bail. To read such a prohibition into the statute would amount to judicially engrafting a limitation that the Legislature, in its wisdom, has chosen not to impose.”
“When Section 25 of the Extradition Act is construed in its proper statutory context, and read purposively alongside Section 438 of the Cr.P.C., it does not impose any bar, express or implied, on the grant of prearrest bail. The two provisions operate in distinct procedural spheres and can co-exist without conflict. The Extradition Act, despite being a special law, does not oust the constitutional safeguards embedded in the Cr.P.C., particularly in the absence of a specific legislative exclusion. Therefore, an application for anticipatory bail filed before the Magistrate exercising the powers of a Court of Session under Section 7 & 25 of the Extradition Act is maintainable”, it further held.
Advocate Gautam Khazanchi represented the Petitioner while CGSC Amit Tiwari represented the Respondents.
Factual Background
The Petitioner, an Indian citizen, joined Flawless Co. Ltd., an entity based out of Bangkok, Thailand, in 2013 in the Administration of Foreign Affairs. After completing his tenure of around 8 years, he returned to India. In the year 2021, the Company filed a complaint against the Petitioner in Thailand, alleging that he stole 8 diamonds worth around ₹3.89 crore and fled to India. The officials of the company contended that the Petitioner admitted his guilt to the company but apprehending arrest, he fled to India. The Southern Bangkok Criminal Court issued a warrant for his arrest, and Thai prosecutors commenced the extradition efforts that underpin the ongoing proceedings before the Patiala House Courts, Delhi.
The Ministry of External Affairs, Government of India, passed an order informing that the Kingdom of Thailand had requested the extradition of the Petitioner, and thus, the Magistrate Court was notified to conduct an inquiry into the extradition request and determine whether a prima facie case was made out against the Petitioner. The Magistrate dismissed the anticipatory bail application of the Petitioner, leading to the filing of the application before the High Court.
Reasoning
Expounding on the law relating to judicial discretion under the Extradition Act, the Bench explained that the procedural framework of the Extradition Act gets triggered when the Central Government receives a requisition request from a foreign state. “Thus, the decision to issue a Bailable or Non-Bailable warrant remains a matter of judicial discretion, to be exercised with due regard to (a) whether the fugitive criminal is a flight-risk, (b) India’s treaty obligations, and (c) the principle of proportionality that underpins both Cr.P.C. and constitutionally mandated due process of law”, it said while also adding, “Accordingly, Section 25 of the Extradition Act, cannot be construed as precluding the application of anticipatory bail to extradition proceedings.”
Referring to the judgment of the Apex Court in Sushila Aggarwal and Balchand Jain v. State of M.P (1976), the Bench observed, “As clarified in Balchand Jain, a provision that regulates postcustody bail cannot impliedly override a statutory remedy that functions at the pre-arrest threshold. Both provisions can, and must, be read harmoniously. Section 25 governs the grant of bail once arrest has occurred; Section 438 safeguards liberty by intervening before arrest. Their coexistence presents no doctrinal conflict. Accordingly, in light of the above, Section 25 of the Extradition Act cannot be interpreted to curtail the application of anticipatory bail under Section 438.”
The Bench found prima facie merit in the Petitioner’s submission that he was not aware of any criminal proceedings initiated against him in the foreign country when he came back to India, and he had not been taken into custody. He also continued to appear voluntarily before the Magistrate. “In the opinion of this Court, there is no convincing material to suggest that the Petitioner poses a flight risk, or that he is likely to tamper with evidence or impede the judicial process. On the contrary, his conduct reflects a readiness to cooperate”, it said.
Thus, allowing the application, the Bench set aside the impugned order denying bail. Directing the Petitioner to continue to participate and cooperate with the inquiry, the Bench ordered that the Petitioner shall be released on bail, on furnishing a bail bond for a sum of 10,00,000 with two sureties of the like amount.
Cause Title: Shankesh Mutha v. Union of India & Anr (Neutral Citation: 2025:DHC:5140)
Appearance
Petitioner: Advocates Gautam Khazanchi, Vaibhav Dubey, Anuj Aggarwal, Vinayak Chawla
Respondents: CGSC Amit Tiwari, Chetanya Puri, Abhigyan Siddhant, Ayushi Srivastava, Ayush Tanwar, SPP N.K. Matta, Advocates Siddharth Kaushik, Mohd. Faizan Khan, SPP Anubha Bhardwaj, Advocates Muskan Narang, Rudresh Kumar, Karan Shankla
